A-4894489.
Decided by Board August 19, 1953. Commissioner's Motion August 24, 1953. Decided by Board December 15, 1953. Approved by Attorney General March 14, 1955.
Subversive — IWO — Knowledge of relationship between IWO and Communist Party is essential to establish deportability based on membership in the former organization.
An alien charged with deportability based on membership in a Communist front organization, in this instance the IWO, an affiliate of the Communist Party, is not deportable if he in fact did not have knowledge of the relationship of the organization to the Communist Party.
CHARGES:
Warrant: Act of 1918 — After entry, alien member of organization that distributed printed matter advocating overthrow of United States Government by force.
Act of 1918 — After entry, alien member of organization that advocated overthrow of United States Government by force.
Lodged: Act of 1918 — After entry, alien member of affiliate of Communist Party of United States (IWO).
BEFORE THE BOARD
(August 19, 1953)
Discussion: This is an appeal from an order of the Assistant Commissioner requiring the respondent's deportation on the lodged charge set forth above. Deportation is ordered on the ground that the respondent was a voluntary member of the International Workers Order (IWO) at a time it was an affiliate of the Communist Party. We will first discuss the lodged charge.
Four questions are raised by this appeal. (1) Is the IWO an affiliate of the Communist Party? (2) If so, is it proper to permit an alien to establish that during the time of membership, he did not know of the existence of such an affiliation? (3) Does the record establish that respondent was not aware of the affiliation? (4) If such a fact is established, does it require a dismissal of the charge? We answer these questions in the affirmative.
The respondent has testified under oath and denied an awareness of the affiliation either at the time he joined or thereafter while he was a member. Respondent claimed his membership in IWO was induced by his desire to obtain insurance benefits; by the fact that it was the means of becoming acquainted with prospective clients when he was desperately attempting to establish himself as a dentist; and by the fact that it enlarged the sphere of his social activity.
The Service contends that the evidence of record establishes that respondent knew that Communist Party literature was distributed at IWO meetings and that respondent had knowledge of the affiliation.
The testimony and other evidence which bears upon the question of the affiliation between the Communist Party of the United States and the IWO, in addition to testimony adduced during this hearing, consist by stipulation of the testimony of witnesses and exhibits in the Matter of D----, 4 IN Dec. 578. The testimony and exhibits are set forth in such detail by the hearing officer in the instant case, and so conclusively establish the existence of the affiliation, that their substance need not be repeated. Reference will be made to them only where they become an element as to whether the respondent was aware of the existence of the affiliation.
We will now consider whether it is pertinent to inquire into the question of the respondent's awareness of the affiliation between IWO and the Communist Party.
Respondent's deportation by reason of his membership is based on 8 U.S.C.A. 137-3 (a) (1951 Supp.). Membership must be voluntary. In effect, it is respondent's claim that his joining and continuance as a member were not voluntary because both were induced by the willful, intentional and official concealment by national officers of IWO of the existence of the affiliation; so that both his consent in joining and remaining a member were obtained by fraud and should be held to have been vitiated by the fraud. Such an argument is legally sound. If it is established that membership and continuance of membership resulted from the fraudulent conduct of the national office in concealing the affiliation and the respondent did not learn the true facts and acquiesce in them while a member, we believe it must be found that the membership was not "voluntary" and the lodged charge could not be sustained. It is, therefore, proper for the respondent to establish his claim by competent evidence.
Pertinent portions follow:
Any alien who was at the time of entering the United States, or has been at any time thereafter, a member of any one of the classes of aliens enumerated in * * * section 137 (2) of this Title, shall, upon the warrant of the Attorney General, be taken into custody and deported * * *
(Sec. 137 (2) relates to aliens who are members of the Communist Party of the United States or any affiliate of such Party). Section 137-3(a) was repealed by Public Law 414, 82d Cong., 2d sess.; savings clauses sec. 405 of Public Law 414, preserves the validity of the proceeding; sec. 241 (a) (6) (C) (v) of Public Law 414 reenacts its provisions.
Public Law 14, 82d Cong.; ch. 23, 1st sess., H.R. 2399. See also Wieman v. Updegraff, 344 U.S. 183.
See Donaldson v. Read Magazine Inc., 333 U.S. 178; Nudd v. Burrows, 91 U.S. 426; United States v. Throckmorton, 98 U.S. 61. To rule otherwise could result in the pertinent section being declared unconstitutional as a deprivation of due process. See Wieman v. Updegraff, ( supra), note 2. We do not question in any way the settled rule that where an alien's membership in the Communist Party is established, his knowledge or belief in the principles of the Communist Party is not a pertinent matter in a deportation proceeding ( Matter of S----, A-9635850, 5 IN Dec. 95). Even in the case of membership in the Communist Party, evidence that fraud practiced upon the alien resulted in his joining an organization which he did not know was the Communist Party would be relevant. Moreover, important distinctions exist between membership in the Communist Party and an affiliate not openly affiliated and justify different treatment. (See footnote 7 at p. 100 in Matter of D----, 4 IN Dec. 578. D----, a member of IWO, was found deportable on the same charge lodged against respondent. D----'s awareness of the affiliate nature of IWO was spelled out from the facts that he had been active as a national officer of IWO and his silence when called upon to testify on this point.)
The burden of establishing the allegation of fraud is of course on the one asserting it, for fraud should be alleged and proved; it is never presumed ( United States v. Colorado Anthracite Co., 225 U.S. 219, 226).
The Government does not urge that the IWO, prior to or during the period of respondent's membership, conspicuously supported a program and ideology hostile to the principles of the Constitution; nor that its declaration of principles, the Constitution, bylaws, and membership book indicate anything of a subversive character. In fact, there is evidence that the avowed program of IWO was one which would find support from large groups of Americans for it effected considerable positive good as a fraternal organization by providing low cost insurance; by keeping alive in the United States native culture of various nationality groups; by furnishing an educational program of music, drama and sports for youthful members and children of members; by campaigning to protect working classes of people through social security legislation; by assistance to union labor; by protecting civil rights and equality; and by supporting the war effort of the United States in World War II. The IWO appears to be an organization created, maintained and used by the Communist Party in such a manner as to conceal the fact of affiliation except from those who were members of the Communist Party, and in this manner obtain the support of those who would have had no dealings with an openly Communistic organization. (Testimony of Government witnesses in the D---- case reveals that pains were taken to conceal the fact of affiliation. Thus, Communist Party members of the IWO National Committee met separately and at meetings closed to committee members who were not Communist Party members; a national officer of IWO testified that in an article he had written and published in an IWO periodical, he had purposely left out reference to Communist Party literature.)
Matter of D----, (supra), note 3, p. 75.
Respondent was a member of IWO from about 1937 to 1947. The Service does not contend that the respondent joined IWO in an effort to assist the Communist Party of the United States nor that he was then aware of the affiliation which existed. It is conceded that he joined for insurance benefits and other social and business meetings he would make. It appears clear from the record that the respondent, who was planning to marry, had attempted to obtain insurance from one fraternal organization but had been rejected on racial grounds; that when approached to join IWO and assured there was no racial discrimination, he welcomed the opportunity to obtain cheap insurance; make new social friends; and obtain clients at a time when he was attempting to become established in his profession.
The affiliation between IWO and the Communist Party is established from the evidence of former IWO officials, all former members of the Communist Party as to the part played by the Communist Party in secret and conspiratorial meetings in founding and controlling IWO and from evidence as to the actions of certain lodges among which is not included the respondent's lodge and from printed matter of limited circulation. No claim is made by the Service that the general membership or the respondent had knowledge of or had reason to have knowledge of, the secret and conspiratorial meetings or the actions of the lodges mentioned by the witnesses or the printed matter; and the Service does not contend that this testimony has any bearing on the question of whether the respondent was aware of the affiliation.
If the lodged charge is to be sustained at all, it must be sustained on the basis of evidence as to the nature of the activities of the Sacramento IWO lodge to which the respondent belonged and his activities generally and his activities in the lodge. We shall now consider this evidence.
The record establishes that the respondent, a married male, a native and last a citizen of India, entered the United States on July 2, 1910, for permanent residence at a time when he was about 5 years of age.
Respondent testified as follows. Until 1941 and 1942, only those persons who held insurance could be members of the organization; subsequently, upon the payment of a dollar, persons not eligible for insurance or the spouses of persons who had received insurance were eligible to join as social members.
