A-6665545
Decided by the Board June 30, 1953
Hearing, exclusion procedure proper for returning resident aliens seeking readmission to United States; notice of names of witnesses prior to hearing not required — Evidence, nature of testimony by witnesses, use of prior statements given by witnesses — Special inquiry officer, right to question witnesses produced in behalf of alien.
(1) A returning resident alien seeking readmission to the United States, who is required to be given a hearing sufficient to meet the requirements of procedural due process, is properly given an exclusion hearing, rather than a deportation hearing, since his admissibility can properly be determined only in an exclusion hearing. This is true with respect to cases which arose under the laws in effect prior to December 24, 1952, as well as those which arise under the Immigration and Nationality Act of 1952.
(2) Witnesses, who were formerly Communist Party members, may testify as to whether an individual ran for office on a Communist Party slate.
(3) Refusal of a witness to furnish his address or place of employment because of fear of harm to himself or his family does not warrant striking of his testimony from the record where the witness was extensively questioned on cross-examination and his address and place of employment were not patently material.
(4) Statements of witnesses taken before a hearing need not be made available to opposing counsel for exploratory purposes and if such statement or notes are not used at the hearing, the opposing party has no absolute right to have them produced and to inspect them.
(5) Opposing counsel need not be informed prior to the hearing of the names of the witnesses to be used to establish the Government's case.
(6) A special inquiry officer may properly question a handwriting expert and a notary public produced at the hearing as witnesses in behalf of an alien.
EXCLUDABLE:
Act of October 16, 1918, as amended by the Internal Security Act of 1950 — Had been a member of the Communist Party of the United States.
BEFORE THE BOARD
Discussion: Section 1 of the act of October 16, 1918, as amended by section 22 of the Internal Security Act of 1950, makes mandatory the exclusion of aliens who are or who at any time have been voluntary members of the Communist Party. After hearing before a special inquiry officer, C----, an alien, has been found to have been a voluntary member of the Communist Party from at least 1945 to 1948 and has been excluded. He has taken this appeal from the order of exclusion.
Appellant is a 38-year-old male, a native and citizen of China, who had previously been admitted for permanent residence. He has always maintained his domicile in the United States since that admission. He departed in connection with his employment as a crewman and last arrived in the United States on March 10, 1951, as a crewman. He sought readmission to resume residence. The exclusion with which we are concerned was ordered on April 22, 1953. The history of the period between the date of his application for admission and this exclusion will be dealt with hereafter.
MEMBERSHIP IN THE COMMUNIST PARTY
The Service relies upon three witnesses, all native-born citizens and all former members of the Communist Party. Their testimony is set forth in great detail in the order of the special inquiry officer and need not be repeated. Very briefly, they stated that they had each attended at least one (not necessarily the same) meeting of the Communist Party closed to all but members of the Communist Party and that they saw appellant in attendance; two testified they saw appellant present his Communist Party membership card to gain admission to the meeting; all three testified that he had run on a Communist Party slate of candidates for office in a seaman's union; and each testified that they saw him distribute Communist Party literature. C---- denied under oath that he had ever been a member of the Communist Party, or had ever attended meetings of the Communist Party.
We have carefully examined counsel's contention concerning the credibility of the Government witnesses. His objections are addressed primarily to minor inconsistencies in testimony concerning events which are not recent and which essentially relate to collateral matters. It is recognized that the majority of witnesses testify with inaccuracy as to details. The minor inaccuracies in the instant case have been carefully considered and found not to detract substantially from the value of the testimony given. Attack on the credibility of Government witness G---- for use of an affidavit allegedly made by him in a collateral matter has been adequately analyzed by the special inquiry officer. We would not sustain a finding of membership in the Communist Party based solely upon the testimony of witnes G----. However, it must be noted that his testimony is corroborated in essence by that of two other witnesses whose credibility there is no reason to doubt. We find that the evidence of record establishing that the appellant was a member of the Communist Party from at least about 1945 to at least 1948 is reasonable, substantial and probative.
