Waterman, Friendly and Smith, Circuit Judges. Friendly, Circuit Judge (dissenting).
This case arises upon a petition to review a final order of deportation by the Immigration and Naturalization Service holding the petitioner deportable under Section 241(a) (2) of the Immigration and Nationality Act of 1952. 8 U.S.C. § 1251(a) (2). We have jurisdiction to review this final order under Section 106(a) of the Act. Immigration and Nationality Act of 1952, § 106(a) as amended, 75 Stat. 651 (1961), 8 U.S.C. §§ 1105a(a). Foti v. I.N.S., 375 U.S. 217, 84 S. Ct. 306, 11 L. Ed. 2d 281 (1963).
The petitioner, an alien, was born in 1906 in Warsaw, Poland. In 1920 he came to the United States and was admitted for permanent residence along with his mother and three sisters. The petitioner contends that the Government has not shown that he has not remained continuously in the United States ever since. The Government, however, seeks to prove that the petitioner traveled to France in June of 1937 using a United States passport issued in the name of Samuel Levine and returned to the United States on or about December 20, 1938 using this same passport, in this manner avoiding the inspection given to all aliens upon arrival in the United States. The Immigration and Nationality Act of 1952 provides that an alien in the United States who entered "without inspection" shall be deported upon the order of the Attorney General. 8 U.S.C. § 1251(a) (2). As there is no time limit on the operation of this section it is possible for the Attorney General to deport aliens who have been residents for a long period but who last entered the country without inspection. For example, this section permitted the Government to proceed against the petitioner in 1963 alleging an entry without inspection almost twenty-five years earlier.*fn1 One might wish that the law had taken a different turning, but for better or worse Congress has determined that in order to implement the policy of alien inspection it is necessary to make an alien not properly inspected subject to deportation at any time. Therefore, if the Government's factual contentions are sustained the petitioner can be deported.
The Government "undertook to show affirmatively" that the petitioner had entered the United States in 1938 without inspection.*fn2 Once the Government chose to proceed in this manner, established rules of evidence instruct us that it assumed the burden of persuasion on this issue; that is, the Government assumed the burden of proving the existence of the facts which impose the legal consequences the Government sought to invoke. See McCormick, Evidence § 307 (1954). The Government did offer evidence tending to show entry without inspection in 1938, which evidence is precised in the margin.*fn3 The petitioner elected not to introduce any evidence and rested content after cross-examining the Government's chief witness in an attempt to weaken the probative force of his testimony.*fn4 At the statutorily required hearing the special inquiry officer found on this evidence that petitioner was deportable for having entered the United States without inspection. Petitioner sought administrative review by the Board of Immigration Appeals of this determination. The Board made its own independent determination of all the disputed factual issues, as is its practice,*fn5 and reached a conclusion identical to that reached by the special inquiry officer. From all that appears in the record neither the special inquiry officer nor the Board paid any heed to the degree of belief that they were required to reach before they could find for the Government, other than to assume tacitly that the Government was simply required to establish the facts on which it relied by a "preponderance of the evidence." It is the petitioner's contention that the Board's decision must be reversed because a higher degree of persuasion is required.
The essence of petitioner's claim is that even though deportation is not a criminal penalty it is a penalty to which serious consequences frequently attach and consequently the requirements of due process in deportation proceedings should be elaborated by analogy to the criminal law rather than to the law of economic regulation. In particular, petitioner contends that in his case the degree of belief which must exist before the Board of Immigration Appeals can conclude that the facts on which deportation depends are true should be defined as it is in criminal cases.*fn6 Petitioner does not argue that due process requires the fact finder to have a degree of belief "beyond a reasonable doubt" in all deportation proceedings. He does contend that in such proceedings there is a distinction between the due process due an alien who has resided in this country for a long period of time and that due an alien who only recently came to this country. In the former situation petitioner claims that deportation is tantamount to banishment and that considerations of fairness imbedded in the concept of due process requires that the Government prove its case beyond a reasonable doubt if it is to succeed.
