U.S. Supreme Court Kwong Hai Chew v. Colding, 344
U.S. 590 (1953) Kwong Hai Chew v.
Colding No. 17 Argued October 17,
1952 Decided February 9,
1953 344
U.S. 590 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND
CIRCUIT Syllabus 1. Under 8 CFR § 175.57(b), a regulation pertaining to the entry
of aliens into the United States, the Attorney General has no
authority to deny to an alien who is a lawful permanent resident of
the United States, and who is continuously residing and physically
present therein, an opportunity to be heard in opposition to an
order for his "permanent exclusion" and consequent deportation,
even when the Attorney General determines that the order is based
on information of a confidential nature the disclosure of which
would be prejudicial to the public interest. Pp. 344 U. S.
591 -600.

															(a) Knauff v. Shaughnessy, 338 U.
S. 537 , distinguished. Page 344 U. S.
596 .

															(b) The term "excludable," in § 175.57(b), is inapplicable to
aliens who are lawful permanent residents physically present within
the United States. P. 344 U. S.
599 .

															(c) Nothing in the statute or the Presidential Proclamations
under which this regulation was issued requires or permits a
broader interpretation of this section. Pp. 344 U. S.
599 -600.

															2. Petitioner is an alien and a lawful permanent resident of the
United States, who currently maintains his residence in the United
States and usually is physically present there. While returning
from a voyage to foreign ports as a seaman on a vessel of American
registry with its home port in the United States, he was detained
on board by an order of the Attorney General and ordered
"temporarily excluded" from the United States under 8 CFR § 175.57,
as an alien whose entry was deemed prejudicial to the public
interest. He was denied a hearing by the Attorney General on the
ground that the order was based on information of a confidential
nature, the disclosure of which would be prejudicial to the public
interest, and he was ordered to be permanently excluded from the
United States. Held: petitioner's detention, without notice of any
charges against him and without opportunity to be heard in
opposition to them, was not authorized by 8 CFR § 175.57(b). Pp. 344 U. S.
600 -603.

															192 F.2d 1009, reversed. Page 344 U. S. 591 Petitioner's application for a writ of habeas corpus was
dismissed by the District Court. 97 F. Supp.
592 . The Court of Appeals affirmed. 192 F.2d 1009. This Court
granted certiorari. 343 U.S. 933. Reversed and remanded, p. 344 U. S.
603 .

															MR. JUSTICE BURTON delivered the opinion of the Court.

															A preliminary consideration that is helpful to the solution of
this litigation is whether, under 8 CFR § 175.57(b), [ Footnote 1 ] the Attorney General has
authority to deny to a lawful permanent resident of the United
States, Page 344 U. S. 592 who is an alien continuously residing and physically present
therein, the opportunity to be heard in opposition to an order for
his "permanent exclusion" and consequent deportation, provided the
Attorney General determines that the order is based on information
of a confidential nature, the disclosure of which would be
prejudicial to the public interest. Assuming, as seems to be clear,
that the Attorney General does not have such authority, the
critical issue then presented is whether he has that authority
under the following additional circumstances: the resident alien is
a seaman, he currently maintains his residence in the United States
and usually is physically present there; however, he is returning
from a voyage as a seaman on a vessel of American registry with its
home port in the United States, that voyage has included scheduled
calls at foreign ports in the Far East, and he is detained on board
by order of the Attorney General. For the reasons hereafter stated,
we hold that these additional circumstances do not change the
result, and that the Attorney General does not have the authority
suggested.

															Petitioner, Kwong Hai Chew, is a Chinese seaman last admitted to
the United States in 1945. Thereafter, he married a native American
and bought the home in which they reside in New York. Having proved
his good moral character for the preceding five years, petitioner
secured suspension of his deportation. In 1949, he was admitted to
permanent residence in the United Page 344 U. S. 593 States as of January 10, 1945. [ Footnote 2 ] In World War II, he served with credit in the
United States Merchant Marine. He never has had any difficulty with
governmental authorities. In April, 1950, he filed a petition for
naturalization Page 344 U. S. 594 which is still pending. In November, 1950, he was screened and
passed by the Coast Guard for employment as a seaman on a merchant
vessel. [ Footnote 3 ] In the
same month, he signed articles of employment as chief steward on
the S.S. Sir John Franklin, a vessel of American registry
with its home port in New York City. The voyage was to include
calls at several foreign ports in the Far East. He remained aboard
the vessel on this voyage, but at San Francisco, in March, 1951,
the immigration Page 344 U. S. 595 inspector ordered him "temporarily excluded," under 8 CFR §
175.57, as an alien whose entry was deemed prejudicial to the
public interest.

															On the vessel's arrival in New York, March 29, petitioner's
"temporary exclusion" was continued, and he was not permitted to
land. March 30, he sought a writ of habeas corpus from the United
States District Court for the Eastern District of New York,
charging that his detention was arbitrary and capricious and a
denial of due process of law in violation of the Fifth Amendment to
the Constitution of the United States. Purporting to act under 8
CFR § 175.57(b), the Attorney General directed that petitioner be
denied a hearing before a Board of Special Inquiry and that his
"temporary exclusion be made permanent." The Attorney General
continues to deny petitioner all information as to the nature and
cause of any accusations against him and all opportunity to be
heard in opposition to the order for his "exclusion." He is
detained at Ellis Island "for safekeeping on behalf of the master
of the S.S. Sir John Franklin. "

															The writ was issued, but, after a hearing, it was dismissed by
the District Court. 97 F. Supp.
592 . The Court of Appeals for the Second Circuit affirmed. 192
F.2d 1009. Both courts relied upon Knauff v. Shaughnessy, 338 U. S. 537 . We
granted certiorari because of the doubtful applicability of that
decision and the importance of the issue in the administration of
the Nation's immigration and naturalization program. 343 U.S. 933.
Bail was denied by the District Court. 98 F. Supp. 717. It also was
denied by the Court of Appeals, without prejudice to an application
to this Court. Applications for bail are pending before the
Commissioner of Immigration and Naturalization and this Court.

