A-5823208.
Decided by Board February 16, 1955.
Communist Party of the United States — Evidence of membership — Deportability of nominal or inactive member.
(1) Respondent's membership in the Communist Party of the United States in 1938 was established by testimony of two witnesses: one, an undercover agent of local police department who identified as authentic a Communist Party membership book for the year 1938 in the name of respondent showing payment of dues from July to November 1938; the other witness, a former member of the Communist Party, who testified he saw respondent in attendance at a closed Communist Party meeting in 1938 and heard leading members of the Party refer to respondent as a member; and which testimony the respondent refused to contradict.
(2) Voluntary membership in the Communist Party renders an alien deportable even though his association with the organization is "nominal" or "inactive."
CHARGE:
Warrant: Act of 1952 — Excludable at time of entry as an alien who was a member of the Communist Party of the United States.
BEFORE THE BOARD
Discussion: On June 10, 1954, counsel was served with the order of the special inquiry officer requiring the respondent's deportation on the ground stated above. Appeal was not taken. After the running of the period for timely appeal, a motion was made to the special inquiry officer for reconsideration of the order of deportation. The motion was denied. Appeal from this denial is now before us. We believe the alien was properly found deportable and the special inquiry officer did not abuse his discretion in denying the motion to reconsider.
Respondent, a 54-year-old married male, a native of Scotland and citizen of Great Britain, was admitted to the United States for permanent residence in 1923. Since then, with the exception of short visits to Canada, the last in 1947, he has resided in the United States. The special inquiry officer found that respondent had been a voluntary member of the Communist Party of the United States at Los Angeles County, California, during at least part of 1938. Counsel contends this conclusion is error because the evidence is insufficient to establish Communist Party membership; and that even if membership is established, the record reveals activity that is so nominal as to take the alien out of the deportable class. Constitutional objections are also raised.
We consider the issues to be (1) does the evidence establish that the respondent joined the Communist Party; and (2) if so, does the membership resulting exempt the alien from deportation as a matter of law.
The facts have been fully stated by the special inquiry officer. He found membership in the Communist Party had been established by the testimony of Government witnesses K---- and R----.
K----, then an undercover agent of the Police Department in Los Angeles, California, was a member of the Communist Party from 1928 to 1939. From 1936 to 1939, inclusive, he dealt with Communist Party membership records. He then saw the name of A---- R---- A----, on official Communist Party membership records. These records revealed that A---- was by occupation a gardener and of foreign birth. K---- received a Communist Party membership book for the year 1938 which had been issued for A----. He gave this book to a high Communist Party official for delivery to A----; accompanied this official to the home of A----; and was introduced to him. He testified that the A---- to whom he had been introduced and the respondent were one. He stated that he had not actually seen the delivery of the book. Counsel did not cross-examine K----, although he was given an opportunity at two different hearings to do so.
Government witness R---- testified that he saw the respondent at one Communist Party meeting, a meeting closed to all but members of the Communist Party. This was a meeting in Los Angeles attended by representatives of all units of the Communist Party. R---- further testified that in 1938, the respondent's name had been mentioned by leading members of the Communist Party in a discussion concerning individuals who it was thought could be used in a drive to boost membership in the Young Communist League. R---- was cross-examined at length.
A Communist Party book for the year 1938, made out in the name of A---- R---- A----, Los Angeles County, and showing payment of dues from July to November 1938, was made a part of the record. K---- identified this as an authentic Communist Party membership book which had been issued for the year 1938. He was not questioned as to the relationship of the book to respondent. The Service does not argue that the book bears the handwriting of the respondent.
Respondent testified that he is a nurseryman. He testified concerning alienage and entries and other matters not relating to past membership in the Communist Party. On advice of counsel, he refused to state whether he had been a member of the Communist Party in the past, although he did state that at the time of testifying, he was not a member of the Communist Party. He did not contradict the testimony of the two Government witnesses and made no comment concerning the Communist Party membership book which had been introduced into evidence.
