A-10089027
Decided by Board April 2, 1957
Deportation — Fair hearing — Factual allegations must be furnished respondent when additional charge is lodged.
8 CFR 242.16 (d) requires the submission of factual allegations in support of any additional charge lodged during a deportation hearing.
CHARGES:
Order to Show Cause: Act of 1952 — Section 241 (a) (2) ( 8 U.S.C. 1251 (a) (2)) — Entered without inspection.
Lodged: Act of 1952 — Section 241 (a) (1) ( 8 U.S.C. 1251 (a) (1)) — Excludable at entry under Act of June 28, 1940 ( 8 U.S.C. 451, 1946 ed.) — No visa, reentry permit or border-crossing card.
Section 241 (a) (5) ( 8 U.S.C. 1251 (a) (5)) — Failed to furnish address report required by 8 U.S.C. 1305.
BEFORE THE BOARD
Discussion: This case is before us on appeal from a decision of a special inquiry officer directing the respondent's deportation.
The respondent is a 59-year-old married male. Apparently he has resided in the United States since 1908. The special inquiry officer found, inter alia, that the respondent is an alien, a native of Austria-Hungary and last a citizen of Hungary; that he last entered the United States on August 23, 1941, at which time he falsely claimed United States citizenship; that he was not then inspected as an alien and was not in possession of a visa, reentry permit, or border-crossing card; and that he did not file address reports in January 1953, January 1954, and January 1956, as required by 8 U.S.C. 1305. The special inquiry officer concluded that the 3 charges mentioned above were sustained by the evidence.
The sole issue in this case is whether the respondent is subject to deportation. Counsel has advanced a number of contentions. However, in accordance with 8 CFR 6.1 (d) (2), we find it necessary to return this case to the Service for further action without entering a final decision on the merits. Accordingly, we shall limit our discussion to counsel's contentions (1) that the regulations were not complied with in lodging the 2 charges, and (2) that there is no reasonable, substantial and probative evidence to support the second lodged charge.
With respect to the first matter, the 2 charges mentioned above were lodged against the respondent on October 15, 1956. Counsel relies on 8 CFR 242.16 (d) which provides that the examining officer may "lodge additional charges of deportability, including factual allegations against the respondent." The first lodged charge is that the respondent was excludable at the time of entry because he did not have a visa, reentry permit or border-crossing card as required by section 30 of the Act of June 28, 1940. Counsel contends that the regulation was not followed because the respondent was not informed as to the date of the alleged entry. The examining officer had asked the respondent whether he was in possession of a border-crossing card, immigration visa or reentry permit at the time of his entry on August 23, 1941, and it is obvious that the lodged charge relates to that entry. Nevertheless, in view of the specific provisions of the regulation and the fact that the question of whether the charge is sustained is entirely dependent upon whether the respondent was excludable at the time of entry, we believe it was mandatory that the respondent be advised as to the date of the entry on which the Government is proceeding.
Counsel also contends that there was a failure to comply with 8 CFR 242.16 (d) in lodging the second charge. That charge was, in part, that the respondent "has failed to furnish notification of his address or other information in compliance with the provisions of section 265 * * *." Counsel contends that this charge might relate to a number of different requirements of section 265 of the Immigration and Nationality Act ( 8 U.S.C. 1305), that is, registrations in January 1953, 1954, 1955, and 1956, notification concerning change of address within 10 days thereafter and notification of address required every 3 months in the cases of aliens in a lawful temporary residence status, etc. The use of the words "or other information" adds vagueness to the charge. Since the Government's contention is that the respondent failed to furnish notification of address during January 1953, January 1954, and January 1956, he should have been advised of these factual allegations in accordance with the regulation mentioned.
In view of the foregoing, we conclude that both lodged charges are defective. However, inasmuch as the defects are technical and do not relate to the merits of the charges, we will reopen the hearing in order that such charges as are appropriate may be lodged in accordance with the regulations.
The second matter which we will discuss is counsel's contention that there is no reasonable, substantial and probative evidence to support the second lodged charge, relating to the respondent's failure to furnish notification of address in January 1953, 1954, and 1956. As the special inquiry officer indicated, an alien's mere failure to comply with 8 U.S.C. 1305 is a ground of deportation under 8 U.S.C. 1251 (a) (5) unless the alien "establishes to the satisfaction of the Attorney General that such failure was reasonably excusable or was not willful * * *," and the respondent's failure to testify or submit evidence in explanation or extenuation narrows the question to one of whether he did or did not furnish notification of address. The special inquiry officer stated that exhibits 19 and 20 constituted reasonable, substantial and probative evidence that the respondent failed to file an annual address report in January 1953, 1954, and 1956 although he stated that, if any of his findings of fact were questioned, they should be regarded as corroborated by the adverse inference arising from the respondent's failure to testify.
