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September 18, 1952

SHAUGHNESSY, District Director of Immigration & Naturalization Service

The opinion of the court was delivered by: KAUFMAN

This habeas corpus proceeding was instituted by Rowland Watts, who describes himself as a friend of relator and a representative of the Workers Defense League, which is said to be assisting aliens who would be subjected to physical persecution if deported to countries governed by totalitarian regimes.

Upon the argument of this application, the Court was advised by relator's counsel that no contention is being raised concerning relator's deportability or the fairness of the hearing he received pursuant to that portion of 8 U.S.C.A. 156(a), as amended by the Internal Security Act of 1950, which provides:

 'No alien shall be deported under any provisions of this chapter to any country in which the Attorney General shall find that such alien would be subjected to physical persecution.'

 What is at issue here is whether a so-called finding by the Commissioner of Immigration and Naturalization concerning relator's persecution if deported to Spain was arbitrary, capricious and so unfounded in the evidence adduced at the hearing as to constitute a denial of due process of law.

 For the past few years relator has been plying his trade as a seaman. He has entered the United States on several occasions at least two of which ended in his exclusion and deportation from this country. The last occasion which brought about the deportation proceedings on which the instant order to deport is based resulted from his entry into the country on or about February 11, 1952 at Blaine, Washington, without an inspection, passport or visa, as required by law.

 Following his apprehension by the Immigration and Naturalization Service, relator was taken into custody pursuant to an immigration warrant duly issued on February 18, 1952. On February 20, 1952, he was given an administrative hearing to show cause why he should not be deported. The presiding officer at the hearing decided that relator be deported to which relator did not except although he was given the opportunity.

 Thereafter the countries of relator's choice declined to accept him as a deportee as a result of which this Government completed plans for his deportation to Spain on May 1, 1952. Thereupon relator contended he would be subjected to physical persecution if deported to Spain and, following cancellation of deportation arrangements, a hearing was accorded him on May 29, 1952 at which he testified under oath before an officer of the Immigration and Naturalization Service and was represented by an attorney of his own choice. The record of relator's claim, together with the report of the Immigration Officer, was forwarded to the Commissioner of Immigration and Naturalization and on July 10, 1952, the Commissioner, as the Attorney General's representative, made an order stating

 ' * * * after review of the facts in this case, I do not find that if this alien is deported to Spain, he would be subjected to physical persecution.'

 The Government does not assert in its Return to the petition that the alien is not entitled to the protection of the Fifth Amendment of the Constitution. Instead, the contention is made that the hearing and the evaluation of the testimony were fair in all respects and that courts may not substitute their judicial opinions for those vested exclusively in the executive by statute.

 The Fifth Amendment provides without qualification that no person shall 'be deprived of life, liberty, or property, without due process of law'. Judge Charles E. Clark, in discussing this provision in United States ex rel. Mezei v. Shaughnessy, 2 Cir., 1952, 195 F.2d 964, at page 967, stated:

 'It is not confined to the protection of citizens; and its provisions, by definition, 'are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality.' Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S. Ct. 1064, 1070, 30 L. Ed. 220. They extend in fact to all whose presence here brings them within reach of the judicial and administrative processes of the United States Government. United States v. Pink, 315 U.S. 203, 228, 62 S. Ct. 552, 86 L. Ed. 796.'

 An alien who avails himself of a provision of law concerning a matter so vital that his very life and liberty may depend upon its just application is entitled to the thorough and surrounding protection of the Fifth Amendment. Any whittling away of this safeguard would enable the executive officer to treat cavalierly the provision under consideration, yet nowhere do I find, nor has the Government cited, any indication that the intention of Congress was to reduce the effectiveness of the Fifth Amendment in this area. The provision in question is, by strong analogy, consonant with our historic tradition of affording asylum to the persecuted, a tradition which reaches back beyond the birth of the Fifth Amendment itself.

