*1 Petitioner, SHERMAN, Joseph NATURALIZA AND

IMMIGRATION SERVICE, Respondent. TION 521, Docket 29487.

No. Court States

United Circuit. Second

Argued June 1965. Sept. 1965.

Decided

Rehearing En Banc Submitted Dec. 17, 1966. Jan.

Decided Gollobin, City, peti-

Ira York New for tioner. Atty., Lyons, Sp. U. S. Francis J. Asst. Atty., Morgenthau,

Robert M. U. S. Greilsheimer, Sp. U. James Asst. S. G. Atty., respondent. OF PANEL DECISION WATERMAN, FRIENDLY Before Judges. SMITH, Circuit Judge: WATERMAN, Circuit petition This case arises review a final order of and Naturalization holding petitioner deportable Service 241(a) under Section Immi gration Nationality Act of 1952. 1251(a) jurisdic U.S.C. We have tion to review this final order Sec 106(a) tion Act. .the Act of amended, (1961), 75 Stat. 651 1105a(a). S., Foti v. I. N. §§ 281 L.Ed.2d ,(1963). alien, petitioner, was born Warsaw, 1920 he 1906 in Poland. came to the and was ad- along permanent mitted for residence with his mother and three sisters. *2 895 petitioner turning, contends that the Government the had law taken a different Congress has not shown he has not remained but for that better or worse continuously ever implement in the United States determined that in order to however, Government, policy seeks inspection The the since. of alien it is neces- sary prove petitioner to properly to the traveled to that make an alien not in- using spected subject any United in France June 1937 to at passport Therefore, issued in the name States time. if the Government’s Unit- pe- Samuel Levine returned to the factual contentions are the sustained deported. ed on or about December can States titioner be using passport, manner in this same this avoiding inspection given The to to aliens Government “undertook show the all affirmatively” petitioner The that the had the States. arrival in United the United in 1938 entered States with- inspection.2 provides out in United Once the Government that an alien the proceed manner, inspection” chose in who “without to this estab- States entered deported upon the lished rules of the order of evidence instruct us that shall be Attorney it assumed the burden General. U.S.C. § issue; (2). is, on on As there is time limit this that the Government operation possible proving for section it is assumed the burden of this the exist- legal Attorney deport impose to aliens who facts General ence sought long period consequences have been residents the Government McCormick, but who last entered the without invoke. § inspection. example, The did For this section Government offer evi- tending permitted entry proceed the Government show without in- spection alleging petitioner pre- an in 1963 in which evidence is twenty- entry inspection without almost margin.3 petitioner cised in the might years five that earlier.1 One wish any elected not to introduce evidence and only any deportation pro Prior to the Government had inter alia that in entry years alleged illegal ceeding five after the burden of is on alien proceedings. “time, place, which to commence show and manner of petitioner’s period expired entry case this into the sustained, If United States.” Act, goes in 1943. Thus until the 1952 elim- burden is Section 291 inating pre all of limitation in de- statutes on to state the alien shall portation proceedings, passed, peti- was to be in sumed “in the United States proceeded presumption tioner could not have been violation law.” If this ob against. Rosenfield, See Gordon & Immi- tained in the would case it be un gration necessary prove Procedure § Law and 4.6b for the Government to entry inspection without in 1938. But proceeded 2. The Government proceed the Government did not theory. petitioner on a different just recog manner outlined. No doubt identify entry of fused to the record of petitioner’s entry nized that the lawful in August 8, Cliomia Szorman on 1920 as to the United States in 1920 had for all entry a record of his into the United practical purposes been established. See consequence time, place States. As a Hamilton, Sherman F.2d entry petitioner’s manner of into (1 Cir. officially United never States were docu- Ap- mented. The Board of 3. The Government introduced evidence es- peals accepted proven petitioner tablishing it as petitioner June of 1937 had entered in 1920. suggests applied the United States for and received a United Nevertheless, passport identity States under the of Sam- entry in its brief since the record of uel Levine. It was also established that using of Chomia Szorman was never received someone the name Levine Samuel in position Europe passport was traveled to on this advantage pre- Aquitania take aboard the SS in June of 1937 sumption using Act. contained 291 of the and that someone name Samuel provides 1361. Section 291 Levine returned to the States United cross-examining sequently requirements proc- rested content after of due attempt deportation proceedings in an ess should be Government’s chief witness by analogy tes- force of his elaborated to the criminal law weaken regu- statutorily rather timony than to the economic law At particular, petitioner lation. In contends hearing inquiry special found officer his case belief which de- this evidence Immigra- must exist before the Board of United portable entered the *3 tion can conclude that the facts inspection. Petitioner States without deportation depends on which are true by sought the review administrative should be defined it is in criminal as Immigration Appeals of this of Board argue cases.6 Petitioner does not that its own Board made The determination. process requires due the fact finder to the dis- independent of all determination degree “beyond have a of belief a reason- issues, practice,5 its puted as is factual deportation proceed- able doubt” in all to that identical and reached conclusion ings. pro- that He does contend in such inquiry special officer. reached ceedings there is a distinction between nei- appears record From all that process the due due an alien who has re- nor special inquiry officer ther the country long period in sided this degree any of paid to the heed Board only of time and that due an alien who required they to reach were belief that recently country. to came this In the they for the Govern- could find before petitioner former