STEPHENS, Circuit Judge.
David Hyun appeals from a judgment of the United States District Court, denying and dismissing his petition for the writ of habeas corpus in which appellant sought release from the custody of appellee who was holding him under a final order of deportation. Appellee Landon is the District Director of the Immigration and Naturalization Service.
Appellant is a native of Korea and asserts citizenship of China. He was admitted to the United States at Honolulu, Territory of Hawaii, on May 26, 1924, at which time he was seven years old. He was admitted to the continental United States at Los Angeles, California, on September 1, 1947. A warrant for his arrest in deportation proceedings was issued and served on him on October 21, 1950, in which appellant was charged as an alien who, after entry, had been a member of the Communist Party of the United States.
Hearings were started on November 22, 1950, at which time the hearing officer granted a motion by the examining officer to take the depositions of four witnesses in Honolulu. Timely notice was given and appellant's counsel was informed that appellant could be present, could submit written interrogatories and could present witnesses, or could be represented by counsel. Accordingly, depositions were taken in Honolulu on December 18, 1950, but appellant was not present or represented. Nor did he submit direct interrogatories.
The Taking of the Depositions in Hawaii
It is contended by appellant that the action of the Immigration Service in taking the depositions of Uesugi and Izuka in Honolulu, while he was in custody in California, deprived him of the essential ingredients of due process of law. The argument is that not only was Hyun in the custody of appellee at the time the depositions were taken but that he was financially unable to transport his counsel to Honolulu or procure Honolulu counsel to represent him at the depositions. In view of the comparative financial resources of Hyun and the government of the United States, and in further consideration of the plethora of government transportation between Hawaii and the west coast, it is appellant's contention that the government should have transported the witnesses to the west coast for the depositions, or in the alternative provided transportation to Hawaii for Hyun and his attorney. Failure to do either, it is alleged, deprived appellant of essential ingredients of due process of law.
An alien in deportation proceedings must be afforded due process of law, including a fair hearing, Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616, and indispensable to a fair hearing are reasonable notice, the right to examine witnesses and to testify and to present witnesses and to be represented by counsel, all of which appellant had. This court has repeatedly held that financial inability of an alien to insure attendance of himself or his attorney, or both, at the place where depositions are being taken is not a denial of due process. As was stated in Bhagat Singh v. McGrath, 9 Cir., 1939, 104 F.2d 122, 123:
See also Channan Singh v. Haff, 9 Cir., 1939, 103 F.2d 303; and Kishan Singh v. District Director of Immigration, 9 Cir., 1936, 83 F.2d 95. See, too, Berkman v. Tillinghast, 1 Cir., 1932, 58 F.2d 621, 622; Hale v. Henkel, 1906, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652.
Cases cited by appellant to sustain the view that the government erred in not insuring the presence of Hyun at the taking of the depositions, are not applicable to the instant case:
Failure to assert one's rights merely because to do so would necessitate some inconvenience can only be construed as a waiver of the right. Kishan Singh v. District Director of Immigration, 9 Cir., 1936, 83 F.2d 95.
Rulings of the Hearing Officer
When the depositions of the Honolulu witnesses were offered in evidence at the Los Angeles hearings of March 28 and 29, 1951, appellant objected to certain of the questions or answers which he felt were improper under established rules of evidence. The hearing officer seriatim overruled appellant's objections. Appellant argues that this action of the hearing officer admitted a mass of incompetent evidence which fatally corrupted both the hearing and the record. It was strongly stated by appellant's counsel both in the briefs and at the hearing that the conduct of the presiding officer bespoke "a marked lack of that degree of judicial objectivity which a fair hearing connotes." It would seem clear that the action of the hearing officer in rejecting all of appellant's motions and objections was not in and of itself a denial of due process of law, without a showing that the objections were well taken, and that the action actually resulted in a denial of due process.