Meetings of the organization were held monthly or oftener. It was not compulsory to attend meetings. During the early part of his membership, respondent attended meetings; in the later period of membership, he did not attend. Meetings were held at a hotel when the organization was financially able to pay for a meeting room and at such times the meetings were open to the public and notice of the meeting was posted publicly. Other meetings were held in private homes and some were held in the office of the respondent. The membership at the maximum totaled about 40 and the maximum number of members who would attend any meeting would be about 15. Some meetings were attended by as few as 2 or 3 persons.
The major portion of the business of the meeting was devoted to the collection of premiums for the policy and the payment of $0.25 as dues which went to the local lodge. Other matters which were considered at these meetings were the means of attracting new members to the organization; the matter of attracting members to meetings; the organization of social affairs; and arrangements for visiting the sick.
At meetings of the IWO, funds were solicited by members when unions to which they belonged were on strike; in such event, an announcement would be made that those who wished to contribute, could do so. At none of the meetings which he attended were funds solicited for the Communist Party. Respondent testified that he paid his dues and that he did not recall the payment of any assessments. He was approached during the period of his membership to make contributions; whether the appeal was on behalf of IWO or a personal matter, and the nature of the appeal are not clear.
Because of the inadequate attendance at meetings, initiations were not held as required by the bylaws, and not all the officers who were required by the bylaws were appointed. He could not recall that a literature director had ever been elected or appointed. There had been a social and educational director, whose function it was to arrange social affairs and attract members to meetings. The educational activities carried on concerned talks on the advantages of IWO insurance, and discussions on helpful legislation. Respondent could not recall that there had been any required reading of books or lectures on any books or pamphlets at meetings.
Respondent testified that literature had been sold at IWO meetings he had attended on from 5 to 7 occasions. He stated that these sales occurred very infrequently and that they were permitted only either before or after lodge meetings. The literature consisted of pamphlets on health legislation, the fair employment practice act, and the trade union movement. It is clear from his testimony that the sales were not under the auspices or at the request of the lodge but were the personal efforts of IWO members or nonmembers. He testified that none of the money realized by these sales was turned over to him in his capacity as financial secretary or treasurer, and that he could recall no instance in which he had handled any phase of the distribution of literature.
The respondent was shown some 14 communistic documents which included pamphlets issued by the Communist Party and which evidence establishes had been circulated among certain IWO lodges (The respondent's lodge was not mentioned in this testimony). Respondent stated that with one exception, he had never seen any of these documents previously and that he had never seen any of this literature sold or distributed at meetings he had attended. He recalled having seen the Communist Manifesto but could not recall the place where he had seen it displayed. The respondent admitted that since some of the members who attended meetings "probably had left-wing ideas" and that since any person coming to a meeting was permitted to distribute literature, there was a possibility that communistic literature could have been distributed at lodge meetings, but he could recall no such distributions as a matter of fact. The only type of literature that he recalls having been sold was literature of trade union movements; IWO insurance; health problems; and related matters. He testified that he had seen copies of the People's Daily World in the pockets of persons at the meeting and it was possible that copies could have been sold. It does not appear, however, that if sale was made of these copies, the sale was desired or at the request, or in behalf of the lodge.
Respondent stated that political questions were discussed by members before and after meetings but that such questions were not a part of the official agenda, and that at the meetings, there was no advocacy of subversive doctrines or the overthrow of the Government by any means. At none of the meetings was there anything done nor was he asked to do anything contrary to the best interest of this Government.
Respondent's activity in the organization was as follows. About 1939, he was asked to take the job of financial secretary. He protested that he did not desire the job and was informed that there was no one else available and that he was merely required to obtain payments of dues and make out a receipt therefor. Under these circumstances, he agreed to take the job. He was elected to office and served the year. He received monthly a receipt book from the national office showing amounts due for local dues and premium payments on policies. At meetings, he received payment of dues from members who would be given a receipt, the money being turned over to the treasurer who apparently held it until the financial secretary was ready to forward it to the national office. He stated that if members did not come to the meetings to pay dues and premiums, he did not go after them.
Subsequently, from about 1940 to about 1941, he held the office of treasurer. In such capacity, he received money from members in payment of premiums and held it until the financial secretary was ready to forward it to the national office. He was permitted to retain a portion of the funds for local activities and social gatherings. His communication with the national office during this period was solely on questions concerning insurance benefits of members.
From about 1941 to 1942, he was vice president of the lodge. As vice president, he acted as chairman in the absence of the president. On one such occasion he introduced speakers at a public meeting composed of members of IWO and the general public who had been invited to attend. There is no evidence in the record to indicate whether the persons introduced were active Communists or actively opposed to Communism. Whether there was more than one occasion when he introduced speakers is not clear from the record.
In his capacity as an officer or as a member of IWO, he never turned over any funds for the support of the Communist Party, its newspapers, or its party press. He had no knowledge as to whether the lodge had ever supported the Communist Party financially. He received no pay in any of the offices held. He was never a member of a district committee. He never attended a city or district convention of IWO or State conventions although he had been asked to attend a district or State convention but had refused to permit his appointment as a delegate.
During the period of his membership, there was in existence in Sacramento one other IWO lodge. It was composed of foreign language groups. Respondent attended several meetings of this lodge and was a member of a liaison committee appointed to coordinate the affairs of both lodges. This committee never met. Whether it is also the same committee to which the respondent referred when he testified he was a member of the city committee of his lodge is not known. The duty of the city committee and whether it had met is not shown in the record.
He could not recall whether lodge members from San Francisco had ever visited his lodge in Sacramento but did recall that certain individuals from the other IWO lodge in Sacramento attended meetings of his lodge. It does not appear that he attended meetings of any IWO lodge other than his own and those of the foreign language IWO lodge in Sacramento.
Respondent testified that sometime between 1941 and 1943, he saw William Heikkila, Northern California District organizer of the IWO at a public meeting in Sacramento. Respondent could not recall whether Heikkila had attended meetings of the lodge or committee meetings in his office or whether he had brought literature to the lodge for distribution. He had no knowledge as to whether Heikkila was a member of the Communist Party. The hearing officer took administrative notice of the fact that Heikkila who was then under deportation proceedings was charged with having been a member of the Communist Party up to 1939.
Respondent testified that sometime after he had joined, he met in Sacramento, Calif., on one occasion, Max Bedacht, a national officer of IWO but that he had no knowledge Bedacht was then or had ever been a member of the Communist Party. (The record establishes that Bedacht, a national officer of the IWO, was a member of the Communist Party.) The respondent could not remember meeting any other national executive officer.
Respondent testified that prior to 1939, he traveled from Sacramento to San Francisco to attend an open mass meeting at which Earl Browder spoke, that about 5,000 people attended; and that his main reason in making the trip from Sacramento to San Francisco was to get a free ride to see his girl friend. He denied having attended any other meetings which he knew were meetings of the Communist Party.
There is no indication in the record that he met Browder personally.
Respondent testified that among the periodicals he had read was the People's Daily World, and that he had been a subscriber from about 1941 or 1942 to about 1947. He stated that he had placed advertising in the People's Daily World "a couple of times" and that he had advertised in other local papers and on the radio. He stated that while he had heard that the People's Daily World was the Communist Party official organ for the West Coast, he did not know this to be so of his own knowledge and that he did not always agree with what he found there.
Respondent testified that in the years he had read the People's Daily World he had never read information to the effect that IWO was a subversive organization or had been held to be such by the Government. No evidence contradictory of his statement appears in the record. He testified that he had no awareness that the Government of the United States had characterized the IWO as either a communistic or non-communistic organization. (Although there is some evidence that the then Attorney General of the United States had characterized IWO as a communistic organization in 1942, it does not appear that there was unqualified formal action until November 24, 1947, when the IWO was designated as a Communist Party organization. Such designation was given general circulation on December 4, 1947 ( 13 F.R. 1471)).
Respondent terminated his membership in IWO about October 1947. He had filed a petition for naturalization when racial barriers which had previously stood in his way had been removed. After a delay which was so long that it aroused his anxiety, he was given an interview on the petition for naturalization by the Service. From this interview, he concluded that his membership in IWO stood in the way of his naturalization and thereupon determined to cease his association. His dues had been paid in advance, but when they became due he did not thereafter make payment, and after the interview did not attend meetings. The Service recommended the denial of respondent's petition for naturalization because of his membership in IWO, an organization the Service alleged it would establish was affiliated with the Communist Party of the United States and which circulated literature advocating the overthrow of the Government of the United States by force and violence. After the Government introduced a portion of its evidence to establish its charges against IWO, the respondent moved for dismissal of his petition. He gave as his reason for the withdrawal of the petition, the fact that he had neither the time, the money, nor inclination to defend anyone but himself (that he was without the means or facilities for defending IWO). The court on his motion dismissed his petition (Transcript of Naturalization Proceeding No. 3934, October 28, 1949).
