McNEIL
CHARGES:
Warrant: Act of 1924—[
Lodged: Act of 1952—Section 241(a) (6) [
Act of 1952—Section 241(a) (5) [
BEFORE THE BOARD
This case is before us pursuant to an order entered by a special inquiry officer on June 25, 1964, directing the respondent‘s deportation and certifying the case to this Board for final decision.
The respondent is a 60-year-old married male who claims he was born in the United States and is a citizen. The special inquiry officer found that the respondent is an alien who was born in India and concluded that he is deportable on the warrant charge and the first lodged charge. That officer adopted the previous findings which had been made in sustaining the two charges. The findings in our order of February 26, 1960 and in the special inquiry officer‘s order
The respondent‘s case was before the court in McNeil v. Kennedy, 298 F.2d 323 (D.C. Cir., 1962). We have considered this record pursuant to that decision and in the light of the decisions in Chung Young Chew v. Boyd, 309 F.2d 857, 866 (9th Cir., 1962), and McConney v. Rogers, 287 F.2d 473 (9th Cir., 1961). In accordance with our discretionary authority under
It appears that the Service and the special inquiry officer endeavored to proceed under the Rules of Civil Procedure for the United States District Courts as set forth in Title 28, United States Code, and we believe this was appropriate under the three decisions cited above. Rule 30 relates to “Depositions Upon Oral Examination” and Rule 31 refers to “Depositions of Witnesses Upon Written Interrogatories.” The special inquiry officer‘s order of February 19, 1963 authorized the taking of depositions of Messrs. Vyse and Ayre or, if not available, the persons having custody of the two records involved (Exs. R-27 and R-28). Counsel contends that it was error to permit the Service to examine the two witnesses on oral depositions and then restrict the respondent to cross-interrogatories particularly since one of the witnesses was examined on cross-interrogatories in Frankfurt am Main, Germany, and stated he could not answer certain questions because he no longer had access to the records which were in India. Under the circumstances of this case, we believe that the present custodians of the two records should be required to make new depositions upon written interrogatories by both sides in accordance with Rule 31.
Rule 28(b) [as amended January 21, 1963, effective July 1, 1963] specifies the persons before whom depositions may be taken in foreign countries, and Rule 28(c) provides, in part, that no deposition shall be taken before a person who is an employee of any of the parties. Counsel contends that one of the parties to the deportation proceeding is the United States and that the American Consular Officers, before whom the depositions and cross-interrogatories were made, are employees of the United States. The special inquiry officer and the Service did not indicate that counsel had waived this objection under Rule 32(b). We are not persuaded by the state-
In оur order of February 26, 1960 (p. 6), we referred to counsel‘s request for reopening of the proceeding to permit the respondent to testify on the issue of citizenship. We stated that the respondent had been repeatedly requested to testify on this issue and, for reasons stated in that order, we concluded that the hearing should not be reopened. Following the decision in McNeil v. Kennedy, supra, we reopened the hearing by order dated April 12, 1962 and we specifically stated: “The Service and the respondent may present any pertinent evidence.” On July 17, 1962 the special inquiry officer asked the respondent to be sworn and his counsel stated that he refused to testify against himsеlf (p. R-47). On August 9, 1962 counsel requested that the hearing be reopened to permit the respondent to testify as to his birth. During the oral argument on October 22, 1962 (p. 7), counsel stated that the respondent had been willing to testify as to his place of birth before the special inquiry officer but that the special inquiry officer said that if he testified he would also have to testify concerning his Communist Party activity. The record shows that counsel was in error in this statement.
