2700-P-146852
Decided by the Board April 14, 1954
Special inquiry officer — Substitution of — Lack of opinion of original special inquiry officer who saw and heard witness not fatal.
(1) Where substitution of special inquiry officers is effected in accordance with 8 C.F.R. 242.53(e) any question with respect to the unavailability of the original special inquiry officer should be raised at the time of substitution and not in connection with an appeal to the Board of Immigration Appeals.
(2) While weight is given to the opinion of the special inquiry officer who saw and heard the witness, the Board is not bound by his opinion if the record does not support such opinion. Therefore, the absence of an opinion as to the credibility of the witness by the special inquiry officer who saw and heard him is not fatal, particularly where the witness' testimony stands uncontroverted on the record.
CHARGE:
Warrant: Act of October 16, 1918 — After entry a member of the Communist Party of the United States.
BEFORE THE BOARD
Discussion: This case is before us on appeal from the special inquiry officer's decision of February 1, 1954, directing that the alien be deported from the United States in the manner provided by law on the charge contained in the warrant of arrest.
This record relates to a 48-year-old married female alien, a native and citizen of Russia. She last arrived in the United States on February 24, 1923, and was then admitted for permanent residence, at New York. The record indicates that she has been married on three occasions and that there are two children of the second marriage, both of whom are now adults. The marriage which is now subsisting occurred in 1948. Her deportability is predicated on a finding that she was a voluntary member of the Communist Party of the United States in 1936.
Exhibit No. 4 of this record is a transcript of a sworn question and answer statement made to an officer of the Immigration and Naturalization Service at Philadelphia, Pa., on November 12, 1942. On pages 1 to 11 of that statement appear the initials "M.P." and it is subscribed Mrs. M---- P----. The record shows that the Service official to whom that statement was made died in February 1950. In connection with exhibit No. 4, the Government presented a female witness who identified herself and testified that she was employed as a clerk-stenographer by the Immigration and Naturalization Service at Philadelphia between March 2, 1942, and August 10, 1945; that in connection with her official duties she had occasion to meet a M---- P---- whom she identified as being the respondent; that she met the respondent during an interrogation of the respondent by a Mr. L---- in which interrogation the witness participated as a stenographer; that she took shorthand notes of the interview which she subsequently transcribed and which were initialed on each page except the last page which was signed by the respondent. This witness identified exhibit No. 4 as a transcription of the interview given by Mr. L---- to the respondent. She also testified that she saw the respondent place her initials "M.P." on each of pages 1 to 11 and subscribe the document on page 12. In that statement, the respondent testified that she attended rallies or meetings of the Communist Party in the neighborhood where she resided, but denied that she was then or had been prior thereto a member of the Communist Party. At the hearing she refused, on the grounds of possible self-incrimination, to answer questions with regard to the sworn statement or the statements contained therein.
The Government also introduced a male witness who was a former member and official of the Communist Party of the United States. In fact, counsel has referred to him as "an important leader of the Communist Party in the Philadelphia area from 1928 to 1937." He has testified that he served as an officer of the district committee and district bureau of the Communist Party of the United States at Philadelphia, Pa., during the time in question. He has further testified of his personal knowledge that the respondent was a member of the Communist Party of the United States during the period between 1935 and 1937; that she was a member of the section committee of the north Philadelphia section of the Communist Party of the United States; that she was the educational director of that section and a member of the district educational committee. He has also testified that the witness attended a functionary's meeting of the Communist Party of the United States in Philadelphia prior to April 1, 1936, at the Labor Lyceum at which he was present; that he attended a district convention of the Communist Party in Philadelphia during the early summer of 1936; that the respondent was a delegate to this district convention; that she could not have attended the convention had she not been a member of the Communist Party of the United States; and that he also attended a section meeting of the Communist Party of the United States in Philadelphia in 1936 at which the respondent was present and at which only members of the Communist Party of the United States or members of the Young Communist League were present.
Counsel, both in his brief submitted in support of the appeal, and in oral argument before this Board, has advanced several arguments which he urges call for a reopening of the proceedings or a termination thereof. First, it is contended that the fact that a special inquiry officer other than the one who conducted the hearing and heard the evidence in support of the charge contained in the warrant of arrest wrote the opinion in this matter and made the findings of fact and conclusions of law, that this procedure deprived the respondent of a fair and impartial hearing, contrary to the requirements of the fifth amendment to the Constitution of the United States. Second, it is contended that the special inquiry officer was in error in drawing any conclusion from the respondent's failure to deny membership in the Communist Party, at the hearing. Third, it is further contended that the special inquiry officer was in error in holding that the respondent's prior denial of membership in the Communist Party precluded her from claiming the privilege under the fifth amendment during the hearing. Finally, it is contended that the evidence of record does not sustain the finding of membership and the conclusion of deportability.
