A-4942707
Decided by Board November 21, 1951
"Subversive" — Member of Communist Party of the United States after entry — Act of October 16, 1918, as amended by the Internal Security Act of 1950 — Evidence — Fair hearing — Lodging of additional charge.
(1) It is not within the province of the Board of Immigration Appeals to pass on the constitutionality of the statutes it administers.
(2) Having refused to permit his client to testify or participate in the hearing in any way because the procedure followed by the hearing officer was not satisfactory to counsel, he should not now complain the respondent-client was deprived of a fair hearing.
(3) A new charge may be lodged during the hearing, if it develops there exists grounds therefor (8 C.F.R. 151.2 (d)), which includes an appropriate charge on a ground brought about by the passage of a new law (as well as by the introduction of evidence).
(4) Having had an opportunity to proceed with the hearing under the regulations which were in accord with the Administrative Procedure Act of 1946, but choosing to adjourn for two weeks, on the eve of new regulations to be issued under the act of September 27, 1950, of which he was advised, counsel had no cause for complaint that the hearing was conducted under the new rules thereafter.
CHARGES:
Warrant: Act of October 16, 1918, as amended — Member of an organization which writes, circulates, distributes, etc., written and printed matter advising, advocating, teaching the overthrow by force and violence of the Government of the United States, to wit: International Workers Order.
Act of October 16, 1918, as amended — Affiliated with an organization, association, etc., that believes in, advises, etc., the overthrow by force and violence of the Government of the United States, to wit: Communist Party of the United States.
Lodged: Act of October 16, 1918, as amended — Member after entry of the Communist Party of the United States.
BEFORE THE BOARD
Discussion: Counsel and his associate argued this case with another, the case of I---- or J---- Z----, A-5098547. The cases present similar legal questions but different facts. We prefer to consider them separately.
Respondent is a native and citizen of Russia. She last entered the United States at New York on May 26, 1913. She was admitted for permanent residence, and has been at all times since a resident of the United States. The hearing officer recommended that respondent be deported from the United States pursuant to law on the lodged charge, and the Assistant Commissioner affirmed that order.
On oral argument before this Board the alien's attorneys attacked the constitutionality of the Internal Security Act of 1950. They recognized that it is the position of this Board that we do not pass on constitutional questions, but stated that they want the record to be clear that they are raising constitutional issues now, so that in the future no court can conclude that the constitutional questions are not before it, on the ground that they were not raised before the administrative agency. Counsel urges that the Internal Security Act of 1950 constitutes a bill of attainder, that it is an ex post facto law as it applies to respondent, and that it results in denial of due process under the first and fifth amendments. Our own interpretation is that it is not within the province of this Board to pass on the constitutionality of the statutes which we administer. We accept the legislative mandates given us, and we believe that it is within the power and capacity only of the United States courts to declare them unconstitutional.
In this case counsel employed the technique of refusing to participate in the hearing on the ground that the procedure being followed by the hearing officer was not satisfactory or pleasing to him. This technique consists of seeking what seems to counsel to be a flaw or fault in some procedural aspect of the hearing — charges, warrant, or notice — and then informing the hearing officer that it is his intention to, as he puts it, "stand mute." Having refused to permit his client to testify, or to take part in the hearings in any way, he should not now complain that they have been deprived of a fair hearing.
The Immigration and Naturalization Service abandoned the warrant charges, which were (1) membership in the International Workers Order and (2) affiliation with the Communist Party of the United States. No evidence was introduced by the Government to show that these organizations fall within the class of groups which circulate, distribute, advise, advocate, and teach the overthrow by force and violence of the Government of the United States. Instead the Government lodged a new charge under the Internal Security Act of 1950. Under that act it is no longer necessary for the Government to establish that the Communist Party is one advocating the overthrow of the Government by force and violence. Under section 22 of that act membership in, or affiliation with the Communist Party, specifically and by name, is made grounds for exclusion or deportation. The Immigration and Naturalization Service relied upon this ground only, and the order of deportation is based only on that charge.
Counsel complains that the hearings were not conducted in accordance with all the provisions of the Administrative Procedure Act, and that the manner in which the proceedings were conducted, constitutes a denial of due process. This is an untenable position for him to take in this particular hearing, because he had the opportunity to proceed under the rules and regulations promulgated by the Immigration and Naturalization Service in accordance with the Administrative Procedure Act, but he demanded an adjournment until new rules and regulations under Public Law 843, enacted on September 27, 1950, were promulgated and published. That is, the hearing in this case was originally scheduled to commence on November 9, 1950. Counsel inquired of the hearing officer as to whether she was proceeding under the old regulations, or under new regulations to be published in accordance with Public Law 843, which provides that "proceedings under law relating to the exclusion or expulsion of aliens shall hereafter be without regard to the provisions of sections 6, 7, and 8 of the Administrative Procedure Act." The examining officer informed the hearing officer that the new regulations were to be published the following day, November 10, and that the Immigration Service would not be opposed to a reasonable adjournment in order to give counsel an opportunity to familiarize himself with the new regulations. An adjournment of 2 weeks for this purpose was granted. Therefore, it appears that counsel, in this case particularly, has no legitimate complaint that the proceedings were conducted in accordance with the new rules, rather than under the regulations which were promulgated for procedure in immigration cases under the Administrative Procedure Act.