Exhibit 19 is a certificate of nonexistence of record in the case of I---- S----, formerly S----, born May 6, 1897, in Hungary. The officer who executed the certificate stated that he is Chief of the Records Administration and Information Branch of the Central Office of the Immigration and Naturalization Service; that he is the custodian of all records of the Central Office; that he had caused diligent examination and search to be made of all records in the Central Office of the Immigration and Naturalization Service; and that there exists no "record evidencing his (S----'s) having filed an annual address report for the years 1951, 1952, 1953, or 1954, pursuant to the Internal Security Act or the Immigration and Nationality Act." The certificate contains specific citation of authority, that is, 8 U.S.C. 1360 (d) and 8 CFR 2.2.
Counsel contends that the certificate is defective inasmuch as the officer executing the certificate has limited it to an examination of the records of the Central Office, whereas 8 U.S.C. 1360 (d) provides for a written certification that "after diligent search no record or entry of a specified nature is found to exist in the records of the Service." The certificate of the Chief of the Records Administration and Information Branch also shows that there exists no record evidencing S----'s naturalization, and as to this matter the certifying officer specifically stated that the Central Office maintains records of all persons naturalized in the United States from September 27, 1906, to date. We believe that insofar as the nonexistence of a record of naturalization is concerned, the certificate constitutes a satisfactory compliance with 8 U.S.C. 1360 (d). However, there is nothing in the certificate to indicate that the nonexistence of a record in the Central Office of the filing of address reports by the respondent in 1953 or 1954 is equivalent to a certificate of nonexistence thereof "in the records of the Service." We are aware that, prior to February 16, 1955, 8 CFR 265.1 and 265.11 provided for forwarding notifications of address to the Commissioner of Immigration and Naturalization. Consequently, if the respondent filed address reports in January 1953 and January 1954, we can assume that they would have reached the Central Office shortly thereafter. Nevertheless, there may have been a subsequent transfer of the records and, in the absence of any statement by the certifying officer that such records were still being maintained in the Central Office when he issued the certificate (October 20, 1955), there has not been excluded the possibility that a record of the respondent's filing of address reports for 1953 and 1954 may exist in some other office of the Service, as for example, in the New York District office. For the reason indicated, we cannot conclude from exhibit 19, in its present form, that the nonexistence of a record in the Central Office on October 20, 1955, constitutes reasonable, substantial and probative evidence that the respondent did not furnish notification of address to the Commissioner of Immigration and Naturalization in January 1953 and January 1954.
Exhibit 20 is relied on to establish the respondent's failure to furnish notification of address in January 1956. This is a certificate of nonexistence of records signed by G---- C---- B----, Chief of the Records Administration and Information Section for the New York District, in which he stated that he had caused diligent examination and search to be made of forms I-53, Address Report Cards, required to be filed for the year 1956, and that there does not appear therein any record under the name of I---- or I---- or I---- S---- or S---- or S---- or F----. The certificate is not under oath. There is no statement that the certifying officer is a custodian of records, nor that he is the custodian of the records for the New York District, nor that he is the custodian of all forms I-53 for the year 1956 filed by aliens residing in the New York District. We have been unable to find any explanation in the record as to why the examining officer offered the certificate in evidence instead of calling Mr. B---- as a Government witness.
Exhibit 20, unlike exhibit 19, cites no authority in the statute or in the regulations for its issuance, and the special inquiry officer stated that there was no specific regulation authorizing the making of this certificate. However, he relied on it as the basis for his finding that the respondent did not file an address report card in January 1956.
Counsel objected to the introduction of exhibit 20 on a number of grounds, including denial of his right to cross-examine the officer signing the certificate. Under 8 U.S.C. 1252 (b) (3) the alien must be given a reasonable opportunity to cross-examine witnesses presented by the Government. The respondent cannot be deprived of this statutory guarantee through the use of a certificate which is not authorized by the statute or the regulations. Even if we were to regard exhibit 20 as admissible in evidence because of the relaxation of rules of evidence in immigration proceedings, its evidentiary value would be negligible for the reasons we have indicated. In any event, its admission without the opportunity of cross-examination of the person making the certificate was improper ( 8 U.S.C. 1252 (b) (3); Matter of M----, A-8259064, 6 IN Dec. 300).
In view of the foregoing and in accordance with 8 CFR 6.1 (d) (2), the case is returned to the Service without the entry of a decision on the merits. The hearing will be reopened in order that the examining officer may lodge such charges as may be appropriate and in order that counsel and the examining officer may present any pertinent evidence.
Order: It is ordered that the outstanding order of deportation be withdrawn and that the hearing be reopened for further proceedings in accordance with the foregoing.