*4 WILBUR, GARRECHT, Before HEALY, MATHEWS, STEPHENS, and Judges. Circuit Judge. WILBUR, Circuit custody appellant, respond- deportation, sought under a warrant for ent troversy, gen- District corpus in the determination release habeas of that final, erally Cali- [citing Court fornia. That court issued an order to Northern District cases] show questions fact “Where the decision of and, showing upon cause Congress head is a committed traverse, petition and return and denied the Department, con- decision thereon * * custody petitioner remanded the clusive; respondent. peti- From order -only subject This last statement is appeals appel- tioner to this court. proc- upon question of due review petition lant to his attached for a writ ess under the Fifth Amendment to transcript proceedings before the entire Constitution. Inspector deportation, the who ordered petitioner’s appeal record before Wolf, In Zakonaite v. 226 U.S. up Gen- Appeal Board set said, 33 S.Ct. 57 L.Ed. eral, against deporta- which recommended opinion) : (Mr. Pitney writing the Justice tion, and order the final authority entirely “It settled that the Appeal General a review Congress prohibit of ing com- aliens from ordering Board’s decision of the reg- States, within petitioner. coming, authority ulate their includes *5 power While Court the of the District impose upon performance conditions of the application and of this court in such an liberty which continued the alien to the of settled, range well of in view of wide the country reside within the bounds of this argument again the the it is well to state proceed- depend; be made to that a authority prem- of limits the court’s in the ing to regulations such not a enforce ises. prosecution meaning criminal of within the deportation The providing statute of Amendments; the 5th and 6th that such by Attorney Gen- undesirable aliens the upon inquiry may be properly an devolved provides eral that: department subordinate executive or thereof, findings officials of that the officials, every person any “In case where is or- by fact reached such fair after a deported dered from States the United though hearing, summary may constitu- provisions chapter, of or the this of tionally conclusive, made as treaty, law the At- decision the by provisions ques- made in of the act torney General shall 8 final.” U.S.C.A. tion.” 155(a). § Tod, 133, 131, In Tisi v. 264 U.S. power Thus the court has no de 260, 590, 44 68 (Mr. S.Ct. L.Ed. is said it Congress rived from to review or to in writing opinion) Brandéis : quire Justice charge against into truth alien, nor into manner in which the evidence, “We do not discuss because by decision has been reached judgment correctness of right General. The sider of the court con lower court is en- not to be determined validity deporta the order quiring whether conclusion drawn directly tion at all from is derived Secretary from of Labor Fifth Amendment to the Constitution correct, deciding whether States, prohibits dep the United a that, was such if introduced evidence a court of liberty property due rivation of without law, legally would be held process of law. prove the fact found. sufficient to Court, Supreme a “The fair hearing denial Toy, 253, 255, 25 198 S. v. U.S. States Ju by proving merely not established 1040, 644, 49 L.Ed. con Ct. stated the rule wrong. Chin Yow United decision was v. trolling the court such case fol a as 8, 13, 201, States, 208 28 S.Ct. 52 L. U.S. lows : equally Ed. 369. This true deciding wrongly spe- law has confided to a error consists “Where legal authority deter- constituted to hear and evidence introduced evi cial tribunal arising drawing wrong of the fact or its dence mine course of matters evidence. scope inference duties, decision it within error may, authority questions of an administrative tribunal of fact as is con- Where its clusive flagrant course, collateral attack. so to convince court depends question jurisdiction had was fair not rel. one. very Compare Bilokumsky gist which is the fact con- United States ex 932 152, 153, L.Ed. Tod,1 149, 54, 68 L. U.S. 53 77 44 v. 263 U.S. S.Ct. S.Ct. White,2 350, [221]; Fat v. Ed. Kwock wherein said: it is Jan 1010; 454, 566, 40 64 253 U.S. L.Ed. S.Ct. properly Appeals “The Circuit Court of 272, Wolf, 226 33 S.Ct. v. U.S. Zakonaite negatived' any evi- the asserted absence of 218; 31, Tang Edsell, 57 L.Ed. Tun support action of Secre- dence tary 673, L.Ed. S.Ct. Labor, refused, and therefore * * * circumstances, mere Under these do, findings.” we to review officer’s error, es if even it consists in [citing cases] supporting adequate sential evidence, without fact Amendment, as Fifth Under the process of is not a denial of due show, deprivation clearly these authorities of law.” liberty