A-5487776
Decided by Central Office January 24, 1952 Decided by Board November 19, 1952 Decided by Board February 20, 1953
Subversive organization; Young Communist League of United States, affiliated with Communist Party of United States — Deportation charge: based on any entry — Hearing officer, substitution.
(1) An alien who first entered the United States in 1928, was a voluntary member of the Young Communist League of the United States in 1938 and last entered the United States in 1945, was found to be deportable both as a member of a proscribed organization after his original entry as well as a member prior to his last entry.
(2) The evidence established that the Young Communist League of United States is an affiliate of the Communist Party of the United States.
(3) Deportability on a charge under the act of October 16, 1918, as amended, may be predicated on any entry into the United States and is not limited to the last entry.
(4) Substitution of hearing officer sanctioned by law and regulations.
CHARGES:
Warrant: Act of October 16, 1918, as amended — Prior to entry, alien member of organization that advocates or teaches overthrow, by force or violence, of Government of United States.
Lodged: Act of October 16, 1918, as amended — After entry, alien who was member of Young Communist League of United States, a section, subsidiary, branch, affiliate, or subdivision of the Communist Party of the United States.
Act of October 16, 1918, as amended — Prior to entry, alien who was member of Young Communist League of the United States, a section, subsidiary, branch, affiliate, or subdivision of the Communist Party of the United States.
BEFORE THE CENTRAL OFFICE
(January 24, 1952)
Discussion: Upon consideration of the entire record, including the exceptions taken, the recommended order of the hearing officer is hereby adopted except that findings of fact (9) and (10), and conclusions of law (3) will be deleted; and findings of fact (6) and (8) and conclusions of law (1) and (2) will be amended to read:
FF (6) That respondent was a voluntary member of the Young Communist League of the United States for about 6 months during 1938.
FF (8) That during the period of respondent's membership therein, the Young Communist League of the United States was an organization affiliated with the Communist Party of the United States.
CL (1) That under the act of October 16, 1918, as amended, respondent is subject to deportation on the ground that he was, after entry, a member of the following class set forth in section 1 of said act: An alien who was a member of the Young Communist League of the United States, an affiliate of the Communist Party of the United States.
CL (2) That under the act of October 16, 1918, as amended, respondent is subject to deportation on the ground that he was, prior to entry, a member of the following class set forth in section 1 of said act: An alien who was a member of the Young Communist League of the United States, an affiliate of the Communist Party of the United States.
In view of our finding of deportability on the above-stated 1918 act charges, we do not find it necessary to discuss any of the other charges based on the same act.
Counsel for respondent has submitted written exceptions and brief. Counsel argues that the alienage of respondent has been improperly found as a fact, rather than concluded as a matter of law. That citizenship as a matter of fact is placed beyond the realm of dispute by the Supreme Court in United States ex rel. Bilokumsky v. Tod et al., 263 U.S. 149, 153 (1923), wherein it is stated:
It is true that alienage is a jurisdictional fact; and that an order of deportation must be predicated upon a finding of that fact. [Emphasis added.]
Exception has been taken by counsel to the findings of fact that respondent is an alien, a native and citizen of Mexico; that respondent last entered this country in 1945, after a visit to Mexico; and that respondent was during 1938 a member of the Young Communist League of the United States, an affiliate of the Communist Party of the United States.
The evidence of record contains a sworn statement made by respondent before an officer of this Service at Los Angeles, Calif., on June 27, 1946. During this interrogation respondent admitted that he was a native of Mexico and had never become a citizen of any other country; that for a period of about 6 months during 1938 he was a member of, and the president of, the Mexican group of the Young Communist League; and that he had "an idea" that the Young Communist League was affiliated with the Communist Party. He also declared at that time that he had been to Mexico "sometime in January 1945" and that he was married in Mexico on January 26, 1945. Another exhibit of record verifies the arrival of respondent at the port of Laredo, Tex., on March 29, 1928, at which time he was lawfully admitted for permanent residence.
