E-17480.
Decided by Board September 23, 1955.
Anarchist — Evidence — Unreasonable search and seizure.
(1) The respondent's sworn statements-in 1938 that he was an anarchist and that he believed in the overthrow of the Government of the United States by force; in 1950 that he had always been an anarchist; and in 1952 that he had believed in anarchy and preferred it over Communism — plus documentary evidence consisting of anarchistic writings by the respondent establish by reasonable, substantial and probative evidence that he was an anarchist from about 1936 or 1937 until at least 1950.
(2) The introduction in a deportation hearing of evidence obtained by police officers during a search without a warrant is not violative of the Fourth Amendment prohibiting unreasonable searches and seizures since the limitation of that amendment reach only the Federal government and its agencies. In addition, objection to the introduction of such evidence should have been made at the time it was offered in evidence.
(3) Assertion that translations of documents received in evidence are not accurate is rejected in view of the failure to specify any item of inaccuracy.
CHARGE:
Warrant: Act of 1918 — After entry, anarchist.
BEFORE THE BOARD
Discussion: This case is before us on appeal from the decision of a special inquiry officer on October 4, 1954, directing the respondent's deportation.
The respondent is a 60-year-old male, native and citizen of Spain, whose only entry into the United States occurred on June 19, 1920, at which time he was lawfully admitted for permanent residence. The special inquiry officer concluded that the respondent was deportable because he had been, after entry, an anarchist.
Before discussing counsel's contentions, we will set forth the evidence which appears to be pertinent to the issue in this case. The respondent was questioned under oath on February 7, 1938, at which time he testified that he was then a propagandist for the Communist Party; that he was paid by that organization but would not reveal how much; and that he was a member of the Third Internationale which he had joined in 1935. When asked if he was a believer in Communism he said, "I am an anarchist. I don't believe in any organized form of government, but the people of the world is not educated to understand that and Communism is a good step in the right direction. If the people become Communists in a few years they may be educated, to understand the belief of the anarchists." He also testified that he believed in the overthrow of the Government of the United States by force and distributed literature which so advocated, the literature being received from the "Internationale."
On January 13, 1950, a further statement was obtained from the respondent. At that time an interpreter read the statement of February 7, 1938, to the respondent and he denied having made such a statement although he admitted that he had been questioned by an officer of the Service on February 7, 1938, concerning his place of birth, date of arrival, and similar matters. He was thereupon questioned concerning certain papers, which are attached to exhibit 5 and are referred to in the record as attachments 1 to 20, inclusive, and he testified that he had written several of these papers on his own typewriter, and he identified each of the attachments (except attachment 14) as a paper which originally belonged to him.
Attachment 5 is a postcard which the respondent wrote, containing a closing phrase which has been translated "Yours and of Anarchy." The translations of attachments 5 and 6 employ the word "comrade" but we attach no significance to this because the Spanish words used in the originals have several English equivalents including comrade and companion. Attachment 12 is a copy of a magazine article entitled "Anarchism and Communism."
The respondent testified that attachment 19 was written on his own typewriter and that he composed it himself. This paper, in translation, reads in part as follows:
* * * The revolution which we want, consists in taking out from the hand of Capital, all the power and riches, to give to the workers the land factories and all the instruments of work, and all existing property. * * * Nobody, who is a man, can doubt that politics always was the opiate which was always used by the privileged to put the masses to sleep. Comrades, if, in our fight against Capital, the State and Fascism, — if we are able to conserve the principles of anarchy we may soon reach the goal of the ideal of liberty. * * *
The respondent was questioned concerning his above-quoted statements in attachment 19 and was asked whether these meant that the only way in which the result could be accomplished was the forceful overthrow of government. He answered, "I wrote it but I don't mean it." He also admitted that, after the Spanish Civil War, the Loyalists split into several factions and that he supported the Mexican group which was under the control of the anarchists. He also admitted that his political philosophy is and always has been that anarchism is the only answer to the successful evolution of society. He also stated, "I didn't belong to the Communist Party, but I was always an anarchist." The respondent was asked, "Are you an anarchist now?" and answered, "Yes, I am an anarchist, but not the way people think today of the anarchists." He also testified that he does not believe in force and violence.
A further statement was obtained from the respondent on September 2, 1952. It sets forth his explanation as to how he lost possession of the papers attached to exhibit 5, a matter which will be discussed later. It also includes his testimony that he had believed in anarchy and preferred it over Communism and, when asked near the conclusion of the statement the period during which he believed in anarchy, he answered, "1936-1937 and 1938." During the course of the hearing under the immigration warrant of arrest, the respondent stated, "I do not consider myself an anarchist," but he evaded answering the question whether he had ever considered himslf to be an anarchist. He also stated that he does not believe in the doctrines of anarchism. His testimony then was, in general, a complete disavowal of his previous admissions concerning his belief in anarchism.
