219 F.2d 137 (2nd Cir. 1955), 20, Barnes, Application of

Docket Nº:20, 21, 76, Dockets 23081, 23082, 23172.
Citation:219 F.2d 137
Party Name:Application of Harold E. BARNES, Officer in Charge of immigration and Naturalization Service, for process to enforce subpoena as to Salvatore FALCONE. v. John ODDO, Respondent-Appellee. Application of Harold E. BARNES, Officer-in Charge of Immigration and Naturalization Service, for process to enforce subpoena as to Joseph FALCONE. Edward J. SHAUGH
Case Date:January 10, 1955
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 137

219 F.2d 137 (2nd Cir. 1955)

Application of Harold E. BARNES, Officer in Charge of immigration and Naturalization Service, for process to enforce subpoena as to Salvatore FALCONE.

Application of Harold E. BARNES, Officer-in Charge of Immigration and Naturalization Service, for process to enforce subpoena as to Joseph FALCONE.

Edward J. SHAUGHNESSY, as District Director, Immigration and Naturalization Service, New York District, Petitioner-Appellant,

v.

John ODDO, Respondent-Appellee.

Nos. 20, 21, 76, Dockets 23081, 23082, 23172.

United States Court of Appeals, Second Circuit.

January 10, 1955

Argued Nov. 5, 1954.

Page 138

Theodore F. Bowes, U.S. Atty. for Northern Dist. of New York, Syracuse, N.Y. (Charles J. Miller, Asst. U.S. Attorney, Syracuse, N.Y., of counsel; Herman I. Branse, Acting Dist. Counsel, Immigration and Naturalization Service, Buffalo, N.Y., on the brief), for applicant-appellant Harold E. Barnes.

Anthony S. Falcone, Utica, N.Y., for respondents-appellees Salvatore Falcone and Joseph Falcone.

J. Edward Lumbard, U.S. Atty. for Southern Dist. of New York, New York City (Harold J. Raby, Asst. U.S. Atty., and Lester Friedman, Atty., Immigration and Naturalization Service, New York City, of counsel, for petitioner-appellant Edward J. Shaughnessy.

Kaufman & Edelbaum, New York City (Maurice Edelbaum and Seymour Teitelbaum, New York City, of counsel), for appellee John Oddo.

Before CHASE, MEDINA and HINCKS, Circuit Judges.

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MEDINA, Circuit Judge.

The sole question raised by these two appeals is whether Section 235(a) 1 of the Immigration and Nationality Act of 1952 (the McCarran-Walter Act), 66 Stat. 163, 198-9, 8 U.S.C.A. 1225(a), authorizes an officer of the Immigration and Naturalization Service to issue a subpoena requiring a naturalized citizen to testify, in an effort to determine if 'good cause' exists for the commencement of proceedings to revoke the order admitting such person to citizenship. 2

In the cases of Salvatore Falcone and Joseph Falcone, the Officer in Charge of the Immigration and Naturalization

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Service in Syracuse, New York, applied, on notice, to the United States District Court for the Northern District of New York for orders directing the Falcones, upon whom subpoenas had been served, and who challenged the authority of the Officer to issue the subpoenas under Section 235(a), to appear and testify. In the case of John Oddo the subpoena was issued by the District Director of Immigration and Naturalization for the New York District, Judge Dimock in the Southern District of New York made an ex parte order directing Oddo to appear and testify, and Oddo moved to vacate Judge Dimock's order. In each case it appeared that testimony was sought relative to the possibility of instituting an action in equity pursuant to the terms of Section 340 of the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1451, for a decree of denaturalization, the Falcones having been admitted to citizenship in 1925, and Oddo in 1931. Judge Foley refused to direct the Falcones to appear and testify and Judge Weinfeld granted the motion to vacate, each holding that Section 235(a) authorized the issuance of subpoenas only in cases involving the entry, exclusion and deportation of aliens. The identical proposition was decided contrariwise by Judge Welsh, in the District Court for the Eastern District of Pennsylvania. In re Minker, 1953, 118 F.Supp. 264.