We have examined the transcript of the interrogation of respondent, and we note that at the outset of the questioning, the Service officer properly identified himself, advised respondent that any statement made by him should be voluntary, and that any such statement may be used against respondent in any future proceedings. Respondent stated his willingness to answer questions under those conditions, and was then placed under oath. The statement was recorded in question and answer form, and respondent affixed his signature to the transcription of the interrogation. We find no evidence of coercion; respondent was at liberty to refuse to answer any question. Nor do we see any evidence indicating that respondent was forced to testify against himself. The interrogating officer testified in these proceedings, identifying respondent and the transcribed statement. It seems clear to us that this exhibit is legally admissible in evidence.
S---- C---- testified on behalf of the Government, stating that she was a member of the Young Communist League from 1929 to November or December 1937, and that she was a member of the Communist Party of the United States from 1929 to 1942. This witness listed various official positions of responsibility held by her in both of these organizations. She further testified that for a period of 6 weeks she attended a training school for the Young Communist League. The witness related that she was an organizer and that she taught the organizational structure, program, and aims of the Young Communist League. On the basis of her membership, activities, and official positions in the Young Communist League and the Communist Party of the United States, Mrs. C---- testified that during the entire period of her membership in the Communist Party, the Young Communist League was bound by the decisions of the Communist Party of the United States.
We find that this Government witness possesses such a knowledge of the structure, program, and aims of the Young Communist League and of the Communist Party of the United States as to qualify as an expert witness on such matters. In her opinion, the Young Communist League received its political leadership from the Communist Party, and was bound by the decisions of the latter organization. This is fully set forth in a pamphlet identified by this witness as an official publication of the Young Communist League. It is entitled "Young Communists in Action," compiled by Lewis Miller, and was issued by the educational department of the Young Communist League. It is described as a "Handbook for Young Communists". On page 8 of this booklet it is stated:
A. WHAT IS THE RELATIONSHIP OF THE YCL TO THE COMMUNIST PARTY?
The Young Communist League is part of the Communist movement as a whole. The Y.C.L. acknowledges the political leadership of the Communist Party. We are opposed to the idea that an independent and isolated struggle of the working youth is possible. It is easy to understand why the league must get its political leadership from the party — simple because the Communist movement must be unified, with definite aims and a single program of action.
Another publication which was identified by this witness as an official document of the Young Communist League is entitled "Programme of the Young Communist International." It was published by the Young Communist League of America, 43 East 125th Street, New York City. Page 13 of this booklet reads:
The task of the Young Communist League is to draw the young workers into the struggle for the world revolution, and, under their leadership, to attract all other sections of the young toilers, training them, in the course of the struggle, in the Communist spirit. The Communist Parties guide the work of the Y.C.L., and the Comintern leads the Y.C.I., which is an international Young Communist League.
Page 35 of this publication declares:
The Y.C.L. opposes the idea of "youth syndicalism," which considers that an independent and isolated struggle of the working youth is possible. The Y.C.L. is a part of the Communist movement as a whole. The C.P. is the leader of the Communist movement and the entire working class; there cannot be no dual leadership, or the existence of two Communist Parties. The Y.C.L., while organizationally independent, works under the direction of the Communist Party and the C.I., and C.P. The Y.C.L. submits to instructions of the C.P. and of the C.I. as the supreme body in the world Communist movement. The nature of the Y.C.L. as a mass school of Communism for the working youth implies that not every member of the Y.C.L. is automatically a member of the C.P. The Y.C.L., however, bears the name Communist because, although it is not formally a party organization, it is nevertheless a Communist organization.
Another exhibit of record is entitled "The Communist Party. A Manual on Organization," by J. Peters, published by Workers Library Publishers, P.O. Box 148, Station D, New York City, in July 1935. Page 98 states:
WHAT IS THE RELATION BETWEEN THE C.P. AND Y.C.L.?
