MATTEn or C C Y
In DEPORTATION Proceedings
A-10436785
Decided by Board February 28,1961
Fair hearing—Deportation proceedings—Defects in original hearing cured by
valid reopened hearing—Privilege against self-incrimination waived 1 ...y voluntary pre-hearing statement—Validity of warrant of arrest unaffected by
withdrawal of deportation order and reopening of proceedings.
(1) Defects in original deportation hearing in 1954 which may have arisen
from failure to inform respondent of right to counsel and to provide an interpreter were cured when the proceedings were reopened in 1959 and the
respondent was accorded a further hearing satisfying the requirements of
due process.
(2) Respondent is not entitled to invoke the privilege against self-incrimination in respect to pre-hearing statement which was voluntarily given to
Service investigating officer; such statement was admissible in evidence at
the deportation hearing, although the special inquiry officer excluded It from
the record.
(3) The warrant of arrest which initiated the deportation action in 1954 remained effective as authority for respondent's detention, despite withdrawal
in 1959 of the original order of deportation and subsequent reopening of
the proceedings. See 309 F.2d 857 (1962).
CH.MIGE :
Warrant : Act of 1052 Section 241 (a ) (11) [8 U.S.C. 1251(a) (11)] —Convicted of law relating to illicit traffic in narcotic drugs: Title
26, U.S.C., sections 2553 and 2557 (unlawful sale of heroin);
and Title 21, U.S.C., section 174 (unlawful concealment of
heroin).
BEFORE THE BOARD
DISCUSSION: Tn our decision of <Tune 14, 1960, in this-matter,
we briefly stated the facts relating to respondent's appeal and the
basic contentions of counsel. We ordered the record reopened for
the admission of certain evidence. The reopened hearing was held
and the special inquiry officer, on the basis of the entire record,
adopted the decision and order of the special inquiry officer dated
December 7, 1959. Respondent again appeals to the Board.
Respondent is married, male, widowed, a Chinese alien, 78 yearS
of age, who originally entered the United States on September 8,
225
654377-63-1e
1906, as a merchant's son. He has resided in the United States
continuously since that entry, with two trips to China. Respondent's immigration and entry documents, protested as inadmissible by
counsel, establish that he last entered the United States at San
Francisco, California, on July 28, 1926. The special inquiry officer
found respondent deportable on the charge stated in the warrant of
arrest and ordered his deportation to China.
The hearing under the warrant charge began on September 15,
1954, at the United States Penitentiary, McNeil Island, Washington,
after which the special inquiry officer ordered respondent's deportation. Respondent was not represented by counsel and filed no appeal
from the special inquiry officer's order. Therefore, the record was
not transcribed. Shortly before his scheduled release from that
institution, counsel appeared and asked to see a record of respondent's hearing. The record was transcribed on August 19, 1959,
after which the examining officer recommended that the hearing be
reopened because of errors in procedure. The examining officer's
motion of August 20, 1959, stated that the record of the first hearing
did not indicate that at the time of hearing the respondent was
informed of his right to counsel, nor was he asked any questions
with regard to his ability to understand the English language.
On the same day, August 20, 1959, the special inquiry officer, stating that the procedural defects reached the question of essential
fairness, granted the motion for reopening.
Counsel appeals on the ground that the motion of the examining
officer and the order of the special inquiry officer granting the reopening do not comply with the requirements of Title 8, Code of
Federal Regulations, section 11 (now section 103.5)? The objection
is not well taken for two reasons. First, counsel has repeatedly
requested a "fair hearing" and "due process," which the order to
reopen was designed to guarantee. Respondent had no cause to
oppose the reopening which was designed to benefit him. He suffered no damage from the fact that the motion and order were
served on the same date. Counsel was granted several delays and
postponements thereafter. Second, if counsel had desired to oppose
the reopening, he had an opportunity to do so when the hearing
was reconvened at Seattle, Washington, on September 1, 1959. He
did not oppose the reopening and, in fact, stated, "As I understand
it, the warrant of arrest which was served on the respondent was
served prior to the time that orders to show cause were used, and
for that reason we would like at this time to consent on behalf of
the respondent to proceed under the current regulations." Counsel's
only request at that time was that the reopened hearing be not eon-
1 8 CFR 103.5 provides: The party opposing the motion shall have 10 days
from the date of service thereof within which he may submit a brief.
