A-6159647
Decided by the Board July 29, 1953
Hearing Officer — Charge of bias — Motion for change of venue — Jurisdiction to rule on — No Appeal.
(1) In the absence of statute or regulation providing a procedure therefor, the power to rule on the challenge by counsel of the qualifications of the hearing officer on the ground of prejudice and bias and for change of venue on the same ground is held to lie solely with the hearing officer, and in the event of a ruling adverse to counsel the hearing officer may direct the hearing to proceed to a conclusion.
(2) No appeal lies from the ruling of the hearing officer dismissing a motion addressed to his qualifications, although the question of personal prejudice and bias on the part of the hearing officer may be considered by the Board upon appeal when raised by counsel.
(3) There is no abuse of discretion or unfairness to an alien in the choice of a place for a deportation hearing easily accessible to the witnesses and the alien, although counsel had asked to have the hearing at the immigration station in a different place.
CHARGES:
Warrant: Act of 1924 — Remained longer — Visitor.
Lodged: Act of 1924 — No immigration visa.
BEFORE THE BOARD
Discussion: Warrant of arrest in the instant proceedings was issued October 14, 1949, and served October 14, 1949, upon the alien. The alien was given a hearing before a hearing officer at Hartford, Conn., on January 8, 1952, and during the course thereof the additional charge stated above was lodged. Counsel was informed by the hearing officer of his right to request an adjournment in order to afford him an opportunity to prepare a defense against the lodged charge, and upon counsel's indication that he desired additional time, a continuance was granted to February 7, 1952. In the interim, counsel submitted a motion for a new hearing on the ground that the hearing officer was prejudiced and for change of venue to some location other than Hartford, preferably Newark, N.J. On January 29, 1952, the hearing officer denied the motion for a new hearing. This denial was reviewed by the Assistant Commissioner who decided that action on the motion of counsel should be denied for lack of jurisdiction, but certified the case to this Board.
The regulations then in effect dealing with hearings and adjudications in deportation proceedings were treated in part 151, title 8, Code of Federal Regulations. The regulations, 8 C.F.R. 151.2 (a), then governing the conduct of hearings provided that hearing officers should conduct the hearing and rule upon all objections to the introduction of evidence or motions made during the course of the hearing, and take any other action consistent with applicable provisions of law and regulations. Subsection (b) of section 151.2, 8 C.F.R. deals with the general duties of hearing officers and prescribes that the hearing officer shall conduct a fair and impartial hearing; shall use his independent judgment in rendering his decision; exclude from the record any evidence that is irrelevant, immaterial or unduly repetitious; and within his discretion exclude from the record any arguments in support of objections subject to the right of the alien or counsel to submit argument in the form of a brief to accompany the record. The next relevant subsection, 8 C.F.R. 151.2 (e), dealing with withdrawal and substitution of hearing officer, provides, inter alia, that the hearing officer assigned to conduct the hearing in any case may at any time withdraw if he deems himself disqualified.
These regulations do not appear to embody any provisions or procedure regarding the right to challenge the qualifications of the hearing officer; or to review a dismissal by the hearing officer of a motion to disqualify on the ground of personal bias or prejudice; or to entertain motions for change of venue or review thereof on the ground of bias or prejudice. It is of course elementary that the one who hears must be unbiased. A hearing by a biased judge is not in conformity with due process. These rules apply to administrative agencies and their examiners or hearing officers which conduct adversary proceedings as such proceedings resemble judicial trials. The right to challenge the qualification of a member of an administrative agency is a matter for Congress to decide, and, in the absence of statutory provisions, no such right will be conferred by the courts.
Cf. Section 242 (b) Immigration and Nationality Act and 8 C.F.R. 242.53 ( 17 F.R. 11469, December 19, 1952).
Vom Baur, F. Trowbridge, Federal Administrative Law (1942), vol. 1, p. 315; Inland Steel v. National Labor Relations Board, 109 F. (2d) 9; Cupples Co. Mfrs. v. National Labor Relations Board, 106 F. (2d) 100; Montgomery Ward v. National Labor Relations Board, 103 F. (2d) 147.
