A-3421286
Decided by Board September 11, 1951
"Subversive" — Past member of the Communist Party of the United States of America — Act of 1918, as amended by the Internal Security Act of 1950 — Constitutionality — Fair hearing — Evidence of membership — Admissibility.
(1) Under the Internal Security Act of 1950, it is no longer necessary for the Government to establish that the Communist Party is one advocating the overthrow of the Government by force and violence.
(2) The consitutionality of this type of statute, as it affects immigration proceedings, has been adequately established by the courts.
(3) A (two-man) warrant hearing conducted (November-December 1950) in accordance with the act of September 27, 1950 (Public Law 843), was fair and impertial.
(4) Preliminary statements taken in accordance with 8 C.F.R. 150.1 (c) and (d) were properly used in the warrant proceedings in accordance with 8 C.F.R. 151.3 (b) and (c).
(5) Information supplied by alien registration forms in possession of the Government may be used by the Government for official purposes and in the public interest. (See sec. 34 (b) of the Alien Registration Act of 1940, 8 U.S.C. 455.)
CHARGES:
Warrant: Act of 1918 as amended — After entry into the United States, was an alien who was a member of an organization which advocated the overthrow of the Government of the United States by force and violence.
Act of 1918 — After entry into the United states was an alien who was a member of an organization that distributed printed matter which advocated the overthrow of the Government of the United States by force and violence.
Lodged: Act of 1918 — After entry into the United States, was an alien who was a member of the Communist Party of the United States.
BEFORE THE BOARD
Discussion: Respondent is an alien, a native of Russia, who entered the United States in 1911. The Assistant Commissioner ordered that the respondent be deported from the United States on the lodged charge set forth above. The hearing officer found, and the finding was adopted by the Assistant Commisioner, that the respondent is not deportable on the charges set forth in the warrant of arrest.
Counsel complains that hearings were not conducted in accordance with all of the provisions of the Administrative Procedure Act, and claims that the manner in which the proceedings were conducted constitutes a denial of due process. As the Assistant Commissioner has pointed out, the hearings in this case were conducted in accordance with Public Law 843, enacted on September 27, 1950, which provides that, "Proceedings under law relating to the exclusion or expulsion of aliens shall hereafter be without regard to the provisions of sections 5, 7, and 8 of the Administrative Procedure Act." The hearing conducted on November 28, 1950, and December 14, 1950, was a two-man hearing, with a hearing officer and an examining officer. Our reading of the record convinces us that the hearings and the entire proceedings involving Mr. F---- were conducted in a fair and impartial manner. He was given every opportunity to present any evidence he may have had. Respondent refused to testify, and answered only one question during the hearing, giving the country of his birth as Russia. His refusal to testify was on the advice of his attorney who stated that he would not permit the respondent to be a witness for the Government.
In oral argument before this Board, counsel made objections to the lodged charge, on the ground that the Internal Security Act, as it affects this alien, is an ex post facto law. The constitutionality of this type of statute, as it affects immigration proceedings, has been adequately established in the courts ( U.S. ex rel. Harisiades v. Shaughnessy, 187 F. (2d) 137 (C.A. 2, 1951)).
Counsel objects that exhibits 2, 3, and 4 were received in evidence without the respondent having been advised at the time those statements were taken, that he was entitled to have legal counsel present. Those statements were taken in accordance with the regulations set forth in title 8 C.F.R. 150.1 (c) and (d), set forth in pertinent part below. The use to which such statements may be put is also prescribed by regulations.
150.1 (c) Interrogation of aliens under investigation. — All statements secured from the alien or from other persons as witnesses during the investigation, which are to be used as evidence, should be taken down in writing in question and answer form; and the investigating officer shall ask the person interrogated to sign the statement. Whenever such recorded statement is to be obtained from any person, the investigating officer shall (1) identify himself to such person, (2) warn the person that any statement made by him may be used as evidence against him in any subsequent proceeding, and (3) conduct the interrogation under oath or affirmation. * * * (d) Refusal to make recorded statement under oath or affirmation. Whenever, in the course of an investigation, admissions or statements are obtained from an alien or statements are made by any other persons which indicate that the alien or other person refuses to make a recorded statement under oath or affirmation or refuses or is unable to sign the recorded statement by name or by mark, the investigating officer shall make a report in writing to the officer in charge, setting forth the facts admitted or stated as to the alien's status under the immigration laws * * *.
Sec. 151.3 (b) Use of statements made during course of investigation. — The hearing officer may enter of record any written or recorded statement or satisfactory evidence of any admission made by the alien or any other person during the investigation. If objection thereto is made by the alien or his counsel or representative, the reasons for the objection, as well as the ruling thereon by the hearing officer, shall be made a part of the record.
(c) Affidavit. — In cases in which an affidavit in narrative form has been made by the alien prior to the issuance of a warrant of arrest as provided in 150.1 (c) of this chapter and such affidavit satisfactorily establishes the facts necessary for determination as to deportability, the hearing officer may enter the affidavit as an exhibit of record and it may be used as the basis for the decision in the case.
In Reynolds v. U.S. ex rel. Koleff, 70 F. (2d) 39 (C.A. 7) the court held that a written statement made by an alien freely and without threat or coercion is available for use in a deportation proceeding. See, also, U.S. ex rel. Bilokumsky v. Tod et al., 263 U.S. 149, 44 S. Ct. 54, 68 L. Ed. 221 and Ungar v. Seaman, 4 F. (2d) 80 (C.A. 8). It is clear from the record, that respondent made his statement freely and without any coercion or intimidation.
