Interim Decision #1523

Interim Decision #1523

Marrinr-orDioNzin

In Deportation Proceedings

A-10180570

Decided by Board November .1964 and Martha 17, 1965

Decided by Attorney General November 5, 1965

The taking by the Service of oral depositions from witnesses before the United

States Consul in Calcutta, India, when respondent or his counsel was either

unwilling or unable to be present but who thereafter had full opportunity

to examine the depositions and to submit written cross-interrogatories, was

not prejudicial to respondent; nor was there error because one of the

witnesses when cross-examined was in Germany and no longer had access

to records which were in India, and such depositions serve to properly

authenticate the certificate of baptism and school record relating to respondent, executed and certified by the lawful custodians of such records

(the witnesses), entered in evidence as exhibits in the deportation proceedings in his case.

CHARGES

Warrant: Act of 1924—E8 U.S.C. 213 and 214, 1946 ed.]—No immigration

visa.

Lodged: Act of 1952—Section 241(a) (6) [8 U.S.C. 1251(a) (6)1—After

entry, member of Communist Party of United

States.

Set of 1952—Section 241(a) (5) [8 U.S.C. 1251(a) (5)1—Failed

to furnish notification of address.

BEFORE THE BOARD

This case is before us pursuant to an order entered by a special

inquiry officer on June 25, 1964, directing the respondent's deportation and certifying the case to this Board for final decision.

The respondent is a 60-year-old married male who claims he was

born in the United States and is a citizen. The special inquiry officer

found. that the respondent is an alien who was born in India and

concluded that he is deportable on the warrant charge and the first •

lodged charge. That officer adopted the previous findings which

had been made in sustaining the two charges. The findingzs in our

order of February 26, 1960 and in the special inquiry officer's order

, 378

Interim Decision #1524

of August 25, 1959 were to the effect that the respondent entered the

United States between October 1937 and December 1938; that he

was not thelf in possession of an immigration visa; and that he had

been a member of the Communist Party-of the United. States at least

during the period 1938 to 1945.

The respondent's case was before the court in McNeil v. Kennedy,

298 F.2d 623 (D.C. Cir., 1962). We have considered this record

pursuant to that decision and in the light of the decisions in Chung

Y oung Chew v. Boyd, 309 F.2d 857, 866 (9th Cir., 1962),. and

McC emney v. Bogen, 287 F.2d 473 (9th. Oh., 1961). In accordance

with our discretionary authority under 8 CFR 8.1(d) (1) and (2),.

we have concluded that the hearing must be reopened again and the

case remanded to the Service inasmuch as it is our opinion that this

record does not meet the requirements of the decisions cited.

It appears that the Service and the special inquiry officer. endeavored to proceed. under the Rules of Civil Procedure for the United

States District Courts as set forth in Title 28, United States Code,

and we believe this was appropriate under the three decisions cited

above. Rule 30 relates to "Depositions Upon Oral Examination"

and Rule 31 refers to "Depositions of Witnesses Upon Written Interrogatories." The special inquiry officer's order of February 19, 1963

authorized the taking of depositions of Messrs. Vyse and Ayre or,

if not available, the persons having custody of the two records involved (Ems: R-27 and Counsel contends that it was error

to permit the Service to examine the two -witnesses on oral depositions and then restrict the respondent to cross-interrogatories particularly since one of the witnesses was examined on cross-interrogatories in Frankfurt am Main, Germany, and stated he -could not

answer certain questions because he no longer had access to the

records which were in India. Under the circumstances of this case,

we believe that the present custodians of. the two records shOuld be

required to make new depositions upon written interrogatories by

both sides in accordance with Rule 81.

