Bridges v. Wixon , 144 F.2d 927 ( 1944 )

WILBUR, Circuit Judge.

The appellant, in custody of the respondent under a warrant for deportation, sought release by habeas corpus in the District Court for the Northern District of California. That court issued an order to show cause and, upon the showing made by the return and traverse, denied the petition and remanded the petitioner to the custody of the respondent. From that order the petitioner appeals to this court. The appellant attached to his petition for a writ a transcript of the entire proceedings before the Inspector who ordered deportation, the record of petitioner’s appeal before the Appeal Board set up by the Attorney General, which recommended against deportation, and the final order of the Attorney General upon a review of the Appeal Board’s decision ordering the deportation of the petitioner.

While the power of the District Court and of this court in such an application is well settled, in view of the wide range of the argument it is well to state again the limits of the court’s authority in the premises.

The statute providing for deportation of undesirable aliens by the Attorney General provides that:

“In every case where any person is ordered deported from the United States under the provisions of this chapter, or of any law or treaty, the decision of the Attorney General shall be final.” 8 U.S.C.A. § 155(a).

Thus the court has no power derived from Congress to review or to inquire into the truth of the charge against the alien, nor into the manner in which the decision has been reached by the Attorney General. The right of the court to consider the validity of the order of deportation at all is derived directly from the Fifth Amendment to the Constitution of the United States, which prohibits a deprivation of liberty or property without due process of law.

The Supreme Court, in United States v. Ju Toy, 198 U.S. 253, 255, 25 S.Ct. 644, 49 L.Ed. 1040, stated the rule controlling the court in such a case as follows :

“Where the law has confided to a special tribunal authority to hear and determine matters arising in the course of its duties, a decision by it within the scope of its authority as to questions of fact is conclusive against collateral attack. Where the jurisdiction depends upon a question of fact which is the very gist of the controversy, the determination of that is generally final, [citing cases]

“Where the decision of questions of fact is committed by Congress to the head of a Department, his decision thereon is conclusive; * *

This last statement is subject -only to a court review upon the question of due process under the Fifth Amendment to the Constitution.

In Zakonaite v. Wolf, 226 U.S. 272, 275, 33 S.Ct. 31, 32, 57 L.Ed. 218, it is said, (Mr. Justice Pitney writing the opinion) :

“It is entirely settled that the authority of Congress to prohibit aliens from coming within the United States, and to regulate their coming, includes authority to impose conditions upon the performance of which the continued liberty of the alien to reside within the bounds of this country may be made to depend; that a proceeding to enforce such regulations is not a criminal prosecution within the meaning of the 5th and 6th Amendments; that such an inquiry may be properly devolved upon an executive department or subordinate officials thereof, and that the findings of fact reached by such officials, after a fair though summary hearing, may constitutionally be made conclusive, as they are made by the provisions of the act in question.”

In Tisi v. Tod, 264 U.S. 131, 133, 44 S.Ct. 260, 68 L.Ed. 590, it is said (Mr. Justice Brandéis writing the opinion) :

“We do not discuss the evidence, because the correctness of the judgment of the lower court is not to be determined by enquiring whether the conclusion drawn by the Secretary of Labor from the evidence was correct, or by deciding whether the evidence was such that, if introduced in a court of law, it would be held legally sufficient to prove the fact found.

“The denial of a fair hearing is not established by proving merely that the decision was wrong. Chin Yow v. United States, 208 U.S. 8, 13, 28 S.Ct. 201, 52 L.Ed. 369. This is equally true whether the error consists in deciding wrongly that evidence introduced constituted legal evidence of the fact or in drawing a wrong inference from the evidence. The error of an administrative tribunal may, of course, be so flagrant as to convince a court that the hearing had was not a fair one. Compare United States ex rel. Bilokumsky v. Tod,¹ 263 U.S. 149, 44 S.Ct. 54, 68 L.Ed. [221]; Kwock Jan Fat v. White,² 253 U.S. 454, 40 S.Ct. 566, 64 L.Ed. 1010; Zakonaite v. Wolf, 226 U.S. 272, 33 S.Ct. 31, 57 L.Ed. 218; Tang Tun v. Edsell, 223 U.S. 673, 32 S.Ct. 359, 56 L.Ed. 606. * * * Under these circumstances, mere error, even if it consists in finding an essential fact without adequate supporting evidence, is not a denial of due process of law.”

