1299
♦[363 US 405]
♦DIAMOND KIMM, Petitioner,
GEORGE K. ROSENBERG, District Director, Immigration
and Naturalization Service
363 US 405, 4 L ed 2d 1299, 80 S Ct 1139
[No. 139]
Argued May 16 and 17, 1960.    Decided June 13, 1960.
SUMMARY
At a hearing conducted in connection with an alien's application for
suspension of deportation, under § 19(c) of the Immigration Act of 1917,
as amended, the alien refused, on the ground of possible self incrimination,
to answer questions regarding his Communist Party membership. The
hearing officer denied the suspension, and the Board of Immigration Appeals
affirmed, as did the United States Court of Appeals of the Ninth Circuit.
(263 F2d 773.)
On certiorari, the judgment of the Court of Appeals was affirmed. In
a per curiam opinion, reflecting the views of five members of the court
it was held, first, that Communist Party membership is an absolute disqualification for suspension of deportation under § 19(c) ; second, that in
a proceeding looking toward such a suspension, the alien has the burden
of proof of nonmembership in the Communist Party; and, third, that
the alien involved in the instant case was not relieved of his burden of
proof by his refusal to answer, regardless of whether or not the refusal
was justified.
Douglas, J., joined by Warren, Ch. J. and Black, J., dissented, viewing
the majority's ruling as making invocation of a constitutional right ground
for deportation of an alien otherwise eligible for suspension of deportation.
Brennan, J., joined by Warren, Ch. J. and Douglas, J., also dissented,
asserting that the statutory provisions regarding suspension of deportation
should not be construed to permit an alien's invocation of his constitutional
privilege against self-incrimination to be equated with a demonstration of
his deportability as to the matters on which he invoked the privilege.
HEADNOTES
Classified to U. S. Supreme Court Digest, Annotated
Aliens § 36 — deportation — suspen- 1917, as amended, in view of the facts,
sion — Communists. first,  that  § 19(c)   is  expressly   inap-
1. An alien's Communist Party mem- plicable  to  an   alien   "to   whom   sub-
bership is an absolute disqualification section (d) of this section is applica-
for  suspension  of  deportation   under ble;"   second,   that   § 19(d)    specifies
§ 19(c)   of   the   Immigration   Act   of that § 19(c)  shall not apply to aliens