In his brief and at the oral argument, counsel stressed the fact that the Spanish Civil War was in progress when the respondent made the statement of February 7, 1938, and at the time the various papers which comprise attachments 1 to 20 of exhibit 5 were written or copied. Counsel's contention is that the respondent was merely trying to assist the recognized government of Spain and that he was not antagonistic toward our government. It is clear that the respondent was sympathetic toward the Loyalist government of Spain and his testimony indicates that he donated money to that government and had some part in soliciting and transmitting the contributions of others. The special inquiry officer's decision does not indicate that these factors had any bearing on the conclusion which he reached. We consider it entirely irrelevant to this deportation proceeding whether the respondent favored General Franco or whether he was opposed to him because that is of no evidentiary value in resolving the sole issue before us, namely, whether the respondent was or was not an anarchist. For the same reason, we have disregarded attachment 18.
Counsel labelled attachment 18 as "a tirade against the Republic Steel Corporation" but defended it on the ground that it was truthful and that it was written during a strike against that company.
We will next consider a motion presented by counsel at the oral argument that the respondent's papers, which have been previously referred to as attachments 1 to 20 of exhibit 5, be expunged from the record or that the hearing be reopened with directions to the Service to present evidence as to how such papers were obtained. Some of the attachments are of no value and others have comparatively little significance. We have commented above on those which have some evidentiary value. As to the matter of the respondent's loss of these papers, he testified on September 2, 1952, that he had been arrested by police officers at Massillon, Ohio, in February 1938; that the following day he and the police officers went to the room which he had been renting; that they obtained the papers, other than attachment 14, at that time; and that he had not granted permission for the search but did not object to it.
Counsel contends that the papers mentioned above were obtained in violation of the Fourth Amendment to the Constitution of the United States, prohibiting unreasonable searches and seizures. We do not know whether the police officers did or did not have a search warrant. Ordinarily, motions for the suppression of evidence or the return of documents obtained by unlawful search and seizure are to be made at a preliminary stage of the proceeding. The papers were obtained by the police officers in 1938 and the respondent took no action to have them returned even after he was made aware on January 12, 1950, that they were in possession of the Service. We believe that counsel should have raised this question at the time the papers were offered in evidence, and that would have been the logical time for him to pursue the inquiry as to how the Government obtained possession of them. However, we will not dispose of this question on the technical ground that the objection comes too late.
Gouled v. United States, 255 U.S. 298 (1921); Amos v. United States, 255 U.S. 313 (1921).
Although counsel objected to the introduction of the statement of January 13, 1950, to which the papers in question were attached, his objection was predicated on other grounds which were invalid and which were not pressed on this appeal.
Counsel relies on United States v. Jeffers, 342 U.S. 48 (1951). In that case, a conviction was reversed because it was based upon evidence which had been obtained in violation of the Fourth Amendment, and that proposition has long been settled. Most of the cases involving the Fourth Amendment have been criminal prosecutions, and even in such proceedings there are circumstances under which evidence obtained through a search and seizure without a warrant may be admissible. On the other hand, deportation proceedings are civil in nature. While counsel has not cited any immigration cases involving the Fourth Amendment, this respondent is protected by that constitutional provision although possibly to a lesser extent than if this were a criminal prosecution. In United States ex rel. Bilokumsky v. Tod, 263 U.S. 149 (1923), a deportation proceeding, the court held that the alien's constitutional rights had not been violated but there was the following dictum at page 155, "It may be assumed that evidence obtained by the Department (immigration authorities) through an illegal search and seizure cannot be made the basis of a finding in deportation proceedings."
United States v. Rabinowitz, 339 U.S. 56 (1950); Walder v. United States, 347 U.S. 62 (1954).
There is one factor in respondent's case which convinces us that the introduction of these papers was not violative of the Fourth Amendment and that is the fact that the papers were obtained, as stated above, by police officers of the city of Massillon. The Supreme Court held in Weeks v. United States, 232 U.S. 383, 398 (1914), involving a criminal prosecution, that there was a violation of the Fourth Amendment with respect to papers which a United States marshal had seized without a warrant at the home of the defendant, but that the amendment was not applicable to an unauthorized search and seizure of certain other papers earlier on the same day by police officers. The Court stated that the Fourth Amendment is not directed to individual misconduct of the latter officials, and its limitations reach only the Federal government and its agencies.
