Fougherouse v. Brownell, Civ. No. 7328

• Decision Date: 10 January 1958
• Docket Number: 7331.,Civ. No. 7328
• Citation: 163 F. Supp. 580
• Parties: Jean Jules Pierre Henri FOUGHEROUSE, also known as John J. Fougherouse, Petitioner, v. Herbert BROWNELL, Jr., as Attorney General of the United States, Argyle McKay, as Commissioner of the Immigration and Naturalization Service, United States Department of Justice, Thomas G. Finucane as Chairman of the Board of Immigration Appeals, Office of the Attorney General, John D. Boyd as District Director Immigration and Naturalization Service, United States Department of Justice, Roy J. Norene, also known as R. J. Norene, as Officer in Charge, Immigration and Naturalization Service Office, United States Department of Justice, at Portland, Oregon, Louis C. Hafferman as Special Inquiry Officer, Immigration and Naturalization Service, United States Department of Justice, Respondents. Jean Jules Pierre Henri FOUGHEROUSE, also known as John J. Fougherouse, Petitioner, v. John P. BOYD, District Director, Immigration and Naturalization Service, United States Department of Justice, Roy J. Norene, Officer in Charge, Immigration and Naturalization Service Office, United States Department of Justice, at Portland, Oregon, Respondents.
• Court: U.S. District Court — District of Oregon

163 F. Supp. 580

Jean Jules Pierre Henri FOUGHEROUSE, also known as John J. Fougherouse, Petitioner, v. Herbert BROWNELL, Jr., as Attorney General of the United States, Argyle McKay, as Commissioner of the Immigration and Naturalization Service, United States Department of Justice, Thomas G. Finucane as Chairman of the Board of Immigration Appeals, Office of the Attorney General, John D. Boyd as District Director Immigration and Naturalization Service, United States Department of Justice, Roy J. Norene, also known as R. J. Norene, as Officer in Charge, Immigration and Naturalization Service Office, United States Department of Justice, at Portland, Oregon, Louis C. Hafferman as Special Inquiry Officer, Immigration and Naturalization Service, United States Department of Justice, Respondents.

Jean Jules Pierre Henri FOUGHEROUSE, also known as John J. Fougherouse, Petitioner, v. John P. BOYD, District Director, Immigration and Naturalization Service, United States Department of Justice, Roy J. Norene, Officer in Charge, Immigration and Naturalization Service Office, United States Department of Justice, at Portland, Oregon, Respondents.

Civ. Nos. 7328, 7331.

United States District Court D. Oregon.

January 10, 1958.

COPYRIGHT MATERIAL OMITTED

Peterson, Pozzi & Lent, Portland, Or., for petitioner.

James Morrell, Asst. U. S. Atty., Portland, Or., for respondents.

EAST, District Judge.

Statement of Facts and Status of Causes

Jean Jules Pierre Henri Fougherouse, also known as John J. Fougherouse, petitioner, an alien maintaining his residence in Oregon, was served with a warrant of arrest issued by the District Director of the Immigration and Naturalization Service, on October 18, 1951¹ charging in effect that petitioner had been a member of the Communist Party of the United States, therefore subject to deportation. Petitioner was admitted to and is now on bail.

On April 8, 1953, petitioner received a notice of hearing of the warrant of arrest,² following which a hearing was held before a special Inquiry Officer of the Service during the months of May and June of 1953.³ At this hearing the petitioner was represented by retained counsel. At the conclusion of the government's case the examining officer lodged an additional charge under Sec. 241 of the Immigration and Nationality Act of 1952, 66 Stat. 163, Title 8 U.S.C.A. Sec. 1251 (1953 ed.). This additional charge was identical in all respects to the charge theretofore made under the prior Act. Upon conclusion of the hearing, the Special Inquiry Officer made and entered findings of fact, conclusions of law and ordered that the petitioner be deported.⁴ Petitioner's trial appeal to the Board of Immigration Appeals was dismissed, thereafter his application for reconsideration and his motion to reopen were dismissed. Petitioner has instituted two causes before this Court, the first, No. 7328, being his petition for injunctive relief and a declaratory judgment. Civil No. 7331, being petitioner's petition for writ of habeas corpus directed against the Director, instituted on the day he was actually surrendered to the Immigration Service by his bondsman. By stipulation of the parties, with consent of the Court, the two causes have been consolidated for hearing and determination.