															The issue is petitioner's detention, without notice of any
charge against him and without opportunity to be heard in
opposition thereto. Petitioner contends that Page 344 U. S. 596 such detention is not authorized by 8 CFR § 175.57(b). He
contends also that, if that regulation does purport to authorize
such detention, the regulation is invalid as an attempt to deprive
him of his liberty without due process of law in violation of the
Fifth Amendment. Agreement with petitioners first contention makes
it unnecessary to reach his second.

															The case of Knauff v. Shaughnessy, supra, relied upon
below, is not in point. It relates to the rights of an alien
entrant, and does not deal with the question of a resident alien's
right to be heard. For purposes of his constitutional right to due
process, we assimilate petitioner's status to that of an alien
continuously residing and physically present in the United States.
[ Footnote 4 ] To simplify the
issue, we consider first what would have been his constitutional
right to a hearing had he not undertaken his voyage to foreign
ports, but had remained continuously within the territorial
boundaries of the United States.

															1. It is well established that, if an alien is a lawful
permanent resident of the United States and remains physically
present there, he is a person within the protection of the Fifth
Amendment. He may not be deprived of his life, liberty or property
without due process of law. [ Footnote 5 ] Page 344 U. S. 597 Although it later may be established, as respondents contend,
that petitioner can be expelled and deported, yet, before his
expulsion, he is entitled to notice of the nature of the charge and
a hearing at least before an executive or administrative tribunal.
[ Footnote 6 ] Although Congress
may prescribe Page 344 U. S. 598 conditions for his expulsion and deportation, not even Congress
may expel him without allowing him a fair opportunity to be heard.
[ Footnote 7 ] For example, he is
entitled to a fair chance to prove mistaken identity. At the
present stage of the instant case, the issue is not one of
exclusion, expulsion, or deportation. It is one of legislative
construction and of procedural due process. [ Footnote 8 ]

															This being recognized, we interpret this regulation as making no
attempt to question a resident alien's constitutional Page 344 U. S. 599 right to due process. Section 175.57(b) uses the term
"excludable" in designating the aliens to which it applies. That
term relates naturally to entrant aliens and to those assimilated
to their status. The regulation nowhere refers to the expulsion of
aliens, which is the term that would apply naturally to aliens who
are lawful permanent residents physically present within the United
States. Accordingly, we find no language in the regulation that
would have required its application to petitioner had he remained
continuously and physically within the United States. [ Footnote 9 ] It thus seems clear that
the Attorney General would not have had the authority to deny to
petitioner a hearing in opposition to such an order as was here
made, provided petitioner had remained within the United
States.

															The regulation before us was issued by the Secretary of State
and concurred in by the Attorney General, pursuant to Presidential
Proclamations No. 2523, 3 CFR, 1943 Cum.Supp., 270, and No. 2850, 3
CFR, 1949 Supp. 41. The latter proclamation, issued August 17,
1949, also "ratified and confirmed" the regulation. Those
proclamations, in turn, depend upon § 1 of the Act of May 22, 1918,
40 Stat. 559, as amended, June 21, 1941, 55 Stat. Page 344 U. S. 600 252, 22 U.S.C. § 223. It is not questioned that the regulation,
as above interpreted, comes within these authorizations, or that
such authorizations have been extended to include the dates
material in this case. 66 Stat. 163, 333. We find nothing in the
statute or the proclamations which calls for, permits, or sustains
a broader interpretation of 8 CFR § 175.57(b) than we have given to
it. The wording also now reflects congressional intent, because
substantially the same language was inserted by Congress in the
Subversive Activities Control Act of 1950, 64 Stat. 1008. See note 1 supra. 2. Petitioner's final contention is that, if an alien is a
lawful permanent resident of the United States and also is a seaman
who has gone outside of the United States on a vessel of American
registry, with its home port in the United States, and, upon
completion of such voyage, has returned on such vessel to the
United States and is still on board, he is still, from a
constitutional point of view, a person entitled to procedural due
process under the Fifth Amendment. We do not regard the
constitutional status which petitioner indisputably enjoyed prior
to his voyage as terminated by that voyage. From a constitutional
point of view, he is entitled to due process without regard to
whether or not, for immigration purposes, he is to be treated as an
entrant alien, and we do not now reach the question whether he is
to be so treated.

															Section 175.57(b)'s authorization of the denial of hearings
raises no constitutional conflict if limited to "excludable" aliens
who are not within the protection of the Fifth Amendment. The
assimilation of petitioner, for constitutional purposes, to the
status of a continuous resident physically present in the United
States also accords with the Nation's immigration and
naturalization program. For example, for purposes of
naturalization, such an assimilation was expressly prescribed in
the Nationality Act of 1940: Page 344 U. S. 601 "SEC. 307. (a) No person . . . shall be naturalized unless such
petitioner, (1) immediately preceding the date of filing petition
for naturalization has resided continuously within the United
States for at least five years. . . ."

															" * * * *" "(d) The following shall be regarded as residence within the
United States within the meaning of this chapter:"

															" * * * *" "(2) Continuous service by a seaman on a vessel or vessels whose
home port is in the United States and which are of American
registry or American owned, if rendered subsequent to the
applicant's lawful entry into the United States for permanent
residence and immediately preceding the date of
naturalization."

