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April 18, 1957

George VLISIDIS, Plaintiff,
J.W. HOLLAND, District Director, Immigration and Naturalization Service, Defendant. Nicholaos MAVRELOS, Plaintiff, v. J.W. HOLLAND, District Director, Immigration and Naturalization Service, Defendant

The opinion of the court was delivered by: LORD

These are like civil actions for declaratory judgments and judicial review. The plaintiffs have been found to be aliens subject to deportation, and have been ordered deported. Those findings were the results of hearings conducted by Special Inquiry Officers of the Immigration and Naturalization Service, whose orders were affirmed by the Board of Immigration Appeals. Plaintiffs have asked this Court to find that the deportation orders are invalid, and to restrain the defendant from taking furtheir steps toward their deportation.

Defendant has moved for a summary judgment of dismissal.

 These cases again present the now somewhat familiar situation in which alleged aliens stand mute at deportation proceedings. United States ex rel. Bilokumsky v. Tod, 1923, 263 U.S. 149, 44 S. Ct. 54, 68 L. Ed. 221; United States ex rel. Vajtauer v. Commissioner of Immigration, 1927, 273 U.S. 103, 47 S. Ct. 302, 71 L. Ed. 560; United States ex rel. Zapp v. District Director of Immigration and Naturalization, 2 Cir., 1941, 120 F.2d 762; Quilodran-Brau v. Holland, 3 Cir., 1956, 232 F.2d 183; Ocon v. Guercio, 9 Cir., 1956, 237 F.2d 177; Caetano v. Shaughnessy, D.C.S.D.N.Y.1955, 133 F.Supp. 211; Williams v. Butterfield, D.C.E.D.Mich.1956, 145 F.Supp. 567; Da Costa v. Holland, D.C.E.D.Pa., 151 F.Supp. 746, opinion by Kirkpatrick, Chief Judge.

 As may be expected, however, such cases present variations in the nature of the asserted grounds for deportation and in the reasons, if any, given for the silence of those appearing at the hearings on deportation.

 Both aliens had been interviewed by Immigration Officers at Albany, New York, some time before the hearings which are here challenged. At those Albany interviews they had voluntarily executed sworn question-and-answer statements admitting alienage, the circumstances of their entrances at United States ports as seamen, and their subsequent violations of the conditions of such admissions.

 The deportation proceedings here in question had been originally set for hearing at the New York Office of the Service. In response to requests by present counsel for plaintiffs, however, both cases were thereafter transferred to the Philadelphia Office of the Service, and took place in the latter city.

 The chief contention of the plaintiffs is that, since the officers who originally interviewed the plaintiffs at Albany were not present at the Philadelphia hearings, there was no identification of the parties or the exhibits at the latter place. Those exhibits, which included landing permits, seamen's papers, and a passport -- in addition to the sworn statements heretofore described -- were relied upon by the administrative triers of fact in reaching their decisions.

 Somewhat significantly, plaintiffs have never denied that they are aliens, nor have they ever asserted that they are lawfully in this country. Their positions, throughout, have simply been that the Government did not prove the cases against them before the Special Inquiry Officers, in that the documents and exhibits were not related to them. Since the officers who conducted the Albany interviews were not produced at the Philadelphia hearings, they complain, they have been denied due process of law.

 The matter has long since been settled in the United States Courts to the contrary. It is true that in most of the cases heretofore cited wherein alleged deportable aliens have refused to answer, there has been no claim of Fifth Amendment privilege. In others, such claim has been without substantial basis, e.g. Caetano v. Shaughnessy, D.C.S.D.N.Y.1955, 133 F.Supp. 211, 213. An exception is United States ex rel. Zapp v. District Director of Immigration and Naturalization, 2 Cir., 1941, 120 F.2d 762. There the aliens had maintained silence in administrative deportation proceedings, invoking the Fifth Amendment. Their claim of privilege was indeed warranted, since federal criminal indictments were then pending against them for the crimes of having failed to register as foreign agents and, as to petitioner Zapp, for having filed a false registration statement. Dismissing the peition for a writ of habeas corpus, the Court of Appeals for the Second Circuit, Clark, J., held that at page 764:

 '* * * the privilege against self-incrimination may be operative in (deportation) proceedings, but in that event the alien's silence may be evidence against him. Any limitation upon the right to exclude aliens because of other provisions of municipal or national law would, of course, be a serious impairment of sovereignty and might well produce dangerous results. * * *'

 The passage last quoted leads to the final aspects of the present case. Much has been made by plaintiffs of the unfairness, in the face of the Fifth Amendment claims, of the Government's position that inferences may be drawn from the silences of those who refuse to answer on those grounds at deportation proceedings.

 For one answer, it is settled that the inference may be drawn generally, and no less in these cases -- since it is axiomatic that a deportation proceeding is civil rather than criminal (see Appendix I, infra.) Furthermore, in such cases, the Fifth Amendment privilege has no connection with the basic evidential proposition, as determined in the Zapp case last cited. Elaboration of the evidential rule (as opposed to the due process rule) appears in part II of the Appendix.

