A-5529102
Decided by Board January 13, 1953
Hearing officer: Authority to issue subpoena — Subpoena: Issuance of to compel production of Service records — Evidence — Cross-examination as to collateral matters relating to credibility of witness.
(1) A hearing officer has no authority to issue a subpoena requiring the production of information from the records of the Service, such information consisting of testimony of a witness in unrelated proceedings.
(2) The extent of cross-examination permitted of a Government witness as to his participation and testimony in other deportation cases is a matter within the discretion of the officer conducting the hearing and only a clear abuse of discretion by the hearing officer in limiting cross-examination would be considered prejudicial error.
CHARGE:
Warrant: Act of October 16, 1918, as amended — After entry alien who was member of Communist Party of the United States.
BEFORE THE BOARD
Discussion: This is an appeal from an order dated June 16, 1952, by the hearing officer requiring the alien's deportation on the ground stated above.
The respondent is a 58-year-old married male, a native and citizen of Russia whose only entry occurred in 1913 when he entered the United States for permanent residence. The entry was not verified.
Deportation is sought on the ground that the alien was a member of the Communist Party of the United States. Respondent claimed the privilege against self-incrimination and did not testify at the hearing. Evidence of record as to the alien's membership in the Communist Party, consists of the testimony of Government witness K----. K----, while a police officer, infiltrated the Communist Party in 1928 and remained a member until his true identity was discovered in 1939. During the period of his membership, he was an officer in the Communist Party in various positions and from 1936 to 1939 was in charge of Communist Party membership records in a county wide area. The witness testified that from 1928 to 1930 he attended about 25 to 30 closed meetings of the Communist Party at which the respondent was present. K---- testified about two specific meetings at which he was in attendance with the respondent and stated that while he, the witness was in charge of Communist Party records, he saw a Communist Party membership record relating to the respondent.
The main contentions of counsel concern the denial to him of access to certain records in the possession of the Service and the failure of the hearing officer to permit proper cross-examination of K----. At oral argument, request was made that the proceedings be returned to the field office with instructions that counsel be permitted access to the Service records he desires. We will first deal with the objection concerning the right to inspect the Service records.
After K---- had finished his testimony, and there had been some cross-examination, counsel requested and received an adjournment to enable him to conduct an investigation concerning K----. His investigation revealed that K---- had been a Government witness in other unrelated deportation proceedings in which he had apparently identified an alien as a member of the Communist Party. When hearing was resumed, counsel requested that the hearing officer issue a subpoena directing the District Director of the Service to make available to counsel K----'s testimony in these unrelated proceedings so that counsel might determine if this testimony could be used to attack credibility of K----. This motion was denied by the hearing officer on the ground that the prior testimony in the unrelated proceedings were confidential records and that he had no authority to release the information and that there was no merit to the request. At a subsequent continued hearing, counsel again requested that the hearing officer issue a subpoena addressed to the district director requiring the production of the prior testimony in the unrelated proceedings. This request was likewise denied by the hearing officer on the ground that it lacked merit in that the prior testimony sought was not shown to be relevant or contradictory.
The denial of counsel's requests that a subpoena issue for the purpose above stated was proper. The hearing officer had no authority to issue such a subpoena under the circumstances of the case. The hearing officer is authorized to "issue, during the course of the hearing, any subpoenas authorized by law" (italics added) (8 C.F.R. 151.2(a)). The issuance of a subpoena by a hearing officer requiring the production of information from records of the Department of Justice (of which the Service is a part) is not authorized by law. For, in accordance with 5 U.S.C.A. 22, the Attorney General promulgated Department of Justice Order No. 3229, filed May 2, 1946, 11 Fed.Reg. 4920, which provides that:
All official files, documents, records and information in the offices of the Department of Justice, * * * or in the custody or control of any officer or employee of the Department of Justice, are to be regarded as confidential. No officer or employee may permit the disclosure or use of the same for any purpose other than for the performance of his official duties, except in the discretion of the Attorney General, the Assistant to the Attorney General, or an Assistant Attorney General acting for him, * * *
The Courts have held that this order of the Attorney General withdraws from his subordinates the power to release Department papers U.S. ex rel. Touhy v. Ragen, 340 U.S. 463. This being so, it is clear that the hearing officer was without authority to issue the subpoena unless he had been designated by the Attorney General as a person with the power to permit such disclosure of information.
The Attorney General has authorized certain employees of the Service to disclose information from Service records. These persons are set forth in 8 C.F.R. 383.7 ( 8 C.F.R. 2.1 new). The hearing officer is not listed as such an authorized person. Counsel's request for the subpoenas was therefore properly denied and if he is still desirous of the information he should apply to the district director in accordance with the procedures authorized by law. Counsel's request that the case be remanded to the field with instructions that he be permitted access to the desired information is denied.