															54 Stat. 1142-1143, 8 U.S.C. § 707. See also § 325, 54
Stat. 1150, as amended, 64 Stat. 1015, 8 U.S.C. (Supp. V) § 725.
[ Footnote 10 ]

															While it may be that a resident alien's ultimate right to remain
in the United States is subject to alteration by statute or
authorized regulation because of a voyage undertaken by him to
foreign ports, it does not follow that he is thereby deprived of
his constitutional right to procedural due process. His status as a
person within the meaning and protection of the Fifth Amendment
cannot be capriciously taken from him. Where neither Congress, the
President, the Secretary of State, nor the Attorney General has
inescapably said so, we are not Page 344 U. S. 602 ready to assume that any of them has attempted to deprive such a
person of a fair hearing. [ Footnote 11 ]

															This preservation of petitioner's right to due process does not
leave an unprotected spot in the Nation's armor. Before
petitioner's admission to permanent residence, he was required to
satisfy the Attorney General and Congress of his suitability for
that status. [ Footnote 12 ]
Before receiving clearance for his foreign cruise, he was screened
and approved by the Coast Guard. [ Footnote 13 ] Before acceptance of his petition for
naturalization, as well as before final action thereon, assurance
is necessary that he is not a security risk. See 8 U.S.C.
c. 11, Subchapter III -- Nationality Through Naturalization, §§
701-747, as amended.

															We do not reach the issue as to what would be the constitutional
status of 8 CFR § 175.57(b) if it were interpreted as denying to
petitioner all opportunity for a hearing. Also, we do not reach the
issue as to what will be the authority of the Attorney General to
order the deportation of petitioner after giving him reasonable
notice of the charges against him and allowing him a Page 344 U. S. 603 hearing sufficient to meet the requirements of procedural due
process.

															For the reasons stated, we conclude that the detention of
petitioner, without notice of the charges against him and without
opportunity to be heard in opposition to them, is not authorized by
8 CFR § 175.57(b). Accordingly, the judgment of the Court of
Appeals is Reversed and the cause remanded to the District
Court. MR. JUSTICE MINTON dissents.

															[ Footnote 1 ]

															"§ 175.57 Entry not permitted in special cases. . .
."

															" * * * *" "(b) In the case of an alien temporarily excluded by an official
of the Department of Justice on the ground that he is, or may be
excludable under one of more of the categories set forth in §
175.53, no hearing by a board of special inquiry shall be held
until after the case is reported to the Attorney General and such a
hearing is directed by the Attorney General or his representative.
In any special case, the alien may be denied a hearing before a
board of special inquiry and an appeal from the decision of that
board if the Attorney General determines that he is excludable
under one of the categories set forth in § 175.53 on the basis of
information of a confidential nature, the disclosure of which would
be prejudicial to the public interest."

															The categories set forth in § 175.53 as a basis for exclusion
are those defined "to be prejudicial to the public interest." They
include, for example, membership in

															"a political organization associated with or carrying out
policies of any foreign government opposed to the measures adopted
by the Government of the United States in the public interest . .
."

															or being "engaged in organizing, teaching, advocating, or
directing any rebellion, insurrection, or violent uprising against
the United States." 8 CFR.

															For statutory language similar to that in 8 CFR § 175.57, see § 5 of the Act of October 16, 1918, as amended by the
Subversive Activities Control Act of 1950, 64 Stat. 1008, 8 U.S.C.
(Supp. V) § 137-4, referring to aliens who are "excludable" under §
137. The Government, in the instant case, relies upon 8 CFR §
175.57, rather than upon 8 U.S.C. (Supp. V) § 137-4.

															[ Footnote 2 ]

															" Resolved by the Senate (the House of Representatives
concurring), That the Congress favors the suspension of
deportation in the case of each alien hereinafter named, in which
case the Attorney General has suspended deportation for more than
six months."

															" * * * *" "A-6665545, Chew, Kwong Hai, or Harry Kwong (Hai Chew)."

															" * * * *" "Agreed to July 20, 1949."

															63 Stat. 1240, 1242.

															For the effect of the above action, see § 19(c) of the
Immigration Act of February 5, 1917, as amended, 62 Stat. 1206, 8
U.S.C. (Supp. V) § 155(c):

															"(c) In the case of any alien . . . who is deportable under any
law of the United States and who has proved good moral character
for the preceding five years, the Attorney General may . . .
suspend deportation of such alien if he is not ineligible for
naturalization or if ineligible, such ineligibility is solely by
reason of his race, if he finds (a) that such deportation would
result in serious economic detriment to a citizen or legally
resident alien who is the spouse, parent, or minor child of such
deportable alien; or (b) that such alien has resided continuously
in the United States for seven years or more and is residing in the
United States upon the effective date of this Act. 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. . . . If, during the session of the Congress at which a
case is reported or 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. . . . Deportation
proceedings shall not be canceled in the case of any alien who was
not legally admitted for permanent residence at the time of his
last entry into the United States, unless such aliens pays . . . a
fee of $18. . . . [In the instant case, this was paid.] Upon the
cancellation of such proceedings in any case in which fee has been
paid, the Commissioner shall record the alien's admission for
permanent residence as of the date of his last entry into the
United States. . . ."

															8 CFR § 175.41(q) states that, for the purposes of §§ 175.41 to
175.62,

															"The term 'an alien who is a lawful permanent resident of the
United States' means an alien who has been lawfully admitted into
the continental United States, the Virgin Islands, Puerto Rico, or
Hawaii for permanent residence therein, and who has, since such
admission, maintained his domicile in the United States. . . ."

															[ Footnote 3 ]

															For the nature and significance of such clearance, see Executive Order No. 10173, of October 18, 1950, especially §§
6.10-1 to 6.10-9, now published, as amended, in 33 CFR, 1951
Cum.Pocket Supp. That order was issued pursuant to the Act of June
15, 1917, as amended by the Magnuson Act of August 9, 1950, 64
Stat. 427-428, 50 U.S.C. (Supp. V) § 191. It has now been
implemented by regulations effective December 27, 1950, published,
as amended, in 33 CFR, 1951 Cum. Pocket Supp., §§ 121.01-125.37. See also Parker v. Lester, 98 F.
Supp. 300 , 191 F.2d 1020.

															Section 6.10-1, as it existed at the date of petitioner's
clearance, provided:

															" Issuance of documents and employment of persons aboard
vessels. No person shall be issued a document required for
employment on a merchant vessel of the United States, nor shall any
licensed officer or certificated man be employed on a merchant
vessel of the United States if the Commandant is satisfied that the
character and habits of life of such person are such as to
authorize the belief that the presence of the individual on board
would be inimical to the security of the United States. . . ."

