1. Want of due process in proceedings for the deportation of an
alien is not established by showing merely that the decision was
erroneous or that incompetent evidence was received and considered.
P.
273 U. S.
106.
Page 273 U. S. 104
2. Insofar as concerns proofs, an order of deportation is upheld
in habeas corpus if there was some evidence to support it and no
error is so flagrant as to convince a court of the essential
unfairness of the trial. P.
273 U. S.
106.
3. Statements of an alien tending to show that he belonged to an
excluded class at time of entry may be used in deportation
proceedings, whether made before or after his admission. P.
273 U. S.
110.
4. Evidence of identity of an alien with the author of seditious
pamphlets and speeches may be found in a similarity of names,
appellations, nativity, etc. P.
273 U. S.
111.
5. The silence of the alien without sufficient explanation, when
called upon to testify, may be persuasive evidence against him,
even as to incriminating matters, when they are not privileged. P.
273 U. S.
111.
6. The privilege against self-incrimination may be waived if not
timely asserted. P.
273 U. S. 113.
15 F.2d 127 affirmed.
Appeal from a judgment of the district court dismissing a writ
of habeas corpus.
MR. JUSTICE STONE delivered the opinion of the Court.
Vajtauer, appellant, was arrested in deportation proceedings on
a warrant issued April 4, 1924, by the Assistant Secretary of Labor
charging that Vajtauer, an alien, had entered the United States
December 1, 1923, in violation of the Act of October 16, 1918, c.
186, 40 Stat. 1012, as amended by the Act of June 5, 1920, c. 251,
41 Stat. 1008, printed, so far as relevant, in the margin.
[
Footnote 1]
Page 273 U. S. 105
The particular violations of the statute alleged were that,
prior to or at the time of his entry, appellant (1) believed in and
advocated the overthrow of the government of the United States or
all forms of law; (2) wrote, published, circulated, or had in his
possession for circulation written or printed matter advocating
opposition to all organized government; (3) wrote, published,
circulated, or had in his possession for circulation written or
printed matter advocating the overthrow by force or violence of the
government of the United States or of all forms of law.
After a hearing before an immigration inspector and a review of
all the proceedings by the Board of Review, the Secretary of Labor,
upon the recommendation of that board, ordered deportation. While
in the custody of the Commissioner of Immigration at the port of
New York, the alien assailed the legality of his detention in a
petition for a writ of habeas corpus which was issued by the
District Court for Southern New York. Upon the return of the writ
and after a hearing, that court dismissed the writ, remanded
appellant to the custody of the Commissioner, and stayed
deportation pending an appeal. 15 F.2d 127. The case comes here on
direct appeal on the ground that appellant was denied rights
guaranteed by the Fifth Amendment of the federal Constitution.
Section 238, Judicial Code, prior to the amendment of February 13,
1925.
Page 273 U. S. 106
The constitutional questions assigned are (1) that the
deportation order was unsupported by any substantial evidence, and
consequently appellant was denied a fair hearing and deprived of
his liberty without due process; (2) that the action of the
immigration authorities in drawing certain inferences from his
refusal to answer questions asked deprived him of the protection
against self-incrimination accorded by the Fifth Amendment.
Deportation without a fair hearing or on charges unsupported by
any evidence is a denial of due process which may be corrected on
habeas corpus.
Cf. Chin Yow v. United States, 208 U. S.
8;
Kwock Jan Fat v. White, 253 U.
S. 454. But a want of due process is not established by
showing merely that the decision is erroneous,
Chin Yow v.
United States, supra,
208 U. S. 13, or that incompetent evidence was received
and considered.
See Tisi v. Tod, 264 U.
S. 131,
264 U. S. 133.
Upon a collateral review in habeas corpus proceedings, it is
sufficient that there was some evidence from which the conclusion
of the administrative tribunal could be deduced, and that it
committed no error so flagrant as to convince a court of the
essential unfairness of the trial.
Tisi v. Tod, supra.
The ultimate question presented by this record, therefore, is
one of fact -- whether the warrant of deportation was supported by
any evidence that the alien when he entered the United States
advocated opposition to all organized government or the overthrow
of the United States government by force and violence within the
meaning of the statute. This requires a review of the evidence.
