The opinion of the court was delivered by: DUSEN
The defendant has filed a motion for summary judgment and no answer to the complaint
in this action for declaratory judgment and injunctive relief by an alien seeking to restrain the enforcement of an order directing that she be deported to Poland. The complaint and the certified copy of the deportation proceedings filed with the motion for summary judgment show, inter alia, the following:
1. The alien plaintiff was born in Poland in 1900 and has been a resident of this country since June 1914. She is the mother of eight children who are citizens of the United States of America and she has seventeen grandchildren in this country.
2. In October 1935, the Board of Review of the Immigration and Naturalization Service reversed an order directing plaintiff to be deported, issued about June 1, 1935, after testimony had been taken before a hearing examiner in May 1935, and held 'inter alia, that there was no evidence to affirmatively show her a member of the Communist Party or that she was a member of the Communist Party subsequent to entry.'
3. On August 25, 1953, there was served on plaintiff a warrant of arrest, charging her with being in this country in violation of Section 241(a) of the Immigration and Nationality Act, 8 U.S.C.A. § 1251(a), because she was, after entry into this country, an alien who was a member of the Communist Party of the United States. Plaintiff was granted a hearing under this warrant on February 9, 10, 11 and March 8, 1954, at which time testimony, transcribed on 265 letter-size pages, was offered by the Immigration and Naturalization Service before Loyd H. Matson, Special Inquiry Officer. Plaintiff was present at the hearing with counsel, but did not testify nor did she offer any evidence to rebut the evidence produced by the Service.
4. On August 20, 1954, the Special Inquiry officer filed a thorough discussion of the testimony, findings of fact, including a finding that plaintiff was a member of the Communist Party of the United States in 1935 and 1936, conclusions of law, including a conclusion that plaintiff was subject to deportation under the above-mentioned Section 241(a), and an order that plaintiff be deported from the United States of America.
5. On December 21, 1954, the Board of Immigration Appeals, in a well-considered opinion, dismissed an appeal taken by plaintiff from the deportation order of August 20, 1954.
6. By letter dated March 16, 1956, plaintiff was ordered to report for deportation to Poland on April 2, 1956.
Irrespective of the public interest that may be served by not requiring the Government to produce such documents, the Third Circuit Court of Appeals has indicated that the desire of Congress to see justice done to persons entitled to judicial review is of prime consideration, and the reviewing court must determine whether these statements disclose inconsistencies with present testimony of such a nature that plaintiff's counsel needs them in order to elicit the truth through cross-examination. This rule is subject to the provision that the inconsistencies not appear in matter required to be kept secret for security or other legal reasons.
See Reynolds v. United States, 1951, 192 F.2d 987, 994.
The reversal of that decision by the United States Supreme Court was specifically based on grounds which are not applicable here
and the Supreme Court opinion recognizes the applicability of the lower court reasoning discussed above to criminal cases. See 1953, 345 U.S. 1, 12, 73 S. Ct. 528, 97 L. Ed. 727.
The Circuit Court of Appeals stated in the Reynolds case, 192 F.2d at page 995:
Defendant contends this principle is inapplicable here because counsel for plaintiff did not establish that the statements contained material inconsistent with the the testimony given by the witnesses before the Special Inquiry Officer. Several Federal cases have placed this burden on individuals seeking to use for impeachment statements in the possession of the Federal Government;
however, there are also cases indicating that where the individual has no way of determining the contents of such statements, the proper procedure is to have the trial judge examine the statements in camera and decide, first, if they contain any material of impeachment value and, second, if such material is so confidential that it should not be disclosed for such impeachment purposes. See United States v. Lebron, 2 Cir., 1955, 222 F.2d 531, 536-537 and United States v. Mesarosh, D.C.W.D.Pa.1953, 116 F.Supp. 345,
and cases there cited; cf. Fryer v. United States, 1953, 93 U.S.App.D.C. 34, 207 F.2d 134.
The United States Supreme Court has consistently recognized that deportation 'may result also in loss of both property and life, or of all that makes life worth living', Ng Fung Ho v. White, 1922, 259 U.S. 276, 284, 42 S. Ct. 492, 495, 66 L. Ed. 938 and 'is * * * at times the equivalent of banishment or exile,' Fong Haw Tan v. Phelan, 1948, 333 U.S. 6, 10, 68 S. Ct. 374, 376, 92 L. Ed. 433. See Galvan v. Press, 1954, 347 U.S. 522, 530, 74 S. Ct. 737, 98 L. Ed. 911. In view of these serious consequences, exacting procedural requirements are applicable to deportation proceedings. See Bridges v. Wixon, 1945, 326 U.S. 135, 154, 65 S. Ct. 1443, 89 L. Ed. 2103.
At least one Federal court has stated that the public policy considerations requiring the production of documents in the Government's possession for inspection by the trial judge in camera to determine their relevance are applicable in a deportation proceeding involving an enemy alien. See United States ex rel. Schlueter v. Watkins, D.C.S.D.N.Y.1946, 67 F.Supp. 556, 561.
Since the proposed deportation order contemplates sending this alien plaintiff behind the 'iron curtain' on the basis of a fact alleged to have occurred approximately twenty years ago, this longtime resident of the United States, having a large family here, would seem entitled to have in her trial at least those safeguards given to ...