situation claims that tacitly ment, that to assume other than deportation is tantamount to banishment required simply to the Government was by and that im- considerations of fairness relied it facts on which establish the concept process It bedded in the of “preponderance evidence.” due re- of the petitioner’s quires contention that is prove that its case be- reversed decision must be Board’s beyond a reasonable doubt it is to if degree is of cause succeed. quired. sympathetic reading Even a of the is petitioner’s claim that The essence of Government’s brief indicates it though deportation criminal not a even largely argu- petitioner’s misunderstands penalty penalty which serious is a to it frequently consequences and con- ment. attach The Government invites to us passport petitioner; Ausonia aboard the SS he claimed on this was that Mor- passport on or about row when first and arrived shown evidence, photograph of December 1938. This “Samuel Levine” did not identify course, conclusively establish that it as did not the individual he had met using Spain; positive- in ly identify petitioner was the individual so and he could not Sherman only passport. tend- direct evidence as the individual Spain. petitioner prove had left he met in to and returned Rosenfield, 5. See Gordon & testimony of Edward Mor- is the Law and Procedure l.lOe § recognized pe- he row who testified that persons who titioner as one of the Although petitioner’s says 6. brief never Spanish War him Oivil served with many words, inso so it is clear di- recognized petitioner one he and that recting degree our attention to the passengers Au- board the SS peti- belief in criminal cases States sonia on its return to the United tioner refers to common assertion on December 1938. proceeding a criminal bur- prosecution prove During den is on the extensive cross-examination be- yond a that Morrow reasonable all elements stressed doubt Morrow was identify ability testifying crime defendant ac- Wigmore, have met but cused. See he someone claimed (3d years ago; generally McBaine, briefly twenty-seven ed. some “per- Degree Belief, Burden of Proof: that Morrow admitted Spain with the individual Calif.L.Rev. 242 sonal contact” in presently the administrative determination of the record of issue examine the argues that before this court. proceedings below and deportation order must be sus- question by petitioner’s raised “reasonable, sub- based on as it is tained claim concerns the of belief that stantial, evidence.” must exist may before the Board con- position support of this clude that an assertion of fact on which 242(b) our Section attention draws Government has the burden of 1252(b) (4), Section (4), U.S.C. question is true. Such a ques- is a amended, (4), Stat. 651 tion of regard-* law a court to decide 1105a(a) (4), (1961), 8 U.S.C. § less of how reasonable the Board’s resolu- disputed tion of the factual issues in this 242(b) (4) provides inter 1952. Section may argued, been. It deportability “no decision alia that course, the Board resolved this' upon rea- is based unless it be valid shall question law *4 probative sonable, substantial, and evi- and this resolution should not be disturb- (4) 106(a) states And Section dence.” by ed this appeal. court on From rec- the supported deportation order, “if a ord, however, it is not clear that the substantial, reasonable, by Board did problem.9 advert to the And aas considered on the record even if we assume that the Board did rule whole, Section be conclusive.”7 shall against petitioner question on this of general descrip- clearly (4) a is law thereby we are not foreclosed from judicial review of of the tion standard reconsidering question. There is ap- governs other federal this and indication in Congress the Act that in- reviewing final orders pellate Courts tended degree the Board to decide what 106(a); deportation Section of persuasion appropriate was in the case appellate is, question for the long-time of a resident alien threatened agency reviewing resolu- court deportation.10 with Indeed, there is no question disputed is factual of a tion Congress indication in the Act that ad- evi- substantial there was whether any way verted in problem to the support record on the whole degree persuasion imposed upon the though finding. And, agency’s even proceedings. 242(b) appears section in a Section question by petition raised this con- agency procedures, prescribing degree cerns persuasion constitu- a as restate- is best understood it tionally required appropri- or otherwise judicial proper ment of the standard ate in proceedings involving Board and a reminder review long-time aliens, resident a this is deportation must be based final orders of question especially judicial meet for de- evidence.8 Govern- on substantial termination. apparently these sec- believes that ment require in its favor. tions a decision open It to us to hold opinion, petitioner relevant our neither section is Supreme since the Court generally Jaffe, 7. Judicial Review: Congressional 10. If the Act evinced a on the Rec- Whole (1951). “Substantial desire to leave to the administrative agency ord.” Harv.L.Rev. the choice between the various de- grees persuasion potentially applicable Rosenfield, Immigration 8. & Law Gordon deportation proceedings we would be and Procedure 8.12c question inclined to hold that was such, problem, 9. No discussion this judicial not meet for determination even opinion. Eor is contained the Board’s though question it was a of law. part simply Board credited the most testimony government See, g., wit- Shaughnessy, e. Harisiades v. this testi- nesses. It then concluded that 342 U.S. 72 S.Ct. 96 L.Ed. 586 mony (1952); Bilokumsky Tod, to establish the facts sufficient v. depends. on which (1923); Buga- 44 S.Ct. L.Ed. deportation pro- repeatedly beyond stated that a reasonable doubt that believe nature,11 ceedings and or- civil in these exist can find for are facts before it having prosecution. Having dinarily party far come this in civil actions long step it a to conclude would not be only prove need the burden of higher degree persua- same he relies existence of facts constitutionally required in de- sion is by preponderance of the evidence. involving portation proceedings aliens (3d Wigmore, ed. Evidence 2498 who have resided in the United