Rule 28 (b) [as amended January 21, 1963, effective jply 1, 1963 .1

specifies the persons before whom depositions may be taken in for-.

eign countries, and Rule 28(0) provides, in part, that no deposition

shall be taken before a person who is an employee of any of the parties. Counsel contends that one of the parties to 'the deportation

proceeding is the United. States and that the American Consular

Officers, before whoM the depositions and cross-interrogatories were

made, are employees of the United States.. The special inquiry officer and the Service did. not indicate that counsel had waived this

objeCtion under Rule 32(b). We are not persuaded by the state'

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Interim Decision #1523

ments of the Service and the special inquiry officer that it is the

Immigration and Naturalization Service rather than the United

States which is a party to the deportation proceeding. However,

we need not reach a definite conclusion concerning this question since

we have indicated that new depositions should be taken. The present record also appears to be inadequate since it does not specifically

show that counsel was notified in writing as to the'time and place for

taking the deposition although counsel's "Notice" dated March 22,

1963 does mention a letter dated March 19, 1963 which he had received from the District Director. However, this letter is not part

of the record before us.

In our order of February 26, 1960 (p. 6), , we referred to counsel's

request for reopening of the proceeding to permit the respondent to

testify on the issue of citizenship. We stated that the respondent

had been repeatedly requested to testify on this issue and, for reasons

stated in that order, we concluded that the hearing should not_be

reopened. Following the decision in McNeil v. Kennedy, supra, we

reopened the hearing by order dated April 12, 1962 and we specifically stated: "The Service and the respondent may present any pertinent evidence." On July 17, 1962 the special inquiry officer asked

the respondent to be sworn and his counsel stated that he refused to

testify against himself (p. R-17). On August 9, 1962 counsel 'requested that the hearing be reopened to permit the respondent to testify as to his birth. During the oral argument on October 22, 1962

(p. 7), counsel stated that the respondent had been -willing to testify

as to his place of birth before the special inquiry officer but that the

special inpiry officer said that if he testified he would also have to

testify concerning his Communist Party activity. The record shows

that oounsel was in error in this statement,

Since we have found it necessary to reopen the hearing, we believe

that the respondent should be given the opportunity, which he alleg :

edlysir,oftngceihsuoftznp.Ii

our opinion that the respondent's testimony, cross-examination by

the trial attorney, and the opportunity for the special inquiry officer

to consider the demeanor of the respondent while testifying will be

helpful in resolving the issue of alienage. In order to avoid any

future contention that thd respondent again refused to testify because the Government insisted upon the right to examine him relative to asserted Communist Party membership in the event that he

testified, we believe it would be appropriate for the trial attorney to

stipulate that the respondent will not be questioned on that issue

unless the respondent himself desires to testify concerning it. This

is not to be construed as precluding the BBITIOB .or the respondent

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Interim Decision #1523

-

from presenting other evidence on the issue of deportability on the

first lodged charge, particularly in view of the decision in Gaatehum,

quimmes v. Kennedy, 374 U.S. 469 (1963).

Pursuant to S CFR 242.17(a), a respondent in deportation proceedings is to be afforded the opportunity of applying under sections

244(a), 245 or 249 of the Immigration and Nittionality Act, and it

is specifically 'provided: "The special inquiry officer shall inform

the respondent of his apparent eligibility to apply for any of the

benefits * * * ." In his decision of June 25, 1961 (p. 9), the special

inquiry officer stated that the respondent had refused to apply for

-

any discretionary relief citing the transcript at page R 42. This

relates to a hearing on April 20, 1959 and at that time the respond-

ent declined to apply for voluntary departure or suspension of deportation. In view of the time which. has since elapsed, we believe it

should be ascertained whether the respondent may now desire to

apply for discretionary relief. In addition, we have been unable

to find in the record that the special inquiry Officer actually informed

the responden1 that he was apparently eligible to apply for any of

these benefits, and it would seem that he would at leaSt be eligible

to apply under section 244(a).

ORDER: It is ordered that the special inquiry officer's order of

Zune 25, 1964 be withdrawn and that the hearing be reopened for

further proceedings in accordance with the foregoing. BEFORE THE BOARD -

On June 25, 1964, a special inquiry officer ordered the respondent's

deportation and certified the case to thib Board. We directed that

the hearing be reopened in our order of November 3,1.964, and the

case is now before us •on motion of the Service dated. December 3,

1964, seeking reconsideration of that order.

