A-4284259
Decisions by Board April 12, August 30, and November 22, 1955 Commissioner's Motions May 25, and September 15, 1955 Decided by Attorney General June 6, 1956
Board of Immigration Appeals — Power to determine facts (8 CFR 6) — Passport requirements, nonimmigrant seamen prior to December 24, 1952 (former 8 CFR 120.21, 177.52) — Involuntary return of excluded seaman as "arrival" in United States.
(1) The regulations, 8 CFR 6, which vest the Board of Immigration Appeals with "such discretion and authority conferred upon the Attorney General by law as is appropriate and necessary for the disposition" of cases, contemplate that the Board shall have the power to determine factual issues and be subject to such limitations as the Attorney General may from time to time impose.
(2) Where a nonimmigrant alien seaman presented a valid, unexpired passport on August 28, 1950, the date of his arrival and application for admission to the United States, but final decision on his application was delayed by court proceedings until 1955, he is not excludable under former 8 CFR 120.21 and 177.52 for failure to present a valid, unexpired passport.
(3) Where an alien crewman with actual residence in the United States was ordered detained on board upon arrival on August 28, 1950, and removed from the United States but subsequently returned by the same vessel on September 18, 1950, because of inability to discharge him at a foreign port, the determination of the alien's eligibility for admission must be based on the facts as they existed on August 28, 1950, since his return was involuntary and did not constitute an arrival in the United States for immigration purposes. Thus, such alien was not subject to the requirement that his name be included in the visaed crew list for the voyage subsequent to August 28, 1950.
EXCLUDED:
Act of May 22, 1918, and former 8 CFR 175.53 — Alien whose entry would be prejudicial — Alien who was affiliated with Communist Party of the United States.
Executive Order 8766 — No Passport.
Act of 1924 — Inadmissible as a seaman.
BEFORE THE BOARD
(April 12, 1955)
Discussion: Following the appellant's exclusion without a hearing in accordance with former 8 CFR 175.53, the exclusion was made permanent in December 1950. In habeas corpus proceedings, the Court of Appeals remanded the case to the district court to determine whether the status of the appellant was to be assimilated to that of a resident alien entitled to a hearing in accordance with the views expressed in Kwong Hai Chew v. Colding, 344 U.S. 590 (1953). Subsequently, the district court held that he was to be assimilated to the status of a resident alien. A hearing has been held and the special inquiry officer on November 30, 1954, ordered the appellant's exclusion on the grounds stated above. The case is now before us on appeal from that decision.
United States ex rel. Bojarchuk v. Shaughnessy, 206 F. (2d) 238 (C.A. 2, 1953).
The appellant is a 42-year-old male, native of Poland, who seeks temporary admission to the United States as a seaman for shore-leave purposes. From 1939 until August 28, 1950, he was employed on vessels of the United Fruit Company and sailed out of United States ports. He states that he always complied with the conditions of his status as a seaman. He has never been lawfully admitted to the United States for permanent residence but asserts that he has maintained a domicile in New York City since about 1936. Commencing with an arrival on or about April 14, 1949, and continuing during approximately 33 subsequent arrivals, he was detained on board his vessel at United States ports and was denied shore leave.
On August 28, 1950, the appellant arrived at the port of New York as a member of the crew of the SS. Talamanca and, as had occurred since April 14, 1949, he was ordered detained on board the vessel. At that time he was on the visaed crew list. On the following day the United States Coast Guard notified the master of the vessel that it considered the appellant a poor security risk and recommended that he be not signed as a member of the crew. In effect, the latter order required that the appellant be removed from the ship but this could not be done since the Service would not rescind its order to detain him on board. The master recorded in the log of the vessel that it sailed on September 1, 1950, carrying B----, not as a crew member, but on board by reason of the order of the Service on Form I-259 to detain and deport; that B---- was ordered to remain on the boat deck and in his quarters; that he will not be allowed in the operational parts of the vessel; and that he "will be under surveillance at all times when on board." The appellant was still on board when the SS. Talamanca again arrived at the port of New York on September 18, 1950, at which time he was removed to Ellis Island under the temporary exclusion order previously mentioned.
In determining that the appellant was inadmissible as a seaman under the Act of May 26, 1924, the special inquiry officer concluded that his application for admission must be decided on the basis of his arrival on September 18, 1950. Counsel contend, however, that he was actually a prisoner on the last voyage and that the determination must be made on the preceding arrival of August 28, 1950. It is clear that the SS. Talamanca had arrived from foreign ports on September 18, 1950. The appellant testified that the captain of his vessel told him not to go ashore in Cuba or in Guatemala because the immigration officers of those countries had issued orders to that effect.
The special inquiry officer apparently attached some significance to the fact that the appellant had previously been permitted shore leave in Cuba and Guatemala, but the appellant's situation in September 1950 was, of course, different because he was then no longer a member of the crew. In any event, we do not agree with the special inquiry officer that there is insufficient evidence that he was denied permission to land in Cuba or Guatemala, particularly since the appellant could hardly be expected to violate the orders of the captain of his vessel that he remain on the ship. During the voyage of September 1950, the appellant was confined to a certain portion of the vessel and was to be kept under surveillance. Under these circumstances, we believe that his presence on the ship cannot be considered voluntary and that the facts are so closely analogous to Delgadillo v. Carmichael, 332 U.S. 388 (1947), as to make that decision controlling in the instant case. Accordingly, the appellant's arrival on September 18, 1950, did not constitute an entry and the case must be decided on the basis of his arrival on August 28, 1950. At that time his name appeared on the visaed crew list and it follows that he was not inadmissible because of the lack of a visa.
With respect to the ground of excludability predicated on the failure to present a passport, the facts are as follows. When the appellant arrived on August 28, 1950, he presented the document which is exhibit 5 of this record. He testified that this is a Polish passport and that it was issued to him by the Polish Consul in New York City in 1945. Exhibit 5 contains notations indicating that it was issued by the Polish Consul General in New York City in 1945, valid to October 15, 1948, and that it was extended by the Polish Consul at Havana, Cuba, to be valid until August 3, 1951. Following the appellant's arrival on September 18, 1950, the passport was retained by the Service until March 1951 when an attempt was made to deport the appellant to Poland. At some time thereafter the passport was stamped with a Polish word meaning "void," apparently by some official of that government. There was admitted in evidence what purports to be a letter from the Vice-Consul of Poland dated February 27, 1951, stating that B---- was born in a locality which became part of Russia under the Polish — U.S.S.R. Treaty of 1945; that B---- "is no longer considered as a Polish citizen"; and that his "passport Ser. III Nr. 5393 is no longer of value and according to the decision of our Home Authorities will be sent back to Poland."
The special inquiry officer held that exhibit 5 was a nullity because there was no authentication of this document other than the appellant's claim that it was a Polish passport. He did conclude that the appellant was a Polish national based on his testimony which was not contradicted. Counsel urge that the passport is a document under seal and should be presumed to be genuine. However, we need not rest our decision on such technical legal considerations. We have examined the document which gives every appearance of being a genuine Polish passport. It contains the seal impressions of the Polish Consul General in New York City and of the Polish legation at Havana and Polish consular fee stamps. It appears to have been accepted without question by the inspecting officers of the Service on each of the appellant's many arrivals in the United States between 1945 and 1950. While counsel objected to the admission of exhibit 6 and while the special inquiry officer stated that he would give no weight to that document, we believe that the statement therein, quoted above, that the passport is no longer of value indicates that the Polish consul recognized exhibit 5 as being originally a valid passport. We find, therefore, that the document which the appellant presented on August 28, 1950, met the passport requirement of Executive Order No. 8766.
The special inquiry officer was also of the opinion that the alien's application for admission must be considered a continuing one although no authority for that proposition is cited. He then concluded that, even if the passport were considered to have been originally valid, the appellant cannot now be admitted on the basis thereof since counsel does not contend that the passport was valid beyond its last expiration date, namely, August 3, 1951. We hold that the application for admission must be determined on the basis of the facts as they existed on August 28, 1950. Since we have held that the appellant presented a passport which was valid at that time, we conclude that he is not inadmissible on that ground.
The remaining ground on which the appellant was found excludable is that his entry would be prejudicial to the interests of the United States. This was based on the Act of May 22, 1918, as amended, Presidential Proclamation No. 2523 of November 14, 1941, as amended, and former 8 CFR 175.53. In support of this ground of excludability, the Government presented J---- H---- B---- and R---- J---- S---- as witnesses.
B---- was a member of the waterfront section of the Communist Party at New Orleans from about 1938 to 1944. He testified that he first met the appellant and the appellant's friend (the latter's name he does not recall) during the summer of 1944 when a man, whose nickname was "P----," introduced the witness to the appellant and the latter's friend. B---- testified that "P----," when introducing the appellant and his friend to the witness, stated that they were "two of our boys," and that the appellant identified himself as a member of the Party by returning the clenched fist salute which the witness had given. He admitted that he interpreted "P----'s" statement concerning "a couple of our boys" as meaning two members of the Communist Party but that "he could have meant a couple of anything."
Witness B---- testified that, as a patrolman in the National Maritime Union and as a member of the Communist Party, it was his duty to take seamen who were Party members to Communist Party headquarters in that city; that on the occasion of his first meeting with the appellant, "P----" stated that the appellant, and his friend wanted to go to Communist Party headquarters; that he escorted them to Party headquarters and introduced them to a girl named H----, who was secretary to the District Organizer of the Communist Party; and that he informed her that they were "two comrades" who wanted to pay dues, make a donation, and secure some literature. He testified that he saw the appellant give this girl some money but did not see how much. While the appellant was talking to this girl, the witness gathered up some literature for him and then they left the Communist Party headquarters. B---- testified that he saw the appellant again approximately 2 months after the first meeting at which time they again went to Communist Party headquarters and the appellant gave some money to H---- and obtained additional literature. B---- does not recall whether he saw the appellant on any subsequent occasion.