States believe, however, are that we doWe long period of time because in such required present conclude expulsion be tanta- case forcible would syllogistic As the fashion. Court such penalty that mount to banishment-—a deportation proceedings are insists that enormity many imposed surpasses in its reclassifying precluded from civil we are have neverthe- the criminal law. We criminal, and, thus them petitioner’s less constitu- concluded that holding major premise, then versed rejected. Neither tional should be claim required in such of belief by petitioner convince the cases cited proceedings is that which con- us announced the Court has not, prosecutions. in criminal We are urges us to stitutional rule considering however, precluded from apply case. Petitioner should bear whether the Government argues Perfetto, 355 that in v. Rowoldt when burden 2 L.Ed.2d long-time attempts deport a resident Gastelum-Quinones Ken- proceed- regardless of alien whether *5 nedy, 1819, 469, 10 83 S.Ct. 374 U.S. ing Be- is or in nature. civil criminal L.Ed.2d 1013 the Court announced one law is cause the realm evidence process requires administra- that due especially courts ex- which are beyond agency reasonable tive to believe regulating pert,12 and rules because deportation that on which doubt the facts traditionally degree persuasion are depended are Both Rowoldt true. may judge-made,13 we that we believe Gastelum-Quinones the threat- involved justice re- wisdom and consider whether alleged deportation ened of individuals high- quire bear that the Government party be members the Communist er burden 241(a) (6) (C) of Act. within Section case. 1251(a) (6) (C). In 8 both U.S.C. § process requires that seems clear due It reversed, holding cases the evi- the Court by some that there be test which the of record demonstrate did not fact can ascertain whether a fact finder Although “meaningful” association. every legal doubt, or does does not exist issue believe is not free from we that in these Court held that proceeding.14 Perhaps process cases the also due only “meaningfully” pro- requires individuals who be- that in certain criminal ceedings longed threatening penalties party to the Communist could serious (C) deported 241(a) (6) prosecution the facts Section demonstrate guilt depends cer- reversed because which are almost establishing meaningful tainly jury true; is, been must introduced Adams, regulating degree jewitz of belief re- 228 rules quired v. Fong given proceeding (1913); Yue in a 978 L.Ed. course, judges province judge. Ting States, Of United by precedent. L.Ed. will often be constrained But S.Ct. acquainted precedent we are with no 12. See Harv.L.Rev. 556-59 directly on bears the issue we generally McBaine, supra appeal. 13. See note 6. formulated it on this throughout Profession McBaine assumes McBaine, supra note at 244. his excellent article elaboration of that the prove beyond element in the doubt association—an essential reasonable the facts upon depends. not Court did which Government’s case. The say process cases that due in those We wish to stress that we do not hold prove quired imposed burden is on the depend- deportation there facts on which all cases. It meaningful membership beyond a ed— — for the Board of process due reasonable doubt. Whether to decide in the first instance when the open question, require is still an does so relating today rule pro- we announce we we should avoid because feel we ceedings involving long-time resident aon nonconsti- can hold for the applies, aliens and we wish stress that ground. tutional expand scope ju- the rule will agency dicial review of determinations. noted, previously the rules As we have purpose impress the rule is to regulating persuasion in agency grave nature of the traditionally legal proceedings are Although performs. repeated task it at- issues, judge-made. Thus, as to certain tempts “beyond to redefine term conclude that courts have been free to may simply reasonable doubt” purposes “aid the litigant just require a it is fair and tactician,” we are con- carry a somewhat a civil action imposition require- fident that the of this persuasion than liti heavier burden salutary ment will have the effect of caus- gants required as to the are to bear proceed carefully the Board to Wigmore, issues in civil actions. most extreme cases such as now before (3d ed. at 329 require this court. All we can is that the have even some civil actions courts special inquiry officer and the Board carry party one burden conscientiously ask whether the facts on usually prosecution in crimi borne long-term which the of a resi- g., See, proceedings. Admire v. nal e. depends certainly dent alien are almost Admire, 42 N.Y.S.2d 755 180 Misc. true. proceed If these administrators do so prove (Sup.Ct.1943) (necessary non- scope of review will remain beyond in over access reasonable doubt *6 inquiry limited to an whether the final legitimacy). coming presumption of We deportation order supported by of rea- present case have concluded sonable, substantial, probative and evi- exemplifies type proceeding in which a dence on the record considered a require courts should the Government whole. carry heavy peti burden. The such a in 1920. tioner entered the United States go Petitioner contends that we should deport now The Government seeks weigh against on to the evidence alleging him left the that the higher urges standard and that in this country without in 1937 and reentered light the evidence sup- is insufficient to inspection Government in 1938. If the port deportation. a final order of We forcibly prevails, petitioner ex will be agree. cannot requirement we have country pelled returned to from this and today announced at directed the finder meaningful Poland, which is in no sense facts, appellate not the court. Our say that the now. We do not only course is to dissolve the final order proceed should not be able Government deportation and remand for further long petitioner after a time. so proceedings not inconsistent with this We do is re hold that Government opinion. quired is almost cer to establish that it tainly Deportation petitioner entered true that order set aside and case 1938; inspection Immigration without remanded to and Naturali- words, in other must zation Service. Wigmore, Evidence, 2497, (3d

