A-5204481
Decided by the Board March 18, 1953
Communist Party of the United States — Evidence — Effect of silence — Admissibility of evidence — Alienage — Evidence of membership — Due process.
(1) Where there is a duty to speak, silence is evidence of a most persuasive character ( United States ex rel. Bilokumsky v. Tod, 263 U.S. 149). Silence under certain circumstances lends significance and probative weight to documents which they would otherwise not have.
(2) An extrajudicial admission of respondent's alienage made by his attorney in his presence without objection by respondent must be considered an admission of alienage adopted by respondent.
(3) Failure to identify documents in a legal manner does not prevent their receipt into evidence in an administrative proceeding where the criteron is not admissibility but probative value.
(4) Failure to assert whether answer to question on Alien Registration Form indicated membership in the Communist Party or merely intention to engage in such activity under the circumstances in this case is evidence that the answer to that question related to actual and not intended membership.
(5) The demand of due process is satisfied if the hearing is on due notice, if the alien is informed of the charges, is permitted representation by counsel, is permitted to make full defense, and is given a just and fair hearing ( Bauer v. Acheson, 106 F.Supp. 445 (D.C., D. of C., 1952)).
CHARGE:
Warrant: Act of 1918 — Member of Communist Party of the United States.
BEFORE THE BOARD
Discussion: This is an appeal from the order of the hearing officer finding respondent deportable on the charge stated above and requiring his deportation.
The Service found the respondent to be an alien, a native and last a citizen of Czechoslovakia whose only entry into the United States occurred in 1913; and that he was a person who had been a member of the Communist Party of the United States. The conclusions of the Service are based upon documents introduced by the Government. The respondent refused to testify during the hearing.
Counsel contends that the deportation proceedings were without due process on grounds procedural and constitutional, and on grounds that the evidence introduced by the Government was improperly admitted and improperly used. We reach the conclusion that respondent was properly found deportable.
Hearing was held on October 16, 1952, before a hearing officer and examining officer of the Service. The respondent was represented by counsel and English was the language used in the proceedings. At the outset of the hearing, the Service attempted to swear the respondent as a witness. Counsel interposed objections in the following terms:
I would like at this time to state that the respondent does not elect to be sworn as a witness to testify in behalf of the Government and further does not at this time elect to testify at all. He may do so later on in the proceedings.
After the Service had presented its case, the following colloquy took place:
Hearing Officer to Respondent:
Q. Does the respondent still refuse to be sworn in or make any statements in his behalf?
A. (By counsel.) Respondent does not wish to testify at this time.
To establish its case, the Government proceeded in the following manner. There was introduced into evidence the report of an interview had on January 11, 1952, by a Service official with the respondent in the presence of respondent's attorney. The report of the interview reveals that respondent's attorney refused to permit the respondent to answer questions but on behalf of the respondent furnished the information that the respondent, Mr. K----, is a gentleman over 60 years of age; Mrs. K----, his wife, is about 65 years of age; both have spent the major portion of their lives in the United States; both have lived in Newark for about 25 years; both have filed alien address report forms which are required to be furnished under the alien registration law; and that both filed their address report cards in 1951 with the post office at Newark.
The Service then introduced an original address report card, executed in accordance with the requirements of law that all aliens residing in the United States on January 1, shall, within 10 days following such date, report their address to the Service and supply certain additional information. This card was signed by one M---- K---- on January 8, 1951, and bore the information that the registrant had registered as an alien under the name of M---- K----; that his registration number was 5204481; that he was a resident of Newark, N.J.; that he was born on June 29, 1890, and was a national of Czechoslovakia.
There was introduced into evidence what is purported to be the original Alien Registration Form No. 5204481, executed at East Orange, N.J., on December 4, 1940, by one M---- K----, a resident of New Jersey, who was born in Czechoslovakia on June 29, 1890; a childless married male, who last entered the United States in June 6, 1913, and who applied for first citizenship papers in 1939.
Item No. 10 of the Alien Registration Form bears the following printed matter, followed by a space for the insertion of the required information:
10. I am, or have been within the past 5 years, or intend to be engaged in the following activities: In addition to other information, list memberships or activities in clubs, organizations, or societies.
In the appropriate space following the printed matter, this information appears:
International Workers' Order, Lodge No. 2001, Newark, N.J.
Leather Workers' Union, Local No. 27, Newark, N.J.
Communist Party of U.S., Newark, N.J.
There was also introduced into evidence what purports to be the original of an application for a declaration of intention filed by one M---- K----, a married childless male residing at Newark, N.J., who was born in Czechoslovakia on June 29, 1890.
The introduction of exhibit 3, the report of the interview between the respondent's attorney and a Service representative, who is the same person as the examining officer in the instant case, was objected to by counsel on the ground that it was incompetent, irrelevant and immaterial. Counsel objected to the introduction of each of the three other exhibits discussed above on the ground that the evidence had not been identified in any proper or legal manner.
No attempt was made by the use of expert witnesses to identify the signatures which appear on the exhibits with a known signature of the respondent. The hearing officer relies upon the similarity of information contained in each exhibit and the fact that in his opinion, the signatures bear a marked resemblance to the signature which appears on the application for a declaration of intention.
Before we discuss the exhibits, we believe it necessary to comment on the respondent's failure to testify without legal justification. Where there is a duty to speak, silence is evidence of a most persuasive character ( United States ex rel. Bilokumsky v. Tod, 263 U.S. 149). In the instant case, we find the respondent under a duty to speak and his silence to be without legal justification. We view his silence as evidence.
We come now to the admissibility of the evidence we have previously discussed. The extrajudicial admission of the respondent's alienage made by his attorney in his presence without objection by the respondent, must be considered an admission of alienage adopted by the respondent and we believe, would be adequate to establish alienage even in a court proceeding ( United States v. United Shoe Machinery Corporation, 89 F.Supp. 349 (D.C.Mass.), and cases cited therein).
