Vlisidis v. Holland

• Decision Date: 03 July 1957
• Docket Number: Civ. A. No. 21438,21463.
• Parties: George VLISIDIS, Plaintiff, v. J. W. HOLLAND, District Director, Immigration and Naturalization Service, Defendant. Nicholaos MAVRELOS, Plaintiff, v. J. W. HOLLAND, District Director, Immigration and Naturalization Service, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

150 F. Supp. 678

George VLISIDIS, Plaintiff, v. J. W. HOLLAND, District Director, Immigration and Naturalization Service, Defendant.

Nicholaos MAVRELOS, Plaintiff, v. J. W. HOLLAND, District Director, Immigration and Naturalization Service, Defendant.

Civ. A. Nos. 21438, 21463.

United States District Court E. D. Pennsylvania.

April 18, 1957.

Judgment Affirmed July 3, 1957.

J. J. Kilimnik, Philadelphia, Pa., for plaintiff.

W. Wilson White, U. S. Atty., Louis C. Bechtle, Asst. U. S. Atty., Philadelphia, Pa., Gilbert Zimmerman, Regional Counsel, Southeast Region Immigration & Naturalization Service, Richmond, Va., of counsel, for defendant.

Judgment Affirmed July 3, 1957. See 245 F.2d 812.

LORD, District Judge.

These are like civil actions for declaratory judgments and judicial review. The plaintiffs have been found to be aliens subject to deportation, and have been ordered deported. Those findings were the results of hearings conducted by Special Inquiry Officers of the Immigration and Naturalization Service, whose orders were affirmed by the Board of Immigration Appeals. Plaintiffs have asked this Court to find that the deportation orders are invalid, and to restrain the defendant from taking fur-their steps toward their deportation.

Defendant has moved for a summary judgment of dismissal.

These cases again present the now somewhat familiar situation in which alleged aliens stand mute at deportation proceedings. United States ex rel. Bilokumsky v. Tod, 1923, 263 U.S. 149, 44 S.Ct. 54, 68 L.Ed. 221; United States ex rel. Vajtauer v. Commissioner of Immigration, 1927, 273 U.S. 103, 47 S.Ct. 302, 71 L.Ed. 560; United States ex rel. Zapp v. District Director of Immigration and Naturalization, 2 Cir., 1941, 120 F.2d 762; Quilodran-Brau v. Holland, 3 Cir., 1956, 232 F.2d 183; Ocon v. Guercio, 9 Cir., 1956, 237 F.2d 177; Caetano v. Shaughnessy, D.C.S.D.N.Y.1955, 133 F.Supp. 211; Williams v. Butterfield, D.C.E.D.Mich.1956, 145 F.Supp. 567; Da Costa v. Holland, D.C.E.D.Pa., 151 F.Supp. 746, opinion by Kirkpatrick, Chief Judge.

As may be expected, however, such cases present variations in the nature of the asserted grounds for deportation and in the reasons, if any, given for the silence of those appearing at the hearings on deportation.

In the present cases, the plaintiffs had been called to answer allegations that they were subject to deportation since they had entered the United States as non-immigrants and had thereafter failed to comply with the conditions of that status. In other words, the Immigration Service asserted, and determined after hearing, both plaintiffs to be alien crewmen who had entered the United States on shore leaves and had failed to depart with their ships. On the ground that such asserted conduct could subject them to criminal liability under the statutes of the United States, the plaintiffs refused to answer the questions of the Special Inquiry Officers at their respective hearings. Over objections, the Special Inquiry Officers received in evidence a number of documentary exhibits from the departmental files. Such included material from which the Special Inquiry Officers made the findings upon which the orders of deportation were based.

Both aliens had been interviewed by Immigration Officers at Albany, New York, some time before the hearings which are here challenged. At those Albany interviews they had voluntarily executed sworn question-and-answer statements admitting alienage, the circumstances of their entrances at United States ports as seamen, and their subsequent violations of the conditions of such admissions.

The deportation proceedings here in question had been originally set for hearing at the New York Office of the Service. In response to requests by present counsel for plaintiffs, however, both cases were thereafter transferred to the Philadelphia Office of the Service, and took place in the latter city.

The chief contention of the plaintiffs is that, since the officers who originally interviewed the plaintiffs at Albany were not present at the Philadelphia hearings, there was no identification of the parties or the exhibits at the latter place. Those exhibits, which included landing permits, seamen's papers, and a passport—in addition to the sworn statements heretofore described—were relied upon by the administrative triers of fact in reaching their decisions.

