E-10345 (56319/97).
Decided by Board December 7, 1954.
Evidence — Alienage — Effect of silence — Examination by interrogatories — Burden of proof, deportation proceedings — Subpoenas.
(1) Government evidence in the form of respondent's marriage certificate, his record of arrival, and his child's birth certificate showing his birthplace to be Dundee, Scotland, outweighs his self-serving statements between 1927 and 1948 made in connection with his army enlistments and his registration as a voter to the effect that he was born in the United States.
(2) Respondent's refusal to be sworn as a witness and his failure to testify in his own behalf coupled with the evidence presented by the Government are sufficient to establish alienage.
(3) A hearing will not be reopened for the purpose of examining by means of interrogatories persons who made statements in exhibits which are no longer in evidence or which are not considered by the special inquiry officer or the Board in reaching a decision. In addition, there is no error in in the refusal of the special inquiry officer to permit the taking of interrogatories for the purpose of establishing that a baptismal record may not have been made contemporaneously.
(4) Under section 23 of the Immigration Act of 1924 and under section 291 of the Immigration and Nationality Act, the burden of proof in deportation proceedings is upon the alien to show the time, place, and manner of his entry into the United States, and the latter provision further provides that if the burden of proof is not sustained the alien shall be presumed to be in the United States in violation of law.
(5) There is no error in the special inquiry officer's denial of a request for a subpoena where the only purpose stated by counsel was to "discover" information which he believed would support his case, the request was not in any sense specific, and there was failure to comply with the provisions of 8 C.F.R. 287.4 (a).
CHARGES:
Warrant: Act of 1924 — No immigration visa.
Lodged: Act of 1952 — After entry, member of Communist Party of United States.
Act of 1952 — Failed to furnish notification of address.
BEFORE THE BOARD
Discussion: This case is before us on appeal from the decision of a special inquiry officer on July 6, 1954, directing that the respondent be deported.
The respondent is a 51-year-old male. The special inquiry officer found, in part, that the respondent was an alien; that he was born in Calcutta, India; that he last entered the United States on an unknown date subsequent to October 1937 and prior to the end of 1938; that he had not established that such entry was lawful; and that he had been a member of the Communist Party of the United States from 1938 until 1946.
We will first consider counsel's contention that the Government has not established that the respondent is an alien. Counsel offered in evidence four honorable discharge certificates from the United States Army, three being dated June 23 of the years 1930, 1933, and 1936, and the fourth being dated February 2, 1937. Each of these discharges contains the statement that A---- D---- M---- was born in Mankato, Minnesota. Counsel also presented exhibits D and E which show that on June 10, 1941, and on February 23, 1943, the respondent had stated that he was born at Mankato, Minnesota, and similar statements were made by him in 1946 and 1948 when he registered as a voter.
The Government offered in evidence photostatic copies of the "declarations" executed by the respondent at the time of each of the four enlistments mentioned above which show that he stated that he had been born at Mankato, Minnesota. Attached to exhibit R-10 is a clinical record showing that A---- M----, having the Army Serial number of the respondent, was admitted to the hospital at Schofield Barracks, T.H., on December 13, 1927, and that his birthplace was shown as "India."
Counsel requested that the hearing be reopened in order that a subpoena might be issued for the production of the Army records relating to the respondent's first enlistment, and he assumes that it was necessary for the respondent at that time to produce some evidence that he was born in the United States. If that were the case, it would seem that counsel should produce a copy of the evidence then submitted or state specifically what evidence was furnished. United States citizenship was not a requirement for enlistment in the United States Army and the regulations did not contain any specific requirement that proof be submitted to establish United States citizenship.
Par. 24, AR 600-750, June 3, 1931, as amended by C3, June 18, 1935 ( 10 C.F.R. 71.1 (a)), provided in part, "Any male person being a citizen of the United States or an alien who has legally declared his intention to become a citizen, * * * may be accepted for enlistment; * * *."
We are aware that it was not the practice of the War Department to require proof of United States citizenship in the case of a man applying for enlistment who claimed to be a native-born citizen and we are convinced that all of the pertinent information contained in the Army file of the respondent has been introduced in evidence. The honorable discharge certificates were offered in evidence by counsel on June 3, 1953, and if there had been evidence in the Army record establishing the respondent's birth in this country, we believe counsel would have obtained it heretofore. Insofar as the request for reopening is predicated on supposed additional information in the Army records, it will be denied.