The Young Communist League is a mass organization of youth. The Communist Party is responsible for building this very important mass organization. The relation between the Party and the Y.C.L. is guided by these principles: The party units bear political responsibility for building the Y.C.L. In order to carry out this responsibility, the following organizational rules are observed by the party:
1. Each party unit assigns one comrade for work in the corresponding Y.C.L. Unit. This assigned member is not a formal representative of the party to the Y.C.L., but a mature comrade who participates in all activities of the Y.C.L., helps it to formulate policies and to carry out decisions.
In a party unit territory where there is no Y.C.L. unit, one or two comrades should be assigned to the special task of building the Y.C.L. organization.
2. In order to coordinate the work between the party and the Y.C.L., the party should select one Y.C.L. member, preferably one who is a member also of the party, to attend regularly the meetings of the unit bureau. It is understood that all Y.C.L. members who are members of the party attend party unit membership meetings.
3. The same rules are observed on a section scale. The section committee has one of its members assigned to the Y.C.L. section. One member of the Y.C.L. section committee attends regularly the meetings of the section party committee.
Respondent declined to testify in these proceedings. One F---- C---- testified on behalf of respondent, stating that he was a member of the Young Communist League from 1930 or 1931 to the latter part of 1938; and that he was a member of the Communist Party of the United States from 1932 to 1940 and from 1945 to date. He further stated that he held several positions of responsibility in both organizations, and that on the basis of his membership and offices in the Young Communist League, he was familiar with the program and policies of that organization. This witness denied that a qualification of membership in the Young Communist League was the acceptance by the member of the political leadership of the Communist Party. Witness C---- admitted that the Young Communist League was affiliated with the Young Communist International, but claimed that the Young Communist League was not bound by the decisions of the Young Communist International.
Although asserting that there was no organizational relationship between the Young Communist League and the Communist Party, witness C---- testified that there was consultation on particular questions that were of interest to both organizations.
At one point in the proceedings this witness was asked to explain what he meant by "young communist," a phrase he had used several times in his testimony. He replied:
I mean by "young communist" I'm speaking of the members of the Young Communist League.
The witness stated that he agreed with this quotation from the pamphlet Young Communists in Action:
The Y.C.L. acknowledges political leadership of the Communist Party.
Witness C---- insisted that the activities of the Young Communist League and the Communist Party were not coordinated by a process of exchange of representatives. However, he testified that "The Communist Party had young communists in the Young Communist League."
It was brought out in his testimony that C---- was himself under deportation proceedings based upon a charge of membership in the Communist Party of the United States. It seems to us that under the circumstances the testimony of this witness must be considered in the light of the fact that he has some interest in the subject-matter in issue. Such interest makes his credibility a matter to be weighed.
We have carefully examined the entire record. We perceive no reason to doubt the veracity of witness S---- C----, who testified in behalf of the Government. It is our finding that she qualifies as an expert on the organizational structure, aims, and activities of the Young Communist League and of the Communist Party. On the basis of her testimony and documents which she has identified as official publications of these organizations, we find that the Young Communist League was, during the period of respondent's membership therein, an organization dominated and controlled by, and therefore an affiliate of, the Communist Party of the United States. Respondent has admitted that he is an alien, and that he was a member of the Young Communist League for a period of about 6 months during the year 1938. The record also contains his statement that he was married in Mexico on January 26, 1945. Records of this Service show that he was lawfully admitted to this country for permanent residence on March 29, 1928. On the basis of all of the foregoing evidence, we find that respondent is an alien, who was, after entry into this country, and prior to an entry into this country, a voluntary member of the Young Communist League, an organization affiliated with the Communist Party of the United States. He therefore falls within deportable classes enumerated in the act of October 16, 1918, as amended by section 22 of the Subversive Activities Control Act of 1950 (title I of the Internal Security Act of 1950), effective September 23, 1950 (Public Law 831, 81st Cong., ch. 1024, 64 Stat. 1006).
