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November 20, 1953

Application of BARNES (two cases). In re FALCONE

The opinion of the court was delivered by: FOLEY

These applications present a novel and important problem concerning administrative and investigative functions under the provisions of the Immigration and Nationality Act of 1952, 66 Stat. 163, 8 U.S.C.A. § 1101 et seq. The two separate applications are similar enough in factual background, nature and purpose to be discussed as one.

Joseph and Salvatore Falcone are naturalized citizens of the United States Joseph Falcone assumed such status by an order of the Supreme Court of the State of New York, Oneida County, on February 18, 1925, and Salvatore Falcone was duly admitted to citizenship by order of the same court, dated July 21, 1925. The Falcones came into this country on December 8, 1907, with their parents, who are now deceased, and at the time of entry Joseph was four years of age and Salvatore was sixteen.

 A short time previous to the issuance of the subpenas here in question, each respondent received letters from immigration officials requesting that they appear at certain times and places for interview. The details of such interviews are not important except to note that Salvatore was more cooperative in the interview procedure than Joseph. He was asked to explain the reason for the use of the name Projelto by his parents when they entered the country and he answered he had no explanation because his father and mother were dead and he had always used and was known by the name Falcone. Joseph would not answer any questions when informed by the immigration officer that the reason for the interview would not be stated.

 The result of this attitude on the part of the Falcones was the service upon them of separate subpenas, one signed by and officer-in-charge and the other by an acting officer-in-charge of the Immigration and Naturalization Service. Each subpena commanded them to appear on certain dates at the Federal Building in Syracuse, New York, to give testimony and make a statement before an officer of the service at the designated time and place, and further commanded each to produce and bring with them evidence of birth and original entry into the United States and naturalization certificate. Each subpena was entitled only 'In re Salvatore Falcone' and 'In re Joseph Falcone;' each subpena specifically stated that it was pursuant to the provisions of section 235(a) of the Immigration and Nationality Act. The respondents appeared pursuant to the subpenas and both refused to testify under oath, claiming that the subpenas were invalidly issued as against them because they were naturalized citizens and not aliens. Each produced for inspection their birth certificate and certificate of naturalization. Upon the return of the order to show cause, the respondents appeared specially, challenging the power to issue subpenas as against them under the terms of section 235(a) of the Act. At the hearing upon such return, the official records of the Oneida County Clerk were subpenaed into court by the respondents and disclosed that the certificate of arrival or original entry demanded in each subpena are matters of official record as part of the naturalization proceedings and available to the immigration service, although not open, as I understand it, to public inspection.

 The first contention of the immigration service in these applications in that the subpena power used against these naturalized citizens is authorized and delegated by the Congress in this particular part of the terms of 235(a) of the Act, 8 U.S.C.A. § 1225(a):

 'The Attorney General and any immigration officer, including special inquiry officers, shall have power to require by subpena the attendance and testimony of witnesses before immigration officers and special inquiry officers and the production of books, papers, and documents 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 Act and the administration of the Service, and to that end may invoke the aid of any court of the United States.'

 The subsequent concludes with the conferring of jurisdiction upon the district court to order compliance with such subpena. *fn1"

 The second contention in behalf of the applications is that despite the express confinement of the subpena as 'pursuant to the provisions of section 235(a) of the Act,' the power to issue the subpenas here is implicitly authorized and granted by the terms of 287(b) of the Act, 8 U.S.C.A. § 1357(b), relating to powers of immigration officers and employees. *fn2"

 Further, inasmuch as it is now frankly stated that the legality of the naturalization of the Falcones is under investigation, the subpena power is necessary in the investigation and report as to the institution of revocation proceedings in accordance with the regulations promulgated by the attorney general in the administration and enforcement of the Act in that respect. *fn3"