															15 Fed.Reg. 7007.

															Later regulations have published detailed security provisions as
to who may be employed on merchant vessels of the United States of
100 gross tons and upward, whether engaged in foreign or other
trade. 33 CFR, 1951 Cum.Pocket Supp., §§ 121.13-121.16.

															[ Footnote 4 ]

															In this opinion, "exclusion" means preventing someone from
entering the United States who is actually outside of the United
States or is treated as being so. "Expulsion" means forcing someone
out of the United States who is actually within the United States
or is treated as being so. "Deportation" means the moving of
someone away from the United States after his exclusion or
expulsion.

															[ Footnote 5 ]

															". . . The Bill of Rights is a futile authority for the alien
seeking admission for the first time to these shores. But, once an
alien lawfully enters and resides in this country, he becomes
invested with the rights guaranteed by the Constitution to all
people within our borders. Such rights include those protected by
the First and the Fifth Amendments and by the due process clause of
the Fourteenth Amendment. None of these provisions acknowledges any
distinction between citizens and resident aliens. They extend their
inalienable privileges to all 'persons,' and guard against any
encroachment on those rights by federal or state authority." Bridges v. Wixon, 326 U. S. 135 , 326 U. S. 161 (concurring opinion).

															"The alien, to whom the United States has been traditionally
hospitable, has been accorded a generous and ascending scale of
rights as he increases his identity with our society. Mere lawful
presence in the country creates an implied assurance of safe
conduct and gives him certain rights; they become more extensive
and secure when he makes preliminary declaration of intention to
become a citizen, and they expand to those of full citizenship upon
naturalization. During his probationary residence, this Court has
steadily enlarged his right against Executive deportation except
upon full and fair hearing. . . . And, at least since 1886, we have
extended to the person and property of resident aliens important
constitutional guaranties -- such as the due process of law of the
Fourteenth Amendment." Johnson v. Eisentrager, 339 U.
S. 763 , 339 U. S.
770 -771.

															The latter case also comments that,

															"in extending constitutional protections beyond the citizenry,
the Court has been at pains to point out that it was the alien's
presence within its territorial jurisdiction that gave the
Judiciary power to act." Id. at 339 U. S. 771 .
That case related to nonresident enemy aliens who had never been in
the United States, rather than to a lawful permanent resident in
the position of petitioner. There is no lack of physical presence
for jurisdictional purposes in the instant case.

															[ Footnote 6 ]

															". . . But this court has never held, nor must we now be
understood as holding, that administrative officers, when executing
the provisions of a statute involving the liberty of persons, may
disregard the fundamental principles that inhere in 'due process of
law' as understood at the time of the adoption of the Constitution.
One of these principles is that no person shall be deprived of his
liberty without opportunity, at some time, to be heard before such
officers in respect of the matters upon which that liberty depends
-- not necessarily an opportunity upon a regular, set occasion, and
according to the forms of judicial procedure, but one that will
secure the prompt, vigorous action contemplated by Congress, and,
at the same time, be appropriate to the nature of the case upon
which such officers are required to act. Therefore, it is not
competent for the Secretary of the Treasury or any executive
officer at any time within the year limited by the statute
arbitrarily to cause an alien who has entered the country, and has
become subject in all respects to its jurisdiction and a part of
its population, although alleged to be illegally here, to be taken
into custody and deported without giving him all opportunity to be
heard upon the questions involving his right to be and remain in
the United States. No such arbitrary power can exist where the
principles involved in due process of law are recognized." The Japanese Immigrant Case, 189 U. S.
86 , 189 U. S.
100 -101.

															". . . It was under compulsion of the Constitution that this
Court long ago held that an antecedent deportation statute must
provide a hearing at least for aliens who had not entered
clandestinely and who had been here some time even if
illegally." Wong Yang Sung v. McGrath, 339 U. S.
33 , 339 U. S. 49 -50. See also Johnson v. Eisentrager, supra, at 339 U. S.
770 -771; Carlson v. Landon, 342 U.
S. 524 , 342 U. S.
538 .

															[ Footnote 7 ] See Fong Yue Ting v. United States, 149 U.
S. 698 , recognizing the right to expel and deport
resident aliens.

															"When the Constitution requires a hearing, it requires a fair
one, one before a tribunal which meets at least currently
prevailing standards of impartiality." Wong Yang Sung v. McGrath, supra, at 339 U. S. 50 ; Kwock Jan Fat v. White, 253 U. S. 454 , 253 U. S.
457 -458, 253 U. S.
464 .

															[ Footnote 8 ]

															It is to be noted that the cases generally cited in this field
in relation to the exclusion, expulsion, or deportability of
resident aliens deal only with that ultimate issue, and not with
the right of the resident alien to a hearing sufficient to satisfy
procedural due process. The reports show that there were hearings
and that, in some cases, the Court considered whether the hearings
had been fair. E.g., United States ex rel. Volpe v. Smith, 289 U. S. 422 , 289 U. S. 424 ; United States v. Corsi, 287 U. S. 129 , 287 U. S. 131 ; United States ex rel. Claussen v. Day, 279 U.
S. 398 , 279 U. S. 400 ; Quon Quon Poy v. Johnson, 273 U.
S. 352 , 273 U. S. 358 ; Lewis v. Frick, 233 U. S. 291 , 233 U. S. 293 ; Lapina v. Williams, 232 U. S. 78 , 232 U. S. 83 ; Fong Yue Ting v. United States, 149 U.
S. 698 , 149 U. S.
729 .

															[ Footnote 9 ]

															The preceding subsection, 175.57(a), uses the additional word
"deported," but only to supplement "excluded:"

															"Any alien so temporarily excluded by an official of the
Department of Justice shall not be admitted, and shall be excluded
and deported unless the Attorney General, after consultation with
the Secretary of State, is satisfied that the admission of the
alien would not be prejudicial to the interests of the United
States."

