*1 AND IMMIGRATION WOODBY v. SERVICE. NATURALIZATION 12, 1966.* December 17, 1966. Decided November Argued No. Naturaliza- 80, Sherman No. with *Together Court States United certiorari Service, on tion 16-17, 1966. on November argued Circuit, Second *2 Jacob Myers A. argued the cause for petitioner in No. 40. With him on the briefs was Sidney Kusworm, G. Sr.
Francis X. Beytagh, Jr., argued the cause for respond- ent in 40, pro No. hac vice, by special leave of Court. On the brief were Solicitor Marshall, General Assistant At- torney General Vinson, Robert Rifkind, S. L. Paul Winings and Charles Gordon.
Joseph Forer argued the cause and filed briefs for petitioner in No. 80.
Charles Gordon argued the cause for respondent in No. 80. On the brief were Solicitor General Marshall, Assistant Attorney General Vinson, Richard A. Posner and Maurice A. Roberts.
Frank C. Newman, pro se, filed a brief for Newman et al., as amici curiae, in No. 80.
Mr. delivered Justice opinion Stewart Court.
The question presented by these cases is what burden of proof the Government must sustain in deportation proceedings. We have concluded that it is incumbent upon the Government in such proceedings to establish the facts supporting deportability by clear, unequivocal, and convincing evidence. (No. Sherman 80), the petitioner is a resident alien
who entered this country from Poland in 1920 as a 14- year-old boy. In 1963 the Immigration and Naturaliza- tion Service instituted proceedings to deport him upon the ground that he had re-entered the United States in 1938, following a trip abroad, without inspection as an officer, inquiry special a hearing before a After alien.1 Board and the deported, ordered was petitioner appeal.2 his dismissed petitioner showed Government’s name under passport had obtained States a United as himself representing Levine, Samuel France sailed passport this using Someone citizen. to the United returned Spain, proceeded June Amonia, the S. 1938, aboard December States To alien. an examined being without was admitted traveled who petitioner it establish introduced the Government passport, under who citizen American an Morrow, Edward testimony of *3 at Morrow was War. Civil Spanish in the fought had or Levine Samuel name the to remember first unable that he eventually stated but identify petitioner, the Levine,” “Sam as petitioner the known had he thought Spain Loyalists the fighting while him had seen him with returned 1938, during 1937 in December Ausonia the S. aboard States United events recollection his Morrow conceded 1 Nationality ofAct Immigration and (a) (2) of 241 Section deporta provides for (a)(2), 1251 204, C. 8 U. S. 66 1952, Stat. inspection without States the United any who “entered alien tion of Attorney designated than other any place or time or at required to Government Prior to ...” General illegal alleged years anof five proceedings within bring deportation (a) 155 S. C. amended, 8 U. (1917), as entry, 39 Stat. petitioner would law, the prior Thus, under ed.). (1946 after 1943. commenced proceedings subject to have been retroactively eliminated limit was However, time Develop (d). See S. C. (d), §1251 66 Stat. Act, §241 Rev. Nationality, 66 Harv. L. Immigration Law, ments 643, 683-684. made its own Board practice, the usual conformity its with de novo exam after factual issues determination independent Rosenfield, Law & Gordon See record. ination (1959). 46-47 Procedure
occurring years earlier was imperfect, and admitted that his identification the petitioner might mistaken.
It is not clear what standard of proof the special inquiry officer and the Board of Immigration Appeals on de novo review applied in determining that it was petitioner who had traveled to Spain and re-entered the United States under the Samuel Levine passport. At the outset of his opinion, the special inquiry officer stated that the Government must establish deportability “by reasonable, substantial evidence,” without discussing what the burden was. Later he concluded that the Government had established its contentions “with a solidarity far greater than required,” but did not further elucidate what was “required.” The Board of Immigration Appeals stated that it was “estab- lished beyond any reasonable doubt” that the petitioner had obtained the Samuel Levine passport, and added that this established a “presumption” that the petitioner had used it to travel abroad. The Board further stated it was a “most unlikely hypothesis” that someone other than the petitioner had obtained and used the passport, and asserted that “the Service has borne its burden of establishing” that the petitioner was deport- *4 able, without indicating what it considered the weight of that burden to be.
Upon petition for review, the Court of Appeals for the Second Circuit originally set aside the deportation order, upon the ground that the Government has the burden of proving the facts supporting deportability beyond a reasonable doubt.3 The court reversed itself, however, upon a rehearing en banc, holding that the Government need only prove its case with “reasonable, substantial,
3
280 4 384 certiorari, granted We evidence.”