The respondent is a 61-year-old married male who claims he was

born in the United States and- is a citizen. In earlier proceedings

in this case, it was found that the respondent was born in India;

that he entered the United States between October 1937 and December 1938; that he was not• then in possession of an immigration visa;

and that he had been a Member of the Communist Party of the

United States during the period 1938 to 1945.

The Service asserted in its motion (p. 17) that we remanded the

ease for inquiry in the light of Gastelum Quinones v. Kennedy, 374

U.S. 469 (1963) ; that we directed that the Service enter into a stipulation limiting •cross-examination to the question of alienage (p.

t 16) ;. and (pp. 5-6) that our order directs that the respondent be

givemi a further opportunity of testifying concerning his citizenship

-

N. •

381

Interiin Decision #1523

and that it be ascertained whether he desires to apply for discretion-

ary relief. These matters were not specifically directed in our order

although we did make certain observations concerning them with the

thought that the Service might wish to take action which would

eliminate them as possible issues in any future litigation in this case.

In order to avoid any further misunderstanding, we desire to maize it

clear that we are not directing any of these actions but will leave

this entirely to the judgment of the Service and the special inquiry

officer subject to our consideration of the questions if raised by the

respondent in any future proceedings before this Board. For that

reason, we need not discuss the contentions of the Service concerning

those matters.

As indicated in the third paragraph on page 2 of our order of

November 3, 1964, the actual reason for reopening the hearing and

remanding the case to the Service was that we had concluded that

the record did not meet the requirements of the decisions in McNeil

v. Kennedy, 298 F.2d 323 (D.C. Cir., 1962) ; Ch'ung Young Chew v.

Boyd, 309 F.2d 857, 866 (9th Cir., 1962) ; and MoConney v. Rogers,

287 F.2d 473 (9th Cir., 1961). In the first case, that of the respondent, the Court of Appeals stated that the certificate of baptisni and

a letter from a school in Calcutta had not been verified or authenticated. One of the questions involved in the second case cited was

whether the Rules of Civil Procedure for the United States District

Courts, as set forth in Title 28, United States Code, were applicable

in deportation proceedings. Although the court did not specifically

hold that they were applicable, it indicated the desirability of following the rules. In the McConney case, the alien was informed

that his hearing would be continued in order to obtain the deposition of his mother but he was not advised of the time and place for

taking the deposition and the court held this was error.

We pointed out in our previous order (p. 41 that the present record

appears to be inadequate since it does. not specifically show that

counsel was notified in writing as to the time and place for taking

the deposition. At the time the depositions herein were obtained,

there was no reg-ulation of the Service dealing particularly with

that matter, but it is now covered by 8 CFR 242.14(e), effective Sep' tember 24, 1964, which states that the federal Rules of Civil Procedure shall be used as a guide to the extent practical. The

- regulation expressly provides that a deposition witness shall be notified to appear for examination on Form 1-260 and that copies of

such notice shall be furnished to the paities . to the proceeding.

Hence, under the present regulations-it appears that the respondent's

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Interim' Decision #1523

-counsel would be entitled. to notice of the time and place for the

taking of the deposition.

In our order of November 3, 1964, we stated that Rule 30 of the

Make of Civil Procedure relates to "Depositions Upon Oral Examination" and that Rule 31 refers to "Depositions of Witnesses Upon

Written Interrogatories." We believe. hat a reading of Rules 30 and

31 in their entirety indicates clearly that a deposition should be

• taken under. one or the other but not under both.

Subsection (e) of Rule 80 relates to "Record of examination; oath;

objections", and one sentence thereof was quoted by the Service in

its motion (p. IS). This sentence is as follows: "In lien of partici-

pating in the oral examination, parties served with notice of taking

a deposition. may transmit written interrogatories to the officer, who

shall propound them to the witness and record the answers verbatim." The use of the word "may" shows that this procedure is permitted but not that a party is required to follow it. In addition, the

interrogatories subsequently prepared by this respondent were not,

taken under Rule 30(e) because that rule contemplates that the

written interrogatories will be propounded at the time of the origi-N

nal oral examination of the witness.