Even a sympathetic reading of the Government's brief indicates that it largely misunderstands petitioner's argument. The Government invites us to examine the record of the administrative proceedings below and argues that the present deportation order must be sustained as it is based on "reasonable, substantial, and probative evidence." In support of this position the Government draws our attention to Section 242(b) (4), 8 U.S.C. § 1252(b) (4), and Section 106(a) (4), as amended, 75 Stat. 651 (1961), 8 U.S.C. § 1105a(a) (4), of the Immigration and Nationality Act of 1952. Section 242(b) (4) provides inter alia that "no decision of deportability shall be valid unless it is based upon reasonable, substantial, and probative evidence." And Section 106(a) (4) states that a deportation order, "if supported by reasonable, substantial, and probative evidence on the record considered as a whole, shall be conclusive."*fn7 Section 106(a) (4) is clearly a general description of the standard of judicial review that governs this and other federal appellate Courts in reviewing final orders of deportation under Section 106(a); that is, the question for the appellate court in reviewing an agency resolution of a disputed factual question is whether there was substantial evidence on the whole record to support the agency's finding. And, even though Section 242(b) appears in a section of the Act prescribing agency procedures, it is best understood as a restatement of the proper standard of judicial review and a reminder to the Board that final orders of deportation must be based on substantial evidence.*fn8 The Government apparently believes that these sections require a decision in its favor. In our opinion, neither section is relevant to a determination of the issue presently before this court.
The question raised by petitioner's claim concerns the degree of belief that must exist before the Board may conclude that an assertion of fact on which the Government has the burden of proof is true. Such a question is a question of law for a court to decide regardless of how reasonable the Board's resolution of the disputed factual issues in this case may have been. It might be argued, of course, that the Board resolved this question of law against the petitioner and this resolution should not be disturbed by this court on appeal. From the record, however, it is not clear that the Board did advert to the problem.*fn9 And even if we assume that the Board did rule against the petitioner on this question of law we are not thereby foreclosed from reconsidering the question. There is no indication in the Act that Congress intended the Board to decide what degree of persuasion was appropriate in the case of a long-time resident alien threatened with deportation.*fn10 Indeed, there is no indication in the Act that Congress adverted in any way to the problem of the degree of persuasion imposed upon the Government in deportation proceedings. The question raised by this petition concerns the degree of persuasion constitutionally required or otherwise appropriate in deportation proceedings involving long-time resident aliens, and this is a question especially meet for judicial determination.
It is open to us to hold against the petitioner since the Supreme Court has repeatedly stated that deportation proceedings are civil in nature,*fn11 and ordinarily in civil actions the party having the burden of proof need only prove the existence of facts on which he relies by a preponderance of the evidence. 9 Wigmore, Evidence § 2498 (3d ed. 1940). We do not believe, however, that we are required to conclude the present case in such a syllogistic fashion. As the Court insists that deportation proceedings are civil we are precluded from reclassifying them as criminal, and, having thus reversed the major premise, then holding the degree of belief required in such proceedings is that which is required in criminal prosecutions. We are not, however, precluded from considering whether the Government should bear a higher burden of persuasion when it attempts to deport a long-time resident alien regardless of whether the proceeding is civil or criminal in nature. Because the realm of evidence law is one in which courts are especially expert,*fn12 and because rules regulating the degree of persuasion are traditionally judge-made,*fn13 we believe that we may consider whether wisdom and justice require that the Government bear a higher burden of persuasion in the present case.
