He has stated that the respondent would be willing to depart under an order of deportation. The authority to permit such a departure is vested in the officer in charge of the district (8 C. F. R. 152.2 (e)). Accordingly, our decision is limited solely to a determination whether or not the alien should be deported. On the record before us his deportation should be directed.

The order of the Assistant Commissioner is "that the alien be deported from the United States, pursuant to law ***."

Section 20 of the Immigration Act of 1917, as amended by the Internal Security Act of 1950, provides:

That the deportation of aliens provided for in this act and all other immigration laws of the United States shall be directed by the Attorney General to the country specified by the alien, * *

No alien shall be deported under any provisions of this act to any country in which the Attorney General shall find that such alien would be subjected to physical persecution. *** (8 U. S. C. 156).

Regulations promulgated following the enactment of the foregoing provide as follows:

*** The hearing officer shall have no authority *** to designate at whose expense or to which country the alien shall be deported (8 C. F. R. 151.5 (a)). When an alien has been ordered deported, the district director of the district within which the alien is located or is in custody may, in the absence of express directions to the contrary, permit the alien to depart to any country of his choice by reshipping foreign one way as a seaman, or by any other method, at the alien's expense. *** (8 C. F. R. 152.2 (e)).

The foregoing clearly contemplates that the determination of the place of deportation is primarily a matter for determination by the administrative officer, and that the local field officer has a degree of discretion whether to permit the alien to depart at his own expense. Previous to determination by the local field officer whether to permit the alien to depart at his own expense, and previous to determination by the administrative officer as to the country to which the alien should be deported, our order will be limited to dismissing the appeal. If the respondent feels that the determination by either officer contravenes his rights under the statute, he may appeal therefrom.

Order: It is ordered that the appeal from the order of the Assistant Commissioner be dismissed.

Concurring, ROBERT E. LUDWIG, Member.

I concur in the decision of this Board directing that the appeal of the respondent from the order of the Assistant Commissioner be dismissed.

However, I desire to point out that there is pending before this Board request of counsel that respondent be permitted to pay the cost of his removal from the United States. The request of counsel was not acted upon either by the Commissioner or by the Board. Under section 23 of the Subversive Control Act of 1950 amending

section 20 of the 1917 Immigration Act it is provided that "The deportation of aliens provided for in this act and all other immigration laws of the United States shall be directed by the Attorney General to the country specified by the alien ***." The respondent, therefore, has the privilege of selecting the place to which he wishes to be deported. To permit him to pay the cost of such deportation is merely a convenience, which not only would save the appropriation of this Department, but would be a definite saving to the taxpayers as well. I know of no reason why the Immigration and Naturalization Service or this Board should be so reluctant to pass on such a simple request the granting of which carries such obvious advantages to the Government.

IN THE MATTER OF F

In DEPORTATION Proceedings

A-3421286

Decided by Board September 11, 1951

“Subversive”—Past member of the Communist Party of the United States of America-Act of 1918, as amended by the Internal Security Act of 1950Constitutionality-Fair hearing-Evidence of membership-Admissibility. (1) Under the Internal Security Act of 1950, it is no longer necessary for the Government to establish that the Communist Party is one advocating the overthrow of the Government by force and violence.

(2) The consitutionality of this type of statute, as it affects immigration proceedings, has been adequately established by the courts.

(3) A (two-man) warrant hearing conducted (November-December 1950) in accordance with the act of September 27, 1950 (Public Law 843), was fair and impartial.

(4) Preliminary statements taken in accordance with 8 C. F. R. 150.1 (c) and (d) were properly used in the warrant proceedings in accordance with 8 C. F. R. 151.3 (b) and (c).

(5) Information supplied by alien registration forms in possession of the Government may be used by the Government for official purposes and in the public interest. (See sec. 34 (b) of the Alien Registration Act of 1940, 8 U. S. C. 455.) CHARGES:

Warrant: Act of 1918 as amended-After entry into the United States, was an

alien who was a member of an organization which advocated the overthrow of the Government of the United States by force and violence.

Act of 1918-After entry into the United states was an alien who was a member of an organization that distributed printed matter which advocated the overthrow of the Government of the United States by force and violence.

Lodged: Act of 1918-After entry into the United States, was an alien who was a member of the Communist Party of the United States.

BEFORE THE BOARD

Discussion: Respondent is an alien, a native of Russia, who entered the United States in 1911. The Assistant Commissioner ordered that the respondent be deported from the United States on the lodged charge set forth above. The hearing officer found, and the finding was adopted by the Assistant Commisioner, that the respondent is not deportable on the charges set forth in the warrant of arrest.