When the trial attorney originally submitted his motion for the

_taking of depositions at Calcutta, India, counsel filed his memorandum of February 11, 1963 in opposition, urging that the prospective

witnesses appear in person at the hearing or, if this was denied,

that the Service furnish funds for the expense of trowel of counsel

and the respondent to India since the respondent was not financially

able to pay for this. Counsel contends that it was error to permit

the Service to examine the two witnesses on oral examination and

then reqUire him to cross-examine the witnesses on written interrogatories particularly since one of the witnesses was cross-examined on

interrogatories in Germany and could not answer certain questions

because he no longer had access to the records which were in India.

We stated in our previous order (p. 3) : "Under the circumstances

of this case, we believe that the present custodians of the two records

should be required to make new depositions upon written interrogatories by both sides in accordance with Rule 31." In addition, counsel contends that one of the parties .to the deportatiOn proceeding is

the United States; that-the American Consular Officers, before whom •

the depositions were made, are employees of the United States; and

that Rule 28(o) provides, in part, that no deposition shall be taken

before a person who is an employee of any of the parties. As •indicated by-the quoted sentence from our previous order, we did not

reach a specific conclusion that the depositions which had been taken

383

InterirdDecision #1523

were defective. In view of the contentions of counsel, however, we

were of the opinion that all of his objections could be easily met by

simply taking new depositions under Rule 31.

We have carefully considered the various contentions in the motion

of the Service dated December 3, 1961 and its "MEMORANDUM

OF LAW" dated December 16, 1961. We can perceive no useful

purpose in discussing these in detail. The situation is entirely Simi

lar to that in Matter of SS "Bram", Int. Dec. No. 1278 (1963):

In that case, we had remanded the case to the Service to permit the

submission of additional evidence and the Service requested reconsideration of our order. When the case reached the Attorney General on certification, he commented on the proliferation of the issues

and said (p. 13) : "Had this ease come before me simply as a request

to review the Board's initial decision, it would present no problem,

for I have no doubt that the Board's discretionary authority under

8 CFR 3.1(d) (1) includes the power to remand a case for the taking

of further testimony, -whether or not an error of law was committed

below."

Hence, the question of whether there was or was not an actual error

of law in the taking of .the present depositions is not the criterion

for judging the action we directed since our order of November 3,

1964 (p. 2), shows dearly that we were acting under our discretionary authority as set forth in 8 CFR 3.1(d) (1) and (2).

ORDER: It is ordered that the motion of the Service for reconsideration, except as reconsidered herein, be denied.

BEFORE THE ATTORNEY GENERAL

ORDER: The decision of March 17, 1965, by the Board of Immigration Appeals in. this case denying reconsideration of the Board's

order of November 3, 1964, which remanded the case for further

proceedings, is reversed, and the Board is directed. to proceed to a

final decision.

The Board of Immigration Appeals, at the request of the Commissioner of Immigration and Naturalization, has referred to me

for review, as provided by 8 CFR 3.1(h) (1) (iii), its order of March

17, 1965, denying a motion of the Immigration and Naturalization

Service for reconsideration of the Board's order of November 3,

1964, which directed that the hearings in this deportation proceeding be reopened. The respondent is a 61-year-old married male who

claims he was born in the 'United States and is a citizen.

• In earlier proceedings in this case, it was found that the respond-

ent is an alien who was born in India; that he entered the United

States between October 1937 and December 1938; that he was not

384

Interim Decision *1523

then in possession of an immigrant visa; and that hehad been a

member of the Communist Party of the United States during the

period from 1938 to 1945. The issues now before me pertain to the

procedure to be followed. by the Service in taking depositions? More

specifically, the respondent challenges the method followed in authenticating certain documents offered to prove that he was born in

India. These documents are a -certificate of baptism purporting to

be a copy of a record of respondent's baptism at St. Andrew's Church,

Calcutta, shortly after his birth, and a letter from the principal of a

school in Calcutta purporting to show respondent's record in the

files of the school indicating that he was born in Calcutta on the day

mentioned in the certificate of baptism. Both documents had been

admitted in evidence in prior proceedings in this case. In January

1962, the United States Court of Appeals for the District of Columbia noted that the documents had not been authenticated or verified

"in any manner" and directed that the case be remanded to the Immigration and Naturalization Service for further proceedings. The

Court stated.: -"It is undisputed that appellant is . deportable if an

alien, and the issue of his alienage turns upon his place of birth . . .