In United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U.S. 103, 110, 47 S.Ct. 302, 305, 71 L.Ed. 560 (Mr. Justice Stone, now Chief Justice, writing the opinion) it is said:

“But we find it unnecessary to consider this question [a question of burden of proof], as we think that the record taken as a whole and without the aid of any statutory presumption presents some evidence supporting the deportation order.”

We have consistently followed the decisions of the Supremej Court in this circuit upon this subject. In Whitty v. Weedin, 9 Cir., 68 F.2d 127, 130, in considering an appeal from a decision of the trial court denying release by habeas corpus where the defendant was held under a deportation warrant, it is said:

“The point to be determined by us is whether the appellant had a fair hearing, and, if it appears from the record that ho had, we are not at liberty to disturb the decision of the lower court. The truth of the facts is for the determination of the immigration tribunals, and where its procedure and decision are not arbitrary or unreasonable, and the alien has had a fair hearing, the result must be accepted.”

This decision was followed and quoted in a similar case: Monji Uyemura v. Carr, 9 Cir., 99 F.2d 729. See also, our decision in Chin Share Nging v. Nagle, 9 Cir., 27 F.2d 848; Mui Sam Hun v. United States, 9 Cir., 78 F.2d 612.

The Supreme Court applied the rule in the late case of Costanzo v. Tillinghast, 287 U.S. 341, 342, 53 S.Ct. 152, 153, 77 L.Ed. 350, wherein it is said:

“The Circuit Court of Appeals properly negatived' the asserted absence of any evidence to support the action of the Secretary of Labor, and therefore refused, as we do, to review that officer’s findings.” [citing cases]

Under the Fifth Amendment, as these authorities clearly show, deprivation of liberty in the execution of the deportation statute without due process of law is not countenanced and victims of such practice may come to the courts for relief by filing petitions for the issuance of the •writ of habeas corpus. The courts can act in no other manner.

The courts have uniformly held that Congress cannot authorize a deprivation of liberty without due process of law as provided in the Constitution by the device of making the fact findings of an administrative board conclusive on the courts. That is to say, findings made without supporting evidence or without a hearing before the administrative body or officer are held by the courts to be void. Hence, on this purely collateral proceeding in habeas corpus, the validity of the order of the Attorney General for detention for deportation may be questioned but only to the extent necessary to determine whether there has been a denial of due process by the Attorney General. The parties recognize the rule, but their argument of'facts in some instance extends far beyond our power of examination. In effect they ask us to do what is condemned in Federal Trade Commission v. Algoma Lumber Co., 291 U.S. 67, 54 S.Ct. 315, 78 L.Ed. 655, “pay lip service” to the statute.

The petitioner claims that the Attorney General applied an erroneous rule as to the Government’s burden of proof and argues that the Government should establish its case beyond a reasonable doubt and that we are to judge whether or not this burden has been sustained. This whole contention is erroneous as the authorities hereinbefore cited indisputably show. The case of Schneiderman v. United States, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796, cited by appellant does not support this view and that decision has no application here. In that case the Supreme Court was reviewing a decision by a District Court and a Circuit Court of Appeals in equity revoking an order or decree admitting Schneiderman to citizenship. The rule there stated is for the guidance of federal courts exercising equity jurisdiction. The rule there applied by the courts is not applicable to a hearing on habeas corpus to determine whether or not the petitioner has had a fair hearing where the rule is that findings of the administrative body are conclusive if supported by evidence.