deporta the execution of Vajtauer v. United States rel. process law tion statute without due Immigration, 273 U.S. Commissioner of is not countenanced and victims of such L.Ed. practice may by for relief come to the courts (Mr. Stone, Justice, now Chief Justice petitions filing issuance of writing opinion) isit said: corpus. (cid:127)writ of act habeas can courts unnecessary “But find we to consider in no other manner. question question of burden [a uniformly held courts have proof], as we think that taken record Congress depriva cannot authorize as a and without whole the aid liberty process tion law without due statutory presents presumption evi- some provided de the Constitution supporting dence order.” vice of making findings the fact of an ad consistently followed the We have ministrative board conclusive on the courts. decisions of the circuit Weedin, Cir., Court in Supremej sup say, findings is to without That *6 subject. Whitty this v. In hearing be porting or without a 9 68 con F.2d body are or the administrative by officer fore sidering appeal from decision of the a Hence, on held this the courts to void. be denying by trial cor release habeas purely proceeding habeas collateral pus where under the defendant was held validity of the order of corpus, deportation warrant, a it is said: de Attorney General detention for for questioned only by portation may but us point to determined “The necessary hearing, determine fair appellant had a extent whether and, by process that ho the record a denial of due appears from has been if it Attorney parties recog liberty General. disturb The
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understanding of number of detail the evidence do recite now we by appellant which shall raised testimony. Such to discredit claimed the de- claimed that It is to treat. proceed Lundeberg is to effect proceed- first Inspector in the cision he appellant, and that was hostile question now judicata on res did prior statements had made know question In- before the us. before *10 a appellant the was whether not only to earlier case relates the spector Party. the Communist member appellant the the was at not whether by immigra the It was claimed proceedings of the a the institution time of O’Neil had made that one pro- tion authorities affiliate of a or was an member of (one a re- shorthand not to them cover the statements and did organization scribed the porter upon squarely state- who the finally claims to have taken burden fell judge, time) Attorney he district in shorthand at ments the that General. The stamps in appellant had seen the pasting reviewing, and judgment whose arewe Book, Party stamps indicating his that we do such exercising power be would essay to appellant possess Com- not legally the was if we paying dues should wit- Party. munist called not O’Neil was as assume do burden. The courts by the immigration attempt have ness the authorities and unlimited sanction to appel- righting anything every he knew act which governmental denied that about Party, judges the first regard al- their wrong; lant’s relation to the Communist though duty only only claims the is act within limited to have told their contradictory power. truth the His authorities. statements were made to the authorities deportation progress of the During the evidence, written; including then admitted in the opinions were proceedings three transcription reporter’s Sears, shorthand inspector, Judge by presiding one the Appellant notes. that the admission claims Appeals formerly of the Court of and consideration of these state- asserted York, by and another State of New by deportation ments O’Neil rendered Appeals; and Immigration Board of proceeding unfair and void. Neither the Attorney by Each of General. third Inspector Attorney nor General reasons detail the great forth in these sets and evidence, bound the commonlaw rules of reached. for conclusions bases is not reception and it true that the of in- findings Inspector’s were competent hearsay ground evidence is appellant; favor; those of Board were for treating Inspector the decision of the Attorney General and those of and Attorney General void. There be- Inspector. A considerable sustained support ing evidence to finding reasoning part of with briefs deals Inspector Attorney General that the pronouncements opin- these various appellant was member Communist ions. We are concerned with the Party, acceptance of additional evi- processes by mental which these conclusions probative dence less value the In- reached, although worthy spector Attorney and the General cannot mention that General stresses appellant in avail the pro- this collateral Inspector Sears, fact with whose ceeding. applicable rule was stated in agrees, determination he had the witnesses rel. Bilokumsky Tod, States before was that reason better him 157, U.S. 68 L.Ed. adjudge credibility able to of their than follows:3 one who has merely could studied record. “Moreover, does granted fair, merely because rules to be cease before us discuss briefs procedure applicable in appellant was question not the whether or strictly judicial proceedings have not been Party or with Communist affiliated executive; or because by the followed Union. Workers’ Industrial with Marine rejected improperly some evidence sup As warrant Edsell, 223 Tang Tun v. or received. 