After the cross-examination of witness B---- had been concluded, the special inquiry officer questioned him as to what caused him to remember the appellant whom he had seen on only 2 occasions approximately 11 years prior thereto, and the witness stated that it was because he had heard "that Mr. B---- (the appellant) made a large contribution to the Party, and when word reached me, well, naturally I was going to take him up there again if he wanted to go." He stated that he heard that the contribution was $100 and that he learned of it a couple weeks after he first escorted the appellant to Communist Party headquarters and prior to their second visit to that office which occurred about 2 months after the first visit. He also stated that he did not discuss the contribution with the appellant when he saw him the second time.
It appears that witness B---- had a quota to meet in obtaining contributions for the Communist Party and that he was credited on such quota with contributions made by those he had escorted to Communist Party headquarters. We consider it unusual that the witness would have said nothing to the appellant about the $100 contribution, in the way of appreciation, at their second meeting. In addition, although B---- was questioned extensively as to why it was necessary to escort the appellant to Party headquarters on the second occasion and although he stated that the appellant wanted him (the witness) to go along, he made no mention of the appellant's $100 contribution at that time or the fact that because of this large contribution and in order to obtain credit on his quota he had previously resolved that he would take the appellant to Party headquarters again if possible. As a matter of fact, no mention whatever was made of the $100 contribution during the direct examination or the entire cross-examination. We note that B---- was asked how much money the appellant had given H---- on the occasion of the first meeting and he answered, "I wouldn't know how much she got. I didn't ask her." It seems to us that it would have been logical for the witness to have stated then that he later heard that on that occasion the appellant had contributed $100 if, as we understand it, that amount was alleged to have been contributed on the first visit.
The record does not show who informed witness B---- concerning the $100 contribution and it may have been only a rumor with no factual basis. The witness was not too clear as to the pronunciation of the appellant's name, stating that it was similar to B---- and there is nothing in the record to indicate that the witness had any means of associating the contribution with the appellant except by his last name. Hence, we also do not exclude the possibility of the contribution having been made by a different person of a similar name.
Witness S---- was a member of the Communist Party of the United States from 1936 until about 1946. He testified that he had seen the appellant a total of 8 or 10 times on the street or in the National Maritime Union Hall but, other than the 3 occasions mentioned hereafter, he apparently did not converse with the appellant except possibly to say "hello." He stated that, to the best of his recollection, he first met the appellant at the office of the Communist Party in New Orleans during 1944 or 1945, at which time he was introduced to him; that he does not remember whether he ever saw him at that office again; and that on one occasion the appellant came to his office, while the witness held the position of Agent of the Union, at which time certain specific union matters were discussed and there was also a conversation concerning the success of the Communist Party in organizing the waterfront, etc. He was extremely vague concerning the same conversation when he was being cross-examined. When the special inquiry officer asked him to state what he could remember of the substance of the conversation, S---- replied, "As I recall, he came up in my office. I had two or three other people in the anteoffice outside. What he came up originally for, I don't know. It was probably — I mean, what brought him up their originally. In the back of my mind I have a recollection that he came up on a union problem. During the time he was there our conversation veered to various Party matters, as to: `How is this going'; `How are things going' — I just can't recall what exactly was said — `How are things'; `How are you making out'; `How are things making out' — general conversation about things we were interested in and, as I recall it, there was also — he had another angle, something about —."
S----'s third conversation with the appellant occurred during a chance meeting on the street about 5:30 p.m. At that time the witness observed that the appellant was in the company of the man nicknamed "P----" and the appellant told the witness that he had just left the "old man"; that the Party was in great need of money; and that he had just made a donation of $100. Although S---- stated that it was this $100 contribution which "stands out most in my mind" concerning his contacts with the appellant and although he stated that about 1948 or 1949 on the first or second occasion when he was interviewed by a Service officer he mentioned the 5:30 p.m. meeting, he does not remember whether that matter was incorporated into the written statement which the witness made at that time. The special inquiry officer refused counsel's request for the production of the original statement made by the witness.
According to the witness, the appellant in using the phrase "old man" was referring to M---- L----, District Organizer of the Communist Party in Louisiana.
When S---- was asked on direct examination why he had discussed Communist Party matters with the appellant at the time of the second conversation (presumably for the purpose of ascertaining the basis for his belief that the appellant was a member of the Party), he answered, "It is my impression that the introduction — I had seen him previously in the Party headquarters — it was then established in my mind, and I am quite certain in his, inasmuch as I had confidence in him to converse and he had confidence in me; therefore there was a tacit and mutual understanding that we were both persons of the same affiliation and convictions." He did not claim, either on direct examination or on cross-examination, that the person who made the introduction had stated that the appellant was a member of the Communist Party. On the contrary, it appears that the appellant's name and the vessel on which he was employed were stated and the entire conversation consisted of "Just casual remarks: the niceties of short conversation." He also stated that he does not know who introduced them. We think it is clear from S----'s testimony that persons who were not members of the Communist Party might be present at the office of the organization and the appellant's asserted presence there is not proof of membership in the organization.
The appellant testified that he was never a member of the Communist Party; that he never visited its headquarters in New Orleans; and that he never made a $100 contribution nor any other contribution to the Communist Party. In the presence of witness B----, the appellant denied that he had ever talked to him or that he had ever seen him before. The appellant testified that on one occasion witness S----, in his capacity of Agent for the Union, had been on board a vessel on which the appellant was employed and that he had also seen S---- in the Union Hall in New Orleans but that he, the appellant, had never talked to S----.
It is evident that both B---- and S---- assumed that the appellant was a member of the Communist Party. However, there was no specific basis for the assumption. The special inquiry officer made no finding of fact which would support a conclusion that the appellant was a member of the Communist Party. From our review of the case, we find that such membership has not been established by the evidence of record.
To support his conclusion that the appellant was affiliated with the Communist Party, the special inquiry officer made only one finding of fact, namely, that numbered 10, which is as follows: "That it has been established that the applicant prior to 1950 did donate to the Communist Party of the United States in the City of New Orleans, Louisiana, a sum of $100 in cash." The special inquiry officer stated that he had not reached his finding concerning the $100 donation on the testimony of B----, but solely on the testimony of S----. Nevertheless, we believe that certain inconsistencies between their two accounts must be considered in weighing the evidence.
According to B----, he heard of the $100 contribution prior to the second time he took the appellant to Communist Party headquarters and decided he would escort the appellant the next time he wanted to go. Thus B---- apparently says that the $100 was paid on the first occasion when he took the appellant there. He testified that the appellant talked to H----, who was M---- L----'s secretary, and it seems apparent from B----'s testimony that L---- was not present. B---- said that following this first visit they returned to the tavern where he had been introduced to the appellant. The man nicknamed "P----" did not go with them to Communist Party headquarters.
According to S----, the appellant told him of the $100 contribution when the appellant was returning from Communist Party headquarters immediately after having made the donation. He does not mention B---- as being with the appellant but says only that "P----" was with the appellant. S---- also stated that the appellant said that he had just left M---- L----. B---- indicated that he took the appellant to Communist Party headquarters the first time because the appellant did not know where it was located. S---- says the appellant was at Communist Party headquarters when he first met him and that it was on the occasion of his third conversation with the appellant that he stated that he had just come from Communist Party headquarters after making the $100 donation.
After careful review of the testimony of the two witnesses, it is our considered opinion that their testimony is not sufficiently convincing to warrant a finding that the appellant made a contribution of $100 to the Communist Party or that he was affiliated with the Party. Since the only basis in the record for holding that the appellant's entry would be prejudicial to the interests of the United States under former 8 CFR 175.53 is his alleged affiliation with the Communist Party and since we have concluded that the evidence is insufficient to sustain a conclusion of affiliation, it follows that, when the appellant applied for admission on August 28, 1950, he was not inadmissible under the provisions of the Act of May 22, 1918, and Presidential Proclamation No. 2523 of November 14, 1941, as amended. Inasmuch as our decision is favorable to the appellant, we need not discuss counsel's contention that this should be considered a deportation proceeding rather than an exclusion proceeding except to say that we adhere to the views previously stated in Matter of K---- H---- C----, A-6665545, 5 IN Dec. 312 (decided June 30, 1953).
The appellant testified that he is applying for admission as a seaman with the intention of departing as such within 29 days; that he prefers to continue his employment on American ships; and that if unable to find such employment within 29 days, he will accept employment on a foreign vessel. For the reasons indicated above, we will sustain the appeal and authorize the appellant's temporary admission as a seaman.
Order: It is ordered that the appeal be sustained and that the alien's admission be authorized for a period of 29 days from the date of notification of this decision under such conditions, including the filing of bond, as the officer in charge of the port may direct.
(May 25, 1955)
Discussion: The special inquiry officer ordered the appellant excluded from the United States on the grounds set forth above. An appeal was taken to the Board of Immigration Appeals which sustained the appeal and ordered the appellant admitted as a seaman for a period of 29 days. The issue raised by this motion is whether the Board was correct in its holding that the evidence was insufficient to sustain a finding that the appellant had been affiliated with the Communist Party of the United States prior to his application for admission and that the passport charge was not sustained.
In an exclusion proceeding the burden of proof is upon the appellant to establish admissibility to the United States (section 291, Immigration and Nationality Act; Matter of M----, 3 IN Dec. 777, 781 (1949); Matter of H---- H---- and H---- M----, 3 IN Dec. 680, 688 (1950)). The appellant has not sustained this burden.