It seems clear that due process requires that there be some test by which the fact finder can ascertain whether a fact does or does not exist in every legal proceeding.*fn14 Perhaps due process also requires that in certain criminal proceedings threatening serious penalties the prosecution demonstrate that the facts on which guilt depends are almost certainly true; that is, that the jury must believe beyond a reasonable doubt that these facts exist before it can find for the prosecution. Having come this far it would not be a long step to conclude that this same higher degree of persuasion is constitutionally required in deportation proceedings involving aliens who have resided in the United States for a long period of time because in such a case forcible expulsion would be tantamount to banishment -- a penalty that surpasses in its enormity many imposed by the criminal law. We have nevertheless concluded that petitioner's constitutional claim should be rejected. Neither of the cases cited by petitioner convince us that the Court has announced the constitutional rule petitioner urges us to apply in the present case. Petitioner argues that in Rowoldt v. Perfetto, 355 U.S. 115, 78 S. Ct. 180, 2 L. Ed. 2d 140 (1957) and Gastelum-Quinones v. Kennedy, 374 U.S. 469, 83 S. Ct. 1819, 10 L. Ed. 2d 1013 (1963) the Court announced that due process requires the administrative agency to believe beyond a reasonable doubt that the facts on which deportation depended are true. Both Rowoldt and Gastelum-Quinones involved the threatened deportation of individuals alleged to be members of the Communist party within Section 241(a) (6) (C) of the Act. 8 U.S.C. § 1251(a) (6) (C). In both cases the Court reversed, holding the evidence of record did not demonstrate "meaningful" association. Although the issue is not free from doubt, we believe that in these cases the Court held that only individuals who "meaningfully" belonged to the Communist party could be deported under Section 241(a) (6) (C) and reversed because no evidence had been introduced establishing meaningful association -- an essential element in the Government's case. The Court did not say in those cases that due process required that the Government prove the facts on which deportation there depended -- meaningful membership -- beyond a reasonable doubt. Whether due process does so require is still an open question, which we feel we should avoid because we can hold for the petitioner on a nonconstitutional ground.
As we have previously noted, the rules regulating the degree of persuasion in legal proceedings are traditionally judge-made. Thus, as to certain issues, courts have been free to conclude that it is fair and just to require a litigant in a civil action to carry a somewhat heavier burden of persuasion than litigants are required to bear as to the issues in most civil actions. 9 Wigmore, Evidence § 2498 at 329 (3d ed. 1940). In some civil actions courts have even required that one party carry the burden usually borne by the prosecution in criminal proceedings. See, e.g., Admire v. Admire, 180 Misc. 68, 42 N.Y.S.2d 755 (Sup.Ct.1943) (necessary to prove nonaccess beyond reasonable doubt in overcoming presumption of legitimacy). We have concluded that the present case exemplifies a type of proceeding in which courts should require the Government to carry such a heavy burden. The petitioner entered the United States in 1920. The Government now seeks to deport him alleging that the petitioner left the country in 1937 and reentered without inspection in 1938. If the Government prevails, petitioner will be forcibly expelled from this country and returned to Poland, which is in no meaningful sense his country now. We do not say that the Government should not be able to proceed against petitioner after so long a time. We do hold that the Government is required to establish that it is almost certainly true that petitioner entered the United States without inspection in 1938; in other words, the Government must prove beyond a reasonable doubt the facts upon which deportation depends.
We wish to stress that we do not hold this higher burden is imposed on the Government in all deportation cases. It is for the Board of Immigration Appeals to decide in the first instance when the rule we announce today relating to proceedings involving long-time resident aliens applies, and we wish to stress that the rule will not expand the scope of judicial review of agency determinations. The purpose of the rule is to impress upon the agency the grave nature of the task it performs. Although repeated attempts to redefine the term "beyond a reasonable doubt" may simply "aid the purposes of the tactician,"*fn15 we are confident that the imposition of this requirement will have the salutary effect of causing the Board to proceed carefully in extreme cases such as the case now before this court. All we can require is that the special inquiry officer and the Board conscientiously ask whether the facts on which the deportation of a long-term resident alien depends are almost certainly true. If these administrators do so proceed the scope of review will remain limited to an inquiry whether the final order of deportation is supported by reasonable, substantial, and probative evidence on the record considered as a whole.
Petitioner contends that we should go on to weigh the evidence against this higher standard and urges that in this light the evidence is insufficient to support a final order of deportation. We cannot agree. The requirement we have announced today is directed at the finder of facts, not the appellate court. Our only course is to dissolve the final ...