reasonableness of bringing deportation proceedings which precluded naturalization (see section 318) was rejected in Millan-Garcia v. INS, 343 F.2d 825 (9th Cir. 1965), vacated and remanded, 382 U.S. 69 (1965). In Attoh v. INS, 606 F. 2d 1273 (D.C. Cir. 1979), the court ordered a new hearing for an alien who was taken from his home to the INS district office where he was never meaningfully advised of the charge against him or of his due process rights to counsel and to a reasonable time interlude before a deportation hearing. All indications are that his waiver of the normal prehearing interlude, which lead to his expedited deportation hearing the next afternoon, was neither knowing nor voluntary but the result of an "omnipresent overlay of coercion" inconsistent with due process.

b. Applicability of Administrative Procedure Act.-In Marcello v. Bond, 349 U.S. 302 (1955), the Supreme Court found the procedural provisions of the Administrative Procedure Act, including those relating to selection of examiners and separation of functions, inapplicable to deportation hearings under the 1952 Act. It has also been held that the combination of hearing and prosecution functions in the special inquiry officer is not essentially unfair. MacKay v. McAlexander, 268 F.2d 35 (9th Cir. 1959), cert. denied, 362 U.S. 961 (1960); Suarez-Seja v. Landon, 237 F. 2d 133 (9th Cir. 1956). The procedural requirements. of the Administrative Procedure Act are equally inapplicable to the Board of Immigration Appeals' review of deportation cases. Ho Chong Tsao v. INS, 538 F. 2d 667 (5th Cir. 1976), cert. denied, 430 U.S. 906 (1977); Cisternas-Estay v. INS, 531 F. 2d 155 (3d Cir. 1976), cert. denied, 429 U.S. 853 (1976); Giambanco v. INS, 531 F. 2d 141 (3d) Cir. 1976). However, the INS has been held bound by the notice and comment requirements of the Administrative Procedure Act. (See section 103 for discussion.)

c. Claims of prejudgment.-The Attorney General's announced intention to prosecute the deportation laws vigorously and expeditiously against racketeers and active Communists has led to charges in some court actions that he has pre-judged the cases of specific aliens and thus denied them fair consideration. In Accardi v. Shaughnessy, 347 U.S. 260 (1954), the Supreme Court found that such charges must be explored in a full court hearing. After the court hearing was held, the charges were found unsubstantiated. Shaughnessy v. Accardi, 349 U.S. 280 (1955). In Marcello v. Bonds, 349 U.S. 302 (1955), a similar claim was found too insubstantial to require a court hearing. However, a court hearing was required on a charge of prejudgment in handling persecution claims, although after the hearing the charge was found unsupported. Dombrovskis v. Esperdy, 321 F. 2d 463 (2d Cir. 1963). In Bufalino v. Kennedy, 323 F. 2d 1016 (D.C. Dir. 1963), allegations of prejudgement in considering an application for discretionary relief by a well-known racketeer were found to require a full court hearing. Cf. Attorney General v. Bufalino, 371 F. 2d 738 (D.C. Cir. 1966). Cf. De Lucia v. INS, 370 F. 2d 305 (7th Cir. 1966), cert. denied, 386 U.S. 912 (1967).

d. Evidence. The authority of special inquiry officers (immigration judges) to administer oaths in deportation proceedings was approved in Petite v. United States, 262 F. 2d 4th Cir. 1959), reversed on other grounds, 361 U.S. 529 (1960). The courts continue to assert that the judicial rules of evidence do not govern deportation hearings. Bufalino v. Holland, 277 F. 2d 270 (7th Cir. 1960), cert. denied, 364 U.S. 863

(1960); Morgano v. Pilliod, 299 F. 2d 217 (7th Cir. 1962), cert. denied, 370 U.S. 924 (1962).

However, in McNeil v. Kennedy, 298 F. 2d 323 (D.C. Cir. 1962), the court refused to uphold a deportation order in which the finding of alienage was predicated on unauthenticated and unverified foreign documents, and in Chew v. Boyd, 309 F. 2d 857 (9th Cir. 1962), proof of a criminal conviction was held insufficient for failure to comply with Rule 44, Federal Rules of Civil Procedure, since it was unaccompanied by a certificate that the attesting officer had custody of the record. In Pryce v. INS, 568 F. 2d 278 (2d Cir. 1978), where the record as a whole revealed only a meager collection of ambiguous and hearsay statements as well as gaps in the evidence, the court reversed the Board of Immigration Appeals' finding of deportability, saying that such a finding was not supported by the evidence.

