273 U.S. 103 (1927), 111, United States ex Rel. Vajtauer v. Commissioner of Immigration

Docket Nº:No. 111
Citation:273 U.S. 103, 47 S.Ct. 302, 71 L.Ed. 560
Party Name:United States ex Rel. Vajtauer v. Commissioner of Immigration
Case Date:January 03, 1927
Court:United States Supreme Court

Page 103

273 U.S. 103 (1927)

47 S.Ct. 302, 71 L.Ed. 560

United States ex Rel. Vajtauer


Commissioner of Immigration

No. 111

United States Supreme Court

Jan. 3, 1927

Argued November 24, 29, 1926




1. Want of due process in proceedings for the deportation of an alien is not established by showing merely that the decision was erroneous or that incompetent evidence was received and considered. P. 106.

Page 104

2. Insofar as concerns proofs, an order of deportation is upheld in habeas corpus if there was some evidence to support it and no error is so flagrant as to convince a court of the essential unfairness of the trial. P. 106.

3. Statements of an alien tending to show that he belonged to an excluded class at time of entry may be used in deportation proceedings, whether made before or after his admission. P. 110.

4. Evidence of identity of an alien with the author of seditious pamphlets and speeches may be found in a similarity of names, appellations, nativity, etc. P. 111.

5. The silence of the alien without sufficient explanation, when called upon to testify, may be persuasive evidence against him, even as to incriminating matters, when they are not privileged. P. 111.

6. The privilege against self-incrimination may be waived if not timely asserted. P. 113.

15 F.2d 127 affirmed.

Appeal from a judgment of the district court dismissing a writ of habeas corpus.

STONE, J., lead opinion

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

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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, prior to the amendment of February 13, 1925.

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The constitutional questions assigned are [47 S.Ct. 304] (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; Kwock Jan Fat v. White, 253 U.S. 454. But a want of due process is not established by showing merely that the decision is erroneous, Chin Yow v. United States, supra, 13, or that incompetent evidence was received and considered. See Tisi v. Tod, 264 U.S. 131, 133. 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 December

Page 107

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 Russian 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

Page 108

The inspector [47 S.Ct. 305] 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

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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.

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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 § 23 of the Immigration Law of May 26, 1924, c.190, 43 Stat. 165, 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...

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