A-6505181
Decided by the Board of May 4, 1954
Evidence — Use of admission of commission of crime made in prior hearing.
Although hearings de novo were granted to aliens who had been accorded hearings prior to the decision in Sung v. McGrath, 339 U.S. 33 (1950), before examiners who were not qualified in accordance with the Administrative Procedure Act, such action does not in itself invalidate the prior hearings for failure to comply with the provisions of the Administrative Procedure Act. Testimony and exhibits of such prior hearing are admissible in evidence as any other admission against interest would be. (See also Matter of O---- O----, A-2826150, 4 IN Dec. 765, December 23, 1952, and Matter of R----, A-4678936, Int.Dec. No. 411.)
CHARGES:
Warrant: Act of 1924 — Remained longer — Visitor.
Lodged: Act of 1917 — Admits crime prior to entry — Perjury.
BEFORE THE BOARD
Discussion: Respondent has appealed from the decision and order of the hearing officer entered on December 9, 1952, after hearing de novo, finding him deportable from the United States on the charge stated in the warrant of arrest and the additional charge lodged during the hearing, denying his application for discretionary relief, and ordering his deportation from the United States pursuant to law on the warrant and the lodged charges.
This record relates to a 41-year-old male, a native and last a citizen of Yugoslavia, who alleges that he is now stateless. He first entered the United States on December 22, 1946, in possession of an Italian passport, at which time he was admitted for 60 days to go in transit to Venezuela. He applied for an extension of stay or change of status to that of a temporary visitor. His application was denied but he was granted permission to depart voluntarily, pursuant to which grant he parted to Mexico on June 2, 1947.
He last entered the United States at Laredo, Tex., on June 20, 1947, at which time he was admitted temporarily for 1 year to accept a fellowship at Evangelical Hospital of Chicago. He remained in the United States after the expiration of the period for which he was admitted, although he never received an extension of that period.
The alien voluntarily submitted himself to the deportation process on June 25, 1948, and at that time applied for suspension of deportation on the basis of serious economic detriment to his citizen wife, to whom he was married on June 13, 1948, in Chicago, Ill. Warrant of arrest, charging deportability pursuant to the Immigration Act of 1924, in that, after admission as a visitor, he had remained in the United States for a longer period than permitted under said act or regulations made thereunder, was issued on June 28, 1948, and hearing thereunder was conducted at Chicago on May 31, 1949. During that hearing, the respondent admitted the commission of the crime of perjury in the execution of his application for nonimmigrant visa and alien registration on July 11, 1947, and in testifying before a board of special inquiry on June 12, 1947, by his having claimed birth in Italy and Italian citizenship and army service in said application and testimony. The alien was found deportable on the warrant charge and the charge lodged during the hearing by the presiding inspector, which decision was approved by the Assistant Commissioner. Appeal to this Board was dismissed after careful consideration, by decision of January 9, 1950.
In view of the decision of the Supreme Court in Wong Yang Sung v. McGrath, 339 U.S. 33 (1950), hearing de novo was granted the respondent. During the hearing de novo, conducted on May 22 and November 21, 1952, the alien, represented and advised by counsel, refused to answer questions relating to the charge of deportability under the act of 1917 on the ground that such answers might incriminate him within the meaning of the protection afforded against self-incrimination by the fifth amendment to the Constitution of the United States. The hearing officer introduced into evidence over objection of counsel the exhibits relating to that ground of deportability which had been introduced at the original hearing, and also over objection of counsel introduced the transcript of record of previous hearing. At the conclusion of the hearing, the hearing officer found that the respondent is an alien, a native and last a citizen of Yugoslavia; that he last entered the United States at Laredo, Tex., on June 20, 1947; that he was admitted as a visitor for 1 year and has not been granted an extension of his temporary stay; and that he has admitted the commission of perjury in executing his application for a nonimmigrant visa at the American consulate in Neuvo Laredo, Mexico, on June 11, 1947, and in his testimony before a board of special inquiry at Laredo, Tex. on June 12, 1947. Based on the foregoing findings of fact, the hearing officer concluded that under sections 14 and 15 of the Immigration Act of 1924, the respondent is subject to deportation on the charge stated in the warrant of arrest; and that under section 19 of the Immigration Act of 1917, the respondent is subject to deportation on the ground that he admits commission prior to entry of a crime involving moral turpitude, to wit: Perjury.
