Alexander v. Butterfield, Civ. A. 15534.
| Decision Date | 28 March 1957 |
| Docket Number | Civ. A. 15534. |
| Citation | 150 F. Supp. 75 |
| Parties | Nick ALEXANDER, alias Nicholaus Demetrous Alexandropoulis, Plaintiff, v. James W. BUTTERFIELD, District Director of Immigration & Naturalization at Detroit, Michigan, Defendant. |
| Court | U.S. District Court — Western District of Michigan |
Bernard J. Fieger, Detroit, Mich., for plaintiff.
Fred W. Kaess, U. S. Atty., Dwight K. Hamborsky, Asst. U. S. Atty., Detroit, Mich., for defendant.
Motion for summary judgment by defendant against plaintiff's action to set aside an order of deportation, and for injunctive relief.
The questions in this case are very few:
(1) When defendant notified plaintiff of a hearing on his deportation, charging that plaintiff became a member of the Communist Party in this country after his entry, was it fatal for defendant not to grant the bill of particulars requested by plaintiff before said hearing?
(2) At the time of the hearing, April 9, 1954, when defendant was quizzing two of its own witnesses, was it fatal for defendant to refuse to divulge identity of a third witness it intended to call, although requested to do so by plaintiff?
(3) When the above mentioned witness appeared to testify on April 13, 1954, should plaintiff's request for adjournment have been granted on the ground that plaintiff desired to investigate said witness prior to cross-examination? And,
(4) Was there sufficient evidence of plaintiff's membership in the Communist Party between the years 1931 to 1934, plaintiff, now a 67 year old male alien, native of Greece, having admittedly entered the United States on June 25, 1913?
Defendant, in arriving at his conclusion, only considered testimony of the two witnesses appearing April 9. The third witness gave similar testimony as that of the two, but defendant agreed with plaintiff that plaintiff should have had an opportunity to investigate the third witness before being required to make his cross-examination. Therefore, testimony of that third witness was not considered leaving, two witnesses who positively identified plaintiff as the man with whom they had attended several closed meetings of the Communist Party between 1931 and 1934 in Detroit. One witness testified that he had seen plaintiff's name on the Communist Party records while both witnesses said that they had seen him selling the Daily Worker at meetings, both closed and open. Admittedly, they had never seen a membership card in his possession, nor had they ever seen him pay dues.
The law under which defendant desires to deport plaintiff is Section 1251 (a) (6) (C) of Title 8 U.S.C., the pertinent part of which reads as follows:
The findings of the Special Inquiry Officer, May 27, 1954, held that plaintiff had been a member of the Communist Party after entry into this country, from 1931 to 1934, and entered an order of deportation. November 22, 1954, the Board of Immigration Appeals affirmed the ruling. It was this Board that refused to consider the testimony of the third Government witness above.
Further action lay dormant until April 4, 1956, when plaintiff filed his petition to re-open the proceedings and for suspension of the deportation order on the ground that deportation would subject him to extreme and unusual hardship because of his health. June 14, 1956, the Board denied this petition since plaintiff had not, as required by Section 244(a) (5), 8 U.S.C.A. § 1254(a) (5), made application for suspension of deportation before the final order had been served on him.
On the day plaintiff filed his petition for suspension of deportation he also commenced this action to set aside the previously entered order of deportation, claiming that the proceedings lacked procedural due process and that the finding that plaintiff was a member of the Communist Party was not supported by "reasonable, substantial and probative evidence."
At all the hearings plaintiff refused to give any testimony, refused to be sworn, but his attorney did carry on cross-examination of Government witnesses. Up to this very moment plaintiff has never denied that he once was a member of the Communist Party after he came to America. He has made no showing, either personally or through other witnesses, as to how he happened to be at these closed meetings of the Communist Party. He has never applied for citizenship, and although the record of the hearings has been available to both plaintiff and his counsel there has been no claim made at any time that, if given further opportunity, plaintiff might in some way becloud the effectiveness of the testimony that has been given against him.
This court may not substitute its judgment for that of the Special Inquiry Officer nor of the Board of Immigration Appeals if plaintiff was granted a fair hearing, United States ex rel. Vermiglio v. Butterfield, 6 Cir., 223 F. 2d 804 and where there is substantial evidence to support the administrative agencies' findings, ...
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