Congress, of course, could have given the courts jurisdiction over the subject of ordering aliens from the country as it gave the courts jurisdiction over the subject of naturalization of aliens and of the cancellation of naturalization decrees, but it did not do so. Instead, it set up elaborate official machinery for the handling of this subject, which formerly was under the operation of other executive departments of the Government but which is now operated by the Department of Justice, of which the Attorney General is the administrative head. Our decision upon this appeal must be against the appellant if we discover in the record any evidence supporting the finding of the Attorney General. Thus his decision as to the weight and effect of the evidence is conclusive.

Congress has provided for the deportation of aliens belonging to or affiliated with certain subversive organizations described in the statute (8 U.S.C.A. § 137), from which we quote as follows :

“Any alien who, at any time, shall be or shall have been a member of any one of the following classes shall be excluded from admission into the United States:

“(c) * * * Aliens who * * * are members of or affiliated with any organization, association, society, or group, that believes in, advises, advocates, or teaches: (1) the overthrow by force or violence of the Government of the United States * # *

“(e) * * * Aliens who are members of or affiliated with any organization, association, society, or group, that writes, circulates, distributes, prints, publishes, or displays, or causes to be written, circulated, distributed, printed, published, or displayed, or that has in its possession for the purpose of circulation, distribution, publication, issue, or display, any written or printed matter of the character described in paragraph (d) [advising, advocating, or teaching the overthrow by force or violence of the Government of the United States].

“(f) Definition of advising, advocacy, teaching, or affiliation. For the purpose of this section: (1) the giving, loaning, or promising of money or anything of value to be used for the advising, advocacy, or teaching of any doctrine above enumerated shall constitute the advising, advocacy, or teaching of such doctrine; and (2) the giving, loaning, or promising of money or anything of value to any organization, association, society, or group of the character above described shall constitute affiliation therewith; but nothing in this paragraph shall be taken as an exclusive definition of advising, advocacy, teaching, or affiliation.

“(g) Deportation. Any alien who was at the time of entering the United States, or has been at any time thereafter, a member of any one of the classes of aliens enumerated in this section, shall, upon the warrant of the Attorney General, be taken into custody and deported in the manner provided in sections 101, 102, 105, 108, 109, 113, 115, 116, 132, 136, 138, 139, 142-156, 158-166, 168, 169, 171, 173, 175, 177, and 178 of this title. The provisions of this section shall be applicable to the classes of aliens mentioned therein, irrespective of the time of their entry into the United States.”

The Attorney General, acting under § 137(g), supra, issued a warrant for appellant’s arrest on February 14, 1941. Hearing was had before the Inspector, beginning March 31, 1941 and ending June 12, 1941, occupying substantially all of forty-two trial days. Appellant was there represented by three attorneys of his own choice and was accorded full opportunity to subpoena witnesses, introduce evidence, and cross-examine witnesses. Appellant testified extensively in his own behalf and, in addition, presented testimony of twenty-nine other witnesses and numerous exhibits. A shorthand reporter took down the entire proceeding; the transcript of his notes occupies 6,972 pages of the printed record before us.

The Inspector decided in favor of the Government and appellant appealed to the Appeal Board which received further briefs and heard oral argument, and reversed the decision of the Inspector. Thereafter the Attorney General, upon the record, reviewed the matter and made the following findings of fact and conclusions of law:

“ * * * I make the following Findings of Fact and Conclusions of Law, proposed by Judge Sears, to wit:

“Findings of Fact

“1. That Harry Renton Bridges is an alien, to wit, a native and citizen of Australia ;

“2. That said alien entered the United States at the port of San Francisco, California, April 12, 1920, as a member of the crew of the barkentine Ysabel;

“3. That the Communist Party of the U.S.A., from the time of its inception in 1919 to the present time, is an organization that believes in, advises, advocates, and teaches the overthrow by force and violence of the Government of the United States;

