ex rel vajtauer commissioner immigration argued decided january walter pollak isaac shorr carol weiss king new york city appellant attorney general mitchell sol washington appellee justice stone delivered opinion vajtauer appellant arrested deportation proceedings warrant issued april assistant secretary labor charging vajtauer alien entered december violation act october stat amended act june stat printed far relevant margin particular violations statute alleged prior time entry appellant believed advocated overthrow government forms law wrote published circulated possession circulation written printed matter advocating opposition organized government wrote published circulated possession circulation written printed matter advocating overthrow force violence government forms law hearing immigration inspector review proceedings board review secretary labor upon recommendation board ordered deportation custody commissioner immigration port new york alien assailed legality detention petition writ habeas corpus issued district southern new york upon return writ hearing dismissed writ remanded appellant custody commissioner stayed deportation pending appeal case comes direct appeal ground appellant denied rights guaranteed fifth amendment federal constitution section judicial code comp prior amendment february stat constitutional questions assigned deportation order unsupported substantial evidence consequently appellant denied fair hearing deprived liberty without due process action immigration authorities drawing certain inferences refusal answer questions asked deprived protection accorded fifth amendment deportation without fair hearing charges unsupported evidence denial due process may corrected habeas corpus cf chin yow kwock jan fat white want due process established showing merely decision erroneous chin yow supra incompetent evidence received considered see tisi tod upon collateral review habeas corpus proceedings sufficient evidence conclusion administrative tribunal deduced committed error flagrant convince essential unfairness trial tisi tod supra ultimate question presented record therefore one fact whether warrant deportation supported evidence alien entered advocated opposition organized government overthrow government force violence within meaning statute requires review evidence hearing immigration authorities may appellant represented counsel sworn witness gave name emanuel vajtauer occupation psychology editor bohemian newspaper published chicago testified resided illinois entered ber citizen czechoslovakia birth answering preliminary questions asked come appellant attorney stated advise alien answer questions evidence upon warrant based presented appellant stated follow attorney advice gave testimony immigration inspector introduced evidence pamphlet stated bear name vajtauer author interpreter testified vajtauer study ressian revolution title printed record dictatorship proletariat dajtauer written moscow spring translations certain passages pamphlet interpreter spread upon record excerpts merely gave account russian revolution revolutionists justification overthrow russian government others printed margin purported face advocate overthrow government revolution force inspector also placed evidence newspaper published slovak labor socialist federation america containing report speech stated record made vajtauer editor bohemian daily address causes effects world war revolutionary movements europe described viewpoint proletariat speaker predicted much fiercer revolutionary struggle country took place europe concluding paragraphs printed suggest least speaker advocated revolution documentary evidence received consisted abridged report congress communist international meetings held petrograd moscow november december containing statement purported made vajtauer czechoslovakia cezchoslovakian affairs instructions attorney appellant refused answer questions calculated establish identity author pamphlet vajtauer made address reported newspaper article vajtauer addressed congress communist international point much argued us whether section immigration law may stat comp took effect hearing closed placed appellant burden proving member class aliens excluded entering immigration laws section provides part deportation proceeding alien burden proof shall upon alien show entered lawfully plausibly urged language statute well legislative history indicates clause relates proof regularity alien entry respect time place manner like membership excluded class find unnecessary consider question think record taken whole without aid statutory presumption presents evidence supporting deportation order disregard moscow address substantial bearing appellant membership excluded class extracts pamphlet report chicago speech taken together least evidence tending show author advised advocated opposition organized government overthrow government violence therefore alien excluded admission provisions section act june supra admitted deported found member excluded class time entry section statements made entry may taken indicate subject exclusion time entry issue government required present evidence assuming burden proof rested identity appellant admittedly alien author pamphlet address similarity names fact known vajtauer also czechoslovakia appellant addressed fourth congress communist international czechoslovakian affairs moscow pamphlet written arrival appellant proceeding chicago vajtauer editor bohemian daily paper appellant made public address chicago discussing russian revolution suggesting possibilities similar revolution taken together admit inference appellant author pamphlet speech one person inference strengthened appellant confronted record stood mute forms basis inference evidence silence often evidence persuasive character bilokumsky tod ed appellant witness called upon testify