Dong Ying Fun v. Nagle , 5 F.2d 310 ( 1925 )

HUNT, Circuit Judge

(after stating the facts as above). The contention that applicant was not given a fair and impartial hearing, and that the proceedings leading to his exclusion were arbitrary and illegal, is based upon the grounds: (1) That the board of special inquiry was improperly constituted, in that it was made up of members who acted in the dual capacity of members of the board as well as stenographers to the board; (2) and that the members of the board were so changed during the hearing that no two of them heard the testimony adduced in petitioner’s behalf.

The fact that one of the members of the board was a stenographer and kept the record of the proceedings and testimony is no ground for setting aside the findings. One acting in a capacity where he must pass upon the truth or falsity of evidence has a perfect right to record the testimony of witnesses.

The other ground is more important. Section 17 of the Act of February-5, 1917 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4289%ii), provides that boards of special inquiry shall be appointed by the Commissioner of Immigration or inspector in charge at the various ports of arrival as may be necessary for the prompt determination of cases of immigrants detained under the provisions of the law. Each board must consist of three members, who.shall be selected from such of the immigration officials in the service as the Commissioner General shall from time to time designate as qualified to serve on such board. The boards are required to keep complete and permanent records of their proceedings, and the decision of any two members of the board shall prevail, but either the dissenting member or the alien may appeal to the Commissioner of Immigration and the Commissioner General of Immigration and to the Secretary of Labor. The authority of the board of special inquiry is to determine whether an alien who has been duly held shall be allowed to land or shall be deported.

After the hearing on June 12th and the decision of the board provisionally denying entry, applicant asked for and was, given opportunity to take the testimony of an alleged brother living in Boston. His testimony was taken and returned to the authorities in San Francisco, where the board of special inquiry which again took up the mat-, ter was composed of three members, only one of whom had been on the several boards that had previously heard the matter. However, it was the last referred to board that considered “all the evidence adduced in the ease” and made the decision from which the applicant took his appeal to the executive authorities, and at no point in his appeal did he question the make-up of the board.

The provisional order, which was made by the same board that first heard testimony, is itself some evidence that the administrative authorities were conducting the inquiry with careful regard to ,the rights of the applicant. Although there was a change in the personnel of the boards, the one which finally passed on the matter was a lawfully constituted authority, and we think could consider the testimony that had theretofore been taken, including the deposition obtained in Boston. Tang Tung v. Edsell, 223 U. S. 673, 32 S. Ct. 359, 56 L. Ed. 606; Morrell v. Baker (C. C. A.) 270 F. 577.

The finding that there were material discrepancies between the testimony given by the several witnesses, and that the relationship of father and son had not been established, has sufficient support in the record to make interference by the court unwarranted.

The judgment is affirmed.