															8 CFR.

															[ Footnote 10 ]

															This provision survives in a modified form in § 330 of the
Immigration and Nationality Act of 1952, 66 Stat. 251. Section
330(b) includes a savings clause affecting those who applied for
naturalization before September 23, 1950. Section 405(a) also
contains a general savings clause, 66 Stat. 280.

															[ Footnote 11 ]

															Existing statutory and administrative provisions for "Exclusion
Without Hearing" are discussed in the Report of the President's
Commission on Immigration and Naturalization entitled "Whom We
Shall Welcome" dated January 1, 1953 at 228-231. The discussion
treats the provisions as applicable to entrant and reentrant
aliens, but does not even suggest that they are applicable to
aliens lawfully admitted to permanent residence and physically
present within the United States. The report discusses the
harshness of the "reentry doctrine," and recommends its
modification at 199-200. It does not, however, even suggest that
the reentry doctrine attempts to limit the constitutional right to
a hearing which resident aliens, in the status of petitioner, may
have under the Fifth Amendment. The instances of hardship which the
report cites appear to have been disclosed at hearings held on the
issue of the alien's right to reenter.

															[ Footnote 12 ] See note 2 supra. [ Footnote 13 ] See note 3 supra.

Summary:
Here is a summary of the Supreme Court case Kwong Hai Chew v. Colding:

The case centers around 8 CFR § 175.57(b), a regulation regarding the entry of aliens into the United States, and whether the Attorney General has the authority to deny a hearing to a lawful permanent resident alien facing "permanent exclusion" and deportation.

The Court held that under this regulation, the Attorney General does not have the authority to deny a hearing to a lawful permanent resident alien who is continuously residing and physically present in the United States, even if the information is confidential and its disclosure would be prejudicial to the public interest.

The Court distinguished this case from Knauff v. Shaughnessy, where the alien was not a permanent resident and had not yet entered the country. The term "excludable" in the regulation was deemed inapplicable to aliens who are already lawful permanent residents physically present in the United States.

The Court reversed the lower court's decision and remanded the case, holding that the petitioner, a lawful permanent resident alien, was entitled to a hearing and that his detention without notice of charges or an opportunity to be heard was not authorized by the regulation.


U.S. Supreme Court United States v. Reynolds, 345 U.S. 1 (1953) United States v.
Reynolds No. 21. Argued October 21,
1952 Decided March 9, 1953 345 U.S.
1 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE THIRD
CIRCUIT Syllabus A military aircraft on a flight to test secret electronic
equipment crashed, and certain civilian observers aboard were
killed. Their widows sued the United States under the Tort Claims
Act and moved under Rule 34 of the Federal Rules of Civil Procedure
for production of the Air Force's accident investigation report and
statements made by surviving crew members during the investigation.
The Secretary of the Air Force filed a formal claim of privilege,
stating that the matters were privileged against disclosure under
Air Force regulations issued under R.S. § 161, and that the
aircraft and its personnel were "engaged in a highly secret
mission." The Judge Advocate General filed an affidavit stating
that the material could not be furnished "without seriously
hampering national security," but he offered to produce the
surviving crew members for examination by plaintiffs and to permit
them to testify as to all matters except those of a "classified
nature." Held: in this case, there was a valid claim of
privilege under Rule 34; and a judgment based under Rule 37 on
refusal to produce the documents subjected the United States to
liability to which Congress did not consent by the Tort Claims Act.
Pp. 345 U. S.
2 -12.

															(a) As used in Rule 34, which compels production only of matters
"not privileged," the term "not privileged" refers to "privileges"
as that term is understood in the law of evidence. P. 345 U. S. 6 .

															(b) When the Secretary lodged his formal claim of privilege, he
invoked a privilege against revealing military secrets which is
well established in the law of evidence. Pp. 345 U. S. 6 -7. Page 345 U. S. 2 (c) When a claim of privilege against revealing military secrets
is invoked, the courts must decide whether the occasion for
invoking the privilege is appropriate, and yet do so without
jeopardizing the security which the privilege was meant to protect.
Pp. 345 U. S. 7 -8.

															(d) When the formal claim of privilege was filed by the
Secretary, under circumstances indicating a reasonable possibility
that military secrets were involved, there was a sufficient showing
of privilege to cut off further demand for the documents on the
showing of necessity for its compulsion that had been made. P. 345 U. S. 10 .

															(e) In this case, the showing of necessity was greatly minimized
by plaintiffs' rejection of the Judge Advocate General's offer to
make the surviving crew member available for examination. P. 345 U. S. 11 .

															(f) The doctrine in the criminal field that the Government can
invoke its evidentiary privileges only at the price of letting the
defendant go free has no application in a civil forum, where the
Government is not the moving party, but is a defendant only on
terms to which it has consented. P. 345 U. S. 12 .

															192 F.2d 987 reversed.

															In a suit under the Tort Claims Act, the District Court entered
judgment against the Government. 10 F.R.D. 468. The Court of
Appeals affirmed. 192 F.2d 987. This Court granted certiorari. 343
U.S. 918. Reversed and remanded, p. 345 U. S. 12 .

															MR. CHIEF JUSTICE VINSON delivered the opinion of the Court.

															These suits under the Tort Claims Act [ Footnote 1 ] arise from the death of three civilians in
the crash of a B-29 aircraft at Page 345 U. S. 3 Waycross, Georgia, on October 6, 1948. Because an important
question of the Government's privilege to resist discovery
[ Footnote 2 ] is involved, we
granted certiorari. 343 U.S. 918.

															The aircraft had taken flight for the purpose of testing secret
electronic equipment, with four civilian observers aboard. While
aloft, fire broke out in one of the bomber's engines. Six of the
nine crew members, and three of the four civilian observes were
killed in the crash.