To support the charge the Government introduced two witnesses. The first witness was J---- H---- B----, a member of the Communist Party of the United States from 1938 to 1944. This witness testified that appellant identified himself to be a member of the Communist Party; that appellant asked to be taken to Communist Party headquarters, since he wished to discuss dues; and that the appellant gave to the secretary of the District Organizer a sum of money, although he was not aware of the amount. This witness apparently had an extensive conversation with the appellant and as a result of this conversation knew that the appellant wished to pay dues to the Communist Party, make a donation, and get literature to take back on board ship, and he saw the money paid. The fact that he cannot give a more specific account of the exact words used more than 10 years ago certainly does not make his testimony incredible. Whatever the words used, it is apparent that appellant conveyed to the witness the information that he intended to further the aims and objectives of the Communist Party by giving them money and using the literature of the Communist Party on board the ship.
The second witness was R---- J---- S----, who had been a member of the Communist Party from 1936 until the latter part of 1946 or the early part of 1947. He testified that he first met the appellant in 1944 at the headquarters of the Communist Party; that he saw him several times thereafter; that they discussed the success of the Communist Party in organizing the waterfront and other activities of the Party; that appellant admitted making a contribution of $100 to the Communist Party of the United States.
The tenor of the conversation was clearly to the effect that the appellant supported the Communist Party of the United States and apparently was active in advancing its doctrines among the maritime workers. Both witnesses testified that the appellant had been a member of the Communist Party.
The mere fact that the witnesses did not recall each and every detail of the conversations or that there were minor inconsistencies in their testimony does not justify the rejection of their entire testimony. The conclusion of the special inquiry officer who observed the witnesses and was in the best position to judge their credibility should be given great weight ( Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474 (1951)). Considering that the burden is upon the appellant to prove admissibility and not upon the Government to establish excludability, the evidence in this case is certainly sufficient to establish affiliation with the Communist Party of the United States and the decision of the special inquiry officer excluding the alien should be affirmed.
Furthermore, the appellant did not present a valid passport as required by law. By section 101 (a) (30) of the Immigration and Nationality Act a passport is defined as follows: "The term `passport' means any travel document issued by competent authority showing the bearer's origin, identity, and nationality if any, which is valid for the entry of the bearer into a foreign country." This definition is supplemented by section 1.1 (b) (9) (ii) of Title 8 of the Code of Federal Regulations, with respect to the passport required to be submitted by a nonimmigrant, as follows:
(9) The term "passport" —
(i) Not pertinent.
(ii) When used with reference to the documentation of a nonimmigrant alien, means a document defined in section 101 (a) (30) of the Immigration and Nationality Act, which document is valid for a minimum period of 6 months from the date of the expiration of the initial period of the bearer's admission or contemplated initial period of stay authorizing the bearer to return to the country from which he came or to proceed to and enter some other country during such period, except that in the case of a nonimmigrant who is applying for admission as a member of any of the classes described in section 102 of the Immigration and Nationality Act, the period of such validity shall not be required to extend beyond the date of the application of such nonimmigrant for admission to the United States if he is admitted in that status.
Manifestly, the purpose of the statute and the regulations is to require that a nonimmigrant be in possession of a document which will insure his entry into a foreign country in the event that he is excluded from the United States. Although these are the definitions contained in the Immigration and Nationality Act and the regulations issued pursuant thereto, they are indicative of the primary function of the passport. In order to safeguard the interests of the United States and to serve the function for which it was intended, a valid passport must be presented before the alien is admitted to this country as well as when he applies for admission.
The cases holding that an alien may be admitted with an expired visa if the visa was valid at the time of application for admission are readily distinguishable. This Government is responsible both for the issuance of the visa and the inspection at the border, and the alien should not be penalized for any delay in inspection if he is found otherwise admissible. Furthermore, the interests of this country are in no way prejudiced if the alien is permitted to enter. However, the Government is definitely prejudiced by the entry as a nonimmigrant of an alien who presents no valid passport.
The statute requires that the passport be issued by competent authority and that it be valid for the entry of the bearer into a foreign country. The regulations now require with respect to a nonimmigrant that the passport be valid for a minimum period of 6 months from the date of the expiration of the initial period of the bearer's admission or contemplated initial period of stay in the United States. And even prior to December 24, 1952, Executive Order No. 8766, dated June 3, 1941, required that a nonimmigrant be in possession of a passport valid for at least 60 days beyond the period for which such nonimmigrant might be admitted. These prerequisites have not been met by the appellant in this case.
The passport which was presented by the appellant at the time of his application for admission has been introduced into the record as exhibit 5. This passport was issued to the appellant by the Polish Consul in New York City in 1945. It was allegedly extended by the Legation of Poland in Havana, Cuba, during 1948 to a period in 1951. However, exhibit 6 introduced into the record is a letter from the Vice-Consul of Poland setting forth that by reason of the Polish — U.S.S.R. Treaty of 1945 the appellant is no longer considered as a Polish citizen. It is obvious, therefore; that the appellant was not considered a Polish citizen at the time that he applied for admission in 1950 and, consequently, his passport was not valid for entry into a foreign country at that time. The letter further sets forth that the Legation of Poland in Havana, Cuba, is not recognized by the Polish Government and presumably had no authority to extend the validity of the passport beyond its original expiration date in 1948. In view of the foregoing, it must be concluded that the appellant was not recognized as a citizen of Poland by the Polish Government at the time of his application for admission to the United States in 1950 and that the document which he then presented was not valid for entry into a foreign country.
In any event, the appellant cannot comply with the provisions of the regulations which require that he present a passport valid for a minimum period of 60 days from the date of the expiration of his initial period of admission into the United States. The decision of the Board authorizing his admission for a period of 29 days becomes effective when the decision is served upon him and the period of his stay in the United States commences at that time. However, in 1951 the Polish authorities voided the passport and stated in no uncertain terms that it would not be recognized as a document for his return to Poland. He is not regarded as a Polish citizen and the document is not regarded as a valid document for his return to Poland. Since the appellant cannot now present a passport valid for at least 60 days beyond the period of admission, his exclusion on the passport charge must be sustained.
Motion is hereby made that the Board of Immigration Appeals reconsider and withdraw its order sustaining the appeal and enter an order affirming the decision of the special inquiry officer ordering the appellant excluded from admission to the United States.
(August 30, 1955)
Discussion: This case is before us on the Commissioner's motion for reconsideration dated May 25, 1955.
The facts in this case were fully set forth in our previous order. On November 30, 1954, the special inquiry officer ordered the appellant's exclusion on the three grounds indicated above. He also concluded that the application for admission must be decided on the basis of the appellant's arrival on September 18, 1950, when he was no longer a member of the crew of the vessel. With respect to this matter, we held that no entry was made then and that the case must be determined on the basis of the previous arrival of August 28, 1950, at which time the appellant's name appeared on the visaed crew list. Hence, we concluded that the third ground of inadmissibility mentioned above was not sustained. The motion does not comment on this ground and we must assume that the Service concedes that the appellant's arrival on September 18, 1950, is to be disregarded and that he is not inadmissible as a seaman except insofar as concerns the contention of the Service representative at the oral argument that the appellant would be inadmissible as a seaman if we find him excludable on the passport charge. In our order of April 12, 1955, we stated in full our reasons for holding that the appellant was also not excludable on the other two grounds mentioned above and we sustained the appeal and authorized his temporary admission for 29 days.
The Service motion questions the correctness of our decision as to the first and second grounds of inadmissibility stated above. The first ground is that the appellant is an alien whose entry would be prejudicial to the interests of the United States because he was affiliated with the Communist Party. The service contends that the conclusion of the special inquiry officer, who observed the witnesses and was in the best position to judge their credibility, should be given great weight, citing Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474 (1951), and United States ex rel. Brzovich v. Holton, 222 F. (2d) 840 (C.A. 7, 1955).
We do not consider that Universal Camera Corp. v. National Labor Relations Board, supra, is authority for the proposition urged by the Service. There that Board had made its own findings after rejecting the findings of its trial examiner. The Supreme Court merely held that, in determining whether there was substantial evidence to support the findings of the National Labor Relations Board, the record as a whole should have been considered including the contrary findings of the examiner, and that the latter's findings should not have been completely disregarded by the Court of Appeals. The decision in United States ex rel. Brzovich v. Holton, supra, was predicated on the proposition that, even if this Board had authority to overrule the findings of the examiner, the evidence in that case did not, as a matter of law, meet the standard of reasonable, substantial, and probative evidence. In addition, that decision was based upon specific provisions of the Immigration and Nationality Act which are not applicable here since the appellant's case must be determined under prior statuatory provisions.
A similar question arose recently in Federal Communications Commission v. Allentown Broadcasting Co., 349 U.S. 358, 364 (1955). The Court of Appeals was of the opinion that the examiner's findings based on demeanor of a witness were not to be overruled by a board without a "very substantial preponderance in the testimony as recorded." The Supreme Court held that this was incorrect and that an agency's reversal of its examiner's findings was not limited to cases where the latter's findings were "clearly erroneous." The Supreme Court has frequently referred to the conclusiveness of, and the necessity for, findings of fact by the departmental head in immigration cases and we think it is no longer open to question that this Board has authority to decide questions of fact as well as questions of law.
Zakonaite v. Wolf, 226 U.S. 272, 274-275 (1912); Mahler v. Eby, 264 U.S. 32, 46 (1924); United States ex rel, Tisi v. Tod, 264 U.S. 131, 133 (1924); Kessler v. Strecker, 307 U.S. 22, 30, 34 (1939).