Other evidence which should be considered follows. Respondent was a Hindu at birth but had not practiced that faith because of the lack of religious instruction in his youth. However, several months prior to his marriage in 1939, he took instruction in the Catholic religion and was baptized in the Catholic faith. In 1947, he took a "refresher course." During the entire period of his membership in IWO, he was a practicing Catholic and his children have been brought up in that religion. He testified that nothing he had heard at IWO meetings was contrary to his principles as a practicing Catholic.
A letter dated December 27, 1950, from the pastor of the parish of which the respondent is a member, makes reference to the deportation proceeding and states that the respondent is held in high esteem by his associates and neighbors; that the writer does not believe he is undesirable; and that the writer believes "his loyalty to America and American ideas is without question."
An affidavit dated January 4, 1951, from the Director of the Catholic Welfare Bureau makes reference to the respondent's deportation proceedings and states that the respondent enjoys a good reputation in Sacramento; that he was baptized a Catholic on July 15, 1938; and that respondent has the reputation of being a good citizen in the community and is a practicing Catholic. It is concluded that it is the writer's feeling that if respondent associated with a subversive organization, he joined in good faith.
Respondent was questioned concerning his failure to join Catholic social and fraternal organizations, including those that afforded their members insurance and protection. He stated that he had not joined because his experience with racial discrimination had been such that he joined no organization unless he had been asked to join, and he had not been asked to join the organizations in question.
The only organizations of which respondent had been a member were IWO; the B'Harat Society; the Catholic Church; the chamber of commerce; and the retail credit association.
Respondent testified he planned to appear before a rally sponsored by the American Committee for the Protection of the Foreign Born to discuss his deportation problem. He stated he had no knowledge that it was a communistic organization or had been cited as such by the Federal Government (It was so cited in 1948 ( 13 F.R. 3067).) and that he used the services of the organization because he was financially unable to obtain the legal aid the case called for. His attorneys are paid by the organization.
The respondent testified he had never been a member of the Communist Party.
Respondent is a homeowner in his community and is well established in his profession as a dentist. He married in 1939. There are three children of the union; all are minors. His wife and children are dependent upon him for support. He assisted in organizing a rally to sponsor the purchase of war bonds and has purchased bonds. Report of the Identification Division of the Federal Bureau of Investigation is negative.
The hearing officer considers the testimony and affidavits in behalf of respondent as being of no value in determining the issues in the case. We differ in our evaluation.
At the deportation proceeding, five witnesses appeared on the respondent's behalf and testified under oath and many affidavits have been submitted on his behalf.
Witness C---- testified that he is a citizen of the United States and a merchant who has lived in Sacramento since 1921. He has known the respondent since about 1938, and has visited him on numerous occasions. He knows other people especially in the Indian community who know respondent; respondent's reputation in regard to honesty and loyalty to the United States is very good, and respondent is not thought of as a believer in force or violence. The witness testified that he is president of the B'Harat Society to which he has belonged since 1940; that respondent has been a member since 1942 and is the secretary of the organization; that the organization was formed to assist India to obtain freedom and to better relations between the United States and India; and that the organization follows the principle of nonviolence advocated by Ghandi. He stated he had never heard respondent express an opinion to the effect that force and violence must be used to obtain freedom for India. He stated he did not know that the respondent had belonged to IWO and that respondent had never talked to him about that organization.
Witness L----, a citizen of the United States by birth and a resident of Sacramento for about 10 years, testified she had known the respondent for about that length of time; that she had been employed in his office for about 22 months starting in 1940; that she has been very friendly with the respondent, his wife and family; that she visits in his home about once a week; that the respondent is held in good opinion in the community; and that she has never heard anyone say that he was a Communist or had "wild ideas" about overthrowing the Government. She stated that the respondent had never talked to her in such a fashion; and that he is a good husband and a good father.
Witness E----, a real estate salesman, testified that he has been a resident of Sacramento for a little over 5 years; that he has known the respondent for about 3 years; that among his friends, who are also friends of the respondent, the opinion is that respondent is upright and dependable and one who is a believer in and loyal to our form of government. He stated that in discussions with the respondent on political matters, nothing was revealed from which an opinion could be formed that respondent was other than loyal.
Witness L----, operator of a small hotel, an honorably discharged veteran of World War II, and a United States citizen, testified that he has known the respondent and his family for about 9 years and other people who know the respondent; that the respondent is considered a man of good character and one loyal to this form of government. This witness lived in Sacramento from about 1923, apparently until the time he went into service and also after he was discharged.
Witness J---- C----, a dental laboratory technician and a United States citizen by birth, who served honorably in World War II, testified he had known the respondent for about 15 years; that he has an office in the same building as the respondent and does work for him as well as for other doctors; that he sees him almost every workday; that he knows his wife and children, and knows many people who know the respondent. He stated the respondent's reputation for honesty, veracity and loyalty in the community was good. He stated that in the many discussions he had with the respondent, he had heard nothing which would lead him to believe that the respondent would not be loyal to this form of government. He stated that in his conversations with respondent, he would not consider the respondent as one who favors Communism; that the respondent was a reader of the People's Daily World and three other newspapers and that it was the respondent's habit to compare articles in these papers and that the respondent showed no marked belief in the correctness of articles in the People's Daily World.
Exhibit 6, a letter dated January 8, 1951, from a painter-contractor who has known respondent about 10 years, reveals that the respondent is considered scrupulously honest in his business dealings; that he had had discussions on all types of questions with respondent but has never heard him express any opinion which could be termed unpatriotic and that the respondent has often expressed gratitude to this country for making it possible for him to educate himself and establish himself in an honorable profession. The writer stated that respondent is loyal to and grateful for the ideals and institutions of this country.
An affidavit dated December 26, 1950, from the manager of the Retailers Credit Association of Sacramento states that the Association has known and has had business with the respondent over the past few years and in all their knowledge of him, as well as dealings with him, have found him honest, honorable, reliable and dependable. An affidavit sworn to January 7, 1951, from a veteran of World War II states that he has known the respondent for the past 15 years and has found him to be above reproach in his character; that he is honest; respected and admired by the community. The affiant avers that the respondent has proved in many ways his loyalty to the United States and is recommended for citizenship without hesitation.
An affidavit dated January 7, 1951, from another veteran reveals that the affiant had known the respondent since 1937; respondent is considered to be an outstanding citizen of the community, and one who has shown his loyalty to the United States in action, speech and character. The respondent is recommended for citizenship. An affidavit from a pharmacist who has known the respondent since 1937 reveals that he considers respondent a person of good moral character. An official of an irrigation district has submitted an affidavit revealing that he has known respondent for about 10 years; that he considers him of sterling character; that he is a person who should be welcomed to citizenship; and that he has never heard him make a critical comment about this country, its customs, or its people.
An affidavit dated January 8, 1951, at Sacramento, Calif., from the excutive officer of the American Legion Post 610 states that the respondent for a period of 12 years has been the dentist and friend of the writer and his family; that in all the time he has known the respondent and his family, he has been of the opinion that the respondent would make a fine American citizen if given the chance; and that he would be proud to welcome the respondent as a fellow American citizen.
The Service questions respondent's credibility on the ground that he did not testify as fully on cross-examination conducted by the Service as he did on direct examination conducted by counsel. Two matters are cited in way of example: (1) That the respondent, a person of education and intelligence, could not state whether or not the Communist Party literature shown him during the proceedings was distributed at meetings he had attended; and (2) He could not state whether or not funds given to him during the year he acted as financial secretary represented the proceeds from the sale of literature.
We do not believe the implication as to respondent's credibility is justified. Respondent testified unequivocally that he had never seen the Communist Party documents presented to him by the Service (with the exception of the Communist Manifesto) and there had not been to his knowledge any distribution at IWO meetings he had attended. As to the Communist Manifesto, he admitted that he had seen it somewhere but could not recall definitely where he had seen it. As to inability to recall whether any portion of the funds received by him as financial secretary were the result of sale of literature, it is noted that he testified that he did not recall having received any such funds. Moreover, he testified affirmatively that he had not, as financial secretary or treasurer, received any of the money received by persons who sold literature at meetings. His testimony must be evaluated in light of the fact that respondent last functioned as a "money-receiving" officer about 1940 or 1941 and the sale of literature was infrequent and not on behalf of the lodge.