From our review of the record, we observe that there is no evidence or testimony corroborating the respondent's claim that he was born in the United States and we also note that the evidence relied on consists solely of statements made by the respondent between 1927 and 1948. It is true that he was fairly consistent in asserting that he was born at Mankato, Minnesota, on various occasions during this period. Even as to that, there is the one conflicting statement in the clinical record of December 13, 1927, indicating that he was born in India. The record does not show whether he has claimed United States citizenship subsequent to 1948. The respondent refused to be sworn as a witness when called by the Government and he also failed to testify in his own behalf. Hence, counsel's assertion that the respondent was born in the United States is not even supported by any testimony of the respondent himself during the present proceeding. The record is also devoid of any testimony by the respondent as to whether he claims to have always been aware that he was born in the United States; if not, when and under what circumstances and by whom he was informed thereof; and where he claims to have resided in the United States following his birth.
As against the respondent's statements beginning in 1927 that he was born in the United States, the Government has presented evidence that prior thereto he had claimed that he was born in Scotland. Witness A---- R---- identified the respondent as her first husband and testified that he had informed her that he was born in Dundee, Scotland. She identified a certified copy of the record of her marriage on June 7, 1922, to the respondent; verification of A---- D---- M----'s arrival in the United States on June 8, 1922, accompanied by A----, 19 years of age; and certified copy of the birth registration of their child, J---- M---- M---- on March 27, 1923. Each of these documents shows A---- D---- M----'s birthplace as Dundee, Scotland. The Government also introduced a document verifying the arrival of A---- D---- M---- as a seaman at Boston, Massachusetts, on February 20, 1920, from Calcutta, India, which shows his citizenship as "British." We believe that this evidence, indicating that the respondent was not born in the United States, outweighs his self-serving statements, which were made at the time of his Army enlistments and in connection with his registration as a voter to the effect that he was born in the United States.
At a continued hearing on June 3, 1953, counsel offered in evidence a letter dated May 1, 1953, from La Martiniere College at Calcutta, India, showing that A---- D---- M---- was in attendance there from January 8, 1914, until December 31, 1919, and giving his date of birth as October 25, 1903. Counsel stated that this letter was being offered merely to establish the date of birth. Subsequently, on September 30, 1953, the Government presented a letter from the same school containing the entire record of A---- D---- M---- which, in addition to other information, shows his place of birth as "Calcutta."
During a further hearing on June 24, 1954, the Government offered in evidence exhibits R-17, R-18, and R-19. The special inquiry officer granted counsel's request for permission to prepare interrogatories for the purpose of questioning the persons who executed these three exhibits but later withdrew the grant thereof as to exhibits R-18 and R-19 after the respondent had refused to answer the specific question of whether he had been born in India. The officer representing the Service agreed to the withdrawal from the record of exhibit R-17 and it was then marked only for identification. It was not considered by the special inquiry officer and his decision shows that he also gave no weight to exhibit R-18. We have, therefore, eliminated these two documents from our consideration of the case.
Counsel contends that the hearing should be reopened in order that he may have an opportunity of examining, by means of interrogatories, the persons who made the statements contained in exhibits R-17, R-18, and R-19. Since R-17 (for identification) is no longer in evidence and since exhibit R-18 has not been considered by the special inquiry officer or us in disposing of the case, we will deny the request as to those two documents on that basis.
Exhibit R-19 is a printed form entitled "Certificate of BAPTISM solemnized at St. Andrew's Church, Calcutta, * * *." It shows that A---- D---- M---- was born on October 25, 1903, and was baptized on November 8, 1903. His parents are shown as A---- E---- and G---- M---- which is in agreement with the information as to the bridegroom's parents in exhibit 2. At the end of the document appears a signed certification dated April 19, 1954, to the effect that the foregoing is a true extract from the Register of Baptisms kept at St. Andrew's Church, Calcutta.
Counsel's request for the taking of interrogatories from the person who signed exhibit R-19 is based on the premise that the baptismal record may not have been made contemporaneously. We disagree with this supposition because we are convinced that ecclesiastical authorities do record baptisms as they occur and that it is not the practice to show the date the entry was made in the Register of Baptisms since this would ordinarily be the date of baptism or a day or two thereafter. In addition, the information shown in exhibit R-19 could only have been obtained contemporaneously with the baptism. Under the circumstances, we find no error in the refusal of the special inquiry officer to permit the taking of interrogatories from the chaplain who executed exhibit R-19, particularly since the respondent was asked whether he denied having been born in India and refused to answer.