673, 681, Gen findings ported 56 L.Ed. 32 S.Ct. 606.” appellant a member that the eral necessary Party, propriety mayWe add it is not with the Communist heavy person evi decide there is it is a burden to for us to determine the At support occur truth in the direct conflict told the ring Bridges dence to appellant affiliated testimony Lundeberg in the torney General that organization or with with the Marine and in asserted statement of Union, Industrial or whether or testimony Bridges. O’Neil and the Workers’ organization named Lundeberg Bridges claim not the latter statement However, Party. Communist part be a Communist falls into ed to a class misunderstood, easily we given evidence that is and hard re we state that lest we carefully all In view of reviewed of the evidence fute. cited the have authorities Work danger undeniably pres which is relation of Marine regarding mistake ent administrative Union and for ers’ Industrial head Party appellant’s relation to these him alone to take. Under two the law that testimony 3 It must because of its im assumed that discuss Lundeberg testimony portance and because of and O’Neil is the attack made testimony appellant only relevant case. We *11 938 given organizations. contrary review has convinced statement This the testimony us the de- support that evidence first under oath is v. findings See, portation proceeding. Ghiggeri that General Nagle, Cir., Marine Workers’ Industrial Union was F.2d 875. part ap- Party that and aspersion integrity of This upon the pellant during was it affiliated with attorneys wholly gratui- Government’s period longshoremen’s strike. It fact. tous and without foundation in arguendo appellant, be stated that Order affirmed. strike, management attack- of that practices ing most to- and vicious inhumane (concur- Judge STEPHENS, Circuit justi- longshoremen ward and that he was ring). any quarter. accepting fied in help from by prepared opinion I concur very bad to were conditions referred reach- decision Judge WILBUR and amply by established the evidence but this otherwise, it To therein. decide ed circumstance does not lessen the fact usurpation judicial me, would be seems to Inspector the evidence before the adduced One situation. power to an unusual meet supports finding that the inference and the hard law is that the maxims of the appellant was in affiliation the or- be denied law. It cannot bad cases make ganization known as the Workers’ Marine far in this case falls the evidence Industrial Union. “clear, unequivocal con- short of the Likewise, hold sup- we that the evidence an- Supreme Court has vincing” rule the ports 4; findings General’s judgments for the nounced. review 6. Baumgart- proceedings. denaturalization 1240; States, 64 S.Ct. ner v. Can A Maurice named witness J. States, 320 U.S. v. United Schneiderman im nalonga, in favor of the who testified 1333, 118, 1796. 87 L.Ed. S.Ct. authorities, subsequently migration however, origi- proceeding, does not This testimony, signed repudiating his statements do as those cases nate in a court action by Inspector again brought before Not from decision. but an administrative immigration demand after authorities Supreme an- only Court never has the testified, appellant, again “clear, unequivocal con- nounced instance, repudiating his the first had in proceeding, has vincing” rule such ground that on conflicting statements in review- never announced that reason “he had for the he was confused can such decision decide then.” The heavy hitting been the booze proof been burden of mere disregarded, witness was testimony this evi- been sustained. When some has not In appears from statement supporting has been dence the decision Appeals. It Board of spector found, reviewing court’s decision however, claimed, placed he was that when quotations definitely fixed. See the immi the second time the the stand Tod, 264 opinion Tisi main of cognizant gration authorities 260, 590, L.Ed. written per intending commit he was fact that Brandéis, by Mr. and from United Justice It is claimed also stand. jury on the Vajtauer States v. Commissioner rel. testimony was fabricated. this witness 103, Immigration, 