															The widows of the three deceased civilian observers brought
consolidated suits against the United States. In the pretrial
stages, the plaintiffs moved, under Rule 34 of the Federal Rules of
Civil Procedure, [ Footnote 3 ]
for production of the Air Force's official accident investigation
report and the statements of the three surviving crew members,
taken in connection with the official investigation. The Government
moved to quash the motion, claiming that these matters were
privileged against disclosure pursuant Page 345 U. S. 4 to Air Force regulations promulgated under R.S. § 161. [ Footnote 4 ] The District Judge
sustained plaintiffs' motion, holding that good cause for
production had been shown. [ Footnote 5 ] The claim of privilege under R.S. § 161 was
rejected on the premise that the Tort Claims Act, in making the
Government liable "in the same manner" as a private individual,
[ Footnote 6 ] had waived any
privilege based upon executive control over governmental
documents.

															Shortly after this decision, the District Court received a
letter from the Secretary of the Air Force stating that "it has
been determined that it would not be in the public interest to
furnish this report. . . ." The court allowed a rehearing on its
earlier order, and, at the rehearing, the Secretary of the Air
Force filed a formal "Claim of Privilege." This document repeated
the prior claim based generally on R.S. § 161, and then stated that
the Government further objected to production of the documents "for
the reason that the aircraft in question, together with the
personnel on board, were engaged in a highly secret mission of the
Air Force." An affidavit of the Judge Advocate General, United
States Air Force, was also filed Page 345 U. S. 5 with the court, which asserted that the demanded material could
not be furnished "without seriously hampering national security,
flying safety and the development of highly technical and secret
military equipment." The same affidavit offered to produce the
three surviving crew members, without cost, for examination by the
plaintiffs. The witnesses would be allowed to refresh their
memories from any statement made by them to the Air Force, and
authorized to testify as to all matters except those of a
"classified nature."

															The District Court ordered the Government to produce the
documents in order that the court might determine whether they
contained privileged matter. The Government declined, so the court
entered an order, under Rule 37(b)(2)(i), [ Footnote 7 ] that the facts on the issue of negligence
would be taken as established in plaintiffs' favor. After a hearing
to determine damages, final judgment was entered for the
plaintiffs. The Court of Appeals affirmed, [ Footnote 8 ] both as to the showing of good cause for
production of the documents and as to the ultimate disposition of
the case as a consequence of the Government's refusal to produce
the documents. Page 345 U. S. 6 We have had broad propositions pressed upon us for decision. On
behalf of the Government, it has been urged that the executive
department heads have power to withhold any documents in their
custody from judicial view if they deem it to be in the public
interest. [ Footnote 9 ]
Respondents have asserted that the executive's power to withhold
documents was waived by the Tort Claims Act. Both positions have
constitutional overtones which we find it unnecessary to pass upon,
there being a narrower ground for decision. Touhy v.
Ragen, 340 U. S. 462 (1951); Rescue Army v. Municipal Court of Los Angeles, 331 U. S. 549 , 331 U. S.
574 -585 (1947).

															The Tort Claims Act expressly makes the Federal Rules of Civil
Procedure applicable to suits against the United States. [ Footnote 10 ] The judgment in this
case imposed liability upon the Government by operation of Rule 37,
for refusal to produce documents under Rule 34. Since Rule 34
compels production only of matters "not privileged," the essential
question is whether there was a valid claim of privilege under the
Rule. We hold that there was, and that therefore the judgment below
subjected the United States to liability on terms to which Congress
did not consent by the Tort Claims Act.

															We think it should be clear that the term "not privileged" as
used in Rule 34, refers to "privileges" as that term is understood
in the law of evidence. When the Secretary of the Air Force lodged
his formal "Claim of Privilege," he attempted therein to invoke the
privilege against revealing military secrets, a privilege which is
well Page 345 U. S. 7 established in the law of evidence. [ Footnote 11 ] The existence of the privilege is
conceded by the court below, [ Footnote 12 ] and, indeed, by the most outspoken critics
of governmental claims to privilege. [ Footnote 13 ]

															Judicial experience with the privilege which protects military
and state secrets has been limited in this country. [ Footnote 14 ] English experience has been
more extensive, but still relatively slight compared with other
evidentiary privileges. [ Footnote 15 ] Nevertheless, the principles which control
the application of the privilege emerge quite clearly from the
available precedents. The privilege belongs to the Government, and
must be asserted by it; it can neither be claimed [ Footnote 16 ] nor waived [ Footnote 17 ] by a private party. It is not
to be lightly invoked. [ Footnote
18 ] There must be formal claim Page 345 U. S. 8 of privilege, lodged by the head of the department which has
control over the matter, [ Footnote 19 ] after actual personal consideration by that
officer. [ Footnote 20 ] The
court itself must determine whether the circumstances are
appropriate for the claim of privilege, [ Footnote 21 ] and yet do so without forcing a
disclosure of the very thing the privilege is designed to protect.
[ Footnote 22 ] The latter
requirement is the only one which presents real difficulty. As to
it, we find it helpful to draw upon judicial experience in dealing
with an analogous privilege, the privilege against
self-incrimination.

															The privilege against self-incrimination presented the courts
with a similar sort of problem. Too much judicial inquiry into the
claim of privilege would force disclosure of the thing the
privilege was meant to protect, while a complete abandonment of
judicial control would lead to intolerable abuses. Indeed, in the
earlier stages Page 345 U. S. 9 of judicial experience with the problem, both extremes were
advocated, some saying that the bare assertion by the witness must
be taken as conclusive, and others saying that the witness should
be required to reveal the matter behind his claim of privilege to
the judge for verification. [ Footnote 23 ] Neither extreme prevailed, and a sound
formula of compromise was developed. This formula received
authoritative expression in this country as early as the Burr trial. [ Footnote
24 ] There are differences in phraseology, but, in substance, it
is agreed that the court must be satisfied from all the evidence
and circumstances, and

															"from the implications of the question, in the setting in which
it is asked, that a responsive answer to the question or an
explanation of why it cannot be answered might be dangerous because
injurious disclosure could result." Hoffman v. United States, 341 U.
S. 479 , 341 U. S.
486 -487 (1951). [ Footnote 25 ] If the court is so satisfied, the claim of
the privilege will be accepted without requiring further
disclosure.