.“4. That the Communist Party of the U.S.A., from the time of its inception to the present time, is an organization that writes, circulates, distributes, prints, publishes, and displays printed matter advising, advocating, or teaching the overthrow by force and violence of the Government of the United States;

“5. That the Communist Party of the U.S.A., from the time of its inception to the present time, is an organization that causes to be written, circulated, distributed, printed, published, and displayed printed matter advising, advocating, and teaching the overthrow by force and violence of the Government of the United States;

“6. That the Communist Party of the U.S.A., from the time of its inception to the present time, is an organization that has in its possession for the purpose of circulation, distribution, publication, issue, and display, printed matter advising, advocating, and teaching the overthrow by force and violence of the Government of the United States;

“7. That the Marine Workers’ Industrial Union was a part of the Communist Party, dominated and controlled by it;

“8. That the Marine Workers’ Industrial Union was an organization that believed in, advised, advocated, and taught the overthrow by force and violence of the Government of the United States;

“9. That after entering the United States the alien has been a member of the Communist Party;

“10. That after entering the United States the alien has been affiliated with the Communist Party;

“11. That after entering the United States the alien has been affiliated with the Marine Workers’ Industrial Union.

“Conclusions of Law.

“That under the Act of October 16, 1918, as amended by the Acts of June 5, 1920, and June 28, 1940, the alien Harry Renton Bridges, is subject to deportation in that:

“1. After entering the United States he has been a member of an organization, association, society, or group that believes in, advises, advocates, and teaches the overthrow by force and violence of the Government of the United States;

“2. That after entering the United States the alien has been affiliated with an organization, association, society, or group that believes in, advises, advocates, and teaches the overthrow by force and violence of the Government of the United States;

“3. That after entering the United States the alien has been a member of an organization, association, society, or group that writes, circulates, distributes, publishes, and displays printed matter advising, advocating, and teaching the overthrow by force and violence of the Government of the United States;

“4. That after entering the United States the alien has been affiliated with an organization, association, society, or group that writes, circulates, distributes, publishes, and displays printed matter advising, advocating, and teaching the overthrow by force and violence of the Government of the United States;

“5. That after entering the United States the alien has been a member of an organization, association, society, or group that caused to be written, circulated, distributed, published, printed, and displayed, printed matter advising, advocating, and teaching the overthrow by force and violence of the Government of the United

“/s/Francis Biddle,,

“May 28, 1942. Attorney General.”

As it is admitted that petitioner is an alien, a citizen of Australia, the only question before us is as to his membership' in or affiliation with proscribed organizations. As to that, the question, and the only question which we are authorized to decide, is not whether the petitioner is a member of the Marine Workers’ Industrial Union or the Communist Party, or is affiliated with either, or whether such organizations are subversive organizations, but whether or not there was evidence in the hearing before the Inspector, and therefore before the Attorney General, from which inferences could reasonably be drawn in support of the facts found.

Harry Lundeberg, president of the Maritime Federation of the Pacific, testified that the appellant had stated to him in the summer of 1935 that he was then a member of the Communist Party. This evidence was competent as an admission of the appellant. The question of the credibility of this witness, and the weight of the supporting and the conflicting evidence, finally lie wholly within the conclusive fact finding power of the Attorney General and are beyond our power of review. For the same reason, if there is evidence to support the finding of affiliation with the Marine Workers’ Industrial Union, or the findings that these organizations, or either of them, were subversive, we may not weigh it against the contrary evidence. As to the subversive character of the Communist Party of the United States, there is evidence that in July 1929 “The Communist”, a magazine published and circulated by the Communist Party, contained the following statement concerning the purpose of the Communist Party .in the United States which clearly shows its purpose to change our government by force and violence:

“When Communists urge strikes and crippling of industry in time of war we are accused of trying to bring about the defeat of ‘our own’ government. To that charge we plead guilty. That is precisely our aim. A government engaged in warfare is weaker than at other times in spite of the fact that its savage repressions make it appear strong to the superficial observer. At such a moment an organized drive to stop the production of war supplies, to •cripple the transportation system may result in creating such difficulties that the imperialist forces may be defeated.