Counsel declined to permit respondent to be a witness in the proceedings. He then conceded that the R---- L---- and R---- N---- described in the Government's admission records and alien registration form relate to the respondent in this case.
The next witness was M---- M----, presently an employee of the Immigration and Naturalization Service, who has testified in many of these cases. He was qualified as an expert witness in matters of Communist Party membership during the time that respondent is alleged to have been a member. He identified respondent as a person whom he had known as a member of the Communist Party from approximately 1925 until about 1936. He testified that she was active in many branches and levels of Communist Party activity, that she worked with children's and women's groups and was a member of the national committee. He stated that the meetings which he described and which were also attended by her were open to members of the party only and that nonmembers could not enter.
At this point the Government lodged the additional charge that the respondent is deportable under the act of October 16, 1918, as amended by the Internal Security Act of 1950, in that, she is a person who, after entry, became a member of the Communist Party of the United States. The alien's counsel pleaded complete surprise, stating that he had come to the hearing prepared to defend respondent on the charge of "affiliation" with the Communist Party, and that the charge of "membership" in the party was a totally different and complete thing, requiring entirely new and different preparation and defense. The hearing officer informed counsel that she would grant him an adjournment in order to give him an opportunity to meet the new charge. Counsel declared that he would accept the adjournment only on the condition that all the Government's evidence be completely re-presented by the Government following the adjournment.
The hearing officer then accepted testimony from M---- J----, also employed by the Immigration and Naturalization Service, whose testimony is much the same in content as that of the previous witness. Respondent's counsel declined to cross-examine either witness. Counsel refused to state unqualifiedly whether or not he desired an adjournment. The hearing officer granted a 3-week postponement, in order to give respondent's counsel an opportunity to meet the new charge, if he chose to do so.
At the reopened hearing the Government again offered for cross-examination its two principal witnesses, but respondent's attorney declined to cross-examine them. He insisted that all of the testimony offered at the previous hearings should be stricken from the record, and the entire case heard de novo. This request was denied and properly so. Such a procedure would be dilatory and unnecessary, and it was an unreasonable request.
Regulations of the Immigration and Naturalization Service have always provided for the lodging of additional charges where it develops during a hearing that there exist grounds for lodging of such additional charges. Counsel protested in oral argument before this Board that it is improper to lodge a new charge under the Internal Security Act in the course of a hearing which was commenced before that act was passed. He contends that the regulation permitting the lodging of a new charge applies only to additional grounds developed by the introduction of evidence, rather than by the passage of a new law. He states that when there is a change in the statute the whole hearing should be abandoned and retried from the beginning. We do not construe the regulation so narrowly. The regulation does not state that a new charge may be lodged if evidence develops at the hearing. It states, "If, during the hearing, it develops that there exist grounds * * *." The hearing officer was proceeding in accordance with the regulations, and the evidence adduced at the hearing clearly supports the lodged charge.
8 C.F.R. 151.2 (d) Hearing officer; additional charges. — If, during the hearing, it develops that there exist grounds in addition to those stated in the warrant of arrest why the alien is subject to deportation, the hearing officer may lodge additional charges against the alien and shall develop evidence upon such charges in like manner as on the charges contained in the warrant of arrest. When additional charges are lodged against the alien, the hearing officer shall explain these charges to the alien in simple, understandable language and shall advise him, if he is not represented by counsel or other qualified representative, that he may be so represented if he desires, and require the alien to state then and there for the record whether he desires such representation. The hearing officer shall also inform the alien that he may have a reasonable period of time within which to meet the additional charges if the alien so desires and require the alien to state then and there whether he desires such additional time.
We find no merit in counsel's claim that the lodged charge is a completely different kind of charge from those contained in the warrant. A charge of affiliation is a lesser charge than a charge of membership. It seems to us that if counsel was prepared to defend respondent on a charge of affiliation by so much more it is possible for him to have defended her from a charge of membership with the same evidence. For example, if a defendant is charged with petty larceny, an accusation which he can adequately refute, it seems clear that a charge of grand larceny on the same state of facts could be even more easily refuted by the same evidence. In oral argument before this Board, counsel said, "What is meeting a charge? Is meeting a charge making a defense, or is meeting a charge making objections? — Making motions?" He declares that he should have had adequate opportunity to make his objections. However, the record shows that following the 2 weeks' adjournment (the second adjournment) counsel still declared, "I am not prepared to put in any defense." It is our conclusion that counsel was given more than adequate opportunity to represent his client, had he chosen to do so. He was granted two adjournments and still he declined to present any evidence or to take any part in the hearing. We find no grounds for complaint on the manner in which the hearing was conducted.
It is our conclusion that the evidence developed in the hearing adequately support the lodged charge, that respondent is deportable as an alien who was a member of the Communist Party of the United States following her entry.
The Internal Security Act of 1950 eliminates the authority of the Attorney General to grant discretionary relief in this type of case, so it is not necessary or desirable for us to consider the matter of hardship and the meritorious character of respondent urged by her husband in oral argument before us.
Order: It is ordered that the appeal be dismissed.