56042/980
Decided by the Board February 13, 1943.
Warrant of arrest — Supporting evidence — Procedure.
1. An application for a warrant of arrest must be supported by substantial evidence.
2. A warrant of arrest that has been issued on insufficient supporting evidence, will not be nullified provided sufficient evidence is presented at the warrant hearing to sustain the deportation charge and the alien is given an opportunity to rebut such evidence.
CHARGE:
Warrant: Act of 1924 — Remained longer than permitted.
Mr. James M. Sheridan, of Los Angeles, Calif., for the respondent.
Mr. Irving Jaffe, Board attorney-examiner.
STATEMENT OF THE CASE: This record relates to a native and citizen of Germany, 40 years old and married, who last entered the United States at the port of New York on July 15, 1938, as a temporary visitor for 4 months. The record indicates that the respondent obtained several extensions of his temporary visit, but nowhere does it appear when the last extension expired.
The warrant of arrest was issued upon the basis of three sworn statements none of which were signed by, nor submitted for signature to, the respective affiants. The first of these statements is a transcript of the testimony taken from the respondent himself on November 7, 1938. His time to remain in the United States as a visitor was not to expire until November 15, 1938. Hence this statement does not and cannot show that the respondent's presence in the United States was contrary to law. The second statement was taken from the respondent's wife on April 20, 1940, and shows that the respondent and his wife were then separated, and that the respondent's visit to the United States was to expire on April 27, 1940, 1 week later. The third statement was taken from the respondent on April 29, 1940, and shows that an application for a further extension was then pending before the Secretary of Labor. The warrant of arrest itself was not introduced into the evidence. The warrant hearing contains no independent evidence in support of the charge contained in the warrant, complete reliance being placed by the Government on the [statements] hereinbefore described.
DISCUSSION: Under the rules and regulations in effect today, [these statements] are not even admissible in evidence. Although similar instructions were not in effect at the time this hearing was conducted, the pertinent portion of former rule 19 did provide:
Code of Federal Regulations, title 8, sec. 150.6 (i).
SUBDIVISION B. — APPLICATION FOR WARRANT OF ARREST
PARAGRAPH 1. The application must state facts showing prima facie that the alien comes within one or more of the classes subject to deportation after entry, and, except in cases in which the burden of proof is upon the alien (Chinese) involved, should be accompanied by some substantial supporting evidence.
These minimum requisites are lacking in this case. The warrant, therefore, was issued on insufficient supporting evidence. This deficiency does not nullify the entire proceeding, provided, however, that the warrant hearing is fair and sufficient evidence is there presented to sustain the deportation charge ( Toku Sakai v. United States, 239 F. 492). The hearing in this case, however, has not supplied, by additional evidence, sufficient facts to show that the respondent comes within one of the classes subject to deportation.
The files of this Department contain documents that show clearly that the respondent had received several extensions of his visit, and they also show when the last extension expired; but these records were not introduced into evidence, the respondent has had no opportunity to rebut them, and we, therefore, cannot consider them. In the case of Interstate Commerce Commission v. Louisville Nashville Railroad Company, 227 U.S. 88 (at page 93), the Supreme Court discussed hearings before the administrative bodies as follows:
The Commission is an administrative body and, even where it acts in a quasi judicial capacity, is not limited by the strict rules, as to the admissibility of evidence, which prevail in suits between private parties ( Interstate Commerce Commission v. Baird, 194 U.S. 25, 48 L. ed. 860, 24 S. Ct. Rept. 563). But the more liberal the practice in admitting testimony, the more imperative the obligation to preserve the essential rules of evidence by which rights are asserted or defended. In such cases the Commissioners cannot act upon their own information, as could jurors in primitive days. All parties must be fully apprised of the evidence submitted or to be considered, and must be given opportunity to cross-examine witnesses, to inspect documents, and to offer evidence in explanation or rebuttal. In no other way can a party maintain its rights or make its defense. In no other way can it test the sufficiency of the facts to support the finding; for otherwise, even though it appeared that the order was without evidence, the manifest deficiency could always be explained on the theory that the Commission had before it extraneous, unknown, but presumptively sufficient information to support the finding.
The court reiterated this position in Baltimore Ohio Railroad Company v. United States, 264 U.S. 258 (at p. 265).
The Constitutional guarantees accorded all persons in the United States include protection from abuse of power by executive officers. In the case of Kwock Jan Fat v. White, 253 U.S. 454, the Secretary of Labor had failed to preserve a record of evidence favorable to the petitioner. Despite the fact that the Commissioner of Immigration acknowledged by letter that this evidence would be considered by him, the court held that the mere failure to preserve such a record rendered a hearing based upon it unfair. The court said, at page 464:
The acts of Congress give great power to the Secretary of Labor over Chinese immigrants and persons of Chinese descent. It is a power to be administered, not arbitrarily and secretly, but fairly and openly, under the restraints of the tradition and principles of free government applicable where the fundamental rights of men are involved, regardless of their origin or race. It is the province of the courts, in proceedings for review, within the limits amply defined in the cases cited, to prevent abuse of this extraordinary power, and this is possible only when a full record is preserved of the essentials on which the executive officers proceed to judgment. For failure to preserve such a record for the information, not less of the Commissioner of Immigration and of the Secretary of Labor than for the courts, the judgment in this case must be reversed. It is better that many Chinese immigrants should be improperly admitted than one natural-born citizen of the United States should be permanently excluded from his country.
We have no evidence before us showing that the respondent is deportable on the ground stated in the warrant of arrest, although ample evidence exists that establishes such fact. But this evidence has not been introduced into the record, the respondent has had no opportunity to rebut it, and we may not, therefore, consider it. The hearing in this case should be reopened so that evidence sufficient to sustain the charge contained in the warrant of arrest may be introduced into evidence, and the respondent given full opportunity to rebut it.
ORDER: It is ordered that the hearing in this case be reopened in accordance with the foregoing.