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MARCELLO v. BONDS

decided: May 31, 1955.

MARCELLO
v.
BONDS, OFFICER IN CHARGE, IMMIGRATION AND NATURALIZATION SERVICE



CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.

Warren, Black, Reed, Frankfurter, Douglas, Burton, Clark, Minton; Harlan took no part in the consideration or decision of this case.

Author: Clark

[ 349 U.S. Page 303]

 MR. JUSTICE CLARK delivered the opinion of the Court.

Petitioner, a native of Tunis, Africa, was ordered deported after a hearing pursuant to § 242 (b) of the Immigration and Nationality Act of 1952, 66 Stat. 209, 8 U. S. C. § 1252 (b). It was found that he had been convicted in 1938 of violation of the Marihuana Tax Act, 26 U. S. C. § 2591, and sentenced to imprisonment for one year. Section 241 (a)(11) of the 1952 immigration law*fn1 makes such conviction at any time ground for deportation, and § 241 (d)*fn2 provides that the deportation provisions of § 241 (a) shall apply even though the facts giving rise to the alien's deportability occurred prior to the date of enactment of the 1952 Act.

At the hearing before a special inquiry officer of the Immigration and Naturalization Service, petitioner did not dispute the fact of his conviction. He did, however, object to the proceedings on the ground that they violated due process and the Administrative Procedure Act, 60 Stat. 237, 5 U. S. C. § 1001 et seq. The hearing officer overruled these objections. Petitioner also contended that the ex post facto clause of the Constitution precluded the retroactive application of the 1952 law to his case. This contention too was rejected by the hearing officer. Petitioner and his counsel were advised of their right to apply to the Attorney General for the discretionary relief of suspension of deportation under § 244 (a)(5) of the Act.*fn3 At first they declined to do so, but subsequently

[ 349 U.S. Page 304]

     they moved to reopen the hearing to apply for such relief. The special inquiry officer denied the motion. On appeal, the Board of Immigration Appeals affirmed the order of deportation. Though no formal application for suspension of deportation under § 244 (a)(5) had been filed, the Board considered whether such relief was merited but exercised its discretion against the remission.

Petitioner then brought this action for a writ of habeas corpus, challenging the validity of the deportation order on the grounds, inter alia : (1) that the hearing under § 242 (b) of the Act failed to comply with the requirements of the Administrative Procedure Act in that the special inquiry officer was under the supervision and control of officials in the Immigration Service who performed investigative and prosecuting functions; (2) that § 242 (b) violated the Due Process Clause of the Fifth Amendment because it failed to provide for a fair and impartial hearing; (3) that on the date of petitioner's arrest the Attorney General made a public statement, which "was bound to have great effect upon the special inquiry officer," to the effect that petitioner was an undesirable citizen for whose deportation the proceedings were "specially designed," and, further, that in 1952 the Attorney General "prepared a list of 152 persons [including petitioner] whom he desired to deport"; and (4) that the retroactive application of § 241 (a)(11) was unconstitutional as an ex post facto law.

The Government's return to the writ alleged that petitioner's deportation had been conducted in accordance with the Constitution, laws and regulations of the United States. No evidence was introduced by either side save the official Immigration Service record of petitioner's deportation proceedings. The District Court held the deportation order valid and discharged the writ. 113 F.Supp. 22. The Court of Appeals affirmed. 212 F.2d 830. Petitioner pursues his four basic objections in this

[ 349 U.S. Page 305]

     Court, certiorari having been granted to resolve issues having a significant bearing on the administration of our immigration laws. 348 U.S. 805.

Applicability of the Administrative Procedure Act.