The 1950 amendment devises sec. 4 (a) of the act of October 16, 1918, to read:
"SEC. 4. (a) 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 * * * sec. 1 (2) of this act, shall, upon the warrant of the Attorney General, be taken into custody and deported in the manner provided in the Immigration Act of February 5, 1917. The provisions of this section shall be applicable to the classes of aliens mentioned in this act, irrespective of the time of their entry into the United States."
Section 1 (2) of said act reads, in pertinent part:
"(2) Aliens who, at any time shall be or shall have been members of any of the following classes: * * * (C) Aliens who are members of or affiliated with (i) the Communist Party of the United States, * * * (v) any section, subsidiary, branch, affiliate, or subdivision of any such association or party * * *."
8 C.F.R. 174.1 (i) effective April 4, 1951 ( 16 F.R. 2907), promulgated in conformity with an act approved on March 28, 1951 (Public Law 14, 82d Cong., ch. 23), which authorized and directed the Attorney General to provide such regulation, declares:
"(i) The terms `members of' and `affiliated with' where used in the act of October 16, 1918, as amended, shall include only membership or affiliation which is or was voluntary, and shall not include membership or affiliation which is or was solely (1) when under 16 years of age, (2) by operation of law, or (3) for purposes of obtaining employment, food rations, or other essentials of living, and where necessary for such purposes."
Hence, the act of October 16, 1918, as amended, calls for the deportation of this alien who was, at a time after his entry into this country, and at a time prior to this entry into this country in 1945, a voluntary member of an organization affiliated with the Communist Party of the United States.
Counsel has contended that we cannot properly hold that respondent is deportable on the basis of membership in a proscribed organization after entry, on the ground that such charge is not geared to his last entry into this country. Respondent first entered the United States in 1928; his membership in the Young Communist League occurred in 1938; and he last entered this country in 1945. We do not agree with counsel that only the last entry may be used as a basis for deportation under the act of October 16, 1918, as amended. In United States ex rel. Volpe v. Smith, Director of Immigration, 289 U.S. 422, 425 (1933), the Supreme Court said:
We accept the view that the word "entry" * * * includes any coming of an alien from a foreign country into the United States whether such coming be the first or any subsequent one * * *.
It is our view that a proper interpretation of the act of October 16, 1918, as amended, permits finding respondent deportable as an alien who was a member of a proscribed organization (1) after an entry, and/or (2) prior to his last entry.
The applicable statute contains no limitation as would make the test of deportability dependent solely upon the relationship of the proscribed membership to the alien's most recent entry. Nor does this legislation prohibit the use of any or every arrival as a base in the calculation of deportability. We believe that deportability may be found on more than one charge even where there has been but a single proscribed deed, if the deed be applied to more than one entry. Thus, in the instant case, it is our conclusion that respondent's membership in an affiliate of the Communist Party in 1938 renders him amenable to deportation as an alien who was a member of a proscribed organization (1) after (his 1928) entry and prior to (his 1945) entry.
Another contention of counsel is that respondent was denied due process of law, in that he did not receive a fair hearing. It must be noted that respondent was protected by the basic safeguards of our system of jurisprudence: reasonable notice of the charges against him, the right to counsel, and adequate opportunity to prepare and present a defense. We are particularly unimpressed by this complaint when we regard it in the light of respondent's refusal to testify in these proceedings. Further, the conduct of the presiding officers was bound by the provisions of 8 C.F.R. 151.2 (b), published 15 F.R. 1299, March 10, 1950; amended November 10, 1950, published 15 F.R. 7637. This regulation states, in pertinent part:
(b) Hearing officer; general duties. — The hearing officer shall conduct a fair and impartial hearing. He shall use his independent judgment in rendering his decision and shall not perform any duties inconsistent with the duties and responsibilities of an adjudicating officer * * *.