Marquette Cement Mfg. Co. v. Federal Trade Commission, 147 F. (2d) 589.
Where such statutory authority has been conferred by Congress, such statutory provisions for recusing judges are obviously not applicable save in those rare instances in which the affiant is able to state facts which tend to show not merely adverse rulings already made, which may be right or wrong, but facts and reasons which tend to show personal bias or prejudice. It was never intended to enable a discontented litigant to oust a judge because of adverse rulings made, for such rulings are reviewable otherwise, but to prevent his future action in the pending cause. Neither was it intended to paralyze the action of a judge who had heard the case, or a question in it, by the interposition of a motion to disqualify him between a hearing and a determination of the matter heard. In order to warrant setting aside an order based on proceedings held before an allegedly prejudiced examiner, prejudice of a personal nature must be clearly shown.
Ex parte American Steel Barrel Co., 230 U.S. 35; Craven v. United States, 22 F. (2d) 605, cert. den., 276 U.S. 627.
National Labor Relations Board v. Ford Motor Co., 114 F. (2d) 905, cert. den., 312 U.S. 689.
In the absence of any statutory provision regarding the right to challenge the qualification of the hearing officer on the ground of prejudice and bias, it is believed that such a motion for the disqualification of a hearing officer or for a change of venue should be addressed to the hearing officer for ruling. This would be in line with the decisions that held that the judges against whom certain affidavits of prejudice and bias are filed have a lawful right to pass upon the legal sufficiency thereof. Where the hearing officer overrules affidavits of bias and prejudice it is proper for him to proceed with the hearing of the case. The alien or his counsel may note exceptions and in connection with appeal raise the issues of fair hearing and due process.
Berger v. United States, 255 U.S. 22; Craven v. United States, fn. 4 ( supra).
Cf. United States v. Flegenheimer, 14 F. Supp. 584, appeal dismissed 110 F. (2d) 379, in which the court held that the remedy for bias and prejudice of judges arising out of actual proceedings in the cause is by way of appeal through assignment of error and exception in the record and not by way of change of judicial venue.
In view of the fact that the case is before us, we have taken occasion to examine the record and the transcript of the testimony fails to disclose any prejudicial error or any bias on the part of the hearing officer. The allegation made by counsel as to certain derogatory remarks passed by the hearing officer does not appear of record, and if true, is to be deplored and should not be repeated. However the mere fact that a trial examiner cross-examines witnesses and makes a few remarks tinged with sarcasm not appropriate to a judicial officer will not necessarily in and of itself make the hearing unfair in the constitutional sense.
Inland Steel v. National Labor Relations Board, 109 F. (2d) 9; Montana Power Company v. Public Service Commission, 12 F. Supp. 946.
Determining the place at which a hearing shall be held is a matter of administrative discretion. There is no abuse of discretion or unfairness to an alien in the choice of a place for a deportation hearing easily accessible to the witnesses and the alien, although counsel had asked to have the hearing at the immigration station in a different place.
In conclusion therefore we hold that the power to rule on the challenge by counsel of the qualifications of the hearing officer on the ground of prejudice and bias and for change of venue on the same ground lies solely with the hearing officer, and in the event of a ruling adverse to counsel, the hearing officer may direct the hearing to proceed to a conclusion. No appeal lies from the ruling of the hearing officer dismissing the motion addressed to his qualifications and we are therefore without jurisdiction to entertain this appeal. We do possess ultimate jurisdiction upon appeal where counsel raises the point by exceptions or in his brief for the reason that a hearing by an officer who is in fact guilty of personal prejudice and bias would be contrary to due process and would not constitute a fair hearing.
Order: It is ordered that the cause be dismissed for lack of jurisdiction and that the case be remanded for further proceedings in accordance with applicable laws and regulations.