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questions which were not to be regarded, however, as cross-examination. The special inquiry officer did, in fact, ask certain questions of the appellant which he answered.
With respect to the discussion in the brief of the Service concerning the questions of whether an examining officer may be assigned to present the Government's case in an exclusion hearing, the matter was also discussed in counsel's brief and in the decision of the special inquiry officer. The Service quoted parts of subdivisions (a) and (b) of 8 U.S.C. 1225. The first sentence of 8 U.S.C. 1225(a) specifically provides: “The inspection *** of aliens * * * seeking admission * * * to * * * the United States shall be conducted by immigration officers, except as otherwise provided in regard to special inquiry officers” (emphasis supplied). This provision seems to indicate that, although the inspection of arriving aliens "shall be conducted by immigration officers,” a different rule applies under 8 U.S.C. 1226(a) in which it is stated that a special inquiry officer “shall conduct proceedings under this section.” 8 CFR 236.11 (a) provides, in part, as follows: 6** * The special inquiry officer shall rule upon objections, introduce material and relevant evidence in behalf of the Government and the alien, and otherwise regulate the course of the hearing, and exercise such other powers and authority as are conferred upon him by the Immigration and Nationality Act and this chapter.
Although there was a statement by the assistant examining officer that the hearing before the special inquiry officer was, in fact, a continuation of the appellant's inspection, we are of the opinion that what may be properly termed “inspection” is applicable only up to the point where the examining immigration officer makes the decision referred to in 8 U.S.C. 1225(b) either to admit the alien or to detain him for further inquiry to be conducted by a special inquiry officer. Exhibit 2 shows that the examining immigration officer made this decision on December 16, 1955, when he delivered to the appellant Form I-122 (Notice to Alien Detained for Hearing by Special Inquiry Officer). We believe that at this point the provisions of 8 U.S.C. 1226 come into effect. That section sets forth with particularity the procedure in hearings before a special inquiry officer and specifically refers to it as the sole and exclusive procedure. We agree with the special inquiry officer that the law and regulations neither provide for the assignment of an additional officer to present evidence in exclusion hearings, nor do they prohibit that procedure. For the reason stated in the next paragraph, we find it unnecessary to decide whether an examining officer may be assigned to an exclusion hearing.
8 U.S.C. 1226(a) provides, in part, as follows: "A special inquiry officer shall conduct proceedings under this section, administer oaths, present and receive evidence, and interrogate, examine, and crossexamine the alien or witnesses. * * * Proceedings before a special inquiry officer under this section *** shall be the sole and exclusive procedure for determining admissibility of a person to the United States under the provisions of this section. * * *" It is clear from the record that, while the appellant was unwilling to submit to crossexamination by the examining officer, he was willing to submit to such questioning by the special inquiry officer. Since that officer failed to perform the duty placed upon him by statute, there can be no justification for his action in drawing an adverse inference from the appellant's refusal to submit to cross-examination by some other officer.
II. Excludability under 8 U.S.C. 1182(a)(27)
With respect to the charge that the appellant is inadmissible under 8 U.S.C. 1182(a) (27), the primary emphasis appears to be on a period commencing some time prior to 1939 and continuing until the appellant's arrival in the United States in September 1946. In effect, the contention of the Service is that the appellant was affiliated with the Rumanian Iron Guard, the Nazi Party, and the Communist Party.
Prior to World War II, the appellant had become the foremost industrialist in eastern Europe. The metallurgical industry in Rumania had come into existence through his efforts. He owned factories for the manufacture of locomotives, railroad equipment, seamless tubes and munitions; he had large forestry interests in Rumania; he was one of the pioneers of a steel-works; and he was president of the Ford Company of Rumania.
About September 1940, Rumania became an Axis satellite and by January 1941 it had fallen entirely under German occupation. In January 1941 the appellant was arrested and, after a period of detention, was placed under house arrest from which he was released on October 9, 1941. During this period from January to October 1941, all of his industrial plants were seized by the Rumanian government and they were placed under the operation of a RumanianGerman company named Rogifer. In his decision of September 26, 1951, granting the appellant's application under the Displaced Persons Act, the Assistant Commissioner made the following significant comment concerning the German seizure of appellant's industries: "It is the fact that M- a non-Jew, had his industries confiscated and turned over to the Nazi control under the circumstances in this case, at a time when history records the fact that non-Jewish Nazis were permitted to control and operate their industries for the benefit of the Nazis."
On October 9, 1943, the Rumanian government decreed that the appellant's factories be returned to him but the actual return took place on April 12, 1945. (A tube mill was not returned and will be discussed later.) During the period from 1941 to April 12, 1945, the appellant had no part in the operation of the plants. It appears that a primary reason why the Rumanian government finally returned the plants to the appellant was the fact that they were not being properly managed, and the production of the plants was needed by Rumania in connection with its obligation to the Soviet Union under a reparations agreement.
The appellant's wife and his son were forced to escape clandestinely from Rumania in April 1948. A decree dated September 30, 1948, of the Rumanian government divested the appellant of his Rumanian citizenship and confiscated all of his property in that country.
N—R-, who is now deceased, testified for appellant in the Displaced Persons proceeding. R- was premier of Rumania from December 6, 1944, until February 28, 1945, when he resigned under Soviet pressure. He testified that the appellant was well known to him for many years; that he was not a Nazi sympathizer; that he was not sympathetic towards the Rumanian Iron Guard; and that he was anti-Communist. In the Displaced Persons proceeding, appellant denied that he was affiliated with or in sympathy with the Iron Guard, the Nazi Party or the Communist Party. He reaffirmed this testimony in the present proceeding.
