Sherman v. Hamilton, 5841.

• Decision Date: 30 October 1961
• Docket Number: No. 5841.,5841.
• Parties: Joseph SHERMAN, Respondent, Appellant, v. James A. HAMILTON, Jr., District Director, Immigration and Naturalization Service, Petitioner, Appellee.
• Court: U.S. Court of Appeals — First Circuit

295 F.2d 516 (1961)

Joseph SHERMAN, Respondent, Appellant, v. James A. HAMILTON, Jr., District Director, Immigration and Naturalization Service, Petitioner, Appellee.

No. 5841.

United States Court of Appeals First Circuit.

Heard October 6, 1961.

Decided October 30, 1961.

Allan R. Rosenberg, Boston, Mass., for appellant.

James C. Heigham, Asst. U. S. Atty., Boston, Mass., with whom W. Arthur Garrity, Jr., U. S. Atty., Boston, Mass., was on the brief, for appellee.

Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.

HARTIGAN, Circuit Judge.

This is an appeal from an order of the United States District Court for the District of Massachusetts entered May 12, 1961 upon application of appellee for the enforcement of an administrative subpoena under the provisions of § 235(a) of the Immigration and Nationality Act of 1952, 66 Stat. 163, 198, 8 U.S.C.A. § 1225(a).

Section 235(a) provides in its pertinent part that any immigration officer "shall have power to require by subpena the attendance and testimony of witnesses before immigration officers * * * relating to the privilege of any person to enter, reenter, reside in, or pass through the United States or concerning any matter which is material and relevant to the enforcement of this chapter and the administration of the Service, and to that end may invoke the aid of any court of the United States."

This case presents the question of whether § 235(a) empowers an immigration officer to subpoena as a "witness" an alien who is himself the subject of the investigatory proceedings and where the investigation is concededly an initiatory step to possible deportation proceedings against said alien.

On April 11, 1961 the District Director of the Immigration and Naturalization Service, Boston, Massachusetts, caused a subpoena to be served upon appellant — an alien residing in the United States — directing him to appear before an investigator of the Immigration Service on April 18, 1961. The subpoena recited that the appellant was required to attend the hearing "to give testimony in connection with deportation proceeding being conducted under authority of the Immigration and Nationality Act relating to Joseph Sherman (appellant herein) concerning his privilege of entering, reentering, residing in or passing through the United States."

Appellant appeared in response to the subpoena and after answering certain preliminary questions relating to such matters as the date and place of his birth, the date of his initial entry into the United States in 1920 and the fact that neither he nor his parents had ever become American citizens, thereafter refused to answer substantially all of the questions put to him by the investigator. In the main these questions sought to determine whether the appellant, acting under an assumed name, had left the United States in 1937, traveled to Spain, and, while still utilizing this artifice, had, thereafter, returned to the United States in 1938. When the investigator initially sought to question him on this matter, appellant stated that: "I decline to answer on advice of counsel." Upon being asked by the investigator to indicate the specific ground upon which he based his refusal, he answered: "On all grounds that are available to me." The investigator, still attempting to crystallize the specific basis for appellant's refusal further queried: "By that do you mean that you decline also on the grounds of the Fifth Amendment?" Appellant replied: "Not necessarily. On all the grounds that are available to me." He maintained this position throughout the remainder of the questioning by use of the phrase "Same answer."

On April 24, 1961 the appellee acting under § 235(a) filed in the district court an application to enforce the administrative subpoena. This application sought an order directing appellant to appear and testify before the investigator on May 16, 1961. On April 24, 1961 the district court allowed an order returnable May 1, 1961 directing appellant to appear and show cause why he should not be required to answer the questions put to him on April 18, 1961. Following this hearing the district court issued an order directing appellant to appear before the investigator "to answer the questions put to him on April 18, 1961 and to answer such other and further questions as may be material to the subject matter of the investigation being conducted." Appellant has appealed from this order.

In this court, as below, the appellant's principal contention is based on the premise that under § 235(a) the district court was without authority to order him to appear and testify as a "witness" in an ex parte deportation investigation when he is the person at whom this proceeding is directed. He does not challenge the constitutionality of Congress' delegation of authority to the Service to issue administrative subpoenas of the type involved here. Rather, it is his position that in seeking to invoke the power to subpoena "witnesses" against an actual party in interest, the power thus sought to be exercised exceeds the statutory grant and it is in this that the mischief lies. In short, he argues that only an impermissive reading of the term witness in § 235(a) would permit its scope to embrace the party whose conduct has generated the subpoena.