Whether the respondent is credible must be a conclusion drawn from the record as a whole. Respondent furnished the information that he was a member of IWO; he testified concerning his duties and attendance at meetings; his receipt of the People's Daily World; his meetings with the IWO national officer and organizer; and his attendance at an open rally of the Communist Party. Such matters are not necessarily self-serving. In addition, we must give consideration to the fact that his reputation for truth and veracity in the community is established, and the fact that no evidence to contradict his testimony has been introduced.
Respondent attended an open air meeting at which Browder spoke. The meeting was attended by about 5,000 persons. It was not shown that IWO sponsored the meeting. The subject matters of the speeches are not shown. To use attendance at such meeting as support for the conclusion that the respondent was aware of the affiliation would be to utilize suspicion as substantial evidence.
The Service does not urge, nor can it be found that the affiliation of IWO and the Communist Party between 1940 and 1947 was a matter of common knowledge. The record does not establish that all local officers necessarily had knowledge of the affiliation. The record fails to show that the Sacramento IWO lodge, respondent's action in the lodge, or his action generally, were such as to permit the deduction that respondent was aware of the affiliation. There is no evidence that the respondent spoke, wrote, or acted on behalf of the Communist Party or was made aware of the affiliation by the action of lodge officials or national officers. That the affiliation existed is established beyond doubt. The national officers could, of course, have made the affiliation known to all local officers. There is, however, no showing in this record that such was done. Moreover, there is some evidence of the national policy and effort to hide the fact of affiliation.
Respondent's subscription to the People's Daily World, a paper the Service takes administrative notice is the Communist Party organ on the West Coast, could give rise to the inference that respondent was aware of the affiliation if the record showed that the People's Daily World made mention of such fact or revealed such an identity in the program of the Communist Party and that of IWO as to permit the inference of affiliation to be drawn. But, the record does not establish the existence of such factors. Therefore, a conclusion as to awareness based upon the fact of subscription could be based only on assumption and conjecture.
To draw the inference of awareness from respondent's one meeting with Max Bedacht, a national officer of the IWO who visited respondent's city, is to assume that Bedacht informed respondent of the affiliation or that respondent knew of his activity as a Communist. In view of evidence that effort was made by the national office to conceal the fact of affiliation from those not sympathetic to Communism and the absence of evidence that respondent was sympathetic to Communism, and in view of respondent's testimony on this subject, such deduction is not justified.
Admittedly clandestine activities are sometime not susceptible of direct proof in all of their ramifications and like a conspiracy may be established only by circumstantial evidence so that what might ordinarily be an innocent circumstance when isolated, may assume color and significance from what has been established by direct evidence. Direct evidence of clandestine activity, conspiracy or subversive activity of the Sacramento lodge is, however, lacking in this record. There is no evidence to establish that the Sacramento lodge engaged in any activity which the membership knew was on behalf of the Communist Party or at its instigation or not in the best interest of this Government. Respondent testified to the contrary.
The respondent has a reputation for being loyal to the principles of the United States; he and his family are faithful members of a religion which is and has been unalterably and openly opposed to the principles of Communism. He testified that he is a believer in the principles of nonviolence and a believer in the principles of this Government. His witnesses bear him out in his assertions. He has denied under oath an awareness of any affiliation. We believe respondent has, under these circumstances, successfully borne the burden of establishing his unawareness of affiliation. The lodged charge will, therefore, not be sustained.
Our discussion concerning the lodged charge is equally applicable to the charges in the warrant of arrest. Since it does not appear that the record sustains the charges by substantial and probative evidence, the proceedings will be terminated.
Order: It is ordered that the appeal be and the same is hereby sustained and that the proceedings be and the same are hereby terminated.
(August 24, 1953)
Discussion: On April 17, 1951, the hearing officer entered a decision for the deportation of respondent on the lodged charge. On May 6, 1952, this Service entered an order for the deportation of respondent on such charge and further ordered that the case be certified to the Board of Immigration Appeals for final decision, in accordance with the then 8 C.F.R. 90.3 (b). On the 19th day of August 1953, by majority opinion, the Board sustained the appeal and ordered the proceedings terminated.
In the majority opinion of the Board of Immigration Appeals, it was concluded that the evidence of record established that the International Workers Order (IWO) was an affiliate of the Communist Party, that respondent without any duress became a member of the IWO and that respondent had established his lack of knowledge of the existence of the affiliation between the two organizations. The majority of the Board determined that, because of respondent's unawareness of the affiliation between the two groups, he could not be deemed to have been a voluntary member of the International Workers Order so as to be deportable on the lodged charge, whereas two members of the Board who filed dissenting opinions concluded that the respondent had not established his unawareness.
The issues raised by this motion are several, namely, (1) was respondent unaware of the affiliation between the IWO and the Communist Party, (2) has he sustained the burden of establishing his lack of knowldege, and, (3) assuming that he has sustained such burden, is he nevertheless deportable pursuant to the provisions of section 241 (a) (6) (C) as an alien who after entry had been a member of an affiliate of the Communist Party?
Respondent is a 48 or 49-year-old married male, a native and last a citizen of India, who has resided continuously in the United States since his lawful admission for permanent residence on July 2, 1910. He is an educated man, a graduate of the University of California and by occupation, a dentist; he has never learned to speak the language of his native country and his background is entirely American. He was a member of the IWO in Sacramento, Calif., from 1937 to the end of 1947 or the beginning of 1948. During that time at various periods, he held the positions of financial secretary, treasurer and vice president. Upon occasion he acted as president in the absence of that officer. In addition to serving as an officer in the local branch of the IWO, of which he was a member, he also attended several meetings of the only other IWO lodge in Sacramento, which was composed of a foreign language group. He was a member of a liaison committee appointed to coordinate the affairs of both lodges although he claims that such committee did not meet. He was also a member of the city committee of his lodge although the record does not show what activities were performed in behalf of such committee nor does the record establish the duties of such committee.
From about 1941 or 1942 to sometime in 1947, at which time he discontinued his membership in the International Workers Order, he was a subscriber to the People's Daily World, a newspaper, which was the Comunist Party organ on the West Coast. He placed advertising in such newspaper and in addition, this newspaper was on display in his dental office. He admitted that he had heard that this newspaper was the Communist Party official organ for the West Coast. He personally met a national officer of the IWO, one Max Bedacht who was general secretary of the IWO and also a Communist Party member. He also stated that he "attended a Communist Party mass meeting in San Francisco" when Earl Browder spoke.
The majority of the Board of Immigration Appeals concedes that the burden is upon the respondent to establish his unawareness of the affiliation of the IWO with the Communist Party of the United States. There is no question that such burden devolves to respondent (See Matter of V----, 3 IN Dec. 671, 675; Pandolfo v. Acheson, 202 F. (2d) 38 (C.A. 2, 1953)). The evidence of record establishes clearly that the IWO was used by the Communist Party to indoctrinate the members of the International Workers Order with Communist Party propaganda, and that the various branches of the IWO were used as agents for the sale, circulation and distribution of Communist Party literature and as a medium to obtain financial support of the Communist Party ( Matter of D----, A-5390614, 4 IN Dec. 578, pp. 70-1). Whether respondent was aware of the affiliation between the IWO and the Communist Party is not dependent on his knowledge that the IWO was being used as a front by the Communist Party to hide the activities of the latter organization, but rather on his knowledge as to whether the IWO gave, loaned or promised support, money or anything of value for any purpose to the Communist Party (Title I, section 3 (17) of the Internal Security Act of 1950). Contrary to the majority opinion of the Board, this Service concludes that respondent had such knowledge.
Furthermore, it is the view of this Service that the majority of the Board has overlooked the testimony of the Government witnesses concerning the emphasis placed by the IWO on the distribution and sale of literature to its members, and the manner in which such actions took place. See pages 32 through 40 of the Matter of D----, A-5390614, 4 IN Dec. 578, which discusses at length, the testimony and evidence submitted by the Government in that case which was part of the record in the instant case. The testimony of the Government witnesses, when considered with the testimony of respondent, particularly his cross-examination, supports the conclusion reached by this Service and the members of the Board who filed dissenting opinions. A perusal of respondent's testimony on direct examination, as contrasted with his statements on cross-examination indicates that respondent's testimony as a whole was evasive and contradictory. Furthermore, his testimony corroborates the testimony and evidence of the Government witnesses as to the sale and distribution of Communist Party literature at meetings of the IWO lodges. Of special interest, is his testimony before the court in his naturalization hearing when respondent testified that he had reason to believe that there was distribution of Communist Party literature at the meeting of the lodge to which he belonged and his knowledge of the Communist Manifesto as being part of the literature.