At the hearing before the immigration authorities on May 14,
1924, appellant, who was represented by counsel, was sworn as a
witness, gave his name as Emanuel Vajtauer and his occupation as
"Doctor of Psychology," and editor of the "Spravedlvost," a
Bohemian newspaper published in Chicago. He testified that he
resided in Illinois, that he entered the United States on
December
Page 273 U. S. 107
1, 1923, and that he was a citizen of Czechoslovakia by birth.
After answering other preliminary questions, he was then asked:
"Why did you come to the United States?" Appellant's attorney then
stated: "I will advise the alien not to answer any further
questions until the evidence upon which the warrant is based will
be presented here." [
Footnote
2] Appellant then stated that he would follow his attorney's
advice, and gave no further testimony. The immigration inspector
introduced in evidence a pamphlet, stated by him to bear the name
of Dr. E. M. Vajtauer as author. An interpreter testified that it
was Dr. Vajtauer's study of the Russian Revolution. The title, as
printed in the record, was: "Revolution and the Dictatorship of the
Proletariat, by Dr. E. Dajtauer, written in Moscow in the Spring of
1920." Translations of certain passages from the pamphlet by the
interpreter were spread upon the record. Some of these excerpts
merely gave an account of the Russian revolution and the
revolutionists' own justification for their overthrow of the
Russian government. Others, printed in the margin, purported on
their face to advocate the overthrow of government by revolution or
force. [
Footnote 3]
Page 273 U. S. 108
The inspector also placed in evidence a newspaper published by
the Slovak Labor Socialist Federation of America, containing a
report of a speech stated in the record to have been made by a Dr.
Vajtauer, the editor of the Bohemian daily, "Spravedlvost." In this
address, the causes and effects of the World War and of the
revolutionary movements in Europe were described from the
Page 273 U. S. 109
viewpoint of the proletariat. The speaker predicted a much
fiercer revolutionary struggle in this country than that which took
place in Europe and the concluding paragraphs, printed in the
margin, [
Footnote 4] suggest at
least that the speaker advocated such a revolution. Other
documentary evidence received consisted of an abridged report of
the "Fourth Congress of the Communist International, Meetings held
at Petrograd and Moscow, November 7 and December 3, 1922,"
containing a statement purported to have been made by a Dr.
Vajtauer, Czechoslovakia, on Cezchoslovakian affairs.
Page 273 U. S. 110
Under instructions of his attorney, appellant refused to answer
further questions calculated to establish his identity with the
author of the pamphlet and with the Dr. Vajtauer who made the
address reported in the newspaper article and the Dr. Vajtauer who
addressed the Congress of the Communist International.
A point much argued before us was whether § 23 of the
Immigration Law of May 26, 1924, c.190, 43 Stat. 165, which took
effect before the hearing was closed, placed on appellant the
burden of proving that he was not a member of a class of aliens
excluded from entering the United States by the immigration laws.
Section 23 provides in part:
"and in any deportation proceeding against any alien, the burden
of proof shall be upon such alien to show that he entered the
United States lawfully."
It was plausibly urged that the language of the statute, as well
as its legislative history, indicates that this clause relates only
to the proof of the regularity of the alien's entry with respect to
time, place, manner, and the like, and not to his membership in an
excluded class. But we find it unnecessary to consider this
question, 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 disregard the Moscow address as having no substantial bearing
on appellant's membership in an excluded class. But the extracts
from the pamphlet and the report of the Chicago speech, taken
together, are at least some evidence tending to show that the
author of them advised and advocated opposition to all organized
government and the overthrow of the United States government by
violence, and therefore could, as an alien, be excluded from
admission into the United States by the provisions of § 1 of the
Act of June 5, 1920,
supra, or, if admitted, deported if
found to have been a member of an excluded class at the time of
entry (§ 2). Statements made before or after
Page 273 U. S. 111
entry may be taken to indicate that he was subject to exclusion
at the time of entry.
The only other issue on which the government was required to
present evidence, assuming that the burden of proof rested on it,
was the identity of the appellant, admittedly an alien, with the
author of the pamphlet and the address. The similarity of names;
the fact that each was known as "Doctor;" that a Dr. Vajtauer, also
of Czechoslovakia, as was appellant, addressed the Fourth Congress
of the Communist International on Czechoslovakian affairs in
Moscow, where the pamphlet was written, and that, after the arrival
of appellant in the United States and his proceeding to Chicago, a
Dr. Vajtauer, who was editor of the Bohemian daily paper,
"Spravedlvost," as was appellant, made a public address in Chicago,
discussing the Russian revolution and suggesting the possibilities
of a similar revolution here, all taken together admit of the
inference that the appellant and the author of the pamphlet and
speech were one and the same person. This inference was
strengthened when the appellant, confronted by this record, stood
mute.
