Acosta v. Landon, 17175.

• Decision Date: 21 October 1954
• Docket Number: No. 17175.,17175.
• Court: U.S. District Court — Southern District of California
• Parties: Torivio M. ACOSTA, Petitioner, v. H. R. LANDON, District Director United States Immigration and Naturalization Service, Respondent.

125 F. Supp. 434

Torivio M. ACOSTA, Petitioner, v. H. R. LANDON, District Director United States Immigration and Naturalization Service, Respondent.

No. 17175.

United States District Court S. D. California, Central Division.

October 21, 1954.

COPYRIGHT MATERIAL OMITTED

Wendell H. Davis, Los Angeles, Cal., for petitioner.

Laughlin E. Waters, U. S. Atty., Los Angeles, Cal., Max F. Deutz, Glendale, Cal., and James R. Dooley, Asst. U. S. Attys., Los Angeles, Cal., by James R. Dooley, Los Angeles, Cal., for respondents.

BYRNE, District Judge.

Acosta is a native of Mexico who was admitted to the United States for permanent residence on March 11, 1915, at El Paso, Texas. He has resided continuously in this country since that time, with the exception of temporary absences of a few hours duration. He married a native-born citizen of the United States in 1933. They have three American-born daughters who are 20, 17 and 13 years of age respectively, and a two-and-one-half-year-old adopted son who also was born in this country.

Approximately November 6, 1952, Acosta was arrested on a warrant charging that he was deportable as an alien who, since entry, had been a member of the Communist Party of the United States. On April 3, 1953, following a hearing, a special inquiry officer rendered a decision finding that petitioner was a member of the Communist Party "from approximately early in 1937 until about November, 1937 or sometime in 1938", and ordering that he be deported from the United States. His application for suspension of deportation was denied "on the ground that he is statutorily ineligible therefor". An appeal to the Board of Immigration Appeals was dismissed. By this petition for writ of habeas corpus he seeks review of the administrative proceedings.

Deportation proceedings are subject to review under § 10 of the Administrative Procedure Act, 5 U.S.C.A. § 1009. Rubinstein v. Brownell, 1953, 92 U.S.App.D.C. 328, 206 F.2d 449, affirmed by an equally divided court sub nom. Brownell v. Rubinstein, 1954, 346 U.S. 929, 74 S.Ct. 319; Aguilera-Flores v. Landon, D.C.S.D.Cal.1954, 125 F.Supp. 55. Judicial review may be had in a habeas corpus proceeding, 5 U.S.C.A. § 1009(b), and on such review the court must hold unlawful and set aside agency action, findings, and conclusions unsupported by substantial evidence. 5 U.S. C.A. § 1009(e). The court shall review the whole record or such portions as may be cited by any party, and due account shall be taken of the rule of prejudicial error. 5 U.S.C.A. § 1009(e); Universal Camera Corp. v. N. L. R. B., 1951, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456.

It is the contention of Acosta that the order for his deportation and the findings upon which it was based are not supported by substantial evidence in that the Government witnesses were impeached in such a manner as to make their testimony impossible of belief. He also contends that error was committed in the exclusion of evidence, and that the hearing officer did not act with impartiality.

At the hearing the Government witness Chase testified that he was present at the time Acosta became a member of the Communist Party, and attended with petitioner some 25 "unit" meetings that were restricted to such members. The other Government witness, Salinas, testified that he was present at such a "unit" meeting with petitioner on one or two occasions, at least on one for certain, and that such meetings were restricted to members of the Party. The record shows some confusion, inconsistency, and faulty memory on the part of Salinas. He was, however, quite positive that he saw petitioner at one "unit" meeting at least, and that only members of the Party attended that meeting.

Witnesses for petitioner were his wife, a former employer, a former supervisor, and himself. Petitioner denied he was ever a member of the Party or that he was ever present at such meetings as those described by the Government witnesses. The former employer and the former supervisor testified in substance that they had no reason to believe petitioner was ever a member of the Party. Petitioner's wife testified that she went with her husband to most of the meetings he attended and that they were all just union meetings; that she handled all of the family's money matters and that the only dues or assessments she paid were union dues (nothing paid to any Communist organization); that she knew her husband was not a Party member because of the manner in which he brought up their children.