15. at § ed. Judge Immigration (dissent- Rosenfield, FRIENDLY, Law and & Circuit don Standing ing) 8.12c Procedure § : Immigration alone, this direction to my Appealing brothers’ desire isas higher than apply standard a Service rigors permits statute that of a ease the thought permissible previously been twenty-five years after might preclude insist courts from not requisite cause,1 I am unable to find types on a still one certain Moreover, authority part. fear I on our Congress plain But made rather cases. judicially pre- imposing special standard, that, raising did ill- persuasion on an scribed burden liberty to effect intend the courts to con- group will introduce defined of cases Report on The House further elevations. uncertainty into fusion and Act, Nationality and law. (1952), pp. Cong. U.S.Code & Ad.News might clean, well 1653, 1712, If the slate were I stated: agree persuasion for that the standard requirement deci- “The to that should be similar inquiry special officer sion of the Supreme denaturalization, where reasonable, shall be sub- based must Court has insisted that evidence stantial, probative and evidence convincing” “clear, unequivocal, and that, means the decision rests where “more needs and that evidence of such nature preponderance evi- than bare a reasonable it cannot be said that prevail. Unit- dence” Schneiderman person not have reached the States, 118, 125, 63 S.Ct. ed reached, conclusion which was 1336, (1943); 87 L.Ed. 1796 may because the not be reversed States, v. United Chaunt judgment appellate body dif- 5 L.Ed.2d 120 S.Ct. fers from that below.” per- Congress spoken, But here most expressed en- The intention thus tinently 242(b) (4): 1105a(a) acted 8 U.S.C. § “Judicial De- Review Orders of Attorney 1252(b), it directed the where portation and Exclusion. regulations requiring to make General findings Attorney “[T]he General’s fact, by reasonable, supported if deportability shall “no decision of substantial, probative upon rea- it is based be valid unless whole, on the record considered sonable, substantial, shall be conclusive.” evidence.” substantial, “reasonable, The standard of provision earlier overruled This *7 applies in and evidence” thus recog had been taken indications that all cases—both the Service proof quantum as suffi a lower nize and the courts. Vajtauer rel. United States ex cient. See Immigration, 273 v. Commissioner It is true that the substantial evi 302, 103, 106, 560 L.Ed. U.S. 47 S.Ct. 71 “quite rule itself is malleable and (“some evidence” sufficient judicial permits prac wide variances attack order sustain Rosenfield, supra, tice.” Gordon at & Note, Developments corpus); in habeas 857; Davis, see also 4 Administrative National and (1958), Law Treatise 126 and Law— 29.02 at ity, 643, part. (1953); pocket Gor- 698 cf. 66 Harv.L.Rev. 1965 But NLRB v. Wal- forgotten petitioner, Con 1. It should not be for him- reasons best known to self, gress provided pursue. relief has a method has declined to 1254, eases, such for

