United States v. Minker Falcone/Concurrence Black

by Hugo Black

United States Supreme Court

350 U.S. 179

United States  v.  Minker Falcone

 Argued: Nov. 14, 15, 1955. --- Decided: Jan 16, 1956

Mr. Justice BLACK, concurring.

The respondent Minker is a naturalized citizen of the United States. ^[1] He was subpoenaed by an immigration officer to appear and give testimony as a 'witness.' But Minker was not to be a witness within the traditional meaning of that word, that is, one who testifies in a court proceeding or in a public quasi-judicial hearing of some kind. The immigration officer summoning Minker was not a judge or 'grand jury' of any kind, nor was he at the time acting in any quasi-judicial capacity. Cf. In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682. He was acting under his broad power as a law enforcement officer to follow up clues and find information that might be useful in later civil or criminal prosecutions brought against persons suspected of violating the immigration and naturalization laws. See, e.g., § 287, Immigration and Nationality Act, 66 Stat. 233, 8 U.S.C. § 1357, 8 U.S.C.A. § 1357; 8 CFR §§ 287.1-287.5. The object in summoning Minker was to interrogate him in the immigration officer's private chambers to try to elicit information 'relating to the possible institution of proceedings seeking the revocation of * * * (Minker's) naturalization. * * *' Information so obtained might be used under some circumstances in court to take away Minker's American citizenship or convict him of perjury or some other crime. ^[2] Thus the capacity in which this immigration officer was acting was precisely the same as that of a policeman, constable, sheriff, or Federal Bureau of Investigation agent who interrogates a person, perhaps himself a suspect, in connection with murder or some other crime. Apparently Congress has never even attempted to vest FBI agents with such private inquisitorial power. Indeed, this Court has construed congressional enactments as designed to safeguard persons against compulsory questioning by law enforcement officers behind closed doors. McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819; Upshaw v. United States, 335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100. And we have frequently set aside state criminal convictions as a denial of due process of law because of coercive questioning of suspects by public prosecutors and other law enforcement officers in their official chambers. See, e.g., Watts v. Indiana, 338 U.S. 49, 69 S.Ct. 1347, 93 L.Ed. 1801; Harris v. South Carolina, 338 U.S. 68, 69 S.Ct. 1354, 93 L.Ed. 1815; Chambers v. Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716. Yet power of the Attorney General and immigration officers to compel persons, including suspects, to appear and subject themselves to questioning by law enforcement officers in their private chambers is precisely what the Department of Justice claims here. This is no less true because a federal judge must be called on to 'aid' the immigration officer in subjecting a summoned person to questioning. § 235(a), 66 Stat. 198, 8 U.S.C. § 1225(a), 8 U.S.C.A. § 1225(a). For after a court order, as before, the person summoned must go to an immigration officer's private chambers for questioning by him, out of which may come a prosecution against the 'witness' for perjury or some other crime. A purpose to subject aliens, much less citizens, to a police practice so dangerous to individual liberty as this should not be read into an Act of Congress in the absence of a clear and unequivocal congressional mandate. I think the Act relied on here by the Department of Justice should not be so read. I would hold that immigration officers are wholly without statutory authority to summon persons, whether suspects or not, to testify in private as 'witnesses' in denaturalization matters. For this reason I concur in the Court's judgment in this case.

The Department of Justice finds the sweeping power it claims in § 235 of the Immigration and Nationality Act of 1952, 66 Stat. 163, 198, 8 U.S.C. §§ 1101, 1225, 8 U.S.C.A. §§ 1101, 1225. That Act is a comprehensive codification of laws relating to entry, exclusion, domestic control, deportation and naturalization of aliens; the Act also provides the controlling rules and procedures for denaturalizing naturalized citizens. Primary responsibility for administration and enforcement of the Act is vested in the Attorney General, acting chiefly through his subordinates in the Immigration and Naturalization Service. § 103, 66 Stat. 173, 8 U.S.C. § 1103, 8 U.S.C.A. § 1103.

This Court has drawn sharp and highly important distinctions between the constitutional power of Congress to bar and exclude aliens and congressional power to strip citizens of their citizenship. Former cases have held that Congress has full power to bar or exclude aliens from the country. See, e.g., United States v. Ju Toy, 198 U.S. 253, 25 S.Ct. 644, 49 L.Ed. 1040; Harisiades v. Shaughnessy, 342 U.S. 580, 72 S.Ct. 512, 96 L.Ed. 586; Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956. But citizenship, whether acquired by birth or by naturalization, cannot be taken away without a judicial trial in which the Government carries a heavy burden. See, e.g., Ng Fung Ho v. White, 259 U.S. 276, 42 S.Ct. 492, 66 L.Ed. 938; Baumgartner v. United States, 322 U.S. 665, 64 S.Ct. 1240, 88 L.Ed. 1525; Gonzales v. Landon, 350 U.S. 920, 76 S.Ct. 210. Congress, apparently taking note of these basic distinctions, divided the Act into different 'Titles' and 'Chapters.' Section 235, on which the Government relies here, appears in Chapter IV of Title II. Title II as a whole contains provisions relating to 'Immigration' and Chapter IV of that Title contains the 'Provisions Relating to Entry and Exclusion.' It is in the context of Chapter IV that § 235 gives the Attorney General and immigration officers, 'including special inquiry officers', broad power to subpoena and require testimony of 'witnesses' as to 'the privilege of any person to enter, reenter, reside in, or pass through the United States or concerning any matter which is material and relevant to the enforcement of this Act and the administration of the Service * * *.' I think that context indicates that § 235 was designed to apply only to the examination of 'witnesses' by immigration officers in relation to 'entry and exclusion' of aliens, and matters material and relevant to entry and exclusion. Such a reading makes the subpoena power given fit into the carefully devised pattern of Title II, which deals with aliens and immigration, not with naturalization or denaturalization. Even if limited to matters pertaining to the entry and exclusion of aliens, compulsory private examination of 'witnesses' might be invalid. The broad powers here claimed by the Attorney General and his immigration officers could be more nearly defended, if they can be defended at all, by confining use of the powers to the field of treatment of aliens, where this Court has said Congress has most power.