 The language of the provision under consideration does not expressly confer discretion on the Attorney General but in other parts of this subsection, the Attorney General is authorized to perform certain acts 'in the discretion of the Attorney General.' It would seem clear, therefore, that Congress was precise in its allocation of discretionary powers. It is also clear that a precondition of deportation cases such as this is a finding that there will not be persecution of the alien. This is a finding of fact and must be based on investigation which, in its method and in the formulation of the conclusion to which that investigation leads, must be fair and not arbitrary, reasoned and not capricious. The demands of the Fifth Amendment cannot be satisfied with less.

 I have read with utmost care the testimony of the relator given at the hearing held before an investigator of the Immigration and Naturalization Service. Such a close reading is necessary in order to determine whether there has been an arbitrary evaluation and whether relator's claim that he would be subjected to physical persecution if deported to Spain is valid. Counsel for relator was a representative of the International Rescue Committee, an organization which had interested itself in the alien. The hearing established without contradiction that the International Refugee Organization had certified relator to be a refugee from Spain, and that the Legal Office of the Provisional Intergovernmental Committee for the Movement of Migrants from Europe, had determined him to be within the mandate eligible for Discretionary Resettlement Assistance as a Spanish Republican refugee. The Republic of France had certified to the International Rescue Committee that the alien was a Spanish refugee who had been residing in France for many years. I am setting forth in Appendix I of this Opinion those portions of the uncontradicted testimony before the hearing officer which convince me that the ultimate finding in this case could not have been based upon the facts elicited at the hearing. Surely the hearing was not afforded as an empty gesture. It was held, we must assume, for the purpose of eliciting all relevant evidence for ultimate, mature consideration.

 The testimonial summary of the investigator who heard the matter, was before the Commissioner when his Order of July 10 was made and states:

 'The alien offers no evidence of a nature that he would be persecuted if returned to Spain.'

 In another portion of his summary, he says:

 'There is no concrete evidence to substantiate his claim that he would be persecuted if returned to Spain.'

 These statements are made in the face of uncontradicted testimony by the alien that he has been a member of the Basque National Party in Spain and the Young Basque Group; that the Basque people want to gain their independence from Franco and have been against the regime at all times; that while living in France, the French Government certified that he was a Spanish refugee in exile and that he was registered with the International Refugee Organization and received a document certifying that he was a refugee from Spain. While in France, he attended Loyalist meetings, the Loyalists being an anti-Franco organization. He also attended meetings of the Basque National Party which is purportedly a democratic anti-Franco organization. He was engaged in spreading underground propaganda and literature against the Franco regime. If found deportable he wants to go to any country except Spain. He stated further that he has never been interested in Communism and has never belonged to any Communist Party or any of its affiliates nor have any of his relatives, although they are all anti-Franco. Between 1946 and 1948 he was distributing anti-Franco literature in Spain. This is significant in the light of the fact that the Government makes much of his membership in the Young Franco movement between 1940 and 1948, which the alien testified he was compelled to join in Spain in order to obtain the right to employment. The record would seem to indicate that while he was in this organization he was still active in distributing anti-Franco literature and in fact was imprisoned for 2 months in 1947 for this activity. He was in a 'concentration camp' (actually, a collection camp apparently like Ellis Island) in Genoa where he participated in a hunger strike for 8 days because the Italian officials refused to release him unless he would agree to return to Spain, which he refused to do. This incident is known to the Spanish government. His father is also a member of these organizations opposed to the Franco regime,.and one of his uncles was a captain who fought against Franco in the Basque regiment in the Spanish Civil War. In France, he declared himself against Franco openly. He was sent out of Spain to France at the age of 10 with thousands of Spanish Basque children, because the Spanish Nationalist Government sought to prevent their falling into the hands of the Franco Government. He returned to Spain at the age of 19 in order to carry out propaganda for the Basque party, and it was during this period that he was imprisoned. He also testified that his father, who was a follower of the Basque party, was persecuted by the Franco regime and imprisoned for a period of 5 years.