"Conduct which forms a basis for inference is evidence. Silence
is often evidence of the most persuasive character."
Bilokumsky
v. Tod, 263 U. S. 149,
263 U. S.
153-154. Appellant as a witness was called upon to
testify whether he was the author of the pamphlet and the Chicago
speech, facts within his knowledge. If the author, he was in a
position to challenge or explain away if possible any unfavorable
inference which might be drawn from the passages read into the
record. His silence without explanation other than that he would
not testify until the entire evidence was presented, was, in
itself, evidence that he was the author. In addition, it fortified
the inferences drawn from the pamphlet and speech by the
immigration authorities.
Attention is directed to the fact that the refusal to testify
was based upon a supposed right of the witness
Page 273 U. S. 112
not to be called upon to testify until all the evidence in
support of the warrant was presented, and it is said that, if
silence is induced by a person's
"doubts of his rights, by a belief that his security will be
best promoted by his silence, then no inference of assent can be
drawn from that silence."
Commonwealth v. Kenney, 12 Metc. 235, 237;
People
v. Pfanschmidt, 262 Ill. 411, 449. But these cases merely
apply the rule that no inference may be drawn from silence where
there is no duty to speak, a rule which is not applicable where the
witness is sworn and under a legal duty to give testimony which is
not privileged. Undoubtedly, inferences from silence should be
cautiously drawn (
Bilokumsky v. Tod, supra), but the
weight to be given to silence is for the tribunal conducting the
trial.
It is said also that the evidentiary effect of silence was
limited by the decision in
Bilokumsky v. Tod, supra, to a
refusal to testify as to nonincriminating facts only. Although the
inference from silence in that case pertained to nonincriminating
facts, there was no intimation there that inferences could not be
drawn from a failure to testify to incriminating matter which are
not privileged. Here, as in that case, the objection to drawing the
inference can have force only insofar as there was a denial of the
constitutional immunity.
It is insisted that answers to the questions put to appellant at
the hearings which were held in Chicago might have tended to
incriminate him under the Illinois Syndicalism Law, Ill. R.S.1925,
c. 38, §§ 587-593, which condemns as a felony the advocacy or
publication of matter advising crime or violence or other unlawful
means of accomplishing the reformation or overthrow of the
government. Assuming that the constitutional immunity against
self-incrimination may be violated as well by inferences drawn from
silence with respect to incriminating matters as by testimony which
the witness is compelled to give, still it is necessary to inquire
whether the
Page 273 U. S. 113
appellant here has brought himself within the protection of the
immunity.
Throughout the proceedings before the immigration authorities,
he did not assert his privilege or in any manner suggest that he
withheld his testimony because there was any ground for fear of
self-incrimination. His assertion of it here is evidently an
afterthought. It is for the tribunal conducting the trial to
determine what weight should be given to the contention of the
witness that the answer sought will incriminate him,
Mason v.
United States, 244 U. S. 362, a
determination which it cannot make if not advised of the
contention.
Cf. In re Edward Hess & Co., 136 F. 988;
Ex parte Irvine, 74 F. 954, 960. The privilege may not be
relied on, and must be deemed waived, if not in some manner fairly
brought to the attention of the tribunal which must pass upon it.
See In re Knickerbocker Steamboat Co., 139 F. 713;
United States v. Skinner, 218 F. 870, 876;
United
States v. Elton, 222 F. 428, 435. This conclusion makes it
unnecessary for us to consider the extent to which the Fifth
Amendment guarantees immunity from self-incrimination under state
statutes, or whether this case is to be controlled by
Hale v.
Henkel, 201 U. S. 43;
Brown v. Walker, 161 U. S. 591,
161 U. S. 608.
Compare 26 U. S. Saline
Bank, 1 Pet. 100;
Ballmann v. Fagin, 200 U.
S. 186,
200 U. S.
195.
Judgment affirmed.
[
Footnote 1]
"The following classes are excluded from admission:"
"(a) Aliens who are anarchists;"
"(b) Aliens who advise, advocate, or teach, or who are members
of or affiliated with any organization, association, society, or
group, that advises, advocates, or teaches, opposition to all
organized government;"
"(c) Aliens who believe in, advise, advocate, or teach, or 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 or of all forms of law; . . ."
