Bridges v. Wixon

Mr. Chief Justice Stone.

Mr. Justice Roberts, Mr. Justice Frankfurter and I think that the deportation order should be sustained and the judgment below affirmed.

This case presents no novel question. Under our Constitution and laws, Congress has its functions, the Attorney General his, and the courts theirs in regard to the deportation of aliens. Our function is a very limited one. In this case our decision turns on the application of the long-settled rule that in reviewing the fact findings of administrative officers or agencies, courts are without authority to set aside their findings if they are supported by evidence. This Court has not heretofore departed from that rule in reviewing deportation orders upon collateral attack by habeas corpus, Tisi v. Tod, 264 U. S. 131; Vajtauer v. Commissioner of Immigration, 273 U. S. 103, 106; *167Costanzo v. Tillinghast, 287 U. S. 341, 343, and cases cited, and there is no occasion for its doing so now.

Congress, in the exercise of its plenary power over the deportation of aliens, has directed the deportation of any alien who, at the time of his entry into the United States or at any time thereafter, has been a member of or affiliated with “any organization, association, society, or group, that believes in, advises, advocates, or teaches . . . the overthrow by force or violence of the Government of the United States ... [or] that writes, circulates, distributes, prints, publishes, or displays . . . any written or printed matter” advising, advocating or teaching the overthrow by force or violence of the Government of the United States. §§ 1 and 2 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. 1008-1009, and the Act of June 28, 1940, c. 439, 54 Stat. 673, 8 U. S. C. § 137.

Congress has committed the conduct of deportation proceedings to an administrative officer, the Attorney General, with no provision for direct review of his action by the courts. Instead it has provided that his decision shall be “final,” 8 U. S. C. § 155, as it may constitutionally do. Zakonaite v. Wolf, 226 U. S. 272, 275, and cases cited. Only in the exercise of their authority to issue writs of habeas corpus, may courts inquire whether the Attorney General has exceeded his statutory authority or acted contrary to law or the Constitution. Bilokumsky v. Tod, 263 U. S. 149, 153; Vajtauer v. Commissioner of Immigration, supra. And when the authority to deport the alien turns on a determination of fact by the Attorney General, the courts, as we have said, are without authority to disturb his finding if it has the support of evidence of any probative value.

In this proceeding, the Attorney General, following the prescribed procedure, issued a warrant for the arrest of petitioner, charging that after his entry into the United *168States, he had been a member of and affiliated with organizations of the type referred to in the part of the deportation statute we have quoted. The Attorney General, as authorized by the applicable statutes and regulations, appointed the Honorable Charles B. Sears, an experienced judge formerly of the Court of Appeals of New York, to act as an inspector to hear evidence on the charges. The hearings before Judge Sears extended over a period of nearly three months, in the course of which evidence was offered by the Government and by petitioner, who was represented by counsel. The evidence is contained in more than seventy-five hundred typewritten pages of the record and in three hundred and fifty-nine exhibits. The record in this Court covers some seventy-eight hundred printed pages.

At the conclusion of the hearings, Judge Sears made his memorandum decision, in which he found that the Communist Party of the United States and the Marine Workers’ Industrial Union were, at all relevant times, each an organization which believed in and advocated the overthrow by force and violence of the Government of the United States, and that the Communist Party also wrote, circulated, distributed, printed, published and displayed printed matter advising, advocating or teaching the overthrow by force and violence of the Government of the United States. Those findings are not challenged here. Judge Sears also found that petitioner was subject to deportation, and recommended that he be deported, on two separate and independent grounds: (a) that he was a member of the Communist Party of the United States, and (b) that he was affiliated with the Communist Party and with the Marine Workers’ Industrial Union, which was a part of the Communist Party of the United States.