It is not intended in this motion to discuss at length the testimony of respondent since his testimony has been fully set forth in the decision of the hearing officer and the various opinions filed by the members of the Board. However, his testimony covering his knowledge of the People's Daily World is herein set forth as an example of the type of testimony he has given and on which the majority members of the Board rely to establish his unawareness of the affiliation of the IWO and the Communist Party of the United States. The record established that this periodical is the West Coast organ of the Communist Party of the United States and respondent has admitted that he had heard of such fact. On direct examination he stated that occasionally he liked to read the People's Daily World; on cross-examination he stated at first, that he had never seen such periodical at the meetings he attended, then admitted that many of the members read it and might have had copies in their pockets; on cross-examination, he stated at first that he subscribed to such periodical only for several years around 1941 or 1942, that he continued his subscription until about 1945 or 1946 and finally he admitted that his subscription continued until he left the IWO sometime around October 1947. Thus, his early testimony, would, at first glance, seem to imply that he was not familiar with the Communist Party periodical, whereas his later testimony establishes that he subscribed to it for a period of 6 or 7 years. Being an educated person, it is apparent that he was well familiar with the periodical and the views expounded therein. It is likewise evident, that the members of his group were familiar with it, that political discussions were held at the meetings, at which a minimum of 7 members were present, the quorum prescribed by the constitution and bylaws of the IWO and a maximum of 16, as testified by respondent.
The Service is entirely in accord with the decision of the hearing officer as to respondent's awareness of the affiliation between the IWO and the Communist Party of the United States. It should also be noted that the question of credibility was one particularly pertinent in connection with the decision made by such officer, who had the alien before him and had an opportunity to scrutinize and examine the respondent while he was testifying on direct and cross-examination. We are also in accord with the opinions of the dissenting members of the Board of Immigration Appeals, particularly in connection with respondent's awareness of the affiliation and the weight to be given to the testimony furnished by character witnesses in behalf of respondent. The Service, therefore, concludes that the respondent was fully cognizant that the International Workers Order supported the Communist Party and its doctrines. He has, therefore, failed to sustain the burden required of him, to establish his unawareness of the affiliation between the IWO and the Communist Party and is deportable on the lodged charge.
The next issue to be resolved is whether respondent is deportable under the provisions of section 241 (a) (6) of the Immigration and Nationality Act by virtue of his membership in an affiliate of the Communist Party. In discussion of this phase, it will be assumed for this purpose only, that respondent was unaware of the affiliation between the two organizations. By the language used in such section and the provisions of section 241 (d) of the same act, it is clear that the provisions of section 241 (a) (6) operate retroactively to aliens who entered the United States prior to the date of enactment of such act and to cases in which membership occurred prior to that date.
Upon the enactment of the Internal Security Act of 1950, the Attorney General concluded that the statute called for the exclusion from the United States of all aliens who had been members of a proscribed organization abroad and it was not material that the membership had resulted from fraud, mistake, ignorance of the aims and activities of the organization or that the membership had been of a nominal nature (97 Cong. Rec. 2369, 2370). After extended debate, in order to overcome the position taken by the Attorney General, Congress enacted Public Law 14 (act of March 28, 1951, 82d Cong., ch. 23, 1st sess.) in which the Attorney General was directed to provide by regulations that the terms "members of" and "affiliated with" where used in the act of October 16, 1918, as amended by the Internal Security Act, should include only membership or affiliation which is or was "voluntary."
In enacting the Immigration and Nationality Act, Congress inserted substantially the provisions of Public Law 14 in section 212 (a) (28) (I) relating to excludable aliens and in section 313 (d) of the act relating to naturalization. However, Congress made no such specific provision with regard to "involuntary" membership in enacting the provisions relating to the deportable classes set forth in section 241 (a) of the act. It would, therefore, appear that in view of the legislative history concerning voluntary membership in proscribed organizations, Congress was fully aware of the position of the Attorney General concerning "voluntary" membership, but nevertheless made no provision in respect thereto in connection with the deportation of aliens and specifically provided for substantial portions of Public Law 14 to be incorporated in connection with exclusion and naturalization only. It cannot be concluded, therefore, that Congress simply overlooked the question of involuntary membership in connection with the deportation of aliens. As was stated by the court in Latva v. Nicolls, 106 F. Supp. 658, 664 (D. Mass., 1952) "only a higher court can rule that in an omnibus bill, judicial exceptions to the letter of the law may be created for meritorious classes of cases."
Since the provisions of section 241 (a) (6) are retroactive in effect, it is, therefore, the conclusion of the Service that respondent is deportable under the terms of such act by virtue of his membership in an affiliate of the Communist Party, regardless of the contention made that his membership was induced or continued through fraud, mistake or lack of knowledge of the affiliation between the organizations. The record, therefore, establishes respondent's deportability under section 241 (a) (6) of the Immigration and Nationality Act.
It is noted, however, that no charge under the Immigration and Nationality Act was lodged against respondent during the course of the hearing. It might, therefore, be urged that since the Board had concluded that respondent was not deportable on the present record, the proceedings should be terminated and the question of respondent's deportability under the Immigration and Nationality Act be determined by the issuance of a new warrant of arrest and new proceedings. However, in response to such an argument it has been long held that appellate courts must give effect to changes in the applicable law occurring after trial ( United States v. The Schooner Peggy, 5 U.S. 102 (1801)). It was likewise held that a change of law pending an administrative determination must be followed ( Ziffrin, Inc. v. United States, 318 U.S. 73 (1943)). Since under the present provisions of the Immigration and Nationality Act deportability has been established, remanding the case for further consideration is appropriate ( Hormel v. Helvering, 312 U.S. 552. See also Martinez v. Neelly, 197 F. (2d) 462 (C.A. 7, 1952) affirmed by the Supreme Court, 75 Sup. Ct. 345 (January 12, 1953)). It is, therefore, the view of the Service that the respondent is deportable under the provisions of the Immigration and Nationality Act and that the hearing should be reopened for lodging of appropriate charge under the new act and for such further action as is appropriate under such circumstances in the event the Board after reconsideration does not agree with the Service view that respondent is deportable on the present record.
In conclusion, it is the view of the Service that respondent was aware that the IWO gave, loaned or promised support, money or anything of value for any purpose to the Communist Party, that consequently he had knowledge of the affiliation between the IWO and the Communist Party and that he is therefore deportable under the lodged charge. Furthermore, not only is respondent deportable on the lodged charge, he is also deportable under the provisions of section 241 (a) (6) of the Immigration and Nationality Act. Reconsideration of the case and the entry of an order of deportation by the Board of Immigration Appeals is therefore warranted.
Motion Is Hereby Made that the Board of Immigration Appeals reconsider and withdraw its order of August 19, 1953, and enter an order for the deportation of respondent on the lodged charge.
(December 15, 1953)
Discussion: Termination of proceedings has been ordered by this Board (two members dissenting). The Service requests that our order be withdrawn and the alien be ordered deported. The facts have been dealt with in great detail previously. Briefly, deportation of the respondent, a 49-year-old married male who has been in the United States since his lawful admission for permanent residence 43 years ago, is sought on the ground that from 1937 to 1947 he was a member of the International Workers Order (IWO), an affiliate of the Communist Party.
We found that IWO was an affiliate of the Communist Party which had created, maintained and used IWO in such a manner as to conceal its true character and purposes. Because it was operated by the Communist Party so as to conceal its true character, we ruled that an alien whose deportation is sought by reason of his membership in IWO, must be given an opportunity to prove he was unaware of the affiliation and if such was found, deportation could not be ordered. We held that the respondent had established he was without awareness of the affiliation.
The burden of establishing lack of awareness is upon an alien. In judging the success with which he has met the burden, consideration must be given to the fact that he is requested to prove a negative, nor can we overlook the fact that deportation is sought of a class of aliens who were legally admitted to the United States for permanent residence and who, as in the instant case, may have long residence in the United States and entirely dependent close family ties.
Reconsideration of our order is requested on three grounds. First, it is urged that the evidence of record fixes the existence of a pattern of conduct among lodges of IWO from which it must be presumed that in each of the some 1,800 lodges of IWO, a set course of conduct was followed and that this presumption should establish awareness of the affiliation.