Counsel complains that hearings were not conducted in accordance with all of the provisions of the Administrative Procedure Act, and claims that the manner in which the proceedings were conducted constitutes a denial of due process. As the Assistant Commissioner has pointed out, the hearings in this case were conducted in accordance with Public Law 843, enacted on September 27, 1950, which provides that, "Proceedings under law relating to the exclusion or expulsion of aliens shall hereafter be without regard to the provisions of sections 5, 7, and 8 of the Administrative Procedure Act." The hearing conducted on November 28, 1950, and December 14, 1950, was a two-man hearing, with a hearing officer and an examining officer. Our reading of the record convinces us that the hearings and the entire proceedings involving Mr. F—— were conducted in a fair and impartial manner. He was given every opportunity to present any evidence he may have had. Respondent refused to testify, and answered only one question during the hearing, giving the country of his birth as Russia. His refusal to testify was on the advice of his attorney who stated that he would not permit the respondent to be a witness for the Government.

In oral argument before this Board, counsel made objections to the lodged charge, on the ground that the Internal Security Act, as it affects this alien, is an ex post facto law. The constitutionality of this type of statute, as it affects immigration proceedings, has been adequately established in the courts (U. S. ex rel. Harisiades v. Shaughnessy, 187 F. (2d) 137 (C. A. 2, 1951)).

Counsel objects that exhibits 2, 3, and 4 were received in evidence without the respondent having been advised at the time those statements were taken, that he was entitled to have legal counsel present. Those statements were taken in accordance with the regulations set forth in title 8 C. F. R. 150.1 (c) and (d), set forth in pertinent part below. The use to which such statements may be put is also prescribed by regulations.2

1150.1 (c) Interrogation of aliens under investigation.-All statements secured from the alien or from other persons as witnesses during the investigation, which are to be used as evidence, should be taken down in writing in question and answer form; and the investigating officer shall ask the person interrogated to sign the statement. Whenever such recorded statement is to be obtained from any person, the investigating officer shall (1) identify himself to such person, (2) warn the person that any statement made by him may be used as evidence against him in any subsequent proceeding, and (3) conduct the interrogation under oath or affirmation. *** (d) Refusal to make recorded statement under oath or affirmation. Whenever, in the course of an investigation, admissions or statements are obtained from an alien or statements are made by any other persons which indicate that the alien or other person refuses to make a recorded statement under oath or affirmation or refuses or is unable to sign the recorded statement by name or by mark, the investigating officer shall make a report in

In Reynolds v. U. S. ex rel. Koleff, 70 F. (2d) 39 (C. A. 7) the court held that a written statement made by an alien freely and without threat or coercion is available for use in a deportation proceeding. See, also, U. S. ex rel. Bilokumsky v. Tod et al., 263 U. S. 149, 44 S. Ct. 54, 68 L. Ed. 221 and Ungar v. Seaman, 4 F. (2d) 80 (C. A. 8). It is clear from the record, that respondent made his statement freely and without any coercion or intimidation.

Counsel asked this Board for a new hearing. At the time of the oral argument, he was asked what new evidence he proposed to introduce at the reopened hearing. He responded, "We don't intend to produce any evidence; we just want the Government to give us (the respondent) a fair hearing, not to introduce evidence which is not admissible, documents which have no business being in the record." Respondent had perfectly adequate opportunity to make any explanations or introduce any evidence he desired. As the circuit court of appeals held in U. S. ex rel. Harisiades v. Shaughnessy, 187 F. (2d) 137 (C. A. 2, 1951), with respect to deportation the alien is entitled only to "procedural due process," that is, he must be given notice of the hearing and opportunity to show that he does not come within the classification of aliens whose deportation Congress has directed. If he did not take advantage of the hearing legally constituted and conducted, which was offered, that is not the fault of the Government.

The Government's exhibit A, or 3, is a statement made by respondent on October 31, 1946. On August 17, 1949, he read the statement made by him, designated exhibit A, and refused to sign it. He made some corrections on the statement, relating to his relations with a woman who is now his wife and was then his mistress. These corrections he initialed. The statement indicates that he was informed that he was not required to make a statement and that anything he might say would be used against him in any action or proceeding which might be instituted by the Government of the United States. He was asked whether he was willing to be sworn and to be questioned under oath and he answered that he was willing, and he took the oath. That state

writing to the officer in charge, setting forth the facts admitted or stated as to the alien's status under the immigration laws * * *.

2

Sec. 151.3 (b) Use of statements made during course of investigation.-The hearing officer may enter of record any written or recorded statement or satisfactory evidence of any admission made by the alien or any other person during the investigation. If objection thereto is made by the alien or his counsel or representative, the reasons for the objection, as well as the ruling thereon by the hearing officer, shall be made a part of the record.

(c) Affidavit.-In cases in which an affidavit in narrative form has been made by the alien prior to the issuance of a warrant of arrest as provided in 150.1 (c) of this chapter and such affidavit satisfactorily establishes the facts necessary for determination as to deportability, the hearing officer may enter the affidavit as an exhibit of record and it may be used as the basis for the decision in the

case.