273 U.S. 47 S.Ct. suggestion this in support of In 71 L.Ed. Mr. written appel Justice proceeding, the whole validates the Stone. Holohan, Mooney v. case of the 103, cites lant given I 55 S.Ct. 79 L.Ed. case have no 294 U.S. one. where attention than case holds that more careful 98 A.L.R. That officers, However, my left attention has not such state, its administrative through that, bar- pleasurable satisfaction the state for mind conspires the courts of to use error, very slight possibility ring convicting a man known purpose innocent, by testimony, revealed. Such satisfaction fabricated truth has to be simple ques- here. point state constitutes de is beside conduct such is: process. due tion court must answer Is there state nial charges? sustain evidence to some government shown how It There is. repetition know that a of his could officials given testimony perjury say Judges theretofore authorized WIL- am agreement MATHEWS BUR are in were known that after be- though even expressions. appellant’s counsel he with these ing interviewed
939 he was where Francisco shoreman in San (dissenting). HEALY, Judge Circuit International establishing active is there charged It nor was not (affiliated with Longshoremen’s Association forcible advocated that alien has Labor) op Federation the American government overthrow of posed company-controlled unions to proof charge States. Nor was . on the longshoremen functioning then con- inimical to that he entertained views conceded, ILA, was waterfront.2 The as is he at government, stitutional organized legitimate combat to a union literature sub- possessed time distributed my which practices longshoremen toward versive of the The accusation Constitution. appropriately majority in the associates affiliated that he of or was was member inhumane.” characterize “vicious and Com- organization, with namely, 1934 the union In strike of the maritime party, things. munist This which did those effectively remedy sub strove standard to these with a accusation the alien has countered flat practices.3 During strike unequivocal those denial. For joint alien strike was chairman of the justice who cherish traditions of American He participating committee unions. permissible it is alien believe that the to became, speak, so to a storm-center deprived should not be to of his freedom accumulating controversy, bitter industrial here remain the accu- unless the truth hostility of many earning enemies and sation fairly established. it was That powerful interests. proven think, I patent, so must be to person candid a period who takes trouble For years following several to examine the record. certain organizations, strike volunteer notably police the Portland and committee I proceeding aware am of this Legion American headed one powerless nature court is to review or Knowles, embarked actively far-flung on a weigh the ordinary evidence in the sense. search upon for evidence which the alien my purpose It is not sider to do more con- than might deported. Immigration Serv- adequacy light its of the whole ice, spurred apparently by on complaints of I record. desire particularly point out Knowles, investigations itself made what fact, seems to me to namely, be the checked on information called its atten- the crucial finding in the case was private tion inquisitors: arrived at But reliance incompetent reported the Service evidence, inability its moreover, received and evidence— considered grounds discover deportation. for regulation violation of a Department designed to fair insure was issued warrant hearings and to safeguard rights with those charges identical made on true, aliens. If this be think follows proceeding are here with which we later that process. the alien was not accorded due began directly Before trial concerned. Supreme decided Kessler Court Strecker, a native of He Bridges is Australia. 1082, whereupon United States L.Ed. the warrant was sailor in came to charge year entry “both 1920.1 His lawful amended that the alien was was legal right to member of he and has the remain and is” or affiliated with had proscribed transgressed organization. on some act of unless Congress expulsion. charges, authorizing Some conducted before Dean Landis examiner, years long- his arrival he after became a as trial continued almost un- papers ap- 1921 he filed first for nat Coast district 1 In CIO and Application occupies post. papers parently still for final uralization. giving ground The evils rise in 1928 was denied on strike period filing 7-year Presiding in detail are described In- papers again spector elapsed. Sears states He filed first who it was again permitted company-controlled, but these or “Blue-Book Unions,” papers lapse. employers which filed first third enabled the He practices