Speech #810313854

Edsell (223 U. S. 673. 681 (1912)). A good summary of the basic elements of a fair hearing. as applied to deportation cases. appears in Whitfield v. Hanges (222 Fed. 745. 749 (C. A. 8. 1915) ) : Indispensable requisites of a fair hearing according to these fundamental principles are that the course of the proceedings shall be appropriate to the case and just to the party affected. that the accused shall be notified of the nature of the charge against him in time to meet it. that he shall have such an opportunity to be heard. that he may. if he chooses. crossexamine the witnesses against him. that he may have time and opportunity. after all the evidence against him is produced and known to him. to produce evidence and witnesses to refute it. that the decision shall be governed by and based upon the evidence at the hearing. and that only. and that the decision shall not be without substantial evidence taken at the hearing to support it. When the Administrative Procedure Act was enacted June 11. 1946. its provisions were considered by the Department of Justice in relation to the deportation process. Upon consideration of the history. purpose. and language of that statute. the Attorney General concluded that the provisions of sections 5. 7. 8. and 11 of the Administrative Procedure Act. regulating the conduct of administrative hearings. did not apply to deportation proceedings. Deportation proceedings continued to be conducted in conformity with the requirements of due process of law. as expounded by the courts and as described in the regulations of the Immigration and Naturalization Service. Under those regulations warrants of arrest in deportation proceedings were issued only. upon a determination that probable cause existed. When the alien was arrested he was furnished with a copy of the warrant of arrest and notified of his right to counsel and release under bond. After a reasonable time to enable the alien to prepare his defense and obtain counsel he was granted a hearing to determine whether he was subject to deportation. Hearings in deportation cases were held before immigrant inspectors. At such hearings the alien and his counsel were entitled to full participation and were given full opportunity to offer evidence. to make appropriate objections and exceptions. and to examine and crossexamine witnesses. The decisions in deportation cases were made by tha Commissioner of Immigration and Naturalization only upon the evidence incorporated in the record of hearing and the alien was afforded an opportunity to appeal to the Board of Immigration Appeals from an adverse order of the Commissioner. In numerous cases the failure to conform with the procedural requirements of the Administrative Procedure Act was challenged in the courts. Eventually the issue reached the Supreme Court of the United States and on February 20. 1950. that Court overruled the lower courts and decided. in Wong Yang Sung v. McGrath (339 U. S. 33). that the procedural requirements of the Administrative Procedure Act controlled deportation hearings. As a consequence of that decision the Immigration and Naturalization Service has made extensive revisions in deportation procedures and has issued new regulations to conform with the requirements of the Administrative Procedure Act. Under section 11 of that act hearing examiners must be specially appointed and their compensation will be substantially higher than that previously allotted to the immigrant inspectors who heard such cases. In addition. separate examining officers must be appointed to present the Governments case in each deportation hearing. Under the requirements of the Administrative Procedure Act. deportation proceedings will have to be more formalized and it will be necessary to appoint additional docket clerks. stenographers. and other personnel and to make provision for expanded facilities and supplies. Because of these expanded commitments occasioned by the need for complying with the Administrative Procedure Act. the Immigration and Naturalization Service has requested an additional appropriation of $3.980.000 for the fiscal year 1951. The enactment by Congress of legislation which would exempt deportation proceedings from the requirements of sections 5. 7. and 8 of the Administrative Procedure Act would in no way result in denial of a fair hearing to an alien charged in a deportation process. Under the mandate of the fifth amendment to the Federal Constitution. as expounded in the numerous decisions of the United States Supreme Court to which reference has been made. any deportation order which was not supported by a fair hearing would be fatally defective. Each alien against whom deportation charges are directed would still be entitled to a full hearing. to notification of the charges against him. to representation by counsel. to confrontation of opposing witness and evidence. and to complete opportunity to present evidence on his own behalf. The decision still would have to be based on evidence in the record. but the hearing would not have to conform with rigid statutory requirements of general application. It would be governed by regulations which would retain sufficient flexibility to meet changing conditions and. in the language of The JApanese Immigrant Case. would "secure the prompt. vigorous action contemplated by Congress. and at the same time be appropriate to the nature of the case upon which such officers are required to act." The enactment of such legislation exempting deportation hearings from the reach of sections 5. 7. and 8 of the Administrative Procedure Act would eliminate the need for appointing special hearing examiners under section 11 of the Administrative Procedure Act whose designation is commanded by section 11 in order to conduct hearings required under sections 7 and 8 of that statute. It would also avoid the compulsion of appointing separate examining officers to present evidence on behalf of the Government in every case. It would. moreover. eliminate the need for additional personnel. facilities and supplies which must be provided in order to comply with the formalized requirements of the Administrative Procedure Act.