Counsel asked this Board for a new hearing. At the time of the oral argument, he was asked what new evidence he proposed to introduce at the reopened hearing. He responded, "We don't intend to produce any evidence; we just want the Government to give us (the respondent) a fair hearing, not to introduce evidence which is not admissible, documents which have no business being in the record." Respondent had perfectly adequate opportunity to make any explanations or introduce any evidence he desired. As the circuit court of appeals held in U.S. ex rel. Harisiades v. Shaughnessy, 187 F. (2d) 137 (C.A. 2, 1951), with respect to deportation the alien is entitled only to "procedural due process," that is, he must be given notice of the hearing and opportunity to show that he does not come within the classification of aliens whose deportation Congress has directed. If he did not take advantage of the hearing legally constituted and conducted, which was offered, that is not the fault of the Government.
The Government's exhibit A, or 3, is a statement made by respondent on October 31, 1946. On August 17, 1949, he read the statement made by him, designated exhibit A, and refused to sign it. He made some corrections on the statement, relating to his relations with a woman who is now his wife and was then his mistress. These corrections he initialed. The statement indicates that he was informed that he was not required to make a statement and that anything he might say would be used against him in any action or proceeding which might be instituted by the Government of the United States. He was asked whether he was willing to be sworn and to be questioned under oath and he answered that he was willing, and he took-the oath. That statement was taken in connection with respondent's pending petition for naturalization. He stated that he had been a member of the Communist Party from 1928 until December 1934 or January 1935. He stated that he had not been a member of the Communist Party since 1935.
Exhibit 4 is a statement in affidavit form made by respondent on May 9, 1944. In this signed and sworn affidavit, respondent states that he has been duly sworn and duly advised by the naturalization examiner that any statement he makes may be used against him by the United States Government in any civil or criminal proceeding, and that he makes this voluntary statement of his own free will and consent. In this statement, he declared that he was a party member from 1928 to 1931. In part, his statement reads as follows:
I broke away from the Communist Party in 1931 because I did not think they followed the communistic theories implicitly and completely. I have read the writing of Karl Marx and other Communist writers and believe that most of their theories of government are good. I still believe in most communistic principles. However, I do not believe that the United States Government is a bad Government although there is room for improvement. Some of the principles of communism should be tried here.
Exhibit 5 is the respondent's alien registration Form AR-2 signed and sworn on December 4, 1940. Question 10 on this form is: "I am, or have been within the past 5 years, or intend to be engaged in the following activities: In addition to other information, list membership or activities in clubs, organizations, or societies." Respondent's answer to this question was, "Former member of Communist Party since 1935 — and left in the middle of 1938. Member of International Workers Order since 1936 to present."
In his brief, counsel objected to the receipt in evidence of respondent's alien registration form, claiming that all aliens had been assured that the information supplied by them in the alien registration would not be used against them under any and all circumstances. The only restriction contained in the law against the use of the registration records is the following:
Section 34 (b). All registration and fingerprint records made under the provisions of this title shall be secret and confidential, and shall be made available only to such persons or agencies as may be designated by the Commissioner, with the approval of the Attorney General (8 U.S.C. 455).
Furthermore severe penalties were prescribed for failure or refusal to register; also for the giving of statements known to be false (8 U.S.C. 457), and numerous prosecutions have been had for such violations. ( U.S. v. Doshen, 133 F. (2d) 757 (C.C.A. 3., 1943); U.S. v. Ausneier, 152 F. (2d) 349 (C.C.A. 2, 1945); U.S. v. Gancy, 54 F. Supp. 755 (D.C., 1944), aff'd 149 F. (2d) 788, cert. den., 66 S. Ct. 166, 326 U.S. 767, 90 L. Ed. 463, rch. den., 66 S. Ct. 229, 326 U.S. 810, 90 L. Ed. 495; U.S. v. Macke, 159 F. (2d) 673 (C.C.A. 2, 1947), cert. den., 67 S. Ct. 1201, 331 U.S. 810, 91 L.Ed. 1830). It is our opinion that the information supplied by the alien registration forms in the possession of the Government may be used by the Government for official purposes and in the public interest. If the information supplied cannot be so used, there would have been no object in that vast undertaking directed by the Alien Registration Act.
Exhibit 2 is the respondent's signed and sworn statement of August 15, 1949, in which respondent states that he was a member of the Comunist Party, from 1930 to 1931.
Under the Internal Security Act of 1950, it is not longer necessary for the Government to establish that the Communist Party is one advocating the overthrow of the Government by force and violence. Under that act, section 1 (2) (C), membership in or affiliation with Communist Party, specifically and by name, is made grounds for exclusion or deportation. In the instant case, the Government did not introduce evidence to show that the Communist Party is an organization advocating the overthrow of the Government by force or violence. For that reason, the charges contained in the warrant of arrest were not sustained.
In our opinion, the record contains adequate evidence that respondent has been a member of the Communist Party of the United States. The specific dates of his membership are unimportant. He is deportable under the Internal Security Act of 1950.
Order: It is ordered that the appeal be dismissed.