Judge Brandeis stated the general rule in Bilokumsky v. Tod (263 U. S. at 157) in these words:

"A hearing granted does not cease to be fair, merely because rules of evidence and of procedure applicable in judicial proceedings have not been strictly followed by the executive; or because some evidence has been improperly rejected or received. (Tang Tun v. Edsell, 223 U. S. 673, 681.) To render a hearing unfair, the defect, or the practice complained of, must have been such as might have led to a denial of justice, or there must have been absent one of the elements deemed essential to due process. (Chin Yow v. United States, 208 U. S. 8; Kwock Jan Fat v. White, 253 U. S. 454, 459.)"

UNITED STATES SUPREME COURT DECISIONS

We found only two Supreme Court cases where the alien relied successfully upon his right to a "fair hearing."

In Kwock Jan Fat v. White (253 U. S. 454) a demurrer to a petition for a writ of habeas corpus was overruled because testimony important to the petitioner was omitted from the record of the hearings and thus not preserved for the Treview by the Secretary of Labor and the courts. But in that very cases there appears an inspector's report-which the Assistant Commissioner of Labor said "in no way influenced his decision" (when writing the alien's counsel after the llatter demanded to see the testimony upon which the report was based)—which sets forth that only upon assurances that the witness's idenity would be kept secret "could the information contained in it be obtained." Of this report Mr. Justice Clarke said:

"In this manner, with much detail, statements of a person who must remain unknown, and in part derived from another person who must remain unknown, were communicated by the investigating inspector to his superior, who was to dispose of the case on the evidence which was furnished him, and he, in form at least, approved of this report. This approval is explained by the Acting Commissioner as referring to the recommendation contained in it that further investigation should be made, and there is confirmation of this explanation in the fact that the record shows that immediately thereafter evidence of the character suggested in the report was taken in affidavits which were open to the inspection of the petitioner. While we would not give the weight to these affidavits which the Commissioner of Immigration and the Secretary of Labor seem to have given to them, nevertheless, when taken with the statement of the Acting Commissioner that the inspector's report objected to was not allowed to influence his decision, we might not say that the taking and reporting of the testimony objected to of witnesses whose names are not disclose, rendered the hearing so manifestly unfair as to require reversal, if there was nothing else objectionable in the record." (459.)

In Chin Yow v. United States (208 U. S. 8) the writ was issued where the petition alleged that he was prevented "from obtaining testimony, including that of named witnesses" which would have overwhelmingly proved his birth in the United States. Mr. Justice Holmes read these allegations "as importing that the petitioner arbitrarily was denied such a hearing as the statute meant that he should have." This case involved the right to a writ of habeas corpus, not whether after it had been issued it should be sustained or dismissed.

* * *

On the other hand, the Supreme Court has held that in the following instances the hearing was not so unfair as to require the sustaining of the writ of habeas

.corpus.

Mr. Justice Brandeis determined that the hearing in Bilokumsky v. Tod (263 U. S. 149, 155–6) was fair despite the introduction in evidence of the alien's examination under oath while in confinement-under a state criminal statutesecured without threat or promise of favor and without apprising him of his right to refuse to answer and to be represented by counsel where no warrant of arrest under the immigration law had issued and the 1917 rules of the department (Rule 22, subd. 5(a) and (b)) requiring that the alien be informed of the right to counsel apply only after the warrant of arrest has issued.

In the Japanese Immigrant Case (189 U. S. 86) Mr. Justice Harlan, while recognizing that "due process of law" required an alien of the excluded classes, taken into custody for deportation within the year set by the act of October 19,

7 Exclusive of Ng Fung Hov. White and similar cases establishing, as we have seen, a resident's right to a judicial trial of the issue of citizenship.

1888, be granted a hearing, nevertheless held that the situation set forth by the petition could not "justify the intervention of the courts" but "could have been presented to the officer having primary control of such a case, well as upon appeal to the Secretary of the Treasury, who had power to order another investigation if that course was demanded by the ends of justice," and presumably would not have refused a fuller investigation if requested. The alien had not appealed to the Secretary of the Treasury. She had pleaded “a want of knowledge of our language, that she did not understand the nature and import of the questions propounded to her; that the investigation made was a 'pretended' one" and that she did not know it had reference to her being deported. If her "want of knowledge of the English language put her at some disadvantage" this was said to be "her misfortune" and did not constitute any reason for "the intervention of the court by habeas corpus" or "for the contention that due process of law was denied."