As we are of opinion that the finding of Bridges’ membership in the Communist Party, standing alone, supports the deportation order, and that the finding is supported *169by evidence, we deem it unnecessary to consider other contentions to which the Court's opinion is principally directed. The evidence of membership is of two kinds, and may be briefly summarized. It consists of background testimony of numerous witnesses, much of it uncontra-dicted, which Judge Sears found to be true and which showed that Bridges had long and continuously associated with Communists and Communist Party organizations, and had exhibited a sympathetic attitude toward the Communist Party and its program. More important and decisive of the issue now before us is evidence concerning Bridges’ interviews with two witnesses which, if true, as to either interview, showed that Bridges, both by his words and conduct, proved his membership in the Party.

One witness, Lundeberg, a prominent labor leader, testified that he had dined at Bridges’ home in 1935; that Bridges, along with a member of the Communist Party who was also present, urged the witness to join the Communist Party; and that this took place in the presence of two members of Bridges’ family and his secretary. Lundeberg testified that Bridges said on that occasion: “You don’t have to be afraid because nobody has to know you are a member of the Communist Party ... You don’t have to be afraid because I am one too ... I am a member of the Communist Party.”

Bridges denied making these statements, although he admitted that the witness had dined with him at his home in 1935 when several members of his family were present. The others said to be present failed to testify and their absence from the witness stand is unexplained.

The other witness, O’Neil, who was the publicity director of the C. I. O., a member of the Communist Party, and an intimate of Bridges, and who shared offices with him after 1936, made a statement to members of the Federal Bureau of Investigation that in 1937 he saw Bridges in his office pasting assessment stamps (receipts for pay*170ment of Communist Party dues) in a Communist Party book, which the witness was certain was petitioner’s membership book in the Party, and that Bridges on several occasions reminded the witness that he had not been attending Party meetings. The accuracy of the statement, as given in evidence, was verified by the stenographer who, testifying as a witness, read the statement from her stenographic notes. Major Schofield, a Special Assistant to the Attorney General, testified that O’Neil had repeated substantially the same statement to him in the presence of two witnesses. O’Neil, who had demonstrated his hostility to the Government and his unwillingness to testify, testified, when he was called as a Government witness, that he had made two statements at the times and in the manner indicated, and that they were true statements, but he denied that he had said that Bridges was a Communist or that he had seen him pasting assessment stamps in a Communist Party book.

Judge Sears, who saw and heard the witnesses, ruled that the prior statements of O’Neil were admissible. He declared in his decision that he believed and accepted as true Lundeberg’s testimony and O’Neil’s prior statements; that each supported his findings that Bridges was a Party member; and that each was corroborated by Bridges’ associations with Communist Party members and organizations as well as by other circumstances, appearing in the testimony, and which it is unnecessary to detail. On review the Board of Immigration Appeals proposed findings, which would have rejected the findings of Judge Sears as unsupported by evidence. The Attorney General declined to follow the recommendations of the Board, but instead adopted the findings of Judge Sears. He therefore ordered petitioner’s deportation.

On this record we have only a single question to decide. Was there some evidence supporting the findings of Judge Sears and the Attorney General that Bridges was a mem*171ber of the Communist Party? If there was, then, as we have said, we have no further function to perform and the judgment must be affirmed. To determine that issue we need not look beyond the testimony of Lundeberg. If his testimony is to be believed, Bridges admitted his membership in the Communist Party in circumstances which carry conviction of the truth of the fact admitted. It was for the hearing officer, Judge Sears, and the trier of fact, the Attorney General, not the courts, to say whether Lunde-berg was to be believed. In deciding that issue, the administrative officials could take into account, as they did, the facts that four persons, all evidently friendly to Bridges, and who according to the testimony were present at the interview between Lundeberg and Bridges, failed to testify and that Bridges’ failure to call them as witnesses stands unexplained. Interstate Circuit v. United States, 306 U. S. 208, 225-226, and, cases cited.