We cannot say that Service would have reached the conclusion it

did except for the documents referred to ; and it is not for -us to make

the decision as an initial Matter on the basis of other evidence."

McNeil v. Kennedy,- 2983.2d 323 (D.C. Cir., 1962).

Subsequently, in reopened hearings the Service reintroduced these

documents. The aitificate of baptism• was,executed by P_ Logan

Ayre, Chaplain of St. Andrew's Church, Calcutta, India, who certified it to be a true extract from the register of baptisms at the

church. Attached was an authentication by the United States Consul

at Calcutta that the document was certified by its lawful custodian.

The school record was set forth on school stationery as a. certified

copy of the record of respondent in the school files over the signature

of J. C. Vyse, Principal.. Attached to it was an authentication by

the United States Vice-Consul at Calcutta that the document had

been certified by its lawful- custodian. After the special inquiry officer reaffirmed findings as to the respondent's alienage and deportability, the Board on December 6, 1962, returned the case to the Service for additional action to authenticate these two documents. The

Board stated that there should be compliance with some generally

recognized manner of verifying and authenticating documents, although it did. not "lay down. a general rule for receipt of doCuments

z During the period relevant herein there was no Service rule with respect

to obtaining depositions. 8 OM 242.14(e), effective September 24, 1984, sett'

forth- the present practice.

385•

Interim pecisiOn *-1.i523

in evidence in deportation. proceedings." It went on to say that

"[i]f the Service is of the belief that baptism and school records are

'official records,' the Service should establish the official nature. Where

testimony of individuals abroad is required, to authenticate or verify

" the documents, utilization, of depositions, interrogp.tories and crossinterrogatories would appear to offer . a practical means."

The special inquiry officer ,then. granted a motion by the •Service

fOr taking depositions in Calcutta, India, of Mr. Vyse and Mr. Ayre

on. oral examination or on written interrogatories. He 'denied a request by respondent that the witnesses be Ordered to appear in person or that the Service be ordered to provide funds for respondent and his counsel to enable them personally to attend the.depositions.

It does not: appear that at and point respondent endeavored to have ,

the.SerYica limited to taking the depositions upon written interrogatories; The record shows that on March 5,1.963, respondent notified_

the Service that respondent and his counsel were unable to appear in

Calcutta and that they reserved the right to propound cross-interrogatories within a reasonable time after receipt of a. copy, of the

transcript of the Calcutta examinations. .

In his deposition. Mr. A.yre, testified,that he has been, a. minister of

religion since 1938

. and Chaplain of St. Andrew's, Church,.Calcutta,

India, since, 1956; that he is the ► ighe.st official of the Church-of

Scotland in Calcutta; that permanent records of all baptisms performed within or by. persons officially connected. with St. Andrew's

Church are maintained in that -,c.hureli; that he is , the one. &son

responsible . for the proper maintenance and safeguarding of the

records; that the records of St. Andrew's Church . ,Ebte niade in the

ordinary course of the church's business and are maintained in compliance with its laws; that the records in his custody are, the original .

and only records of,baptisna performed within St. Andrew's Church;

that the baptismal records are executed on the date of the baptism;

thai baptismal records have been-maintained at St: Andrew's Church

since 1814; that Exhibit R-28 (certificate of baptism) represents a .

complete and accurate extract taken.,from the church's original baptismal records appearing in a bound volume entitled "Calcutta Baptisms 1890-1904"; that the permanent records of the church are kept

in a lockfastroom in the church and have been so kept in their present

location since 1818; that ordinarily they pertinent information

plied irj the.child's parents.; 'and that the persons to.be baptized are

physically present in the.church.and seen by the chaplain or minister

at the time of baptism.

Vyse, in

Withtlrespdct to tir4 schobr Itcord

his deposition, testified that

employed by the Ileued'61-Govern-.

