Crain v. Boyd

• Decision Date: 04 August 1956
• Docket Number: No. 14633.,14633.
• Citation: 237 F.2d 927
• Parties: James Joseph CRAIN, Appellant, v. John P. BOYD, District Director, Immigration and Naturalization Service, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

237 F.2d 927 (1956)

James Joseph CRAIN, Appellant, v. John P. BOYD, District Director, Immigration and Naturalization Service, Appellee.

No. 14633.

United States Court of Appeals Ninth Circuit.

August 4, 1956.

John Caughlan, Seattle, Wash., for appellant.

Charles P. Moriarty, U. S. Atty., Frank N. Cushman, William Helsell, Asst. U. S. Attys., Seattle, Wash., for appellee.

Before STEPHENS, FEE, and CHAMBERS, Circuit Judges.

STEPHENS, Circuit Judge.

James Joseph Crain or Cryan or Crane, is under an order of deportation from the United States, and his liberty is restrained by John P. Boyd, Director of Immigration and Naturalization.

He is appealing here from the district court's order discharging an order to show cause issued upon his petition for the issuance of the writ of habeas corpus, and dismissing his petition for declaratory and injunctive relief. The petition was filed February 4, 1953, or after the effective date of the Immigration and Naturalization Act of 1952.¹

The district court dismissed the complaint for such review under its ruling that the review other than that requested by the petition for the writ of habeas corpus is "deficient for lack of an indispensable party, the Assistant Commissioner of Immigration and Naturalization Service, or the Attorney General." In this the court erred. Shaughnessy v. Pedreiro, 1955, 349 U.S. 48, 75 S.Ct. 591, 99 L.Ed. 868. There was room for difference of opinion until the decision in the cited case. See the dissents in it.

The order to show cause was discharged and the proceedings dismissed upon the merits after a hearing.

The court issued a show cause order directed to the district director who responded in a pleading in which he denied all but the formal allegations of the petition and affirmatively alleged that his custody of petitioner was, in all respects, in accordance with law. The pleadings as a whole may be taken as the classical pleadings in habeas corpus proceedings for the release of appellant from custody, and also as a complaint and answer in a declaratory judgment action in which affirmative and injunctive action is prayed, under authority of the Administrative Procedure Act.²

Although the petition is divided into Count I and Count II, both counts are based upon a single set of facts; and Count I is designed as a petition in habeas corpus, while Count II is designed as a complaint in a declaratory judgment action under the provisions of the Administrative Procedure Act.³ There is a single prayer by which all phases of relief, within the power of both habeas corpus and declaratory judgment, are sought.

The Facts

The facts were given the district court by the introduction of the administrative deportation proceedings with reservation of objections. The file of the proceedings show that appellant was examined in 1935 under oath by a district director of Immigration and Naturalization and in the course of the examination he denied having been a Communist. In 1938 he was arrested under a warrant issued by the Department of Labor, Immigration and Naturalization Department, and was charged under the Act of October 16, 1918,⁴ as amended by the Act of June 5, 1920,⁵ as an alien member of an organization that advocates or teaches overthrow by force or violence of the Government of the United States. A formal hearing of the charge before an Immigration Inspector was begun on March 15, 1938, and was convened and recessed several times, concluding on July 2, 1938. In the course of the hearings, appellant admitted that he was a member of the Communist Party, but stated,

"* * * as to the overthrow of the Government by force and violence, I don\'t know anything about that."

The transcript of the 1935 questioning by the district director of Immigration and Naturalization was put in evidence at the 1938 hearing after his arrest. When arrested, appellant was in possession of Communistic literature but stated that he was not familiar with it. During the hearing appellant's Communist Party card was admitted in evidence without objection and with appellant's admission that it was his card. Other documents connecting appellant with the Communist Party were introduced but it is not clear just how these documents were obtained, and their receipt in evidence was objected to as having been obtained illegally. We have excluded them from our consideration.

At the 1938 hearing which was held under legal sanction, appellant stated that he had been a member of the Communist Party in 1935 (contrary to his statements to the district director in 1935, before his arrest in 1938) for a few months but had dropped out and then rejoined.

At the hearing session of April 11, 1938, which was under legal sanction, appellant testified flatly that he was then a Communist:

Question: "How long have you been a member?"