U.S. alien ais resident petitioner the 40), Woodby (No. States the United entered Hungary and in was born who soldier. American anof as the wife in 1956 Germany from on her against instituted were proceedings Deportation after in engaged prostitution had she that ground the Immi- of the Board officer and inquiry special A entry.5 the deportable that she found gration charged. ground admitted hearing petitioner the administrative
theAt period brief in engaged prostitution had that she her, had deserted her husband months after 1957, in some of circum- product was the her conduct that claimed but reaching the Without amounting to duress. stances officer special inquiry the defense, the duress validity of Appeals concluded Immigration Board of the engage prostitution had continued petitioner the hearing The had terminated. alleged duress the after of what burden discuss Board did not officer and the in establish- to bear was required Government of them indicate ing deportability, nor did either factual conclusions certainty with which their degree of merely officer asserted special inquiry were reached. petitioner was demonstrated 4 reasoning adopted 2d, 350 F. at 901. The. court original Judge Friendly opinion had filed as a dissent which original Smith, Judges Waterman and who formed decision. majority, dissented. Nationality (a) (12) Act of Section provides 207, (a) (12), for the 66 Stat. 8 U. S. C. § “by any conduct, any behavior alien who reason of any any entry activity or at after became a member time (a) specified paragraph (12) .” . . . the classes section specified (a) (12) Act, Among 66 Stat. the classes §212 (a) (12), prostitutes are or S. C. “Aliens who are prostitution. engaged in have . . .” who *5 deportable. The Board stated that the evidence made it “apparent” that petitioner had engaged prosti- after tution alleged duress had ended, announced “it is concluded that the evidence establishes deportability . . . .” denying petition for review, the Court of Appeals
for the Sixth did Circuit not explicitly deal with the issue of what burden of persuasion imposed upon was the Government at the administrative level, finding only that “the Board’s underlying order 'supported is reasonable, substantial, probative evidence on the record considered aas whole ....’” granted We cer tiorari, 384 S.U.
In the prevailing opinion in the Sherman case, the Court of Appeals for the Second Circuit stated that “[i]f the slate were clean,” it “might agree well standard of persuasion for deportation should be similar to that in denaturalization, where the Supreme Court has insisted that the evidence must be 'clear, unequivo- cal, and convincing’ and that the Government needs ‘more than a bare preponderance of the evidence’ to prevail. . . . But here,” the court thought, “Congress has spoken . . . .” 350 F. 2d, at 900. This view upon based two provisions of the Immigration and Nationality Act which use the language “reasonable, substantial, probative evidence” in connection with orders. The provisions in question are § (a) (4) of the Act which states that a deportation order, “if supported by reasonable, substantial, and pro- bative evidence on the record considered as a whole, shall be conclusive,” § 242 (b) (4) of the Act which pro- vides inter alia that “no decision of deportability shall be valid unless it based reasonable, substantial, evidence.”