In our previous order we referred to the fact that the special inquiry officer made only one finding of fact to support the prejudicial entry charge and this finding was to the effect that "prior to 1950" the appellant donated $100 to the Communist Party. The special inquiry officer also stated that he had not made this finding on the testimony of witness B----, but solely on the testimony of witness S----. Apparently witness S---- claims that the $100 was donated about 1944 or 1945 and his testimony as to how he learned of the matter is that, during a chance meeting with the appellant on the street, the latter stated that he had made a $100 donation to the Communist Party. Hence, this one item of testimony on the part of one witness is actually the sole basis for the special inquiry officer's finding of fact and necessarily also for his conclusion that the appellant is inadmissible on the prejudicial entry charge. For that reason, we disagree with the assertions in the Service motion to the effect that affiliation was proved by two Government witnesses. The record also does not support the statement in the motion that both witnesses testified that the appellant had been a member of the Communist Party, and the special inquiry officer made no such finding.
The Service, in its motion, argues that the mere fact that the witnesses did not recall each and every detail of the conversations or that there were minor inconsistencies in their testimony does not justify the rejection of their entire testimony. Since no claim has been advanced by the Government that there were ever any occasions when both witnesses and the appellant were together at the same time, the witnesses neither corroborate each other nor contradict each other with the exception of their conflicting testimony concerning the alleged $100 donation. This conflict of testimony was fully discussed in our previous order. Although the prejudicial entry charge appears to hinge entirely upon the one finding of fact referred to above, we carefully analyzed the testimony of both witnesses in our previous order. Upon reconsideration of the matter, we believe that our former appraisal of the testimony was correct and we adhere to our conclusion that the prejudicial entry charge is not sustained.
The remaining question is whether the appellant is excludable on the "no passport" charge. When the appellant applied for admission to the United on August 28, 1950, he presented a document which is entitled "Paszport Rzeczpospolita Polska" (Passport of the Republic of Poland). At the hearing, the appellant claimed Polish nationality and the special inquiry officer found him to be a national of that country. The appellant also testified that exhibit 5 is a Polish passport issued to him in 1945 and extended in 1948 to be valid until August 3, 1951. In September 1950 the passport was retained by the Service and an attempt was made to deport the appellant to Poland in March 1951. Later the passport was stamped with a Polish word meaning "void," a matter which will be more fully discussed hereinafter. If we consider exhibit 5 as it actually existed at the time of the appellant's application for admission in 1950, that is, before it had been stamped "void," we find that it bore every indication of being a genuine Polish passport. It contained the seal impressions of the Polish Consul General in New York City and of the Polish legation at Havana and Polish consular fee stamps. It appears to have been accepted without question by the inspecting officers of the Service on each of the appellant's many arrivals in the United States between 1945 and 1950.
With respect to the contention of the Service that the appellant's passport was not valid in 1950, reliance is placed in its motion on exhibit 6 which consists of two letters purportedly from the Vice-Consul of Poland dated February 27, 1951, and May 8, 1951. On the first letter there appears to be original typewriting but it contains the word "copy" in the upper right hand corner. The second letter is a carbon copy. One contains a signature which is unknown to us and the other is initialed. Neither contains a letterhead nor other matter which would establish its authenticity. Counsel objected to their admission and we think the objections were well taken. The special inquiry officer indicated that he would give no weight to exhibit 6. Under the circumstances, we do not believe that the Service is in a position to rely on this exhibit.
Although we doubt the probative value of exhibit 6, we will briefly discuss the Service contention concerning it which is that the letter of February 27, 1951, shows that the appellant was not considered a Polish citizen when he applied for admission in 1950. However, that letter does not show when the appellant is supposed to have lost his Polish citizenship and the statements therein which are to the effect that he "is no longer considered as a Polish citizen" and that his passport "is no longer of value" indicate that he was formerly a Polish citizen and that his passport was originally valid. In addition, the Polish Vice-Consul's letter of May 8, 1951, speaks of a new law on Polish citizenship effective January 8, 1951, under which persons who remained outside of Poland for a protracted length of time and who fall within certain categories lose their Polish citizenship. Hence, even exhibit 6 is not a basis for saying that the appellant was not a Polish citizen when he applied for admission to the United States in 1950 since the vice-consul's letter of February 27, 1951, may mean merely that the appellant lost his Polish citizenship on January 8, 1951, under the act of that date.
The Service also urges that a nonimmigrant requires a passport which is currently valid in order to insure his departure from this country at the expiration of his temporary stay, and that the appellant's passport was invalidated by the Polish authorities. Presumably the latter statement is correct. Nevertheless, the record is lacking in evidence that any responsible official of the Polish Government invalidated the passport in view of our conclusion that reliance cannot be placed on exhibit 6. However, the lack of evidence on this point does not appear to be particularly material since the Service argument is equally applicable if we consider the case from the standpoint of the passport having expired on August 3, 1951, the date to which its validity was last extended.
The record does not show when the passport was marked "void" except that it was after March 1951 and prior to the hearing on August 31, 1954.
In the Service motion there are quoted definitions of "passport" contained in section 101 (a) (30) of the Immigration and Nationality Act and 8 CFR 1.1 (b) (9) (ii). Apparently the Service does not contend that these definitions are controlling but merely quotes them to bolster its argument that the sole purpose of a passport is to insure the departure of the alien if he is excluded or ordered deported. However, in order that there may be no doubt as to our views, we hold that these two definitions of the term "passport" have no application since section 405 (a) of the Immigration and Nationality Act, which must be given a broad interpretation, specifically preserves the prior legislation in this case, the appellant's application for admission having been made in 1950.
United States v. Menasche, 348 U.S. 528, 533 (1955).
The Service motion also contains the statement that, even prior to the effective date of the Immigration and Nationality Act, Executive Order No. 8766 had required that a nonimmigrant be in possession of a passport valid for at least 60 days beyond the period for which the nonimmigrant might be admitted. Executive Order No. 8766 did not contain such a provision; that executive order only applied to aliens other than alien seamen; and the 60-day passport provision (former 8 CFR 176.500 (a)) did not apply since former Part 176 of 8 CFR was specifically designed as relating to documentary requirements for aliens except seamen and airmen.
Executive Order No. 9352 of June 15, 1943, which was in effect when the appellant applied for admission in 1950, prescribed the documents to be presented by an alien seaman. Part I provided, in part, as follows:
An alien seaman who is not exempt from the passport and visa requirements under Part II hereof shall be required to present an identifying travel document in the nature of a passport, showing his nationality and identity and bearing his photograph, before he may be granted shore leave for any purpose, unless the possession of such an identifying travel document is waived by the Secretary of State, * * *.
Former 8 CFR 177.51 (f), which related to seamen, contained the following definition:
`Passport' means a document of identity and nationality issued by the appropriate authorities of a recognized foreign government to which the bearer owes allegiance, identifying the bearer and stating his nationality or, in the case of an alien unable to obtain such a document, a travel document in the nature of a passport issued by a duly authorized official and showing the bearer's identity and nationality.
We have indicated above that former 8 CFR 176.500, which was not applicable to seamen, provided that certain nonimmigrants "shall not be admitted for a period of time extending beyond a date 60 days prior to the end of the period during which his passport is valid for his return abroad or for his entry into some foreign country." We agree with the Service that the purpose of the regulation was to insure such an alien's departure at the expiration of his temporary stay. However, the very fact that there was a specific requirement of that nature concerning certain nonimmigrants other than seamen and the fact that, as to the latter, there was a complete absence of any comparable provision convinces us that the purpose which the Service seeks to ascribe did not exist with respect to seamen, and that the requirement that they present passports had no relationship to the question of their ability to enter a foreign country at the completion of their temporary stay in the United States.
We believe that our views concerning this matter are substantiated by certain other factors. While we have indicated above that former 8 CFR 176.500 did not relate to seamen, it seems pertinent to comment on the fact that, although subsection (a) contained the requirement that certain nonimmigrants present passports valid for 60 days beyond the period of admission, subsection (b) contained a specific provision that in the cases of other aliens "the passport need be valid and unexpired only through the date of the bearer's application for admission to the United States at a port of entry." [Emphasis supplied.] We also observe that former 8 CFR 177.52, on which the Service relies, would not preclude the admission of a seaman for 29 days even though his passport expired two or three days after his application for admission. In such a case the passport requirement would be ineffective to guarantee his entry into a foreign country. Similarly, the Government has no such guarantee where the seaman arrives without a passport or with an expired passport and its remedy there is to order him detained on board the vessel until its departure. However, even where a seaman arrived without a passport, the Secretary of State could grant a waiver of that requirement (former 8 CFR 177.54 (b) (2)) and instructions were in existence which permitted the granting of such a waiver to a seaman although his inability to obtain a passport was due to being stateless. In this latter case, the grant of a waiver would obviously defeat the purpose which the Service seeks to attribute to the passport requirement. We believe that these matters negative any assumption that the requirement of travel documents in the nature of passports in seamen cases was for the purpose of insuring their entry into a foreign country at the expiration of their temporary admission.
§ 177.52 Passports and visas required. Before a seaman or an airman may be admitted into the United States for any purpose he must present a valid passport that is unexpired at the time of his admission and that bears his photograph, and a visa appropriate to his case, unless exempted from these requirements by the regulations in this part. * * *
We believe it is clear from the language in the Presidential Proclamation and former 8 CFR 177.51 (f), as well as the use of the terms "identifying travel document" and "document of identity and nationality," that a passport in a seaman case was merely for the purpose of identification. Under the regulation mentioned, a seaman who was unable to obtain a document of identity and nationality from the foreign government to which he owed allegiance could comply with the passport requirement by merely presenting a travel document in the nature of a passport showing his identity and nationality. Hence, it is obvious that there was no rigid rule requiring a seaman to present a passport which would be valid for entry into a foreign country.
Executive Order No. 9352 of June 15, 1943.