Since we have found it necessary to reopen the hearing, we believe that the respondent should be given the opportunity, which he allegedly desires, of testifying concerning the issue of citizenship. It is our opinion that the rеspondent‘s testimony, cross-examination by the trial attorney, and the opportunity for the special inquiry officer to consider the demeanor of the respondent while testifying will be helpful in resolving the issue of alienage. In order to avoid any future contention that the respondent again refused to testify because the Government insisted upon the right to examine him relative to asserted Communist Party membership in the event that he testified, we believe it would be appropriate for the trial attorney to stipulate that the respondent will not be questioned on that issue unless the respondent himself desires to testify concerning it. This is not to be construed as preсluding the Service or the respondent
Pursuant to
ORDER: It is ordered that the special inquiry officer‘s order of June 25, 1964 be withdrawn and that the hearing be reopened for further proceedings in accordance with the foregoing.
BEFORE THE BOARD
On June 25, 1964, a special inquiry officer ordered the respondent‘s deportation and certified the case to this Board. We directed that the hearing be reopened in our order of November 3, 1964, and the case is now before us on motion of the Service dated December 3, 1964, seeking reconsideration of that order.
The respondent is a 61-year-old married male who claims he was born in the United States and is a citizen. In earlier proceedings in this case, it was found that the respondent was born in India; that he entered the United States between October 1937 аnd December 1938; that he was not then in possession of an immigration visa; and that he had been a member of the Communist Party of the United States during the period 1938 to 1945.
The Service asserted in its motion (p. 17) that we remanded the case for inquiry in the light of Gastelum-Quinones v. Kennedy, 374 U.S. 469 (1963); that we directed that the Service enter into a stipulation limiting cross-examination to the question of alienage (p. 16); and (pp. 5-6) that our order directs that the respondent be given a further opportunity of testifying concerning his citizenship
As indicated in the third paragraph on page 2 of our order of November 3, 1964, the actual reasоn for reopening the hearing and remanding the case to the Service was that we had concluded that the record did not meet the requirements of the decisions in McNeil v. Kennedy, 298 F.2d 323 (D.C. Cir., 1962); Chung Young Chew v. Boyd, 309 F.2d 857, 866 (9th Cir., 1962); and McConney v. Rogers, 287 F.2d 473 (9th Cir., 1961). In the first case, that of the respondent, the Court of Appeals stated that the certificate of baptism and a letter from a school in Calcutta had not been verified or authenticated. One of the questions involved in the second case cited was whether the Rules of Civil Procedure for the United States District Courts, as set forth in Title 28, United States Code, were applicable in deportation proceedings. Although the court did not specifically hold that they were applicablе, it indicated the desirability of following the rules. In the McConney case, the alien was informed that his hearing would be continued in order to obtain the deposition of his mother but he was not advised of the time and place for taking the deposition and the court held this was error.
We pointed out in our previous order (p. 4) that the present record appears to be inadequate since it does not specifically show that counsel was notified in writing as to the time and place for taking the deposition. At the time the depositions herein were obtained, there was no regulation of the Service dealing particularly with that matter, but it is now covered by
In our order of November 3, 1964, we stated that Rule 30 of the Rules of Civil Procedure relates to “Depositions Upon Oral Examination” and that Rule 31 refers to “Depositions of Witnesses Upon Written Interrogatories.” We believe that a reading of Rules 30 and 31 in their entirety indicates clearly that a deposition should be taken under one or the other but not under both.
Subsection (c) of Rule 30 relates to “Record of examination; oath; objections“, and one sentence thereof was quoted by the Service in its motion (p. 13). This sentence is as follows: “In lieu of participating in the oral examination, parties served with notice of taking a deposition may transmit written interrogatories to the officer, who shall propound them to the witness and record the answers verbatim.” The use of the word “may” shows thаt this procedure is permitted but not that a party is required to follow it. In addition, the interrogatories subsequently prepared by this respondent were not taken under Rule 30(c) because that rule contemplates that the written interrogatories will be propounded at the time of the original oral examination of the witness.
