A-9539248
Decided by Board July 25, 1951
"Hearing" in expulsion proceedings — Validity of hearing held after enactment of act of September 23, 1950, and act of September 27, 1950, but before the publication of pertinent regulations respectively in the Federal Register on November 28, 1950 (which regulations were declared effective on September 23, 1950), and on November 10, 1950 (which regulations became effective then, but were declared to cover hearings after September 27, 1950).
(1) A warrant hearing held on October 10, 1950 (subsequent to February 20, 1950, the date of decision in Sung v. McGrath, 339 U.S. 33) is not deemed invalid, though conducted pursuant to the requirements of the above Sung decision. Since the enactment of the act of September 27, 1950 (P.L. 843, 81st Cong.) relaxed rather than increased the requirements incident to the conduct of such a hearing by removing deportation proceedings from the purview of the provisions of section 5, 7, and 8 (5 U.S.C. 1004, 1006, 1007) of the Administrative Procedure Act of 1946.
(2) Neither is such warrant hearing held on October 10, 1950 deemed invalid though the enactment of the act of September 23, 1950 (the Internal Security Act of 1950) amending section 20 of the Immigration Act of February 5, 1917, as to which country the alien shall be deported occurred before such hearing, and the publication of pertinent regulations thereunder on November 28, 1950, occurred subsequent to such hearing, it being noted these regulations were declared to be effective as of September 23, 1950, and the hearing officer having made no findings in his written decision on December 11, 1950, to which country the alien shall be deported was acting in conformance with the above regulation in force by December 11, 1950.
(3) Reading of the record compels the conclusion it fully conforms to the formalities of present law and present regulations, and to conduct a rehearing as requested by counsel would be an idle thing.
BEFORE THE BOARD
Discussion: The Assistant Commissioner has ordered that the respondent be deported and in doing so has denied the application for voluntary departure. Appeal has been taken to us from that order.
The respondent is a native of Turkey, citizen of Greece, who last entered the United States at Baltimore on May 14, 1949, as a seaman. The basis for the order of deportation is that the alien has remained here longer than permitted by the terms of his admission.
We heard counsel in oral argument, during which he attacked the validity of the hearing. He made known that the relief he seeks is a grant of voluntary departure without an order of deportation. The hearing was held on October 10, 1950, subsequent to the enactment on September 23, 1950, of the Internal Security Act and the enactment on September 27, 1950, of Public Law 843, 81st Congress, and prior to modification of pertinent provisions of the regulations bringing them current with the law as changed by those enactments.
Counsel stated that this was the second hearing, the need therefor being occasioned by the decision of the Supreme Court in the case of Sung v. McGrath, 339 U.S. 33, 1950.
Examination of the regulations shows various changes therein, declared as effective on September 23, 1950, and published in the Federal Register on November 28, 1950.
He concedes, as we understand him, that the hearing conformed to the requirements existent prior to the enactments cited, but contends that hearings can be held only under validly existing regulations and under existing law. He seeks a ruling concerning the alleged impropriety of holding a hearing during the interval involved and seeks relief in the form of voluntary departure without an order of deportation.
Public Law 843 removed deportation proceedings from the provisions of sections 5, 7, and 8 of the Administrative Procedure Act (5 U.S.C. 1004, 1006, 1007). It thus relaxed, rather than increased, the requirements incident to the conducting of a deportation hearing. Hence, counsel's objection is without substance insofar as it involves that statute.
The provision contained in the Internal Security Act pertinent to counsel's objection is the following:
SEC. 23. Section 20 of the Immigration Act of February 5, 1917, * * * is hereby amended to read as follows:
"SEC. 20. (a) That the deportation of aliens provided for in this act and all other immigration laws of the United States shall be directed by the Attorney General to the country specified by the alien, if it is willing to accept him into its territory; otherwise * * *. No alien shall be deported under any provisions of this act to any country in which the Attorney General shall find that such alien would be subjected to physical persecution." * * *
To quote from counsel's argument:
"* * * it is of the utmost importance that the alien himself testified that he would be subject to persecution if he were returned to Greece, and it was just forced aside and no finding whatsoever was made with respect to it by the hearing examiner. Now, under the new regulations and under the McCarran Act, if it had been properly set forth, there should be a finding, and as the court of appeals in the second circuit has held in the Harisiades decision (187 F. (2d) 137, 142 February 6, 1951), there must be a finding by the Attorney General with respect to that phase of the McCarran Act; and yet that was not done here. I say in that respect he certainly was prejudiced by the failure to have properly promulgated regulations at that time."
We quote the following from the regulation (stated to be effective September 23, 1950, and published in the Federal Register on November 28, 1950):
SEC. 151.5 Decision (a) Preparation by hearing officer of written decision. — * * * the hearing officer shall, as soon as practicable after the conclusion of the hearing, prepare in writing a decision, signed by him, which shall set forth a summary of the evidence adduced and his findings of fact and conclusions of law as to deportability. * * * The hearing officer shall have no authority * * * to designate * * * to which country the alien shall be deported (8 C.F.R.).
Examination of the decision of the hearing officer, dated December 11, 1950, shows that he conformed to the regulation which was then in force but which was promulgated subsequent to the hearing.
We must conclude from the foregoing that counsel's objection is likewise without substance with respect to the Internal Security Act.
Examination of the record shows the following:
Q. If you were to be deported, what country would you prefer deportation to, provided that you are acceptable to that country?
A. I would go to any country to which I could get permission to go.
Q. What would be your preference, provided you are acceptable to the country of your preference?
A. It is not a matter of choosing on my part. It depends what country will accept me.
Q. Would you say, then, that you have no particular preference?
A. I will make up my mind where to go when I am sure that I am to be deported.
* * * * * * *
(By RESPONDENT'S COUNSEL):
Q. You testified previously that you would prefer to go to any country that would admit you in the event you were deported. Does that include the country of Greece?
A. No.
Q. Do you mean by that that you prefer not to go to Greece if you had a choice?
A. Yes.
Q. Why do you prefer not to go to Greece?
A. The fact that I had been a member of the Greek Maritime Union makes me subject to persecution.
Q. What is the basis for your statement that you might be persecuted if you returned to Greece?
A. Because hundreds of Greek seamen have been imprisoned and some sentenced to death, and I conclude that the same fate would await me.
Q. Are the seamen that you are referring to seamen who were members of the Greek Maritime Union?
A. Yes.
Reading of the record compels the conclusion that it fully conforms to the formalities of present law and present regulations, and to conduct a rehearing as requested by counsel would be an idle thing.
It is thus apparent that (1) the respondent desires opportunity to depart from the United States without an order of deportation, and (2) if he is to be deported his objection lies to his being deported to Greece.
With respect to voluntary departure, his application therefor is an appeal to the exercise of administrative discretion. He testifies that he was a member of the National Maritime Union (commonly referred to as the O.E.N.O.) from 1941 to 1945, and from September 1944 to January 1945 he was an organizer of the organization. That organization has been included in the Attorney General's list of subversive organizations, and it is not the practice in such cases to grant administrative relief from deportation. Consistently with that practice, the application for voluntary departure will be denied.
With respect to the place of deportation, the respondent can have no complaint unless and until deportation be directed to Greece. It is apparent from the regulation that the determination of the country to which an alien is to be deported is primarily lodged with the administrative officer, and it does not appear from the record before us that such determination has been made. When made, if counsel apprehends that the respondent's rights under the law have been transgressed, he may resort to such remedy as he may find available.
Order: It is ordered that the applications for rehearing and voluntary departure be denied and the appeal be dismissed.