The conclusion which the two administrative officers, charged with finding the facts, have drawn from this testimony, is not to be brushed aside by saying that the O’Neil statements are inadmissible as evidence and that the triers of fact would not or might not have accepted Lundeberg’s testimony without O’Neil’s. For neither Judge Sears nor the Attorney General made acceptance of the one dependent on acceptance of the other. Not a word in Judge Sears’ decision or that of the Attorney General suggests that they did not regard the testimony of Lundeberg or the statements of O’Neil, each without the other, as sufficient to support their finding that Bridges was a member of the Communist Party. On the contrary, each declared that he accepted Lundeberg’s testimony and O’Neil’s statements, and that he believed each. It can hardly be said, without more, that they did not accept the credited evidence furnished by each witness as sufficient in itself to support their finding of Party membership.

But the record does not stop there. Both Judge Sears and the Attorney General examined the Lundeberg and *172the O’Neil testimony separately and made separate findings as to the effect to be given to each. The findings of Judge Sears, adopted by the Attorney General, show affirmatively that both officials accepted the testimony of Lundeberg and the statements of O’Neil, as independently sufficient to support the finding that Bridges was a member of the Communist Party.

Lundeberg’s testimony related wholly to his interview with Bridges in 1935. Of Lundeberg’s testimony, Judge Sears said:

“The question for me to answer is whether the Government has established that Bridges admitted to Lundeberg at the time specified that he was a member of the Communist Party. If he did so admit, it is in my judgment conclusive evidence of the fact.”

After examining Lundeberg’s testimony, and considering his demeanor on the witness stand, and the strongly corroborative circumstance that others, who were in a position to deny his testimony, had failed to do so, Judge Sears said:

“I reach the conclusion, therefore, that the conversation did take place substantially as testified by Lundeberg and that Bridges did then and there admit to Lundeberg that he was a member of the Communist Party.”

Thus Judge Sears clearly stated that Lundeberg’s testimony alone was sufficient to sustain a finding that petitioner was a member of the Communist Party in 1935.

At the conclusion of his like examination of O’Neil’s statements, which related wholly to O’Neil’s interview with Bridges in 1937, Judge Sears said:

“Having thus concluded that O’Neil made the statements attributed to him by Mrs. Segerstrom [the stenographer] and Major Schofield, I am also convinced of their truth. I do not overlook O’Neil’s repudiation of the statements or Bridges’ denials of the facts recited therein.

“Taking into consideration all the evidence bearing on this phase of the proceeding, I conclude that it is estab*173lished that the narrations contained in O’Neil’s statement to Mrs. Segerstrom and in his conversation in the presence of Major Schofield are the truth, and I find the fact that in accordance therewith that Bridges was in 1937, a member of the Communist Party.”

The Attorney General, after a like separate examination of the Lundeberg and O’Neil evidence, made it perfectly clear that he accepted Judge Sears’ findings as to each. He too said that the question as to each witness was a matter of his credibility, and that he believed the witness, rather than petitioner, because on this point he accepted Judge Sears’ finding that they, and not Bridges, were to be believed. The conclusion is inescapable that the adminstrative officers, whose concurrent findings we are bound to accept if supported by evidence, did not make their finding, from the Lundeberg testimony, that Bridges was a Party member in 1935, dependent in any degree upon their finding, from the O’Neil evidence, that Bridges was a member of the Party in 1937, or vice versa. This is particularly the case since Lundeberg’s and O’Neil’s testimony was not cumulative as to membership in the Communist Party at a single time; each testified as to a different time, some two years apart.

It is true that the Attorney General, in an introductory paragraph in his decision, said: “However, the evidence of two witnesses is accepted as showing that Bridges was a member of the Party. If this evidence is believed — and Judge Sears believed it — the doubt is decided.” But he went on to say that the question was one of credibility, and that Judge Sears, who saw the witnesses, was in a far better position to decide that question than the Review Board. He continued with a separate discussion of each witness and his testimony. He concluded as to each, without any reference to the other, that the witness should be believed rather than Bridges, and that Judge Sears’ conclusion as to the credibility of each (which was not de*174pendent upon his like conclusion as to the other) should be sustained.

