Title v. Immigration and Naturalization Service, 17850.
| Citation | 322 F.2d 21 |
| Decision Date | 18 November 1963 |
| Docket Number | No. 17850.,17850. |
| Parties | Sam TITLE, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Seymour Mandel, Los Angeles, Cal., for appellant.
Francis C. Whelan, U. S. Atty., Donald A. Fareed, Asst. U. S. Atty., Chief of Civil Section; and James R. Dooley, Asst. U. S. Atty., Los Angeles, Cal., for appellee.
Before BARNES and HAMLIN, Circuit Judges, and FOLEY, District Judge.
Petitioner, Sam Title, has filed a petition for review with this court requesting that the order of the Immigration and Naturalization Service that he be deported be set aside. We have jurisdiction to review the order of deportation under the provisions of section 106(a) of the Immigration and Nationality Act (8 U.S.C. § 1105a(a)).
The ground for revocation in petitioner's case was that at the time of his naturalization he had concealed the fact that "within a period of ten years immediately preceding the filing" of his petition for naturalization he had been a member of an organization which advocated "the overthrow by force or violence of the Government of the United States,"2 the organization to which he had belonged being the Communist Party of the United States. Petitioner appealed the district court's decision to this court, but his appeal was dismissed for want of prosecution.
An affidavit showing good cause had not been filed by the government prior to the institution of the denaturalization proceedings, as required by 8 U.S.C. § 1451(a). The Supreme Court in decisions rendered subsequent to petitioner's denaturalization held that such an affidavit was a prerequisite to the initiation of denaturalization proceedings.3 Petitioner, relying upon these decisions, moved the district court on May 26, 1958, to dismiss the denaturalization judgment as void. The district court denied the motion and we affirmed on the ground that although the failure to file an affidavit may have resulted in an erroneous judgment, the judgment was not void and could not be collaterally attacked.4 We did recognize, however, that had the matter been brought to our attention on direct appeal, we would have reversed the denaturalization judgment.
issued by the Immigration and Naturalization Service charging that petitioner was subject to deportation pursuant to the provisions of section 241(a) of the Immigration and Nationality Act (8 U.S.C. § 1251(a)), which provides in pertinent part as follows:
Under these provisions, as interpreted by the Supreme Court subsequent to petitioner's denaturalization, it is not sufficient to prove merely that an alien has been a member of the Communist Party; it must be shown in addition that the alien was aware of the "distinct and active political" nature of the Party and had a "meaningful association" with the Party.5
At petitioner's deportation hearing, the government introduced into evidence the following documents from petitioner's denaturalization case as establishing, under the doctrine of collateral estoppel, petitioner's membership in the Communist Party and the nature of that membership: Complaint; Opinion; Findings of Fact and Conclusions of Law; Judgment; and Decision of this court, dated June 6, 1959 (263 F.2d 28). The special inquiry officer who presided at the hearing concluded that the doctrine of collateral estoppel applied and that the findings of the district court in the denaturalization proceedings established that petitioner was a "member" of the Communist Party within the meaning of that term as judicially defined for deportation purposes. On the basis of his conclusion that the doctrine of collateral estoppel applied, the special inquiry officer would not allow petitioner to present evidence at the hearing. Petitioner appealed the decision of the special inquiry officer to the Board of Immigration Appeals. On November 28, 1960, the Board ordered petitioner's appeal dismissed.
The issue we shall consider is whether the order of deportation outstanding against petitioner is based upon "reasonable, substantial, and probative evidence,"6 as required by section 242(b) of the Immigration and Nationality Act (8 U.S.C. § 1252(b)). Since the only evidence presented at the deportation hearing was adduced under the doctrine of collateral estoppel, the resolution of this issue depends upon whether that doctrine was properly applied and if properly applied, whether the evidence so adduced meets the standards required for deportation.
We do not feel that the doctrine of collateral estoppel7 should have been applied in this case. Its application had the effect of depriving petitioner of the hearing guaranteed him by section 242 of the Immigration and Nationality Act of 1952 (8 U.S.C. § 1252(b)). Under that statute, "the alien shall have a reasonable opportunity to examine the evidence against him, to present evidence in his own behalf, and to cross-examine witnesses presented by the Government." It is expressly provided in the statute that the "procedure so prescribed shall be the sole and exclusive procedure for determining the deportability of an alien under this section." As a result of his denaturalization in 1955, petitioner became an alien and as such was subject to the deportation laws. To hold, however, that the hearing he received at the time of his denaturalization takes the place of the hearing procedure provided for in section 242 would, we think, clearly thwart the intention of Congress. We recognize that the purpose of the doctrines of res judicata and collateral estoppel is to preclude the relitigation of issues previously determined between the same parties and that the application of the doctrines in many cases will have the practical effect of preventing the party against whom the issue was determined from again presenting evidence on that issue. We merely hold that Congress has evinced its intention that an alien have a right to present evidence at a hearing held for the purpose of determining his deportability.8
Further, we think that the application of the doctrine of collateral estoppel would, apart from the provisions of section 242, be unfair in this case. It has been recognized that the doctrine should not be exercised in such a manner as to work an injustice.9 The Supreme Court has stated the following concerning the procedure to be followed in deportation cases:
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