226
fined to what happened at the first (1954) hearing, and to this
request the, special inquiry officer assented. Counsel again consented
to continue with the hearing when he stated that he waived any
-further explanation through the interpreter of respondent's rights,
inasmuch as they had advised him of rights. Counsel further waived
- the reading and explaining to respondent of the warrant of arrest,
in that it also had been explained to him through the interpreter.
Not having objected to the reopening on September 1, 1959, as a
"party opposing the motion" and having consented to proceeding
with the hearings, counsel cannot now raise the issue on appeal.
Counsel appeals on the ground that the hearing of September 18,
1954, and all proceedings thereunder are invalid. Counsel points
-again to the fact that the Immigration Service did not provide an
interpreter at the first hearing (1954), and that the record does
not show the special inquiry officer advised appellant of his right
to counsel. The warrant of arrest states, "The alien was then in
formed as to cause of arrest, the conditions of release, advised as
to right of counsel and furnished with a copy of this warrant"
(emphasis supplied), and it is signed by the investigator who served
the warrant on respondent on August 18, 1954. However, the
hearing was reopened twice, once by the Service and once by.us, and
the evidence taken in the first hearing was ignored by • the special
inquiry officer and all documentary evidence introduced there has
been reintroduced, over objections of counsel.
Counsel appeals on the ground that the warrant of arrest was
not served upon the warden of the penitentiary. The warrant of
arrest shows service upon respondent and the record will not necessarily indicate service upon the warden. Service upon the warden
is for the convenience of the Immigration Service, to alert the
warden to the interest of the Immigration Service in the case, and
to assure that the prisoner will be turned over to the Service upon
release from the institution. Respondent is not "incompetent" to
understand the nature of the proceedings against him in the sense
that mentally deficient or insane persons are considered to be incompetent and in 'need of protection. The warrant shows service
upon respondent, and respondent's rights were protected, at least
from September 1, 1959, through the present time.
Counsel appeals on the ground that .respnndent was illegally
detained throughout the hearings of September 1, and September 16,
1959, under 8 CFR 242.3 (b). 2 Counsel states that there was no
valid order of deportation outstanding at the time of appellant's
release from the United states Penitentiary, for "the existing order
8 CFR 242.3(b) provides: An alien confined in an institution or hospital
not he aeoppted into physical custody by the Service until an order of
011111
deportation has been made and the Service is ready to deport the alien.
227
had been vacated by the order of August. 19, 1959, reopening the
hearing." The validity of the detention sterns from the warrant of
arrest, as we point out below.
Counsel appeals on the ground that the alien was illegally detained, in that• the warrant of arrest had terminated insofar as the
Service was concerned by the issuance of the order of deportation
of September 16, 1954, and that the Service could not restore validity
to the warrant simply by withdrawing the order of deportation and
ordering proceedIngs reopened. Counsel overlooks the fact that the
United States District Court for the Western District of Washington, Northern Division, 0.71. counsel's appeal stated, "As to the
illegality of detention, it is my opinion that under the provisions of
section 242(a) of the Immigration and Nationality Act of 1952,
the warrant of arrest remains effective as authority for petitioner's
detention even though the original order of deport- tion has been set
aside and proceedings reopened" (United States ex rel. Chung
Young Chew v. Royd, District Director, Immigration, and Naturalization Service, unreported, Civ. No. 4912 (N.D. Wash., September 28,
1959) ). A copy of this decision is in the record. Therefore, the
detention was lawful, found the court, even though there was
"an abuse of discretion by the Attorney General in refusing to
admit petitioner to reasonable bail pending the completion of deportation proceedings_" There has been no move at any time precipitately to deport respondent. All procedures since the reopening
on August 20, 1959, have been in his behalf and to assure him a
fair hearing. 8 CFR 242.2 (b) authorizes the District Director to
detain an alien or to continue his custody.