This contention is new in that it was not previously advanced in this case and to our knowledge has not in the past or subsequent to this case been followed by the Service in either naturalization, exclusion or deportation proceedings. We are now asked to draw a presumption that at every IWO lodge there was a distribution of Communist Party literature as an official part of the lodge meeting. The evidence upon which this presumption is based was furnished by the Service in Matter of D----, A-5390614, 4 IN Dec. 578, and is before us by stipulation. It was presented in Matter of D----, to establish a charge that IWO distributed Communist Party literature. It was not presented to determine what was the procedure in the average IWO lodge. It was selected by the Service to prove a point. This evidence consisting of testimony of former Communist Party members clearly shows that Communist Party members were in control of IWO on a national level; that they desired to have Communist Party literature distributed throughout IWO lodges; and that in some lodges at different periods from 1931 to 1942, there was a distribution of Communist Party literature. It is noted that in each of the lodges in question, the officers or literature director was a member of the Communist Party; that the lodges are few in number as compared to the total lodges in existence; and that the lodges in question were mainly those of the larger cities. The evidence reveals that the Communist Party heads of IWO desired that Communist Party literature be distributed in every lodge, but there is no testimony in the record that every officer of every lodge was a member of the Communist Party or that every lodge of IWO distributed Communist Party literature. In fact, the testimony reveals that one witness who saw distribution in lodges in two areas, did not see it in a third. These factors, taken into consideration with evidence that in IWO literature published for national distribution, there was a conscious effort to conceal the fact of affiliation; and the testimony that knowledge of the affiliation varied from lodge to lodge (plus the fact that the Service has in the past permitted the naturalization of many members who were not officers), compel us to reject the argument.
Furthermore, even if some presumption could be drawn from the evidence, it must vanish when competent evidence of the fact in issue appears ( Traders and General Ins. Co. v. Powell, 177 F. (2d) 660, 665 (C.A. 8)). The alien's uncontradicted testimony, self-serving as it may be, that there was no distribution by the lodge of Communist Party literature, is evidence which must be considered. Before it, the presumption must vanish and may be rebutted only by substantial evidence contradicting the alien's testimony. Such evidence is not in the record before us.
The second contention is that the evidence of record relating to the respondent himself is such that it must be inferred that he had an awareness of the affiliation. For example, we are to infer that respondent, a college graduate, must have known of the affiliation because he read the West Coast Comunist Party daily newspaper over a period of years. We are asked in effect to take administrative notice that reading such a paper over a period of years would cause a person to be aware of the affiliation. No specific articles are pointed to. No copies of the paper are in evidence. It gives rise to some thought that in establishing the affiliation of the Communist Party and IWO, the Service did not produce articles from the West Coast daily, the paper we are asked to rely upon, but produced esoteric articles such as an English translation of a pamphlet published in 1931 and written entirely in the Yiddish language. Further discussion is unnecessary. Our previous order deals fully with the issue. We have previously considered this contention carefully and found that to order deporation on the basis of the evidence we are urged to consider, would be to act upon suspicion and conjecture. We see no reason to change this opinion.
The Service urges that the testimony of the alien under oath insofar as it is self-serving be disregarded because he is not a credible witness; they are willing to stand upon his testimony where an inference unfavorable to him is drawn. It is urged that the special inquiry officer found the respondent to be lacking in credibility and that we should not change a finding which is the primary function of the special inquiry officer. While it is true that credibility is for the special inquiry officer, in the instant case, the special inquiry officer set forth the specific reasons why he found credibility lacking. We carefully considered these reasons and found they were not persuasive. It is said that respondent testified in a contradictory and evasive manner. We found minor inconsistencies in the testimony but nothing of an important nature and nothing which could not be expected concerning events which happened many years ago and were not of a lasting or important nature. We found that respondent's testimony, although shallow on some points, was so definite and clear on material matters that a perjury charge could readily be supported if evidence to the contrary existed.
The issue before us is simple. It is purely a factual one. We find that evidence presented by the Service has not refuted that advanced by the alien to establish lack of awareness. Deportability is, therefore, not established.
Finally, a legal issue is raised. Reopening of proceedings is requested so that a charge may be lodged against the respondent under section 241 (a) (6) of the Immigration and Nationality Act. It is contended that since the enactment of the Immigration and Nationality Act, any alien is deportable by virtue of membership in an affiliate of the Communist Party whether or not "his membership was induced or continued through fraud, mistake or lack of knowledge of the affiliation." This contention has not been previously advanced by the Service and appears inconsistent with their position which has permitted the naturalization of aliens who have been members of IWO. Briefly, the Service believes the following factors require its conclusion. When Congress enacted the Immigration and Nationality Act it dropped from the previous law language which stated that subversive membership, to be a basis for deportation, must be voluntary. However, this language, requiring membership to be voluntary, was utilized in regard to provisions of the Immigration and Nationality Act relating to the naturalization or exclusion of subversive aliens. It is concluded that by dropping the language in question from the portion relating to deportation of aliens, but retaining it elsewhere, Congress indicated its desire that any person belonging to a Communist affiliate be deported whether or not the membership was voluntary.
The language in question (Public Law 14, 82d Cong., ch. 23, 1st sess.) was enacted by Congress not as an amendment to any law, but as an instruction to the then Attorney General to interpret the provisions of the Internal Security Act of 1950 concerning membership of aliens in subversive organizations as it had been interpreted prior to enactment of the Internal Security Act; i.e., that membership must be voluntary to be a basis for immigration proceedings. In enacting Public Law 14, ( supra), Congress clearly indicated that its review of administrative and judicial decisions prior to the Internal Security Act of 1950 required membership to be voluntary and that by the enactment of the Internal Security Act of 1950, Congress intended no change be made in this regard (H.R. 118, 82d Cong., 1st sess. p. 2; S.R. 111, 82d Cong., 1st sess., p. 2; 97 Cong. Rec. 2442). The clarifying language was not law. It was a statement as to what the law had been and the congressional explanation that what had been, should continue to be. We know of no rule of construction which would require the mere elimination of such explanatory language to be considered a mandate to adopt an interpretation of law diametrically opposed to what Congress has been so anxious to point out has been and was intended to continue to be the law of the land.
It would but belabour the point, to discuss the anomaly which would result if the Service contention were accepted, for it would permit an involuntary member to be naturalized and yet in deportation proceedings require his deportation — to discuss the fact that the clarifying language of Public Law 14, ( supra), was not expressly made applicable to naturalization laws existing prior to the Immigration and Nationality Act, yet the Service interpreted the clarifying language as requiring a finding that a favorable recommendation should be made in naturalization proceedings if membership were regarded as involuntary (File 56307/191, letter dated April 6, 1951, approved by the Commissioner on April 9, 1951) — to discuss the fact that the Attorney General is now seeking registration of IWO under the Subversive Activities Control Act of 1950 and that if registration is ordered an alien member whose deportation is sought by reason of such membership, would have an opportunity to establish that he did not previously know or have a reasonable basis for knowing that the organization was a Communist Front organization before registration. It would appear illogical to deny a member of such an organization an opportunity to establish that he was not aware that the organization was a Communist organization because deportation proceedings were commenced prior to the time registration of the organization was required (sec. 241 (a) (6) (E), Immigration and Nationality Act).
(In our order we pointed out that we believe a vital difference exists between membership in the Communist Party and Communist front organization insofar as the question of awareness is concerned; this phase of the problem is not before us and needs no further discussion.)
Furthermore, we believe the argument suffers from a more serious defect. The law sets forth the path we must follow. Rules of construction and congressional intent are guide posts along the path. However, the road is one which may not be entered without the payment of the toll of due process. The Service view would eliminate the toll. The Supreme Court of the United States has but recently held that a statute which makes the fact of membership in a Communist front organization a bar to public employment by the State of Oklahoma is violative of due process where the bar did not make knowledge concerning the subversive character of the organization an element ( Wieman v. Updegraff, 344 U.S. 183, 73 Sup. Ct. 215). If the attempt to exclude an individual from employment in one state of the union because of the fact of membership alone in an organization which has been designated a Communist front organization is a violation of due process, how much more reason is there for a similar finding where an attempt is made to deprive a legally resident alien of his right to live in the United States because of the same fact. It is not our place to hold, nor do we now do so, that an enactment of Congress is unconstitutional; however, where we are faced with two possible ways, even assuming that both are equally acceptable to common sense, we would be amiss were we not to select that which is least likely to run afoul of constitutional guarantees.
The motion will be denied.
Order: It is ordered that the motion be and the same is hereby denied.
(March 14, 1955)
Order: The decisions and orders of the Board of Immigration Appeals, dated August 19, 1953, and December 14, 1953, and certified to me for review, in accordance with section 6.1 (h) (1) (iii) of Title 8 of the Code of Federal Regulations, on December 17, 1953, are hereby affirmed.