Petitioner concedes that § 242 (b) of the Immigration Act, authorizing the appointment of a "special inquiry officer" to preside at the deportation proceedings, does not conflict with the Administrative Procedure Act, since § 7 (a) of that Act excepts from its terms officers specially provided for or designated pursuant to other statutes.*fn4 He insists, however, that there are several significant discrepancies between the Acts, and claims that in cases of variance the provisions of the Administrative Procedure Act must govern unless those of the Immigration Act "shall . . . expressly" negate their application. Administrative Procedure Act, § 12. The discrepancies relied on stem from the "separation of functions" provision of § 5 (c) of the Administrative Procedure Act. To the extent here material, this section separates investigative and prosecuting functions from those of adjudication, expressly providing that hearing officers shall not be responsible to or under the supervision of those engaged in investigation and prosecution. The section also prohibits the hearing officer from participating or advising in the decision of a case, or one factually related thereto, in which he has performed investigative or prosecuting functions. Section 242 (b) of the Immigration Act, on the other hand, permits the "special inquiry officer" to take the dual role of prosecutor and hearing officer -- presenting evidence and interrogating witnesses -- and prohibits him only from hearing cases which he has taken some part in investigating

[ 349 U.S. Page 306]

     or prosecuting (other than in the permitted dual capacity). An alternative method is permitted by § 242 (b), however, under which an additional immigration officer presents the evidence while the special inquiry officer presides. See 8 CFR § 242.53. Special inquiry officers are subject to such supervision as the Attorney General prescribes, 66 Stat. 171, 8 U. S. C. § 1101 (b)(4), and at present they are subject to the supervision of district directors of the immigration districts to which they are assigned, as well as higher Service officials, all with enforcement responsibilities of the type proscribed by § 5 (c) of the Administrative Procedure Act.

Under the allegations here made, the single attack of the petitioner pertains to the supervision of the special inquiry officer by the investigative and prosecuting officials of the Immigration Service. The alternative procedure of § 242 (b) was employed in this case, so the presiding officer did not undertake the functions of prosecutor; and there is no allegation that he engaged in investigative or prosecuting functions in this or any factually related case. For the sake of clarity, however, we shall consider all of the differences in the hearing provisions of the two Acts in determining whether the Administrative Procedure Act is to govern.

The applicability of the Administrative Procedure Act to deportation proceedings under the Immigration Act of 1917 was considered by this Court in Wong Yang Sung v. McGrath, 339 U.S. 33 (1950). We there held, contrary to the prevailing interpretation and practice of the Department of Justice, that deportation hearings were subject to the Act. Six months later, Congress provided in the Supplemental Appropriation Act of 1951, 64 Stat. 1048, that proceedings directed toward the exclusion or expulsion of aliens should not be governed by §§ 5, 7 and 8 of the Administrative Procedure Act. The issue here presented is whether the Congress reversed itself in the

[ 349 U.S. Page 3071952]

     Immigration Act and in effect reinstated the Sung case by making the hearing provisions of the Administrative Procedure Act directly applicable to deportation proceedings. A comparison of the pertinent provisions of the two statutes is perhaps the strongest indication that the Congress had no such intention.

1. Section 242 (b) of the Immigration Act begins by enumerating the functions of the special inquiry officer, that he shall administer oaths, receive evidence, etc. A similar though more extensive and detailed provision appears in § 7 (b) of the Administrative Procedure Act, but of course this section makes no mention of functions stemming from the special inquiry officer's dual role as prosecutor and judge.

2. Section 242 (b) then directs that a determination of deportability be made only upon the record of a proceeding at which the alien had a reasonable opportunity to be present. A similar direction as to the record appears in § 7 (d) of the Administrative Procedure Act, and as to the party's personal appearance in § 6 (a).

3. Section 242 (b) then deals with matters peculiar to deportation proceedings, which have no direct analogues in the Administrative Procedure Act: safeguards to be established to protect mentally incompetent aliens; the right of the inquiry officer to proceed if the alien deliberately absents himself; the option to pursue the alternative procedure, described above, in which one official prosecutes and another decides.

4. Next in § 242 (b) is the limitation already noted on the special inquiry officer's sitting in the same case in which he has also engaged in investigative or prosecuting functions. The more restrictive analogue in § 5 (c) of the Administrative Procedure Act has also been presented.

5. Section 242 (b) then sets forth various requirements which are to be included in regulations governing deportation proceedings ...


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