In arguing that we cannot now admit the appellant for 29 days because he does not at this time have a valid passport, the Service relies on former 8 CFR 177.52 (footnote 4, supra) and lays great emphasis on the phrase "that is unexpired at the time of his admission," asserting that this was used for the express purpose of requiring a valid passport at the time of admission and not merely a passport valid at the time of the application for admission. We do not consider this argument persuasive since it is obvious that the regulation was framed, not for some isolated case such as that of this appellant who applied for admission in 1950 and whose application is still pending, but for the cases of the overwhelming majority of seamen who are granted or refused shore leave contemporaneously with their applications for admission. The very fact that almost invariably no period of time would elapse between the application for admission and the decision on the application militates against the idea that significance should be attached to the phrase "at the time of his admission." We believe that the word "admission" was employed instead of "application for admission" since the latter would be incompatible with the opening phrase reading "Before a seaman * * * may be admitted."
In addition to what we have stated above, the regulation under discussion related to the documents required of seamen regardless of whether they were immigrant or nonimmigrant seamen. However, when we examine the specific regulation which related to nonimmigrant seamen desiring shore leave, we find no reference to a passport valid at the time of admission but instead the determination is made upon the facts as they existed upon arrival. This regulation (former 8 CFR 120.21) is, in part, as follows:
§ 120.21 Alien seamen seeking entry in pursuit of calling; when ordered detained; waiver of crew list visa. (a) Any alien who upon arrival establishes that he is a bona fide seaman as defined in § 120.2, is admissible as a nonimmigrant under section 3 (5) of the Immigration Act of 1924 and is not inadmissible under the other provisions of this part and of Part 175 of this chapter, may be temporarily admitted for such period of time as the examining immigrant inspector shall designate, not to exceed, however, the time the vessel on which the alien arrives remains in the United States and in no event to exceed 29 days, if: * * * (2) He is in possession of a passport, or some other document in lieu thereof, which is acceptable under the applicable Executive order and regulations prescribing the documents required of alien seamen and which satisfactorily establishes his identity and nationality.
Subsection (b) of the same regulation provided that extensions of such a temporary admission might be granted under exceptional circumstances but no mention is made therein of any requirement that the alien's passport be still valid. Subsection (d) of that regulation provided that, even where the seaman was not in possession of an acceptable passport or document in lieu thereof, he might be admitted temporarily if the permission of the Secretary of State was obtained. Considering former 8 CFR 177.52 and 120.21 together, we think it is clear that it was only necessary that the seaman be in possession of a passport which was unexpired at the time of his application for admission.
The Service also argues that the case is even stronger for exclusion of the appellant on the passport charge because we now know that he is not in possession of a passport valid for return to Poland. We fail to perceive the logic of this contention. We have pointed out above why we are of the opinion that the pertinent provisions of the statute and regulations do not require the exclusion of the appellant due to the expiration of the passport. The fact that we are aware that Poland has refused to permit his entry into that country does not add weight to the argument of the Service. Whether we order his exclusion on the passport charge or find that the charge is not sustained, the result will be the same because, in either event, Poland will probably continue in its refusal to accept the appellant and it appears unlikely that the United States Government will be able to arrange for his removal from this country.
Since 1950 the Government has been attempting to enforce the appellant's departure without success. During most of this period he was in detention. The record relating to the court proceedings contains copies of letters written in May 1951 by the United Fruit Company, on whose vessel the appellant was employed on August 28, 1950, indicating that the steamship company, although eager to relieve itself of the obligation of paying for the appellant's detention, had been unable to effectuate his departure. The Court of Appeals, in its decision of August 7, 1953, referred to the efforts which had been made by the alien, the steamship company on whose ship he arrived, and by the Government to obtain permission for his entry into some foreign country, and the Court concluded that it was impossible to obtain such permission. During the oral argument counsel stated that, although Poland will not accept the appellant as a deportee, it may very well be that she would accept him if he were a free agent. The appellant stated at the hearing that, if admitted, he intended to depart within 29 days and would accept employment on a foreign vessel. We think it is logical to admit the appellant temporarily for 29 days and afford him the opportunity of departing voluntarily. If he fails to do so, the Government will then be in a position to institute deportation proceedings, unencumbered by the legal questions which have heretofore arisen in this case. While we anticipate the same difficulty of effectuating the appellant's departure would be present in an expulsion proceeding, we do not believe that the Government's position will be any different from what it is now inasmuch as 5 years have elapsed since the Government began its attempt to compel the appellant to depart without any progress having been made.
United States ex rel. Bojarchuk v. Shaughnessy, 206 F. (2d) 238, 240 (C.A. 2, 1953).
Not only do we consider this the only logical approach to this case, but we believe it is the only tenable position which the Government can take. Under former 8 CFR 175.53, the appellant's exclusion without a hearing was made permanent in December 1950. When his case was before the Court of Appeals (footnote 5, supra), the cause was remanded to the district court to take evidence and determine whether the appellant's status was to be assimilated to that of a resident alien entitled to a hearing in accordance with the decision in Kwong Hai Chew v. Colding, 344 U.S. 590 (1953). The district court held that he was to be assimilated to the status of a resident alien. No appeal was taken from that decision and it has become the law of this case. Although it was not until the Supreme Court's decision in 1953 in the Kwong Hai Chew case that there was any indication that an alien in the appellant's position could not be excluded without a hearing, we believe that, on the basis of that decision and the decision of the district court in the appellant's case, he must be considered as having been entitled to a hearing when he applied for admission on August 28, 1950. At that time his passport was valid for a period of almost one year (to August 3, 1951). Since he was not accorded a hearing until 1954, we believe it would be inequitable for the Government to now exclude because of the expiration of the passport. For the reasons stated above, we will deny the Service motion and enter the following order.
Order: It is ordered that the Commissioner's motion be and the same is hereby denied.
It is further ordered that the alien's admission be authorized for a period of 29 days from the date of notification of this decision under such conditions, including the filing of bond, as the officer in charge of the port may direct.
(September 15, 1955)
Discussion: On August 30, 1955, the Board of Immigration Appeals denied the Commissioner's motion to reconsider and withdraw its order of April 12, 1955, which had sustained the alien's appeal from a decision of the special inquiry officer and authorized his admission for a period of 29 days. The Commissioner's motion was directed to the action of the Board insofar as it related to the first and second charges above indicated.
After carefully considering the Board's decision of August 30, 1955, the Service is convinced that the Board's determination is not supported by the facts nor the law applicable thereto. For that reason, the Commissioner moves that the Board reconsider and withdraw its order of August 30, 1955, as well as that of April 12, 1955.
Act of May 22, 1918, and former 8 CFR 175.53
The decision of the Board with respect to the first charge raises a most important question, namely: Does the Board have the power to pass on the credibility of witnesses or to make findings of fact? Since the immigration laws have never made any reference to the Board of Immigration Appeals, we must of necessity turn to the regulations for guidance.
The current regulations, 8 CFR Part 6, are substantially the same as those in force prior to December 24, 1952, insofar as they describe the organization and powers of the Board of Immigration Appeals. The first thing which attracts our attention in the regulation is, of course, the name: Board of Immigration Appeals. It is apparent that when the Board of Immigration Appeals was set up in 1940, the Attorney General contemplated an appellate body, a board that would have jurisdiction only of an appellate character in cases which were appealed or certified to it for review. Thus, in the current regulations, 8 CFR 6.1, specific provision is made for (1) appellate jurisdiction in seven classes of cases, and (2) jurisdiction by certification in six classes of cases.
Perhaps the most significant provision in the regulations with respect to the Board's powers is contained in 8 CFR 6.1 (d), which reads:
Powers of the Board — (1) Generally. Subject to any specific limitation prescribed by this chapter, in considering and determining cases before it as provided in this part the Board shall exercise such discretion and authority conferred upon the Attorney General by law as is appropriate and necessary for the disposition of the case * * *.
A similar provision was contained in former 8 CFR 90.3 (d) in force prior to December 24, 1952.
So far as the Service is aware, the only pertinent judicial determination of the question is to be found in United States ex rel. Brzovich v. Holton, 222 F. (2d) 840 (C.A. 7, 1955). In its decision of August 30, 1955, the Board's discussion of that case is so brief that we deem it expedient to emphasize certain features of the Brzovich case.
It is true, as the Board points out, that the deportation proceeding in that case was brought under the Immigration and Nationality Act whereas the instant proceeding against B---- is being maintained under the law in force prior to December 24, 1952. However, this observation of the Board has no bearing on the question of the nature and scope of the Board's powers. As already indicated, there has never been any statutory provision relating to the Board of Immigration Appeals and there is no material difference between the regulations in force before December 24, 1952, and those now in force so far as the powers of the Board are concerned.
It should also be noted that even before December 24, 1952, a board of special inquiry or a hearing officer made findings of fact and their decisions, just like those of a special inquiry officer today, were final unless reversed on appeal or certification to the Board of Immigration Appeals. Consequently, the reasoning of the court in the Brzovich case is just as pertinent to the case of an alien whose status is determined under prior law as to a case arising under the Immigration and Nationality Act.
The following language from the court's opinion in the Brzovich case (p. 843) is deemed by the Service to be a correct statement of the Board's powers:
We are aware of nothing in the statute or rules and regulations which confers upon the Board any authority other than to hear oral argument on appeal. It appears evident that it is given no authority to make findings of fact or to try an issue de novo. It is endowed only with the typical reviewing function. * * * It appears that the Board is bound by the findings of the Special Inquiry Officer, if substantially supported, in the same manner and to the same extent as is a court of review. * * *
The references made by the Board in its decision of August 30, 1955, to the cases of Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474 (1951), and Federal Communications Commission v. Allentown Broadcasting Co., 349 U.S. 358 (1955), are irrelevant because the administrative agencies mentioned are specifically authorized by statute to make findings of fact. The Board is not so authorized.