Of the many factors considered by the Board in finding that C---- did not know of the relationship between the Communist Party and the International Workers Order, notwithstanding that he was an officer in a small local lodge of the latter organization, I find it significant that C---- terminated his membership prior to December 4, 1947, the date the International Workers Order was publicly designated as a Communist Party organization by the Attorney General of the United States.
In agreeing with the conclusion of the Board that an alien charged with membership in a Communist front organization is not deportable if he in fact did not have knowledge of the relationship of the organization to the Communist Party, I believe the observations of the Supreme Court in Galvan v. Press, 347 U.S. 522 (1954), at page 528, are noteworthy and confirmatory of the reasoning of the Board.
I disagree with the decision of the majority which reaches a conclusion that the respondent did not know that the International Workers Order is an affiliate of the Comunist Party and based upon such lack of knowledge terminates the proceedings. It is my opinion that the record establishes that the respondent did know that the International Workers Order is an affiliate of the Communist Party, and based upon such knowledge an order of deportation should enter. My opinion is based upon the belief that the respondent's long membership in the International Workers Order, the several major offices which he held while a member, his contact with national officers of the organization who are known Communists, and his educational background and superior intelligence, preclude any other conclusion.
The majority raises four questions. In the second paragraph on page one of its memorandum it answers all of these questions in the affirmative. I disagree with the affirmative answer to question three which is: "Does the record establish that the respondent was not aware of the affiliation?" It is my opinion that the record does not so establish. In fact, quite to the contrary, I believe there is no other conclusion but that the respondent did know that the International Workers Order is an organization affiliated with the Communist Party of America.
The majority decision consists of 15 pages, a considerable portion of which deals with minutia with respect to specific testimony of the respondent. It is not my intention to discuss each phase of the memorandum in relation with the evidence of record, although I will in the course of this dissent refer to and take issue with certain points which I believe are in error or which depart from well-settled procedures of this Board.
The case of C---- first came to the attention of the Service in connection with a naturalization proceeding which the majority discusses at some length. He first applied for citizenship in 1946 but was unsuccessful because, being an East Indian, he was then ineligible for citizenship. He states that subsequently, upon the naturalization laws being amended to permit citizenship to be conferred upon East Indians, he immediately filed an application; that several months passed without any results, and that upon inquiry he finally discovered that it was because an investigation was being made with regard to his membership in the International Workers Order. His petition for citizenship was contested, and was heard in the United States District Court for the Northern District of California before Judge Lemmon on October 28, 1949. The majority comments upon this on page 9 of its memorandum, wherein it states:
After the Government introduced a portion of its evidence to establish its charges against IWO, the respondent moved for dismissal of his petition. He gave as his reason for the withdrawal of the petition, the fact that he had neither the time, the money, nor inclination to defend anyone but himself. * * *
The record of the naturalization hearing is not quite so simple. The Government during the course of the naturalization hearing presented two witnesses with regard to the nature, purposes and aims of the International Workers Order. One of the witnesses was one J---- Z---- K----, who testified to his membership in the Communist Party from 1919 to 1934 and that he was a member of the International Workers Order from 1932 to 1934, and that he had been instructed so to join by the Central Committee of the Communist Party; that the instructions were issued by Earl Browder, then the general secretary of the Communist Party, and that he held various offices in the International Workers Order. The witness testified in great detail throughout C----'s naturalization hearing to the effect that the International Workers Order was but a tool of the Communist Party and that the national officers worked closely with the officers of the various individual lodges in order to use these lodges to the maximum as a recruiting ground for the Communist Party.
P---- C---- also testified for the Government during the course of C----'s naturalization hearing. He stated various offices which he held in the Communist Party and that he was a member of the International Workers Order from January 1932 until the summer of 1933 and again from September 1939 until the end of 1941, and that he also joined the International Workers Order upon instructions from the Central Committee of the Communist Party. Mr. C---- testified in detail with regard to the functions of the various officers of the International Workers Order lodges, the method of distributing literature, and the method of transmitting dues to the national organization. Thereafter he went to California and during 1941 he was county organizer of the Communist Party and a member of the District Bureau of the California-Nevada-Hawaii District. He stated that while in that capacity he met with officers of the International Workers Order in that area. He specifically stated that his work related to recruiting through the International Workers Order for the Communist Party and that he frequently contacted the officers of the International Workers Order, sending them instructions to carry out their tasks of recruiting for the Communist Party.
The hearing was adjourned at the conclusion of October 28, 1949, to meet again on Monday, October 31, at which time the Government stated that it would have numerous other witnesses to present. However, in the interim the petitioner's counsel requested that C----'s naturalization proceeding be dismissed, and over strong objections of the Government, the court stated that under the rules of the court it had no other recourse except to grant the petitioner's motion.
Attention has been called to the naturalization hearing since contained therein is the testimony of prominent Communists who were organizers of the International Workers Order, in which they show the manner in which the Communist Party recruited through the International Workers Order, working almost exclusively through its officers. Since, as pointed out in the decision of the majority, C---- occupied several high offices in his lodge, it is impossible to reach any fair and logical conclusions but that he was contacted on frequent occasions during the 10 years he was a member and in his capacity as an officer was requested to recruit for the Communist Party.
But, apart from that, there is much in the testimony of the respondent during the deporation hearing to support a conclusion that he was well aware of the affiliation between the International Workers Order and the Communist Party of America. We must remember that C---- is an educated man. He had a full grammar and high school education prior to attendance at the University of California, from which he graduated. His background is entirely American. In fact, he does not speak Hindustani, stating that he came here when 4 or 5 years old, was frequently away from his brothers and sisters, and never learned to speak the language of his native country. He was a member of the International Workers Order in Sacramento, Calif., from 1937 to 1947. During that time he held the positions of financial secretary, vice president, and treasurer. He also states that upon occasion he acted as president in the absence of that officer.
Respondent stated that throughout his membership in the International Workers Order he subscribed to the People's Daily World, and that he also advertised in this publication in his capacity as a dentist. In fact, he states that he still reads this publication. It is well known that the People's Daily World is the Communist Party's official organ of the West Coast. He also admits that on one occasion in Sacramento he met Max Bedacht, who is a prominent member of the Communist Party and author of many Communist articles, and that he knew that Max Bedacht was a national officer in the International Workers Order. He also testified that he had attended Communist Party meetings, attending one in San Francisco when Earl Browder was president. The verbatim record is revealing and reads as follows:
Q. Have you ever attended any Communist Party meetings?
A. Yes, I attended a Communist Party meeting in San Francisco. I believe it was Mr. Earl Browder came to the Breman Auditorium here in San Francisco.
Q. Do you recall any other Communist Party meetings you attended?
A. I don't believe I attended any others, outside of Mr. Browder (p. 168).
The record of the hearing is lengthy, consisting of 191 pages of testimony. The method of conducting the hearing is interesting. The respondent had three attorneys — Kamini K. Gupta of San Francisco, Isidore Englander of New York, and Abner Green, also of New York. Counsel refused to permit the respondent to be questioned, stating as follows:
I submit to you that the proof is upon the Government, to prove this case. The respondent is a legal resident alien and he is not asking for any discretionary relief; therefore the burden upon the Government, and after the Government has put in its case I will then consider the advisability of Mr. C---- refuting the testimony if the Government makes out a case. The burden is upon the Government in the first instance.
Thereafter counsel for the respondent proceeded to question respondent through some 77 pages of testimony.
Coming now to the memorandum of the majority, specifically to the five witnesses who testified with regard to respondent's character, the majority states on page 10 that
The hearing officer considers the testimony and affidavits in behalf of the respondent as being of no value in determining the issues in the case. We differ in our evaluation.
This is a departure from well-settled practices of this Board, which have been invariably followed over a period of many years. Character witnesses have in the past been accepted as just that and nothing more. They have been permitted to testify as to the neighborhood opinion of the respondent or appellant involved. It has long been settled that no character witness is in a position to testify with regard to specific instances or episodes in an alien's life, where, as in the case of these witnesses, the contact and acquaintance was such as to preclude a definite knowledge of the question at issue. In this case the question at issue is whether C---- had a knowledge of the affiliation between the International Workers Order and the Communist Party. None of the witnesses were members of the International Workers Order. Apparently none of them had ever attended any meetings of the lodge. In fact, some of them stated that they did not even know that he was a member of the International Workers Order. To give the testimony of these witnesses credence on the question of whether respondent had a knowledge of the affiliation between the International Workers Order and the Communist Party of America is a distinct and sharp departure from the well-settled practices of this Board with regard to the function of character witnesses and the weight and value to be given to their testimony.