Counsel argues that K---- and R---- are incredible witnesses. We have carefully reviewed the record in light of this contention. The special inquiry officer, with full opportunity to observe the manner in which they testified, found them credible. Their uncontradicted testimony which is corroborated to the extent that each places the respondent in the Communist Party in 1938 cannot be ignored. We believe that the uncontradicted testimony of the two Government witnesses should be accepted as establishing Communist Party membership. Furthermore, the Communist Party membership book is entitled to some weight in view of the fact that it has been identified as an authentic Communist Party book for 1938 by K----; two Government witnesses had testified that respondent had been a member of the Communist Party in 1938; there is a presumption that identity of name is identity of person; and the respondent was silent in the face of these factors. Respondent's membership in the Communist Party in 1938 is established by evidence that is reasonable, substantial and probative. In arriving at our conclusion, we have considered the affidavits submitted on behalf of respondent.
Counsel argues that even if the record establishes that the respondent was carried on Communist Party membership rolls, there is nothing to show that respondent accepted or agreed to the membership. The argument must be rejected. The fact that K---- was introduced to A---- by a high Communist Party official who had gone to A---- to deliver a Communist Party membership book; the fact that R---- saw A---- at a closed Communist Party meeting and subsequently heard his name discussed by Communist Party officials as one who could be depended upon to do Communist Party work; the existence of the Communist Party book showing payment of dues over a period of time; and the respondent's failure, in the face of all the evidence, to contradict this testimony or deny the book was his or that it was received by him are most persuasive proofs that he voluntarily and knowingly sought and accepted membership in the Communist Party.
The second issue is whether membership, even if it existed, was so nominal as to take the alien out of the deportable class. Counsel argues the membership is nominal because it is "inactive" and that it is "inactive" because the record, at the most, does not establish that the respondent did more than occasionally attend meetings. Counsel's belief that an inactive member of the Communist Party is not deportable is based on his interpretation of the court's holding in Galvan v. Press, 347 U.S. 522. We read this case differently.
Galvan concerned an alien whose deportation was sought under the Internal Security Act of 1950 on the ground that he had been a member of the Communist Party after entry. Three issues were involved: (1) a constitutional question which does not enter here; (2) whether or not the alien had joined the Party; and (3) whether the fact that the alien had no knowledge of the illegal purposes of the Party was material. The court found Galvan had joined the Communist Party; that even if he had not known the true purpose of the Party, he would be deportable; and that the evidence of record did not place Galvan in any of those categories of members of subversive organizations who Congress had stated should not be deported.
Counsel's argument may be stated as follows. In Galvan, the court in effect said, Galvan was an active member, therefore, he could not be a nominal member. It follows that had Galvan been an inactive member, he would have been held to be a nominal member and not deportable. A---- is an inactive member, therefore, he is not deportable.
The basic argument is expressed by counsel in his brief in the following terms:
* * * Justice Frankfurter, speaking for the majority, bottoms the court's decision on Galvan's extensive Party activity which "does not show a relationship to the Party so nominal as not to make him a member within the terms of the Act." [Emphasis supplied by counsel.]
We have pointed out that the two issues in Galvan pertinent to this discussion were: (1) did the evidence establish membership, (2) was awareness of the illegal aims of the Communist Party a material element. Counsel's argument is based upon an unjustified combination of the fact of activity considered on the first issue and an unrelated fact considered by the court on the second issue. This conclusion becomes clear from an examination in its proper context of the language counsel relies upon.
The court said ( 347 U.S. at pp. 528-9):
* * * The two points on which he [Galvan] bases his defense against the deportation order are, first, that he did not join the. Party at all, and that if he did join, he was unaware of the Party's true purpose and program. The evidence which must have been believed and relied upon for the hearing officer's finding that petitioner was a "member" is that petitioner was asked to join the Party by a man he assumed to be an organizer, that he attended a number of meetings and that he did not apply for citizenship because he feared his Party membership would become known to the authorities. In addition, on the basis of Mrs. Meza's testimony, the hearing officer was entitled to conclude that petitioner had been active in the Spanish Speaking Club, and, indeed, one of its officers. Certainly there was sufficient evidence to support a finding of membership. And even if petitioner was unaware of the Party's advocacy of violence, as he attempted to prove, the record does not show a relationship to the Party so nominal as not to make him a "member" within the terms of the Act. This brings us to petitioner's constitutional attack * * *. [Emphasis added.]
It is clear from this language that the court was discussing two issues: (1) did the alien join, and (2) if he did, what effect would "innocence" have.
The court did not say that an active member is not a nominal member. The reference to activity was not made in the discussion on the question whether the alien should be deported by reason of his joining, but on the issue — was the finding that there had been a joining proper.