application perpetuate and this in 1936 described. company unions,” Inspector pending “These said at time of the trial. still 2 Bridges president Sears, “were in existence on this union the water- October, when it af front until 1934 to became when CIO, changing forced out existence its name were newly filiated Longshoremen Union, and militant ILA revived International Bridges Bridges early became an mem- Union. Warehousemen’s president ber.” elected Pacific then *13 wit- testimony One the eleven of period of of is the interruptedly over these a concerning ness recollection weeks, finally September Lundeberg in being closed by occupied of a the been made forty-five days were remark said to have 1939. In all years alien testimony. occurring The six in a in the testimony of conversation taking actual The 7,724 exclusive before. other consists of-an unsworn pages, covered and a that later disavowed statement examiner found oral of of exhibits. The man alien’s named O’Neil. the evidence established neither the in with the membership affiliation nor his looking testimony of these Before at the pro- party. report Communist and two men briefly turn to circumstances findings by De- posed accepted the were said to establish "affiliation” the alien’s partment was of arrest the warrant with distinguished party the Communist cancelled. membership from main the therein. statutory amendment dispute no is the cir- concerning There followed these the designed to avoid cumstances. of long The bulk had them of June supra. Strecker, been to known to Kessler alike holding in the authorities and amend- history general the legislative public, freely From ad- the were by had proponents Nearly the that its mitted alien himself. evident all of ment it is mind.4 specifically by them had been Bridges evaluated and case discarded the A February inspector Department by warrant was issued Landis second had, They upon this relate and a second the first trial. presiding inspector This help before hearing Sears. willingness accept alien’s to period a of two and quarters continued over Communist of during course months, testimony total- adduced strike; half longshoremen’s a ing to fact that 7,546 typewritten pages exclusive of among Bridges’ were there associates; Communists exhibits, 297 which were introduced of public the alien’s denuncia- to government. by Much of the of friends “redbaiters” as no true tion of prior hearing was read into taken at the labor; before and participation, to his record, inquiries largely two and the of a mimeo- strike, editing during the territory. even- The trial covered same Work- graphed called the Waterfront sheet opin- majority in the tuated as described printed relating which news er ion, inspector’s membership findings designed inform and articles the strike by Board aside being and affiliation set from which the economic ills readers of thereafter re- Immigration Appeals It not longshoremen suffered. is claim- the ed Attorney General. instated paper partisan the contents doctrine; suggestive Communist alien, one fashion It that the notable is said significance circumstance is con- almost another, been had paper been fact more in the period of rest for investigation tinuous Workers Industrial Marine during started Prior to years. five than or- (an allegedly Communist front Service had Union trial the second course shortly cooperation ganization), abandoned powerful enlisted Investigation. Bridges over thereafter group, and taken Bureau Federal witnesses, associates and issued from and his scoured country had Bridges’ life active related cir- former address. There is the every circumstance scrutiny, pre- Service, cumstance, subjected heavily stressed had been might the Marine Bridges’ union Work- unturned sumably stone left no charges Union, of which were both Industrial truth ers evidence of conceal strike, flatly render- participants maritime denied. The most so alien which the of it. inquiry, as it course ed mutual assistance Hence the feature significant seems me, paucity evi- affiliation with is the with the dentiary contrasted product as MWIU. produc- expended in the effort magnitude of alien, if nothing who was witness, it. to mini- forthright no effort pointed party the facts. He member- mize excuse finding impelling his con- merely the crux of the case. This to the reasons presents ship said, would, “probably duct. He do the two items of evidence. finding rests protest by Attorney deportation' private General after for the bill A supreme Jackson, “notwithstanding a member Bridges, now other Gong., actually passed S.Rep. law,” No. 76th bench. provision of rejected the Senate Sess. It was 3rd House. case, thing again.” deciding concern was opinion: same His wrote “In men, compre