Insofar as our reliance on exhibit R-19 is concerned, the facts are analogous to those in United States ex rel. Impastato v. O'Rourke, 211 F. (2d) 609 (C.C.A. 8, 1954), cert. den. 348 U.S. 827, in which the Government had produced affidavits and copies of records procured through the State Department from sources in Italy. The alien contended that the hearing was unfair because the documentary evidence obtained in Italy was hearsay and was not properly certified or authenticated and because he had no opportunity to cross-examine adverse witnesses. The Court of Appeals rejected these contentions and also said at page 611 that rules of evidence applicable in courts of law need not be followed in deportation hearings. On the authority of the cited case, we must also reject counsel's exceptions to the admissibility of exhibits R-15 and R-19.
In United States ex rel. Bilokumsky v. Tod, 263 U.S. 149 (1923), the Court stated, "Silence is often evidence of the most persuasive character." The Court in that case also stated that alienage is not an element of the crime of sedition and that Bilokumsky's testifying concerning his citizenship status could not have had a tendency to incriminate him. Similarly, alienage is not an element of section 2 of the Smith Act ( 54 Stat. 671). In accordance with the principle enunciated by the Court in United States ex rel. Bilokumsky v. Tod, supra, we believe that we are warranted in drawing an inference that the respondent is an alien from his silence in this proceeding. However, even without such inference, we believe the Government has met the burden of establishing alienage in this case.
In connection with the charge stated in the Immigration warrant of arrest, two government witnesses testified that they had seen the respondent in Spain about August, September, or October 1937 participating in the civil war under the name of Captain or Major A---- J----. Exhibit 7 includes a certification as to the non-existence of a record of the respondent's admission to the United States after June 8, 1922. Under section 23 of the Immigration Act of 1924 and under section 291 of the Immigration and Nationality Act, the burden of proof in deportation proceedings is upon the alien to show the time, place and manner of his entry into the United States and the latter provision further provides that if the burden of proof is not sustained, the alien shall be presumed to be in the United States in violation of law. The respondent has not testified in contradiction of the evidence that he was absent from the United States and he has furnished no information concerning the circumstances of his reentry. Since it is clear that such reentry occurred about 1937 or 1938 and the records of the Service fail to show that he was lawfully admitted, we conclude that he was not in possession of an unexpired immigration visa at that time and that the charge stated in the warrant of arrest is sustained.
The special inquiry officer has adequately reviewed the testimony of the Government witnesses concerning the respondent's membership in the Communist Party. Upon our consideration of the record, we find that there is reasonable, substantial and probative evidence that the respondent was a member of the Communist Party of the United States from approximately 1938 until at least 1946. We conclude, therefore, that the first lodged charge is sustained.
The remaining charge which was lodged was that the respondent had failed to furnish notification of his address or other information in compliance with section 265 of the Immigration and Nationality Act. Hence, it relates to information which the respondent was required to submit during January 1953. Counsel stated in his written exceptions that a letter containing the necessary information had been forwarded to the Service but the original letter is not part of the record and counsel did not state the date of the letter nor did he submit a copy thereof. The certificate of non-existence of a record shows only that there is no registration record of the respondent prior to October 14, 1952. Under the circumstances, we will pretermit the question of whether the charge under section 241 (a) (5) of the Immigration and Nationality Act is sustained and deportation will not be ordered on that ground.
Counsel's contentions that there was a lack of due process, that the judicial and prosecutive functions of the Service are merged in the same department and that there was a substitution of special inquiry officers are rejected on the basis of our decisions in Matter of C----, A-5487776, 4 IN Dec. 596, 603, decided November 19, 1952; Matter of K----, A-5204481, 5 IN Dec. 175 (March 18, 1953); Matter of R----, E-79791, 5 IN Dec. 589 (December 29, 1953). In connection with counsel's argument that the special inquiry officer should have granted the request for a subpoena upon the officer in charge of the Service at Pittsburgh, we note that the only purpose stated by counsel was to "discover" information which he believed would support his case, that the request was not in any sense specific and that there was a failure to comply with the provisions of 8 C.F.R. 287.4 (a). Consequently, we perceive no error in the special inquiry officer's denial of the request for a subpoena. We find no merit in the remaining contentions of counsel and these do not require specific discussion, No application for discretionary relief has been made. Accordingly, the following order will be entered.
Order: It is ordered that the special inquiry officer's order of July 6, 1954, be amended to read as follows:
ORDER: It is ordered that the alien be deported from the United States in the manner provided by law on the charge stated in the warrant of arrest and on the following lodged charge:
The Immigration and Nationality Act in that he has been, after entry, a member of the following class set forth in section 241 (a) (6) of said Act: An alien who was a member of the Communist Party of the United States.It is further ordered that the appeal be and the same is hereby dismissed.