Counsel appeals on the ground that there is an "insufficiency of
evidence to support the findings of fact." He has protested admission in evidence of the records of the Immigration and Naturalization Service, the records of the Federal Penitentiary at McNeil
Island, and exhibit 2, copy of the judgment, sentence and record of
respondent's conviction (United States v. Chung Young Chew, Civ.
No. 34041 (N.D. Calif., May 20, 1954)). This exhibit was made part
of the record in the original hearing on September 15, 1954. We
believed that this necessary and pertinent document, by oversight,
had not finally been made a part of the record at the time of the
reopened hearing in September 1959. This record was identified
by Mrs. C—C—, the Camp Records Control Clerk, Federal Prison
Camp, McNeil Island, who was the proper custodian of respondent's
records. However, the record of hearing shows that exhibit 2 was
handed to counsel at his request for his examination, and the special
inquiry officer did not thereafter return to the matter of putting exhibit 2 in the record. It was made a part of the record on July 26,
1960.
228
Counsel appeals on the ground that exhibit. 2 and other exhibits
offered herein, do not comply with Rule 44 of the Federal Rules
of Civil Procedure. 3 The. Service stands upon the ground that an
administrative hearing is not bound by the strict rules of evidence
and is not unfair merely because such rules and procedures are
not followed. We prefer, however, to point out that exhibit 2
is properly in evidence and complies with the requirements of a
properly authenticated copy. First, the certificate is adequate under Rule 44. Second, Rule 44 is not the exclusive method of proving documents. United States v. Aluminum Company of America
(D.C., N.Y., 1939), 1 F.R.D. 71, wherein the court stated that
Rule 44 does not interfere with any other accepted methods for
admitting in evidence a document when it is certified by a designated official. The court said, "I take it further that the purpose
of the rule was to reduce delay and to reduce expense in obtaining
from Government departments documents intended to be offered in
evidence." Rule 44 merely adds another method for authenticating
departmental documents. See aisti Bantu() de L.:6pccitu v. Federal
Reserve Bank of New York,
114 F.2d 438 (C.C.A. 2, 1940), and
Notes of Advisory Committee on Rules, 28 U.S.C.A. Rule 44.
Third, exhibit 2, the court record, is adequate also under 28 U.S.C.
1733.4 There is a seal on this copy, faint to be sure, but readable,
stating "Seal . . . United States District Court, Northern District
of California," the same as the seal. on Government exhibit 13,
whereon the seal is legible and clear. It is our opinion that the
Rule 4-4, Federal Rules of Civil Procedure, provides:
a. Authentication of Copy. An official record or an entry therein, when
admissible for any purpose, may be evidenced by an official publication thereof
or by a copy attested by the officer having the legal custody of the record,
or by his deputy, and accompanied with a certificate that such officer has the
custody. If the office in which the record Is kept is within the United States
or within a territory or inaular possession subject to the dominion of the
United States, the certificate may be made by a judge of a court of record
of the district or political subdivision in which the record is kept, authenticated by the seal of the court, or may be made by any public officer having a
seal of office and having official duties in the district or political subdivision
in which the record is kept, authenticated by the seal of his office. If the
office in which the record is kept is in a foreign state or country, the certificate may he made by a secretary of embassy or legation, consul general,
cs.nelui, Tice consul, or eonenlar agent or by any otiiper in the foreign service
of the United States stationed in the foreign state or country in which the
record is kept, and authenticated by the seal of his office.
