Evening star., 1948-08-08
Court to Test Authority
Of Immigront Inspectors
Administrative Procedure Policy in
immigration Cases Weighed

Administrative Procedure Policy in
immigration Cases Weighed
By Gerard d. Reilly
The question OF whether the Administrative
Procedure Act, one of the great reforms adopted
in recent years In order to insure private lti-
gants fair hearing before Government tri-
bunals, has any application to immigration
proceedings will probably be settled this fall
by the Circuit Court of Appeals for the Dis.
trict Of Columbia as a result Of conflicting de-
cisions in the District Court rendered by
Justice T. Alan Goldsborough and Justice
Alexander Holtzoff. They have disagreed as
to whether or not the act requires deportation
hearings be conducted by impartial trial ex-
an,iners rather than immigrant inspectors.
After hearing petition for relief filed in
behalf of Gerhardt Eisler, an alien who lad
been arrested for deportation on the ground Of
his Communist Party membership, Justice
Goldsborough enjoined the Department Of
Justice from proceeding further because al im-
migrant inspector had been designated to hear
the case. His view was that only hearing
examiner performing only quasi judicial duties
and whose qualifications had been approved
ny the Civil Service Commission in accordance
with the administrative procedure was eligible
to sit. The Department Of Justice gave notice
of appeal and in the meantime continued to
permit warrant hearings to be conducted by
inspectors
A Chinese, Wan Yang-sung also held for
deportation, then brought similar suit in the
same court against the Attorney General, This
case was heard by Justice Hotzoff, who found
that deportation proceedings came within one
of the exemptions in the procedure act. Es
called attention to Section 7(a), which provides
that nothing in this chapter shall be deemed
to supersede the conduct Of specific classes Of
proceedings in whole or in part by or before
boards or other officers specifically provided
for or designated pursuant to the statute" He
based this conclusion upon language In the Inn
migration Act OF 1917 g. general statute enu-
merating the grounds of exclusion and deporta-
ton, providing that Immigrant inspectors shall
have power to administer oaths and to take and
consider evidence touching the right of any
alien to enter. re-enter, pass through or reside
in the United States" He therefore denied
the injunction
The Holtzof decision if upheld, is bound to
stir up far-reaching controversy Although
the Administrative Procedure Act was pri-
marily directed at agencies regulating the
conduct of businessmen, such as the Securities
Commission and the National Labor Relations
Board, these bodies, even in the days when
they were believed to be most arbitrary, were
to immigration proceedings
Under the procedure established, which
lasted during the regimes of Secretaries Davis
and Doak in the Department Of Labor de-
portation proceedings were frequently con-
Quoted by the same Immigrant inspector who
made the preliminary investigation and who
applied for the warrant Of arrest. His findings
were not available to the alien. Although the
alien or his counsel could ask for review
of the matter before the Board OF immigration
Appeals an informal body acting for the
Secretary of Labor, this was often mere
formality since counsel could only guess at
the findings he was challenging.
Moreover, although the statute authorized
the issuance Of subpoenas, an alien wishing
to obtain records in his defense which were
already in possession OF the immigration
Service was up against a stone wall. There
was a standing rule Of the department pur-
suant to which official records were to be made
available only on the written consent of the
Secretary, and request for the production Of
such records was seldom referred by the dis.
trict immigration commissioners to Washington.
During the administration of Secretary
Frances Perkins a number of important re.
forms were made. The practice of having the
same inspector act as judge, jury and prosecu-
tor was discouraged. The Board OF Review.
which up until that time had been subject
to the veto of the commissioner OF immigra-
tion the chief prosecuting officer, was made
a branch of the Secretarys office and thus
given quasi-judicial status.
The Secretary also experimental with the
possibility of having partial trial examiners,
consisting of lawyers who were familiar with
the rules Of evidence, designated to sit in inn
portant cases. One Of the examiners appointed
was James H. Lands, the dean OF Harvard Law
School, whose lucid analysis Of the evidence and
the voluminous testimony presented in the
Harry Bridges case has since come to be re-
garded as the best example Of what an admin
istrative hearing officers report should be.
This precedent was followed by Attorney
General jackson after the transfer Of the Inn
migration Service to the Department of Justice
by the reorganization plan OF 1910. In the
second Bridges case q retired judge OF the New
York Court of Appeals was designated to act as
a hearing officer.
Justice Holtzof's theory that the immigration
statutes require that deportation hearings be
conducted by immigrant inspectors Is therefore
open to serious question The section OF the
statute upon which he relies could be construed
as applying only to preliminary investigations
which precede the warrant Of arrest IN deporta-
ton cases. The administrative practice in such
Investigations is for the inspector to examine
the persons interviewed under oath, TO make
NJ their gtqfenAntS and To
forward a transcript of the Interrogation along
with his preliminary report when the request
for the warrant is made. 1t should be noted
that this power given the immigration inspec-
tors relates not only to the rights OF aliens to
remain in the United States but also the
right of such aliens "to enter, re-enter and pass
fhrnuch"