We disagree with counsel's contention that the substitution of special inquiry officers in this case under 8 C.F.R. 242.53(e), as here effected was unconstitutional and in violation of the respondent's right to procedural due process under the fifth amendment to the Constitution of the United States. The record shows that one special inquiry officer presided at the hearing in which the Government's evidence was introduced. When the Government's case had been completed, the special inquiry officer granted a continuance of 3 weeks, at the request of counsel, to permit counsel to obtain and introduce evidence to overcome that of the Government. The record also shows that another special inquiry officer conducted the continued hearing at the conclusion of the 3 weeks' period. The record further shows that at the outset of the continued hearing the substituted special inquiry officer informed counsel and the alien that the special inquiry officer who conducted the original proceeding had returned to his official station at New York and that the continued hearing had been assigned to him for completion. Immediately thereafter, the substituted special inquiry officer stated that he had familiarized himself with the record in the case, in accordance with 8 C.F.R. 242.53(e).
It is clear that the original special inquiry officer is regularly assigned to the New York area, but because of an unexpected increase in the number of cases in the Philadelphia area was detailed there for a specified period of time; that when the time of his detail had been completed he was returned to his assigned area, was there under a new schedule with cases to handle there. It is also clear that the second special inquiry officer is the one regularly assigned to the Philadelphia area, and that he familiarized himself with the record in the case and so stated for the record, in accordance with the regulations.
Furthermore, the record is so clear as to have rendered it readily apparent to counsel that a substitution of special inquiry officers was being effected at the opening of the continued hearing. No objection was raised by counsel at the time, and under well accepted rules of orderly procedure it would appear that an objection would have been timely then rather than on appeal before this Board.
In addition, and as previously pointed out, the continuance in the case was granted by the original special inquiry officer at the request of counsel. It was as a result of that continuance that the original special inquiry officer became unavailable. As it turned out, the continuance was pointless because counsel offered no testimony at the continued hearing before the substituted special inquiry officer.
Counsel's main objection to the substitution in this case is that a very important factor or function of the special inquiry officer is to see and hear the witness. He submits that in this case, where the entire case of the Government depended so completely on whether or not they believed a single witness, the respondent had the right to that examination of the witness unless for substantial reasons having to do with substantial unavailability of the special inquiry officer, she had to be deprived of it. He submits that in this case the first special inquiry officer saw the witness, but that the second did not. He points out that the first may have believed the witness but that he also may not have; that he could have disbelieved everything the witness said if we wanted to, but the second special inquiry officer, who never saw him, had never had this factor of belief or disbelief before him; that all he had was the bare record. Counsel claims that it is the lack of opportunity of the second special inquiry officer to see and hear the Government witness which results in failure of due process.
In connection with argument, we do not question but that a function of the special inquiry officer is to weigh the credibility of the witness on the basis of what he has seen and heard. It is true that we can give weight to the opinion of the special inquiry officer as to the credibility of the witness. However, it is also true that we are not bound by his opinion in this respect if we find from an examination of the record that the evidence thereof does not support that official's opinion. Here, we have the entire evidence upon which a determination can properly be made. Therefore, we feel the absence of an opinion as to the credibility of the witness by the special inquiry officer who saw and heard him is not fatal.
On the basis of the foregoing, we hold that the substitution of special inquiry officers effected in this case was proper. We base such decision on the narrow point that the question of the unavailability of the original special inquiry officer was not raised when the new special inquiry officer was substituted. It was not raised until this appeal. It was then too late.
Next, we find that counsel's contentions as to alleged errors by the special inquiry officer in connection with the respondent's invocation of the privilege against self-incrimination and inferences arising therefrom can properly be pretermitted. We conclude, as will hereinafter be set forth, that the evidence of record fully establishes that Mrs. C---- was a member of the Communist Party of the United States, as found by the special inquiry officer.
We have carefully examined the entire evidence of this record. The male Government witness was a leading member and official of the Communist Party at the time in question. As such, he was in an eminent position to acquire knowledge of the facts as to which he has testified. The circumstances surrounding those facts are such as would reasonably be expected to have created a lasting impression on him. Thus, we cannot agree with counsel's claim that his testimony is not worthy of belief because his recollection of the facts and events is fantastic and beyond the realm of ordinary experience.
Moreover, this witness' testimony stands uncontroverted on this record. He was subjected to rigorous cross-examination by counsel. A continuance of the hearing was requested, and granted, for the purpose of affording counsel an opportunity to obtain evidence to controvert his testimony. However, none was produced at the continued hearing.
In and of itself, the testimony of this witness constitutes reasonable, probative, relevant and material evidence that the respondent was a member of the Communist Party of the United States in 1936. It suffices to sustain the finding of membership made by the special inquiry officer.
On the basis of the foregoing, we concur in the conclusion of deportability reached by the special inquiry officer.
Finally, no request for discretionary relief was made of the special inquiry officer. We fail to find that any such request has been made in connection with this appeal. Therefore, no further questions remain to be decided. Accordingly, we will dismiss the appeal.
Order: It is ordered that the appeal be and the same is hereby dismissed.