United States Vajtauer v. Commissioner of Immigration At Port of New York v. 24 29, 1926

• Citation: 273 U.S. 103,47 S.Ct. 302,71 L.Ed. 560
• Decision Date: 03 January 1927
• Docket Number: No. 111,111
• Parties: UNITED STATES ex rel. VAJTAUER v. COMMISSIONER OF IMMIGRATION AT PORT OF NEW YORK. Argued Nov. 24-29, 1926
• Court: United States Supreme Court

273 U.S. 103

47 S.Ct. 302

71 L.Ed. 560

UNITED STATES ex rel. VAJTAUER

v COMMISSIONER OF IMMIGRATION AT PORT OF NEW YORK.

No. 111.

Argued Nov. 24-29, 1926.

Decided Jan. 3, 1927.

Messrs. Walter H. Pollak and Isaac Shorr and Mrs. Carol Weiss King, all of New York City. for appellant.

The Attorney General and Mr. W. D. Mitchell, Sol. Gen., of Washington, D. C., for appellee.

Mr. Justice STONE delivered the opinion of the Court.

Vajtauer, appellant, was arrested in deportation proceedings on a warrant issued April 4, 1924, by the Assistant Secretary of Labor charging that Vajtauer, an alien, had entered the United States December 1, 1923, in violation of the Act of October 16, 1918, c. 186 (40 Stat. 1012), as amended by the Act of June 5, 1920, c. 251 (41 Stat. 1008), printed so far as relevant in the margin.¹ The particular violations of the statute alleged were that prior to or at the time of his entry, appellant (1) believed in and advocated the overthrow of the government of the United States or all forms of law; (2) wrote, published, circulated or had in his possession for circulation written or printed matter advocating opposition to all organized government; (3) wrote, published, circulated or had in his possession for circulation written or printed matter advocating the overthrow by force or violence of the government of the United States or of all forms of law.

After a hearing before an immigration inspector, and a review of all the proceedings by the Board of Review, the Secretary of Labor, upon the recommendation of that board, ordered deportation. While in the custody of the Commissioner of Immigration at the port of New York, the alien assailed the legality of his detention in a petition for a writ of habeas corpus which was issued by the District Court for Southern New York. Upon the return of the writ and after a hearing, that court dismissed the writ, remanded appellant to the custody of the Commissioner and stayed deportation pending an appeal. 15 F.(2d) 127. The case comes here on direct appeal, on the ground that appellant was denied rights guaranteed by the Fifth Amendment of the federal Constitution. Section 238, Judicial Code (Comp. St. § 1215), prior to the amendment of February 13, 1925 (43 Stat. 936).

The constitutional questions assigned are (1) that the deportation order was unsupported by any substantial evidence and consequently appellant was denied a fair hearing and deprived of his liberty without due process; (2) that the action of the immigration authorities in drawing certain inferences from his refusal to answer questions asked, deprived him of the protection against self-incrimination accorded by the Fifth Amendment.

Deportation without a fair hearing or on charges unsupported by any evidence is a denial of due process which may be corrected on habeas corpus. Cf. Chin Yow v. United States, 208 U. S. 8, 28 S. Ct. 201, 52 L. Ed. 369; Kwock Jan Fat v. white, 253 U. S. 454, 40 S. Ct. 566, 64 L. Ed. 1010. But a want of due process is not established by showing merely that the decision is erroneous, Chin Yow v. United States, supra, 208 U. S. 13 (28 S. Ct. 201), or that incompetent evidence was received and considered. See Tisi v. Tod, 264 U. S. 131, 133, 44 S. Ct. 260, 68 L. Ed. 590. Upon a collateral review in habeas corpus proceedings, it is sufficient that there was some evidence from which the conclusion of the administrative tribunal could be deduced and that it committed no error so flagrant as to convince a court of the essential unfairness of the trial. Tisi v. Tod, supra.

The ultimate question presented by this record, therefore, is one of fact, whether the warrant of deportation was supported by any evidence that the alien when he entered the United States advocated opposition to all organized government or the overthrow of the United States government by force and violence, within the meaning of the statute. This requires a review of the evidence.