 In the face of this rather brief summary of the testimony, it is inconceivable that the investigator, summarizing the evidence for the Commissioner, would state that the alien offered 'no evidence of a nature that he would be persecuted if returned to Spain.' Instead, the investigator seems to have based his recommendations upon the following: 'The only indication that the alien was ever considered to be a political enemy of the Franco regime was when he was incarcerated for two months in 1947 in that he was suspected of being a Loyalist. Apparently, the alien has overcome this condition, in that he became a member of the Franco Youth Group when it served his convenience, from 1946 to 1948.' The alien gave a most reasonable explanation of his membership in the Franco Youth Group. In short, it amounted to this: He had to have food and sustenance and in order to have that he had to work. In order to work he had to have a work card which he could only obtain as a member of the Franco Youth Group. The 'convenience' the investigator suggests might more accurately have been called 'hunger'. It is interesting to note that the hearing officer completely lost sight of the fact that the alien was arrested and imprisoned for being suspected of being a political enemy of the regime in power in 1947 (after he had joined the Youth Movement). The hearing officer also stated in his summary to the Commissioner:

 'As late as January, 1952, the alien sought the aid of his Government and received a passport from the Spanish Consulate at San Francisco, California so that he would be in a position to secure employment as a seaman. The alien seems to have little difficulty in falling into the good graces of his Government when it suits his convenience.'

 The hearing officer concludes that receiving a passport from the Spanish Government is synonymous with and final evidence of being in the good graces of the Spanish Government. The passport was applied for as the alien explained in order that he might follow his employment as a seaman, and he was unemployable without some official recognition of his nationality.

 It is upon testimony such as this and the summary of the hearing officer that the Commissioner made his Order of July 10, 1952, stating that he did not find that the alien if deported to Spain, would be subjected to physical persecution.

 It should be noted that danger lurks in the practice of submitting a 'summary' to the Commissioner. It permits of the temptation not to read the entire record of the testimony submitted and to rely instead on the 2 1/4 pages of summary instead of the 14 pages of testimony. One wonders also how 2 1/4 pages can adequately summarize 14 pages of testimony without omitting important portions. Summarization leads to omissions which in this case were vital ones. Suffice it to say, the hearing officer's statement that the

 'alien offers no evidence of a nature that he would be persecuted if returned to Spain'

 and his recommendation to the Attorney General that he make a finding that the alien was not subjected to physical persecution if deported to Spain, is so contrary to a fair evaluation of the testimony at the hearing, which I have read with extreme care, as to indicate an arbitrary and capricious appraisal of the testimony by the hearing officer himself and ultimately by the Commissioner in behalf of the Attorney General.

 In the case at bar, the evidence supporting the alien's claim is not only his own testimony but, in addition, uncontradicted documentary evidence of the United States Office, Provisional Intergovernmental Committee for the Movement of Migrants from Europe, certifying that he had been determined by the International Refugee Organization to be a Spanish Republican refugee, as well as the certificate of the French Government (the alien had resided in France as a refugee for many years) issued at the request of the International Rescue Committee, certifying that the alien was a Spanish refugee. The probative value of this evidence is strong and convincing. The evaluation placed upon it by the hearing officer and ultimately by the Commissioner, in behalf of the Attorney General, to whom the officer reported, was so contrary to the proven facts and to a fair evaluation of the evidence as to amount to a deprivation of due process of law.

 The so-called finding of the Commissioner which ultimately determined the question was contained in an 'Order' and it does not indicate what, if anything, was considered by him in making his ultimate finding. Findings call for a basis or reason for conclusions reached, which do not exist here. Indeed, the form of his statement would suggest that not even a genuine finding was made.

 Judge Kimock of this Court pointed out in United States of America ex rel. Chen Ping Zee v. Shaughnessy, D.C., 107 F.Supp. 607.

 'In the present state of affairs in the world, it does not seem to me that a person's testimony that he would be subject to persecution in a Communist country can be dismissed so lightly and there is no indication or reason stated in the files or return that would tend to show that these relators would not be subject to persecution.'

 The same cautious attitude applies with equal force to this case.

 The writ is sustained upon appropriate conditions to be incorporated in the order which is directed to be settled hereon.


 Examining Officer To Alien:

 'Q. What organizations do you belong to at the present time? A. I belong to the Basque National Party in Spain.

 'Q. Is that the Partida Nationista Basque? A. Yes.

 'Q. How long have you been a member of the P.N.B? A. Since I was a ...

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