Kimm v. Rosenberg

Background

An immigrant ordered deported to Korea asked the Attorney General to suspend the deportation or allow voluntary departure. He did not challenge the deportation itself but said he qualified for a discretionary suspension under a statute for long-term residents. At the administrative hearing he was asked whether he had been a member of the Communist Party and refused to answer, invoking the Fifth Amendment. The hearing officer and the Board denied suspension because he failed to prove good moral character and to show he was not a Communist; the Court of Appeals affirmed.

Reasoning

The Court considered who must prove whether the applicant falls into a statutory exclusion for Communists. It relied on §19(c) of the 1917 Immigration Act, the exclusion in §19(d), and the Internal Security Act’s amendment to the 1918 law that made Communist membership a disqualifier. The Court held that the exclusion is absolute and that the applicant bears the statutory burden to prove eligibility. Regulations placing proof obligations on the applicant were found consistent with the statute. Invoking the Fifth Amendment did not relieve the applicant of that burden, so the Attorney General could not exercise discretion to suspend deportation here.

Real world impact

People seeking discretionary suspension of deportation will generally need to produce evidence that they meet statutory requirements. Immigrants questioned about Communist affiliation risk denial if they do not prove nonmembership. The decision affirms that administrative grace depends on applicant-supplied proof rather than silence.

Dissents or concurrances

Several Justices dissented, noting the Government offered no evidence of Communist membership, arguing the burden should remain on the government, and warning that penalizing invocation of the Fifth chills constitutional protections.