•

Interim Decision •#1523

ors, La. Martiniere School, in Calcutta, India, as principal of the

ol; that the school wad founded in and has been at its present

scho

locatiOn since 1836; that he has been - -employed at the school since

1936, and as principal for the pastthree years; that his signature

:Appears on Eibibit R-27, which is s. 'certified copy of an extract .

'fromthescldfDi.Martne;h fomatinctinted in the extract was obtained from. the journal in the school

office which is an abstract from the admission form that is filled in

by the parent or guardian at the time of admission of a pupil; that

the journal-is an official and permanent record of the school; that he

is the 1411cial custodian- of all existing permanent reeortifeicipt in the

' school office; that the records fife permanent in nature and are made

and maintained under his supeivision and direction; that Exhibit

R 27 is a coMplete and accurate aciount df informatidd'ilifitidned

in the school's 'permanent records; and that -these records are made

and maintained in the ordinary course of the school's business. - On May 3, 1963, respondent was served with copies of the Calcutta

'depositions. On Mity 117, 1963, he moved to suppress them on the

ground that the 'United States Cotmsul in Calcutta, before whom the

depositions were taken,'was an employee of one of the parties and

therefore disqualified under Rule 28(e) Of the Federal Rules of '

Civil -Procedure. This motion was denied by the Special Inquiry

. Officer and respondent then propOunded 'bross-interrogatories.• Tile

Special Inquiry Officer, admitted. the depositions, in evidence- and,

finding, among ether things, that the baptismal certificate and school

record were properly authenticated•rdered the respondent deported.

On November 3, 1961,, the Board 'directed that 'the Special Inquiry Officer's decision be vithdralm. and the proceedings again reopened; the Board on March 17, 1985, denied a motion of OM'

ice for reconsideration of its decision. In its opinion denying reconsideration the Board stated that the•..record was still inadequate

with respect to the method of authentication of the baptismal certificate and the school repo rd.- I do•beagree.

As its first ground for rejeCtion of the depositions the Board notes,

sue sponte, that the record does not. specifically show that respond- .

ent'scoulwaifdnrtgsoheimand-plcfr

tithing the depositions. The record ihOws that respondent *as served

ntotion,for an ,order to take Aepositions . dated 'January 30,

-

.1903. The motion papers set forth the names* and positions of the

persons to be'ekatnined, the precisi"htubjects of the dep&-itions, and

the .city.ivbms.ale depositions were.to.1-.1e taken. After the special inquiry, officer • issued . an order authorizing the taking of the .deposi-

tions, respondent filed a notice which-stated thet'he anailits-counsel

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Interim Decision #1523

wore unable to appear in Calcutta and which reserved the right to

propound cross-interrogatories within a reasonable time after respondent's counsel received a copy of the depositions. In opposing

respondent's May 1963 motion to suppress the depositions the Service stated that respondent's counsel was.notified on March 19, 1963,

that the depositions would be taken on April 18, 1963, in Calcutta,

India. This statement has not been contradicted. Under the circumstances there does not appear to have been any prejudice to the

respondent.'

The Board also claims that it was error to permit the Service to

take oral depositions from the Calcutta witnesses when respondent

or his counsel was either unwilling or unable to be present. I think

that it was -within ,the special hearing officer's discretion to permit

this method to be followed, where, as here, respondent had full opportunity to examine the depositions and then to submit cross interrogatories.

The Board's principal ground for this ruling appears to be its

view that this practice violates the Federal Rules of Civil Procedure. Although I am. not at all. certain as to the Board's basis for

application of the Federal. Rules to deportation proceedings, it appears that the procedure followed is authorized both by Rule 30(e)

or the.Federal Rules of Civil Procedure; and by court decisions

sustaining Service practice.'

-

-

'McGonne!, v-Rogers, 237 F.2d 473 (9th Cir., 1901), cited by the Board,

is distinguishable, since in that case there was no opportunity given for confrontation of a key'uritness,.either directly or by cross-interrogatories.

Chung Young alteleir. Boyd, 309 F.26 857, 866 67 (9th Cir. 1982), cited

by the Board, merely observes that the Federal Rules provide an acceptable

means for authentleating .public documents while assuming that the Federal

limes are not controliing. in administrative hearings.