Answer: "About six months, approximately."

(At this juncture, the case of Sumio Madokoro v. Del Guercio, 9 Cir., 1947, 160 F.2d 164, is interesting.) Appellant in the instant case was financial secretary and an organizer of a Communist unit. There followed much evidence as to the Communist Party's intentions toward force or violence to overthrow the Government.

The case seems to have lain dormant from July 2, 1938, to February 25, 1948, when it was reopened before a Presiding Inspector, an officer named pursuant to the change of the Immigration and Naturalization matters from the Department of Labor to the Department of Justice, and these hearings before the Presiding Inspector were concluded on August 3, 1949.

The deportation hearing was reopened on February 13, 1951, in which there was a Hearing Officer, and an Examining Officer under the jurisdiction of the Department of Justice, at which time the following occurred:

Alien\'s Counsel to Examining Officer: "Is it your intention to introduce any testimony at these proceedings other than the respondent\'s testimony?"

Answer: "No."

Question: "Is this — this is a reopened hearing which simply represents a continuation of the hearings held in 1938 and 1949?"

Answer: "Yes. The main purpose for the reopening of this hearing is to lodge an additional charge under the Internal Security Act,⁶ as you were advised, and the respondent appellant was advised in our notification of the hearing on January 9, 1951."

At this point appellant\'s counsel made a lengthy statement,⁷ in which he made a motion to dismiss the whole proceeding because of the elapse of time since issuance of the warrant, and because appellant had been a law-abiding person during the years since issuance of the warrant. The motion was denied. Appellant was then asked if subsequent to the spring of 1940 he had ever been a member of the Communist Party of the United States or had been affiliated with or connected in any way with that party during that period, to both of which questions he answered,

"No, I haven\'t."

Permission was then asked of the Hearing Officer by the Examining Officer to lodge an additional charge, and the following took place:

Hearing Officer: "Permission is granted."

Examining Officer: "I now lodge a new charge and urge that the respondent is subject to deportation under the Act of October 16, 1918, as amended,⁸ in that he has been, after entry, a member of the following class set forth in Section 1 of said Act: an alien who was a member of the Communist Party of the United States."

Hearing Officer to Respondent: "This means, Mr. Cryan, that in addition to the charges contained in the warrant of arrest, as well as those subsequently lodged during the course of your previous hearings, it is now being lodged the additional charge under the Internal Security Act of 1950,⁹ which amended the Act of 1918, to the effect that you appear to be deportable from the United States because subsequent to your entry you were a member of the Communist Party of the United States. Do you fully understand the nature of this additional lodged charge?"

Answer: "Yes, I understand."

Hearing Officer to Counsel: "Do you wish any additional time within which to prepare a defense in connection with this additional lodged charge?"

Answer: "I have — I can only answer that by making an inquiry. My inquiry is this: if it is — is it intended that there will be any factual evidence, testimonial or otherwise, in support of this charge against the respondent?"

Examining Officer: "No, it is my view that the evidence already adduced at the previous hearings is sufficient to support this charge, and basically this charge is similar to the ones which were stated in the warrant of arrest."

Counsel: "* * * but the objection we have is this: * * *."

We shall later mention the objections made by counsel for appellant, and comment thereon.

Upon these facts, modified as we shall note by rulings upon objections, the alien appeals.

The Appeal

It will be recalled that the deportation statute, as it stood when the warrant issued,¹⁰ provided in effect that an alien who had been or who belonged to or was affiliated with any organization whose purpose was the overthrow of the Government of the United States by force or violence, or the teaching that the Government should be so overthrown, should be deported.

The hearings held upon the warrant for the arrest and the charge for deportation of appellant up to the enactment of the Internal Security Act of 1950,¹¹ were upon the basis that it must be proven that the organization to which the charge belonged, etc., was one with the purposes of overthrowing the Government of the United States and/or of teaching that the Government should be overthrown by force or violence. The 1950 Act made an alien deportable if he is or had been a member of the Communist Party. No proof that that Party advocated force or violence, etc., is needed.

Appellant objected to the lodgment of the additional charge, and objected to its consideration upon the ground that it was a different charge than the one upon which the original warrant was issued.

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