“But it is not sufficient in our drive against imperialist war merely to concentrate .upon the war industries. We must fee able to reach the masses in the armed forces of the nation with revolutionary agitation and propaganda calculated to cause defections and mutiny in the ranks.

“We do not indulge in the social, democratic twaddle about disarmament. We will not tell the soldiers in the army to throw away their guns and run home. We tell them to hold their guns in their hands and use them against their own capitalist oppressors. When faced with an imperialist war as an accomplished fact we must be able to popularize definite revolutionary slogans among the armed forces. In case of a war between imperialist nations we raise the slogan of fraternization with the soldiers of the opposing army, refusal to obey commands of officers, mutinies, and other forms of disruptive work. In case of a war against the Soviet Union our main slogan will be different. We will then urge the soldiers in the imperialist armies to desert the army and with their guns and as much ammunition as they can get, go over to the side of the Red Army against the imperialistic forces.

“While the capitalists prepare for another imperialist war, we prepare to utilize the difficulties for capitalism arising out of such a war in order to initiate the next stage of the world revolution.

“We realize that such a conflict requires careful preparation under the leadership of a determined Bolshevik party. Turning an imperialist war between nations into a civil war against capitalism is not a simple matter, it is not a game for dilettantes to play. It requires the most highly developed revolutionary strategy and an ability to estimate the relative forces involved in the struggle as well as the precise moment for the launching of the insurrection.

“When a revolutionary situation is developing, as a result of war or from any other cause, the party of the proletariat must lead a direct attack against the capitalist state. The slogans put forth must be of such a nature as to guide the movement in its development, which will take the form at first of mass strikes and armed demonstrations. In that stage there arises the question of arming of the working class and disarming the capitalist class. Finally the highest form of struggle is reached wherein it culminates in the general strike and a merging of large sections of the military forces and the workers for armed insurrection against the capitalist state power.”

There is a vast volume of evidence in the record upon this subject which we have painstakingly examined but which we do not discuss for the reason that when we have pointed out this extract from the Communist magazine, we need go no further since it unquestionably constitutes evidence in support of the finding that the Communist Party advocates rebellion. The record thus shows evidence, firstly, that the appellant had been a member of the Communist Party since he entered this country and, secondly, that the Communist Party believed in, advocates and teaches the overthrow by force and violence of the Government of the United States. Congress has authorized the deportation, upon warrant of the Attorney General, of aliens who belong or have belonged to such an organization. 8 U.S.C.A. § 137, supra.

Prior deportation proceedings were instituted against the appellant in 1938 under 8 U.S.C.A. § 137 as it then stood, providing for deportation of members of subversive organizations. During the progress of the proceedings the Supreme Court interpreted the statute to apply only to those who were members of such organizations at the time deportation proceedings were instituted. Kessler v. Strecker, 307 U.S. 22, 59 S.Ct. 694, 83 L.Ed. 1082. The Inspector who was in charge of the hearing concluded that the appellant had terminated his connection, if any, with the Communist Party prior to the institution of the proceedings and therefore dismissed the proceedings for the warrant of deportation. Thereafter, Congress, on June 28, 1940, modified the act to apply to any alien who was “at the time of entering the United States, or has been at any time thereafter, a member” of an excluded class of aliens, including past or present members or affiliates of subversive organizations. (54 Stat. 673, 8 U.S.C.A. § 137(g). Thereafter the proceedings now under attack were inaugurated and were heard before a different Inspector. Such later hearing resulted in the order of deportation now under attack.

We recite this history as an aid to the understanding of a number of legal points raised by appellant which we shall now proceed to treat. It is claimed that the decision by the Inspector in the first proceeding is res judicata on the question now before us. The question before the Inspector in the earlier case relates only to whether or not the appellant was at the time of the institution of the proceedings a member of or was an affiliate of a proscribed organization and did not cover the question in the present case which is as to whether or not the appellant has been at any time since his arrival in this country a member or affiliate of such an organization.

