Marcello v. Bonds

Background

A man born in Tunis was ordered deported after a hearing under the 1952 Immigration and Nationality Act. The record showed a 1938 conviction under the Marihuana Tax Act and a one-year sentence. He and his counsel were told they could seek discretionary suspension of deportation but initially declined and later tried to reopen the hearing; the reopening was denied and the Board of Immigration Appeals affirmed the deportation.

Reasoning

The Court addressed two main questions: whether immigration hearings must follow the Administrative Procedure Act (APA), and whether applying the 1952 law to a 1938 conviction violated the Constitution’s ban on ex post facto laws. The majority held that the Immigration Act’s §242(b) sets out a special, exclusive procedure tailored for deportation hearings and thus supersedes the APA’s hearing rules. The Court also rejected the claim that the hearing was unfair because the hearing officer was supervised by enforcement officials or because of unfavorable publicity; it found no persuasive evidence of prejudgment. Finally, relying on prior decisions, the Court held that applying the 1952 law to the 1938 conviction did not violate the ex post facto clause and affirmed the deportation order.

Real world impact

The decision leaves deportation hearings governed by the immigration statute’s procedures rather than the APA and allows the 1952 deportation ground for past drug convictions to be applied. Affected noncitizens with earlier convictions may face deportation under the newer statute, and immigration officials retain discretion over suspension of deportation.

Dissents or concurrances

Justice Black (joined by Justice Frankfurter) argued the APA should apply and that prosecutor-controlled supervision raises due process concerns; Justice Douglas argued the retroactive deportation rule violated the ex post facto ban.