9 28 U.S.C. 1733 provides: (a) Books or records of account or minutes of
P•0000dinge of any department or agency of the United States shall be admissible to prove the act, transaction or occurrence as a memorandum of
which the same were made or kept. (b) Properly authenticated copies or
transcripts of any books, records, papers or documents of any department or
agency of the 'United States shall be admitted In evidence equally with the
originals thereof.
229
words, "A true copy, certified this 28th day of May, 1954 (signed)•
C. W. Ca'breath, clerk, by Marguerite Ellis, Deputy Clerk," with
the seal of the court, are sufficient guarantee of the authenticity of
the copy.
Exhibit 2 discloses that respondent appeared with counsel on
May 20, 1954, in the 'United States District Court for the Northern
District of California and was convicted on a plea of guilty of
-violation of the Harrison Narcotic Act, 26 U.S.C. 2553 and 2557, in
that, count one, he did unlawfull:y, sell, dispense and distribute, not
in or from the original stamped package, a certain quantity of a:
narcotic drug, to wit, approximately one pound of heroin; and count
two, violation of Jones-Miller Act, 21 U,S.C. 174, concealment of
heroin, which `11,ad been imported into the United States . .
contrary to a as said defendant •. . . knew." Respondent was
sentenced or these two counts to a total of eight years' imprison --
meat and a total fine of three thousand dollars. Five additional*
counts q..s Lu defendant were ordered dismissed. Exhibit 2 discloses
fiii . tihrir that the court stated at time of sentencing that it would'
not recommend against deportation of responclent.'s
Counsel appeals on the ground that, the Immigration Service
failed to produce any witness to identify respondent as the same
person as the defendant in the San Francisco narcotic case, declaring the evidence is inadequate to establish that respondent is, in fact,
C—Y—C , the person named in the judgment, sentence and commitment,. Counsel cites cases holding that identity of names alone
is not sadTicient proof of identity to warrant a trial court in submitting to a jury the question whether the person before the court
is the. same as the defendant in other proceedings. The Service did.
not rely on the often-used rule that identity of names raises a rebuttable presumption or inference of identity of persons. On the
contrary, the record contains ample proof of respondent's identity
in the form of records and the testimony of witnesses. Exhibit 10'
consists of respondent's 1926 visa and other entry documents issued
at Hong Kong by Department, of State officials. Exhibit 11 is
respondent's application for preinvestigation prior to departure
from the United States, issued by Immigration officials in San
Francisco in 1922. Each carries an identifying photograph of re-
5 Immigration and Nationality Act, section 241(b), 8 U.S.C. 1251(b), provides: The provisions of subsection (a) (4) respecting the deportation of are
alien convicted of a crime or crimes Shall not apply (2) If the court
sentencing such alien for such crime shall make, at the time of first imposing
judgment or passing sentence, or within thirty days thereafter, a recommendation to the Attorney General that such alien not be deported, due notice
having been given prior to making such recommendation to representatives of
the interested State, the Service, and prosecution authorities, who shall be
granted an opportunity to make representations in the matter. * • *
230
spondent. Counsel complains that these are not documents shown
to be properly in the custody of the Immigration and Naturalization Service since they are records of the Departments of State and
Labor. In 1922 the Immigration Service was, of course, part of the
Department of Labor. Counsel declares that exhibits 10 and 11
are "not admissible as certified copies of Government records under
28 U.S.C. 1722." They are not certified copies, because they are
originals of respondent's departure and reentry documents and
clearly admissible under 28 U.S.C. 1733(a). They are signed by
tee proper officials and carry the seals of those Departments.