The majority also gives great weight to the fact that the respondent is a Catholic, stating specifically on page 9 that
* * * several months prior to his marriage in 1939, he took instruction in the Catholic religion and was baptized in the Catholic faith. In 1947, he took a "refresher course." During the entire period of his membership in IWO, he was a practicing Catholic and his children have been brought up in that religion.
The bearing this quoted statement has upon the case is unknown. Is the majority attempting to state that because of the fact that respondent is a Catholic, this is evidence that it would be impossible for him to have knowledge of the affiliation between the International Workers Order and the Communist Party? Or is it to be concluded that the majority is inferring that because he is a Catholic we can take judicial notice that he would have nothing to do with any organization which in any manner has subversive tendencies? Undoubtedly we may conclude that the Roman Catholic Church is unalterably opposed to Communism. However, that every Catholic is likewise opposed is entirely another question. One needs only to refer to Italy — which is probably the strongest of all Catholic countries, with over 99 per cent of the population of the Roman Catholic faith, yet since World War II probably no country ouside the Iron Curtain has had a greater problem with Communism than has had Italy. In fact, it is well known that in Italy the balance of power between the Communists and the non-Communists is very close. Yet no one would be so foolish as to state that the millions in Italy who have supported the Communist Party do not contain vast numbers of persons of the Roman Catholic faith.
In conclusion, it is true that the case for the Immigration and Naturalization Service rests largely upon circumstantial evidence. C---- has denied throughout that he had any knowledge of the affiliation between the International Workers Order and the Communist Party. I would like to comment in passing that his memory when being questioned by his own counsel and upon matters favorable to him has been accurate, concise, and definite, but when questioned by the examining officer his testimony is replete with indefiniteness and lack of certainty. Typical of this is his testimony on pages 170 and 171, when asked with regard to his contact with William Heikkila, a prominent Communist, wherein the examining officer stated:
Q. Your memory was very good yesterday, Doctor C----, with respect to many, many phases of your life and meetings you had with people and so forth; can't you recollect and refresh your memory a little bit now as to whether or not you attended committee meetings with this man?
A. I can't say yes, and I can't say no.
Summing up in conclusion, the respondent is a man of 45, a college graduate, apparently well read, who admits that he likes to discuss politics and political questions, who joined the International Workers Order in 1937 and remained a member thereof for 10 years. During this time he held the offices of financial secretary, treasurer, and vice president, and states that upon occasion he acted in the capacity of president. In 1946 he filed a petition for naturalization which came on for hearing in the United States District Court for the Northern District of California on October 28, 1949. The Government opposed his naturalization based upon his membership in the International Workers Order. After the Government had presented two witnesses, and 162 pages of testimony had been taken showing the nature of the International Workers Order, and before the Government had completed its case, respondent suddenly moved for the dismissal of his petition, giving as his only reason that he was a poor man. Thereafter deportation proceedings were instituted, during the course of which the Government pointed out important offices respondent had held in his International Workers Order lodge, his acquaintance with William Heikkila and Max Bedacht, both prominent Communists, and the fact that he went to San Francisco upon one occasion to attend a Communist rally where Earl Browder spoke and where he met Earl Browder personally. It must be remembered that 5,000 people were present at this meeting and that to be able to meet Earl Browder at that meeting in itself carries with it implications of more than innocent membership for the purpose of securing insurance.
Respondent admits that he subscribed to the People's Daily World over a period of 5 or 6 years and that he still reads the People's Daily World, which is the official West Coast Communist publication.
Here we are not dealing with an ignorant dupe, taken advantage of by persons of superior intelligence, but a man who is a graduate of one of the leading colleges of California and America. With his background he could not help but have had knowledge of those forces in this country which advocate the overthrow of our government by force and violence. Even if he would have had no contact whatever with the International Workers Order it would be reasonable to presume that he would have known of its functions and purposes. But it is preposterous to conclude that he did not have such knowledge when we realize his membership for many years in the International Workers Order, the high positions that he held therein, his contact with nationally known Communists, including Earl Browder, and his subscription over a period of years to the People's Daily World, the official Communist West Coast publication, which he admits he still reads.
For the reasons given in the foregoing, it is my belief that the respondent should be ordered deported.
This matter came before the Board upon an appeal from an order of the Assistant Commissioner of Immigration and Naturalization directing deportation on the charge lodged against the subject hereof during the course of the proceeding. The evidence establishes that the respondent was a voluntary member of the International Workers Order (IWO) at a time when that organization was an affiliate of the Communist Party.
The facts in the case are set forth in detail in the opinion of the majority as well as in the opinion of the other dissenting member, and I deem it unnecessary to discuss these facts again.
Termination of this proceeding by the majority of the members of the Board is predicated upon the fact that the subject alien did not know of the existence of the affiliation of the International Workers Order with the Communist Party and that the record fails to establish that the alien was aware of such affiliation.
It is conceded that the International Workers Order is an affiliate of the Communist Party.
The subject of this proceeding was a member of the International Workers Order, Sacramento, Calif., for a decade, from 1937 to 1947, during which period of time he occupied the positions of financial secretary, vice president, and treasurer of the lodge. This person admitted that from about 1941 or 1942 until 1947 he was a subscriber to the People's Daily World, the official Communist Party organ on the West Coast. He advertised in the columns of that newspaper, having placed therein his professional card as a Doctor of Dental Surgery.
The respondent is a professional man of some intellectual attainment, being a graduate of grammar school, high school, college, and was last graduated from the University of California. Certainly his connection with the organization for a decade, as mentioned in the preceding paragraph, as an officer in high positions must necessarily have placed him in a position not only to know of the connection of the organization with the Communist Party but also to have afforded him full opportunity to be entirely aware of all of the connections and activities.
In addition, on one occasion he met Max Bedacht, a national officer of the International Workers Order, and said to be a prominent member of the Communist Party, and an author of many communistic articles. The respondent further admitted that prior to 1939 he travelled to San Francisco, in which city he attended an open mass meeting, among 5,000 others, at which meeting Earl Browder was a speaker.
The subject of this proceeding applied for naturalization as a citizen of the United States, but he withdrew that application after he became aware of part of the Government's evidence in opposition. Such evidence pertained to the alien's connection with the International Workers Order and its affiliation with the Communist Party (Naturalization No. 3934).
I have carefully considered all of the evidence of record, as well as all of the representations of counsel throughout the proceeding, and upon evaluation of the testimony and the representations it is my conclusion that the charge placed against the respondent during the course of the proceeding is sustained adequately, and that the alien is subject to deportation.
I, therefore, find it necessary to disagree respectfully with the majority of the members of the Board and to agree with the conclusion of the dissenting member that the evidence of record supports an order of deportation.
Memorandum of the majority of the Board denies the motion of the Service in its entirety. Specifically it denies the contention of the Service and the minority members of the Board that C---- was in a position to know and did know that the International Workers Order and their particular lodge thereof, of which he was a member, was an affiliate of the Communist Party. Furthermore, it denies the request of the Service that in any event the case be reopened in order that a ground of deportability may be lodged under section 241 (a) (6) of the Immigration and Nationality Act.
The merits of the case on the question of whether the respondent had a knowledge of the affiliation between the International Workers Order and the Communist Party have already been gone into in detail by views of my fellow-Board-member who joins me in dissenting from the decision of the majority, and my own views have already been fully set forth.
Memorandum of the majority which denies the motion to reopen sets forth nothing new with regard to the evidence which was not set forth in the original memorandum of the majority.
The only remaining point to be considered is the denial of the request of the Service that the case be reopened in order that a further charge may be lodged under the provisions of section 241 (a) (6) of the Immigration and Nationality Act. This point is new. It has not been previously presented to this Board by the Service. It may be true that the majority of the Board does have definite convictions with regard to the legal soundness of the position taken by the Service. However, to deny the Service the right to adequately explain and present its viewpoint where the issue is new, is in my opinion denying to the Service adequate judicial process. Consequently, for the reasons stated in the foregoing, it is my opinion that (1) the motion of the Service should be granted and the decision of the majority reversed, or (2) in the alternative the motion of the Service to reopen in order that a ground of deportability may be lodged under the provisions of section 241 (a) (6) of the Immigration and Nationality Act should be granted.
Upon the basis of all of the evidence of record, and upon consideration of the motion filed by the Service, it is my conclusion that the motion should be granted.