In United States v. Sing Tuck (194 U. S. 161) one contention was that the Chinese regulations made under the act of August 18, 1894, were such as to deprive persons held by virtue of that statute of due process. The rules especially objected to "required the officer to prevent communication with the parties other than by officials under his control" and to give them a prompt examination as to their right to enter "apart from the public, in the presence of the Government officials and such witnesses only as the examining officer shall designate" (which, Mr. Justice Holmes here determined, did not give him any control of the witnesses other than to prevent their attending the party's examination). This was held to be reasonable especially in view of the right given on appeal for counsel to examine the evidence, and impliedly to submit new evidence, briefs, affidavits and statements.

In Tăng Tun v. Edsell (223 U. S. 673) Mr. Justice Holmes held that the hearing was not rendered unfair because the record contained statements of the results of the inspector's investigation, his comments on the customary practice in dealing with Chinese applicants for admission, and references to entries in official records, where none of these were shown or even alleged to be misleading.

In Low Wah Suey v. Backus (225 U. S. 460) Mr. Justice Day held the hearing to have been fair though the Chinese wife of a citizen seeking entry "under examination before the inspection officer at first had no counsel" but "at subsequent stages of the proceedings and before the hearing was closed or the orders were made she had the assistance and advice of counsel." The lack of power of the immigration officer to compel witness in the alien's favor to testify was held to deprive her of no constitutional right. The receipt of "a report based on hearsay information, the name of the informer being withheld" could not be successfully urged where "the character of this testimony is not set forth, and we have no means of knowing it was not such as might have been considered in such a hearing." The alien attacked certain sections of Rule 35 providing for preliminary examination in the absence of counsel and that at the hearing accorded the alien to show cause why he should not be deported, at such stage as the examining official "shall deem proper, the alien shall be apprised that he may thereafter be represented by counsel.' This was held not to be so arbitrary as to be unau-thorized.

DECISIONS OF THE INFERIOR FEDERAL COURTS

The decisions of the lower Federal courts vary widely as to what constitutes a fair hearing in immigration proceedings. We have sought to classify some of the cases with reference to certain conditions recurring in them, and have included where relevant the Supreme Court cases already considered. In a number of the decisions cited below the hearing was held unfair not so much because of a single defect or objection but because of the coexistence of a number of such objections in the proceedings against the alien.

(a) Cross-examination of adverse witnesses. In the following case, despite the fact that witnesses against the alien were not produced for cross-examination, the hearing was held not so unfair as to warrant sustaining the writ of habeas corpus: Choy Gum v. Backus, affidavit submitted (223 Fed. 487 (C. C. A. IV));U. S. ex rel Diamond v. Uhl, affidavit submitted (266 Fed. 34 (C. C. A. II)).

On the other hand, depriving the alien of the right to cross-examine witnesses. was held to render the hearing unfair in the following cases: Svarney v. United States, affidavit admitted (7 Fed. (2d) 515, C. C. A. VIII); Chew Hoy Quong v. White, confidential communication (249 Fed. 869, C. C. A. IX); ex parte Jackson (263 Fed. 110, D. C. D. Mont.), Bourquin, J., failure to produce witness, one of raiders for cross-examination; ex parte Radivoeff, statement of inspector admitted (278 Fed. 227, D. C. D. Mont.), Bourquin, J.

Rule 24 of the 1917 immigration rules (subdivision A of rule 23 of the recently promulgated 1925 rules) both provide on this point:

"But when a witness has been examined by the investigation officer and counsel has not had an opportunity to cross-examine such witness and it is apparent or is shown that such witness will not appear for cross-examination unless com-. manded to do so, a subpoena shall issue."

(b) Reports of inspectors.—The right of the alien to cross-examine the inspector making a written report or even submitting stenographic minutes of an examination of the alien is generally involved in the question of whether the submission of such reports or examinations rendered the hearing unfair. But the subject has generally been separately dealt with in the decisions and will be so treated here.