It is well settled that the power of Congress to regulate the deportation of aliens is plenary and only in the case of extreme abuse will the courts intervene. As stated in Carlson v. Landon, 1952, 342 U.S. 524, 536, 72 S.Ct. 525, 532, 96 L.Ed. 547, "* * * `it is thoroughly established that Congress has power to order the deportation of aliens whose presence in the country is deemed hurtful'". See also: Harisiades v. Shaughnessy, 1952, 342 U.S. 580, 72 S.Ct. 512, 96 L.Ed. 586; Shaughnessy v. United States ex rel. Mezei, 1953, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956; Bugajewitz v. Adams, 1913, 228 U.S. 585, 591, 33 S.Ct. 607, 57 L.Ed. 978; Ng Fung Ho v. White, 1922, 259 U.S. 276, 280, 42 S.Ct. 492, 66 L.Ed. 938; Ocon v. Landon, 9 Cir., 218 F.2d 320; Galvan v. Press, 9 Cir., 1953, 201 F.2d 302; Carlson v. Landon, 9 Cir., 1950, 186 F.2d 183. Consequently, when the Supreme Court held the provisions of the Administrative Procedures Act
In this connection it is settled that deportation proceedings are civil in nature, not criminal. Carlson v. Landon, 1952, 342 U.S. 524, 72 S.Ct. 525, 96 L.Ed.
Traditionally, the formal exclusionary rules of evidence present in judicial proceedings have been relaxed in administrative practice. As stated by this court in Schoeps v. Carmichael, 9 Cir., 1949, 177 F.2d 391, 395: "Common law rules of evidence are not based in constitutional interdictions and administrative tribunals are not bound by such rules except those perpetuated in governing regulations." See also the following cases by this court: Willapoint Oysters, Inc., v. Ewing, 9 Cir., 1949, 174 F.2d 676, 690; Kunimori Ohara v. Berkshire, 9 Cir., 1935, 76 F.2d 204; Singh v. District Director of Immigration, 9 Cir., 1938, 96 F.2d 969, 971; Ex parte Shigenari Mayemura, 9 Cir., 1931, 53 F.2d 621.
This rule is followed by the Supreme Court, N. L. R. B. v. Donnelly Garment Co., 1947, 330 U.S. 219, 67 S.Ct. 756, 91 L.Ed. 854, and the other circuits. Rhodes Pharmacal Co. v. F. T. C., 7 Cir., 1953, 208 F.2d 382, 387; Tassari v. Schmucker, 4 Cir., 1931, 53 F.2d 570, 572; Murdoch v. Clark, 1 Cir., 1931, 53 F.2d 155, 156; Hays v. Hatges, 8 Cir., 1938, 94 F.2d 67, 68. Under this rule both opinion and hearsay evidence have been deemed admissible. In Ex parte Seisuke Fukumoto, 9 Cir., 1931, 53 F.2d 618, certain immigration inspectors were permitted to state their opinions from viewing photographs that persons bearing different names were actually one and the same alien.
In United States ex rel. Ross v. Wallis, 2 Cir., 1922, 279 F. 401, the court said at page 403: "Since the only legal limitation upon departmental procedure is that a hearing, fair, though summary, must be accorded, hearsay evidence is admissible." [Emphasis added.] See also Morrell v. Baker, 2 Cir., 1920, 270 F. 577; United States ex rel. Diamond v. Uhl, 2 Cir., 1920, 266 F. 34; and Christianson v. Zerbst, 10 Cir., 1937, 89 F.2d 40. Furthermore, contrary to appellant's contention the mere fact that incompetent evidence was received and considered does not establish want of due process in the hearing such as would require a reversal on that ground. Tisi v. Tod, 1924, 264 U.S. 131, 44 S.Ct. 260, 68 L.Ed. 590; United States ex rel. Vajtauer v. Commissioner of Immigration, 1927, 273 U.S. 103, 47 S.Ct. 302, 71 L. Ed. 560; and Ex parte Jurgans, D.C. 1927, 17 F.2d 507. See, also, United States ex rel. Impastato v. O'Rourke, 8 Cir., 1954, 211 F.2d 609, and the collection of authority contained therein at page 611.
The Substantiality of the Evidence
It is next urged by appellant that the deportation order cannot stand as it is not based upon reasonable substantial and probative evidence as required by the Act.
We have read and studied the depositions as a whole, and we are unable to agree with appellant's contentions. Both Uesugi and Izuka testified that they had joined the Communist Party in Honolulu
The Constitutional Question
At the time the briefs in the instant case were written, the Supreme Court had recently decided in Galvan v. Press, 1954, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911, that the statute attacked here
The judgment of the district court is affirmed.