Matter of McNeil
| Decision Date | 05 November 1965 |
| Docket Number | Interim Decision Number 1523,A-10130570. |
| Citation | 11 I&N Dec. 378 |
| Parties | MATTER OF McNEIL. In Deportation Proceedings. |
| Court | U.S. DOJ Board of Immigration Appeals |
This case is before us pursuant to an order entered by a special inquiry officer on June 25, 1964, directing the respondent's deportation and certifying the case to this Board for final decision.
The respondent is a 60-year-old married male who claims he was born in the United States and is a citizen. The special inquiry officer found that the respondent is an alien who was born in India and concluded that he is deportable on the warrant charge and the first lodged charge. That officer adopted the previous findings which had been made in sustaining the two charges. The findings in our order of February 26, 1960 and in the special inquiry officer's order of August 25, 1959 were to the effect that the respondent entered the United States between October 1937 and December 1938; that he was not then in possession of an immigration visa; and that he had been a member of the Communist Party of the United States at least during the period 1938 to 1945.
The respondent's case was before the court in McNeil v. Kennedy, 298 F.2d 323 (D.C. Cir., 1962). We have considered this record pursuant to that decision and in the light of the decisions in Chung Young Chew v. Boyd, 309 F.2d 857, 866 (9th Cir., 1962), and McConney v. Rogers, 287 F.2d 473 (9th Cir., 1961). In accordance with our discretionary authority under 8 CFR 3.1 (d) (1) and (2), we have concluded that the hearing must be reopened again and the case remanded to the Service inasmuch as it is our opinion that this record does not meet the requirements of the decisions cited.
It appears that the Service and the special inquiry officer endeavored to proceed under the Rules of Civil Procedure for the United States District Courts as set forth in Title 28, United States Code, and we believe this was appropriate under the three decisions cited above. Rule 30 relates to "Depositions Upon Oral Examination" and Rule 31 refers to "Depositions of Witnesses Upon Written Interrogatories." The special inquiry officer's order of February 19, 1963 authorized the taking of depositions of Messrs. Vyse and Ayre or, if not available, the persons having custody of the two records involved (Exs. R-27 and R-28). Counsel contends that it was error to permit the Service to examine the two witnesses on oral depositions and then restrict the respondent to cross-interrogatories particularly since one of the witnesses was examined on cross-interrogatories in Frankfurt am Main, Germany, and stated he could not answer certain questions because he no longer had access to the records which were in India. Under the circumstances of this case, we believe that the present custodians of the two records should be required to make new depositions upon written interrogatories by both sides in accordance with Rule 31.
Rule 28(b) [as amended January 21, 1963, effective July 1, 1963] specifies the persons before whom depositions may be taken in foreign countries, and Rule 28 (c) provides, in part, that no deposition shall be taken before a person who is an employee of any of the parties. Counsel contends that one of the parties to the deportation proceeding is the United States and that the American Consular Officers, before whom the depositions and cross-interrogatories were made, are employees of the United States. The special inquiry officer and the Service did not indicate that counsel had waived this objection under Rule 32(b). We are not persuaded by the statements of the Service and the special inquiry officer that it is the Immigration and Naturalization Service rather than the United States which is a party to the deportation proceeding. However, we need not reach a definite conclusion concerning this question since we have indicated that new depositions should be taken. The present record also appears to be inadequate since it does not specifically show that counsel was notified in writing as to the time and place for taking the deposition although counsel's "Notice" dated March 22, 1963 does mention a letter dated March 19, 1963 which he had received from the District Director. However, this letter is not part of the record before us.
In our order of February 26, 1960 (p. 6), we referred to counsel's request for reopening of the proceeding to permit the respondent to testify on the issue of citizenship. We stated that the respondent had been repeatedly requested to testify on this issue and, for reasons stated in that order, we concluded that the hearing should not be reopened. Following the decision in McNeil v. Kennedy, supra, we reopened the hearing by order dated April 12, 1962 and we specifically stated: "The Service and the respondent may present any pertinent evidence." On July 17, 1962 the special inquiry officer asked the respondent to be sworn and his counsel stated that he refused to testify against himself (p. R-47). On August 9, 1962 counsel requested that the hearing be reopened to permit the respondent to testify as to his birth. During the oral argument on October 22, 1962 (p. 7), counsel stated that the respondent had been willing to testify as to his place of birth before the special inquiry officer but that the special inquiry officer said that if he testified he would also have to testify concerning his Communist Party activity. The record shows that counsel was in error in this statement.
Since we have found it necessary to reopen the hearing, we believe that the respondent should be given the opportunity, which he allegedly desires, of testifying concerning the issue of citizenship. It is our opinion that the respondent's testimony, cross-examination by the trial attorney, and the opportunity for the special inquiry officer to consider the demeanor of the respondent while testifying will be helpful in resolving the issue of alienage. In order to avoid any future contention that the respondent again refused to testify because the Government insisted upon the right to examine him relative to asserted Communist Party membership in the event that he testified, we believe it would be appropriate for the trial attorney to stipulate that the respondent will not be questioned on that issue unless the respondent himself desires to testify concerning it. This is not to be construed as precluding the Service or the respondent from presenting other evidence on the issue of deportability on the first lodged charge, particularly in view of the decision in Gastelum-Quinones v. Kennedy, 374 U.S. 469 (1963).
Pursuant to 8 CFR 242.17(a), a respondent in deportation proceedings is to be afforded the opportunity of applying under sections 244(a), 245 or 249 of the Immigration and Nationality Act, and it is specifically provided: "The special inquiry officer shall inform the respondent of his apparent eligibility to apply for any of the benefits * * *." In his decision of June 25, 1964 (p. 9), the special inquiry officer stated that the respondent had refused to apply for any discretionary relief citing the transcript at page R-42. This relates to a hearing on April 20, 1959 and at that time the respondent declined to apply for voluntary departure or suspension of deportation. In view of the time which has since elapsed, we believe it should be ascertained whether the respondent may now desire to apply for discretionary relief. In addition, we have been unable to find in the record that the special inquiry officer actually informed the respondent that he was apparently eligible to apply for any of these benefits, and it would seem that he would at least be eligible to apply under section 244(a).
ORDER: It is ordered that the special inquiry officer's order of June 25, 1964 be withdrawn and that the hearing be reopened for further proceedings in accordance with the foregoing.
On June 25, 1964, a special inquiry officer ordered the respondent's deportation and certified the case to this Board. We directed that the hearing be reopened in our order of November 3, 1964, and the case is now before us on motion of the Service dated December 3, 1964, seeking reconsideration of that order.
The respondent is a 61-year-old married male who claims he was born in the United States and is a citizen. In earlier proceedings in this case, it was found that the respondent was born in India; that he entered the United States between October 1937 and December 1938; that he was not then in possession of an immigration visa; and that he had been a member of the Communist Party of the United States during the period 1938 to 1945.
The Service asserted in its motion (p. 17) that we remanded the case for inquiry in the light of Gastelum-Quinones v. Kennedy, 374 U.S. 469 (1963); tha...
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