Such reports were held not to render the hearing unfair. (U. S. ex rel Rakecs v. Uhl, Dis. Ct. S. D. of N. Y., Augustus Hand, J., Nov. 24, 1919, not reported; affirmed 266 Fed. 646, C. C. A. II. U. S. v. Hung Chang, 134 Fed. 19, C. C. A. VI. Matter of Dobrinowich, E. Div. E. D. No., Faris, J., unreported, Nov. 9, 1923, the report involved being a summary of alien's examination, not stenographic minutes, and the testimony as reported being denied; but were held to render the hearing unfair in Ungar v. Seaman, 4 Fed. (2d) 80 C. C. A. VIII.)

(c) Examination without counsel.-The rules of the Labor Department ("which have the effect of law," Colyer v. Skeffington, 165 Fed. 17, 28, reversed on other grounds Skeffington v. Katzeff, 277 Fed. 129; ex parte Radivoeff, 278 Fed. 227) on this subject have varied and at times the right to counsel has been secured to the alien from the time of his arrest by virtue of the department's warrant. At other times a preliminary investigation without counsel was permitted, and later the alien was given the right to counsel.8

Wherever the rules did not grant the alien counsel his examination without counsel was held not to render the hearing unfair. (U. S. ex rel Bilokumsky v. Tod 263 U. S. 149, the examination without counsel being, as there stated, before the warrant issued; Low Wah Suey v. Backus, 225 U. S. 460, where the preliminary examination was without counsel as the rules provided.)

Where the rules granted him the right to counsel, and to be informed of it, the failure to inform him of such right an examination without counsel was held not to warrant sustaining the writ in U. S. ex rel Rakics v. Uhl (266 Fed. 646; C. C. A. II).

On the other hand, examination without being informed of the right to counsel where the rules required such information to be given the alien was held to render hearing unfair in Ungar v. Seaman (4 Fed. (2d) 80, C. C. A. VIII); ex parte Lam Pui (217 Fed. 456); Whitfield v. Hanges (222 Fed. 745, C. C. A. VIII); Ex parte Chin Loy You (223 Fed. 833); U. S. ex rel Bosny v. Williams (185 Fed. 598, Holt, J., D. Ct. S. D. of N. Y.), where it might fairly be inferred that the alien had been intimidated by the immigration inspector and dissuaded from exercising his right to be represented by counsel on the final hearing.

(d) Search and seizure.-In Bilokumsky v. Tod (263 U. S. 149, 155) Mr. Justice Brandeis assumed that evidence obtained by illegal search and seizure was inadmissible. Judge Bourquin sustained the writ in Ex parte Jackson (263 Fed. 110), mainly on this ground. But in Matter of Dobrinowich (supra), Judge Faris dismissed the writ though the evidence against it least one of the aliens was obtained by illegal search and seizure, and similarly in Skeffington v. Katzeff (277 Fed. 129) the Circuit Court of Appeals for the First Circuit in reversing Judge Anderson's decision in Colyer v. Skeffington (265 Fed. 17), because the Labor Department's finding that the Communist Party was an organization advocating the overthrow of the Government by force and violence was one of which the evidence was susceptible, completely ignored the fact that the evidence against the alien was generally obtained by illegal search and seizure.

(e) Compelling the alien to testify against himself.-Section 16 of the act of February 5, 1917, provides for punishment as a contempt of persons refusing to tesitfy before an immigrant inspector if required to do so. The cases are in accord in upholding the right of the Labor Department to compel the alien against his will to testify, against his own interest, in a deportation proceeding.

*

8 Section 5 of rule 22 of the 1917 rules granted the right to counsel and to be informed of same "at the beginning of the hearing. It was amended on Dec. 31, 1919, to provide that "as soon as such hearing has proceeded sufficiently in the development of facts to protect the Government's interests, the alien shall be appraised that thereafter he may be represented by counsel." The rule was changed back to its prior form on January 28, 1920. (These changes described in Colyer v. Skeffington, 265 Fed. 17, reversed subnominee Skeffington v. Katzeff, 277 Fed. 129.) The 1925 rules only provide that the alien shall be apprised "that he may be represented by counsel" "at the hearing." (Rule 18, subdivision D, par. 1.)