The record thus conclusively shows that both Judge Sears and the Attorney General found, on the Lundeberg testimony alone, that Bridges was a member of the Communist Party in 1935. That finding is supported by the sworn testimony of Lundeberg, which was admissible in evidence and has probative force. As it supports the concurrent findings of Judge Sears and of the Attorney General that Bridges was a Party member at that time, we cannot reject that finding.

What we have said is not to be taken as conceding that O’Neil’s prior statements were improperly admitted. The Court rejects them on two grounds, that they were admitted in violation of departmental regulations, and that as hearsay they were so untrustworthy as to make them inadmissible in any event. We think neither ground tenable.

We find nothing in the rules and regulations applicable to deportation cases calling for the exclusion of the testimony concerning O’Neil’s prior statements.1 Rule 150.1 provides that statements secured during an investigation “which are to be used as evidence” shall be made under oath, and taken down in writing and signed by the person *175interrogated. Such a statement is denominated a “recorded statement” by the rule. The purpose of securing recorded statements is obviously to preserve evidence in a readily available form, and to insure that before a warrant of arrest is issued, there is credible evidence that the person investigated is an alien and is subject to deportation. It provides neither explicitly nor by implication that statements other than recorded statements are inadmissible.

It is true that Rule 150.6 excludes “recorded” statements unless the maker of the statement is unavailable, refuses to testify or gives inconsistent testimony. These restrictions on the admissibility of ex parte recorded statements hardly can be strained into a sweeping exclusion of all unrecorded statements, otherwise admissible in the proceeding. Indeed the rule on its face quite clearly permits an inspector to testify as to statements made by persons who are unavailable, refuse to testify or give testimony contradictory to a prior statement.2 The statements as to which the inspector may testify are not restricted by the terms of the rule to recorded statements. Hence Judge Sears’ ruling that Mrs. Segerstrom and Major Schofield could testify, under oath, that O’Neil had made statements to them in contradiction with his testimony on the stand, was not in conflict with the departmental rules.

But it is said that the evidence was in any event inadmissible. That the evidence would be inadmissible in a criminal proceeding is irrelevant here, since a deportation proceeding is not a criminal proceeding. Bugajewitz v. *176Adams, 228 U. S. 585, 591 and cases cited; Bilokumsky v. Tod, supra, 154-155; Mahler v. Eby, 264 U. S. 32, 39. And no principle of law has been better settled than that the technical rules for the exclusion of evidence, applicable in trials in courts, particularly the hearsay rule, need not be followed in deportation proceedings, Bilokumsky v. Tod, supra, 157, and cases cited; Tisi v. Tod, supra, 133; Vajtauer v. Commissioner of Immigration, supra, 106, more than in other administrative proceedings. Consolidated Edison Co. v. Labor Board, 305 U. S. 197, 229-230, and cases cited; Opp Cotton Mills v. Administrator, 312 U. S. 126, 155, and cases cited. The only objections that can be taken to the evidence in such proceedings are not to its admissibility, but to its probative value. See Consolidated Edison Co. v. Labor Board, supra, 230.

Judge Sears completely and accurately ruled on the admissibility of Mrs. Segerstrom’s and Major Schofield’s testimony as to O’Neil’s earlier statements to them. He said:

“Whatever may be the common-law rule in relation to the reception of such evidence as that of Mrs. Segerstrom and Major Schofield, in this hearing the parties are not confined to common-law proof. Hearsay is admissible but the character of such evidence is an element to be used in its evaluation. The principal reason for the exclusion of hearsay at common law is that the opportunity for cross-examination is absent. In the present case, the sanction of cross-examination was present. Although the statement given to Mrs. Segerstrom and the statement made in the presence of Major Schofield were not under oath, there is something equivalent, for O’Neil testified on the stand that he told the truth in his interview with the agents of the F. B. I. and in the interview at which Major Schofield was present. There is in my opinion, therefore, every reason why this testimony should *177be heard and considered as substantive proof. It falls within the definition of substantial evidence heretofore quoted.”