The court referred to activity as one of the factors to be considered in determining whether or not Galvan had joined the Communist Party. Activity, attendance at meetings, concealment of the association from Government officials, these were all matters of evidence from which the issue of fact — did the alien join the Communist Party — had to be resolved. Using this evidence the administrative officials had determined that Galvan had joined the Communist Party. The court held that this was not improper. This issue having been settled, it having been established that Galvan had joined the Communist Party, the court went on to consider a new issue — the one concerning awareness of the illegal purposes of the Party. The court determined the two issues without relating one to the other. When the court concluded that the evidence was sufficient to support a finding of membership, the court's concern with activity, attendance at meeting, and concealment of association with the organization, was over. The court went on to the second issue; the discussion was brief because that issue had been fully considered in an analysis preceding the one we have quoted. It is as much error to join the fact that Galvan was active and the conclusion that he was not a nominal member, as it could have been to select other evidence outlined by the court on the issue of joining, such as concealment of membership, and join it to the statement that Galvan was therefore not a nominal member.
Furthermore, the court had previously clearly indicated what it considered nominal membership and we have no reason to believe that it was introduced in a new light in the brief sentence quoted by counsel. The word "nominal" is not found in the laws under discussion. It occurs in congressional debates referred to in the Supreme Court opinion to characterize the type of membership which should not be used to deport aliens and was used by Mr. Justice Frankfurter to describe four types of membership that should not subject an alien to deportation. These are aliens
(a) who joined while children,
(b) who were joined by operation of law,
(c) who joined to obtain the necessities of life,
(d) who are accidentally, artificially or unconsciously in appearance only members.
The classes of nominal members we have designated, (a) to (c), inclusive, were expressly exempted by law from deportation. The court said that these classes were not to be considered exclusive since congressional debate showed that the group we have listed under (d) should be exempted although the law itself does not say so. Thus, while conceivably there may be other groups whose joining would not be considered membership for the purposes of the immigration act, the four classes outlined were the only ones particularized by the court and referred to as "nominal." It is to be noted that the court did not express the opinion that a person who joined knowingly and willingly is to be considered nominal because he is an inactive member. Moreover, since the court was not concerned with an inactive member, any expression concerning the excusable nature of inactive membership would have been dicta.
One final comment on the argument that an inactive member of the Communist Party is not deportable. In Galvan, the court stated that Congress wanted the word "member" as used in the 1950 act (in substance incorporated in the Immigration and Nationality Act), to be defined in accordance with the usage given to it by judicial and administrative authorities prior to the passage of the 1950 act ( 347 U.S. at pp. 527-8). It is thus revealing to consider the case of Harisiades v. Shaughnessy, 342 U.S. 580, where deportation of three aliens charged with past membership in the Communist Party was sought. They were, Harisiades, an organizer and officer of the Communist Party and editor of one of its foreign language newspapers; Mascitti, desige nated merely as a member; and Coleman, of whom the court said, she "held no office and her activities were not significant." Each was ordered deported by reason of the membership and the opinion did not differentiate between the one who had been an active member and the others who had been rank and file members. Harisiades was declaratory of the law as it existed prior to the Internal Security Act of 1950. The case of Latva v. Nicolls, 106 F. Supp. 658. reveals that "activity" is not the point on which the court would turn in considering what was membership under the Internal Security Act of 1950. Latva had joined the Communist Party. He paid $.50 upon joining and $.10 a month for about four months. He was not an officer. The local Communist Party branch never functioned and it does not appear that Latva ever attended a Communist Party meeting. He never asked anyone to join the Communist Party. It is difficult to conceive participation at a more minimum level. His deportation was ordered. (See also, Sigurdson v. Landon, 215 F. (2d) 791, C.A. 9.)
Counsel, however, does not rely solely upon Galvan in support of his argument that an inactive member is not deportable. He also relies upon the administrative and judicial history of the Garcia deportation proceedings ( Matter of Garcia, A-3852720). We believe the significance he draws from Garcia is unwarranted.
