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quest,' imposed a fine in the amount of $1,000, and refused to remit the fine on the ground that the company had failed to exercise reasonable diligence.
The company appealed to the Board and, at the hearing before the Board, requested the opportunity to develop additional evidence through written interrogatories to Mr. Brons. The company also submitted to the Board a letter received from its Rotterdam office subsequent to the District Director's decision, setting forth Mr. Brons version of the entire episode. The Board ordered that the District Director's decision be withdrawn and that the case be remanded to the District Director “to give the carrier an opportunity to submit any additional pertinent evidence it may desire." As stated above, the Service moved for reconsideration, the motion was denied, and at the request of the Service the case was referred to me for review.
Had this case come before me simply as a request to review the Board's initial decision, it would present no problem, for I have no doubt that the Board's discretionary authority under 8 CFR 3.1(d) (1) includes the power to remand a case for the taking of further testimony, whether or not an error of law was committed below. Unfortunately, the motion for reconsideration, the decision on the motion, the request for referral, and the Board's memorandum accompanying the order of referral have resulted in a confusing proliferation of the issues, unjustified by the present posture of the case.
Basically, it is the position of the Service that no further testimony should be taken from Mr. Brons because such testimony can be used only to attack collaterally the determination of the special inquiry officer that Mr. Brons was required to have a visa, and that the carrier is bound by this determination. Furthermore, the Service contends that if the company wishes to develop from Mr. Brons' testimony evidence of its own exercise of due diligence, that factual issue has been "foreclosed” because the Service has from the beginning accepted the company's statement as to what information it was acting on in permitting Mr. Brons to embark. Therefore, the Service reasons, the only question present in this case is whether the conceded facts do or do not establish a claim of due diligence under section 273(c), supra, and this question can be determined by the Board on the present record.
The short answer to the latter contention is that inasmuch as the Board does not regard the present record as sufficient for a disposition of the issues of this case, I see no reason why the company should not be afforded an opportunity to present further evidence, either as a matter of discretion or a matter of right. Furthermore, the Service is evidently proceeding on an inarticulate premise that in making its case for remission under section 273(c) a carrier is limited to evidence in its possession prior to the time the passenger was permitted to embark, the theory being that no other evidence can be probative of the carrier's diligence. The difficulty with this theory is that section 273 (c) does not say that the carrier must show that it acted with due diligence in the light of the circumstances known to it at the time, but that it "did not know, and could not have ascertained by the exercise of reasonable diligence that the individual transported was an alien and that a visa was required.” Accordingly, even if the carrier is limited to a defense under section 273(c), it should be permitted to show not only that it acted with diligence in the light of its actual knowledge, but also that if there was a lack of diligence, this did not cause the carrier to be cut off from a line of inquiry which, if pursued, would have led to the conclusion that the passenger was an alien who required a visa. It is not inconceivable that Mr. Brons' testimony might be relevant to this issue.
* It appears that the company's representative was permitted to examine a transcript of the hearing and the other evidence of record at a personal interview held on August 4, 1961, pursuant to 8 CFR 280.12.
The major issue in this case is, of course, whether the company is to be permitted to introduce evidence tending to show that the passenger was not required to have a visa and thus to make what the Service describes as "an unwarranted collateral attack on a duly-entered final order of exclusion.” This is a troublesome question, and I do not believe that it should be decided on hypothetical facts. On the present record the question is premature. The company has made no formal offer of proof. It is not entirely clear what it hopes to elicit from Mr. Brons, and I see no need to act now on the basis of speculation. In any event, the question whether section 273(a) was violated is not necessarily inseparable from the question of what the company could have ascertained by the exercise of reasonable diligence. Certainly, the company should not be precluded from offering evidence on the latter question simply because that evidence might tend to impeach the correctness of the order of exclusion.
The order of the Board is affirmed.
* The Board points out in its memorandum accompanying its certification for review that the proceedings before the District Director did not comply with applicable regulations, 8 CFR 280.12, 280.13, 280.14. The Service has not replied to this contention. It is not clear whether the Board has based its decision to remand on these errors below or on its discretionary power. I conclude that the order to remand was appropriate in any event since the Company has not in fact had an opportunity to develop and present evidence which may be relevant to its defense.
3 For example, if an alien passenger carries a forged United States passport, the carrier should be permitted to show that it could not have detected the forgery by the exercise of reasonable diligence even if in fact the carrier's representatives did not examine the passport at all.
MATTER OF LIADAKIS
In DEPORTATION Proceedings
Decided by Board April 18, 1963
Physical persecution within the meaning of section 243(h), Immigration and
Nationality Act, has not been established by a native and citizen of Greece on the basis of a claim of prosecution or other official opposition which might result from his religious activities (proselytism) in Greece as a Jehovah's Witness.
Respondent, a native and national of Greece who last entered the United States on July 15, 1960 as a nonimmigrant crewman, is 23 years old and married to a citizen of the United States. He concedes deportability as charged.
At the original hearing the special inquiry officer directed deportation to Germany, the country elected by respondent, with an alternate order of deportation to Greece. Respondent did not have counsel at that hearing but subsequently appealed through his present counsel. That appeal sought an adjudication of respondent's eligibility for withholding of deportation under section 243(h) of the Immigration and Nationality Act, although no application for such relief had been filed. Our order of July 11, 1962 directed reopening of the proceedings to afford respondent an opportunity to apply under the provisions of that section and to submit supporting evidence.