Exhibit 13 is a photostatic. copy of a Declaration of Intention to
become a citizen. The name. C. W. Calbreath, Clerk of the United
States District Court at San Francisco, California, is stamped thereon and it beam the. imprinted seal of that court, and an attached
ramification: "I. C. W. Calbreath, Clack of the United States Dist:ict Court for the Northern District of California. do hereby certify
that the annexed and foregoing is a true a.nd full copy of the
original Declaration cf inttntion filed November 1st, 1945, by
C---Y—C— … No. 121204." This exhibit i admissible under
28 U.S.C. 17:33, and under the regulations. Ilar-isvn v. Metropolitan Life Insurance Co., 168 Pa. Super. 474,
72 A.2d 115 (K51).
held that photostatic copies of original records of Immigration and
Naturalization Service of the Department of Justice in naturalization proceedings, properly authenticated under the seal of the
Department, were admissible to establish the date of birth of a person naturalized.
Exhibit. No. 14 was the record of respondent's signed, sworn
preliminary statement of May 13, 1954. The special inquiry officer
sustained counsel's objection to exhibit 14 and excluded it from
consideration. Respondent signed both his English and Chinese
names to exhibit 14 and testified through an official interpreter. He
stated his name, with aliases, place of birth, Chinese citizenship,
and the fact that he had pleaded guilty to two counts under the
Harrison Narcotic Act and was to be sentenced May 20, 1954. This
preliminary statement carries, as usual, the warning that any statements he makes must be voluntary and may be used by the Government as evidence in any deportation or criminal proceedings,
and he vvas asked, "Arc you willing to make such a statement clearly
-
and voluntarily under oath?" The preliminary statement shows
that he answered "yes." The present regulations provide that the
preliminary statement is admissible in evidence, 6 and many judicial
6 8 CFR 242.14 Evidence— … (c) use of prior statements. The special
inquiry officer may receive in evidence any oral or written statement which is
material and relevant to any issue in the case previo4ly made by the responclent or any other person during any Inve,,tigation, exiwaination, hearing,
or trial.
231
and administrative decisions have held such statements to be admissible. &lumps v. Carmichael, 177 F.2d 391 (C.C.A. 9, 1949) ; Reynolds v. United States ex rel. Ko F.'2,d 39 (CA. 7, 1934) ;
United States ex rel. Bi1°km-risky v. Tod, 263 U.S 149 (1923) ;
Ungar v. Seaman, 4 F.20,1 SO (C.C.A. 8, 1924) ; United States ex rel.
Catalano v. Shaughnessy,
197 F.2d 65 (C.A. 2, 195'2,): When the
special inquiry officer propounded to respondent these same questions at the 1959 hearings, counsel objected to each in turn, on the
ground that it was violative of respondent's Constitutional privileges.
Schoeps, supra, declared that the privilege against incriminating
himself was waived by the statement an alien had voluntarily made
to an investigating inspector after having been adequately warned.
See also Matter of F—, 4--475 (1951), footnotes 1 and 2; Hatirr of
P , 5 306 (1953), citing cases, wherein we stated that when a wit-
— -
ness has once given testimony voluntarily it may afterward be used
against him in the same deportation proceedings, and he may not
claim the privilege of self incrimination as to such testimony. Ex-
-
hibit 14 is clearly admissible under these decisions and under the
usual immigration practice and the regulations, but its exclusion from
the record by the special inquiry officer did respondent no harm.