Similarly in Guzman-Guzman v. INS, 559 F. 2d 1149 (9th Cir. 1977), the court found that written statements, of four aliens that the respondent had helped them enter the United States illegally for fifty dollars each, when contradicted by their authors who neither spoke nor read the language in which they were written and when uncorroborated by the officials who took them, did not alone provide the requisite evidence that the respondent had knowingly and for gain assisted the aliens to enter the United States illegally. Written statements signed by the alien and admitting violation of the immigration law are often used in deportation proceedings. Yet, in Navia-Duran v. INS, 568 F. 2d 803 (1st Cir. 1977), the court held that where an alien's inculpatory statement, admitting her overstay as a tourist, emanated from fear, ignorance, and miscomprehension of her rights, that statement was not freely and voluntarily given but was coerced and thus inadmissible at her deportation hearing. On the other hand in LariosMendez v. INS, 957 F.2d 144 (9th Cir. 1979), the court found harmless error in admitting illegally obtained statements where other properly admitted evidence supported a finding of deportability. A similar rationale led to the holding in United States v. Casimiro-Benitez, 533 F.2d 1121 (9th Cir. 1976), cert. denied, 429 U.S. 926 (1976), that the trial judge's error of admitting an alien's own testimony obtained without Miranda warnings was harmless and did not require reversal in the face of other sufficient evidence supporting a finding of guilty. A number of landmark decisions have supported the authority to rely on confidential evidence in considering applications for discretionary relief. In Jay v. Boyd, 351 U.S. 345 (1956), the Supreme Court sustained the reliance of confidential information in passing on applications for suspension of deportation. Other cases have upheld the reliance on confidential information in considering persecution claims. Namkung v. Boyd, 226 F. 2d 385 (9th Cir. 1955); Dolenz v. Shaughnessy, 206 F. 2d 392 (2d Cir. 1953). Cf. Milutin v. Bouchard, 299 F. 2d 50 (3d Cir. 1962), vacated and remanded, 370 U.S. 292 (1962); Barbour v. INS, 491 F. 2d 573 (5th Cir. 1974), cert. denied, 419 U.S. 873 (1974).

In an unusual decision, one court directed that the deportation hearing receive evidence bearing on the alien's eligibility for a visa for which she proposed to apply after her deportation. Rose v. Woolwine, 344 F. 2d 993 (4th Cir. 1965).

e. Jencks rule.-The rule commonly known as the Jencks rule, as modified in 18 U.S.C. 3500, is applicable in deportation proceedings. Carlisle v. Rogers, 262 F. 2d 19 (D.C. Cir. 1958). This means that when

a witness testifies for the Government at the deportation hearing, his or her prior statements to the Government must be produced, on demand, for cross-examination purposes.

f. Effect of respondent's silence.-Failure of the respondent to testify at the deportation hearing, even under a claim of Fifth-Amendment privilege, may give rise to an inference against him. Hyun v. Landon, 219 F.2d 404 (9th Cir. 1955), aff'd by an equally divided court, 350 U.S. 990 (1956). However, in Gastelum-Quinones v. Kennedy, 374 U.S. 469 (1963), the Supreme Court found that the alien's silence did not relieve the Government of its burden of showing that the alien's Communist Party membership was meaningful.

With regard to discretionary relief, since the respondent has the burden of showing himself eligible and worthy of such relief, his failure to testify, even on a claim of Fifth-Amendment privilege may justify denial. Kimm v. Rosenberg, 363 U.S. 405 (1969); Jimenez v. Barber, 235 F. 2d 922 (9th Cir. 1956), cert. denied, 355 U.S. 903 (1957); 252 F.2d 550 (9th Cir. 1958).

