Kwong Hai Chew v. Colding/Opinion of the Court
A preliminary consideration that is helpful to the solution of this litigation is whether, under 8 CFR § 175.57(b),  the Attorney General has authority to deny to a lawful permanent resident of the United States, 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 States as of January 10, 1945.  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 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.  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 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 safe-keeping 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 U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 70 S.Ct. 309, 94 L.Ed. 317. 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, 72 S.Ct. 769. 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 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 recond.

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.  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.  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.  Although Congress may prescribe conditions for his expulsion and deportation, not even Congress may expel him without allowing him a fair opportunity to be heard.  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 proedural due process. 

This being recognized, we interpret this regulation as making no attempt to question a resident alien's constitutional 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.  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, U.S.Code Cong.Serv.1941, p. 883, 3 CFR, 1943 Cum.Supp., 270, and No. 2850, U.S.Code Cong. Serv. 1949, p. 2618, 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. 252, 22 U.S.C. § 223, 22 U.S.C.A. § 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, 8 U.S.C.A. § 1101 et seq., 66 Stat. 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: '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, 8      U.S.C.A. § 707. See also, § 325, 54 Stat. 1150, as amended,      64 Stat. 1015, 8 U.S.C. (Supp. V) § 725, 8 U.S.C.A. § 725. 

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 ready to assume that any of them has attempted to deprive such a person of a fair hearing. 

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.  Before receiving clearance for his foreign cruise, he was screened and approved by the Coast Guard.  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, 8 U.S.C.A. §§ 701 747.

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 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 do the District Court.

Judgment reversed and cause remanded to the District Court.

Mr. Justice MINTON dissents. 

Notes