stated to the Relator his proposed findings of fact and his conclusions of law, one of which was that the Relator should not be allowed to depart voluntarily because he had failed to establish good moral character. In answer to an express question by the Court at the hearing on the habeas corpus writ, the Examiner stated unequivocally to the Court that absent the untried charge on which the man was being held, there would be no reason why this man should not have had a certificate of good moral character and why he should not have so certified. As stated before, no inquiry was made as to whether Relator had a defense to the charge which, on his testimony, he did have and which defense is all the more persuasive since in late September the charge was nolle prossed in the Courts of Philadelphia County. Asked whether he wished to take exception, he stated that he did. While the matter was certified to the Board of Immigration Appeals which affirmed the action of the Hearing Examiner, no explanation was given to the Relator of his right to appear in person or by counsel before the Board of Immigration Appeals to argue his cause. The matter was considered by the Board on the bare record.
Early in October, Relator finally secured counsel, who promptly asked for a rehearing, which was denied. He then sued out this writ.
The fundamental question involved in this case is whether this Relator has been deprived of due process of law in violation of the Fifth Amendment to the Constitution of the United States. Due process requires a full and fair hearing even before an administrative tribunal. While it is well settled that the United States has plenary power to provide that aliens shall be deported on terms and conditions of its own choice, deportation without a fair hearing or on charges not supported by any evidence constitutes the denial of due process which may be prevented by habeas corpus. U.S. ex rel. Vajtauer v. Commissioner of Immigration, 273 U.S. 103, 47 S. Ct. 302, 71 L. Ed. 560; Nicoli v. Briggs, 10 Cir., 83 F.2d 375. Strict adherence to judicial procedure is not required in a hearing in a deportation proceeding but where in a hearing there is some practice which contributes to a denial of justice or any other essential element of due process, then such action may be challenged by habeas corpus. Bufalino v. Irvine, 10 Cir., 103 F.2d 830. It was also stated in Bridges v. Wixon, 326 U.S. 135, 65 S. Ct. 1443, 89 L. Ed. 2103, that where evidence is improperly received and where but for that evidence it is wholly speculative whether the requisite finding would have been made, there is then a deportation without a fair hearing which may be corrected on habeas corpus.
The record of the hearings of the Immigration and Naturalization Service which are incorporated in full in the Government's return to the writ indicate on the surface that the formalities of a fair hearing were observed in that Relator was advised that he had a right to counsel. The substance of a fair and intelligent hearing, intelligent in the sense that the prisoner had knowledge of his rights and that his rights were being protected was entirely lacking. Informing a prisoner with total resources of $ 30.00, a stranger in a strange land with a complete lack of knowledge of the language of that country, that he had a right to counsel is almost an empty gesture. Under the Rules of the Immigration and Naturalization Service, as testified at the hearing, representatives of that Service are forbidden in anywise to assist prisoners in obtaining counsel. This explanation was given to me as the reason for their total lack of action in that regard. Since, however, there are presently in Philadelphia the Legal Aid Society to assist the indigent and the Reference Agency of the Philadelphia Bar Association to assist those who need the assistance of counsel and do not know any particular lawyer, this explanation does not appeal to me. The end result of Relator's position was that he was virtually incommunicado despite permission granted to use the telephone.
In a matter involving a person's liberty, it is my opinion that we must look to the substance rather than the form. I am not undertaking to hold that a person has an absolute right to counsel before administrative boards, nor am I holding that a denial of counsel would in every case prevent such proceedings being fair. Where, however, as in this case, important facts having a distinct bearing on the ultimate outcome of the case were not presented because of the absence of counsel, then I have no hesitancy in finding that it did not meet the requirements of a fair hearing. I agree with the statement of Judge Sanborn in the case of Whitfield v. Hanges, 8 Cir., 222 F. 745, 748, that an alien as well as a citizen is protected by the universal principle that no person shall be deprived of life, liberty, or property without due process, and that his hearing must be in accord with the 'fundamental principles that inhere in due process of law'. Had all the facts which were adduced before me been presented at the hearings before the Immigration and Naturalization Service, even though counsel were not present, it is quite possible that my decision would have been to the contrary; but where facts are not presented which in all probability would have had an important bearing upon the judgment exercised by the Immigration and Naturalization Service, then the denial of the opportunity to present such facts offends my sense of fairness. It would in my opinion be a reflection upon the American system of jurisprudence if this impecunious alien in the light of all the circumstances were to have the legal consequences of deportation visited upon him without having a full and complete opportunity to present for the determination of the Immigration and Naturalization Service all the facts adduced in the record before me.
Since the finding of the Immigration and Naturalization Service of a failure to establish good moral character for a period of five years was based solely upon an untried charge and at the hearing Relator had stated a full and complete defense (if believed), I feel that there was a duty upon that Service to inquire into the facts attending the bringing of the charge or await the trial of that charge before concluding that good moral character had not been established. Particularly is this so since the charge was subsequently nolle prossed.
I do not mean to indicate by what I have said that I am attempting to usurp or interfere with the exercise of a discretion which lies solely with the Attorney General or those to whom he has delegated that discretion. Under the provisions of 8 U.S.C.A. § 155, the Attorney General is given the sole discretion to permit voluntary departure in lieu of deportation in certain enumerated situations. That problem is not before me. The basis for my holding is that the administrative tribunal has denied the Relator due process of law in violation of the Fifth Amendment to the Constitution of the United States in that he was not accorded a 'full and fair hearing'. Any action, therefore, based on such a hearing is a nullity.
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