When the trial attorney originally submitted his motion for the taking of depositions at Calcutta, India, counsel filed his memorandum of February 11, 1963 in opposition, urging that the prospective witnesses appear in person at the hearing or, if this was denied, that the Service furnish funds for the expense of travel of counsel and the respondent to India since the respondent was not financially able to pay for this. Counsel contends that it was error to permit the Service to examine the two witnesses on oral examination and then require him to cross-examine the witnesses on written interrogatories particularly since one of the witnesses was cross-examined on interrogatories in Germany and could not answer certain questions because he no longer had access to the records which were in India. We stated in our previous order (p. 3): “Under the circumstances of this case, we believe that the present custodians of the two records should be required to make new depositions upon writtеn interrogatories by both sides in accordance with Rule 31.” In addition, counsel contends that one of the parties to the deportation proceeding is the United States; that the American Consular Officers, before whom the depositions were made, are employees of the United States; and that Rule 28(c) provides, in part, that no deposition shall be taken before a person who is an employee of any of the parties. As indicated by the quoted sentence from our previous order, we did not reach a specific conclusion that the depositions which had been taken
We have carefully considered the various contentions in the motion of the Service dated December 3, 1964 and its “MEMORANDUM OF LAW” dated December 16, 1964. We can perceive no useful purpose in discussing these in detail. The situation is entirely similar to that in Matter of SS “Ryndam”, Int. Dec. No. 1278 (1963). In that case, we had remanded the case to the Service to permit the submission of additional evidence and the Service requested reconsideration of our order. When the case reached the Attorney General on certification, he commented on the proliferаtion of the issues and said (p. 13): “Had this case come before me simply as a request to review the Board‘s initial decision, it would present no problem, for I have no doubt that the Board‘s discretionary authority under
Hence, the question of whether there was or was not an actual error of law in the taking of the present depositions is not the criterion for judging the action we directed since our order of November 3, 1964 (p. 2), shows clearly that we were acting under our discretionary authority as set forth in
ORDER: It is ordered that the motion of thе Service for reconsideration, except as reconsidered herein, be denied.
BEFORE THE ATTORNEY GENERAL
ORDER: The decision of March 17, 1965, by the Board of Immigration Appeals in this case denying reconsideration of the Board‘s order of November 3, 1964, which remanded the case for further proceedings, is reversed, and the Board is directed to proceed to a final decision.
The Board of Immigration Appeals, at the request of the Commissioner of Immigration and Naturalization, has referred to me for review, as provided by
In earlier proceedings in this case, it was found that the respondent is an alien who was born in India; that he entered the United States between October 1937 and December 1938; that he was not
Subsequently, in reopened hearings the Service reintroduced these documents. The certificate of baptism was executed by P. Lоgan Ayre, Chaplain of St. Andrew‘s Church, Calcutta, India, who certified it to be a true extract from the register of baptisms at the church. Attached was an authentication by the United States Consul at Calcutta that the document was certified by its lawful custodian. The school record was set forth on school stationery as a certified copy of the record of respondent in the school files over the signature of J. C. Vyse, Principal. Attached to it was an authentication by the United States Vice-Consul at Calcutta that the document had been certified by its lawful custodian. After the special inquiry officer reaffirmed findings as to the respondent‘s alienage and deportability, the Board on December 6, 1962, returned the case to the Service for additional action to authenticate these two documents. The Board stated that there should be compliance with some generally recognized manner of verifying and authenticating documents, although it did not “lay down a general rule for receipt of documents
The special inquiry officer then granted a motion by the Service for taking depositions in Calcutta, India, of Mr. Vyse and Mr. Ayre on oral examination or on written interrogatories. He denied a request by respondent that the witnesses be ordered to appear in person or that the Service be ordered to provide funds for respondent and his counsel to enable them personally to attend the depositions. It does not appear that at any point respondent endeavored to have the Service limited to taking the depositions upon written interrogatories. The record shows that on March 5, 1963, respondent notified the Service that respondent and his counsel were unable to appear in Calcutta and that they reserved the right to propound cross-interrogatories within a reasonable time after receipt of a copy of the transcript of the Calcutta examinations.
