A-5214397
Decided by the Central Office November 1, 1950 Decided by the Board April 27, 1951
Subversive, proscribed organization, member of — Communist Party of United States of America, membership — Act of October 16, 1918, as amended by section 22 of Internal Security Act of 1950 — Evidence of proscribed nature of organization.
(1) An alien, who first entered the United States on August 1, 1923 (admitted for permanent residence), and last entered the United States (as a returning resident) on June 16, 1945, who was a member of the Communist Party of the United States from 1930 to 1939, was charged on October 19, 1950, and then found subject to deportation under the provisions of section 4 of the act of October 16, 1918, as amended by section 22 of Title I of the Internal Security Act of 1950 as an alien who, prior to entry, was a member of one of the classes of aliens enumerated in section 1 (2) (C) of the above act, as amended; to wit; a member of the Communist Party of the United States.
(2) It is no longer necessary under the Internal Security Act of 1950 (effective September 23, 1950), to show that the Communist Party is an organization that believes in the overthrow of the Government by force and violence.
CHARGES:
Warrant: Act of October 16, 1918, as amended by the
Acts of June 5, 1920, and June 28, 1940 — At time of entry, was a member of the following class, set forth in section 1 of said Act: An alien who was a member of and affiliated with an organization, association, society and group that believes in, advises, advocates and teaches the overthrow, by force and violence, of the Government of the United States.
Act of October 16, 1918, as amended by the
Acts of June 5, 1920, and June 28, 1940 — At the time of entry, was a member of the following class, set forth in section 1 of said act: An alien who was a member of and affiliated with an organization, association, society and group that writes, circulates, distributes, prints, publishes, and displays, and causes to be written, circulated, distributed, printed, published and displayed, and that has in its possession for the purpose of circulation, distribution, publication, issue and display, written and printed matter, advising, advocating, and teaching the overthrow, by force and violence, of the Government of the United States.
Act of October 16, 1918, as amended by the
Acts of June 5, 1920, and June 28, 1940 — After entry, was a member-of the following class, set forth in section 1 of said act: An alien who was a member of and affiliated with an organization, association, society, and group that believes in, advises, advocates, and teaches the overthrow, by force and violence, of the Government of the United States.
Act of October 16, 1918, as amended by the
Acts of June 5, 1920, and June 28, 1940 — After entry, was a member of the following class set forth in section 1 of said act: An alien who was a member of and affiliated with an organization, association, society and group that writes, circulates, distributes, prints, publishes and displays, and causes to be written, circulated, distributed, printed, published and displayed, and that has in its possession for the purpose of circulation, distribution, publication, issue, and display, written and printed matter advising, advocating, and teaching the overthrow, by force and violence, of the Government of the United States.
Lodged: Act of October 16, 1918, as amended by the
Internal Security Act of 1950 — An alien who, prior to entry, has been a member of the following class of aliens set forth in section 1 of said act: An alien who was a member of the Communist Party of the United States.
The hearing examiner recommends that the respondent be deported from the United States pursuant to the charge lodged at the hearing. No exceptions have been filed.
BEFORE THE CENTRAL OFFICE
(November 1, 1950)
Discussion: The material facts in this case have been made the subject matter of a written stipulation by and between G---- N---- Z----, the respondent herein; his attorney, I---- E----, Esq.; and E---- C---- C----, the Examining Officer for the Immigration and Naturalization Service. It has been stipulated and agreed for the purposes of these proceedings and these proceedings only that the respondent is an alien, a native and citizen of Bulgaria; that he first entered the United States on August 1, 1923, at New York, N.Y. and was admitted for permanent residence; that he last entered the United States on June 16, 1945, at Detroit, Mich., via the Canadian Pacific Railway and was admitted upon presentation of a resident alien's border crossing card; and that the respondent was a member of the Communist Party of the United States from 1930 to 1939.
In addition to the charges contained in the warrant of arrest, a further charge was lodged against the respondent during the hearing which was held on October 19, 1950. This additional charge has been predicated on the act of October 16, 1918, as amended by title I of the Internal Security Act of 1950 (Public Law 831, effective September 23, 1950). Section 4 of the amended 1918 act provides:
SEC. 4. (a) Any alien who was at the time of entry into the United States, or has been at any time thereafter, * * * a member of any one of the classes of aliens enumerated in section 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 the amended 1918 act reads in pertinent part:
That any alien who was a member of any one of the following classes shall be excluded from admission into the United States.
* * * * * * *
(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, * * *.
In the instant case the respondent has conceded his membership in the Communist Party of the United States from 1930 to 1939. Accordingly, he must be found deportable under section 4 of the amended 1918 act as an alien who, prior to entry, has been a member of one of the classes of aliens enumerated in section 1 (2) (C) of the said act.
In view of this determination, it is unnecessary to consider the applicability of the charges contained in the warrant of arrest. It is noted that the alien has expressed his willingness to depart voluntarily under a warrant of deportation and, therefore, it may be assumed that he has conceded his deportability under the immigration laws.
Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the respondent is an alien, a native and citizen of Bulgaria.
(2) That the respondent first entered the United States on August 1, 1923, at New York, N.Y., on the S.S. Rochambeau and was admitted for permanent residence.
(3) That the respondent last entered the United States on June 16, 1945, at Detroit, Mich., via the Canadian Pacific Railway and was admitted as a returning resident.