675 Stat. 651 (1961), 8 U. S. C. (a)(4). 1105a 766 Stat. (1952), 8 U. S. C. (b) (4).
282 statutory pro- two these however, clear,
It seems required proof of degree to the are addressed visions proceedings, level at the administrative judicial of scope subject a different quite to but —the between difference crucial elementary but review. a com- course, of is, review of scope of burden graphically is most The difference law.8 in the monplace is prosecution case. There in a criminal illustrated offense of the the elements prove to required generally burden if the correct But a reasonable doubt.9 beyond gen- review is trial, judicial at the imposed relied the evidence ascertaining whether to erally limited quality of sufficient fact was trier of by the rationality judgment. support substantiality case in a criminal court appellate an words, In other it believes whether ask itself ordinarily does not beyond reason- guilt the trial established evidence at by supported is judgment doubt, but whether able evidence.10 substantial exclusively judicial review (a) (4)
That 106 relates context, its abundantly language, its clear is made was added to history. Section 106 legislative and its separate, create a statu- single, Act in 1961 in order “to orders for tory judicial review of administrative form of aliens from the and exclusion United 11 is entitled “Judicial Review States.” The section 8 Jaffe, Scope Burden of Proof See Administrative Law: Review, (1966); Comment, 79 Harv. L. Rev. 41 N. L. 914 Y. U. Deportation Proceedings, (1966); Rev. 622 of Proof Standard (1966). Stan. L. Rev. 9 McCormick, (1954); Wigmore, See 681-685 Evidence Evidence (3d 1940). ed. §2497 States, g., E. v. United Rutkin 130, 343 U. 135. For discus rule, Goldstein, sion of of and see variations alternatives usual Advantage The State and the Accused: Balance of in Criminal Procedure, (1960). 69 Yale L. J. 1157-1163 Rep. Cong., Sess.,
11 H. R. No. 1st 87th Deportation Orders its terms Exclusion,” provides procedure “the sole and exclusive for” the “judi- cial deportation.” review of all final orders of Subsection (a)(4) specific is a directive to the courts which petitions for review filed.12 are hardly
It other provision upon less clear that which the Court of for the Second Circuit relied, (b)(4) §242 is also Act, reviewing addressed *7 courts, represents yardstick insofar as it and, for the factfinder, goes, administrative of the burden proof, but rather to the and nature of the evi- quality upon dence which a deportation order must be based.13 The provision declares “reasonable, that substantial, probative evidence” shall be the measure of whether a deportability decision is “valid” —a word that implies scrutiny by a reviewing tribunal of a already decision by reached the trier of the facts. The location of this 12“Judicial Review Deportation of Orders of and Exclusion (a) “Sec. procedure prescribed 106. by, pro- all the visions of Act 29, 1950, of (64 December as amended Stat. 1129; 68 961; Stat. 5 U. seq.), apply to, 1031 et C. shall shall be the sole procedure for, judicial exclusive review of all final orders of except . . . that— “(4) petition . . . the shall solely upon be determined the admin- upon istrative record which the order is based and the Attorney findings fact, supported General’s if of reasonable, substantial, probative evidence on the record considered as a whole, shall be conclusive . . . .” 75 651 (1961), Stat. 8 U. S. C. (a). 1105a 13This recognized has been by the Board of itself:
“Finally, important it is bear mind the distinction between proof the burden of quality and the of the evidence which is re quired to successfully. establish that burden It is to be noted that (b)(4) subsection of section the act speak does not burden quality but of the of the evidence which the Service produce deportability must before validly can be found. . . .” Matter , 7 &I. N. Dec. of V — dealing with containing provisions in a section provision has little officer special inquiry before procedures original 1952 that the remembered it is significance when re- for judicial framework contain a itself Act did not available was, course, although such review view— Bonds, 349 Marcello v. or otherwise. See corpus habeas thought might be ambiguity 302. And whatever U. S. by its is resolved this section to lie in the location of explained § history. Report The Senate legislative the decision requirement “The (b)(4) as follows: on rea- officer shall be based special inquiry that, means sonable, substantial and evidence a nature rests of such where the decision might person a reasonable it cannot be said that reached, which was not have reached the conclusion judgment may not be reversed because case appellate body from that of the administrative differs body.” Congress has not ad- conclude, therefore, We degree question itself to the of what dressed *8 proceedings. in It is the kind required is traditionally judi- which been left to the question of has necessary resolution in the ciary resolve,15 its is administration of interest of evenhanded Immigration Nationality Act. of petitioners urge appropriate burden deportation proceedings in should be that which
proof in imposes duty proving law criminal cases—the beyond facts doubt. The the essential reasonable Gov- hand, points deporta- on the out that a ernment, other 14 Rep. Cong., Sess., Report S. No. 82d 2d 30. The House substantially language. Rep. identical H. contains R. No. Sess., Cong., 82d 2d 15 McBaine, Degrees Belief, Burden of Proof: 32 L. See Calif. (1944). Wigmore, 2488-2493, See also 9 2497- Rev. 242 Evidence §§ 1940). (3d 2498 ed.
285 tion is not proceeding a criminal case, and that appro- priate burden proof should consequently be the one generally imposed in civil cases and pro- administrative ceedings duty prevailing by a mere preponderance —the of the evidence.
To be sure, a deportation proceeding is not a criminal
prosecution. Harisiades v. Shaughnessy,
In denaturalization cases the Court
required
has
Government
to establish
allegations
its
by clear, unequiv
ocal, and convincing evidence.16 The same burden has
imposed
been
expatriation
cases.17 That standard of
stranger
is no
law.18
civil
16
States,
Schneiderman v. United
118; Baumgartner
320
U. S.
v.