 In the present cases, the Special Inquiry Officers had before them departmental official records which would have been admissible even in federal judicial proceedings, see Rule 44, Federal Rules Civil Procedure, 28 U.S.C., set out in part III of the Appendix. Such documents included, in the case of plaintiff Vlisidis, even a Greek passport bearing a photograph which the Special Inquiry Officer specifically found to be a good likeness of the person then before him. Insofar as an inference, drawn from the silence of the subject in the particular case, was deemed necessary to support the identifications and findings, such inference was clearly justified. Looking at the matter less legalistically, one may say that if the particular plaintiff felt that he was being misidentified, or unjustifiably connected to the subject of the exhibits, he might well have said so -- then or in the present proceedings.

 To the contrary, however, the plaintiffs' positions are the essence of technicality. Despite the settled rule that deportation proceedings are not criminal in nature, those parties stand upon a ground which would be dubious, to say the least, even in a criminal prosecution, see United States ex rel. Bilokumsky v. Tod, 1923, 263 U.S. 149, 153-155, 44 S. Ct. 54, 68 L. Ed. 221. It is often held in criminal cases that when facts are peculiarly within the knowledge of the defendant, the burden is on him to present evidence of such facts, whether the proposition is an affirmative or a negative one, e.g. Wharton's Criminal Evidence § 14 (12th ed. 1955) and cases cited in Appendix IV herein, infra.

 Plaintiffs' contentions, carried to their inevitable conclusion, would give a criminal alien a distinct advantage over one who, for instance, had innocently overstayed a visitor's leave. That is, it is settled by an unbroken line of authority -- including all the cases heretofore cited -- that an alien, innocent of criminality as to his presence in the United States, cannot gain an advantage by refusing to answer questions in a deportation proceeding. The petitioners here, however, claim in essence that preferment must be granted to one who, at a deportation proceeding, makes some showing that his answers would in fact incriminate him as to his presence in this country, and then stands upon the barren ground that he will not even identify himself, saying 'Try to prove who I really am.'

 Of course, such an alien cannot be required to give answers which would incriminate him. By asserting that privilege, however, he cannot elevate himself to a status above that of other aliens whose only default, in this aspect, is that they have broken no criminal law of the United States. To the contrary, he must sooner or later show his right to stay in the country, or be required to return whence he came. In this respect he stands in a position no better, but no worse, than that of any other alien.

 Much discussion in the briefs has been provoked by the decision of then United States Supreme Court in Slochower v. Board of Higher Education of New York City, 1956, 350 U.S. 551, 76 S. Ct. 637, 100 L. Ed. 692. Suffice it to say, subject to further discussion in part V. Appendix, that the Slochower decision is deemed to be without bearing on the present cases. In the first place, the Slochower case, as the Appendix will show, turns on unrelated propositions of law and, of course, is based on a radically different factual background. Furthermore, the case of Hyun v. Landon, 9 Cir., 1955, 219 F.2d 404, a denial of relief from an immigration decision, was affirmed per curiam by an equally divided court in the very volume of the Supreme Court reports in which the Slochower decision was published, i.e. Hyun v. Landon, 1956, 350 U.S. 990, 76 S. Ct. 541, 100 L. Ed. 856. In the latter, the petitioner for habeas corpus, who was subject to deportation, had been ordered deported as a result of depositions taken in Honolulu while he was in custody in San Francisco and allegedly without means to go to Honolulu or secure representation there.

 From the foregoing points and authorities, it appears that plaintiffs' positions are reduced to the contention that the decision of deportability is not supported by the reasonable, substantial and probative evidence required by the Immigration Act, 8 U.S.C.A. § 1252(b)(4). By the same statute, however, such administrative decisions are stated to be subject only to final review by the Attorney General. Judicial review is at least narrow despite the fact that its boundaries are not clearly defined; see cases collected in Davis, Unreviewable Administrative Action, 15 F.R.D. 411, at pages 433-439 and cited in part VI, Appendix.

 Having determined, under the authorities, that plaintiffs gained no evidential advantages by their pleas of the Fifth Amendment, and finding neither denial of due process nor arbitrary action, this Court further determines that the deportation orders were based upon evidence sufficient to warrant an administration decision. The extent to which such determinations rested upon inferences drawn from plaintiffs' refusals to produce evidence cannot be determined. Under the authorities, however, inferences would have been justified.

 It must be granted, of course, that there was an initial showing that the subjects of inquiry were aliens. Otherwise, no recognition of the Fifth Amendment privilege would have been warranted. Absent that predicate, the case in this respect would have been on all fours with Quilodran-Brau v. Holland, 3 Cir., 1956, 232 F.2d 183, at page 185, wherein the Court of Appeals for the Third Circuit said concerning questions pointing to alienage:

 '* * * Advised by his counsel he stood mute in answer to the questions but claimed no privilege under the Fifth Amendment and, indeed, from what we see in the record, could not have done so. His refusal to answer supports an inference against him. And the weight to be given to his silence is for the trial tribunal. United States ex rel. Vajtauer v. Commissioner of Immigration, 1927, 273 U.S. 103, 111, 47 S. Ct. 302, 71 L. Ed. 560; Cf. United States ex rel. Bilokumsky v. Tod, 1923, 2 ...

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