Scope of Judicial Review

Upon a collateral review in habeas corpus it is enough that there was some evidence from which the findings and conclusion of the administrative tribunal could be deduced and that no error was committed so flagrant as to convince the Court of the essential unfairness of the trial. United States ex rel. Harisiades v. Shaughnessy, 2 Cir., 1951, 187 F.2d 137, 141, affirmed Harisiades v. Shaughnessy, 1952, 342 U.S. 580, 72 S.Ct. 512, 96 L.Ed. 586. Review by way of declaratory judgment under Sec. 10 of the Administrative Procedure Act imposes upon the District Court the duty to hold unlawful and set aside agency action, findings, and conclusions found to be unsupported by substantial evidence. 60 Stat. 243, 5 U.S. C.A. § 1009 (Cum.Supp.1950). It is now settled that in a deportation proceeding, whether habeas corpus or declaratory judgment is sought, the scope of judicial function is the same. Cruz-Sanchez v. Robinson, D.C.Cal.1955, 136 F.Supp. 52; United States ex rel. Brzovich v. Holton, 7 Cir., 1955, 222 F.2d 840. It follows, therefore, that in order to sustain the order of deportation herein involved, this Court must find from a review of the entire record made before the Service that the order is supported by substantial evidence and is not arbitrary, capricious, or an abuse of discretion, nor contrary to the Constitution, nor without observance of proper procedure. Title 5 U.S.C.A. Sec. 1009(e).

Adequacy of Hearing before Service

Petitioner challenges in several respects the procedure adopted by the Immigration Service at the hearing before its Special Inquiry Officer.

Challenged Notice of Charges

Notice required under the Act is a reasonable notice, under all the circumstances, of the nature of the charges against him. It will be noted that the warrant served upon petitioner on October 18, 1951, specifies that the petitioner entered the country in May of 1940. The formal notice of hearing sent to petitioner some 18 months later reiterates the charge contained in the warrant without specifying an entry date. Petitioner was given over a month to prepare for the hearing after receiving formal notice, and had over 19 months actual notice of the nature of the charge. Certainly as to time, petitioner had reasonable notice. Petitioner's complaint regarding notice as to the nature of the charge deserves more comment. Reading the formal notice alone, it obviously notifies petitioner to stand ready to meet proof of his membership in the Communist Party at any time after his entry into the United States. However, the language of the warrant of arrest apparently indicates that petitioner is to be charged with being a member of the Party at some time subsequent to May, 1940, that being the date of entry specified upon the warrant. In fact, the petitioner originally entered this country in 1924 as an alien seaman and remained continuously within this country, with the exception of intermittent voyages aboard American vessels, until 1939, at which time, pursuant to deportation proceedings, it was determined petitioner should voluntarily leave this country and apply for an Immigration Visa for permanent residence. Petitioner evidently traveled voluntarily to Canada in 1940 and was issued a quota visa at Windsor, Ontario, later in that same year, and thereupon entered this country at Detroit, Michigan, as a lawful permanent resident. At the hearing it developed that the government was relying upon proof of petitioner's membership in the Communist Party during the years 1936 through 1938, during which time he had been residing in this country unlawfully as a result of overstaying his entry in 1924 as an alien seaman. It is thus apparent that petitioner's first entry occurred in 1924, sans visa, followed by a subsequent entry in 1940 via visa. The Board of Immigration Appeals has determined, in a case involving essentially these same facts, that either entry is a sufficient foundation upon which to lay a charge of Communist membership after entry. See In the Matter of C., 4 I. and N. Dec. 596 (1953). This construction of the Act of 1918 as amended appears to be a reasonable and proper interpretation of the statute and will not be disturbed by this Court. Furthermore, this construction is in no way affected by the subsequent enactment of the Immigration and Nationality Act which provides, inter alia, that any alien in the United States (including an alien crewman), shall, upon the order of the Attorney General, be deported who is or at any time has been, after entry, a member of any of the following classes of aliens: Aliens who are members of or affiliated with the Communist Party of the United States. Title 8 U.S.C.A. Sec. 1251(a)(6) (C) (ed. 1953). Therefore, petitioner's first voluntary entry as an alien seaman is an "entry" within the meaning of either Act, and petitioner is subject to deportation under either charge if his Communist Party membership is determined upon reasonable, substantial, and probative evidence. There existing no inherent defect in the charges, the question remains whether or not petitioner was given notice of the nature of the charges upon receipt of the warrant and notice, so as to adequately prepare for the hearing. A warrant for arrest need not have the formality and particularity of an indictment, but must contain sufficient information to enable the alien to offer testimony in refutation of the charge. Podolski v. Baird, D.C.Mich. 1950, 94 F.Supp. 294. In the instant case the specification in the warrant as to petitioner's entry is merely a matter of descriptio personae and does not constitute a portion of the charge proper. This is fully demonstrated by the fact that the formal notice of hearing sent to the petitioner makes no reference to a specific date of entry. As between the warrant and formal notice of hearing, the latter must be deemed controlling. Certainly petitioner was aware of his original entry in the year 1924, a careful reading of the charge as contained in the notice would indicate that petitioner might expect to be charged with membership at any time thereafter, up to and including the date of the hearing. While the Immigration Service might be charged with loose preparation of jurisdictional papers, it cannot be said that petitioner did not receive reasonable notice of the nature of the charges against him.

Challenged Second Charge

Petitioner also alleges that he was not given proper notice as to the second charge, as such charge was filed for the first time at the conclusion of the government's case-in-chief. The second charge was identical to the first charge, the only reason for it being entered being that the second...