Yiannopoulos v. Robinson, No. 11816.

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Writing for the Court: DUFFY, , LINDLEY, Circuit , and BRIGGLE
• Citation: 247 F.2d 655
• Parties: Andrew Peter YIANNOPOULOS, Plaintiff-Appellee, v. Robert H. ROBINSON, District Director of Immigration, U. S. Immigration and Naturalization Service, Defendant-Appellant.
• Docket Number: No. 11816.
• Decision Date: 23 August 1957

247 F.2d 655 (1957)

Andrew Peter YIANNOPOULOS, Plaintiff-Appellee,
v.
Robert H. ROBINSON, District Director of Immigration, U. S. Immigration and Naturalization Service, Defendant-Appellant.

No. 11816.

United States Court of Appeals Seventh Circuit.

August 23, 1957.

Robert Tieken, U. S. Atty., and John Peter Lulinski, Asst. U. S. Atty., Chicago, Ill., Edwin A. Strugala, Chicago, Ill., Asst. U. S. Attys., of counsel, for appellant.

Pearl M. Hart and Edmund Hatfield, Chicago, Ill., for appellee.

Before DUFFY, Chief Judge, LINDLEY, Circuit Judge, and BRIGGLE, District Judge.

LINDLEY, Circuit Judge.

Defendant appeals from a judgment of the district court setting aside deportation proceedings against plaintiff. On

247 F.2d 656

February 17, 1954, a warrant for plaintiff's arrest was issued by defendant, District Director of the United States Immigration and Naturalization Service, in which plaintiff was charged with having become a member of the Communist Party subsequent to his entry into the United States, in violation of Section 241(a) of the Immigration and Nationality Act of 1952. 8 U.S.C.A. § 1251(a) (6) (C) (i). Plaintiff, a resident alien, is a native of Greece, who, having last entered the United States in 1913, has since resided here continuously

At the deportation hearings before a Special Inquiry Officer, two paid informers testified as to plaintiff's membership in the Communist Party. Upon the advice of counsel, plaintiff refused to be sworn, or to answer any questions and relied on the testimony of several character witnesses. The Inquiry Officer concluded that plaintiff had been "a member of the Communist Party of the United States from about November or December 1929 to at least the end of 1933.", and ordered that he be deported. The Board of Immigration Appeals dismissed plaintiff's appeal.

On August 8, 1955, plaintiff filed his complaint in the district court, asserting that the order of deportation was invalid, and urging inter alia that it was not based upon reasonable, substantial and probative evidence, as required by the Immigration and Nationality Act, 8 U.S.C.A. § 1252(b) (4), and that he had been denied a fair hearing guaranteed by the Due Process Clause of the Fifth Amendment. The district court specifically found that the hearing was unfair and did not conform to due process, "such unfairness being particularly shown in the manner in which the hearing officer sustained the Government's objections to evidence proffered by plaintiff and overruled plaintiff's objections to incompetent and immaterial testimony of the Government's witnesses." In addition, the court held that the order was not supported by reasonable, substantial and probative evidence.

At the outset, it should be observed that there is no doubt that the procedure invoked by plaintiff in seeking review of this deportation order under § 10(e) of the Administrative Procedure Act, 5 U.S. C.A. § 1009(e) was proper. Shaughnessy v. Pedreiro, 349 U.S. 48, 75 S.Ct. 591, 99 L.Ed. 868; Rubinstein v. Brownell, 92 U.S.App.D.C. 328, 206 F.2d 449, affirmed 346 U.S. 929, 74 S.Ct. 319, 98 L. Ed. 421; Marcello v. Ahrens, 5 Cir., 212 F.2d 830, affirmed 349 U.S. 302, 75 S.Ct. 757, 99 L.Ed. 1107.

In considering the issues presented, we are mindful of the admonition to abstain from emotional reaction presented by the severity of the situation, for, as emphasized by Mr. Justice Jackson, in Harisiades v. Shaughnessy, 342 U.S. 580, 587-588, 72 S.Ct. 512, 518, 96 L.Ed. 586: "That aliens remain vulnerable to expulsion after long residence is a practice that bristles with severities. But it is a weapon of defense and reprisal confirmed by international law as a power inherent in every sovereign state * * *." On the other hand we take cognizance of the extreme caution and care necessary in treating this delicate and serious situation. As stated in Bridges v. Wixon, 326 U.S. 135, 154, 65 S.Ct. 1443, 1452, 89 L.Ed. 2103: "Here the liberty of an individual is at stake * * *. We are dealing here with procedural requirements prescribed for the protection of the alien. Though deportation is not technically a criminal proceeding, it visits a great hardship on the individual and deprives him of the right to stay and live and work in this land of freedom. That deportation is a penalty — at times a most serious one — cannot be doubted. Meticulous care must be exercised lest the procedure by which he is deprived of that liberty not meet the essential standards of fairness." See also, Bilokumsky v. Tod, 263 U.S. 149, 156, 44 S.Ct. 54, 68 L.Ed. 221.

It is clear that, in a deportation proceeding, a resident alien is entitled to the guarantees of a fair hearing before a tribunal which meets currently prevailing standards of impartiality. Kwong Hai Chew v. Colding, 344 U.S. 590, 73 S.Ct. 472, 97 L.Ed. 576; Wong Yang Sung v. McGrath, 339 U.S. 33,

247 F.2d 657

70 S.Ct. 445, 94 L.Ed. 616. Among the guarantees without which there would be an absence of procedural due process are reasonable notice, the right to examine witnesses, to testify, to present witnesses, and to be represented by counsel. Hyun v. Landon, 9 Cir., 219 F. 2d 404;...