In its decision of August 30, 1955, at the bottom of page 2, the Board states:
The Supreme Court has frequently referred to the conclusiveness of, and the necessity for, findings of fact by the departmental head in immigration cases and we think it is no longer open to question that this Board has authority to decide questions of fact as well as questions of law. [Emphasis added.]
Of course, the Attorney General has statutory power to make findings of fact. That is not the question. As we have tried to make clear, the question is not as to the Attorney General's power but as to the Board's power to pass upon the credibility of witnesses or to make findings of fact. If the Attorney General had contemplated the granting of so important a power to an appellate body such as the Board of Immigration Appeals, surely he would have granted such power in express terms and not left it to mere inference.
If the Board had accepted the special inquiry officer's finding that the Government witnesses were credible and nevertheless concluded that their testimony was insufficient as a matter of law to prove appellant's affiliation with the Communist Party, the Board would be acting within the scope of its powers. But the Board's conclusion is not based upon an acceptance of the special inquiry officer's findings as to credibility of witnesses. The Board's detailed analysis of the testimony given by the witnesses for the Government indicates clearly that the Board entertains serious doubts as to their veracity.
In its decision of August 30, 1955, page 3, first paragraph, the Board argues that the special inquiry officer's finding of affiliation with the Communist Party is based solely on one item of testimony, namely, the witness S----'s statement that the appellant told him that he, the appellant, had donated the sum of $100 to the Communist Party. Even if that argument be accepted, the testimony of one credible witness to that effect would establish a prima facie case of affiliation with the Communist Party. But the Board's argument fails to take into account the testimony of witness B----. His testimony shows clearly that the appellant visited the office of the Communist Party in New Orleans on two occasions, that he paid a sum of money to the person in charge of the office, and purchased a quantity of literature. The testimony of B---- is not only consistent with the testimony of S---- with respect to the appellant's donation of $100 to the Communist Party but has a natural tendency to corroborate it.
If, as the Service contends, the Board is bound to accept the finding of the special inquiry officer as to the credibility of the witnesses and as to the making of a donation of $100 by the appellant to the Communist Party, then, according to the language of section 1 (e) of the Act of October 16, 1918, in effect during the period referred to by the witnesses, the making of such donation constituted affiliation with the Communist Party.
Executive Order No. 8766 — no passport
For present purposes it may be conceded that the appellant's last arrival in the United States occurred on August 28, 1950. At that time the appellant was in possession of an unexpired Polish passport. Although there is serious doubt as to the validity of that passport, we shall assume that the passport was a valid document until August 3, 1951, the date to which it had last been extended.
In its decision of August 30, 1955, the Board has determined that the passport charge has not been sustained because the appellant was in possession of a valid passport on August 28, 1950. Attention is called to Executive Order No. 9352 of June 15, 1943, which reads, in part:
An alien seaman who is not exempt from the passport and visa requirements under Part II hereof shall be required to present an identifying travel document in the nature of a passport, showing his nationality and identity and bearing his photograph, before he may be granted shore leave for any purpose, unless the possession of such an identifying travel document is waived by the Secretary of State * * *. [Emphasis added.]
We also invite attention to former 8 CFR 177.52 which was applicable to seamen in 1950:
Before a seaman or an airman may be admitted into the United States for any purpose he must present a valid passport that is unexpired at the time of his admission and that bears his photograph, and a visa appropriate to his case, unless exempted from these requirements by the regulations in this part. * * * [Emphasis added.]
If the foregoing regulation is enforced in accordance with its obvious meaning, then the appellant may not be granted shore leave because he does not now present a valid, unexpired passport or travel document in the nature of a passport.
In an effort to establish the inapplicability of the foregoing regulation to the appellant's case, the Board enters into a lengthy discussion of passport requirements generally. Some of the observations made in the course of that discussion have little or no relevancy to the factual situation in the instant case. We think the language of 8 CFR 177.52 is too plain to admit of any construction or interpretation. The claim that the regulation did not contemplate a case in which admission would be granted a long time after the date of arrival has no merit. From the Government's point of view it is just as important, if not more important, to insist upon literal compliance with the passport requirement at this time as it was at the time of arrival.
Apparently, the Board's judgment has been influenced by a feeling that adherence to the language of 8 CFR 177.52 would be unduly harsh. Thus, on page 9, second paragraph, of its decision of August 30, 1955, the Board states:
* * * Since he was not accorded a hearing until 1954, we believe it would be inequitable for the Government to now exclude because of the expiration of the passport. * * *
However, it is the view of the Service that the meaning of the language in 8 CFR 177.52 is so plain that the Board may not lawfully avoid its requirement of a valid passport at this time merely because it would appear to be "inequitable." In any event, the Service does not regard the appellant's exclusion at this time as "inequitable" notwithstanding the long period that has elapsed since his arrival.
Motion is hereby made that the Board of Immigration Appeals reconsider and withdraw its orders of April 12, 1955, and August 30, 1955, and enter an order affirming the decision of the special inquiry officer on the grounds above stated.
(November 22, 1955)
Discussion: This matter is before us pursuant to the Acting Assistant Commissioner's motion for reconsideration dated September 15, 1955.
The facts in this case were stated fully in our order of April 12, 1955. Briefly, they are as follows: The appellant is an alien who was born in Poland. He claims to have had a domicile in New York City since about 1936 but has not been lawfully admitted to the United States for permanent residence. He has been employed as a seaman for many years, sailing out of United States ports, and states that he has always complied with the conditions of his status as a seaman.
The appellant arrived as a seaman on August 28, 1950, at which time he was on the visaed crew list but was detained on board the vessel in accordance with an order of the Service. The United States Coast Guard recommended against his further employment and he departed with the vessel but not as a member of the crew. He was still on board the vessel when it again arrived on September 18, 1950, at which time he was removed to Ellis Island under a temporary exclusion order which was made permanent, without a hearing, in December 1950. In habeas corpus proceedings, the Court of Appeals remanded the case to the district court and the latter held that the appellant was to be assimilated to the status of a resident alien and thus entitled to a hearing in accordance with Kwong Hai Chew v. Colding, 344 U.S. 590 (1953).
United States ex rel. Bojarchuk v. Shaughnessy, 206 F. (2d) 238 (C.A. 2, 1953).
Thereafter, the appellant was accorded a hearing during which he stated that he was applying for admission as a seaman with the intention of departing within 29 days. The request for temporary admission was, in effect, denied in view of the special inquiry officer's order excluding the appellant on the grounds stated above. An appeal to this Board followed resulting in our order of April 12, 1955, in which, after discussing at length the factual and legal questions involved, we sustained the alien's appeal and granted his request for admission to the United States as a seaman for 29 days under such conditions, including the filing of bond, as the officer in charge of the port might direct.
If the Service had admitted the alien temporarily for 29 days as directed by our order of April 12, 1955, and if the alien had failed to depart at the expiration of that period, deportation proceedings could have been instituted under section 241 (a) (9) of the Immigration and Nationality Act on the simple charge that the alien failed to maintain the nonimmigrant status under which he had been admitted. Instead, the Service filed a motion that we reconsider and withdraw our order. After hearing the Service representative and the alien's counsel in oral argument, we entered an order on August 30, 1955, denying the request of the Service. In that order, the reasons for our action were fully set forth.
Now we are called upon once more to consider the case of the appellant in accordance with the Service request of September 15, 1955, which is essentially similar to the previous motion except that, instead of merely questioning the correctness of our decision, it is claimed in the motion that we do not have authority to determine questions of fact. The motion refers only to the first and second grounds of exclusion mentioned above and we assume, therefore, that the Service agrees with our view that the third ground is not sustained.
The contention of the Service that this Board lacks authority to arrive at factual findings contrary to those of a special inquiry officer or even to make any findings of fact has indeed been advanced belatedly. This is particularly so when considered in the light of the Board's origin and the fact that, so far as we are aware, our jurisdiction concerning factual issues had not previously been questioned throughout the fifteen years' existence of this Board under its present designation or prior thereto. On August 30, 1940, the Board of Review of the Immigration and Naturalization Service was transferred to the Office of the Attorney General and it was provided that the Board should thereafter be known as the Board of Immigration Appeals. The Board of Review had been in existence for many years before that. As early as 1927, in the case of Quon Quon Poy v. Johnson, 273 U.S. 352, a specific reference was made (p. 356) to the Board's review of the entire testimony and the Board's conclusion that the petitioner had not established the factual issue.
8 CFR 90.2 ( 5 F.R. 3503).
We do not believe any significance need be attached to the fact that the present regulations do not refer to the preparation by us of formal findings of fact and conclusions of law. The important question is rather whether we have authority to determine factual issues. If we have that power, undoubtedly we also have authority to make formal findings of fact although we would not be obliged to do so in the absence of a provision to that effect in the regulations. We think what we have said is substantiated by the fact that the regulation of August 30, 1940, referred to above, contained a specific requirement in 8 CFR 90.11 ( 5 F.R. 3504) that we make findings of fact in one particular category of cases, namely, those in which we intended to enter an order less favorable to the alien than that proposed by the presiding inspector.
Our published decisions (Volumes I and II of "Administrative Decisions under Immigration and Nationality Laws of the United States") show that we consistently made formal findings of fact during the period covered by-those volumes, that is, from 1940 until August 1947. About the latter date, formal findings of fact and conclusions of law were eliminated in the interests of efficiency inasmuch as it was not mandatory under the regulations that they be prepared. However, until recently we continued to make findings of fact in suspension of deportation cases.