															Regardless of how it is articulated, some like formula of
compromise must be applied here. Judicial control over the evidence
in a case cannot be abdicated to the Page 345 U. S. 10 caprice of executive officers. Yet we will not go so far as to
say that the court may automatically require a complete disclosure
to the judge before the claim of privilege will be accepted in any
case. It may be possible to satisfy the court, from all the
circumstances of the case, that there is a reasonable danger that
compulsion of the evidence will expose military matters which, in
the interest of national security, should not be divulged. When
this is the case, the occasion for the privilege is appropriate,
and the court should not jeopardize the security which the
privilege is meant to protect by insisting upon an examination of
the evidence, even by the judge alone, in chambers.

															In the instant case, we cannot escape judicial notice that this
is a time of vigorous preparation for national defense. Experience
in the past was has made it common knowledge that air power is one
of the most potent weapons in our scheme of defense, and that newly
developing electronic devices have greatly enhanced the effective
use of air power. It is equally apparent that these electronic
devices must be kept secret if their full military advantage is to
be exploited in the national interests. On the record before the
trial court, it appeared that this accident occurred to a military
plane which had gone aloft to test secret electronic equipment.
Certainly there was a reasonable danger that the accident
investigation report would contain references to the secret
electronic equipment which was the primary concern of the
mission.

															Of course, even with this information before him, the trial
judge was in no position to decide that the report was privileged
until there had been a formal claim of privilege. Thus, it was
entirely proper to rule initially that petitioner had shown
probable cause for discovery of the documents. Thereafter, when the
formal claim of privilege was filed by the Secretary of the Air
Force, under Page 345 U. S. 11 circumstances indicating a reasonable possibility that military
secrets were involved, there was certainly a sufficient showing of
privilege to cut off further demand for the document on the showing
of necessity for its compulsion that had then been made.

															In each case, the showing of necessity which is made will
determine how far the court should probe in satisfying itself that
the occasion for invoking the privilege is appropriate. Where there
is a strong showing of necessity, the claim of privilege should not
be lightly accepted, but even the most compelling necessity cannot
overcome the claim of privilege if the court is ultimately
satisfied that military secrets are at stake. [ Footnote 26 ] A fortiori, where
necessity is dubious, a formal claim of privilege, made under the
circumstances of this case, will have to prevail. Here, necessity
was greatly minimized by an available alternative, which might have
given respondents the evidence to make out their case without
forcing a showdown on the claim of privilege. By their failure to
pursue that alternative, respondents have posed the privilege
question for decision with the formal claim of privilege set
against a dubious showing of necessity.

															There is nothing to suggest that the electronic equipment, in
this case, had any causal connection with the accident. Therefore,
it should be possible for respondents to adduce the essential facts
as to causation without resort to material touching upon military
secrets. Respondents were given as reasonable opportunity to do
just that when petitioner formally offered to make the surviving
crew members available for examination. We think that offer should
have been accepted. Page 345 U. S. 12 Respondents have cited us to those cases in the criminal field,
where it has been held that the Government can invoke its
evidentiary privileges only at the price of letting the defendant
go free. [ Footnote 27 ] The
rationale of the criminal cases is that, since the Government which
prosecutes an accused also has the duty to see that justice is
done, it is unconscionable to allow it to undertake prosecution and
then invoke its governmental privileges to deprive the accused of
anything which might be material to his defense. Such rationale has
no application in a civil forum, where the Government is not the
moving party, but is a defendant only on terms to which it has
consented.

															The decision of the Court of Appeals is reversed, and the case
will be remanded to the District Court for further proceedings
consistent with the views expressed in this opinion. Reversed and remanded. MR. JUSTICE BLACK, MR. JUSTICE FRANKFURTER, and MR. JUSTICE
JACKSON dissent substantially for the reasons set forth in the
opinion of Judge Maris below.192 F.2d 987.

															[ Footnote 1 ]

															28 U.S.C. §§ 1346, 2674.

															[ Footnote 2 ]

															Federal Rules of Civil Procedure, Rule 34.

															[ Footnote 3 ]

															"Rule 34. Discovery and Production of Documents and Things
for Inspection, Copying, or Photographing. Upon motion of any
party showing good cause therefor and upon notice to all other
parties, and subject to the provisions of Rule 30(b), the court in
which an action is pending may (1) order any party to produce and
permit the inspection and copying or photographing, by or on behalf
of the moving party, of any designated documents, papers, books,
accounts, letters, photographs, objects, or tangible things, not
privileged, which constitute or contain evidence relating to any of
the matters within the scope of the examination permitted by Rule
26(b) and which are in his possession, custody, or control; or (2)
order any party to permit entry upon designated land or other
property in his possession or control for the purpose of
inspecting, measuring, surveying, or photographing the property or
any designated object or operation thereon within the scope of the
examination permitted by Rule 26(b). The order shall specify the
time, place, and manner of making the inspection and taking the
copies and photographs and may prescribe such terms and conditions
as are just."

															[ Footnote 4 ]

															5 U.S.C. § 22:

															"The head of each department is authorized to prescribe
regulations, not inconsistent with law, for the government of his
department, the conduct of its officers and clerks, the
distribution and performance of its business, and the custody, use,
and preservation of the records, papers, and property appertaining
to it."

															Air Force Regulation No. 62-7(5)(b) provides:

															"Reports of boards of officers, special accident reports, or
extracts therefrom will not be furnished or made available to
persons outside the authorized chain of command without the
specific approval of the Secretary of the Air Force."

															[ Footnote 5 ]

															10 F.R.D. 468.

															[ Footnote 6 ]

															28 U.S.C. § 2674:

															"The United States shall be liable, respecting the provisions of
this title relating to tort claims, in the same manner and to the
same extent as a private individual under like circumstances, but
shall not be liable for interest prior to judgment or for punitive
damages."