An 'immigration officer' is defined in Section 101(a)(18) of the 1952 Act, 8 U.S.C.A. § 1101(18), as 'any employee or class of employees of the Service or of the United States designated by the Attorney General * * * to perform the functions of an immigration officer specified by this Act or any section thereof'; and Section 101(b)(4) defines a 'special inquiry officer' as any immigration officer 'who the Attorney General deems specially qualified to conduct specified classes of proceedings * * * required * * * to be conducted by or before a special inquiry officer and who is designated and selected by the Attorney General * * *.' The specified classes of proceedings referred to are exclusion proceedings, Section 235(b), and deportation proceedings, Section 242(b), 8 U.S.C.A. § 1252(b). Without pausing to spell out the details, it will suffice to say that the established method of selecting these immigration and special inquiry officers gives assurance that they have had experience in miscellaneous phases of the work of the Immigration and Naturalization Service and possess a special competence and familiarity with the wiles and devices of those seeking in one way or another to defeat the purposes of and to evade the laws governing immigration and naturalization, which are complex and highly technical.

Those who performed analogous functions under the predecessor statute, The Immigration Act of 1917, were described in Section 16 thereof, the Section which as amended became Section 235(a) of the Act of 1952, as 'immigrant inspectors.' The heading of this old Section 16 reads: 'Physical and Mental Examination of Alien Passengers; Regulations; Authorization of Inspectors to Administer Oaths; Appeal to Medical Boards and Personnel Thereof; Subpena of Witnesses and Documents; Penalty.' There were no 'Titles' or 'Chapters' as in the subsequent 1952 Act.

Section 16 provided that, 'Said inspectors (the immigrant inspectors) shall have power to administer oaths and to take and consider evidence touching the right of any alien to enter, reenter, pass through, or reside in the United States * * *' and that, 'Any district director of immigration and naturalization designated by the Commissioner or any inspector in charge shall also have power to require by subpoena the attendance and testimony of witnesses before said inspectors and the production of books, papers, and documents touching the right of any alien to enter, reenter, reside in, or pass through the United States, and to that end may invoke the aid of any court of the United States; and any district court within the jurisdiction of which investigations are being conducted by an immigrant

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inspector may * * * issue an order requiring such person to appear * * * and testify; and any failure to obey such order * * * may be punished * * * as a contempt.' There is no dispute about the fact that the provisions just referred to constituted the authority and machinery for administrative investigations by the Service under the 1917 Act, and this authority was widely and continuously exercised.

The Revisers' Notes make it plain that the new Section 235(a) of the 1952 Act, pursuant to which the Falcone and Oddo subpoenas were issued, is the successor to the old Section 16 of the 1917 Act. The amendments are so specific and clear as practically to determine the issue before us. The 'immigrant inspectors' are now 'any immigration officer, including special inquiry officers, ' as defined supra, and they are given by Section 235(a) power to administer oaths and to take and consider evidence 'of or from any person touching the privilege of any alien or person he believes or suspects to be an alien to enter, reenter, pass through, or reside in the United States or concerning any matter which is material and relevant to the enforcement of this Act and the administration of the Service * * *.' And Section 235(a) proceeds to use identical language in connection with the power of 'any immigration officer, including special inquiry officers' to 'require by subpena the attendance and testimony of witnesses * * * relating to the privilege of any person to enter, reenter, reside in, or pass through the United States or concerning any matter which is material and relevant to the enforcement of this Act and the administration of the Service.' As in the old Section 16 the appropriate District Courts are to direct such witnesses to appear and testify and to punish a refusal to testify as a contempt; and Section 287(b), 8 U.S.C.A. § 1357(b), repeats the key phrase above quoted in describing the powers of immigration officers and employees in administering oaths and taking and considering evidence.

Thus certain officers of the Service, designated by the Attorney General, and undisputedly including those who issued the subpoenas in these cases now before us, were explicitly given increased administrative investigatory powers. The counterpart of the phrase appearing in the 1917 Act is strengthened and broadened by the addition of the words 'of or from any person', and 'or person he believes or suspects to be an alien'; and there is added, both in the part of the section relating to the administration of oaths and the taking and consideration of evidence and in that relating to the subpoena power and its enforcement by the District Courts, as well as in Section 287(b), the new and comprehensive words 'or concerning any matter which is material and relevant to the enforcement of this Act and the administration of the Service.' Surely investigations of an administrative character, conducted by the very officials who by training and experience have expert knowledge of the whole subject of immigration and naturalization, and designed not merely to procure evidence to support a denaturalization proceeding under Section 340 of the Act, but to ascertain the true facts and in many if not most cases, exonerate those under investigation, are 'concerning * * * matter which is material and relevant to the enforcement' of the Act. True, the language is general, there is no specific reference to denaturalization proceedings; but the very generality of the terms of the statute compels the conclusion that the powers thus conferred may be exercised in reference to the enforcement of Section 340 of the Act, as well as that of all the rest. We...

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