Appellant bottoms his argument for a restrictive reading of the term witness in § 235(a) on the decision in United States v. Minker, 1956, 350 U.S. 179, 76 S.Ct. 281, 100 L.Ed. 185. We feel that appellant's reliance on Minker is wholly misplaced.

In Minker the Supreme Court considered the provisions of § 235(a) in the context of whether this section authorized an immigration officer to subpoena — as a witness — a naturalized citizen who was the subject of an investigation by the Service incident to a possible prospective denaturalization proceeding under § 340(a) of the Act, 8 U.S.C.A. § 1450(a).

At the outset the Court conceded that the term "witness" as used in § 235(a) was patently ambiguous and that surely as a matter of pure "English usage" it might fairly be said to embrace any individual — including a party — who gives testimony in a proceeding. However, the Court went on to point out that a more precise assessment of the scope of this "Janus-faced word" could only be supplied by the circumstantial and statutory complex of its context from which it would derive its specific meaning and sustenance. Accordingly, after considering the entire Act the Court held that it could not say that Congress had provided with "sufficient clarity that the subpoena power granted by § 235(a) extends over persons who are the subject of denaturalization investigations." Id., 350 U.S. 190, 76 S.Ct. 288. And, in the absence of express language to this effect, the Court was unwilling to imply this authority where the rights of a citizen were involved.

However, nothing in Minker invalidated the basic Congressional grant of authority to the Immigration Service to issue administrative subpoenas in cases involving admitted aliens in deportation proceedings. Indeed, the clear thrust of the opinion unmistakably shows that there the restricted reading of the term witness was grounded narrowly on the conspicuous deference accorded the rights of citizens wherever ambiguity presents freedom of choice between competing alternatives. "In such a situation where there is doubt it must be resolved in the citizen's favor. Especially must we be sensitive to the citizen's rights where the proceeding is nonjudicial * * *." Id., 350 U.S. 188, 76 S.Ct. 287.

However, in assaying the correct interpretation to be attributed the term witness in the context of a deportation proceeding involving an admitted alien the foregoing considerations of policy which the Court felt gave "coherence to law and are fairly to be assumed as congressional presuppositions" are distinctly absent here. Moreover, the Supreme Court has frequently recognized the significant distinctions to be drawn between the amplitude of Congress' constitutional power to bar and exclude aliens and that more circumscribed area of activity where the Government seeks to deprive a citizen of his citizenship. Compare, United States v. Ju Toy, 1905, 198 U.S. 253, 25 S.Ct. 644, 49 L.Ed. 1040; Harisiades v. Shaughnessy, 1952, 342 U.S. 580, 72 S.Ct. 512, 96 L.Ed. 586; Shaughnessy v. United States ex rel. Mezei, 1953, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956, with Ng Fung Ho v. White, 1922, 259 U.S. 276, 42 S.Ct. 492, 66 L.Ed. 938; Baumgartner v. United States, 1944, 322 U.S. 665, 64 S.Ct. 1240, 88 L.Ed. 1525; Gonzales v. Landon, 1955, 350 U.S. 920, 76 S.Ct. 210, 100 L.Ed. 806. Consequently, we agree with the district court that the Minker case cannot be read as in any wise restricting the power of a district director in a deportation proceeding as contrasted with a denaturalization hearing.

Finding no inhibiting language in Minker, it thus remains to determine whether we can say that Congress has provided with sufficient clarity that — as a "witness" — an alien is subject to administrative subpoena under § 235(a) in an investigatory proceeding concerning his privilege to remain in the United States. Adopting the approach of the Supreme Court that the term "witness" is itself a wholly neutral one whose content can best be derived from its environment and previous history, we find that there are a number of factors which impel us to answer this question in the affirmative.

At the outset it is clear that unlike the denaturalization proceeding involved in Minker where a judicial trial is necessary, exclusion and deportation proceedings involving aliens are primarily and essentially administrative in nature.

Accordingly, in two companion sections of the Act — not specifically dealing with subpoenas — Congress has expressly authorized immigration officers to require aliens to testify in administrative hearings as to their right to remain in this country. Thus § 236(a), 8...