The special inquiry officer, after further hearing, denied respondent's application for withholding of deportation and again ordered deportation to Germany or alternatively to Greece. Respondent appeals from the denial of the benefits of section 243(h). We concur in the conclusion of the special inquiry officer.
Respondent testified that since arriving in this country he has become a member of Jehovah's Witnesses. Communications from
ministers of that sect corroborate such membership. The record contains a letter to respondent and his wife from the presiding minister of Jehovah's Witnesses in Greece, which inter alia states that section 1 of the Greek Constitution provides that the dominant religion in Greece is the Eastern Orthodox Church of Christ, that any other religion is free to perform its worship rites without hindrance under the protection of the laws, but proselytism and any other interference with the dominant religion is forbidden. A letter to respondent's wife from the Watchtower Bible and Tract Society sets forth that certain members of the Jehovah's Witnesses in Greece have been charged with proselytism and punished with imprisonment of up to five months and fines. A number of other Witnesses are reported to have been brought before the courts during the periods September through November 1961 and February through April 1962, but discharged.
Respondent indicates that if returned to Greece he would go from door to door interpreting the Bible and delivering literature setting forth the tenets of Jehovah's Witnesses. He maintains that he would be subject to imprisonment for such activities.
Respondent's counsel contends the special inquiry officer erred as a matter of law by failing to recognize that, under judicial and administrative precedents confinement on religious grounds constitutes physical persecution within the meaning of the statute. Blazina v. Bouchard, 286 F.2d 507 (C.A. 3, 1961) cert. den. 366 U.S. 950 (1961); Kalat jis v. Rosenberg, 305 F. 2d 249 (C.A. 9, 1962); Diminich v. Esperdy, 299 F. 2d 244 (C.A. 2, 1961) cert. den. 369 U.S. 844 (1962), which refers to Matter of Kale, A-9555532 (1958). As we read the special inquiry officer's opinion, however, he does not rule out as a matter of law confinement on religious grounds as a possible instance of physical persecution. The special inquiry officer notes that the general freedom of religion in Greece is subject only to the limitation that proselytism for faiths other than the Eastern Orthodox is forbidden. He notes also that respondent expects, if deported to Greece, to engage as a Jehovah's Witness in proselytism and to be arrested and possibly prosecuted in the courts for such proscribed activity. Weconsider the special inquiry officer ruled only that under these particular circumstances the arrest and confinement to which respondent may be subject would not constitute physical persecution despite the religious issue.
In this country the proselytizing activities of Jehovah's Witnesses are held in general to come within the protection of the constitutional guarantees of freedom of religion, speech, and the press. Lovell v. Griffin, 303 U.S. 444 (1938); Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105 (1943); Martin v. Struthers, 319 U.S. 141 (1943); Nietmotko v. Maryland, 340 U.S. 268 (1951). These rights are not absolute however. Schneider v. Irvington, 308 U.S. 147 (1939). A few cases have upheld particular applications of the police power restricting such rights. Cox v. New Hampshire, 312 U.S. 569 (1941); Chaplinsky v.New Hampshire, 315 U.S.568 (1942); People v. Bohnke, 287 N.Y. 154, 38 N.E. 2d 478 (1941), cert. den. 316 U.S. 667 (1942). The Supreme Court has said that the First Amendment has two aspects—freedom to believe and freedom to act, the first being absolute but the second subject to regulation for the protection of society. Cantwell v. Connecticut, 310 U.S. 296, 303, 304 (1940).
The Court ruled in Murdock that a nondiscriminatory tax on distribution of literature was invalid when applied against Jehovah's Witnesses. Martin v. Struthers invalidated an ordinance forbidding knocking on the door or ringing the doorbell of a residence in order to deliver a handbill as applied against handbills distributed on behalf of Jehovah's Witnesses. In Nietmotko denial of a request by Jehovah's Witnesses for a permit to hold a meeting in a public park was overruled where the denial appeared to be based not upon any valid exercise of the police power but upon arbitrary action on the part of the local officials.
On the other hand, in Cox v. New Hampshire a statute requiring a permit and license fee for parades was held valid in a case involving Jehovah's Witnesses. Chaplinsky v. New Hampshire upheld a state statute applicable only to the use in a public place of words directly tending to cause a breach of the peace. The speaker was a Jehovah's Witness who had been engaged in distributing literature of his sect on the street and addressing passers-by. He used the inflammatory words against the City Marshall after a disturbance broke out. People v. Bohnke upheld an ordinance which prohibited, without prior consent of the occupants, entry by nonresidents of the community upon private residential property for certain purposes, including the distribution of pamphlets or other literature. Appellants were nonresident Jehovah's Witnesses distributing religious information.
Thus in this country the right of Jehovah's Witnesses to proselyte is not without limitation. In Greece, however, that right appears to be nonexistent. Counsel for respondent urges us to adopt the standards in this country in determining whether the action of the Greek authorities against Jehovah's Witnesses constitutes physical persecution. Although at times particular aspects of questions arising under section 243(h) should be considered in the light of the standards in this country rather than those in the country in question, we do not believe the statute contemplates that unless aliens will enjoy within their own country the same type, degree, and extent of religious