SHAUGHNESSY, DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE, v. UNITED STATES EX REL. ACCARDI.
No. 616
Supreme Court of the United States
Argued April 22, 1955.—Decided May 23, 1955.
349 U.S. 280
Jack Wasserman argued the cause and filed a brief for respondent.
MR. JUSTICE CLARK delivered the opinion of the Court.
We are called upon in this case to remove ambiguities from a previous opinion which, while clear enough to the trial court, appears to have conveyed a triplicity of meaning to the Court of Appeals. A year ago Accardi was here contesting the dismissal of his habeas corpus petition in which he attacked the refusal of the Board of Immigration Appeals to grant his application for suspension of deportation. Accardi v. Shaughnessy, 347 U.S. 260 (1954). The sole foundation of his claim was that “the Attorney General [is doing] precisely what the regulations forbid him to do: dictating the Board‘s decision.”* 347 U.S. 260, at 267. We remanded the petition to the trial court for a hearing on the question of “the Board‘s alleged failure to exercise its own discretion, contrary to existing valid regulations.” It was alleged on information and belief that the Attorney General had prepared prior to the Board‘s decision “a list of one hundred individuals whose deportation he sought . . .” as “unsavory characters“; that Accardi‘s name was among the group; and that the “list . . . was circulated by the Department of Justice among all of its employees connected with the Immigration Service and the Board of Immigration Appeals” with the result that “since that time it has been impossible for [Accardi] to secure fair consideration of his
On the remand, the District Court, after a full hearing, found that the Board members “reached their individual and collective decision on the merits, free from any dictation or suggestion . . .” and again dismissed the writ. The Court of Appeals reversed, one judge dissenting, 219 F. 2d 77. The opinion of the court based its conclusion on the ground that the “Attorney General‘s statements [had] unconsciously influence[d] the Board members so that they felt obliged not to exercise their discretion and, without doing so, to decide against Accardi.” The chief judge, concurring in the result, thought that our prior opinion merely required Accardi to prove “that there was a list as alleged, that he was on it, and that this fact was known to the Board.” The dissenting judge, on the other hand, read our opinion as meaning “no more . . . than that [Accardi‘s] allegations sufficiently charged ‘dictation’ by the Attorney General,” entitling Accardi to a hearing on the question of “whether the Board‘s denial of discretionary relief represented its own untrammelled decision or one dictated by the Attorney General.” P. 90. He concluded that the finding of the trial judge was not clearly erroneous. We agree with the dissenting judge both as to the interpretation of our prior opinion and its application to the facts of this case.
The opinion of the court recognized that, before Accardi was entitled to another Board hearing, he had to prove that a majority of the Board not only knew of the “list” but were affected by it. However, the opinion concluded that the Board‘s position that its judgment had not been affected by “the list” was incredible. We find nothing
Accardi emphasizes the trial court‘s finding that the Board had notice of the program and of his inclusion therein. This “notice,” at most, was given only to the calendar clerk of the Board so that the hearing of certain cases might be expedited. The testimony that it was not furnished to members of the Board or the Chairman is undisputed.
Accordingly, the judgment of the Court of Appeals is reversed and that of the District Court affirmed.
Reversed and remanded.
MR. JUSTICE HARLAN took no part in the consideration or decision of this case.
MR. JUSTICE BLACK, with whom MR. JUSTICE FRANKFURTER joins, dissenting.
There is disagreement here as there was in the Court of Appeals as to precisely what was meant by our former opinion and holding in this case. Accardi v. Shaughnessy, 347 U.S. 260. This is not surprising in view of ambiguity of language at its best. The Court gives our former opinion a different and in some respects a narrower meaning than I would. I think the Court‘s interpretation deprives Accardi of a right which I thought our first opinion guaranteed him as far as possible under existing law—an opportunity to have his rights determined by a tribunal which had not already made up its mind based on anonymous information. Consideration of this basic issue requires a more extensive reference to the record in this and the prior case than the Court has found it necessary to give. Accardi‘s rights cannot be fairly determined on broad legal generalizations or by merely interpreting our former opinion. If that opinion means no more than the Court indicates then Accardi‘s right to have suspension of his deportation determined without prejudgment by the Attorney General has never been passed on.
Accardi, born in Italy, came to this country in 1932, when he was 21 years old. He entered the United States
The basis of this controversy is not the original order of deportation but is Accardi‘s application for suspension of that order under
The habeas corpus petition considered in this case and the prior one alleged that the deportation order and the order denying favorable discretionary relief were both null and void, violated due process and should be set
When the case reached us we said in part as follows:
“The petition alleges that the Attorney General included the name of petitioner in a confidential list of ‘unsavory characters’ whom he wanted deported; public announcements clearly revealed that the Attorney General did not regard the listing as a mere
preliminary to investigation and deportation; to the contrary, those listed were persons whom the Attorney General ‘planned to deport.’ And, it is alleged, this intention was made quite clear to the Board when the list was circulated among its members. In fact, the Assistant District Attorney characterized it as the ‘Attorney General‘s proscribed list of alien deportees.’ To be sure, the petition does not allege that the ‘Attorney General ordered the Board to deny discretionary relief to the listed aliens.’ It would be naive to expect such a heavy-handed way of doing things.” 347 U. S., at 267.