Rue v. Feuz Construction Co., 103 F. Supp. 499, 505 (D.C., D. of C., 1952).
Other objections of counsel will now be considered.
Counsel contends that there is no showing that the slate on which the appellant ran for union office was a Communist Party slate. It is true that no documentary evidence to establish the nature of the slate was presented; however, three witnesses identified that slate as the one of the Communist Party. Each of these witnesses was himself a former communist. They were subjected to extensive cross-examination. The appellant himself was not specifically questioned as to whether the slate on which he ran was a communistic one, but notice is taken of the fact that he denied ever having been a member of the Communist Party or knowingly associated with Communists. We believe, as a matter of practicality, the conclusion of each Government witness that the slate on which the appellant ran was that of the Communist Party was properly admitted into evidence and under the circumstances establishes that fact.
See United States v. Schneiderman, 106 F. Supp. 892, 903 (S.D. Calif., 1952).
Counsel takes exception to the fact that the special inquiry officer questioned a handwriting expert and a notary public presented on behalf of appellant. This complaint may be answered by noting that section 236 (a) of the Immigration and Nationality Act specifically authorizes the special inquiry officer in an exclusion case to "examine and cross-examine the alien or witnesses." Moreover, a hearing officer "is not required to sit by and permit a confused or meaningless record to be made. One of his functions is to see that the facts are clearly and fully developed."
National Labor Relations Board v. Bryan Manufacturing Co., 196 F. (2d) 477 (C.A. 7).
Counsel urges that recess called by the special inquiry officer during witness G----'s cross-examination is evidence of bias. We have previously indicated that G----'s testimony is acceptable because it is corroborated by the testimony of two other witnesses. The reason for the calling of the recess is not clear from the record. To find bias because of this incident would be to ignore the finding of impartiality that a review of the entire record makes inescapable. It would be to ignore a record which reveals that the special inquiry officer acted independently; fairly; permitted appellant to present evidence, object, cross-examine; considered all evidence of record whether favorable or unfavorable to the appellant; and made his decision solely on the basis of the record. A finding of bias is unjustified.
Witness G---- refused to give his address or the name of the ship on which he was employed on the ground that it might result in harm to himself or his family. Counsel urges that this failure is a clear ground for striking out G----'s testimony. Dubeau v. Smithers, Court of Appeals, District of Columbia, April 16, 1953, is cited in support of the contention. The case cited by counsel (reported under the name Du Beau v. Smither and Mayton, Inc., 203 F. (2d) 395 (C.A., D. of C.) is a civil action for damages which involved the refusal of a witness to a deposition to reveal his occupation and place of abode other than to indicate it was 4 or 5 hundred miles from Washington, D.C. The refusal was based upon "personal reasons." The circuit court held that there had been a substantial deprivation of the right of cross-examination and ordered the deposition stricken. The Court distinguished the situation before it from the situation in United States v. Easterday, 57 F. (2d) 165 (C.A. 2), a criminal prosecution where the main witness for the Government had refused to furnish her place of residence because of threats which had been made against her. In the Easterday case, there had been a thorough and prolonged cross-examination of the witness in question. The court held that under the circumstances, the question as to residence had no bearing on the witness' credibility and "was not inevitably and patently material."
In view of the prolonged cross-examination given to G---- and the fact that investigation concerning his character could have been conducted through the union hall with whose activities the appellant was familiar, and in view of the fact that his testimony is corroborated by two other witnesses, we believe that the situation before us is more closely analogous to that in the Easterday case than in the Du Beau case.
The Service was unable to locate G---- to produce him for additional cross-examination in connection with a collateral issue at a continued hearing. We do not believe this inability to produce him resulted in prejudice to the appellant or that the fact that the witness was seen several days after the hearing is evidence of bad faith on the part of the Service.