opinions give with but to win attempt we shall good strike If a man unionist he ‘affiliation’ hensive the word definition of likely that him, Very used in the unionist statute. if bad he was unnecessary. impossible It permissible him. as it now If to com- pare things great, small one to hold that enough present purposes remark today *14 bonds which unite it alien shown proved is is not unless people our with he the Soviet Union that afford have so himself conducted striking analogy recogni those which 1934 brought to of mutual about a status linked Bridges Surely co-operate the MWIU. may with tion to that he relied on be no one would suggest that a dictated Party fairly liaison per with the on a Communist by the struggle necessities of common be than mere manent ly He more basis. must for people willing survival make our of sympathy of or our with or even aims its government way. Af “affiliates” to aid it in intermittent of Communist a casual party. depend of filiation includes an element ability upon can organization which the aspect inquiry problem On of rely which, equivalent mem to though not is conflicting not one of inferences to be bership duty, upon a course does rest Involved, drawn from facts. conceded abruptly ended conduct that be could not rather, question meaning of the giving without for at reasonable cause least employed the term “affiliation” as charge good faith. So of a breach of question statute. The one of law. Dean that evi agree tested we cannot there was pertinently Landis that “affili- observed dence to establish this relator was that sympathy ation” means more and im- than Party. His affiliated with the Communist pliés stronger than mere bond association. application membership for indicate would policy One not sight here lose must aims, sympathy then its but his his with of the condemning law. In “affiliation” join to shows reconsideration and failure proscribed with a it group seem that would sympathy unwillingness to his let his Congress arrange- working had in amind action, proof is no control his ment of designed, some sort or least at recognition that which shows mutual having a tendency, substantial further to co-operation expected was to be group. A subversive tem- aims of him.” porary joinder occasional forces legitimate attainment entirely pains of an end General was not at itself, example, explain understanding as for betterment statu- to his substandard a tory arriving finding conditions workers at his term. given industry, hardly thought appears to can be have indis- affiliation to relied fall within suppose I legislative criminately every ban. on circumstance every-day that in practice might sympathy thought spell even to Communists to have their constructive moments. of an indicative association however temporary pursuit or in however ends part For dealing the most cases with legitimate. His on this issue the term “affiliation” involve facts so much evidentiary support. without substantial stronger than the present that Perhaps to little aid I of party decision. turn now evidence fullest mem- bership. discussion of the term is found Lundeberg in United testified in a con- ex Reimer, States Cir., rel. Kettunen v. 1935 Bridges’ had in versation at home the Chase, F.2d Judge Said “I am a who alien said Communist.” This wit- 5 In United tion States rel. between Yokinen v. members of two or Commissioner, organizations. Cir., Perhaps 707, 708, 57 F.2d more it al- Judge Augustus irregular Hand so include said: “It connection aof enough single Yokinen, society, alien with the individual pledging perform amounting membership. himself certain However prescribed by may be, pretty tasks Par seems me ty reinstatement, recogni- in order secure dear involves mutual ’ regarded permanent cooperation must affiliated with tion of it.” between unreported opinion, organization person Tolsky And in affiliated (S.D.N.Y.), spasmodic Wilson v. Judge June casual as- sympathy Hand “As Mere Learned said: to affilia sistance. with the aims clear, society, accompanied depends tion the case is not so even ef- aims, forts how one defines to further its word. I does not fall coopera- take it to mean a relation of within word.” alleged His party. state- the Communist rival union. ness of a was the head admittedly thereupon and received ment was offered attitude toward the alien story, hostility. It was objection. His implacable one over the alien’s questions, grew accepted persistent leading presiding upon by relied it. repetition inspector specific more each General of the affording party members mem- participating proof affirmative four Appeals bership. thought Immigration Appeals unanimous- Board of Board ly rejected unworthy purpose credence. statement it as inadmissible body