Because the proceeding is civil and not criminal the provisions of the amendment of the Constitution against self-incrimination do not protect him. (Bilokumsky v. Tod, 263 U. S. 149, 155; Low Foon Yim v. Commissioner, 145 Fed. 791; U. S.. ex rel Rennie v. Brooks, 284 Fed, 908; Tom Wah v. U. S., 163 Fed. 1008, affirming 160 Fed. 207.)

And even his silence in view of the obligation to testify may be construed as an admission. (Bilokumsky v. Tod, 263 U. S. 149.)

But where the testimony called for might not alone subject the alien to deportation, but to a criminal prosecution as well, the Constitution may protect him against self-incrimination, and consequently from any hostile inference from a refusal to testify. (U. S. ex rel Vajtauer v. Commissioner, U. S. Dist. Ct. S. D. of N. Y., April 20, 1925, not reported.)

(f) Burden of proof.-Generally speaking the court decisions dealing with hearings where the burden of proof was placed upon the alien involved the construction of the Chinese exclusion law. We know of only one decision, that in the Vajtauer case (supra), involving the construction of section 23 of the act of 1924 imposing the burden of proof upon a white alien. The alien was there charged with and found to be an advocate of the violent overthrow of Government. No evidence was introduced other than spoken and written statements of one Vajtauer, who the Government contended was the alien under examination. When asked if he had made a certain speech or written a specified article the alien stood mute. Judge Augustus Hand determined that in view of the possibility of his answer bringing the alien within the terms of the Illinois criminal syndicalism law, that is, actually incriminating him as well as making him liable to deportation the court would assume refusal to answer to be in the exercise of his constitutional right and that consequently no hostile inference could be drawn from it, but even so that silence warranted deporation for under section 23 of the act of 1924 the burden was placed upon the alien of proving that as the timeof his entry "he was not among the excluded classes." It is to be noted that no. charge of illegal entrance was made, that Vajtauer introduced in evidence his passport duly visaed and that in a deportation proceeding section 23 of the act of 1924 places upon the alien the burden of proving only "that he entered the United States lawfully, and the time, place, and manner of such entry" and that "in the presenting such proof he shall be entitled to the production of his immigration visa" and other documents in the custody of the Labor Department.

(g) The warrant of arrest.—Both the 1917 and 1925 rules of the Labor Department provide as to the application for the warrant of arrest:

"The application must state facts, showing prima facie that the alien comes within one or more of the classes subject to deportation after entry, and, except in cases in which the burden of proof is upon the alien (Chinese) involved, should be accompanied by some substantial supporting evidence. If the facts stated are within the personal knowledge of the the inspector reporting the case, they need not be in affidavit form, But if based upon statements of persons not sworn officers of the Government (except in cases of public charges covered by subdivision 4 hereof), the application should be accompanied by the affidavit of the person giving the information or by a transcript of a sworn statement taken from that person by an inspector."

But "irregularities" in the application or in the warrant of arrest "do not affect the status of an alien held upon a warrant of deportation after a fair hearing. (Nishimura Ekiu v. U. S., 142 U. S. 651, 652; Bilokumusky v. Tod, 263 U. S. 149, 158; U. S. v. Williams, 200 Fed. 538; Ex parte Wong Yee Toon, 227 Fed. 247, reversed on other grounds, 233 Fed. 194.)

Probably for the same reason that it is the legality of the present custody and not of the original commitment which the writ of habeas corpus tests (Nishimura Ekiu v. U. S., op. cit.) the courts would not protect the right of the alien to inspect "the warrant of arrest and all the evidence upon which it was issued" under the 1917 rules "at the beginning of the hearing" (rule 22, subd. 5b) and "to inspect the warrant of arrest" "at the hearing" under the 1925 rules (rule 18, subd. D, par. 2) if the hearing was otherwise fair and the alien informed of the charge against him. In fact, additional reasons for deporting the alien may be brought to his attention at the hearing (1917 Rules, rule 22, subd. 5(b); 1925 Rules, rule 18, subd. D, par. 3). However, in Ex parte Radivoeff (278 Fed. 227) one ground for Judge Bourquin's holding the hearing unfair was that the alien was not shown the evidence on which the warrant of arrest was issued..