Limitation of the subpoena and investigatory powers in § 235 to matters relating to entry, control and exclusion of aliens is strengthened by consideration of Title III of the Act which covers 'Nationality and Naturalization.' That Title provides procedures for investigation and trial of naturalization and denaturalization cases, wholly adequate in themselves without reliance on the subpoena and examination powers of immigration officers under § 235. The naturalization and denaturalization procedures of Title III are not merely adequate, but are in a measure inconsistent with § 235 procedure. Looking first at naturalization procedure under §§ 332-336, 66 Stat. 252-258, 8 U.S.C. §§ 1443-1447, 8 U.S.C.A. §§ 1443-1447, it appears that Congress with meticulous care provided a procedure for investigation of naturalization cases. These sections provide their own way for summoning and examining witnesses. Without mentioning immigration officers, the sections provide for investigations, etc., to be carried on by any employee of the Service or of the United States designated by the Attorney General. An examination under this Title is carried on by a public hearing at which an applicant for citizenship can produce his own witnesses. ^[3] The designated hearing examiner is given the power to subpoena witnesses by § 335(b), 66 Stat. 255, 8 U.S.C. § 1446(b), 8 U.S.C.A. § 1446(b), and the naturalization judge is authorized to compel compliance with the subpoena. After the hearing the examiner reports his findings and recommendations to the Attorney General. The views of the designated examiner, and of the Attorney General if in conflict, are then reported to the naturalization court for its consideration. All of this persuades me that reliance on the subpoena and private examination powers of immigration officers under § 235 would actually conflict with the public hearing procedure Congress and the Attorney General have provided for naturalization cases in §§ 332-335, 66 Stat. 252-257, 8 U.S.C. §§ 1443-1446, 8 U.S.C.A. §§ 1443-1446, and 8 CFR §§ 335.11-335.13.

It seems even clearer that immigration officers' powers under § 235 are not applicable in denaturalization cases. Section 340 of Title III of the Act, 66 Stat. 260, 8 U.S.C. § 1451, 8 U.S.C.A. § 1451, provides for revocation of naturalization. Responsibility for initiating such cases is placed on district attorneys 'upon affidavit showing good cause therefor * * *.' Many of the grounds for denaturalization are also grounds for felony prosecutions. Under these circumstances it is not surprising that Congress expressly placed responsibility for instituting denaturalization proceedings on district attorneys, leaving them to summon persons to appear as witnesses in the traditional manner before grand juries or courts. It would have been surprising had Congress attempted to authorize the Nation's chief prosecuting officer and his subordinates to compel a citizen to appear in government private offices to answer questions in secret about that citizen's conduct, associations and beliefs. Some countries give such powers to their officials. It is to be hoped that this country never will.

Notes

1. Minker is respondent in No. 35. He and the petitioners in No. 47, Salvatore and Joseph Falcone, raise the same questions, and what I say about Minker's case applies also to that of the Falcones.
2. See § 348, 66 Stat. 267, 8 U.S.C. § 1459, 8 U.S.C.A. § 1459; 18 U.S.C. § 1621, 18 U.S.C.A. § 1621. See also Gonzales v. Landon, 350 U.S. 920, 76 S.Ct. 210, reversing 9 Cir., 215 F.2d 955. But see Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746; majority and dissenting opinions in Feldman v. United States, 322 U.S. 487, 64 S.Ct. 1082, 88 L.Ed. 1408; Adams v. Maryland, 347 U.S. 179, 74 S.Ct. 442, 98 L.Ed. 608.
3. The Attorney General's regulations for the conduct of these examinations, 8 CFR §§ 335.11-335.13, also provide that the petitioner for naturalization may be represented by counsel and that the petitioner may cross-examine government witnesses. If petitioner is not represented by counsel, the hearing examiner must assist him in introducing his evidence. Furthermore the decision of the examiner may not be based on evidence which is not in the record or which would be inadmissible in judicial proceedings. Thus the regulations emphasize the difference between a subpoena to testify before a § 335 naturalization hearing officer and a subpoena to testify before a § 235 immigration officer seeking to obtain evidence for criminal prosecution or deportation. And that show that naturalization procedures are completely independent from entry and exclusion procedures. Cf. §§ 235(c), 236(a), 292, 66 Stat. 199, 200, 235, 8 U.S.C. §§ 1225(c), 1226(a), 1362, 8 U.S.C.A. §§ 1225(c), 1226(a), 1362; 8 CFR §§ 235.15, 236.11-236.16.