At the hearing before the immigration authorities on May 14, 1924, appellant, who was represented by counsel, was sworn as a witness, gave his name as Emanuel Vajtauer and his occupation as 'Doctor of Psychology,' and editor of the 'Spravedlvost,' a Bohemian newspaper published in Chicago. He testified that he resided in Illinois; that he entered the United States on Decem- ber 1, 1923; and that he was a citizen of Czechoslovakia by birth. After answering other preliminary questions, he was then asked: 'Why did you come to the United States?' Appellant's attorney then stated:

'I will advise the alien not to answer any further questions until the evidence upon which the warrant is based will be presented here.'²

Appellant then stated that he would follow his attorney's advice, and gave no further testimony. The immigration inspector introduced in evidence a pamphlet, stated by him to bear the name of Dr. E. M. Vajtauer as author. An interpreter testified that it was Dr. Vajtauer's study of the Ressian Revolution. The title, as printed in the record, was:

'Revolution and the Dictatorship of the Proletariat, by Dr. E. Dajtauer, written in Moscow in the Spring of 1920.'

Translations of certain passages from the pamphlet by the interpreter were spread upon the record. Some of these excerpts merely gave an account of the Russian revolution and the revolutionists' own justification for their overthrow of the Russian government. Others, printed in the margin, purported on their face to advocate the overthrow of government by revolution or force. ³ The inspector also placed in evidence a newspaper published by the Slovak Labor Socialist Federation of America, containing a report of a speech stated in the record to have been made by a Dr. Vajtauer, the editor of the Bohemian daily, 'Spravedlvost.' In this address the causes and effects of the World War and of the revolutionary movements in Europe were described from the viewpoint of the proletariat. The speaker predicted a much fiercer revolutionary struggle in this country than that which took place in Europe and the concluding paragraphs, printed in the margin,⁴ suggest at least that the speaker advocated such a revolution. Other documentary evidence received consisted of an abridged report of the 'Fourth Congress of the Communist International, Meetings held at Petrograd and Moscow, November 7 and December 3, 1922,' containing a statement purported to have been made by a Dr. Vajtauer, Czechoslovakia, on Cezchoslovakian affairs.

Under instructions of his attorney, appellant refused to answer further questions calculated to establish his identity with the author of the pamphlet and with the Dr. Vajtauer who made the address reported in the newspaper article and the Dr. Vajtauer who addressed the Congress of the Communist International.

A point much argued before us was whether section 23 of the Immigration Law of May 26, 1924, c. 190 (43 Stat. 165 (Comp. St. § 4289 3/4kk)), which took effect before the hearing was closed, placed on appellant the burden of proving that he was not a member of a class of aliens excluded from entering the United States by the immigration laws. Section 23 provides in part:

'And in any deportation proceeding against any alien the burden of proof shall be upon such alien to show that he entered the United States lawfully.'

It was plausibly urged that the language of the statute was well as its legislative history indicates that this clause relates only to the proof of the regularity of the alien's entry with respect to time, place, manner and the like, and not to his membership in an excluded class. But we find it unnecessary to consider this question, as we think that the record taken as a whole and without the aid of any statutory presumption presents some evidence supporting the deportation order.

We disregard the Moscow address as having no substantial bearing on appellant's membership in an excluded class. But the extracts from the pamphlet and the report of the Chicago speech, taken together, are at least some evidence tending to show that the author of them advised and advocated opposition to all organized government and the overthrow of the United States government by violence, and therefore could, as an alien, be excluded from admission into the United States by the provisions of section 1 of the Act of June 5, 1920, supra, or if admitted, deported if found to have been a member of an excluded class at the time of entry (section 2). Statements made before or after entry may be taken to indicate that he was subject to exclusion at the time of entry.

The only other issue on which the government was required to present evidence, assuming that the burden of proof rested on it, was the identity of the appellant, admittedly an alien, with the author of the pamphlet and the address. The similarity of names; the fact that each was known as 'Doctor'; that a Dr. Vajtauer, also of Czechoslovakia, as was appellant, addressed the Fourth Congress of the Communist International on Czechoslovakian affairs in Moscow, where the pamphlet was written, and that after the arrival of appellant in the United States and his proceeding to Chicago, a Dr. Vajtauer, who was editor of the Bohemian daily paper, 'Spravedlvost,' as was appellant, made a public address in Chicago, discussing the Russian revolution and suggesting the possibilities of a similar revolution here, all taken together admit of the inference that the appellant and the author of the pamphlet and speech were one and the same person. This inference was strengthened when the appellant, confronted by this record, stood mute.

'Conduct which forms a basis for inference is evidence. Silence is often evidence of the most persuasive character.' Bilokumsky v. Tod, 263 U. S. 149, 153, 154, 44 S. Ct. 54, 56 (68 L. Ed. 221). Appellant as a witness was called upon to testify whether he was the author of the pamphlet and the Chicago speech, facts within his knowledge. If the author, he was in a...