In the instant case, there is no evidence that the hearing officers consulted any person or party on any fact in issue unless upon notice and opportunity for all parties to participate; or that the hearing officers engaged in the performance of investigative or prosecuting functions; or that they are responsible to, or subject to the supervision or direction of, any Federal officer engaged in the performance of investigative or prosecuting functions: or that any person other than the hearing officer participated in his decision. Nor is there any evidence of personal bias or prejudice on the part of the hearing officers, either in favor of the Government or against the respondent.
Objection has been made by counsel to the substitution of one presiding officer for another during the course of these proceedings. We find that such substitution was permissible, and that compliance was made with the provisions of 8 C.F.R. 151.2 (e), which reads:
(e) Withdrawal and substitution of hearing officer. — * * * If a hearing officer becomes unavailable to complete his duties within a reasonable time in connection with any case, another hearing officer shall be assigned to complete the case. In such event the new hearing officer shall first familiarize himself with the case and shall state for the record that he had done so.
The courts have upheld the validity of immigration hearings where there has been a change in the personnel engaged in the conduct of such hearings, ( Quon Quon Poy v. Johnson, Commissioner, 273 U.S. 352 (1927), United States ex rel. Minuto v. Reimer, Commissioner of Immigration and Naturalization, 83 F. (2d) 166 (C.C.A. 2, 1936), and cases cited therein.)
In the Minuto v. Reimer case, the Court stated at pp. 167-168:
The change in the personnel of the Board furnishes no proof that there was not a fair hearing. The minutes of the first hearing were made part of the record at the second, so everything was before the Board that took final action. It is well settled that a maintenance of continuity of personnel is not necessary so long as all the essentials of a fair hearing are observed by the Board exercising ultimate judgment.
Counsel asserts that the warrant of arrest upon which these proceedings are based, failed adequately to inform respondent of the matters of fact relied upon by the government. It has been judicially determined that such charges as are stated in this particular warrant are legally sufficient. A warrant of arrest need not have the formality and particularity of an indictment. It need only contain sufficient information to enable the alien to prepare a refutation of the charges, ( Podolski v. Baird, 94 F. Supp. 294 (E.D. Mich., S.D., 1950), citing United States ex rel. Bauders v. Uhl, 211 Fed. 628 (C.C.A. 2, 1914)).
Counsel also argues that the hearing was held in accordance with rules and regulations which were made effective without notice or hearing, and therefore in violation of the Administrative Procedure Act. Although these regulations became effective on the date of their publication in the Federal Register, compliance was made with the provisions of section 4 of the Administrative Procedure Act ( 60 Stat. 238; 5 U.S.C. 1003). This section permits the omission of notice and hearing in any situation in which the agency for good cause finds (and incorporates the finding and a brief statement of the reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.
The constitutionality of the act of October 16, 1918, as amended, has been challenged by counsel. This Service is powerless to pass upon that question. Determination of the constitutionality of a statute enacted by the Congress is a function restricted to the judicial branch of the Government, ( Panitz v. District of Columbia, 112 F. (2d) 39, 42 (C.A., D.C., 1940); Todd v. Securities and Exchange Commission, 137 F. (2d) 475, 478 (C.C.A. 6, 1943)). However, in our enforcement of the law we must be guided by judicial interpretations of the past. Contentions such as those raised by counsel have been faced, and rejected by the courts. Thus, it has been held that an immigration law which is retrospective in its application to an alien is not unconstitutional, ( Mahler v. Eby, 264, U.S. 32, 39 (1924), United States ex rel. Lubbers v. Reimer, 22 F. Supp. 573 (D.C., S.D.N.Y., 1938)). The Supreme Court has made it clear that the Congress holds plenary authority to exclude aliens altogether, or to prescribe the terms and conditions upon which they may come into or remain in this country, ( Lapina v. Williams, 232 U.S. 78, 88 (1914), United States ex rel. Volpe v. Smith, Director of Immigration, 289 U.S. 422 (1933)).
Order: It is ordered that the alien be deported from the United States, pursuant to law, on the following lodged charges:
The act of October 16, 1918, as amended, in that he was, after entry, a member of the following class set forth in section 1 of said act: An alien who was a member of the Young Communist League of the United States, an affiliate of the Communist Party of the United States.
