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report of what had transpired. Counsel objects to the receipt into evidence of the testimony of the Service officers because there was a failure to comply with Service regulations (8 C. F. R. 150.1 (c)) which require all statements secured during investigation to be used in evidence be taken down in writing under oath, in question and answer form, signed by the alien; and requiring that the investigating officer shall warn the person, any statement made by him may be used as evidence against him in any subsequent proceeding. It is also clear that the alien refused to make a sworn statement.
The facts are not controverted. On November 13, 1951, two officers of the Service came to the alien's home and inquired concerning him. He was not then at home. The respondent learned of their visit and called the Committee for the Protection of the Foreign-Born, which advised him not to make any sworn statements.
The following day two officers of the Service returned to his home. The respondent came to the door and when he was told they would like to speak to him, he came outside. Since he did not invite them into the house, he was asked whether he would accompany them to the Service car parked on the street where they could talk. There was no arrest. The alien and one officer sat in the front seat and another officer sat in the rear. The officer in the rear made a few notes of the conversation.
Respondent was not advised that any statement made might be used against him and was not placed under oath. He was questioned concerning his alienage, marital status, and membership in subversive organizations. The conversations were held in English which the alien spoke well. The alien answered freely and fully but refused to make a sworn statement on the ground that he had been advised not to make such statement. After the interview which lasted about 45 minutes, the alien left the car; the officers drove off, and within a few minutes, prepared a narrative report of what had occurred. This narrative report was used by one officer to refresh his recollection at the hearing concerning certain details, although he testified independently of the memorandum concerning the alien's admission of membership in the Communist Party.
The other officer testified from his recollection solely, although he stated that prior to the hearing, he had refreshed his recollection by reading the notes. This memorandum was placed into evidence as exhibit 2, and was used by counsel in his cross-examination of the witnesses.
The first issue concerns the alleged noncompliance with Service regulations. While the Service is bound by its own regulations, there must be a showing that the regulations are applicable to the situation under consideration. In the instant case, we do not believe that such a showing is possible. The regulations require a recorded statement to
be made under certain safeguards. No recorded statement was made herein because the alien refused to make such a statement. He was asked to make a recorded statement; he was given the opportunity; and he found it inadvisable to make such a statement. He cannot now require that regulations applicable to a statement, voluntarily made in writing, be applied to his oral admissions. We find no regulation which prohibits interrogation without apprising the person under investigation that he is entitled to refuse to answer (unless a recorded statement is being taken). We do not in the absence of such rule, find violation of Service regulations.
Each Service officer testified of his own recollection. We may therefore consider their testimony without reference to the memorandum (Jones, Evidence (2d ed.), vol. 5, sec. 2384; 4th ed., vol. 3, sec. 883).
What is presented is an issue under general laws of evidence relating to administrative proceedings (United States ex rel. Bilokumsky v. Tod, 263 U. S. 149, 156). It is well settled that the strict laws of evidence relating to judicial proceedings do not apply to administrative proceedings (Schoeps v. Carmichael, 177 F. (2d) 391 (C. A. 9), cert. den. 339 U. S. 914). Furthermore, deportation proceedings are civil in nature and we are not therefore concerned with rules of evidence which apply in criminal cases (United States ex rel. Bilokumsky v. Tod (supra), p. 157). The questions as we see them are, therefore, (1) whether the admission of the alien made to the Service officers as to his membership in the Communist Party may be used to establish such membership, and (2), if it could be used, was the fact that it was made in response to questioning which was not preceded by a warning as to the alien's constitutional right, sufficient to prevent its use in evidence. We answer the first question in the affirmative and the second in the negative.
An extrajudicial statement by a party in a civil matter that he has done what is in issue is admissible as evidence to prove the fact in issue (Milton v. United States, 110 F. (2d) 556, 560 (C. C. A. D. C.); United States v. United Shoe Machinery Corporation, 89 F. Supp. 349, 351, 352, 355–357 (D. C. Mass.); Wigmore on Evidence (3d ed.), vol. 3, sec. 815, pp. 229–231, vol. 4, sec. 1050, p. 7; see Schoeps v. Carmichael (supra); and Von Kleczkowski v. Watkins, 71 F. Supp. 429, 437 (D. C. S. D., N. Y.)).
An alien's admission made on a preliminary investigation may be used in deportation proceedings as the basis of a finding that he is deportable (United States ex rel. Bilokumsky v. Tod (supra); Ung Bak Foon v. Prentis, 227 Fed. 406 (C. C. A. 7, 1915); Maita v. Haff, 116 F. (2d) 337 (C. C. A. 9, 1940); Tsevdos v. Reimer, 108 F. (2d) 860 (C. C. A. 2, 1940)). Such admissions may be admitted into evidence even if made under duress (Wigmore on Evidence (3d ed.), vol. 3, sec. 815, pp. 229-231; vol. 4, sec. 1050, p. 7; United States ex rel. Bilo
kumsky v. Tod (supra), p. 157; Ng Kai Ben v. Weedin, 44 F. (2d) 315 (C. C. A. 9, 1930); but see Maita v. Haff (supra)).