The present motion of the Service seeks to impart some unusual significance to the word "Appeals" in the official designation of this Board and to the fact that 8 CFR 6.1 (b) speaks of "appellate jurisdiction." The argument seems to be that the use of these words somehow circumscribes our jurisdiction to determine factual issues. We fail to perceive any merit in this argument and we believe it is apparent that our jurisdiction is to be determined in accordance with the regulations.
In the previous Service motion of May 25, 1955, and during the oral argument on that motion, when United States ex rel. Brzovich v. Holton, 222 F. (2d) 840 (C.A. 7, 1955) was cited, the contention was that the findings of the special inquiry officer should be given great weight. In our order of August 30, 1955, we stated that the decision in the Brzovich case "was predicated on the proposition that, even if this Board had authority to overrule the findings of the examiner, the evidence in that case did not, as a matter of law, meet the standard of reasonable, substantial, and probative evidence." We also cited Federal Communications Commission v. Allentown Broadcasting Co., 349 U.S. 358 (1955), as holding that an agency's reversal of its examiner's findings was not limited to cases where the latter's findings were clearly erroneous. In addition, we cited a number of decisions in which the Supreme Court had referred to the conclusiveness of, and the necessity for, findings of fact by the departmental head in immigration cases. The following language in Bridges v. Wixon, 326 U.S. 135, 153 (1945), is pertinent:
Zakonaite v. Wolf, 226 U.S. 272, 274-275 (1912); Mahler v. Eby, 264 U.S. 32, 46 (1924); United States ex rel. Tisi v. Tod, 264 U.S. 131, 133 (1924); Kessler v. Strecker, 307 U.S. 22, 30, 34 (1939).
The person to whom the power to deport has been entrusted is the Attorney General or such agency as he designates. 8 U.S.C. § 155. He is an original trier of fact on the whole record. It is his decision to deport an alien that Congress has hade "final" [Emphasis supplied.]
In the present motion of the Service, it is stated that the Attorney General has statutory power to make findings of fact but that we do not have power to do so nor to pass upon the credibility of witnesses. The anomaly of such a position is apparent. It means that the Attorney General, the chief legal officer of the Government, must determine all factual issues, but that this Board can make the final administrative determination concerning legal questions except in such cases as may be referred to the Attorney General for review. The cases which we have heretofore certified to the Attorney General for review have been principally those in which the question involved related to other than a factual issue. Not only have we consistently determined factual issues but it was intended that this Board should do so and that the Attorney General should not be burdened with such questions. This is clearly illustrated by the following statement in Matter of G---- R----, A-6732816, 3 IN Dec. 141, at 154:
The case is now back from the Attorney General "as one involving a question primarily of fact within the jurisdiction of the Board to determine."
Although some of the statements in the Service motion serve to becloud the question of our jurisdiction, the regulations themselves are free of ambiguity. Technically, the regulations which were in effect prior to the effective date of the Immigration and Nationality Act should be considered as controlling in this case. They are, however, similar to those presently in force, insofar as the powers of the Board are concerned, and we will limit our discussion to them as the Service has done in its motion. Subsections (a), (b) and (c) of 8 CFR 6.1 refer respectively to the organization of the Board, its appellate jurisdiction and its jurisdiction by certification. Under 8 CFR 6.1 (g) the decisions of the Board, except as they may be modified or overruled by the Board or the Attorney General, are binding on all officers and employees of the Service in the administration of the Immigration and Nationality Act. 8 CFR 6.1 (d) provides in part:
(d) Powers of the Board — (1) Generally. Subject to any specific limitation prescribed by this chapter, in considering and determining cases before it as provided in this part the Board shall exercise such discretion and authority conferred upon the Attorney General by law as is appropriate and necessary for the disposition of the case, except that the Board shall have no authority to consider or determine the manner, at whose expense, or to which country an alien shall be deported.
(2) Finality of Decision. The decision of the Board shall be final except in those cases reviewed by the Attorney General in accordance with paragraph (h) of this section. The Board may return a case to the Service for such further action as may be appropriate to the case, without entering a final decision on its merits.
For emphasis, a portion of the regulation quoted above has been italicized. We have previously mentioned that the Service does not question the Attorney General's statutory power to determine factual issues, and we think it is crystal clear that this particular power is a part of the "authority conferred upon the Attorney General by law" which he has delegated to this Board in accordance with the regulation quoted above. In United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 266 (1954), the court made the following statement: "In unequivocal terms the regulations delegate to the Board discretionary authority as broad as the statute confers on the Attorney General; the scope of the Attorney General's discretion became the yardstick of the Board's." While the court was there discussing the Attorney General's discretionary authority, we do not believe there can be any doubt but that the statement applies with equal effectiveness to all other power which the Attorney General has delegated to this Board, including his authority as "an original trier of fact on the whole record."
The second paragraph of the regulations, which we have quoted above, expressly provides that the Board's decision shall be final except in those cases which are referred to the Attorney General for review. On the other hand, it is expressly provided in 8 CFR 242.61 (e) that the decision of the special inquiry officer is not final when an appeal is taken to this Board. A similar distinction was recognized in Sisto v. Civil Aeronautics Board, 179 F. (2d) 47, 51 (U.S.C.A., 1949), in which the court said that, when there is an appeal to the Board, the findings, conclusions and order of the examiner are only tentative or interlocutory in nature and it is the orders of the Board which are final and appealable.
In effect, the Service contention is that we are bound by the special inquiry officer's findings of fact unless, as a matter of law, they are not based on reasonable, substantial, and probative evidence. If we were to adopt that thesis, what purpose would there be in the requirement of 8 CFR 242.61 (f) (2) that, where deportability is contested, the particular findings of fact with which the alien disagrees must be indicated in the notice of appeal? Under 8 CFR 6.1 (h) (1) (iii) the Service can secure the Attorney General's review of our determination but an alien has no appeal from our decision. If we were precluded from overruling the special inquiry officer on factual issues, the net result would be that the possibility of a successful appeal on such issues would be reduced to the vanishing point and such a course might well be considered as in conflict with the constitutional requirement of procedural due process.
Cf. Wong Yang Sung v. McGrath, 339 U.S. 33, 49 (1950).
The Service stated in its motion of September 15, 1955, that, so far as it was aware, the only pertinent judicial determination concerning the scope of the Board's authority to decide factual issues was to be found in United States ex rel. Brzovich v. Holton, supra, and the motion relies heavily on that decision. In the Brzovich case, the special inquiry officer found that the evidence was not of a sufficiently reasonable, substantial, and probative nature to justify the conclusion that the alien had been a member of the Communist Party. The alien did not testify. During the oral argument before this Board in that case on July 14, 1953, the Service representative strenuously urged us to reverse the special inquiry officer and order deportation and our power to do so was not questioned.
Certain statements of the Court of Appeals in the Brzovich case were quoted in the motion, and the Service stated that it deems the quotation to be a correct delineation of the Board's powers. These statements are to the effect that the court was not aware of anything in the statute or regulations which conferred upon the Board any authority other than to hear oral argument on appeal; that the Board is given no authority to make findings of fact or to try an issue de novo; and that the Board appears to be bound by the findings of the special inquiry officer, if substantially supported, in the same manner and to the same extent as is a court of review.
It has not been the procedure of this Board nor of the Attorney General to try immigration cases de novo and, where additional evidence was considered necessary, the practice has been to reopen the hearing and remand the case to the Service. Our discussion above disposes of most of the other statements on which the Service relies. However, some additional comment is appropriate.
We quoted above a statement we had made concerning the Brzovich case in our previous order. To amplify it somewhat, we may say that the court was not content to rest its decision in that case on the ground that we did not have authority to overrule the special inquiry officer's findings but specifically stated that, if it was in error regarding its appraisement of the limited scope of review possessed by this Board, the evidence was insufficient as a matter of law. Under these circumstances, we believe that the language which the Service quoted from the Brzovich decision furnishes scant judicial authority for the proposition which the Service seeks to maintain. Particularly is this so when viewed in the light of the Supreme Court decisions mentioned above. The case of Federal Communications Commission v. Allentown Broadcasting Co., supra, which was decided on June 6, 1955, a few days after the decision of the Court of Appeals in the Brzovich case and which will be discussed later herein, further nullifies the value of the language on which the Service relies.
The Service motion contains the statement that Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474 (1951), and Federal Communications Commission v. Allentown Broadcasting Co., supra, which we mentioned in our previous order, are irrelevant because those administrative agencies were specifically authorized by statute to make findings of fact whereas this Board is not so authorized. We have indicated above that, while the regulations do not require us to make findings of fact, that power is necessarily implied as a part of our authority to determine factual issues. However, insofar as the contention of the Service seems to be that this Board differs from an agency created by statute, we think that such a distinction is nonexistent. We reach this conclusion because of the following considerations. Section 103 (a) of the Immigration and Nationality Act authorizes the Attorney General to establish regulations; 8 CFR, Part 6, contains specific provisions relating to the organization and powers of this Board; and it is well settled judicially that regulations made pursuant to statutory authority have the same force and effect as though prescribed in terms by the statute ( Atchison, Topeka and Santa Fe Railway Co. v. Scarlett, 300 U.S. 471, 474 (1937); Lilly v. Grand Trunk Western Railroad Co., 317 U.S. 481, 488 (1943)).
In Universal Camera Corp. v. National Labor Relations Board, supra, the court at page 492 said that the findings of the examiner were not as unassailable as those of a master in equity and that the responsibility for decision placed on the National Labor Relations Board was wholly inconsistent with the notion that it had power to reverse an examiner's findings only when they were clearly erroneous.