"(d) Aliens who write, publish, or cause to be written or
published, or who knowingly circulate, distribute, print, or
display, or knowingly cause to be circulated, distributed, printed,
published, or displayed, or who knowingly have in their possession
for the purpose of circulation, distribution, publication, or
display any written or printed matter advising, advocating, or
teaching opposition to all organized government, or advising,
advocating or teaching: (1) the overthrow by force or violence of
the government of the United States or of all forms of law. . .
."
Act Oct. 16, 1918, § 1, as amended by Act June 5, 1920.
Section 2 provides for the deportation of those who, at any time
after entering this country, are found to have been at the time of
entry members of the excluded class.
[
Footnote 2]
It was argued here that the objection took this form because
counsel at the hearing labored under the misapprehension that the
former rules which entitled an alien, at the beginning of the
hearing, to inspect the warrant of arrest and all the evidence on
which it was issued were still in force. These rules has been
changed before the first hearing of May 14, 1924. Even if counsel
was unaware of the changes at that time, the hearing was not
resumed until August 27, 1924, when the government's case was
closed. Counsel declined an invitation to have the alien testify in
his own behalf or to permit his examination although all the
evidence on which the warrant was based had been presented. No
reason for his not testifying was given.
[
Footnote 3]
"Only when you kill the bourgeois-capitalist, only then you will
be free. By this kind of primitive logic, it is usually necessary
to lead the revolting soldier in order that he should not
unnecessarily sacrifice himself and others."
"
* * * *"
"During the attack, the revolution must be merciless. It must
destroy the old system, not leaving even a single stone
unturned!"
"
* * * *"
"The people, who suffered too long, will knock to the ground the
socialist traitors and bourgeois, and will punish with death any
attempt of resistance. They have a right to do that. Others have
killed millions of their brothers previously. The lowest, the most
suffering class of people has seized the rule into its own hands.
It took away every chance of the murderers for further oppression
and crime. It dictates quietly to the farmer vampires. It carries
on the dictatorship of the proletariat!"
"This is the first problem of the proletarian dictatorship, and
this is to capture the murderers and traitors of the people, the
imperialists, militarists, capitalists, bourgeoisie and
social-democrats and prevent them from committing any further
crimes."
"
* * * *"
"Should the Bohemian worker have as much courage as the Russian
worker has, he would see quickly the necessity of seizing the rule
of factory into his own hands and expel the owner of the factory
who has no right to own the property of the factory. The plant,
which is to supply the needs of the people, belongs to the people,
and must be run only by the people, only by the working people. The
means of production are not a private property, they are the
people's property. Private property is only a masked loot of
people's property. The government, which recognizes private
property, is the government which recognizes the looting the
people, and how the robbers are treated. They are treated so that
they are not given chance to loot. The robber should be locked up,
irons should be put on his wrists, and guard placed to watch
him."
"
* * * *"
"Revolution is a sudden expansion of the people which suddenly
abolishes the injustice piled for centuries. The proletarian
dictatorship is an armed guard of liberties gained by
revolution."
[
Footnote 4]
"Pointing out the proletariat of America, the speaker said,
that, when the time comes when the American proletariat, which have
tasted a bit of the capitalistic luxuries, will find itself
deprived of these luxuries, then the American proletariat will be
much more revolutionary than that of Europe, it is hard to preach
revolution to the full stomach, but once this stomach is empty it
revolts, and seeks the means to obtain the supplies. The speaker
pictured the American proletariat as a mole, which got hold of a
bone thrown from the capitalistic table, to satisfy the hunger of
this mole. He predicted much fiercer revolutionary struggle in this
country than that which took place in Europe, much more blood will
be shed in this country than was shed in Europe."
"Toward the end of his speech, the speaker predicted that the
next large war will be between the European countries and America,
because America, being a creditor, would in due time demand the
payment of debt from debtors, and these, being poor, would try to
repudiate the American debt, this naturally would lead to war, and
it would be up to the proletariat to stop the war of this kind,
because the proletariat once more would be asked to supply the
army. The speaker pointed out the Communistic government of Russia
as an example for the proletariat of the other countries of the
world, further he said, that there is a probability of another
great war and this war may be the war between the United States
Proletariat countries of Europe, against the capitalistic America,
and then the proletariat of America would find itself in the
position either to fight the proletariat of Europe, or else fight
against its own capitalists, and it is up to the conscientious
leaders of the proletariat to prepare the workers for this fatal
moment."