901 Mfg. 407, Co., seph 369 82 S.Ct. ton U.S. Sherman review the order denied, L.Ed.2d 829 And Su Service is for reasons stated “solidity Judge preme spoken, Friendly’s Court dissenting has opinion, 350 judgment F.2d at 900. entailing consequences deportation, SMITH, WATERMAN and Circuit particularly in man the case of an old who Judges, grant dissent and vote to forty years.” for lived petition and set aside the Perfetto, 115, 120, Rowoldt v. U.S. Judge order reasons stated 180, 183, S.Ct. L.Ed.2d 140 opinion, Waterman’s 350 F.2d 894. Granting this, perceive proper all I statutory basis under standard for reversing review; the order here

indeed, remanding case rather the, setting my aside, than the order broth necessarily

ers concede the evidence to

have been sufficient even under rea they apply. doubt

sonable standard would

If, urged, deportation as has been long-time as resident should be treated sanction, penal my conclusion brothers’ indeed follow on constitutional Mary Wendell S. WILSON and Ellen R. grounds. But, Wilson, they recognize, wife, Appellants, an in step court so ferior cannot take that v. long Bugajewitz Adams, v. America, UNITED STATES of 585, 591, L.Ed. 978 S.Ct. Appellee. Shaughnessy, (1913), Harisiades v. No. 7867. 580, 594-95, 512, 96 L.Ed. U.S. 72 S.Ct. Court of (1952), Press, Galvan Tenth Circuit. (1954), 98 L.Ed. 911 Sept. Supreme and other re Court decisions main the law. deny petition.

I would

DECISION EN BANC Judge, LUMBARD,

Before Chief

WATERMAN, MOORE, FRIENDLY,

SMITH, KAUFMAN, HAYS Judges.

ANDERSON, Circuit CURIAM:

PER Naturali Service for rehear

zation moved banc, majority judges and a regular having voted active service the case in banc and

reconsider

given parties opportunity to sub briefs, upon

mit further consideration petition of Jo- the court in banc the