Petitioner, a native of Tunis, Africa, was ordered deported after a hearing pursuant to § 242(b) of the Immigration and Nationality Act of 1952, 66 Stat. 209, 8 U.S.C. § 1252(b), 8 U.S.C.A. § 1252(b). It was found that he had been convicted in 1938 of violation of the Marihuana Tax Act, 26 U.S.C. § 2591, 26 U.S.C.A. § 2591, and sentenced to imprisonment for one year. Section 241(a) (11) of the 1952 immigration law makes such conviction at any time ground for deportation, and § 241(d) provides that the deportation provisions of § 241(a) shall apply even though the facts giving rise to the alien's deportability occurred prior to the date of enactment of the 1952 Act.
At the hearing before a special inquiry officer of the Immigration and Naturalization Service, petitioner did not dispute the fact of his conviction. He did, however, object to the proceedings on the ground that they violated due process and the Administrative Procedure Act, 60 Stat. 237, 5 U.S.C. § 1001 et seq., 5 U.S.C.A. § 1001, et seq. The hearing officer overruled these objections. Petitioner also contended that the ex post facto cause of the Constitution precluded the retroactive application of the 1952 law to his case. This contention too was rejected by the hearing officer. Petitioner and his counsel were advised of their right to apply to the Attorney General for the discretionary relief of suspension of deportation under § 244(a)(5) of the Act. At first they declined to do so, but subsequently they moved to reopen the hearing to apply for such relief. The special inquiry officer denied the motion. On appeal, the Board of Immigration Appeals affirmed the order of deportation. Though no formal application for suspension of deportation under § 244(a)(5) had been filed, the Board considered whether such relief was merited but exercised its discretion against the remission.
Petitioner then brought this action for a writ of habeas corpus, challenging the validity of the deportation order on the grounds, inter alia: (1) that the hearing under § 242(b) of the Act failed to comply with the requirements of the Administrative Procedure Act in that the special inquiry officer was under the supervision and control of officials in the Immigration Service who performed investigative and prosecuting functions; (2) that § 242(b) violated the Due Process Clause of the Fifth Amendment because it failed to provide for a fair and impartial hearing; (3) that on the date of petitioner's arrest the Attorney General made a public statement, which 'was bound to have great effect upon the special inquiry officer,' to the effect that petitioner was an undesirable citizen for whose deportation the proceedings were 'specially designed,' and, further, that in 1952 the Attorney General 'prepared a list of 152 persons (including petitioner) whom he desired to deport'; and (4) that the retroactive application of § 241(a)(11) was unconstitutional as an ex post facto law.
The Government's return to the writ alleged that petitioner's deportation had been conducted in accordance with the Constitution, laws and regulations of the United States. No evidence was introduced by either side save the official Immigration Service record of petitioner's deportation proceedings. The District Court held the deportation order valid and discharged the writ. United States ex rel. Marcello v. Ahrens, 113 F.Supp. 22. The Court of Appeals affirmed. Marcello v. Ahrens, 5 Cir., 212 F.2d 830. Petitioner pursues his four basic objections in this Court, certiorari having been granted to resolve issues having a significant bearing on the administration of our immigration laws. 348 U.S. 805, 75 S.Ct. 39.
Applicability of the Administrative Procedure Act.