In Byars v. United States, 273 U.S. 28, 33 (1927), the Court again said, "We do not question the right of the Federal government to avail itself of evidence improperly seized by state officers operating entirely upon their own account," although in that case the conviction was reversed because a Federal officer had participated officially with state officers in the search. Similarly, Burdeau v. McDowell, 256 U.S. 465 (1921), holds that the constitutional provision is not violated where private individuals procured papers through a wrongful search and thereafter turned them over to the Government. Ex parte Vilarino, 50 F. (2d) 582 (C.C.A. 9, 1931), is a case entirely analogous to that of the respondent. That case involved a deportation proceeding under former 8 U.S.C. 137 (c) and (e) (Act of October 16, 1918, as amended) in which the alien had been arrested by police officers who had searched his home without a warrant three days later. Certain cards and papers relating to the Communist Party were seized, and the court held that the evidence was admissible in the deportation proceeding. On the basis of the judicial precedents cited, we will deny counsel's motion.
Counsel objected to the admission of the respondent's statement of February 7, 1938, on the authority of Ungar v. Seaman, 4 F. (2d) 80 (C.C.A. 8, 1924), and during the oral argument he contended that the respondent's statement had been "faked." In Joong Sui Noon v. United States, 76 F. (2d) 249, 251 (C.C.A. 8, 1935), the same court expressly overruled Ungar v. Seaman insofar as that case might be construed as holding that statements made voluntarily by aliens while in custody (legal or illegal) are inadmissible in deportation proceedings There is no merit in counsel's contention that the respondent's statement of February 7, 1938, was "faked." His contention was predicated entirely on the assumption that the statement was transcribed on February 7, 1938, and yet contained a notation that the alien had been fined $15.00, which fine was not imposed until February 9, 1938. An immigrant inspector questioned the alien at Massillon, Ohio, on February 7, 1938, and recorded the statement in shorthand. On returning to his official station at Youngstown, he dictated it to a stenographer who transcribed it. The transcript shows that the interview occurred on February 7, 1938, but does not show when the transcript was made. Obviously, it was prepared after the Service learned of the imposition of the $15.00 fine on February 9, 1938.
Counsel has quoted from the Act of October 16, 1918, as amended on June 28, 1940 ( 54 Stat. 673), and asserts that, since the special inquiry officer selected only the anarchist charge and did not lodge any additional charge, it must be assumed that he found the evidence insufficient to establish that the respondent came within any of the other classes mentioned in the Act of 1918, as, for example, aliens who advocate the overthrow of the Government by force or violence, et cetera. The special inquiry officer did not, of course, "select" the charge since it was stated in the warrant of arrest which was issued prior to the hearing. Likewise, since an examining officer had been assigned, it would have been the latter's duty, and not that of the special inquiry officer, to lodge any additional charge (8 C.F.R. 242.53 (f)). In any event, the fact that the respondent was not charged with being a member of any other class specified in the Act of October 16, 1918, as amended, does not support an assumption that the anarchist clause is the only one which might be applicable. However, we need not be concerned with whether the respondent might be deportable on additional grounds since the sole question which we are called upon to decide is whether the Government has established that the respondent was an anarchist.
The statutory provisions quoted by counsel were not in effect when the deportation proceeding was instituted on October 6, 1952, as the Act of 1918 had been further amended by section 22 of the Internal Security Act of 1950 ( 64 Stat. 987).
Counsel has made a rather extended argument that there are fatal defects in the special inquiry officer's finding of fact (No. 4) which is the only finding supporting the conclusion of law that the respondent is deportable. This finding of fact is as follows:
That the respondent from at least 1935 to January 13, 1950, believed in and advocated the doctrines of anarchy and was an avowed anarchist.
We are not impressed with the argument concerning this matter and we think it is sufficiently clear that the special inquiry officer found that the respondent was an anarchist from at least 1935 to January 13, 1950. We believe such a finding would have been sufficient to support the conclusion of law, and the fact that the special inquiry officer's finding went somewhat beyond what was required is not a valid basis for objection.
The brief submitted by counsel contains the assertion that the translations of the documents which comprise the attachments to exhibit 5 are not accurate. We must reject this contention in view of the failure to specify any item of inaccuracy. The brief also refers to the use by the respondent of the word "Anarchia" and it is stated that this word has no English translation. However, the closing phrase used by the respondent in a postcard was "Tuyo y de la Anarquia" which was translated "Yours and of Anarchy." According to Appleton's New Spanish Dictionary (1929 Edition), the word "Anarquia" is translated "anarchy.".
