A-4472847
Decided by Board June 12, 1958
Subversive organization — Evidence — Membership in Communist Party after entry — Applicability of Rowoldt decision.
Claim to exemption from deportability under the Rowoldt decision is rejected when respondent refused to testify and the uncontradicted testimony of the witnesses showed that respondent was a member of the Communist Party over a period of years, attended meetings regularly, and paid dues. In the circumstances, the normal inference follows that he was aware that the party he had joined operated as a political organization.
DEPORTABLE:
Act of Oct. 16, 1918, as amended — After entry, alien who was member of Communist Party of the United States.
BEFORE THE BOARD
Discussion: On September 1, 1955, we dismissed the respondent's appeal from the order of the special inquiry officer requiring respondent's deportation upon the charge stated above. Counsel now asks that our order be reconsidered and that proceedings be terminated. Judicial review has been sought and suit is now pending in the United States District Court for the Northern District of California, Southern Division. Counsel alleges that this motion has been made with the knowledge of the court, and that in the event it is granted the litigation now pending will be dismissed as moot.
Respondent, a married male about 66 years of age, is a native and citizen of Greece and has been a resident of the United States since 1911. He has been found to have been a voluntary member of the Communist Party from 1933 to 1937. The finding is based upon the evidence of 2 Government witnesses. Respondent refused to testify on the issue of Communist Party membership at his deportation proceeding in 1951 and at a subsequent hearing which had been given to him at his request in 1954 to apply for suspension of deportation. He does not now offer to come forward with testimony on this matter.
The motion for reconsideration is based on the similarity counsel finds between the present case and Rowoldt v. Perfetto ( 355 U.S. 115). Rowoldt involved an aged alien who had been a resident of the United States for many years and whose deportation was sought on the ground that he had been a member of the Communist Party for about a year in 1935. The sole evidence as to membership came from the alien. His uncontradicted testimony was that he had joined the Communist Party to obtain food and shelter. The court held that this testimony established that Rowoldt's affiliation with the Communist Party may have been wholly devoid of any political implications and that the record was too insubstantial to support the finding that Rowoldt had committed himself to the Communist Party in the consciousness that he was joining an organization known as the Communist Party which operates as a distinct and active political organization. It may be seen that the normal inference that one who joins and remains a member of a political party knows that it is a political party, was overcome by the uncontradicted testimony of Rowoldt.
Counsel contends that this record is devoid of the political implications which are required by the decision in Rowoldt. It appears to be counsel's belief that to find "political implications" in a record, there must be evidence that the alien had knowledge of or adhered to the Communist Party program and purposes. This standard is not correct. In Rowoldt, the court showed that the test set out in Galvan v. Press ( 347 U.S. 522), still controlled. In Galvan, the court stated that it was not necessary to prove that an alien "had joined the Communist Party with full appreciation of its purposes and program." The court held that support or even demonstrated knowledge of the Communist Party's advocacy of violence was not intended to be a prerequisite to deportation. The test given by the court was whether the alien had joined the Communist Party "aware that he was joining an organization known as the Communist Party which operates as a distinct and active political organization."
We believe that it is sufficient if the record permits the finding that the respondent knew that the organization he was joining was the Communist Party and that it was a political organization. (See Schleich v. Butterfield, 252 F. (2d) 191 (C.A. 6, 1958), certiorari applied for; Wellman v. Butterfield, No. 12938 (C.A. 6, Apr. 9, 1958); see also United States ex rel. Avramovich v. Lehmann, 235 F. (2d) 260 (C.A. 6, 1956), cert. den. 355 U.S. 905, rehearing denied 355 U.S. 925 (Jan. 13, 1958); Niukkanen v. Boyd, 241 F. (2d) 938 (C.A. 9, 1957), cert. den. 355 U.S. 905 (Dec. 16, 1957).) In the instant case, respondent has not testified on the issue of membership in the Communist Party. The uncontradicted testimony of record establishes that he was a member of the Communist Party over a period of years; that he attended meetings regularly; and that he paid dues. The normal inference follows that he knew the party he had joined and had remained a member of for so many years was a political organization. Not only is there nothing substantial to overcome this inference, there is also testimony which makes it reasonable and proper to conclude that the respondent was a member of the Communist Party with the realization of its nature as a political organization. This testimony reveals that during the period when respondent had been a member of the party, it had candidates for public office; that at closed meetings of the party the overthrow of the Government by force and violence and its replacement by a Soviet system was advocated; that respondent attended closed meetings regularly; that he was active in discussions; and that he had been chosen as a representative to a group which was over the individual units of the Communist Party. This case, unlike Rowoldt, does not present a record so balanced that it is possible to find that the affiliation was wholly devoid of political implications.
Contentions of counsel concerning the witnesses have been considered again and we find no reason to reverse the order because of these contentions. Counsel's point concerning the fact that the hearing officer did not sustain the warrant charges which were based upon the allegation that the Communist Party had been involved with the belief of the necessity of the overthrow of this Government by force and violence, must be considered in light of the fact that the Government apparently abandoned these charges in favor of the more easily established lodged charge.
The motion will be denied.
Order: It is ordered that the motion be and the same is hereby denied.