Hyun v. Landon, No. 14058.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: STEPHENS and CHAMBERS, Circuit , and CLARK
• Citation: 219 F.2d 404
• Parties: David HYUN, Appellant, v. Herman R. LANDON, District Director, Immigration and Naturalization Service, Appellee.
• Docket Number: No. 14058.
• Decision Date: 07 April 1955

219 F.2d 404 (1955)

David HYUN, Appellant,
v.
Herman R. LANDON, District Director, Immigration and Naturalization Service, Appellee.

No. 14058.

United States Court of Appeals, Ninth Circuit.

January 31, 1955.

Rehearing Denied April 7, 1955.

219 F.2d 405

Margolis, McTernan & Branton, Herbert W. Simmons, Jr., John W. Porter, William B. Murrish, A. L. Wirin, Attorney, American Civil Liberties Union, Los Angeles, Cal., for appellant.

Laughlin E. Waters, U. S. Attorney, Clyde C. Downing, Arline Martin, Robert K. Grean, Manley J. Bowler, Max F. Deutz, Asst. U. S. Attorneys, Los Angeles, Cal., for appellee.

Before STEPHENS and CHAMBERS, Circuit Judges, and CLARK, District Judge.

STEPHENS, Circuit Judge.

David Hyun appeals from a judgment of the United States District Court, denying and dismissing his petition for the writ of habeas corpus in which appellant sought release from the custody of appellee who was holding him under a final order of deportation. Appellee Landon is the District Director of the Immigration and Naturalization Service.

Appellant is a native of Korea and asserts citizenship of China. He was admitted to the United States at Honolulu, Territory of Hawaii, on May 26, 1924, at which time he was seven years old. He was admitted to the continental United States at Los Angeles, California, on September 1, 1947. A warrant for his arrest in deportation proceedings was issued and served on him on October 21, 1950, in which appellant was charged as an alien who, after entry, had been a member of the Communist Party of the United States.¹ Pursuant to the warrant, Hyun was taken into custody pending determination of his deportability.

Hearings were started on November 22, 1950, at which time the hearing officer granted a motion by the examining officer to take the depositions of four witnesses in Honolulu. Timely notice was given and appellant's counsel was informed that appellant could be present, could submit written interrogatories and could present witnesses, or could be represented by counsel. Accordingly, depositions were taken in Honolulu on December 18, 1950, but appellant was not present or represented. Nor did he submit direct interrogatories.

219 F.2d 406

On March 28 and 29, 1951, the deportation hearing was resumed, at which time appellant's counsel made specific objections to certain questions and answers contained in the Honolulu depositions. At this time appellant disclaimed any desire to present cross interrogatories to the Honolulu witnesses or to present witnesses of his own. Appellant testified but refused to answer any question concerning Communist Party membership on the grounds that it might tend to incriminate him and that it violated his rights under the first amendment to the Constitution of the United States. On April 19, 1951, appellant once again stated that he would not submit cross interrogatories to the Honolulu witnesses. The hearing officer, relying only on the depositions of Uesugi and Izuka, found the appellant deportable. The finding of the hearing officer was adopted by the Assistant Commissioner and appellant was ordered deported. Subsequently, the Board of Immigration Appeals dismissed appellant's appeal and the action from which the instant appeal is taken was filed on July 24, 1953.

The Taking of the Depositions in Hawaii

It is contended by appellant that the action of the Immigration Service in taking the depositions of Uesugi and Izuka in Honolulu, while he was in custody in California, deprived him of the essential ingredients of due process of law. The argument is that not only was Hyun in the custody of appellee at the time the depositions were taken but that he was financially unable to transport his counsel to Honolulu or procure Honolulu counsel to represent him at the depositions. In view of the comparative financial resources of Hyun and the government of the United States, and in further consideration of the plethora of government transportation between Hawaii and the west coast, it is appellant's contention that the government should have transported the witnesses to the west coast for the depositions, or in the alternative provided transportation to Hawaii for Hyun and his attorney. Failure to do either, it is alleged, deprived appellant of essential ingredients of due process of law.²

An alien in deportation proceedings must be afforded due process of law, including a fair hearing, Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616, and indispensable to a fair hearing are reasonable notice, the right to examine witnesses and to testify and to present witnesses and to be represented by counsel, all of which appellant had. This court has repeatedly held that financial inability of an alien to insure attendance of himself or his attorney, or both, at the place where depositions are being taken is not a denial of due process. As was stated in Bhagat Singh v. McGrath, 9 Cir., 1939, 104 F.2d 122, 123:

"Deportation proceedings are civil in nature and the alien need not be confronted by the witnesses; evidence may be obtained by deposition. * * * We have heretofore decided that the fact that an alien is financially unable to travel to a place where he could cross-examine the witnesses, or send an attorney there, is not a denial of the right of cross-examination."

See also Channan Singh v. Haff, 9 Cir., 1939, 103 F.2d 303; and Kishan Singh v. District Director of Immigration, 9 Cir., 1936, 83 F.2d 95. See, too, Berkman v. Tillinghast, 1 Cir., 1932, 58 F.2d 621, 622; Hale v. Henkel, 1906, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652.

Cases cited by appellant to sustain the view that the government erred in not insuring the presence of Hyun at the taking of the depositions, are not applicable to the instant case:

219 F.2d 407

Maltez v. Nagle, 9 Cir., 1928, 27 F.2d 835 — The hearing officer refused to produce for examination persons whose statements were ex parte;

Caranica v. Nagle, 9 Cir., 1928, 23 F.2d 545 — It was held that the hearing was not unfair where cross-examination was not allowed as to a witness whose testimony had been received but whose testimony was not considered as to the decision;

In re Sugano, D.C.Cal.1930, 40 F. 2d 961 — The hearing was held unfair where proper cross-examination had been denied.

Failure to assert one's rights merely because to do so would necessitate some inconvenience can only be construed as a waiver of the right. Kishan Singh v. District Director of Immigration, 9 Cir., 1936, 83 F.2d 95.

Rulings of the Hearing Officer

When the depositions of the Honolulu witnesses were offered in evidence at the Los Angeles hearings of March 28 and 29, 1951, appellant objected to certain of the questions or answers which he felt were improper under established rules of evidence. The hearing officer seriatim overruled...