He appended in a footnote:

“(1) This view is fully supported by Dean Wigmore in the 3rd edition of his work (3 Wigmore, Evidence, 3rd ed., section 1018 (b)): ‘It does not follow, however, that Prior Self-Contradictions, when admitted, are to be treated as having no affirmative testimonial value, and that any such credit is to be strictly denied them in the mind of the tribunal. The only ground for so doing would be the Hearsay rule. But the theory of the Hearsay rule is that an extrajudicial statement is rejected because it was made out of Court by an absent person not subject to cross-examination. . . . Here, however, by hypothesis the witness is present and subject to cross-examination. There is ample opportunity to test him as to the basis for his former statement. The whole purpose of the Hearsay rule has been already satisfied. Hence there is nothing to prevent the tribunal from giving such testimonial credit to the extrajudicial statement as it may seem to deserve. Psychologically of course, the one statement is as useful to consider as the other; and everyday experience outside of court-rooms is in accord.' ”

See also Opp Cotton Mills v. Administrator, supra, 155, and cases cited.3

*178We think that the O’Neil statements were properly admitted and that, independently of the Lundeberg testimony, they warranted the Attorney General’s finding that Bridges was a Party member.

With increasing frequency this Court is called upon to apply the rule, which it has followed for many years, in deportation cases as well as in other reviews of administrative proceedings, that when there is evidence more than a scintilla, and not unbelievable on its face, it is for the administrative officer to determine its credibility and weight. Warehouse Co. v. United States, 283 U. S. 501, 508; Trade Commission v. Education Society, 302 U. S. 112, 117; Consolidated Edison Co. v. Labor Board, supra, 229; Labor Board v. Nevada Copper Co., 316 U. S. 105; Marshall v. Plets, 317 U. S. 383, 388; Labor Board v. Southern Bell Co., 319 U. S. 50, 60; Medo Corp. v. Labor Board, 321 U. S. 678, 681-682. We cannot rightly reject the administrative finding here and accept, as we do almost each week, particularly in our denials of certiorari, the findings of administrative agencies which rest on the tenuous support of evidence far less persuasive than the present record presents. That is especially the case here, since the Attorney General, the district court and the court of appeals have all concurred in the conclusion that the evidence is sufficient to support the findings. Coryell v. Phipps, 317 U. S. 406, 411; United States v. Johnson, 319 U. S. 503, 518; Mahnich v. Southern S. S. Co., 321 U. S. 96, 99, and cases cited; Goodyear Co. v. Ray-O-Vac Co., 321 U. S. 275, 278.

Petitioner has made a number of other arguments which the Court finds it unnecessary to discuss. We think that they too are without merit. We would affirm the judgment.

RuIe 150.6 (i) provides, in part: “An affidavit of an inspector as to the statements made by the alien or any other person during an investigation may be received in evidence, otherwise than in support of the testimony of the inspector, only if the maker of such statement is unavailable or refuses to testify at the warrant hearing or gives testimony contradicting the statement and the inspector is unavailable to testify in person.”

Wigmore concedes that his views have not been accepted by the courts generally. But, as we have said, the technical rules of evidence applied by the courts are not applicable to administrative proceedings. Consolidated Edison Co. v. Labor Board, 305 U. S. 197, 229-230, and cases cited; Opp Cotton Mills v. Administrator, 312 U. S. 126, 155, and cases cited. For that reason the considerations suggested by Wig-more are controlling here and the Attorney General and Judge Sears could rightly consider O’Neil’s statements as proof of the matters stated. Bilokumsky v. Tod, 263 U. S. 149, 157, and cases cited; Tisi v. Tod, 264 U. S. 131, 133; Vajtauer v. Commissioner of Immigration, 273 U. S. 103, 106.