Somewhat significantly, plaintiffs have never denied that they are aliens, nor have they ever asserted that they are lawfully in this country. Their positions, throughout, have simply been that the Government did not prove the cases against them before the Special Inquiry Officers, in that the documents and exhibits were not related to them. Since the officers who conducted the Albany interviews were not produced at the Philadelphia hearings, they complain, they have been denied due process of law.

The matter has long since been settled in the United States Courts to the contrary. It is true that in most of the cases heretofore cited wherein alleged deportable aliens have refused to answer, there has been no claim of Fifth Amendment privilege. In others, such claim has been without substantial basis, e. g. Caetano v. Shaughnessy, D.C.S.D. N.Y.1955, 133 F.Supp. 211, 213. An exception is United States ex rel. Zapp v. District Director of Immigration and Naturalization, 2 Cir., 1941, 120 F.2d 762. There the aliens had maintained silence in administrative deportation proceedings, invoking the Fifth Amendment. Their claim of privilege was indeed warranted, since federal criminal indictments were then pending against them for the crimes of having failed to register as foreign agents and, as to petitioner Zapp, for having filed a false registration statement. Dismissing the peition for a writ of habeas corpus, the Court of Appeals for the Second Circuit, Clark, J., held that at page 764:

"* * * the privilege against self-incrimination may be operative in deportation proceedings, but in that event the alien's silence may be evidence against him. Any limitation upon the right to exclude aliens because of other provisions of municipal or national law would, of course, be a serious impairment of sovereignty and might well produce dangerous results. * * *"

The passage last quoted leads to the final aspects of the present case. Much has been made by plaintiffs of the unfairness, in the face of the Fifth Amendment claims, of the Government's position that inferences may be drawn from the silences of those who refuse to answer on those grounds at deportation proceedings.

For one answer, it is settled that the inference may be drawn generally, and no less in these cases—since it is axiomatic that a deportation proceeding is civil rather than criminal (see Appendix I, infra.) Furthermore, in such cases, the Fifth Amendment privilege has no connection with the basic evidential proposition, as determined in the Zapp case last cited. Elaboration of the evidential rule (as opposed to the due process rule) appears in part II of the Appendix.

In the present cases, the Special Inquiry Officers had before them departmental official records which would have been admissible even in federal judicial proceedings, see Rule 44, Federal Rules Civil Procedure, 28 U.S.C., set out in part III of the Appendix. Such documents included, in the case of plaintiff Vlisidis, even a Greek passport bearing a photograph which the Special Inquiry Officer specifically found to be a good likeness of the person then before him. Insofar as an inference, drawn from the silence of the subject in the particular case, was deemed necessary to support the identifications and findings, such inference was clearly justified. Looking at the matter less legalistically, one may say that if the particular plaintiff felt that he was being misidentified, or unjustifiably connected to the subject of the exhibits, he might well have said so—then or in the present proceedings.

To the contrary, however, the plaintiffs' positions are the essence of technicality. Despite the settled rule that deportation proceedings are not criminal in nature, those parties stand upon a ground which would be dubious, to say the least, even in a criminal prosecution, see United States ex rel. Bilokumsky v. Tod, 1923, 263 U.S. 149, 153-155, 44 S.Ct. 54, 68 L.Ed. 221. It is often held in criminal cases that when facts are peculiarly within the knowledge of the defendant, the burden is on him to present evidence of such facts, whether the proposition is an affirmative or a negative one, e. g. Wharton's Criminal Evidence § 14 (12th ed. 1955) and cases cited in Appendix IV herein, infra.

Plaintiffs' contentions, carried to their inevitable conclusion, would give a criminal alien a distinct advantage over one who, for instance, had innocently overstayed a visitor's leave. That is, it is settled by an unbroken line of authority —including all the cases heretofore cited —that an alien, innocent of criminality as to his presence in the United States, cannot gain an advantage by refusing to answer questions in a deportation proceeding. The petitioners here, however, claim in essence that preferment must be granted to one who, at a deportation proceeding, makes some showing that his answers would in fact incriminate him as to his presence in this country, and then stands upon the barren ground that he will not even identify himself, saying "Try to prove who I really am."

Of course, such an alien cannot be required to give answers which would incriminate him. By asserting that privilege, however, he cannot elevate himself to a status above that of other aliens whose only default, in this aspect, is that they have broken no criminal law of the United States. To the contrary, he must sooner or later show his right to stay in the country, or be required to return whence he came. In this respect he stands in a position no better, but no worse, than that of any other alien.

Much discussion in the...