Petitioners, husband and wife, entered the United States in 1951 as alien seamen, and remained unlawfully after expiration of their limited lawful stay. In November 1951 a child was born to them - an American citizen by birth. In January 1952 petitioners applied for suspension of deportation under 19 (c) of the Immigration Act of 1917, which conditionally authorizes suspension of a deportation which "would result in serious economic detriment to a citizen . . . who is the . . . minor child of such deportable alien." The Board of Immigration Appeals found that petitioners were eligible for relief but, as a matter of administrative discretion, denied suspension of deportation, relying mainly on the fact that petitioners had established no roots or ties in this country. Held: There was no error in the decision of the Board. Pp. 73-79.
Jay Nicholas Long argued the cause and filed a brief for petitioners.
Maurice A. Roberts argued the cause for respondent. On the brief were Solicitor General Rankin, Assistant Attorney General Olney, John F. Davis and Isabelle Cappello.
MR. JUSTICE HARLAN delivered the opinion of the Court.
This is a habeas corpus proceeding to test the validity of an order of the Board of Immigration Appeals denying petitioners' request for suspension of deportation.
Petitioners are husband and wife, both aliens. Prior to 1951 both worked as seamen on foreign vessels. In July 1951 the wife lawfully entered the United States as a crew member of a ship in a United States port. Being pregnant, she sought medical advice; subsequently she decided in the interest of her health to stay ashore. A month later, on the next occasion his ship arrived in the United States, her husband joined her; he also failed to leave on the expiration of his limited lawful stay. 1 In November 1951 their child was born; the child is, of course, an American citizen by birth. In January 1952 petitioners voluntarily disclosed their illegal presence to the Immigration Service and applied for suspension of deportation under 19 (c) of the Immigration Act of 1917, which provides, in part:
We do not think that there was error in these proceedings. It is clear from the record that the Board applied the correct legal standards in deciding whether petitioners met the statutory prerequisites for suspension of deportation. The Board found that petitioners met these standards and were eligible for relief. But the statute does not contemplate that all aliens who meet the minimum legal standards will be granted suspension. Suspension of deportation is a matter of discretion and of administrative grace, not mere eligibility; discretion must be exercised even though statutory prerequisites have been met. 4
Nor can we say that it was abuse of discretion to withhold relief in this case. The reasons relied on by the Hearing Officer and the Board - mainly the fact that petitioners had established no roots or ties in this country - were neither capricious nor arbitrary. [353 U.S. 72, 78]
Petitioners urge that the Board applied an improper standard in exercising its discretion when, in its opinion on rehearing, it took into account the congressional policy underlying the Immigration and Nationality Act of 1952, the latter being concededly inapplicable to this case. We cannot agree with this contention. The second opinion makes clear that the Board still considered petitioners eligible for suspension under the 1917 Act 5 and denied relief solely as a matter of discretion. And we cannot say that it was improper or arbitrary for the Board to be influenced, in exercising that discretion, by its views as to congressional policy as manifested by the 1952 Act. Section 19 (c) does not state what standards are to guide the Attorney General in the exercise of his discretion. Surely it is not unreasonable for him to take cognizance of present-day conditions and congressional attitudes, any more than it would be arbitrary for a judge, in sentencing a criminal, to refuse to suspend sentence because contemporary opinion, as exemplified in recent statutes, has increased in rigour as to the offense involved. This conclusion is fortified by the fact that 19 (c) provides for close congressional supervision over suspensions of deportation. In every case where suspension for more than six months is granted a report must be submitted to Congress, and if thereafter Congress does not pass a concurrent resolution approving the suspension of deportation, the alien must then be deported. 6 In other words, every such [353 U.S. 72, 79] suspension must be approved by Congress, and yet petitioners would have us hold that the Attorney General may not take into account the current policies of Congress in exercising his discretion. This we cannot do.
There being no error, the judgment is affirmed.
[ Footnote 2 ] 8 U.S.C. (1946 ed., Supp. V) 155 (c).
[ Footnote 3 ] Section 244 of the 1952 Act, 8 U.S.C. 1254 (a), provides, in pertinent part: "As hereinafter prescribed in this section, the Attorney General may, in his discretion, suspend deportation . . . in the case of an alien who -
[ Footnote 5 ] Petitioners would clearly be ineligible for suspension under the 1952 Act. See n. 3, supra.
[ Footnote 6 ] The statute provides: "If the deportation of any alien is suspended under the provisions of this subsection for more than six months, a complete and detailed statement of the facts and pertinent provisions of law in the case shall be reported to the Congress with the reasons for such suspension. These reports shall be submitted on the 1st and 15th day of each calendar month in which Congress is in session. If during the session of the Congress at which a case is reported, or [353 U.S. 72, 79] prior to the close of the session of the Congress next following the session at which a case is reported, the Congress passes a concurrent resolution stating in substance that it favors the suspension of such deportation, the Attorney General shall cancel deportation proceedings. If prior to the close of the session of the Congress next following the session at which a case is reported, the Congress does not pass such a concurrent resolution, the Attorney General shall thereupon deport such alien in the manner provided by law. . . ." 8 U.S.C. (1946 ed., Supp. V) 155 (c).
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK concurs, dissenting.
This case, on its face, seems to be an instance of a deportation which would "result in serious economic detriment to a citizen," as those words are used in 19 (c) of the Immigration Act of 1917.
The citizen is a five-year-old boy who was born here and who, therefore, is entitled to all the rights, privileges, and immunities which the Fourteenth Amendment bestows on every citizen. A five-year-old boy cannot enjoy the educational, spiritual, and economic benefits which our society affords unless he is with his parents. His parents are law-abiding and self-supporting. From this record it appears that they are good members of the community. They do not seem to have done anything illegal or antisocial that should penalize their American son. [353 U.S. 72, 80]
It would seem, therefore, that the maintenance of this young American citizen in a home in America is the way to effectuate the policy of the 1917 Act.
The Board did not treat the case that way. Instead it imported into the 1917 Act the standard prescribed by the 1952 Act, which concededly is inapplicable here. That was the error which led Judge Frank to dissent below. 233 F.2d 705, 709, 710. I think Judge Frank was right. Prevailing congressional policy on the approval or disapproval of suspension orders in nowise affects the standards prescribed for administrative action under the 1917 Act.
The Board erroneously followed irrelevant standards instead of exercising its discretion under the applicable statute, viz. 19 (c) of the 1917 Act. [353 U.S. 72, 81]