avowed other impeachment. attention to That The Board called than enlargement enmity witness, admissibility im- doubtful even of its the peachment purposes, stand under story properly on the think his while (cid:127) counsel, obviously government so since prompting government surprised given and O’Neil testi- no cross-examina- incurable evasiveness under tion, mony state- inconsistent prior damaging government’s case. to the man’s *15 point impeaching circumstances There him. ments made under solemn was no repeated. On the and more than once The field of parte of use statements inspector other and the presiding hand de- proceedings carefully is Attorney thought Lundeberg a General' Departmental limited ments, rules. Such state- course, of witness. As a matter credible possible when their as evidence use view, not at court, whatever its own contemplated, required by are the rules conflicting liberty to choose between affirmation, to taken under oath or “re- appraisals credibility by officials of (i. corded” e. to writing), reduced and responsibility deter- charged with signed by ary requirements precaution- the relator.6 These disagree- point facts. I mining the to the elementary are and closely proof ment here how disclosing as prescribe be said to minimum of fair- approaches if it does not cross ness.7 inadequacy. borderline rules, adopted under as were The law, point authority part remaining on the evidence direction of are and The “governing the regulations O’Neil, parcel Board whom the of the man and that of They warrant, aliens.”8 deportation of ample char- arrest
Appeals, without and theatrical, sensation-loving Attorney Gen- disregarded “a acterized as here. The were reported having He ex- as O’Neil is his decision. braggart.” eral so concedes Service, specious plea representatives of violation on cused their said to the course of their investigations, that in the attention they “were not called to However, they inspector.” Bridges’ officein the middle presiding of were called to he entered sitting at- found the alien General’s and of an afternoon repre- what openly posting stamps wonder tention. One is left on at desk to own party high dues. condoned his ground official sentative of effect, assuming Upon him disregard inescapable it to have rested to this of them. statement oath, made, responsibility given accepting was was not evidence, appear rejecting ordering effort to as signed, nor does on deportation. obligatory made man’s oath obtain the rules have been to anybody. Service them aside When called on To toss signature. him if having expedient particular said the O’Neil denied and sworn in a reasons deemed Further, gov- him. amounts substitution things he case attributed to government men law. ernment of categorically denied that incident had he had persuasive numerous There de- are and declared that ever occurred disregard that the Bridges’ membership cisions to the effect to information as no ecution; and, contrariwise, Regulations [c], [d]; § 150.6 he been 150.1 § sign refused, m. asked to swear unwillingness, Appeals, the fact of his two oc- on Board of in comment pin down, rules, casions, purpose so to of the said: himself would on weight the Scho have been of no small evaluat- written statement at “Here a guarded ing the made.” truth of the statements have interview would field 8 Fed.Reg. January p. memory hearing, 68. The mistake regulations appear statements, to have been revised As both to transition. experience. study outgrowth signature of much would of the maker oath and report be, sult Com O’Neil on two have shown at least occasions, Con pin down, Procedure, willing Im mittee on Administrative himself migration Service, oath, providing and Naturalization so under thus to do Labor, Dept. May perjury pros- safeguard fear of departmental which rules on ed judge, officials and both Service represented by experienced to a rights depend alien were the denial amounts aliens op- ample counsel. There found no have due process.9 portunity precautions authorities to observe contrary.10 thought essential to to be courts Apart regu from non-observance of the case, Moreover, fair trial. unlike lations, Of the situation is no better. hearings, mine run of administrative reception incompetent course the mere being liberty in which one of a human hearing; evidence does not invalidate but presented oc- Surely was at stake. may, error in reliance evidence such practice casion where “the liberal more appropriate circumstances, go to the sub testimony, in admitting imperative the more inquiry stance aof fair trial.11 The real obligation preserve rules the essential practice might “such rights are asserted have led a denial In this justice.”12 or defended.” remaining showing party