JUDICIAL VIEWS OF ADMINISTRATIVE HEARINGS

Even when the hearings are faily conducted and constitute "due process of law" administrative determination of a person's rights have been recognized by the courts as far less adequate than judicial determinations. As we have seen the Supreme Court in Ng Fung Ho. v. White (259 U. S. 276) held that a resident who has not entered surreptitiously was entitled to a judicial trial of his claim of citizenship.

"The difference in security of judicial over administrative action has been adverted to by this court. (Compare United States v. Woo Jan, 245 U. S. 552, 556; White v. Chin Fong, 253 U. S. 93 (285).

And in Wong Wing v. U. S. (163 U. S. 228) the Supreme Court held unconstitutional so much of the statute (act of May 5, 1892, 27 Stat. 25) as provided that Chinese residing here without certificates of residence should be punished by imprisonment at hard labor before deportation. The question of guilt was left to be determined by a justice, judge, or commissioner, upon a summary hearing." This Mr. Justice Shiras held to be a denial of due process of law where the person was subjected to infamous punishment, and said:

"We think such legislation, to be valid, must provide for a judicial trial to establish the guilt of the accused. * * * It is not consistent with the theory of our government that the legislature should, after having defined an offence as an infamous crime, find the facts of guilt and adjudge the punishment by one of its own agents" (p. 237).

In his dissenting opinion in the Sing Tuck case (supra) Mr. Justice Brewer in declaring it to be his view that one who on entering the country claims citizenship has a right to a judicial trial of this issue without appeal to the Secretary of Commerce and Labor from a refusal of admittance by the immigration inspector. He said:

"It may be true that a ministerial officer, in a secret and private investigation, may strive to ascertain the truth and to do justice, but unless we blind our eyes to the history of the long struggle in the mother country to secure protection to the liberty of the citizen, we must realize that a public investigation before a judicial tribunal, with the assistance of counsel and the privilege of cross-examination, is the best, if not the only, way to secure that result." (194 U. S. 179.)

Judge Holt in the Bosny case (supra) gives a lengthy and accurate description of proceedings in a deportation case.

"In actual practice the usual procedure is as follows: There are a number of officers called inspectors of immigration, connected with the office of the commissioner. Complaint that an alien is in this country in violation of law is usually made by one of these inspectors. The information upon which he bases the charge may have been obtained by himself upon investigation, or may have been furnished to him by others. Frequently such information is furnished by the city police, or by enemies of the person charged, acting through malice or revenge. Affidavits are obtained and are sent by the inspector to the Secretary at Washington, who, if he thinks a proper case is made out, issues a warrant for the arrest of the persons charged. This warrant is usually intrusted for execution to the inspector who has made the charge, and he subsequently usually takes entire charge of the case. After the aliens have been taken to Ellis Island, they are held in seclusion and not permitted to consult counsel until they are first examined by the inspector, under oath, and their answers taken by a stenographer. After this preliminary inquisition has proceeded as far as the inspector wishes, the aliens are then informed that they are entitled to have counsel, and to give any evidence they wish in respect to the charge. Thereafter a further hearing is had before the inspector, at which further evidence may be given by him, and the aliens may appear by counsel and offer evidence in their own behalf. The inspector thereupon reports whether in his opinion guilt has been established, and the evidence taken and the inspector's findings are sent to the Secretary of Commerce and Labor at Washington, who thereupon makes an order either for the deportation or the release of the aliens. It is, of course, obvious that such a method of procedure disregards almost every fundamental principle established in England and this country for the protection of persons charged with an offense. The person arrested does not necessarily know who instigated the prosecution. He is held in seclusion, and is not permitted to consult counsel until he has been privately examined under oath. The whole proceeding is usually substantially in the control of one of the inspectors, who acts in it as informer, arresting officer, inquisitor, and judge. The Secretary who