Petitioner brought this habeas corpus proceeding to test the validity of the denial of his application under §§ 244(a)(5) and 244(c) of the Immigration and Nationality Act of 1952, 66 Stat. 215, 216, 8 U.S.C. §§ 1254(a)(5) and 1254(c), 8 U.S.C.A. § 1254(a)(5), (c), for discretionary suspension of deportation. He contends that the denial of his application was unlawful because based on confidential, undisclosed information. The District Court denied the writ, holding, so far as pertinent here, that, 'after complying with all the essentials of due process of law in the deportation hearing and in the hearing to determine eligibility for suspension of deportation, (the Attorney General may) consider confidential information outside the record in formulating his discretionary decision.' The Court of Appeals affirmed, concluding, inter alia, that petitioner was not 'denied due process of law in the consideration of his application for suspension of deportation because of the use of this confidential information.' 222 F.2d 820, 820-821, rehearing denied 224 F.2d 957. We granted certiorari, 350 U.S. 931, 76 S.Ct. 303, to consider the validity of 8 CFR, Rev.1952, § 244.3, the Attorney General's regulation which provides:
's 244.3 Use of confidential information. In the case of an alien qualified for * * * suspension of deportation under section * * * 244 of the Immigration and Nationality Act the determination as to whether the application for * * * suspension of deportation shall be granted or denied (whether such determination is made initially or on appeal) may be predicated upon confidential information without the disclosure thereof to the applicant, if in the opinion of the officer or the Board making the determination the disclosure of such information would be prejudicial to the public interest, safety, or security.'
Following a hearing, the fairness of which is unchallenged, petitioner was ordered deported in 1952 pursuant to 8 U.S.C. (1946 ed., Supp. V) § 137-3. That section provided for the deportation of any alien 'who was at the time of entering the United States, or has been at any time thereafter,' a member of the Communist Party of the United States. Petitioner, a citizen of Great Britain, last entered the United States in 1921. At the deportation hearing he admitted having been a voluntary member of the Communist Party from 1935 through 1940. He attacked the validity of the deportation order in the courts below on the ground that there is 'no lawful power * * * under the Constitution ow laws of the United States' to deport one who has 'at no time violated any condition imposed at the time of his entry.' But that point has been abandoned, and in this Court petitioner in effect concedes that he is deportable. See Galvan v. Press, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911; Harisiades v. Shaughnessy, 342 U.S. 580, 72 S.Ct. 512, 96 L.Ed. 586.
In 1953, upon motion of petitioner, the deportation order was withdrawn for the purpose of allowing petitioner to seek discretionary relief from the Attorney General under § 244(a)(5) of the Act. The application for suspension of deportation was filed and a hearing thereon was held before a special inquiry officer of the Immigration and Naturalization Service. The special inquiry officer found petitioner to be qualified for suspension of deportation -that is, found that petitioner met the statutory prerequisites to the favorable exercise of the discretionary relief. But the special inquiry officer decided the case for suspension did not 'warrant favorable action' in view of certain 'confidential information.' The Board of Immigration Appeals dismissed an appeal, basing its decision 'Upon a full consideration of the evidence of record and in light of the confidential information available.' Thus, the Board in considering the appeal reviewed the undisclosed information as well as the evidence on the open record. Petitioner then commenced the present habeas corpus action.