We find no other points raised by counsel which require specific discussion except that we consider it appropriate to comment on a statement in the brief to the effect that the courts have not defined the precise meaning of the word "anarchist" as it is used in the Act of 1918. We know of no reason why it should be necessary for them to do so, and the courts have encountered no difficulty in upholding deportation proceedings in such cases, both where the alien anarchist advocated the overthrow of the United States Government by force and violence and where he was merely a philosophical anarchist. In Lopez v. Howe, footnote 6, supra, at page 405, the court said that, while these two kinds of anarchists represented different schools of thought, the act of Congress had made no distinction between them. In that case, the court upheld the deportation order even though it was of the opinion that the relator was a philosophical anarchist and that such anarchists did not believe in force or violence but were "a class of honest and law-abiding visionaries, who are convinced that the interests of society would be promoted by the abolition of all government whatsoever."
United States ex rel. Turner v. Williams, 194 U.S. 279 (1904); Lopez v. Howe, 259 Fed. 401 (C.C.A. 2, 1919), appeal dis. and cert. den. 254 U.S. 613; Ex parte Pettine, 259 Fed. 733 (D. Mass., 1919); Ex parte Caminita, 291 Fed. 913 (S.D.N.Y., 1922).
We wish to make it clear that we are making no determination concerning the question of whether the respondent was "a philosophical anarchist" or an anarchist who believed in the overthrow of the Government of the United States by force or violence. Even if we accept as true his statement on January 13, 1950, that he does not believe in force and violence, he would still be deportable on the basis of Lopez v. Howe, footnote 6, supra, and the other cases cited. We have already set forth in some detail the testimony and evidence relied upon by the Government. In brief, the respondent in 1938 testified that he was an anarchist and that he believed in the overthrow of the Government of the United States by force. In the 1950 statement, which was taken through an interpreter, the respondent stated that he had always been an anarchist. In a statement in 1952, in which an interpreter was also used, the respondent stated that he had believed in anarchy and preferred it over Communism. We perceive no reason why we should disbelieve the respondent's admissions that he was an anarchist. After careful review of the record, it is our considered opinion that the Government has established, by reasonable, substantial and probative evidence, that the respondent was an anarchist from about 1936 or 1937 until at least 1950. We conclude, therefore, that he is deportable on the charge stated in the warrant of arrest.
The remaining matter which requires discussion is a paper entitled "Delayed application for suspension of deportation under Section 244 (a) (5) of the Immigration and Nationality Act" which was submitted with counsel's letter of June 3, 1955. Since applications for discretionary relief require investigation and recommendation of the field office, we will consider the paper as a motion to reopen the proceeding for the purpose of permitting the filing of an application for suspension. Under 8 C.F.R. 242.54 (d), an application for suspension of deportation must be made on a prescribed form and is to be submitted "at any time during the hearing." The motion submitted by counsel does not comply with either of these requirements.
We have indicated that applications for discretionary relief must be made at the hearing and that we will not reopen proceedings for that purpose at a later date. In Marcello v. Bonds, 349 U.S. 302, 313 (1955), where the alien failed to apply for suspension of deportation at the proper time in accordance with the regulation mentioned above, the court stated that this Board was not bound to consider the question of suspending deportation. Nevertheless, we deem it appropriate to consider whether there are any factors in this case which would make a reopening imperative.
Matter of M----, E-086054, 5 IN Dec. 472 (1953).
We take cognizance of the respondent's residence of 35 years. He has never been married and has no relatives in the United States. Apparently he has not been arrested subsequent to 1938. Counsel does not indicate what facts are relied on to establish "exceptional and extremely unusual hardship" to the alien. Assuming that he could establish the statutory requirements for sussion of deportation under section 244 (a) (5) and that a timely application for that relief had been filed, we do not believe the respondent's case would warrant suspension of deportation in view of our conclusion that he was an anarchist until at least 1950. In Matter of J----, E-078625, 5 IN Dec. 509 (1953), where the alien was found deportable for having advocated the economic, international and governmental doctrines of world communism, we held that such advocacy had not been established beyond 1941. Notwithstanding that more than 10 years had thereafter elapsed before the filing of the application for suspension of deportation, we denied relief as a discretionary matter. In the respondent's case, the proscribed conduct continued for about one-half of the ten-year-period. Under the circumstances, we would find it necessary to deny an application for suspension of deportation submitted by the respondent as a matter of administrative discretion and no purpose would be served in reopening the hearing for the submission of such an application. In view of the foregoing, we will deny counsel's motion and dismiss the appeal.
Order: It is ordered that the appeal be and the same is hereby dismissed.
It is further ordered that counsel's motions of February 14, 1955, and June 3, 1955, be denied.