whether author pamphlet chicago speech facts within knowledge author position challenge explain away possible unfavorable inference might drawn passages read record silence without explanation testify entire evidence presented evidence author addition fortified inferences drawn pamphlet speech immigration authorities attention directed fact refusal testify based upon supposed right witness called upon testify evidence support warrant presented said silence induced person rights belief security best promoted silence inference assent drawn silence commonwealth kenney metc mass people pfanschmidt ann cas cases merely apply rule inference may drawn silence duty speak rule applicable witness sworn legal duty give testimony privileged undoubtedly inferences silence cautiously drawn bilokumsky tod supra weight given silence tribunal conducting trial said also evidentiary effect silence limited decision bilokumsky tod supra refusal testify facts although inference silence case pertained nonincriminating facts intimation inferences drawn failure testify incriminating matter privileged case objection drawing inference force far denial constitutional immunity insisted answers questions put appellant hearings held chicago might tended incriminate illinois syndicalism law cahill pars condemns felony advocacy publication matter advising crime violence unlawful means accomplishing reformation overthrow government assuming constitutional immunity may violated well inferences drawn silence respect incriminating matters testimony witness compelled give still necessary inquire whether appellant brought within protection immunity throughout proceedings immigration authorities assert privilege manner suggest withheld testimony ground fear assertion evidently afterthought tribunal conducting trial determine weight given contention witness answer sought incriminate mason determination make advised contention cf edward hess ex parte irvine privilege may relied must deemed waived manner fairly brought attention tribunal must pass upon see knickerbocker steamboat skinner elton conclusion makes unnecessary us consider extent fifth amendment guarantees immunity state statutes whether case controlled hale henkel brown walker compare saline bank pet ballmann fagin judgment affirmed footnotes following classes excluded adminision aliens anarchists aliens advise advocate teach members affiliated organization association society group advises advocates teaches opposition organized government aliens believe advise advocate teach members affiliated organization association society group believes advises advocates teaches overthrow force violence government forms law aliens write publish cause written published knowingly circulate distribute print display knowingly cause circulated distributed printed published displayed knowingly possession purpose circulation distribution publication display written printed matter advising advocating teaching opposition organized government advising advocating teaching overthrow force violence goverment forms law act amended act june comp section act comp provides deportation time entering country found time entry members excluded class argued objection took form counsel hearing labored misapprehension former rules entitled alien beginning hearing inspect warrant arrest evidence issued still force rules changed first hearing may even counsel unaware changes time hearing resumed august government case closed counsel declined invitation alien testify behalf permit examination although evidence warrant based presented reason testifying given kill free kind primitive logic usually necessary lead revolting soldier order unnecessarily sacrifice others attack revolution must merciless must destroy old system leaving even single stone unturned people suffered long knock ground socialist traitors bourgeois punish death attempt resistance right others killed millions brothers previously lowest suffering class people seized rule hands took away every chance murderers oppression crime dictates quietly farmer vampires carries dictatorship proletariat first problem proletarian dictatorship capture murderers traitors people imperialists militarists capitalists bourgeoisie prevent committing crimes bohemian worker much courage russian worker see quickly necessity seizing rule factory hands expel owner factory right property factory plant supply needs people belongs people must run people working people means production private property people property private property masked loot people property government recognizes private property government recognizes looting people robbers treated treated given chance loot robber locked irons put wrists guard placed watch sudden expansion people suddenly abolishes injustice piled centuries proletarian dictatorship armed guard liberties gained revolution proletariat america speaker said time comes american proletariat tasted bit capitalistic luxuries find deprived luxuries american proletariat much revolutionary europe hard preach revolution full stomach stomach empty revolts seeks means obtain supplies speaker pictured american proletariat mole got hold bone thrown capitalistic table satisfy hunger mole predicted much fiercer revolutionary struggle country took place europe much blood shed country shed europe end speech speaker predicted next large war european countries america america creditor due time demand payment debt debtors poor try repudiate american debt naturally lead war proletariat stop war kind proletariat asked supply army speaker pointed communistic government russia example proletariat countries world said probability another great war war may war proletariat countries europe capitalistic america proletariat america find position either fight proletariat europe else fight capitalists conscientions leaders proletariat prepare workers fatal moment