Counsel contends that error was committed by the special inquiry officer's refusal to comply with counsel's demand that inspection be permitted of statements made by Government witnesses to investigators prior to the hearing. These statements were not introduced into evidence nor did the Government make any use of them in the case. There was a complete lack of showing by counsel that the papers in question were relevant for the purpose of impeachment. Under such circumstances, it is well settled that the statement of a witness taken before a hearing will not be made available for exploratory purposes and that where a witness does not use his notes at a hearing, the opposing party has no absolute right to have them produced and to inspect them.
Goldman v. United States, 316 U.S. 129, 132 (1942); C.W. Hull Co. v. Marquette Cement Manufacturing Co., 208 F. 260, 265 (C.C.A. 8, 1913); National Labor Relations Board v. T.W. Phillips Gas Oil Co., 141 F. (2d) 304, 306 (C.C.A. 3, 1944); Arnstein v. United States, 296 F. 946, 950 (C.A.D.C., 1924); United States v. Rosenfeld, 57 F. (2d) 74, 76, 77 (C.C.A. 2, 1932), reargument denied, April 1, 1932.
Refusal by the hearing officer to comply with counsel's demand that two Government witnesses produce seamen discharges went to a collateral matter and was within the discretion of the special inquiry officer. We find no abuse of this discretion. We would give similar answer to counsel's contention that there was error in permitting the Government to withhold from the hearing the record of a prior hearing in suspension of deportation proceeding where the Government conducted an investigation which apparently failed to reveal any information that the appellant was a member of the Communist Party.
The Service originally charged the appellant with membership in the Communist Party from 1945 to 1947 but at the hearing amended the charge to include the period from 1943 to 1950. The special inquiry officer found the charge sustained only as to membership during the period from 1945 to 1948. Counsel contends it was error on the part of the special inquiry officer to receive evidence concerning a period not originally charged. No authority is cited for his contention. We believe it well settled that in an administrative proceeding of this nature, the Service may press any ground or consider any evidence which establishes that an alien's presence in the United States is illegal.
United States ex rel Jelic v. District Director, 106 F. 2d 14 (C.A. 2); Guiney v. Bonham, 261 F. 582 (C.A. 9); Catalano v. Shaughnessy, 197 F. (2d) 65 (C.A. 2, 1952).
Counsel finds error in the fact that the Service, to establish appellant's membership in the Communist Party, utilized two witnesses who counsel had not been informed in advance were to be used. We find no error in such a fact. These witnesses were available for cross-examination and there is no showing a recess or continued hearing would not have been granted to permit additional cross-examination had circumstances justified it.
PROCEDURAL QUESTION
Appellant was given an exclusion hearing. Counsel contends that he should have been given a deportation hearing. We have up to this point avoided a discussion as to the technical nature of the proceeding in which the appellant was excluded because whether the process were in deportation or exclusion, we would make the same finding that voluntary membership in the Communist Party had been established and that appellant's admission or stay in the United States would be in violation of law. We believe appellant's admissibility could properly be determined only in an exclusion hearing.
An application for admission is a continuing one. We therefore see no reason why the procedural rules in effect at the time of the hearing would not be applicable. Under the Immigration and Nationality Act ( supra), which became effective December 24, 1952, in a deportation proceeding, the burden of establishing deportability is upon the Service whereas in an exclusion proceeding, the burden of proving admissibility is upon the applicant for admission. In both proceedings, an alien is entitled to representation, to present witnesses and evidence, and to cross-examine. In deportation proceedings, the law specifically requires the alien be given reasonable notice of the nature of the charges and of the time and place at which proceedings will be held. There is no corresponding provision relating to exclusion cases; however, appellant was given such notice. In deportation proceedings, the law requires the decision of deportability to be made on reasonable, substantial and probative evidence. There is no similar expressed provision relating to exclusion cases. Both exclusion and deportation proceedings are held before a special inquiry officer whose determination is reviewable on appeal with certain exceptions not applicable herein (secs. 244 and 291 of the Immigration and Nationality Act). The procedure and rights under prior laws were very similar.