There was testimony attacking the credibility of the witness Chase. It was testified that Chase and others with food and drink had come to the petitioner's house to influence his vote in a coming union meeting; that both Chase and his wife tried to persuade petitioner and his wife to take sides with Chase at that meeting; that notwithstanding such tactics, petitioner at the meeting urged and voted that Chase be ousted from the union; that Chase was in fact ousted; that the disappearance of a union "slush" fund might have been connected with this ouster of Chase; that not very long after Chase left the union he made a statement to the Department of Immigration on petitioner's membership in the Party which resulted in petitioner's application for citizenship being denied. Chase admitted going to petitioner's house, denied trying to influence petitioner or his wife, admitted petitioner took the floor at the union meeting on the subject of his being ousted, admitted he was ousted and that he made the statement to the Immigration Department, denied all enmity or ill will toward petitioner. In addition, Chase admitted that he had been arrested about nine times in connection with Communist activities and had been convicted once.

Petitioner argues that, even if it be said there is substantial evidence that he did attend the "unit" meetings, still attendance at such meetings does not prove he was a Party member. He relies on a statement made in the case of Bridges v. United States, 9 Cir., 1952, 199 F.2d 811, at page 836: "It is true that a number of the witnesses described some of these meetings which Bridges attended, and at some of which he presided, as `closed' Communist meetings. The logical fallacy in concluding from this that Bridges must therefore have been a Party member is that it assumes the truth of that which is sought to be proven. If, in fact, Bridges was not a Party member, his presence at such a meeting would mean no more than that he attended a meeting at which every other person present was a Party member." This statement, however, does not say that attendance at the closed meetings was not evidence of Party membership. It only says that it was not conclusive evidence. Such evidence, although inconclusive and insufficient in itself, is relevant to the issue of Party membership. Here there was testimony by Chase that he was present when petitioner joined the Party.

There is substantial evidence of Party membership if the testimony of the witness Chase is to be believed. As has already been noted, the inquiry officer had good reason to believe that the witness Chase was biased against petitioner. Petitioner was instrumental in having Chase ousted from an executive position in the union and from the union itself. Chase's subsequent statement to the Department of Immigration could hardly be looked upon as a gesture of good will. And it was this same statement that Chase used to refresh his memory just prior to testifying at petitioner's deportation hearing. Notwithstanding the testimony tending to show bias on the part of Chase, the inquiry officer believed he was telling the truth.

Credibility of witnesses is ordinarily to be determined by the trier of fact — in this instance the inquiry officer. Morikichi Suwa v. Carr, 9 Cir., 1937, 88 F.2d 119. It is the inquiry officer in a deportation proceeding who is in a position to observe the demeanor of witnesses, and his decision on the question of credibility should therefore rarely be disturbed. See N. L. R. B. v. Dinion Coil Co., 2 Cir., 1952, 201 F.2d 484, for a good discussion on the weight to be given findings based on "demeanor evidence". However, testimony should be credited or discredited not on mere whim or caprice, but on a proper evaluation of the credibility of the witnesses. Victor Products Corp. v. N. L. R. B., 1953, 93 U.S.App. D.C. 56, 208 F.2d 834. The more important credibility is in a particular case, the more significant is the report of the inquiry officer. As was said in the Universal Camera Corp. case, supra, 340 U.S. at page 496, 71 S.Ct. at page 469: "The findings of the examiner are to be considered along with the consistency and inherent probability of testimony. The significance of his report, of course, depends largely on the importance of credibility in the particular case."

In this case the critical issue of whether Acosta was a member of the Communist Party turned on the credit to be given Chase's testimony. The inquiry officer gave it full credit. Though this court might have taken a different view of the testimony had the matter been before it de novo, it cannot be said that Chase's testimony was so improbable as to be unworthy of belief. Under such circumstances, this court is obliged to accept the inquiry officer's findings.

Petitioner Acosta contends that error was committed in the exclusion of evidence concerning his counsel's conversation with a Mr. King. According to the offer of proof, King stated in this conversation that petitioner was not present at any meeting that King attended. This is directly contrary to the testimony of Salinas, who testified that all three (King, Salinas and petitioner) were present at a "unit" meeting. The offer of proof further shows that King made the statement that if he testified at petitioner's hearing, his testimony would not hurt petitioner.

Respondent admits that hearsay evidence is admissible before administrative bodies. N. L. R. B. v. Cities...