g. Effect of prior determinations.-A number of cases have held that a prior administrative determination of U.S. citizenship establishes a prima facie title which can be overcome only by clear, unequivocal, and convincing evidence of fraud or error. Lung v. Dulles, 261 F. 2d 719 (9th Cir. 1958); Delmore v. Brownell, 236 F. 2d 598 (3d Cir. 1956). However, when such a showing of fraud or error, of law or fact has been made, the prior determination may be disregarded. Cheung v. Rogers, 272 F. 2d 354 (9th Cir. 1959), (fraud or error shown by blood tests); Montana v. Rogers, 278 F. 2d 68 (7th Cir. 1960), aff'd, 366 U.S. 308 (1961), (error of law). A state birth record, not issued in adversary proceedings, may not have such binding effect and may be regarded only as evidence. Toi v. Brownell, 219 F. 2d 642 (9th Cir. 1955). One court has ruled that a new deportation proceeding is precluded when the invalidity of a prior deportation order was established through judicial review. Anselmo v. Hardin, 253 F. 2d 165 (3d Cir. 1958). Aliens charges with illegal reentry after deportation sometimes have sought to attack the original deportation. The courts have said that such attacks are not permitted unless it is shown that there was a gross miscarriage of justice in the former proceedings. Mesina v. Rosenberg, 278 F.2d 291 (9th Cir. 1960); De Souza v. Barber, 263 F. 2d 470 (9th Cir. 1959). Cf. Palma v. INS, 318 F. 2d 645 (6th Cir. 1963); Marcello v. Kennedy, 312 F. 2d 874 (D.C. Cir. 1962), cert. denied, 373 U.S. 933 (1963); McLeod v. Peterson, 283 F. 2d 180 (3d Cir. 1960).

Violation by INS of one of its own regulations has been held to render a prior deportation unlawful thus precluding later prosecution for illegal reentry only if the INS violation prejudiced the interests of the alien. United States v. Calderon-Medina, 591 F. 2d 529 (9th Cir. 1979). The court found no prejudice resulting from the failure of INS to notify a detained alien of his right to confer with Mexican officials in United States v. Vega-Mejia, 611 F. 2d 751 (9th Cir. 1979), where the alien's main concerns were to avoid detention and delay in his return to Mexico and such a conference would have caused both. h. Burden of proof. In the absence of a specific statutory provision, the Supreme Court has held that the Government must establish deportability by clear, unequivocal, and convincing evidence. Woodby v. INS, 385 U.S. 276 (1966). The same standard of proof has been

applied to proceedings to rescind adjustment of status. (See section 246.)

i. Miranda rule. This rule, prescribed by the Supreme Court for criminal prosecutions, precludes the use of statements made by a person in custody or otherwise significantly deprived of his freedom of action unless he first receives a particularized warning of his right to remain silent and to representation by counsel. Miranda v. Arizona, 384 U.S. 436 (1966). The courts have found this rule inapplicable in deportation cases, which are civil proceedings. Chavez-Raya v. INS, 519 F. 2d 397 (7th Cir. 1975); Nason v. INS, 370 F. 2d 865 (2d Cir. 1967); Pang v. INS, 368 F. 2d 637 (3d Cir. 1966), cert denied 386 U.S. 1037 (1967).

Yet in Navia-Duran v. INS, 568 F. 2d 803 (1st Cir. 1977), the court held that although INS investigators are not required to give full Miranda warnings to an alien being interrogated, due process requires that they abide by their own regulation (8 C.FR. 287.3) and advise the alien of the reason for the arrest, of his or her right to counsel, and of the fact that any statement he or she makes may be used against him or her in subsequent proceedings.

j. Multiple hearing. In the absence of any substantive allegation or showing that the fairness of the hearing was jeopardized, the court in United States v. Barraza-Leon, 575 F. 2d 218 (9th Cir. 1978), held that a multiple hearing procedure in which eight aliens were simultaneously found deportable was not per se a violation of due process.

k. Right to counsel. This section provides the alien with the right to be represented by counsel at deportation proceedings at no expense to the Government. Courts have found an abuse of discretion where this right has not been honored.