It is also claimed that the appellant has been subject to double jeopardy in violation of the Constitution of the United States. The principle of double jeopardy applies only to criminal proceedings. This is not a criminal proceeding.

It is claimed that the act of 1940 is an ex post facto law in that it permits deportation for conduct prior to the enactment of the amended law. The constitutional prohibition against ex post facto laws applied only to criminal proceedings. A proceeding for deportation is not a criminal proceeding and is not intended nor designed to punish crime.

Appellant argues that the evidence of Lundeberg was so unworthy of credence that it should be held as a matter of law to be of no weight whatever. It is not for us to say whether or not the Attorney General was justified in accepting it as sufficient proof of the facts stated by Lundeberg, namely, that Bridges had stated to him that he was a member of the Communist Party. To assert that the Attorney General was bound to disbelieve the evidence of this witness would be to invade his province and to assume the obligation of determining the facts. Congress, acting within its legislative power, has effectively prohibited the determination of the facts by any court or any body other than the Attorney General. 8 U.S.C.A. § 155(a), supra. We do not mean to say that we would be bound to consider any testimony received in the case as beyond our question. Testimony, of course, could be so inherently impossible or improbable of belief that its receipt or its acceptance as proof would be an abuse of the administrative discretion but we have no such instance here. Because we cannot weigh the credence to be given the testimony of Lundeberg, we do not recite in detail the evidence which is claimed to discredit his testimony. Such evidence is to the effect that Lundeberg was hostile to the appellant, and that he had made prior statements that he did not know whether or not the appellant was a member of the Communist Party.

It was claimed by the immigration authorities that one O’Neil had made statements to them (one a shorthand reporter who claims to have taken the statements in shorthand at the time) that he had seen the appellant pasting stamps in his Party Book, such stamps indicating that the appellant was paying dues to the Communist Party. O’Neil was called as a witness by the immigration authorities and denied that he knew anything about appellant’s relation to the Communist Party, although he claims to have told only the truth to the authorities. His contradictory statements made to the authorities were then admitted in evidence, including the transcription of the reporter’s shorthand notes. Appellant claims that the admission and consideration of these asserted statements by O’Neil rendered the deportation proceeding unfair and void. Neither the Inspector nor the Attorney General is bound by the common law rules of evidence, and it is not true that the reception of incompetent or hearsay evidence is a ground for treating the decision of the Inspector and Attorney General as void. There being evidence to support the finding of the Inspector and Attorney General that the appellant was a member of the Communist Party, the acceptance of additional evidence of less probative value by the Inspector and the Attorney General cannot avail the appellant in this collateral proceeding. The applicable rule was stated in United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 157, 44 S.Ct. 54, 57, 68 L.Ed. 221, as follows:³

“Moreover, 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, 32 S.Ct. 359, 56 L.Ed. 606.”

We may add with propriety that it is a heavy burden to decide which person told the truth in the direct conflict occurring in the testimony of Lundeberg and Bridges and in the asserted statement of O’Neil and the testimony of Bridges. The statement by Lundeberg that Bridges claimed to be a Communist falls into a class of evidence that is easily given and hard to refute. In view of the authorities cited the danger of mistake which is undeniably present is for the administrative head and for him alone to take. Under the law that burden fell finally and squarely upon the Attorney General. The district judge, whose judgment we are reviewing, and this court would be exercising power we do not legally possess if we should essay to assume that burden. The courts do not have unlimited sanction to attempt the righting of every governmental act which the judges regard as wrong; their first duty is to act only within their limited power.