The act of October 16, 1918, as amended, in that he was, prior to entry, a member of the following class set forth in section 1 of said act: An alien who was a member of the Young Communist League of the United States, an affiliate of the Communist Party of the United States.
Discussion: This is an appeal from the Acting Assistant Commissioner's decision dated January 24, 1952, requiring deportation of the respondent on the lodged charges.
The facts of the case are adequately set forth in the opinion of the hearing officer and the Acting Assistant Commissioner.
The respondent is a 45-year-old married male, a native and citizen of Mexico, who last arrived in the United States on or about January 26, 1945, after a temporary visit to Mexico. He was lawfully admitted for permanent residence on March 29, 1928.
The record affirmatively establishes that the respondent was a voluntary member of the Young Communist League of the United States for about 6 months during 1938; that he was in fact the president of the Mexican group of that league; and that the Young Communist League of the United States is an affiliate of the Communist Party of the United States. The evidence from which these findings were made is adequately set forth in the order of the hearing officer and the Acting Assistant Commissioner. It need not be repeated.
Every question presented on the appeal was exhaustively discussed and correctly decided by the Acting Assistant Commissioner. We find it necessary only to cite several cases decided after the Acting Assistant Commissioner's opinion was written, which are a further judicial authorization of the position taken by the Service in regard to the constitutional objections raised by counsel. These cases are Harisiades v. Shaughnessy, 342 U.S. 580, and Carlson et al. v. Landon, 342 U.S. 524. Careful consideration of the briefs and the oral arguments before this Board convinces us that the decision was without error. Accordingly, the appeal must be dismissed.
Order: It is ordered that the appeal be and the same is hereby dismissed.
Discussion: This is a motion for reconsideration of our order of November 19, 1952, which dismissed an appeal from an order of the Acting Assistant Commissioner, finding the respondent deportable on the grounds stated above.
Oral argument on the motion is requested. Such a request for oral argument is addressed to our discretion and in view of the brief submitted, in fact that oral argument was had on the appeal on the issues now presented, we do not believe that oral argument is necessary. The request for oral argument is, therefore, denied.
The respondent, a 45-year-old married male, a native and citizen of Mexico, last entered the United States on or about January 26, 1945, after a temporary visit to Mexico. He was lawfully admitted to the United States for permanent residence on March 29, 1928. For about 6 months during 1938, the respondent was a voluntary member of an organization affiliated with the Communist Party of the United States. The charge that he was a member of the proscribed organization after entry was sustained on the fact of the entry in 1928. To sustain the charge that prior to entry he was a member of a proscribed organization, we made use of the entry in 1945.
Counsel takes objection to our refusal to limit ourselves solely to the respondent's last entry in 1945. If we are confined to the 1945 entry only, the charge that after entry respondent was a member of the Communist Party would fail because there is no evidence of membership in the Communist Party after his entry in 1945. We considered this contention of counsel carefully when it was raised on appeal. We have carefully considered counsel's present representations in this matter. We see no reason to change our position that any entry, and not necessarily the last entry, may be used as the basis for deportation under the act of October 16, 1918, as amended. The reasoning for this position is well expressed in the opinion of the Acting Assistant Commissioner in this case and in Matter of N----, A-4849583, B.I.A., December 5, 1952.
It is counsel's further contention that membership prior to entry in 1945 is not a ground for deportation under the law since it had terminated in 1938. A question of this very nature was considered in Matter of D----, A-7808001, Int. Dec. 388, September 22, 1952, ( 4 IN Dec. 745), where it was held that the amendment of June 28, 1940, to the act of October 16, 1918, made deportation mandatory for all aliens who at any time past had been members of proscribed organizations in the United States.
For the reasons stated, the motion for reconsideration will be denied.
Order: It is ordered that the motion for reconsideration and request for oral argument be and the same are hereby denied.