The detailed facts relating to this alien's origin, history, his entry into the United States in possession of an Italian passport, and his acts and testimony which have been found to constitute perjury have been adequately discussed in the decision of this Board of January 9, 1950, on the former appeal and the decision and order of the hearing officer after the conclusion of the de novo hearing, and we feel need not be reiterated here. Counsel asserts that since the Chicago hearing in 1949 did not comply with the provisions of the Administrative Procedure Act, said hearing was void and lacking in legal effect; that introduction of the transcript and evidence of the Chicago hearing in the de novo hearing invalidated the de novo character of the hearing; that but for the introduction of such evidence, the finding and conclusion as to deportability under the act of 1917 is completely unsupported. Counsel has cited many cases in support of his argument. We have carefully considered counsel's authority, and find it not in point.
This Board has previously held that an admission by an alien during his testimony at a prior hearing considered invalid because of failure to comply with the requirements of the Administrative Procedure Act then in effect is nevertheless admissible in evidence at a subsequent hearing ( In the Matter of O---- O----, A-2826150, 4 IN Dec. 765). However, we do not consider Matter of O---- O----, ( supra), completely controlling in the instant case, inasmuch as counsel has cited no authority showing that the prior hearing was invalid. The Supreme Court's decision in Sung v. McGrath, 339 U.S. 33 (1950), did not invalidate all deportation hearings held prior thereto in which the provisions of the Administrative Procedure Act had not been complied with, but only those in which aliens specifically raised objections under said act ( United States v. Tucker Truck Lines, Inc., 344 U.S. 33 (1952); Tom We Shung v. Brownell, 207 F.(2d) 132 (C.A.D. of C., 1953); In the Matter of R----, A-4678936, Int.Dec. No. 411).
Although the Immigration and Naturalization Service granted hearings de novo to aliens who had been accorded hearings prior to the decision in the Sung case before examiners who were not qualified in accordance with the Administrative Procedure Act, such action taken by the Service was done administratively and does not in itself invalidate the prior hearing for failure to comply with the provisions of the Administrative Procedure Act. The hearing officer committed no error in admitting into evidence the transcript of testimony and exhibits of prior hearing, as such record was admissible as any other admission against interest would have been. See Matter of O---- O---- ( supra).
Counsel objected during the course of the hearing to the introduction by the hearing officer of documentary evidence relating to the respondent's entries and departure from the United States, and other documents, such as applications for extension of stay, relating to respondent's presence in the United States and to the question of his deportability under the immigration laws. Such documents were properly received into evidence over objection.
The hearing was conducted in accordance with the regulations governing the conduct of hearings under authority of warrant of arrest in deportation proceedings in effect at that time (8 C.F.R. 151.2), which provide, with an exception not here pertinent, in part as follows:
*** the hearing officer shall present all available evidence, including the interrogation of the alien and all witnesses presented, concerning (1) alienage, (2) date, place, and manner of entry into the United States, (3) grounds for deportation, (4) factors bearing upon statutory eligibility for discretionary relief, and (5) such other information as may be pertinent to the issue of the case: ***." (8 C.F.R. 151.2(c), paragraph amended; effective January 15, 1952, published 16 F.R. 12638, December 15, 1951.)
Counsel's objection to the introduction of such records was based upon the assertion that proper foundation was not laid for the introduction of such evidence, in that they had not been properly identified by the persons who made the records, or the alien, in the respective instances. Failure to identify documents in a legal manner does not prevent their receipt into evidence in an administrative proceeding where criteria is not admissibility but probative value ( In the Matter of K----, A-5204481, Int.Dec. No. 427, B.I.A. March 18, 1953). Hearing officers in conducting deportation proceedings are not bound by the strict rules of evidence to which courts of law must conform ( Schoeps v. Carmichael, 177 F.(2d) 391 (C.A. 9, 1949)). Such officers are, however, bound by the regulations promulgated under the law for the conduct of deportation proceedings. Such regulations are binding upon the Government as well as upon the alien ( United States ex rel. Marcello v. Ahrens, 113 F.Supp. 22 (E.D.La., 1953); Ex parte Radivoeff, 278 Fed. 227 (D.C.Mont., 1922)).
In view of the foregoing, the record before us adequately sustains the findings and conclusions of the hearing officer regarding deportability of the alien on the warrant and the lodged charges. The alien, having been found deportable as one who has admitted the commission prior to entry of a crime involving moral turpitude, to wit: Perjury, is ineligible for discretionary relief of suspension of deportation or voluntary departure, being within the classes specified in section 19(d) of the Immigration Act of 1917, as amended.
The respondent was ineligible for relief under the 7th proviso to section 3 of the Immigration Act of 1917 at time the hearing was conducted. He is likewise ineligible for any relief from deportation under the Immigration and Nationality Act. The appeal therefore must be dismissed.
Order: It is ordered that the appeal be, and the same is hereby, dismissed.