Exclusion of the appellant is sought not under administrative regulations concerned with certain security cases, but under a law expressly requiring the exclusion of a person who at any time had been a member of the Communist Party of the United States. His case cannot be differentiated from that of any alien seeking admission. As to such an alien, the law is clear and has been long established. An alien who is an applicant for admission, although physically present in the United States, is regarded as if he had been stopped outside the borders until he is admitted or gains entry illegally. Whether he seeks to enter the United States for the first time or return to his lawful domicile, he is subject to all applicable immigration laws, and the burden is upon him to establish his right to enter. This is so even though he claims the right to enter as a United States citizen returning to his residence. An alien seeking admission may or may not be entitled to a hearing. If entitled to a hearing, it must be one in which the alien receives due process and it has always been a hearing in exclusion not in deportation.
Shaughnessy v. United States ex rel Mezei, 345 U.S. 206, 213, 97 L. ed (advance p. 554); United States ex rel. Polymeris v. Trudell, 284 U.S. 279; Quon Quon Poy v. Johnson, 273 U.S. 352; United States ex rel Lapides v. Watkins, 165 F. (2d) 1017 (C.A. 2); Rash v. Zurbrick, 75 F. (2d) 934 (C.A. 6); See Low King Yong v. Pan American Airways, 74 F. Supp. 657 (D.C.D. Hawaii); Lum Man Sing v. Acheson, 98 F. Supp. 777 (D.C., Hawaii); Matter of H---- H----, and H---- M----, A-7196985, A-7197070, 3 IN Dec. 680.
Kwong Hi Chew v. Colding, 344 U.S. 590 (1953).
Shaughnessy v. United States ex rel Mezei, 345 U.S. 206, 97 L. ed. (advance p. 554).
O'Connell ex rel. Kwong Han Foo v. Ward, 126 F. (2d) 615 (C.A. 1); United States ex rel. Medeiros v. Watkins, 166 F. (2d) 897 (C.A. 2d); see Tang Tun v. Edsel, 223 U.S. 673, 681, 682; Morgan v. United States, 304 U.S. 1; rehearing denied, 304 U.S. 23 (1938).
See cases cited in footnote 8.
Counsel seeks to upset these well established rules solely on the basis of an inference he draws from the decision of the United States Supreme Court in a case which involved the instant appellant ( Kwong Hi Chew v. Colding, 344 U.S. 590). The Supreme Court decision was occasioned by the following circumstances.
At the time of appellant's application for admission as a seaman on March 10, 1951, he was ordered temporarily detained under administrative regulations on the ground that he was an alien whose entry into the United States would be deemed prejudicial to the interest of this country. He was not given a hearing or information as to the charges against him. This temporary exclusion was made permanent on April 18, 1951, by the Attorney General who in the same order denied the respondent the right to a hearing. An appeal from this decision was pursued to the United States Supreme Court which on February 9, 1953, ruled that administrative regulations authorizing exclusion of aliens without hearing [emphasis added] were inapplicable to one like Chew. The Court held that Chew was entitled to a hearing sufficient to meet the requirements of procedural due process.
After the Supreme Court decision, Chew was given his choice of a hearing before a board of special inquiry which under the law in effect at the time he arrived was the proper body for determining the admissibility of an alien applying for admission into the United States or before a special inquiry officer who under the Immigration and Nationality Act which became effective December 24, 1952, replaced the board of special inquiry. Chew refused to make a choice on the ground that he was entitled to a deportation hearing and not to an exclusion hearing. He was then given an exclusion hearing before the special inquiry officer from whose decision he has appealed.