States,
United
Nowak
665;
322 U. S.
States,
v. United
356 U. S.
States,
Chaunt v. United
660;
We convincing by clear, unequivocal, unless it is found deportation for alleged grounds facts the us, before each of the cases Accordingly, true.19 are Appeals aside, of is set and the of the Court judgment to remand with directions to the case is remanded Service for such further Immigration and Naturalization may be opinion, with proceedings as, consistent appropriate.20 deemed
It is so ordered. applies deportation cases, regard standard of all This country. length in this It of time the alien has resided less of the however, that, practical matter, pointing out, perhaps as a worth alleged supporting deportability, events the more recent generally prove readily will be able to its more the Government convincing allegations by clear, unequivocal, and evidence. (a)(1) Act, (1961), 8 75 Stat. 651 U. S. C. Section petition judicial (a)(1), provides that a review must 1105a Appeals six months with the not later than after a filed Court 40, Woodby, petitioner’s deportation. In No. final order of Immigration Appeals appeal Board of was dismissed on March May 27, 8, 1963, motion for reconsideration was denied on and a Appeals for review the Court of was filed more 1963. Petition upheld order, six months after the Board but than within six months after the denial the motion to reconsider. The question pass did whether, on the in such Court power circumstances, its of review was limited consideration whether the denial of the motion for reconsideration was an abuse might validity discretion, or whether it also in full assess Following order. the decision of the Court of *10 Clark, joins,
Mr. Justice whom Mr. Justice Harlan dissenting. Court, placing higher standard of on Government, deportation has the cases, usurped
legislative Congress function of the and has in one fell swoop repealed long-established “reasonable, substan- tial, and probative” proof placed burden of on the Gov- ernment specific Act of the Congress, and substituted “clear, its own unequivocal, convincing” standard. This is but another in a long case line in which the Court tightened has the noose around Government’s neck in immigration cases.
I. I agree that 106 (a)(4), § the 1961 amendment Immigration and Nationality Act of 1952, relates judicial review of administrative orders of Immigra- tion Service with due but, I deference, cannot see how hardly “It is less clear” 242 (b)(4) of the Act, as says, Court applies likewise exclusively to judicial review. on Indeed, the contrary, the latter section was specifically only enacted as the standard of to be applied in deportation cases.
Before
242 (b) was enacted
immigration
laws
contained no
provision
detailed
concerning the burden
-of proof in deportation cases. Kessler
Strecker,
v.
U. S.
(1939).
In Wong Yang Sung McGrath,
v.
In essence that Immi officer” the “special inquiry a hearing a before cases standard of such Service; sets the gration evidence”; probative “reasonable, substantial, as regulations. to issue Attorney the General and authorizes Attorney General estab regulations the issuing those The Immigration Appeals. a Board of Board’s lished officer is special inquiry relationship to the orders orders agency an has to the relationship similar to the Proce hearing of a examiner under the Administrative provides that the specifically dure Act. The section also “no decision regulations requirements shall include that upon deportability be unless it is based shall valid that substantial, probative evidence” and reasonable, procedure “sole and this shall exclusive standard an determining deportability alien under history first in our section.” This was the time Congress expressly placed specific a standard of And the lan on the Government cases. Congress used made it clear this standard guage proof” quality “burden of as well “the related to the requirement and nature of the of “rea evidence.” merely cannot be meant to exclude sonable” evidence or “irrational” “unreasonable” evidence but carries history from obvious connotation tradition of suffi ciency preponderance a conclusion to sustain Congress overruling Wong Yang Sung, evidence.1 provision judicial review of the Administrative Pro 1 Thus the (e)(5), scope Act, 5 S. limits the of review to cedure C. § support evidence,” a determination of “substantial and 5 U. S. C. agencies acting “reliable, probative, on 1006 limits the supra, carved proceedings from judicial overtones of the Administrative Procedure Act and estab- lished a built-in administrative procedure.