Respondent has offered no evidence to contradict the Government's showing by reasonable, substantial and probative evidence
that respondent is the person he is alleged to he. On the other
hand, the Service offered three witnesses who identified respondent
as the person known as C Y—C— at McNeil Island Penitentiary
and who identified the prison record relating to him. R L J ,
— — —
Detention Officer, immigration and Naturalization Service, Seattle,
testified that it is among his duties to pick up prisoners at the United
States Penitentiary at McNeil Island, Washington, to escort them to
the Detention Facilities at Seattle, Washington; that on August 31,
1959, he picked up a person named C—Y—G— (or C C Y 1;
that the respondent, sitting across the table from the witness, was
that person; that he also picked up documents and papers given him
by the prison in connection with the transfer of respondent from
their custody to the custody of the Service. Among the papers identified by Mr. J is exhibit 2, Certificate of Conditional Release,
—
and exhibit 4, a copy of certain provisions of the Narcotic Control
Act of 1956, dated August 31, 1959, signed by the Supervisor,
Classification and Parole, and signed by C Y C . Exhibit 5 is
a certificate entitling prisoner to gratuity, signed by Mrs. C—,
`Camp Records Control Clerk, who also testified that she had a
recollection of C—C—Y—, and identified him as the respondent
present at the hearing. Exhibit 3 is signed by one C—K—McD--,
Parole Executive, and also by Cie Superintendent of the Peniten-
tiary. These routine prison documents were ii , ro_pted in evidence
by the special inquiry officer over counsel's objections for the purpose of establishing identity. We think they are records kept, in
the regular order of business and admissible as such under 28 U.S.C.
1732 and 1733.
P—J—J—, Jr., United States Parole Officer, United States Penitentiary, McNeil Island, Washington, stated that he knew respondent very well, had known him through the years he was in the
institution, and had talked with him on many occasions. Mr. J—
also testified to respondent's limited knowledge of English, but
stated that he had never used an interpreter to communicate with
respondent.
Counsel offered E L--B , construction lead foreman at the
— —
McNeil Camp, as a witness, and Mr. B— identified respondent as
the person he had known in the McNeil Island Prison Camp since
January 1959 (approximately eight months). He also testified to
respondent's limited knowledge of English.
It is the opinion of the Board that the testimony of the abovedescribed witnesses, in addition to the admissible documents and
exhibits, is competent and adequate to connect respondent with the
person who was convicted on May 20, 1954, upon his plea of guilty
of violations of the Harrison Narcotic Act in the United States
District Court for the Southern District of California and who
served a term in the McNeil Island Penitentiary on that judgment,
conviction and sentence.
Counsel attempts to draw an analogy between this case and the
evidence which was ruled insufficient in Bridges v. Wixon, 326 U.S.
135 (1945). The evidence there concerned was an unsigned, unsworn statement which the Supreme Court ruled was insufficient to
form the basis for the decree of depOrtability. That statement bears
no relation to the exhibits in the instant matter which we have described above in detail. This argument need not be dignified by
further discussion.
At the reopened hearing on September 1, 1959, respondent had
two attorneys and one interpreter. At the reopened hearing on
July 26, 1960, he had two attorneys and two interpreters. On both
occasions he refused to testify, even to state his name. Counsel
have stated on numernlic nctrasinns at, the hearings and in their briefs
their reasons for advising respondent to stand mute. Even in
criminal proceedings there should be some rational connection between pleading the 5th Amendment and the actual facts of the case.
Without going into the merits of counsel's grounds for so advising
respondent, it is clear that there could be no possible reason for
another reopening of this record. The respondent is entitled only
to "procedural due process." That is, lie must be givers notice of
233
the hearing and opportunity to show that he does not come within
the classification of aliens whose deportation Congress has directed.
The respondent did not take advantage of the hearings, legally
constituted and conducted, which were ()axed and that is not the
fault of the Immigration and Naturalization Service. United States
Harisiades v. Shaugh-iwsay, 187 F24 137, 141 (C.A.5.,', 1951),
and cases cited, footnote 12; aff'd 324 U.S. 580 (1952), reh. - den.
-
348 U.S. 936 (1952).
This record establishes by competent., adequate and probative evidence: (1) that respondent is an alien; (2) that he was convicted
of a narcotic violation; (3) that he has had due process and fair
hearing; (4) that his depot-Lability is established by the conviction
record and other documents; and (0) that respondent is ineligible
for any form of discretionary relief. The appeal will be dismissed.
ORDER: It is ordered that the order of deportation be and hereby
is afirmeti.
It is further ordered that the appeal be and is hereby dismissed.
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