Matter of R-

Cite as 5 I&N Dec. 451

IN THE MATTER OF R

In DEPORTATION Proceedings A-6729079

Decided by the Board September 15, 1953

Labor Progressive Party of Canada, direct successor to the Communist Party of Canada-Evidence-Admissibility of affidavits of witnesses who are not present at the deportation hearing. In this case the finding that the Labor Progressive Party of Canada is a direct successor to the Communist Party of Canada is based on affidavits executed by two persons before an officer of the Immigration and Naturalization Service. The fact that neither of the affiants, nor the officer before whom the affidavits were executed, appeared at the hearing to verify the documents and be subjected to cross examination, does not prevent their receipt into evidence in an administrative proceeding where the criterion is not admissibility but probative value. (Matter of K , A-5204481, B. I. A. , March 18, 1953, Int. Dec. No. 427.) Furthermore, there is no duty upon the Government to go to the expense of transporting the affiants a great distance as examination could have been conducted by deposition and identification of the alien was not of primary importance with respect to their testimony. CHARGE : Warrant : The act of October 16, 1918, as amended, in that he has been, prior to entry, a member of the following class, set forth in section 1 of said act : An alien who was a member of an organization which is the direct successor of the Communist Party of a foreign state, or of a political or geographical subdivision of a foreign state, to wit : The Labor Progressive Party of Canada.

BEFORE THE BOARD

Discussion : This case is before us on appeal from the special inquiry officer's decision of April 6, 1953, directing the subject alien's deportation from the United States in the manner provided by law on the charge stated in the warrant of arrest. Counsel, in oral argument, has requested that the order of the special inquiry officer be reversed. The facts of this case are adequately expressed in the opinion of the special inquiry officer and there is no need to repeat them here. Suffice it to say that that official's order of deportation is based on findings that the respondent was voluntarily a member of the Labor Progressive Party of Canada for approximately 1 year about 1945, and that the Labor Progressive Party of Canada is a direct successor to the Communist Party of Canada. The finding of voluntary membership is based on admissions made

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by the respondent in a sworn statement made to an officer of the Immigration and Naturalization Service at Bakersfield, Calif., on December 18, 1951. The finding that the organization involved is a direct successor to the Communist Party of Canada is based on affidavits executed by two persons before an officer of the Immigration and Naturalization Service at Buffalo, N. Y., on August 14 and 15, 1952, respectively. The essence of the alien's contention here is that the affidavits described in the preceding paragraph could not properly and with constitutional propriety have been admitted into evidence, and that, if they are excluded, as they should have been, there is no evidence to support the deportation order against the alien. The general grounds upon which reliance is had are that the affidavits were improperly admitted into evidence in that no adequate legal foundation for their introduction was established, and that the admission of the affidavits was in violation of the alien's right, under the fifth amendment to the Constitution of the United States, to due process of law. The specific arguments of counsel with respect to the foregoing are that neither of the affiants appeared at the hearing to verify that the signatures appearing at the end of their respective affidavits were their signatures, nor that the contents of the affidavits offered in evidence were statements made by each of them, and that the Government did not offer the testimony of the official before whom the affidavits were executed to authenticate either the respective signatures or contents of the affidavits allegedly taken before him. It is then argued that the record clearly shows that the alien was never confronted by the affiants, that they were not subjected to crossexamination to test their credibility or veracity, and that to permit the acceptance as evidence of these ex parte affidavits violates the alien's right to due process of law. When the affidavits in question were offered in evidence counsel objected thereto. Thereafter, a continuance was granted to permit counsel to decide as to his future procedure with respect to the affidavits. No action was taken by counsel in this respect and at the subsequent hearing counsel's motion for a dismissal on the grounds that the record contained no evidence of any probative value that the Labor Progressive Party of Canada fell within the proscription of the law under which the alien's deportation was sought, was dismissed. On the basis of the foregoing, and upon careful consideration of the entire record, we find that the appeal must be dismissed. It has been decided that failure to identify documents in a legal manner does not prevent their receipt into evidence in an administrative proceeding where the criterion is not admissibility but probative value (Matter of K-, A-5204481, B. I. A., March 18, 1953, Int.

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Dec. No. 427; U. S. ex rel Bilokumsky v. Tod, 263 U. S. 149 ; Consolidated Edison Company v. National Labor Relations Board, 305 U. S. 197) . Furthermore, there was no duty upon the Government to go to the expense of transporting the affiants a great distance as examination could have been conducted by deposition (Bhagat Sing v. Haff, 308 U. S. 629 ) , and identification of the alien was not of primary importance as respects the testimony of the affiants. Counsel had the opportunity to have depositions taken from the affiants and to produce evidence and witnesses to refute their statements, but failed to do so. On the basis of the foregoing, we find that the hearing was fair in all respects. Accordingly, we will dismiss the appeal. Order : It is ordered that the appeal be and the same is hereby dismissed.

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