In his deposition Mr. Ayre testified that he has been a minister of religion since 1938 and Chaplain of St. Andrew‘s Church, Calcutta, India, since 1956; that he is the highest official of the Church of Scotland in Calcutta; that permanent records of all baptisms performed within or by persons officially conneсted with St. Andrew‘s Church are maintained in that church; that he is the one person responsible for the proper maintenance and safeguarding of the records; that the records of St. Andrew‘s Church are made in the ordinary course of the church‘s business and are maintained in compliance with its laws; that the records in his custody are the original and only records of baptisms performed within St. Andrew‘s Church; that the baptismal records are executed on the date of the baptism; that baptismal records have been maintained at St. Andrew‘s Church since 1814; that Exhibit R-28 (certificate of baptism) represents a complete and accurate extract taken from the churсh‘s original baptismal records appearing in a bound volume entitled “Calcutta Baptisms 1890-1904“; that the permanent records of the church are kept in a lockfast room in the church and have been so kept in their present location since 1813; that ordinarily the pertinent information is supplied by the child‘s parents; and that the persons to be baptized are physically present in the church and seen by the chaplain or minister at the time of baptism.
With respect to the school record (Exhibit R-27), Mr. Vyse, in his deposition, testified that he is employed by the Board of Govern-
On May 3, 1963, respondent was served with copies of the Calcutta depositions. On May 17, 1963, he moved to suppress them on the ground that the United States Consul in Calcutta, before whom the depositions were taken, was an employee of one of the parties and therefore disqualifiеd under Rule 28(c) of the Federal Rules of Civil Procedure. This motion was denied by the Special Inquiry Officer and respondent then propounded cross-interrogatories. The Special Inquiry Officer admitted the depositions in evidence and, finding, among other things, that the baptismal certificate and school record were properly authenticated, ordered the respondent deported.
On November 3, 1964, the Board directed that the Special Inquiry Officer‘s decision be withdrawn and the proceedings again reopened; the Board on March 17, 1965, denied a motion of the Service for reconsideration of its decision. In its opinion denying reconsideration the Board stated that the record was still inadequate with respect to the method of authentication of the baptismal certificate and the school record. I do not agree.
As its first ground for rejection of the depositions the Board notes, sua sponte, that the record does not specifically show that respondent‘s counsel was notified in writing as to the time and place for taking the depositions. The record shows that respondent was served with a motion for an order to take depositions dated January 30, 1963. The motion papers set forth the names and positions of the persons to be examined, the precise subjects of the depositions, and the city where the depositions were to be taken. After the special inquiry officer issued an order authorizing the taking of the depositions, respondent filed a notice which stated that he and his counsel
The Board also claims that it was error to permit the Service to take oral depositions from the Calcutta witnesses when respondent or his counsel was either unwilling or unable to be present. I think that it was within the special inquiry officer‘s discretion to permit this method to be followed, where, as here, respondent had full opportunity to examine the depositions and then to submit cross-interrogatories.
The Board‘s principal ground for this ruling appears to be its view that this practice violates the Federal Rules of Civil Procedure. Although I am not at all certain as to the Board‘s basis for application of the Federal Rules to deportation proceedings,3 it appears that the procedure followed is authorized both by Rule 30(c) of the Federal Rules of Civil Procedure4 and by court decisions sustaining Service practice.5
Although the Board has not expressly decided the point, it has indicated that consular officials are parties in interest in these proceedings and may not therefore preside at the taking of depositions abroad. The Service‘s present rule concerning depositions provides: “In the United States, examination of the witness should take place before a special inquiry officer; abroad, preferably before a United States consular official.”
Under the circumstances the Board should proceed to a final decision based on the present record. It does not appear that the public interest will be served by further delay in reaching a decision in this case.
NICHOLAS deB. KATZENBACH
Attorney General