 These contentions create a question of statutory construction. There is no judicial authority to my knowledge directly in point and the analysis of the intent of the Congress is made difficult by the immensity of the Act itself. The importance to the administration and enforcement of the Act is evident because it would ease the burden of investigations in such situations as here, but such reason of expediency cannot prevail if the subpena power exercised is in excess of the statutory grant. The authority of Congress to delegate the subpena power to administrative agencies is clearly established, even to the extent that it may delegate effective power to investigate violations of its own laws. However, the subpena power must remain within the bounds of the legislative grant, not overreach the authority granted by Congress, and in investigatory matters should be conferred in express and explicit terms for that purpose. Harriman v. Interstate Commerce Comm., 211 U.S. 407, 29 S. Ct. 115, 53 L. Ed. 253; Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 201, 217, 66 S. Ct. 494, 90 L. Ed. 614; National Labor Relations Board v. Anchor Rome Mills, Inc., 5 Cir., 197 F.2d 447, 449. In my own judgment, subpenas should not issue upon hit or miss legal grounds.

 In support of the first contention outlined, the government emphasizes the changes in section 235(a) of the Act from the previous provision governing such situations as contained in section 16 of the Immigration Act of 1917, 8 U.S.C.A. § 152. *fn4" The word 'alien' in the old statute was changed to 'person' and a broad clause in relation to the power to subpena was added, 'or concerning any matter which is material and relevant to the enforcement of this Act and the administration of the Service'. It was judicially settled under the old provision, 8 U.S.C.A. § 152, that the subpena power could be exercised against aliens in either deportation or exclusion proceedings. Lofakis v. U.S., 3 Cir., 81 F.2d 966; Graham v. U.S., 9 Cir., 99 F.2d 746, reversing on other grounds U.S. v. Parsons, D.C., 22 F.Supp. 149; In re Yaris, D.C., 109 F.Supp. 921, 922. Now the government says in its brief that this change and the addition in terminology in section 235(a) are most significant and evidence a congressional intent to enlarge the subpena power to enable immigration officers to question every person, alien or citizen, in connection with the investigation of any matter under any section of the Immigration and Nationality Act. However, it is only necessary for me to decide whether these naturalized citizens under investigation as the target for possible revocation proceedings, and ultimately possible deportation proceedings, are subject to subpena under this portion of the Act. I do not think so for several reasons.

 Section 235 in the body of the Act is entitled 'Inspection by Immigration Officers'. 66 Stat. 198. In the Title of Contents it is listed under Chapter 4, 'Provisions Relating to Entry and Exclusion', 66 Stat. 163. In the analysis of the bill, contained in House Report No. 1365, U.S. Code Congressional and Administrative News 1952, pages 1709-1710, the discussion of section 235 is under the heading, 'Entry, Exclusion, and Deportation of Aliens (Ch. 4 and Sec. 287)'. Such analysis, although it pertains to other provisions of subsection 235(a), outside that portion relied upon here by the government, gives some enlightenment as to the congressional intent of section 235:

 '* * * In conjunction with their inspection of aliens, the bill authorizes the immigration officers to board and search vessels, aircraft, railway cars or any other conveyance or vehicle in which they believe aliens are being brought into the United States. The immigration officers are empowered to administer oaths, take evidence and make a record, if necessary, concerning the enforcement of the bill with reference to the privilege of any alien to enter, pass through or reside in the United States. Any person coming to the United States may be required to state under oath the purpose or purposes for which he comes, the length of time he intends to remain, whether or not he intends to remain permanently, whether, if an alien, he intends to become a citizen, and such other information as will aid the immigration officers in determining whether the person is a national of the United States or an alien, and, if the latter, whether he is subject to exclusion under any of the provisions of the bill. It is not intended by this provision to sanction the indiscriminate questioning or harassment of citizens returning to the United States, but it is to be used by the immigration officers whenever there is reason to believe that a citizen is violating or about to violate the law and is about to become expatriated. Immigration officers are also granted the power to subpena the attendance and testimony of witnesses, and the production of books, papers, and documents in aid of the enforcement of the provisions of the bill. An alien who does not appear, to the examining immigration officer, to be admissible, clearly and beyond a reasonable doubt, shall be detained for further inquiry by a special inquiry officer. * * *

 'Section 287 of chapter 8 further specifies powers of immigration officers and employees of the Immigration and ...

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