E-055392
Decided by the Board April 13, 1954
Evidence — Privileged communications as between husband and wife and physician and patient — Privilege may not be claimed in deportation hearing — Privilege may be waived.
(1) The testimony of a physician of the United States Public Health Service in a deportation hearing is competent and not privileged since he is performing a duty provided by applicable law and regulations and the ordinary relationship of physician and patient does not exist.
(2) Privilege may not be claimed with respect to the introduction in evidence at a deportation hearing of the sworn statement of the respondent's husband and the testimony of her physician since strict rules of evidence applicable in judicial proceedings do not obtain in administrative deportation proceedings.
(3) Where the alien's husband makes sworn statements concerning his wife's affliction prior to deportation hearing, at which time privilege is not claimed, the privileged nature of the communication may be considered waived and the statements are admissible in evidence at the deportation hearing.
CHARGES:
Warrant: Section 241(a)(1) IN Act — Member of excludable class of aliens at time of entry, to wit: Visa presented invalid because procured by fraud or misrepresentation
Section 241(a)(1) IN Act — Member of excludable class of aliens at time of entry, to wit: A person afflicted with tuberculosis (sec. 3, act of 1917)
Lodged: Section 241(a)(1) IN Act — Member of excludable class of aliens, to wit: Not in possession of valid visa as required by section 13(a) of the act of May 26, 1924.
BEFORE THE BOARD
Discussion: This appeal is from a decision of a special inquiry officer at Seattle on October 12, 1953, finding deportability on the second charge in the warrant of arrest and on the lodged charge, and directing deportation pursuant to law.
The respondent is a 24-year-old female, native and subject of Japan who was married to a United States citizen serving in the United States Armed Forces in Tokyo on September 13, 1951. She first arrived in the United States and was admitted for permanent residence at San Francisco, Calif., on March 25, 1952, upon the presentation of a nonquota immigration visa issued pursuant of section 4(a) of the Immigration Act of May 26, 1924. She has been absent for temporary visits to Canada on two occasions subsequent thereto and last entered the United States at Niagara Falls during September 1952. The special inquiry officer has carefully summarized the evidence, has noted the exceptions and objections of counsel, and has concluded that deportability is established by the record in the case.
In the initial hearing on September 28, 1953, after the respondent had replied to a few questions, she declined to testify further upon advice of her counsel. Over the objection of counsel there was placed in evidence a transcript of sworn statements given by her on July 30, 1953, which were identified by the stenographer who recorded the statements and by the Service officer before whom the statements were given. There was also placed in evidence a transcript of sworn statements given by the subject's husband on July 13, 1953. The hearing was accorded in the State of Washington and the respondent's husband, from whom she is separated, was living in the State of California. A medical certificate over the signature of two physicians of the United States Public Health Service, who certified on September 23, 1953, that she was afflicted with pulmonary tuberculosis at time of entry, was placed in evidence. At the request of counsel, the Government presented one of the physicians for cross-examination. This witness identified exhibit 4 and explained the basis for the findings therein. He asserted that on the basis of X-rays of the alien's chest made in a certain hospital, which X-rays with other data were presented to him for examination, he reached a conclusion that the alien was afflicted with pulmonary tuberculosis on March 25, 1952, at the time of her entry to the United States for permanent residence; and that she was so afflicted on the occasion of her last entry to this country in September 1952. She and her husband admitted knowledge of her affliction as early as 1951. Predicated on this evidence, which has been carefully examined, deportability as found by the special inquiry officer is clearly established by the evidentiary data contained in exhibits 2, 3, and 4, and the testimony of a United States Public Health Service physician-witness. As previously stated, exhibits 2 and 3 are the sworn statements of the subject and her husband made prior to this hearing.
Counsel who was present throughout the hearing, challenges generally the admissibility of the evidence placed in the record to support the grounds of deportability. It is contended that the sworn statements placed in the record which were made prior to the hearings are hearsay; and that the medical testimony given by a physician, and the sworn statements of the respondent's husband are inadmissible on the ground that they are privileged communications between husband and wife, physician and patient. A local State statute has been quoted in support of this contention. Two decisions, referred to by counsel, do not support his allegation that the hearing was unfair.
This is an administrative deportation proceeding. The warrant of arrest was served on August 5, 1953, and hearing was accorded throughout under section 242 of the Immigration and Nationality Act. Pertinent to the admissibility of sworn statements and other similar evidentiary data placed in the record to establish deportability is title 8, C.F.R., section 242.54(b), which specifies that such evidence is admissible. Strict rules of evidence applicable in judicial proceedings do not obtain in administrative deportation proceedings.
Sercerchi v. Ward, 27 F.Supp. 437 (D.C.Mass. 1939); United States v. Curran, 12 F.(2d) 639 (1926); Di Tomasso v. Martineau, 97 F.(2d) 503 (C.C.A. 2, 1938); Bilokumsky v. Tod, 263 U.S. 149.
It is well established by current law and regulations that physicians of the United States Public Health Service are medical officers designated for conducting physical and mental examinations of aliens arriving, and within the United States, and aliens abroad, when such examinations are required, and for giving medical information to immigration officials (sec. 234 and 235, Immigration and Nationality Act, and appendix to 8 C.F.R., p. 1281 (title 42, Public Health, pt. 34, medical examination of aliens)). The current laws and regulations are binding upon the immigration authorities ( Bilokumsky v. Tod, 263 U.S. 149 (1923); Sibray v. United States, 282 Fed. 795; (C.C.A. 3, 1922); and Bridges v. Wixon, 326 U.S. 135 (1945)).
