A-5078536
Decided by Board September 8, 1950
Expulsion hearings — Applicability of Administrative Procedure Act (1946)
The Administrative Procedure Act (June 11, 1946), is not applicable to an expulsion proceeding initiated previous to September 11, 1946. ( 60 Stat. 237, 5 U.S.C. Secs. 1001 et seq.).
CHARGES:
Warrant: Act of 1917 — Prostitute at time of entry.
Act of 1917 — Found practicing prostitution after entry.
Act of 1924 — Immigration visa not valid because procured by fraud or misrepresentation.
BEFORE THE BOARD
Discussion: On July 7, 1950, we dismissed the appeal from an order of deportation entered by the Assistant Commissioner. The charges on which the order was based were that the respondent was a prostitute at the time of her entry into the United States and that her immigration visa was not valid because it was procured by fraud and misrepresentation.
The case is presently before us on motion by counsel asking for reconsideration. The basis assigned for the motion are (1) that the hearing did not conform to the requirements of the Administrative Procedure Act (2) that additional evidence shows the confession relied upon to support the charges was improperly obtained, and (3) that new evidence now available to the respondent shows bias on the part of an important Government witness.
If there were anything in the record or submitted by counsel in any wise showing that the respondent had been treated unfairly in this proceeding, we would be quick and eager to correct it, particularly because the case has certain sentimental appeal by reason of the respondent's youth and inexperience when the events involved occurred and because of her young child; but our review of the record and representations by counsel convinces us that the proceeding has been eminently fair, that it conforms to established standards, and resolving in her favor any doubt which might exist would not result in altering the conclusion heretofore reached.
The first point presented by counsel can be readily disposed of. The act concerned was enacted on June 11, 1946, and became effective (with exceptions, not involved herein) 3 months thereafter. Section 12, however, provided that "no procedural requirement shall be mandatory as to any agency proceeding initiated prior to the effective date of such requirement." It has been judicially determined that the act is inapplicable to a proceeding initiated previous to September 11, 1946. ( Harisiades v. Shaughnessy, 90 F. Supp. 431 (and 397) (S.D.N.Y., 1950)). Examination of the record shows the warrant of arrest was issued on October 29, 1945, and was served on the respondent on May 21, 1946, and that it set forth the charges sustained in the order of deportation. Hence the motion cannot prevail on the first point contained therein.
Counsel has submitted with his motion an affidavit, dated September 11, 1949, by P---- E---- V----, wherein he states that he was the respondent's husband from 1941 to 1944 and that from his personal knowledge and observation the respondent did not at any time practice prostitution and that the statement taken from her was taken, in his opinion, by putting her in fear of being separated from her child. Presumably this constitutes the "additional evidence" on which counsel relies to support points (2) and (3).
The probative value of the statement by the respondent's former husband is minimized when considered with the record. In the "confession," acceptance of which is opposed by counsel, the respondent stated on July 25, 1942, at the Boston, Mass., Police Department:
I also admit I have been having intercourse for the last three months with men, and receiving money for same. I have had a hard time getting along as my husband works for the United Fruit Co. I have not seen him for the last five months.
During the course of the hearing Police Officer Cote testified in reply to queries by the respondent's representative, as follows:
Q. Did you meet her husband at all?
A. After the arrest.
Q. You met him in the Roxbury District Court?
A. No; in the station. He had just come from sea, I believe.
The respondent testified concerning her living conditions and the court proceedings (which followed her giving the "confession") on a charge of being "an idle and disorderly person" as follows:
I was living at 69 Gainsboro Street. I was here all alone. I was very lonely. I made friends with some people in the building. * * * They locked me up at Charles Street. Finally my husband came in and bailed me out. Then I appeared in court. You have the record. Judge Miles said, "Why don't you take this young lady home and we will forget the matter." My husband said "No; I want her to go on probation so she could be watched." So he put me on probation * * * (p. 14).
Thus it is apparent that when the events occurred which are the basis for the present proceeding, the respondent's then husband was absent from her and had been for some considerable time and could not have had personal knowledge concerning her conduct; also, her testimony shows that when she was before the court he, the then husband, was mistrustful. Subsequent events may well have removed that mistrust; but neither his confidence in her integrity, nor lack of confidence, can outweigh the evidence supplied by the respondent herself, even though received with the utmost caution, when it is corroborated as here.
The full discussion of the record contained in our memorandum of July 7, 1950, makes further recital unnecessary for disposition of the motion.
Order: It is ordered that the motion for reconsideration and stay of deportation be denied.