The Supreme Court did not in the Chew case discuss the nature of the hearing to be granted him. The court stated "the issue is not one of exclusion, expulsion or deportation. It is one of legislative construction and procedural due process." The court further stated that they did not reach the question whether or not for immigration purposes Chew was to be "treated as an entrant alien." In the case of Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, the Supreme Court characterized the Chew case as one where they "held the administrative regulations authorizing exclusion without hearing in certain security cases [emphasis added] inapplicable to aliens" protected by the fifth amendment. It is clear to us that the sole issue decided by the Supreme Court was that if the Service desired to exclude Chew on the ground that his entry would be prejudicial, he was entitled to a hearing.
It is important to a clear understanding of the issue that iteration of a fact previously stated be made at this point. The Service no longer proceeds on the theory that Chew's entry would be prejudicial. That approach has been abandoned. The situation before the Supreme Court is not the situation with which we are faced. In this proceeding, Chew stands like any other alien, an applicant for admission under the laws of this country regulating the entry of aliens. The Service contends he is inadmissible not under an administrative regulation, but under a section of law barring aliens who have at any time been members of the Communist Party of the United States. He has been given the hearing ordinarily afforded an applicant for admission to enable such person to establish his admissibility. It is clear that the Supreme Court in the Chew case did not have before it the ordinary exclusion case such as this is. We believe the Supreme Court decision in the Chew case is therefore inapplicable to the present exclusion case. In any event, we find no conflict in it with the well established rules concerning the burden placed upon an applicant for admission and the nature of the proceeding in which he may establish his claim to admission. In the absence of such conflict; in view of the refusal of the court to deal with the question; and in the absence of argument or consideration of the general proposition, we cannot hold that the court directed such a far-reaching and revolutionary concept as is contended by counsel.
Our summary of law has been based on cases decided under laws in effect prior to December 24, 1952, the effective date of the Immigration and Nationality Act, a codification of previous existing law. Counsel points to nothing in the act itself or interpretations of the act which would change this summary and our examination finds nothing to justify a different position.
That the new act contemplated no change is apparent to us. Chapter 4 of the act is headed "Provisions relating to entry and exclusion." Chapter 5 is headed "Deportation; adjustment of status."
"Arrival" as used in chapter 4 is defined by 8 C.F.R. 1.1 (b) as meaning any coming from a foreign port. Chapter 4 requires the inspection of "All aliens arriving at ports of the United States" (sec. 235 (a) (b)); it provides that the special inquiry officer shall determine whether an arriving alien who has been detained for further inquiry shall be allowed to enter or "shall be excluded"; the proceeding before the special inquiry officer "shall be the sole and exclusive procedure for determining admissibility of a person to the United States." And in section 212 of the act, "general classes of aliens ineligible to receive visas or excluded from admission" is contained a grant of authority to the Attorney General to readmit in his discretion, certain lawfully domiciled aliens who would otherwise be barred by law from returning to their home in the United States.
In the only case, we have found which deals specifically with the problem, the court held that the person involved, who upon departure from the United States was admittedly a United States citizen of long residence and who sought to reenter as a United States citizen but was refused admission and was held pending determination of her claim, was not entitled to bond which was provided for in deportation cases since hers was a case in exclusion.
United States ex rel. Allcorn v. District Director, 111 F. Supp. 6 (S.D.N.Y., 1953).
It is clear that the exclusion proceedings used herein were alone proper.
The hearing given appellant was one provided by law. He has been given reasonable notice of the time and place of the hearing and the nature of charges against him and reasonable opportunity to meet these charges. Representation was permitted. He was given an opportunity to present evidence, to make objections, and to cross examine. The hearing was held before a special inquiry officer who acted fairly and impartially. His decision is based solely upon evidence of record. We believe the requirements of procedural due process have been met. The appeal will be dismissed.
Bauer v. Acheson, 106 F. Supp. 445 (D.C., D. of C., 1953).
Order: It is ordered that the appeal be and the same is hereby dismissed.