8 U.S.C. 1182(a) (27), with which we are here concerned, requires the exclusion of "Aliens who * * * the Attorney General
* knows or has reason to believe seek to enter the United States to engage in activities which would be prejudicial to the public interest, or endanger the welfare, safety, or security of the United States * * *
In other words, the Service asserts that at the time of the appellant's application for admission to the United States on December 16, 1955, he was seeking to enter the United States for one of these inimical purposes.
As we have indicated above, much of the discussion of the Service relates to the appellant's activities from some time prior to 1939 until his arrival in the United States in September 1946. Ordinarily, matters occurring that long ago would seem to have little relevance to the issue involved here which is whether the appellant on December 16, 1955, was seeking to enter the United States to "engage in activities which would be prejudicial to the public interest, or endanger the welfare, safety, or security of the United States.” We are unable to determine from the brief of the Service exactly what activities of this nature it fears the appellant will pursue. The appellant is now 73 years old, and we do not believe it has been
established that during the 11 years he has lived in the United States he has engaged in any activities of the nature proscribed by 8 U.S.C. 1182(a) (27).
The Assistant Commissioner in his decision of September 26, 1951, discussed fully the appellant's activities from 1939 until 1951 and reached the conclusion that the appellant had not been voluntarily affiliated with the Iron Guard, the Nazi Party or the Communist Party and that he was not within the classes of aliens specified in former 8 CFR 175.53, that is, aliens whose entry would be deemed to be prejudicial to the interests of the United States. Furthermore, the present position of the Service appears to be inconsistent with its approval of first preference status for the appellant on March 9, 1953, since that action required a finding under 8 U.S.C. 1153(a)(1) (A) that the appellant's services are determined “to be substantially beneficial prospectively to the national economy, cultural interests, or welfare of the United States."
When the Service on March 6, 1956, complied with the court's directive that notice of charges be served on the appellant, it was asserted that he was inadmissible under 8 U.S.C. 1182(a) (27) "in that the applicant affiliated with, associated with, aided, abetted, or otherwise assisted various movements including the 'Rumanian Iron Guard', the Nazi Party and/or Movement, the Communist Party and/or Movement, which were and/or are hostile and detrimental to the best interests, welfare, safety and security of the United States." Counsel requested further particulars concerning this charge, that is, the years when it was alleged that the appellant was affiliated or associated with the three organizations mentioned; the form of activities; and what activities it is claimed the appellant would pursue in the United States which would be prejudicial to the public interest. Subsequently, the examining officer stated that the appellant was charged with affiliation or association with the Rumanian Iron Guard from 1933 to 1941, with the Nazi Party from 1934 to 1944, and with the Communist Party from 1944 until 1948.
On page 11 of its brief the Service stated that the laying of specific charges was not a requirement of the statute in exclusion proceedings, and on page 23, at the beginning of the discussion concerning inadmissability under 8 U.S.C. 1182(a) (27), the Service stated that it was eliminating from this charge the specifications contained in exhibit 146; that it had reserved the right to urge such further grounds of exclusion as might be deemed appropriate; and that the evidence includes, but is not limited to, 22 matters which were set forth on pages 23 to 25 of the brief. The appellant's case bears some analogy to Kwong Hai Chew v. Colding, 344 U.S. 590 (1953). Counsel asserts that the court decisions in United States ex rel. Malaxa v. Savoretti and Malaxa v. Brownell, supra, have become the law of the case with respect to this appellant. He argues that these court decisions specifically required notice to the appellant of the charges; that he tried the case on the basis of the charges as stated in exhibit 146; and that it is improper for the Service, after the close of the hearing, to attempt to disregard the original charges and substitute as new charges the 22 matters mentioned in the brief of the Service. He contends that the Board is limited by the court decisions to a consideration of the matters which were set forth in exhibit 146.
We observe that the hearing was completed on July 2, 1957, and that there is nothing to indicate that the 22 matters mentioned above were urged prior to the time that the Service filed its brief on February 3, 1958. We believe there is considerable merit in counsel's position. Likewise, although the Service on page 25 of its brief referred to the 22 matters as "conclusions of fact," it would be more appropriate to characterize them as “charges.” We need not
. reach a conclusion as to the propriety or the impropriety of adding new charges since we do not believe that these 22 charges are sustained nor that the evidence in the record constitutes a basis for excluding the appellant under 8 U.S.C. 1182(a) (27).
Counsel asserts that the contention of the Service that the appellant is inadmissible under 8 U.S.C. 1182(a) (27) is an attempt to rehash matters which were disposed of favorably to appellant in the Displaced Persons proceeding. Some of the witnesses who appeared in that proceeding also testified in the present hearing and some of the documentary evidence there was again introduced in evidence during the exclusion hearing. There were, of course, additional witnesses in the present proceeding and evidence was introduced which had not previously been considered.
The Service asserted on page 86 of its brief that the Displaced Persons decision was not dispositive of the issues in the present proceeding, and in support of this statement seven "discrepancies” are set forth on pages 86 to 90 of the brief. We have considered each of them but we do not believe that, separately or collectively, they are of sufficient importance to warrant different factual findings than were made by the Assistant Commissioner on September 26, 1951. Only the second of these merits specific comment.
The second “discrepancy” relates to the tube mill, previously mentioned, which was not returned to the appellant on April 12, 1945, with his other plants. There is another reference to the return of the factories and indemnification for the tube mill at pages 62 to 67 of the brief of the Service, where exhibits 18, 19 and 21 are discussed.
Exhibit 18 shows that on April 13, 1945, King Michael signed a law authorizing his Ministers to enter into a contract with three Malaxa companies, and exhibit 19 is an agreement dated April 17,