During the progress of the deportation proceedings three opinions were written; one by the presiding inspector, Judge Sears, formerly of the Court of Appeals of the State of New York, and another by the Board of Immigration Appeals; and a third by the Attorney General. Each of these sets forth in great detail the reasons and bases for the conclusions reached. The Inspector’s findings were against the appellant; those of the Board were in his favor; and those of the Attorney General sustained the Inspector. A considerable part of the briefs deals with the reasoning and pronouncements of these various opinions. We are not concerned with the mental processes by which these conclusions were reached, although it is worthy of mention that the Attorney General stresses the fact that Inspector Sears, with whose determination he agrees, had the witnesses before him and was for that reason better able to adjudge of their credibility than one could be who has merely studied the record.

The briefs before us discuss the question whether or not the appellant was affiliated with the Communist Party or with the Marine Workers’ Industrial Union. As the warrant for deportation is supported by the findings of the Attorney General that the appellant was a member of the Communist Party, it is not necessary for us to determine whether there is evidence to support the finding of the Attorney General that appellant was affiliated with that organization or with the Marine Workers’ Industrial Union, or whether or not the latter named organization was a part of the Communist Party. However, lest we be misunderstood, we state that we have carefully reviewed all of the evidence regarding the relation of the Marine Workers’ Industrial Union with the Communist Party and appellant’s relation to these two organizations. This review has convinced us that there is evidence to support the findings of the Attorney General that the Marine Workers’ Industrial Union was a part of the Communist Party and that appellant was affiliated with it during the period of the longshoremen’s strike. It may be stated arguendo that appellant, in his management of that strike, was attacking most vicious and inhumane practices toward longshoremen and that he was justified in accepting help from any quarter. The very bad conditions referred to were amply established by the evidence but this circumstance does not lessen the fact that the evidence adduced before the Inspector supports the inference and the finding that appellant was in affiliation with the organization known as the Marine Workers’ Industrial Union.

Likewise, we hold that the evidence supports the Attorney General’s findings 4; 5 and 6.

A witness named Maurice J. Cannalonga, who testified in favor of the immigration authorities, and subsequently signed statements repudiating his testimony, was again brought before the Inspector by the immigration authorities after demand by the appellant, and again testified, as he had in the first instance, repudiating his conflicting statements on the ground that he was confused for the reason “he had been hitting the booze heavy then.” The testimony of this witness was disregarded, as appears from the statement of the Inspector and the Board of Appeals. It is claimed, however, that when he was placed upon the stand the second time the immigration authorities were cognizant of the fact that he was intending to commit perjury on the stand. It is claimed also that the testimony of this witness was fabricated. In support of the suggestion that this invalidates the whole proceeding, the appellant cites the case of Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, 98 A.L.R. 406. That case holds that where the state, through its administrative officers, conspires to use the courts of the state for the purpose of convicting a man known to be innocent, by fabricated testimony, such conduct by the state constitutes a denial by the state of due process.

It is not shown how the government officials could know that a repetition of his testimony theretofore given was perjury even though it were known that after being interviewed by appellant’s counsel he had given a statement contrary to the testimony first made under oath in the deportation proceeding. See, Ghiggeri v. Nagle, 9 Cir., 19 F.2d 875.

This aspersion upon the integrity of the Government’s attorneys is wholly gratuitous and without foundation in fact.

Order affirmed.

1 In the cited case (opinion of Justice Brandéis) the alleged alien was being examined in a deportation proceeding and statements made by him while confined by state authorities were introduced in evidence. In a subsequent habeas corpus proceeding it was claimed that this was not legal evidence. The Supreme Court rejected the claim.

2 In the cited habeas corpus proceeding (opinion by Judge Clarke), had after the subject of the habeas corpus petitions had been denied entry to this country by immigration authorities, it was shown that the transcript sent the Commissioner of Immigration omitted evidence that the subject was confronted by three persons who recognized him as the person he claimed to be. The Supreme Court held the order denying entry void as the subject had not been accorded “due process.”

3 It must not be assumed that the Lundeberg and O’Neil testimony is the only relevant testimony in the case. We discuss this testimony because of its importance and because of the attack made upon it by appellant