E-79791
Decided by the Board December 29, 1953
Deportation hearings are exempt from the provisions of the Administrative Procedure Act — Special inquiry officer, section 5 of the Administrative Procedure Act not applicable — Place of deportation, jurisdiction.
(1) Deportation hearings conducted pursuant to section 242 of the Immigration and Nationality Act come within the exception contained in section 7 of the Administrative Procedure Act, and the provisions of section 5 of the latter act are not applicable to special inquiry officers appointed under section 101 (b) (4) of the Immigration and Nationality Act. (See also Matter of M----, A-2669541, Int. Dec. No. 442, B.I.A., June 1, 1953, and Matter of P----, E-1356, Int. Dec. No. 480, B.I.A., August 11, 1953).
(2) A hearing that conforms to the requirements of the procedure outlined in the Immigration and Nationality Act conducted by a special inquiry officer who had not previously participated in the investigative or prosecutive phases of the case meets the current standards of procedural due process as contemplated by the constitutional safeguards of the Fifth Amendment.
(3) Designation of the country to which an alien is to be deported is not a matter for final determination by the special inquiry officer or the Board of Immigration Appeals (8 C.F.R. Appendix, sec. 1.33 (i)). (See also Matter of M---- L----, Int. Dec. No. 440, B.I.A., April 30, 1953).
CHARGE:
Warrant: Act of 1952 — After admission as nonimmigrant seaman under section 3 (5) of the Immigration Act of 1924, failed to comply with the conditions of such status.
BEFORE THE BOARD
Discussion: The respondent, a 26-year-old unmarried male, a native and citizen of Albania, who last entered the United States at the port of San Pedro, Calif. on November 20, 1952, as a crewman on the SS. Triton, at which time he was admitted as a seaman for a period of 29 days, was found deportable on the warrant charge after hearing conducted by a special inquiry officer on June 19, 1953, his application for voluntary departure was denied, and he was ordered deported from the United States pursuant to law on the charge stated in the warrant of arrest.
The record establishes that the respondent entered the United States as stated above, and was granted an extension of shore leave privilege until February 3, 1953, but failed to depart from the United States under the terms of his admission.
On appeal now before us from the decision and order of the special inquiry officer entered on June 30, 1953, deportability is not contested; counsel for respondent asserts that the hearing was unfair, that the hearing was not in accordance with law in that hearing before a special inquiry officer as designated by the Immigration and Naturalization Service fails to comply with section 5 of the Administrative Procedure Act insofar as separation of functions is concerned; and that the decision entered by the special inquiry officer is improper in that he failed to designate the place of deportation.
In oral argument before this Board, counsel has asserted as his point on appeal that the hearing below was unfair in that the special inquiry officer is subject to the control of those who investigate and prosecute in violation of the provisions of section 5 of the Administrative Procedure Act. He asserts that the Administrative Procedure Act permits the head of the agency to be an individual who investigates and prosecutes; that it is proper for the hearing officer to be subject to his control, but not subject to the control of inferior officers who control both investigative and prosecutive functions, and who are subject to the control of the agency head.
The Immigration and Nationality Act provides that a special inquiry officer shall conduct proceedings to determine the deportability of any alien (section 242 (b)). Section 242 further provides for procedural due process in the conduct of deportation hearings before special inquiry officers, and that the procedure so prescribed shall be the sole and exclusive procedure for determining the deportability of any alien. The Administrative Procedure Act provides in part as follows:
In hearings which section 4 or section 5 of this title requires to be conducted pursuant to this section — there shall preside at the taking of evidence (1) the agency, (2) one or more members of the body which comprises the agency, or (3) one or more examiners appointed as provided in this chapter; but nothing in this chapter shall be deemed to supersede the conduct of specified classes of proceedings in whole or part by or before boards or other officers specially provided for by or designated pursuant to statute. (Sec. 7, 5 U.S.C. § 1006 (a).) [Emphasis supplied.]
In Wong Yang Sung v. McGrath, 339 U.S. 33 (1950), the Supreme Court found that immigrant inspectors who acted as presiding officers at deportation hearings were not "officers specially provided for or designated pursuant to statute" within the exemption of the quoted section of the Administrative Procedure Act. Those immigrant inspectors were appointed and acted under prior law, the Immigration Act of 1917, as amended. The special inquiry officer who conducted the deportation hearing in the instant case was designated pursuant to section 101 (b) (4) of the Immigration and Nationality Act. Section 242 of the latter act provides "the exclusive procedure for determining the deportability" of an alien. Deportation hearings come within the exemption of the clause (contained in the clause, quoted above, from section 7 of the Administrative Procedure Act), "but nothing in this chapter shall be deemed to supersede the conduct of specified classes of procedings in whole or in part by or before boards or other officers specially provided for by or designated pursuant to statute." ( United States ex rel. Marcello v. Ahrens, 113 F. Supp. 22, at 25 (E.D. La., 1953)). The provision of section 5 of the Administrative Procedure Act, "nor shall such (hearing) officer be responsible to or subject to the supervision or direction of any officer, employee, or agent engaged in the performance of investigative or prosecuting functions for any agency," is therefore inapplicable to deportation proceedings.
The provisions prescribed by the statute for the conduct of deportation hearings were carefully propounded, and were considered by Congress to be within the pattern of procedural due process set out in the Administrative Procedure Act. (See U.S. Code Congressional and Administrative News, 82d Cong., 2d sess., vol. 2, p. 1754 (Conference Report).)
As stated in United States ex rel. Marcello v. Ahrens ( supra), at p. 25:
* * * The Administrative Procedure Act alone is not the sole criterion of due process of law. The Constitution in providing for due process does not require a single procedure applicable in all cases. Nor has Congress adopted one.
Counsel has made no contention that respondent's deportation did not conform to the requirements of the procedure outlined in the Immigration and Nationality Act, nor has he asserted that the special inquiry officer who conducted the hearing had previously participated in the investigative or prosecutive phases of the case. We find that the hearing conducted before the special inquiry officer conforms to current standards of procedural due process as contemplated by the constitutional safeguards of the fifth amendment. Counsel's contentions regarding denial of a fair hearing cannot be sustained.
Counsel has also asserted that the failure of the special injury officer to designate a place of deportation was error. Although an alien in deportation proceedings may designate a country which he desires to be deported to, if deportation is finally ordered, designation of the country to which an alien is to be deported is not a matter for the final determination of the special inquiry officer or for this Board (8 C.F.R. App., sec. 1.33 (i)). Therefore, the special inquiry officer committed no error in failing to designate the country to which the alien shall be deported.
During the course of the hearing, the alien applied for the privilege of voluntary departure, and indicated that if granted that privilege, he would return to his native country, Albania, "at such time as that country is not dominated by Communists." The record further discloses that at time of hearing the alien had insufficient funds with which to effect his voluntary departure, and lacked seamen papers necessary to his reshipping foreign. In view of the evidence of record, the special inquiry officer's denial of the privilege of voluntary departure was not error.
In view of the foregoing, the appeal will be dismissed.
Order: It is ordered that the appeal be, and the same is hereby, dismissed.