															[ Footnote 7 ]

															"Rule 37. Refusal to Make Discovery: Consequences. "

															" * * * *" "(b) Failure to Comply With Order."

															" * * * *" "(2) Other Consequences. If any party or an officer or
managing agent of a party refuses to obey . . . an order made under
Rule 34 to produce any document . . . , the court may make such
orders in regard to the refusal as are just, and, among others, the
following: "

															"(i) An order that the matters regarding which the questions
were asked, or the character or description of the thing or land,
or the contents of the paper, or the physical or mental condition
of the party, or any other designated facts shall be taken to be
established for the purposes of the action in accordance with the
claim of the party obtaining the order. . . ."

															[ Footnote 8 ]

															192 F.2d 987.

															[ Footnote 9 ]

															[ Footnote 10 ]

															28 U.S.C. (1946 ed.) § 932; United States v. Yellow Cab
Co., 340 U. S. 543 , 340 U. S. 553 (1951).

															[ Footnote 11 ] Totten v. United States, 92 U. S.
105 , 92 U. S. 107 (1875); Firth Sterling Steel Co. v. Bethlehem Steel Co., 199 F. 353 (1912); Pollen v. Ford Instrument
Co., 26 F. Supp.
583 (1939); Cresmer v. United States, 9 F.R.D. 203
(1949); see Bank Line v. United States, 68 F. Supp.
587 (1946), 163 F.2d 133 (1947). 8 Wigmore on Evidence (3d ed.)
§ 2212(a), p. 161, and § 2378(g)(5), at pp. 785 et seq.; 1
Greenleaf on Evidence (16th ed.) §§ 250-251; Sanford, Evidentiary
Privileges Against the Production of Data Within the Control of
Executive Departments, 3 Vanderbilt L.Rev. 73, 74-75 (1950).

															[ Footnote 12 ]

															192 F.2d 987, 996.

															[ Footnote 13 ] See Wigmore, op. cit. supra, note 11 [ Footnote 14 ] See cases cited supra, note 11 [ Footnote 15 ]

															Most of the English precedents are reviewed in the recent case
of Duncan v. Cammell, Laird & Co., [1942] A.C.
624.

															[ Footnote 16 ] First Sterling Steel Co. v. Bethlehem Steel Co., 199 F.
353 (1912).

															[ Footnote 17 ]

															In re Grove, 180 F. 62 (1910).

															[ Footnote 18 ]

															Marshall, C.J., in the Aaron Burr trial, I Robertson's Reports
186:

															"That there may be matter, the production of which the court
would not require is certain. . . . What ought to be done under
such circumstances presents a delicate question, the discussion of
which, it is hoped, will never be rendered necessary in this
country."

															[ Footnote 19 ] Firth case, supra, note 16 [ Footnote 20 ]

															"The essential matter is that the decision to object should be
taken by the minister who is the political head of the department,
and that he should have seen and considered the contents of the
documents, and himself have formed the view that, on grounds of
public interest, they ought not to be produced. . . ." Duncan v. Cammell, Laird & Co., [1942] A.C. 624,
638.

															[ Footnote 21 ] Id. at 642:

															"Although an objection validly taken to production, on the
ground that this would be injurious to the public interest, is
conclusive, it is important to remember that the decision
ruling out such documents is the decision of the judge. . . .
It is the judge who is in control of the trial, not the executive.
. . ."

															(Emphasis supplied.)

															[ Footnote 22 ] Id. at pp. 638-642; cf. the language of this
Court in Hoffman v. United States, 341 U.
S. 479 , 341 U. S. 486 (1951), speaking of the analogous hazard of probing too far in
derogation of the claim of privilege against
self-incrimination:

															"However, if the witness, upon interposing his claim, were
required to prove the hazard in the sense in which a claim is
usually required to be established in court, he would be
compelled to surrender the very protection which the privilege is
designed to guarantee. "

															(Emphasis supplied.)

															[ Footnote 23 ] Compare the expressions of Rolfe, B. and Willes, C.J.,
in Regina v.Garbett, 2 C. & K. 474, 492 (1847); see 8 Wigmore on Evidence (3d ed.) § 2271.

															[ Footnote 24 ]

															I Robertson's Reports 244:

															"When a question is propounded, it belongs to the Court to
consider and decide whether any direct answer to it can implicate
the witness; if this be decided in the negative, then he may answer
it without violating the privilege which is secured to him by law.
If a direct answer to it may criminate himself, then he must be the
sole judge what his answer would be. The Court cannot participate
with him in this judgment, because they cannot decide on the effect
of his answer without knowing what it would be, and a disclosure of
that fact to the judges would strip him of the privilege which the
law allows and which he claims."

															[ Footnote 25 ] Brown v. United States, 276 U.
S. 134 (1928); Mason v. United States, 244 U. S. 362 (1917).

															[ Footnote 26 ] See Totten v. United States, 92 U. S.
105 (1875), where the very subject matter of the action,
a contract to perform espionage, was a matter of state secret. The
action was dismissed on the pleadings without ever reaching the
question of evidence, since it was so obvious that the action
should never prevail over the privilege.

															[ Footnote 27 ] United States v. Andolschek, 142 F.2d 503 (1944); United States v. Beekman, 155 F.2d 580 (1946).

Summary: In United States v. Reynolds, the Supreme Court held that the government could claim privilege against revealing military secrets in a civil lawsuit, and that the courts must respect this privilege to protect national security. In this case, the widows of civilian observers killed in a military aircraft crash sued the government and sought access to the Air Force's accident investigation report. The Secretary of the Air Force claimed privilege, stating that the report contained sensitive information. The Court ruled that the government's privilege claim was valid and that the widows' demand for the documents was outweighed by the potential harm to national security. The Court also emphasized the distinction between criminal and civil cases, noting that evidentiary privileges in criminal cases could result in the defendant going free, while in civil cases, alternative evidence could be offered without compromising national security.