IV. Inference From Silence Permissible Even in Criminal Prosecutions.
Yee Hem v. United States, 1925, 268 U.S. 178, 45 S. Ct. 470, 69 L. Ed. 904; Casey v. United States, 1928, 276 U.S. 413, 418, 48 S. Ct. 373, 72 L. Ed. 632; Rossi v. United States, 1933, 289 U.S. 89, 53 S. Ct. 532, 77 L. Ed. 1051; Commonwealth v. Vallone, 1943, 347 Pa. 419, 421, 32 A.2d 889; Sparf and Hansen v. United States, 1895, 156 U.S. 51, 15 S. Ct. 273, 39 L. Ed. 343.
V. Inapplicability of the Slochower Case.
The result in Hyun v. Landon, 1956, 350 U.S. 990, 76 S. Ct. 541, 100 L. Ed. 856, suffices to show that no change in the law as to deportation is dictated by the decision in Slochower v. Board of Higher Education of New York City, 1956, 350 U.S. 551, 76 S. Ct. 637, 100 L. Ed. 692. In the latter case, the United States Supreme Court struck down as unconstitutional a section of the New York City Charter. That section, § 903, provides (or provided) that, whenever a city employee utilizes the privilege against self-incrimination to avoid answering before a legislative committee a question relating to his official conduct, his employment shall terminate.
To make a comparison, one would have to assume or suppose that the Congress amended the Immigration and Nationality Act to provide that the status of persons in the United States would be altered with respect to the right to remain in the country by claiming the privilege against self-incrimination. A more direct comparison would be to suppose the amendment were to divest citizenship, since in the Slochower case the New York charter provision stripped Professor Slochower of his academic tenure.
VI. Scope of Judicial Review in Deportation Cases.
In terms the deportation statute provides that administrative action 'shall be final,' 8 U.S.C.A. § 1252(b). It has been pointed out by Professor Davis, however, that the word 'final' has come to have certain special meanings with reference to the various statutes of the same tenor; see Unreviewable Administrative Action, 1954, 15 F.R.D. 411, 433. The very cases cited in the course of this opinion and appendix demonstrate that judicial review is in fact given. On the other hand, the almost complete absence of cases in which the administrative determination is disturbed indicates that the circumstances necessary to impel a court to upset the finality of the administrative result would have to be extraordinary.
It is pertinent to mention that the plaintiffs did not attempt to secure any sort of discretionary relief such as that provided by § 244 of the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1254, see Jay v. Boyd, 1956, 351 U.S. 345, 76 S. Ct. 919, 100 L. Ed. 1242. That section authorizes the Attorney General, in his discretion, to suspend deportation as to certain aliens who meet requirements as to moral character, hardship, and period of residence within the United States. Rather patently, the plaintiffs would be ineligible for such consideration -- which is mentioned only on the point that the administrative remedies have been exhausted and the determinations of the Board of Immigration and Nationalization Appeals affirming the Special Inquiry Officers are 'final' within the statute.
Particularly on the present issues, it is not necessary to determine with precision whether the sweep and search of the review asked by plaintiffs coincides with that of habeas corpus, or whether there is any difference in scope between the inquiry under the Declaratory Judgment Act, 28 U.S.C.A. § 2201 and review under the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq. That the differences, if any, do not affect the present case may be demonstrated by comparing the opinion of the court in Crain v. Boyd, 9 Cir., 1956, 237 F.2d 927 and the concurring opinions of Fee and Chambers, Circuit Judges, in the same case at page 933.
To the effect that the scope of review in the present proceedings is the same as that of habeas corpus, see United States ex rel. Brzovich v. Holton, 7 Cir., 1955, 222 F.2d 840, 841 and, e.g. Rubinstein v. Brownell, 1952, 92 U.S.App.D.C. 328, 206 F.2d 449, 452, 456, affirmed per curiam sub nom. Brownell v. Rubinstein, 1954, 346 U.S. 929, 74 S. Ct. 319, 98 L. Ed. 421 by an equally divided court. Further cases are collected in the Davis article, supra, 15 F.R.D. at page 433 ff. The latest case throwing light on the matter is perhaps Brownell v. Tom We Shung, 1956, 352 U.S. 180, 77 S. Ct. 252, 1 L. Ed. 2d 225.
VII. History of the Cases.
Plaintiff Vlisidis was interviewed on August 10, 1955 by an Immigration Officer at the Albany, New York Office of the Immigration and Naturalization Service. He then voluntarily executed a sworn question-and-answer statement in which he admitted that he is a native and citizen of Greece; that he last entered the United States at San Pedro, California on June 19, 1955 as a seaman aboard the SS Atlantic Wave; that he was then temporarily admitted to the United States for a period of twenty-nine days within which to reship on another vessel; and that on a prior entry, he was arrested in deportation proceedings, but was granted voluntary departure. A warrant for his arrest in deportation proceedings was thereupon issued at Albany, and served upon Vlisidis. He was then released from custody under $ 500 administrative bail bond, conditioned upon his appearance, when demanded, for deportation hearing and for actual deportation, if ordered.