In Federal Communications Commission v. Allentown Broadcasting Co., supra, at page 364, the court reaffirmed the statement it had made in the Universal Camera Corp. case concerning the power of an administrative agency to reverse its examiner even though his findings were not clearly erroneous, and the court also indicated that the Court of Appeals in that case had been in error when it concluded that the examiner's findings, based on demeanor of a witness, are not to be overruled by a Board without a "very substantial preponderance in the testimony as recorded." This latest pronouncement of the Supreme Court clearly indicates that this Board is not bound by the findings of the special inquiry officer merely because he has based his findings on the credibility and demeanor of a witness. Accordingly, we reject the contention of the Service concerning the limited scope of our review on factual issues.
The motion of the Service refers to the first paragraph of page 3 of our decision of August 30, 1955, and says, "the Board argues that the special inquiry officer's finding of affiliation with the Communist Party is based solely on one item of testimony, namely, the witness S----'s statement that the appellant told him that he, the appellant, had donated the sum of $100 to the Communist Party." The Service asserts that we failed to take into account the testimony of witness B---- and that it has a tendency to corroborate S----'s testimony. We find it difficult to believe that these matters are seriously urged by the Service in view of our detailed discussion of the testimony in our two previous orders. Nevertheless, we will again explain our position concerning this matter.
We will first discuss the statement quoted above from the motion of the Service. Of 10 findings of fact made by the special inquiry officer, only one (No. 10) had any relationship whatever to the question of whether the appellant's entry would be prejudicial to the United States. That finding of fact reads: "That it has been established that the applicant prior to 1950 did donate to the Communist Party of the United States in the City of New Orleans, Louisiana, a sum of $100 in cash." On page 12 of the special inquiry officer's decision he specifically stated that he had not made this finding on the testimony of witness B---- but solely on the testimony of witness S----. Although the finding of fact which has been quoted refers to the alleged donation as having been made prior to 1950, apparently witness S---- claims it was made about 1944 or 1945. His testimony as to how he learned of the matter is that, during a chance meeting with the appellant on the street, the latter stated that he had made a $100 donation to the Communist Party. Hence, it is this one item of testimony on the part of one witness which is the sole basis for the special inquiry officer's finding of fact and necessarily also for his conclusion that the appellant is inadmissible on the prejudicial entry charge. The appellant denied under oath at the hearing that he had ever contributed $100 or any other amount to the Communist Party. S---- had had only three conversations with the appellant and apparently last saw him about 1944 or 1945. We need not determine whether S---- was mistaken in his identification of the appellant or whether he was deliberately untruthful. In any event, as we indicated in our order of April 12, 1955, we did not find the testimony of the two witnesses sufficiently convincing to warrant a finding that the appellant had made a donation of $100 to the Communist Party.
We turn now to the argument of the Service that we failed to take into account the testimony of witness B---- concerning the alleged $100 donation and that his testimony has a natural tendency to corroborate S----'s testimony concerning the matter. Not only did we consider the testimony of B---- concerning the alleged $100 donation but we analyzed it fully on page 5 of our order of April 12, 1955. Furthermore, the witnesses do not corroborate each other regarding the alleged donation but, on the contrary, their testimony was in conflict to the extent that either B----'s version or S----'s version must necessarily have been incorrect. We pointed out this conflict on page 8 of our order of April 12, 1955.
Although the special inquiry officer had limited his findings of fact bearing on the prejudicial entry charge to the alleged $100 donation, we considered not only the testimony bearing on that point but the remainder of the testimony of both witnesses. Upon reconsideration of the case, we believe that our former appraisal of the testimony of the witnesses was correct and we adhere to our conclusion that the prejudicial entry charge is not sustained.
The remaining contention of the Service relates to the "no passport" charge. Before discussing that contention, we deem it appropriate to comment on a statement which the Service made in discussing this charge. The statement reads, "Apparently, the Board's judgment has been influenced by a feeling that adherence to the language of 8 CFR 177.52 would be unduly harsh." To support this allegation, the Service quoted the penultimate sentence of our decision of August 30, 1955. When taken in its proper context, our statement was to the effect that, inasmuch as the Government had not granted a hearing to the appellant from 1950 until 1954, it would be inequitable for the Government to exclude him because his passport had expired during the period mentioned. If, as we surmise, the sentence we have quoted from the Service motion was intended to convey the impression that under such circumstances we would be willing to violate our duty of enforcing the immigration regulations, we consider the remark entirely unwarranted. Although at the end of our order of August 30, 1955, we had indicated that, because of the unusual circumstances of this case, it would be unjust for the Government to exclude on the "no passport" charge, we had clearly stated the legal reasons for our conclusion in the preceding paragraphs of that decision.
With respect to the contention that the appellant is excludable because he does not now have an unexpired passport, the Service tacitly concedes that the appellant's last arrival occurred on August 28, 1950, and states that it is willing to assume that the passport was valid until August 3, 1951, the date to which its validity had last been extended. In our order of April 12, 1955, we said that the application for admission must be determined on the basis of the facts as they existed on August 28, 1950. We had previously reached a similar conclusion in a case which bears some analogy. We affirm our previous view and, since the appellant's passport was valid on August 28, 1950, we hold that he is not excludable because his passport thereafter expired.
Matter of B----, 2 IN Dec. 172 (1944).
In the previous motion of the Service, it was strenuously contended that the purpose of the passport requirement was to insure the alien's entry into a foreign country if he was excluded from the United States. We discussed this contention fully in our previous order. The Service does not renew that contention but now relies on a statement in Executive Order No. 9352 of June 15, 1943, to the effect that an alien seaman must present an identifying travel document in the nature of a passport before he may be granted shore leave, and a statement in former 8 CFR 177.52 to the effect that, before a seaman may be admitted into the United States, he must present a valid passport that is unexpired at the time of his admission.
Both the Executive Order and the regulation quoted by the Service contemplate the situation which exists in the cases of the overwhelming majority of seamen who are either granted or refused shore leave contemporaneously with their applications for admission. Hence, we believe the regulation means no more than that a seaman must present a passport that is unexpired at the time of his application for admission.
If the regulation relied on by the Service were the only one dealing with the matter, we might find the argument of the Service more persuasive. However, in our previous order we referred specifically to former 8 CFR 120.21 (a) which was also in effect in 1950. The Service, in its present motion, ignored our discussion of that regulation. Former 8 CFR 120.21 is, in part, as follows:
§ 120.21 Alien seamen seeking entry in pursuit of calling; when ordered detained; waiver of crew list visa. (a) Any alien who upon arrival establishes that he is a bona fide seaman as defined in § 120.2, is admissible as a nonimmigrant under section 3 (5) of the Immigration Act of 1924 and is not inadmissible under the other provisions of this part and of Part 175 of this chapter, may be temporarily admitted for such period of time as the examining immigrant inspector shall designate, not to exceed, however, the time the vessel on which the alien arrives remains in the United States and in no event to exceed 29 days, if: * * * (2) He is in possession of a passport, or some other document in lieu thereof, which is acceptable under the applicable Executive order and regulations prescribing the documents required of alien seamen and which satisfactorily establishes his identity and nationality.
The regulation which is relied upon by the Service (former 8 CFR 177.52) relates to the documents required of alien seamen and has general application to both immigrant and nonimmigrant seamen. However, former 8 CFR 120.21, which we have quoted above, pertains exclusively to nonimmigrant seamen (the appellant was a bona fide nonimmigrant seaman on August 28, 1950) and relates to such seamen who are seeking entry in pursuit of their calling. Since that is the appellant's precise application which is before us for determination, we consider former 8 CFR 120.21 to be the regulation which is specifically applicable rather than the regulation mentioned by the Service. When we examine former 8 CFR 120.21, we find no reference to a passport valid at the time of admission but instead the determination is made upon the facts as they exist upon arrival. Inasmuch as the appellant's passport was valid at the time of his arrival and his application for admission, we hold that the regulations do not preclude his admission merely because his passport thereafter expired.
We indicated in our previous order that, because of the decision in Kwong Hai Chew v. Colding, supra, and the unappealed decision of the district court relating to the appellant, the conclusion must be that the appellant was entitled to an exclusion hearing on August 28, 1950. At that time his passport was valid for a period of almost one year (to August 3, 1951). He was not accorded an exclusion hearing until 1954. If we were to sustain the excluding decision of the special inquiry officer by taking advantage of the fact that the appellant's passport expired while he was awaiting a hearing, we believe the Government would be in a completely untenable position. For the reasons mentioned, it is our considered opinion that our previous orders were correct.
The Service has not requested that this case be referred to the Attorney General. Nevertheless, the contention of the Service, concerning the limited scope of our authority to determine factual issues, is a jurisdictional matter so fundamental that we consider it necessary to refer the case to the Attorney General for review in accordance with 8 CFR 6.1 (h) (1) (ii).
Order: It is ordered that the Acting Assistant Commissioner's motion of September 15, 1955, be and the same is hereby denied.
It is further ordered that the alien's admission be authorized for a period of 29 days from the date of notification of the final decision under such conditions, including the filing of bond, as the officer in charge of the port may direct.
In accordance with 8 CFR 6.1 (h) (1) (ii), this case is certified to the Attorney General for review of the Board's decision.
(June 6, 1956)
The decision of the Board of Immigration Appeals, denying a motion of the Immigration and Naturalization Service, dated September 15, 1955, in the above captioned case, in which reconsideration and withdrawal of the Board's orders of April 12, 1955, and August 30, 1955, were requested, is hereby approved.
I am in agreement with the Board's interpretation incorporated therein, that the regulations in Part 6 of Chapter I, Title 8 of the Code of Federal Regulations, which vest the Board of Immigration Appeals with "such discretion and authority conferred upon the Attorney General by law as is appropriate and necessary for the disposition" of cases, contemplates that the Board shall have the power to determine factual issues and is subject to such limitations as the Attorney General may from time to time impose.