(4) That the respondent was a member of the Communist Party of the United States from 1930 to 1939.Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under the act of October 16, 1918, as amended, and section 19 of the Immigration Act of 1917, as amended, the respondent is subject to deportation in that he is an alien who has been prior to entry a member of one of the classes of aliens, enumerated in section 1 (2) of the act of October 16, 1918, as amended: An alien who was a member of the Communist Party of the United States.Other Factors: A report furnished by the Federal Bureau of Investigation discloses no criminal data relating to the subject alien, except an arrest in Pontiac, Mich., in 1930 for violation of the State Criminal Syndicalism Act and a dismissal of that charge.
Counsel for the respondent stated at the hearing that it is the desire of the respondent to leave the United States voluntarily under an outstanding order of deportation and that he proposes to effectuate his desires as expeditiously as possible. The last mentioned matter, which is a request for voluntary departure under an outstanding warrant of deportation, is one which lies within the discretion of the District Director.
Order: It is ordered that the alien be deported from the United States pursuant to law on the following charge:
The act of October 16, 1918, as amended, in that he is an alien who has been prior to entry a member of one of the classes of aliens enumerated in section 1 (2) of the said act: An alien who was a member of the Communist Party of the United States.It is further ordered, That this case be referred to the District Director for consideration of the alien's application for voluntary departure under a warrant of deportation.
Discussion: During oral argument before this Board counsel requested that we stay any order of deportation in this case until respondent's wife and child are permitted by the Department of State to go abroad with him. We will state the history of this case briefly, omitting the proceedings as to writs of habeas corpus and the appeals involving those writs, because they do not come before us. This record was last before this Board on an appeal from an order of deportation entered by the Assistant Commissioner on August 23, 1949, and based on the charges that prior to entry respondent became a member of a proscribed organization and that at the time of entry and following his entry he was and became a member of a proscribed organization. On November 25, 1949, we dismissed that appeal. On February 20, 1950, the Supreme Court in Sung. v. McGrath, 339 U.S. 33, 70 S. Ct. 445, 94 L. Ed. 616 (1950), decided that as the law then stood the provisions of the Administrative Procedure Act applied to deportation hearings. Because of that decision the Immigration and Naturalization Service determined to accord respondent a warrant hearing de novo held in compliance with the provisions of the Administrative Procedure Act. This hearing was held on October 19, 1950.
The Internal Security Act of 1950 became effective on September 23, 1950. At the time of the hearing on October 19, 1950, the hearing examiner lodged a new charge against respondent under the act of October 16, 1918, as amended by the Internal Security Act of 1950. Following that hearing the Assistant Commissioner again ordered that the alien be deported from the United States and ordered that his request for voluntary departure under the warrant of deportation be referred to the District Director for consideration. Respondent appeals from that order.
The record contains a stipulation entered into and filed by respondent, his attorney, and the examining officer for the Immigration and Naturalization Service, numbered exhibit 3. This stipulation contains the following provision: "4. The respondent was a member of the Communist Party of the United States from 1930 to 1939." The Assistant Commissioner's opinion states that respondent has conceded his membership in the Communist Party and therefore may be assumed to have conceded his deportability. The order of deportation, therefore, is based on the lodged charge only and not on the earlier warrant charges. This case is before us, then, on the single issue of the application of the Internal Security Act of 1950 to respondent. The distinction between the new lodged charge and the earlier warrant charges is that prior to the enactment of the 1950 act it was assumed that it was necessary in any hearing involving this kind of charge to introduce evidence showing the nature of the Communist Party during the time of the alien's alleged affiliation. Section 22 of the Internal Security Act of 1950 provides that the act of 1918, as amended, shall provide (sec. 1 (2) (c)) that membership in or affiliation with the Communist Party in and of itself is ground for exclusion or (sec. 4(a)) deportation. It is no longer necessary under this act to show that the Communist Party is an organization, association, society, or group that believes in the overthrow of the Government by force and violence.
This is the first case to come before this Board involving this provision of the new act. It is the contention of respondent's counsel that this is an unconstitutional provision, but counsel recognizes our position that we do not conceive it to be our function to determine the constitutionality of the statutes we must administer.
Counsel informed the hearing examiner during the October 1950 hearing, "It is the desire of the respondent to leave the United States voluntarily under an outstanding order of deportation and he desires to effectuate his desires (sic) as expeditiously as possible." During the oral argument before us counsel stated that it had been respondent's desire to depart from the United States on November 10 but that on October 21 respondent was arrested under the Internal Security Act of 1950 and detained at Ellis Island beyond the date of the sailing of the vessel on which he had planned to depart. It was the intention of respondent to take his United States citizen wife and child abroad with him. Counsel stated that the Department of State refused to issue United States passports for the wife and child and that a waiver of documents was also refused. Aside from counsel's statement, the incident of the request for and the refusal of passports is not reflected in our record.
As we have already stated, counsel requests that we stay any order of deportation in this case until respondent's wife and child are permitted to go abroad with him. It is well established, and it is recognized by counsel, that we have no authority to order the Department of State to issue a passport. Nor can we, by indirection, attempt to "pressure" another Department of the Government on behalf of respondent. It is recognized that the Department of State has exclusive power over the issuance of passports.
Under the statute and on this record we have no choice but to affirm the order of deportation. Whether his wife and child are permitted to accompany the alien is another question entirely outside our jurisdiction.
Order: It is ordered that the appeal be and the same is hereby dismissed.