In Castro-Nuno v. INS, 577 F. 2d 577 (9th Cir. 1978), after the alien had appeared twice with counsel at deportation proceedings which were twice continued due to the Government's failure to produce INS officers, the court found that the immigration judge had abused his discretion when on the third occasion the alien appeared without counsel and the judge failed to act sua sponte to continue the proceedings but found the alien deportable instead. Similarly, where an alien seaman's asylum claim was not considered at his deportation hearing because language difficulties had made his counsel unaware of the claim, the Board of Immigration Appeals was found to have abused its discretion in denying his motion to reopen. Leung v. INS, 531 F. 2d 166 (3d Cir. 1976) In Partible v. INS, 600 F. 2d 1094 (5th Cir. 1979), where a nonimmigrant nurse waived her right to counsel without being provided with any understanding by the immigration judge of the complexity of her dilemma and without any awareness of the applicable arguments, the court found that her waiver was not competent and knowingly made and that she was entitled to reopened proceedings with the assistance of counsel.

In Ramirez v. INS, 550 F. 2d 560 (9th Cir. 1977), the court upheld the constitutionality of 8 C.F.R. 292.1(a) (2) (iii) and 292.1(a)(3)(iv), which provide that nonattorneys may represent aliens at deportation and exclusion proceedings only if their appearance is permitted by the official before whom they wish to appear. In addition, Koden v. U.S. Department of Justice, 564 F. 2d 228 (7th Cir. 1977) held that the INS and the BIA have ample statutory and regulatory power to discipline

an attorney for unethical conduct by suspending him or her from practicing before them.

Likewise, counsel representing aliens have been held to a high standard of responsibility by the courts. Double costs have been taxed against counsel for frivolous suits and dilatory tactics. Acevedo v. INS, 538 F. 2d 918 (2d Cir. 1976). Double cost and damages were assessed against both counsel and the alien petitioner in Der-Rong Chour v. INS, 578 F. 2d 464 (2d Cir. 1978).

1. Right to confrontation and compulsory process.-In both civil and criminal proceedings under this Act the Sixth Amendment rights to confrontation and compulsory process apply.

In United States v. Winnie Mae Manufacturing Co., 451 F. Supp. 642 (C.D. Cal. 1978), where the overwhelming majority of prospective witnesses were deported even though many of their statements to INS officers had been exculpatory to the defendants who were charged with harboring illegal aliens, the court found a violation of the defendants' right to compulsory process and dismissed the indictment. The court in United States v. Calzada, 579 F. 2d 1358 (7th Cir. 1978), cert. dismissed, 439 U.S. 920 (1978), also dismissed the indictment against defendants charged with transporting and concealing illegal aliens because the Government deported some of the transported aliens before the defendants had a reasonable opportunity to interview them. However, in United States v. Orozco-Rico, 589 F. 2d 433 (9th Cir. 1979), cert. denied, 440 U.S. 967 (1979), where the defendant was charged with illegal reentry and the Government deported witnesses before the defense counsel had an opportunity to interview them, the court found no violation of the defendant's due process or compulsory process rights because the testimony of the deported witnesses would only have been relevant to the claimed illegality of the stop rather than to the alleged offense itself (and therefore could not have helped the defendant.) In United States v. Provencio, 554 F. 2d 361 (9th Cir. 1977), the court held that the introduction of depositions without any proof that deposed witnesses were unavailable and without a stipulation permitting the use of depositions was a violation of the defendant's constitutional right to confrontation.

m. Availability of discretionary relief. It has been held that 8 C.F.R. 242.17 does not require that an alien subject to deportation proceedings be informed of the availability of discretionary relief for which he or she is clearly ineligible. Soon Bok Yoon v. INS, 538 F. 2d 1211 (5th Cir. 1976).

3. Custody or supervision after deportation order (242(c) and (d))

The Attorney General's authority to control the custody of a deportable alien continues for six months after the deportation order becomes final. He has no authority to detain the deportee or to require him to furnish a bond after the six-month period expires. Shrode v. Rowoldt, 213 F. 2d 810 (8th Cir. 1954). His only authority thereafter is to enter an order of parole supervision.

However, the Supreme Court has narrowly limited the conditions which may be prescribed in such a supervision order. Restrictions on the alien's activities and associations have been found illegal. Only conditions which relate to the alien's availability for deportation have been found valid. United States v. Witkovich, 353 U.S. 194 (1957); Barton v. Sentner, 353 U.S. 963 (1957). Even a requirement of advance notice before taking a trip has been deemed unreasonable unless