For the purpose of this discussion, we will assume that the other documents outlined would not have been acceptable in evidence if attempt were made to introduce them in a court because of the failure to identify the documents in a legal manner. This fact alone would not however, prevent receipt of these documents into evidence in an administrative proceeding such as this is; for in these proceedings the ordinary rules of evidence do not apply. In administrative proceedings, the question is not whether the evidence is admissible but whether it is probative ( United States ex rel. Bilokumsky v. Tod supra; Consolidated Edison Company v. National Labor Relations Board, 305 U.S. 197). What probative weight evidence of the nature mentioned would have in a deportation proceeding where the alien denied the relation to him, we do not pass upon for here we have a situation where the respondent remained mute as to facts well within his knowledge after evidence which called for rebuttal had been introduced. The record established his alienage. The documents introduced into evidence are from the respondent himself. If he had not executed these documents; if the material facts therein had been altered or were untrue, he would not be deportable. His silence under such circumstances lends to these documents a significance and probative weight they would otherwise not have. His failure to deny that the documents had been executed by him, under the circumstances of this case where there existed a duty to speak, constitutes an admission that he is the author of the documents and that the facts stated therein are essentially correct. We conclude therefore, that if the Alien Registration Form, which is the only document making reference to the Communist Party of the United States, establishes that M---- K---- was a member of the Communist Party of the United States, the finding of deportability must be sustained.
It is counsel's contention that exhibit 7 does not establish membership of any individual in the Communist Party of the United States. He points out that paragraph No. 10 on exhibit 7 calls for information concerning membership or activities in which the person concerned has been engaged, is engaged or intends to be engaged. And thereafter, an answer listing merely Communist Party of the United States, Newark, N.J., is as susceptible to the interpretation that it is an activity in which the alien may contemplate engaging, as it is susceptible to the interpretation that it is an activity or membership in which the alien is or has engaged in the past. In other words, the mere presence of the words "Communist Party of the U.S. — Newark, N.J." in response to the printed matter in paragraph No. 10, makes equally possible the interpretation that either membership or activity is meant. Furthermore, if activity is meant, either one of the following two interpretations is equally reasonable:
(1) That the alien is or has been engaged in the activity called the Communist Party of the United States at Newark, N.J., or,
(2) That the alien intends to engage in such an activity in the future, and has not engaged in such activity in the past.
If the inferences urged by counsel are justified, is the Service entitled to select the most unfavorable inference, that is, that at the time of registration, he was or had been a member of the Communist Party of the United States. Under the circumstances of this case, we believe such a choice is proper. If the respondent had not been a member of the Communist Party or engaged in Communist Party activity, but merely intended to engage in such activity in the future, he would not appear to be deportable. His failure to assert such a fact must be taken to mean that the information supplied in paragraph No. 10 related to actual and not intended membership — to membership that would be the basis for deportation. We find, therefore, in view of respondent's silence without the sanction of law under circumstances which demand an answer, that the record establishes respondent was a member of the Communist Party of the United States at Newark, N.J.
Counsel urges that the evidence obtained from the address report card and the alien registration form may not be used because they contain involuntary statements made under penalty prescribed by law and because the law limits their use to confidential purposes. Respondent's written admission contained in the Alien Registration Form to the effect that he had been a member of the Communist Party of the United States constitutes an admission of subversive membership on which an order of deportation may properly be based ( Matter of P----, A-6401882, 4 IN Dec. 684; Matter of F----, A-3421286, 4 IN Dec. 475. Whether or not such an admission was involuntary is immaterial in a deportation proceeding ( United States ex rel Bilokumsky v. Tod ( supra); Matter of B---- R----, A-4690755, 4 IN Dec. 760). We have previously held that the information from an Alien Registration Form, despite its confidential nature may properly be used in deportation proceedings ( Matter of F----, ( supra)).
Counsel contends that the warrant of arrest was vague and therefore violative of the due process provisions of the fifth amendment. It is well settled that a warrant of arrest need not have the particularity of an indictment. The language contained in the warrant of arrest was sufficient to inform respondent of the nature of the charge against him ( Matter of P----, ( supra)).
Counsel's contention that the hearing followed an unlawful procedure must be dismissed. He fails to set forth any violation of law or regulations in the procedure followed in the instant case. Furthermore, it is well settled that no set form of hearing need be given. The demand of due process is satisfied if the hearing is on due notice, if the alien is informed of the charges, is permitted representation by counsel, is permitted to make full defense, and is given a full and fair hearing ( Bauer v. Acheson, 106 F.Supp. 445 (D.C.D.C.)).
Counsel contends that the hearing officer was not qualified to provide an impartial hearing because of the intermingling of prosecutive and judicial functions and his employment or supervision by a Service officer in charge of prosecutive functions. Counsel does not allege that there was an intermingling of prosecutive and judicial functions in connection with the instant case. That a hearing officer may act as an investigator in one case and as a hearing officer in an unrelated case, has been held does not constitute a violation of due process ( Belizaro v. Zimmerman, 200 F.(2d) 282, (C.A. 3); United States ex rel Catalano v. Shaughnessy, 197 F.(2d) 65 (C.A. 2)).
Counsel contends that the hearing officer should have permitted himself to be sworn and testify as a witness for the purpose of establishing his impartiality. This contention is entirely unsupported by any cited authority. It will be dismissed.
Constitutional objections are raised by counsel. It is well settled that an administrative body is without authority to consider the constitutionality of a law which it is called upon to administer. For all the reasons stated above, the appeal must be dismissed.
Order: It is ordered that the appeal be and the same is hereby dismissed.