instance the membership flimsy was of character so pre- applied here As to the situation Appeals reject lead the Board sented, “pro- arguments predicated on the entirely. accept General’s weapon” tective of cross-examination hearsay probative ance O’Neil validity. A denies without witness who easily evidence might tip have served to alleged prior having ever state- the scale. I am it did so. satisfied knowledge ment and who denies all *16 sure, ordinary relating purportedly To no then stated offers rules facts reception generally weapon are target against employed. which evidence applied hearings. infirmity in The O’Neil administrative The hearsay departure ju- underlying reasons from cuts across all rules. No amount practice dicial have make a philosophizing often been stated.13 can silk serve purse out of this ear. Rather proceedings Administrative obvious sow’s are in informal, main frequently deport con- the alien on which than evidence proscribed ducted with the aid counsel or heard would be condemned and with- law, in necessity men trained by any and of hesitation American out summary are often of a nature. procedure None forthright more would seem a to deport of these reasons obtained this instance. proposed place, do what the first by legislative was conducted before a train- him resolution “not- 9 particularly Sibray however, quotation ted, Consult v. United from is the following significant Plichta, Cir., 1922, passage States 282 rel. 3 which (violation relating F. 795 Rule 5[b] essence decision: “But here no reading hasty, arbitrary, to the alien to the of the evi or unfair action on the based); part any official, on dence which the warrant was abuse dis- cretion, United States ex rel. Wah v. Chin is shown. There Fook is no claim Dunton, D.C., 959, legal 288 F. that the lack decision evidence knowl- Judge Augustus (relating edge manifest, Hand Rule or that providing might disregard 3 the alien have was made willful of the evi- during present contrary, dence a friend or relative settled White, Cir., hearing); ignored. Mah Shee v. 9 rules of evidence were (relating procedure prescribed by gov 5[e] 242 F. Rule 868 the rules of the right appears erning department to forward new alien’s to have been fol- Secretary along every respect, legality with the and the lowed parte Radivoeff, D.C., record); prescribed questioned.” 278 Ex of that is not 12 (violation language relating 22 F. 227 of Rule Cf. of Justice Brandeis Bilokumsky Tod, on examination of evidence alien United States ex rel. v. issued). Consult, 149, 157, 54, 57, al warrant was 263 U.S. 44 which S.Ct. 68 Hanges, Cir., so, 8 222 v. F. L.Ed. 221. Whitfield Judge 13 Wigmore opinion Evidence, 745, 1 Sanborn. on 3rd Ed. Bilokumsky 4(a), 10 1940, (b); Landis, States ex § Cf. United rel. Crucial Is 149, 155, 54, Tod, Law, 44 U.S. S.Ct. v. 263 sues in Administrative 53 Harvard Tod, 221; 131, (1940); Davis, v. 264 U.S. Tisi An 68 L.Ed. Law Review 1077 260, Approach 68 Seif v. S.Ct. L.Ed. 590. to Problems 44 of Evidence fairly Cir., Process, Nagle, 9 14 F.2d cannot Administrative Harvard 55 thought (1942). contra. Law Review 364 opinion majority quotes exten Commerce Interstate Commission v. opinion sively Co., & Justice Nashville R. R. Louisville U. Tod, 88, 93, Tisi Brandeis S. 33 S.Ct. 57 L.Ed. 68 L.Ed. Omit- 590. other
withstanding provisions
law.” be reversed judgment I should think petition. grant the
with directions to GAR- say Judge am authorized opinion. agrees
RECHT with this Rehearing.
On Petition
STEPHENS, Judge. Circuit petition rehearing stress point concur majority es the there opinions in ring state case evi there is “some “evidence” and that depor supports the order of dence” terms implication that these
tation. The scintilla including mere used as
evidence. scin- regard mere Federal courts do any pur- effective tilla of evidence as understanding us-
pose, my that in and it is the idea word “evidence” scintilla never considered. mere evidence, more than Where face, upon its and not unbelievable a scintilla head must resolve administrative Upon credibility. this rule its doubts as to *17 cor appeals in habeas
we have determined adminis proceedings reviews from pus own regard our without orders trative views as discretionary finder’s fact conclusions. liberalizing rule advisability discussion, currently subject much ultimate action whatever the but upon having policy those such issue of it, to me power change is clear intermediary adhere court must that this can- presently exists. We the rule as order make fish of one administrative Therefore, vote to fowl another. rehearing. deny petition for CAIN, rel. TRAININ v. STATES
UNITED Camp Upton, Commanding Officer of
Y.N.
No. 418. Appeals, Second Circuit. Court
Circuit
Aug.