Thereafter, a notice of a hearing, scheduled to be held in his case at the New York Office of the Service, was sent on October 5, 1955, to Vlisidis at the address furnished by him when released from Service custody. A letter dated October 6, 1955, was thereupon received from the counsel who represents Vlisidis before this Court, advising that Vlisidis was residing at an address within the jurisdiction of the Philadelphia Office of the Service, and requesting that the hearing be held at the latter Office. Pursuant to this request, a hearing was scheduled for Vlisidis at the Philadelphia Office. On request of Vlisidis' counsel, this hearing was postponed. The hearing was then rescheduled on another date, and notice thereof was furnished to Vlisidis and his counsel.
On the appointed new date set for deportation hearing, Vlisidis appeared with his counsel, and the hearing commenced. Before the Special Inquiry Officer, Vlisidis was sworn to testify, and he gave his name. He identified his counsel as representing him in the deportation proceedings. The Special Inquiry Officer then asked Vlisidis where he was born. Acting under the advice of his counsel, Vlisidis refused to answer, on the ground that his answer would tend to incriminate him. He refused on the same ground to testify to the facts of his entry. The Special Inquiry Officer asked Vlisidis whether or not he could identify the record of sworn statement voluntarily executed by (one) Vlisidis before the Immigration Officer at Albany, New York. Again, acting under the advice of his counsel, Vlisidis refused to answer that question on the ground it would tend to incriminate him. The Special Inquiry Officer thereupon entered the sworn statement in evidence. The same question as to identification was asked relative to a record of a crewman's landing permit, a passport, and a seaman's certificate, and the same refusals to answer were made on the grounds of self-incrimination. The documents were nevertheless placed in evidence by the Special Inquiry Officer, over counsel's objections that they were not properly authenticated or identified in the sense of having been related or connected-up with his client. The Special Inquiry Officer noted that the passport and the seaman's certificate bore good likenesses of the person then before him. The remainder of the hearing was composed largely of Vlisidis' refusals to answer questions -- always on the ground of the privilege against self-incrimination. No affirmative defense to the charges of alienage and deportability were offered on Vlisidis' behalf. He made no overt denials, relying solely upon his refusals to testify.
Plaintiff Marvelos was interviewed on December 3, 1954, by an Immigration Officer at the Albany, New York Office of the Immigration and Naturalization Service. He then voluntarily executed a sworn question-and-answer statement, in which he admitted that he is a native and citizen of Greece; that he last entered the United States on October 12, 1954, as a seaman aboard the S.S. Elizabeth H.; and that he was then temporarily admitted to the United States for a period of twenty-nine days -- within which to reship on another vessel. A warrant for his arrest in deportation proceedings was thereupon issued at Albany, and served upon Mavrelos. He was thereafter released from custody under $ 500 administrative bail bond, conditioned upon his appearance, when demanded, for deportation hearing, and for actual deportation, if ordered.
Thereafter, a letter was sent to Mavrelos on December 3, 1954, granting him permission until January 3, 1955, to depart voluntarily from the United States. A letter dated January 3, 1955, was subsequently received from the counsel who represents Mavrelos before this Court, advising that he represented Mavrelos in the administrative proceedings, and asking that the case be transferred to the Philadelphia Office of the Service, since Mavrelos was then residing within the jurisdiction of that Office. A hearing was then scheduled for Mavrelos at the Philadelphia Office of the Service. The hearing was postponed, and a new date set for hearing.
On the appointed new date set for deportation hearing, the present plaintiff Mavrelos appeared with his counsel, and the hearing commenced. Before the Special Inquiry Officer, Mavrelos was sworn to testify, and he gave his name and address. The identical pattern of questions and refusals to answer on the ground of self-incrimination then followed, as set out above in relation to Vlisidis' case. The notice of hearing; the record of sworn statement voluntarily executed by one Nicholaos Mavrelos before the Immigration Officer at Albany, New York; and the record of Mavrelos' seaman's landing permit, were entered in evidence by the Special Inquiry Officer, over counsel's objection.
There is little to be added to this recital of the facts disclosed by the record except to say that this Court has examined the transcripts of testimony taken before the Special Inquiry Officers in the two cases as well as the exhibits heretofore mentioned, and has found no basis for any inference that the plaintiffs here, as compared to the persons interviewed at Albany and placed under $ 500 bond, were 'two other people' -- so to speak.
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