( a) The Commissioner, the General Counsel, the district directors, or such other officers of the Service as may be designated by the Commissioner may decide applications for copies of immigration and naturalization records, or for information therefrom, and may certify that any official file, document, or record in the custody or control of the Service as a true file, document, or record or that a copy of such a file, document, or record is a true copy.
We will now discuss counsel's contention that there was a denial of proper cross-examination.
We believe that counsel's complaint arises chiefly out of his mistaken belief that the hearing officer was the proper party from whom to obtain permission to inspect the prior testimony in the unrelated proceedings. For, after the hearing officer had denied the second request for the issuance of a subpoena, counsel attempted by means of cross-examination of K---- to determine what the substance of K----'s testimony in the unrelated proceedings had been. This fact is clear from the record, for counsel offered to stipulate that his line of questioning (which the hearing officer did not permit) was an endeavor "to determine what exists in another record". Such an endeavor was improper as a part of cross-examination for it was clearly a collateral or irrelevant matter.
We point out that we are not passing upon the merits of counsel's request for information of a routine nature from Government records. That question is not before us.
Cross-examination is a matter of right, even where it goes to a collateral matter touching credibility, Alford v. U.S., 282 U.S. 687; Lindsey v. U.S., 133 Fed. (2) 368 (C.A.D.C.). The limit to which inquiry shall go is, however, a matter of discretion ( Lindsey v. U.S., supra). Only a clear abuse of discretion would be considered prejudicial error. We find neither a denial of the right of cross-examination herein nor an abuse of discretion.
After K---- had testified, counsel was granted a continuance to conduct an investigation to determine if there was a basis for attacking the testimony. At hearings, counsel was given considerable latitude in cross-examination of K----. K---- was cross-examined concerning his places of residence from 1920 to 1945 and his employment. He was questioned concerning the two specific meetings of the Communist Party at which he had placed the respondent. He was questioned concerning his recollection of the physical characteristics of the room; the building; and the names of the people who had attended the meetings in question. Questions which might presumably indicate bias or interest were permitted. He was questioned concerning the length of time he had been appearing as a witness in deportation proceedings and his remuneration for such testimony and all other remuneration he received from the Government.
Cross-examination was permitted as to whether K---- had been a witness in the case of S---- G----. Although counsel was denied the right to ask the witness whether he had appeared in the deportation proceedings of K---- A---- the witness was permitted to answer whether he had attended Communist Party meetings at which the respondent and A---- had both been present; and although the witness was not permitted to state whether he knew K---- A---- the witness was permitted to answer whether he recalled A---- acting as a door guard at a closed meeting of the Communist Party. Under the circumstances we believe the termination of questioning and the limitation of questioning as to details of the witnesses testimony concerning A---- was not error.
Counsel was not permitted to question K---- as to whether he had been a witness in a deportation proceeding of F----. However, he was permitted to question the witness as to whether he had ever attended a Communist Party meeting at which F---- was present; the time and place of such meeting and whether he had ever attended a meeting at which respondent and F---- were present. To the last question, the witness answered in the negative. While we believe it would have been proper to permit the witness to testify as to whether or not he had been a witness in the deportation proceedings involving F----, we find no fatal error in the denial. It is obvious from the record that counsel knew the witness had been a participant in the deportation proceedings concerning F----.
Other objections of counsel based on constitutional grounds must be dismissed on the authority of the decisions in the cases Harisiades v. Shaughnessy, 342 U.S. 580 and Carlson et al. v. Landon, 342 U.S. 524.
We need not discuss counsel's contention that it was error on the part of the hearing officer to draw an unfavorable inference from the alien's refusal to testify for we have drawn no such inference in arriving at our conclusion.
Counsel's objection to the introduction into evidence of three books purporting to be respondent's membership books in the Communist Party are well taken. There is nothing in the record which indicates that these books were in fact, the books of the respondent. We have not considered these books in arriving at our determination.
Counsel's assignment of error to the use of respondent's registration as an alien and report of change of address as being in violation of Service regulations relating to the use of statements made during the course of an investigation (8 C.F.R. 150.1(b) and 151.3(b)) is not well taken. The documents in question were not statements made during the course of an investigation. They were executed in conformity with the requirements of the Alien Registration Act. Identification of these documents by Government witness B---- as relating to the respondent was proper even though made on the basis of oral admissions made by the alien to B----.
We will not discuss counsel's contentions concerning the introduction of exhibit 10, an ex parte statement by the Service showing inability to verify the arrival of the alien or exhibit 12, an F.B.I. identification report, for we have made no use of these exhibits in arriving at our determination. Testimony of K---- is material and substantial. It establishes that the alien has been a voluntary member of the Communist Party. The charge in the warrant of arrest is clearly sustained. The appeal will be dismissed.
Order: It is ordered that the appeal be and the same is hereby dismissed.