• The last sentence of Rule 30(c) provides that "Wu lieu of participating

in the oral examination, parties served with notice 'of taking a deposition

may transmit written interrogatories to the officer, who shall propound them

to the witness and record the answers verbatim." In Gitto v. "Italia," Societe

Anonima Di Navigazione, Genova, 28 F. Stipp. 309 (B.D. NY., 1939), the court

stated that where a party to ft civil action gives notice that a deposition is to

be taken of a witness abroad, the other party may retain foreign counsel to

participate in the examination if he feels that the expense of having his own

lawyer participate is too great, or, if he believes that foreign counsel will be

unable to carry out effective cross-examination, he may transmit written

interrogatories as provided by Rule 30(c). See also 4 Moore, Federal Practice

•

(2d ed. 1963) 30.18.

• Haan v. Landon, 219 F.2d 404 (9th Cir., 1955), aff'd by an equally divided

Court, 350 II.8. 990 (1956) ; Bhagat Singh V. McGrath, 104 F.26 122,123 (9th Cir.,

1939); et McConnell v. Rogers, 287 F.2d 473, 476 (1961). It should be noted

that the Service's rules now in effect (footnote 1, supra) expressly authorize'

-

this procedure. 8 CPR 242.14(e),. effective September 24, 1904

388

Interim Decision #1523

In reaching its conclusion that new depositions should be taken

the Board observes that one of the witnesses , (the custodian of the

certificate of baptism) was cross-examined in Germany and could not

answer certain questions because he no longer had access to records

which were in India. I fail to see any error here. This witness was

called by the Service for a very limited_ purpose—to authenticate

a document which spoke for itself. The fact that the witness was in

Germany when he replied to,the cross-interrogatories did not prevent

him from giving answers to any of the questions' ptopounded by respondent to the extent that they were pertinent to the witness' capacity to authenticate thocertificate of baptism; none of the answers

on cross-examination weakened the authenticity of the certificate.

The only question which the witness was unable to answer because of

his change in residence was whether there were any other entries in

the names of the parents of the respondent. The witness had not

testified on direct examination that he had searched the church records for any other names. The respondent by this question was'

opening up an entirely new line of inquiry, the relevance and materiality of which have never been explained. As early as September

5, 1963, counsel for respondent NSW served with a Supplemental

Order of the Special. Inquiry Officer which noted that the witness

was no longer residing in India. If respondent were seriously interested in presenting testimony on this point he could have asked

at that time that interrogatories be directed to the present custodian

of the records in India.

Although the Board has not expressly decided the point, 'it has

indicated that consular officials are parties in interest in these proceedings and may not therefore preside at the taking of depositions

abroad. • The Service's. present rule concerning depositions provides!

. "In the United States, examination of the witness should take place

before 1. special inquiry officer; abroad, preferably before a United

States consular official." 8 CFR 942.14(e). Respondent contends that

Rule 28(c) of the Federal Rules of Civil Procedure, which provides

that no deposition shall be taken before a person who is an employee of one •of the parties, is controlling in these proceedings and

that consular officials are employees of one of the parties 'within the

meaning of that rule. As noted above, and as recognized by the

special inquiry officeti in his order of May 29, 1963, the Federal Rules

of Civil Procedure are not controlling in deportation proceedings. In

any event; since consular officials are not paid or supervised by the

Department of Justice or the Service and since the consul certified

that he was not "counsel or kin to any of the parties to this cause or

in any manner interested in the result thereof," I see no reason to

.

889

Interim Decision #1523

find that Rule 28(e) has been violated. Bearing in mind that tho'

Federal hole's arc not directly applicable and should be applied only

to the extent that they can be adapted to the reasonable needs of.the

Immigration and Naturalization Service, it may appropriately be

noted that under respondent's theory even 'special inquiry officers

would be precluded from presiding at the taking of depositions. cf.

Marcello v. Bonds, 349 U.S. 302 (1955):

Under the circumstances the Board Should proceed to a final decision based on the present record. It does not appear that the

public interest will be served by further delay in reaching a decision in this case.

390