The Manual for Medical Examination of Aliens, Department of Health, Education, and Welfare, Public Health Service, pt. IV, subdivisions 9 and 10(g) read:
"9. Medical officers should give consular and immigration officials technical medical information and advice that will assist those officials in discharging their duties.
"10. Upon the request of immigration authorities, medical officers shall give a statement (in the form of a professional opinion or a certificate, as required) on matters such as the following, supplying specific and detailed supporting medical data when required for an intelligent review of the statement:
* * * * * * *
"g. Whether an alien certified, subsequent to entry, as afflicted with a class A or B condition was so afflicted at time of entry."
Sworn statements, affidavits and other data, if relevant and properly identified, may be received in evidence where the affiant or deponent is not readily available to testify and under other situations and circumstances ( Bilokumsky v. Tod, supra). A reasonable opportunity to cross-examine witnesses should be accorded the alien ( Gonzales v. Zurbrick, 45 F.(2d) 934 (C.C.A. 6, 1930)). That opportunity has been given herein. The physician-witness was presented in the hearing and an opportunity to take depositions from the alien's husband was declined by counsel. We find the requirements of the statute were met ( Singh v. District Director, 96 F.(2d) 969 (C.C.A. 9, 1938)). A hearing is not unfair merely because a witness is not produced for cross-examination because of unavailability ( Bilokumsky v. Tod, supra).
The objection of counsel to testimony of the physician-witness in this case on the ground of competency or privilege, is found to be without merit, because the relationship of physician and patient does not exist in the situation here. The physician-witness, who has testified, was merely performing a duty provided by applicable law and regulations. He was competent to testify and no privilege can be claimed in regard to his testimony. Moreover, it is repeated that the technical rules of evidence observed in judicial proceedings are inapplicable in an administrative tribunal.
Counsel objects to the reception in evidence of the sworn statements of the alien's husband which were given by him on July 13, 1953, on the ground that the admission of such evidence violates the policy rule of privilege in that husband and wife are not permitted to testify against each other. Counsel refers to the case, Blau v. United States, 340 U.S. 332 (1951), a criminal case in which a husband-defendant did not disclose the whereabouts of his wife, a desired witness, on the ground of privilege. The other case cited, Cahan v. Carr, 47 F.(2d) 604 (C.C.A. 9, 1931) is a deportation case, considered on an application for a writ of habeas corpus. In the decision last mentioned, the issue involved the admission of the testimony of a wife against her husband concerning a telephone communication relating to an entry. The court observed that on grounds of public policy, a wife is not permitted to testify against her husband. It was decided that her testimony was cumulative only, and did not render the hearing unfair ( Bilokumsky v. Tod, supra).
We note that there is no congressional legislation restricting the subject matter in which husband and wife may or may not testify in administrative deportation proceedings. It is well established that in judicial proceedings the common law principles of privilege control and not local statutes, where a communication between husband and wife is confidential. In judicial proceedings, civil or criminal, the court determines from the nature of the communication the competency of the witness and the right to the privilege ( Wolfle v. United States, 291 U.S. 7 (1934); Lutwak v. United States, 344 U.S. 604 (1953); and Blau v. United States, supra).
In this connection, it is interesting to note that the confidential nature of a communication between husband and wife is destroyed where it is made in the presence of a third person ( Wolfle v. United States, supra); Jacobs v. United States, 161 Fed. 694 (C.C.A. 1, 1908); United States v. Mitchell, 137 F.(2d) 1006 (C.C.A. 2, 1943)). The privilege may be waived. This alien and her husband had already divulged matters pertaining to the misrepresentations made to obtain an immigration visa for her (in 1951 and 1952) at the time this hearing began. She had given sworn statements before an officer of the Service July 30, 1953; and he had given sworn statements on July 13, 1953. They had not claimed privilege. The matters contained in exhibit 3 (sworn statements of husband) were no longer confidential at the time the hearing herein began. Moreover, if this alien was at any time entitled to the privilege attaching to confidential communication, that privilege had been presumably waived at the time the instant proceeding began ( Fraser v. United States, 145 F.(2d) 139 (C.C.A. 6, 1944), cert. den. 324 U.S. 849). We conclude that exhibit 3 was properly admitted in evidence in this case.
This respondent has failed to testify without legal justification. We have heretofore observed that where there is a duty to speak, such as the situation here, silence is evidence of a most persuasive character ( Matter of K----, A-5204481, Int.Dec. No. 427 (B.I.A., March 18, 1953)). This alien and her husband participated in a scheme to deceive the American consul and the Service for the purpose of effecting her entry to the United States. "As an attribute of its external sovereignty, the United States, acting through Congress and the executive departments, may exclude and deport any or all aliens *** and may admit them or permit them to remain on such terms and conditions as it undertakes to prescribe" ( Chew v. Colding, 344 U.S. 590, (1953); Carlson v. Landon, 342 U.S. 524 (1952); and Harisiades v. Shaughnessy, 342 U.S. 580 (1952). This administrative hearing, accorded under section 242 of the Immigration and Nationality Act, provided for the alien procedural due process ( Marcello v. Ahrens, 113 F.Supp. 22 (E.D.La., 1953)).
We find that counsel's objections are without merit and that the appeal should be dismissed.
Order: It is ordered that the appeal in this case be and the same is hereby dismissed.