This is made crystal clear by the reports of both Houses of Congress (b). on The Committee Reports, Rep. No. 82d Cong., Sess., 30; Rep. 2d R.H. No. 1365, 82d Cong., 2d Sess., state in under- simple, language standable that:
“The requirement the decision of special inquiry officer shall be on reasonable, based sub- stantial, evidence means that, where decision rests evidence of such a nature that it cannot be said that a person might reasonable not have reached the conclusion which reached, may case be reversed judgment because the *12 appellate body differs from that below.” The consistently courts applied the standard of “reason- able, probative” substantial and evidence after the adop- tion 242 (b). §of See, g., e. Rowoldt Perfetto, v. 355 120-121 (1957). Court, however,
The in Shaughnessy Pedreiro, U. S. 48 (1955), again once extended the Administrative Procedure provision Act’s respecting judicial review to deportation cases. The reaction of the Congress was identical to that of 1952 when it overruled Wong Yang Sung, supra. It enacted, in 1961, (a) (4) § 106 of the Act. Just §as 242 (b) was the first statutory standard of proof, (a)(4) § 106 was the first express statutory standard of judicial review. It provided:
“. . . the petition [for shall be review] deter- solely mined upon the administrative record upon which order is and the based Attor- substantial pattern evidence.” This has traditionally been held agency satisfied when the decides on preponderance evidence. rea- by supported if fact, findings ney General's on the probative substantial, sonable, conclusive.” shall be whole, aas considered record review, judicial if (a) (4) 106§ Congress passed Why exclusively covered already was holds, Court was it my comprehension beyond is (b) —unless it was. I cannot believe boxing. in shadow engaged officer inquiry special both the says that The Court failed to state Immigration the Board cases. Fault in these was proof the burden of what “solidarity” of phrase use of the in the officer’s found language ap- This was greater required.” “far than Rowoldt, opinion patterned after this Court’s parently “solidity of used. supra, phrase proof” where the Board in these the officers and the findings of both specifically burden of followed cases show that the of the Government required in each case was that Attorney General, (b) Regulations e., by “reasonable, substantial, i. evidence.” administratively followed This standard has been long in a and unbroken line of cases. Service Peralta, See Matter 10 I. & N. Dec.
The Court now extends the standard of Schneiderman States, v. United (1943), U. S. denaturaliza- e., i. tion cases, “clear, unequivocal, convincing evi- dence,” cases. But denaturalization and expatriation are much more oppressive cases than *13 deportation. They deprive one of citizenship which the United States previously conferred. The Schneider- man only rule follows the principle that rights vested can be only canceled upon clear, unequivocal, and con- vincing proof; it gives stability finality to a most precious right citizenship. An alien, however, does not — enjoy citizenship only but a conditional privilege ex- him by tended to the Congress aas matter grace. Both petitioners, the record shows, yet knew this, they re- mained in country this for years in the case of —46 Sherman and 10 in of Woodby. that Still, neither made any effort to obtain citizenship.
II. By treating these two as raising cases only single issue the ignores Court aspects some which Woodby greatly Woodby trouble me. sought review of the final deportation order against her more than six months after entry of that order. Section 106 (a)(1) spe Act cifically limits jurisdiction of the Court of of petitions consideration for review “filed later than six months from the date of the final deportation order.” legislative history of provision makes it clear Congress intended it to be strictly enforced in order to alleviate the spectacle of aliens subject deporta tion orders and able to remain in this country for long periods of time employing dilatory legal tactics. See R. Rep. H. No. 565, 87th Cong., 1st Sess. Since there is no time limit on petitions for rehearing or reconsid eration, 8 §§ CFR 242.22, 103.5, permitting review of a final order of deportation merely a timely because peti tion review of an administrative refusal to reopen the proceedings has been filed would negate congres sional purpose behind insistence timely on filing in §106 (a)(1). Lopes v. U. Department Justice, 2d 986, 356 F. cert. denied, post, p. 839.2 2 In Giova Rosenberg, v. 379 U. S. only this Court held petition denial of a reopen or reconsider is reviewable. The Court specify scope did not applied. review to be may The Court depending a concession the Government point, on it jurisdiction but is clear that cannot be King Bridge waived. Co. County, v. Otoe 225; U. S. Good Shot States, United U. S. 87. *14 may order deportation “no only that holds The Court unequivocal, by clear, found it is unless entered grounds alleged the facts that convincing for ground The added.) (Italics are true.” she Woodby was that alleged never been It entry.” has after prostitution “engaged established. properly ground this contended in prostitu Woodby engaged is conceded In fact it in her case involved dispute only factual tion. arose from her activities whether question on the centers her compelling conditions ended when duress and me that since clear It seems to exist. stray ceased defense she as an affirmative raising duress Woodby of that establishing all elements the burden bears 251. And , & N. Dec. 7 I. Matter See defense. M —of administrative clearly that both shows the record Woodby’s rejected and the Court authorities those find principles familiar story. Under “bizarre” Corp. Camera Universal Court, this binding on ings are nothing what the Board, Labor conclusion. today affects that Court holds my with persuasion my powers I regret prevent encroachment Brethren are not sufficient an Congress place which will upon the function burden the Government unintended undue and I deportation cases. dissent.