Pointing out that “the allegations are quite sufficient” we went on to say that
“If petitioner can prove the allegation, he should receive a new hearing before the Board without the burden of previous proscription by the list. After the recall or cancellation of the list, the Board must rule out any consideration thereof and in arriving at its decision exercise its own independent discretion, after a fair hearing, which is nothing more than what the regulations accord petitioner as a right. Of course, he may be unable to prove his allegation before the District Court; but he is entitled to the opportunity to try.” Id., at 268.
I think that petitioner proved beyond all peradventure that the Attorney General did “prejudge” Accardi‘s case as alleged. Under our former opinion this was enough to justify relief. But this crucial question was not passed on at all by the District Court in this case. It went on the theory that we held that petitioner was entitled to relief only if he could establish that the Board of Immigration Appeals felt itself “dictated to” by the Attorney General so that it could not give a recommendation based on its own discretion. In my view this was an unwar-
In the final analysis under both statute and regulations the discretion to be exercised is that of the Attorney General. Due to the regulations, however, that discretion can no longer be exercised arbitrarily or without hearings. A fair hearing by an impartial board has been established as a prerequisite to final exercise of discretion by the Attorney General. Failure to await these required hearings and findings before deciding to deport is therefore a violation of the very regulations the Attorney General has prescribed under authority of law. That the suspension of deportation of Accardi was prejudged long before the Board of Immigration Appeals made its decision is established by the undisputed testimony of Hon. James P. McGranery who was the Attorney General on October 2, 1952. He testified that he did have a planned program at that time for the deportation of selected aliens. Shortly thereafter he gave out a statement that the arrest of a certain named alien “was another step in his denaturalization and deportation program aimed at ridding the Nation of undesirable aliens engaged in racketeering and other criminal activities.” The Attorney General testified that this statement accurately reflected his program. He also testified that “Joseph Accardi‘s case was one of the earliest cases submitted, and his case was already on appeal at the time . . . But my investigation and the record of Accardi proved him, to my satisfaction, to be a racketeer. That is why I put him on there.” In testifying about the beginning of his deportation program, the Attorney General said, “I had a conference very early in my adminis-
It is significant that on the very day Attorney General Brownell referred to Accardi as a “racketeer,” the Board of Immigration Appeals found as a fact from evidence that he was “considered a person of good moral character.” Moreover, there was no evidence before the Board to show that Accardi was or ever had been a “racketeer.” The record therefore establishes that the Attorney General not only prejudged Accardi‘s case against him but evidently did so on the basis of anonymous information that he was a racketeer. It may be as Judge Frank suggested that in so characterizing Accardi the Attorney General confused him with someone else. However this
There are also other reasons why I think this judgment should be affirmed and the case sent back to the Board of Immigration Appeals to carry out the directions of the Court of Appeals. Whatever this Court‘s prior opinion may have meant, the case should not go off on the District Court‘s finding of fact that the Board of Immigration Appeals actually exercised its own untrammeled discretion despite what the Attorney General said or did. That finding rests almost entirely on testimony given by the Board members themselves denying that they were influenced by the Attorney General‘s planned program to deport certain named aliens. I deem it bad practice to subject administrative officers, acting in a quasi-judicial capacity, to a probe of the mental processes which led them to decide as they did. That is what the Court sanctions here. We have already decided that this practice is no more desirable than that of probing the minds of judges to try to fathom the reasons which prompt their decisions. United States v. Morgan, 313 U.S. 409, 421-422.
Whatever the Board members’ state of mind may have been, I think the Attorney General‘s publications placed the Board of Immigration Appeals, the members of which hold office completely at his will, in a position that no judicial agency should be. Copies of newspaper interviews and speeches made by two Attorneys General and
The inevitability of what was to happen to Accardi after his name was put on the “Attorney General‘s proscribed list of alien deportees” is rather strongly indicated by the fact that not one of these aliens has ever been granted final discretionary relief allowing him to remain in this country. In an effort to show that aliens on the list are not barred from discretionary relief, the Government refers to four specific cases. In two of those cases, however, the aliens were not deportable under existing law and thus the Board did not reach the question of discretionary relief. In the third case the alien was allowed to leave voluntarily instead of being forcibly deported as he otherwise would have been. In the fourth case the Board did actually recommend that deportation be suspended. But that is not the full picture. The hearing officer who had recommended the alien‘s immediate deportation was investigated after the Board‘s recommendation of suspension. The Department of Justice concluded that he had been derelict in not fully developing “important derogatory information” concerning the alien and announced that he had been relieved of duty and that disciplinary action would be taken against him.2 At the instance of the Department, as the Government‘s brief points out, the Board granted a rehearing on the alien‘s right to suspension which appears to be still pending. Thus the Attorney General cannot point to a single case in which one of the proscribed aliens has been finally granted a discretionary suspension.
It is my opinion that petitioner proved that the Attorney General‘s publicized program made it impossible to expect his subordinates to give Accardi‘s application
Notes
“10. The Attorney General, on April 23, 1954, a few days after the Supreme Court‘s decision came down, issued instructions that the Board should not be influenced in its decisions by his ‘program’ but, in each case, should exercise independent judgment.
“11. Accardi must be released from custody unless, within a reasonable time, the Board, under those new instructions, holds a new hearing and renders a new decision on his application for discretionary relief. Although the Board has already found that he has a good moral character, he should have the opportunity at the new hearing to offer evidence that he is not and never has been a racketeer. For it may be that, in so characterizing Accardi, the Attorney General has confused him with someone else of the same name.” 219 F. 2d 77, 83.