We do not wish to imply that the statements made by the alien in the instant case were made under circumstances which constituted duress. There is not even a suggestion of such a situation in the record. The record establishes that the alien voluntarily entered the car and voluntarily made the responses and answers to questions asked him by the Service officers. It is clear that if objection were being made in a criminal case to use of the statements made by the alien herein on the ground that the statements were not voluntary, the objection would fail. Even in a criminal case it is held that the absence of a warning in situations which do not constitute a judicial proceeding does not make the statements so obtained involuntary (Wood v. United States, 128 F. (2d) 265, 268 (C. A., D. C. 1942)). Nor is an admission in a criminal case made involuntary because elicited by questions, or under an assumption of guilt, or made while the confessor is under arrest, or in the absence of counsel. Nor does the concurrence of all these conditions in a single case necessarily cause the statements to be involuntary (Wood v. United States, (supra); Wigmore on Evidence (3d ed.), vol. 3, sec. 838, p. 278; secs. 842, 851).
We come now to the effect of the failure to warn the alien of his constitutional right as it concerns the privilege against self-incrimination. This privilege relates to incrimination for federal crimes. The instant proceeding is a civil matter (United States ex rel. Bilokumsky v. Tod (supra)) and the testimony is being used in a civil matter only. That the admissions were made without advice as to the constitutional protection against self-incrimination is therefore immaterial. However, we believe it appropriate to point out that even were this a criminal matter, the admissions made by the alien could be used although he had been given no warning of his constitutional rights during the investigation (Wilson v. United States, 162 U. S. 613; Matz v. United States, 158 F. (2d) 190, 192 (C. C. A. D. C.) ; Morton v. United States, 147 F. (2d) 28 (C. C. A. D. C.), cert. den. 324 U. S. 875; Himmelfarb v. United States, 175 F. (2d) 924, 938 (C. A. 9), sert. den. 338 U. S. 860; Hanson v. United States, 186 F. (2d) 61 (C. A. 8)). Even after an arrest, extrajudicial admissions, where voluntary, are properly admissible in criminal cases although no warning was given (United States v. Heitner, 149 F. (2d) 105 (C. A. 2), cert. den. 326 U. S. 727).
We would point out further that the privilege against self-incrimination is one that may be waived. The alien refused to make a sworn statement on the ground that he had sought advice as to his rights and that he had been advised not to make a sworn statement. The alien has resided in the United States since 1913. He has a good
understanding of English. Even if the privilege were available to him, we believe it could be held that he had waived the privilege under the circumstances.
Testimony of the Service officers that the alien had stated to them that he had been a member of the Communist Party and the relating testimony concerning his membership were therefore properly admissible. These officers were subjected to extensive cross-examination. Their testimony stood up. No evidence has been introduced to controvert their testimony. We believe it was proper to base a finding of deportability upon their testimony.
Other objections based on the unconstitutionality of the law and procedure under which the alien was tried must be dismissed on the basis of decisions of the Supreme Court in Harisiades v. Shaughnessy, 342 U. S. 580; Carlson et al. v. Landon, 342 U. S. 524; and Barber v. Yanish, 196 F. (2d) 53 (C. A. 9) cert. den., October 13, 1952. Deportation of the alien will be ordered.
Order: It is ordered that the alien be deported from the United States, pursuant to law, on the charge contained in the warrant of arrest.
IN THE MATTER OF
In DEPORTATION Proceedings
Decided by Board December 23, 1952
Evidence: Admission of commission of crime: Use of admission made in prior invalid hearing.
(1) Admission of a crime made by an alien during his testimony at a prior hearing considered invalid because of failure to comply with the requirements of the Administrative Procedure Act then in effect is nevertheless admissible in evidence at a subsequent hearing.
Warrant: Act of 1924-No immigration visa.
Lodged: Act of 1917-Admits crime before entry: Perjury, bigamy.
BEFORE THE BOARD
Discussion: This case is before us on certification in accordance with 8 C. F. R. 90.3 (b). The Acting Assistant Commissioner by order dated June 11, 1953, found the alien deportable on the grounds stated above.
Written exceptions were filed to the finding of the Acting Assistant Commissioner.
Counsel contends that the admissions of the commission of the crimes stated above are not satisfactory for the purpose of sustaining the lodged charge; and it is further urged that the alien's absence from the United States for a period of 2 years and 7 months ending in 1935 should be considered a temporary absence from the United States so that the alien upon his return to the United States in 1935 should be considered a returning resident rather than a person immigrating into the United States.
Respondent is a 59-year-old married male, a native and citizen of Mexico, who last entered the United States on May 24, 1944, as a returning resident upon the presentation of a resident alien's border crossing identification card. At the time of entry, the respondent was not in fact a returning resident since he had been admitted to the United States as a visitor in 1935 and had remained unlawfully in this country from that date.