Garcia, a native and citizen of Mexico, had been lawfully admitted for permanent residence to the United States in 1922 and except for short visits to Mexico, the last in 1949, thereafter resided in the United States. In 1952, Garcia was charged with being subject to deportation under the Act of October 16, 1918, as amended, because he had been a member of the Communist Party of the United States prior to his last entry in 1949. After a deportation hearing, he was found to have "voluntarily become a member of the Communist Party of the United States at Los Angeles, California, about or during 1939 and maintained that membership continuously for a period of approximately two years thereafter." Appeal was taken to this Board; the appeal was dismissed. Garcia's petition for a writ of habeas corpus was denied by the District Court and the dismissal was affirmed on appeal to the Circuit Court ( 207 F. (2d) 693, C.A. 9). Petition for certiorari was filed with the Supreme Court at a time when the Galvan case was being considered by that court. Garcia's petition was granted after the decision in Galvan ( 347 U.S. 1011).
The Supreme Court never decided Garcia upon the merits. After certiorari was granted, the Service filed a motion with this Board requesting that the outstanding order and warrant of deportation in Garcia be withdrawn and the proceedings reopened. We granted the motion. After the entry of our order, the Solicitor General of the Department of Justice submitted a memorandum to the Supreme Court suggesting that the cause was moot because the order of deportation had been withdrawn and Garcia could no longer be held in custody thereunder. The Supreme Court entered an order dismissing the Garcia case as moot (No. 118, 23 L.W. 3124).
Counsel hazards the belief that in granting certiorari, even though Galvan had been decided and on the petition for certiorari the Government had argued that the issues in Galvan and Garcia were identical, the Supreme Court may have seen in Garcia an inactive individual who was therefore a nominal member. We do not believe this reasoning is sound. The Supreme Court did not state any reason for granting certiorari. It never expressed itself on the merits of the case. Therefore, any statement as to the reason why certiorari was granted is idle speculation. To infer that the granting of certiorari was because Garcia was an inactive member would be baseless conjecture since we have shown that Galvan does not use the test of activity to determine the nature of membership, but merely to determine whether or not the alien had joined an organization he denied belonging to. Moreover, Garcia's petition for certiorari does not mention inactive membership. It outlines the acts he performed in connection with the organization, but does so only to lessen the value of Garcia's admission of Communist Party membership by showing his lack of understanding of the meaning of the term "member." Garcia's petition for certiorari emphasizes not inactive membership, but the fact that Garcia was illiterate, was lacking in understanding, and joined "solely for food."
Counsel argues that the Service and this Board indicated their belief that Galvan declared an inactive member to be not deportable because we reopened proceedings in Garcia after Galvan was decided. As to the purpose of this Board in reopening proceedings, we can speak with certainty. We reopened to give Garcia, who had not opposed the Service motion, an opportunity to produce additional evidence on the question of the voluntary nature of his membership and to apply for discretionary relief, a relief that had not been available to him at the time of hearing, but which subsequent legislation did make available. We were not guided by the belief that inactivity excuses a Communist Party member from deportation. To read more into our order there, is error.
The final argument for consideration is that Galvan requires that the alien must join, cognizant of the fact that the Communist Party "operates as a distinct and active political organization." We believe that by the language quoted, the court meant only that the organization must be one which operated openly as the Communist Party and that the alien knew that the organization was the Communist Party. The court clearly indicated the alien need not know the type of organization it is, as long as he knows it is the Communist Party (see also, Sigurdson v. Landon, supra). Deportation was properly found.
We have to this point, solely for the sake of argument, assumed that A---- was an inactive member. There is, however, a lack of evidence establishing this claim. The issue at the hearing was not the degree of participation, but merely whether a voluntary joining of the Communist Party had been established. A---- was silent on whether he was a member. No affirmative evidence was introduced to show that membership was "inactive." Furthermore, it must be noted that neither R---- nor K---- testified that they belonged to respondent's unit, and that respondent belonged to a unit from what is apparently an outlying area. R----'s testimony that respondent was considered by high Party leaders to be capable of being entrusted with the job of recruiting young people into a Communist Party youth organization would indicate that A---- had conducted himself in Communist Party work in such a way as to create confidence in his ability to do additional Communist Party work. Finally, we do not believe attendance at meetings should be considered as "inactivity."
Counsel argues that the respondent is eligible for voluntary departure. The special inquiry officer has stated fully the reason for which he found the alien ineligible for voluntary departure, i.e., the respondent's failure to have a continuous period of residence in the United States for ten years preceding his application for voluntary departure. His decision is based upon precedents established by this Board. While it is unfortunate that a short absence from the United States should cause an alien to lose his eligibility for suspension of deportation, our conclusion is based upon the law as it is now written.
We have no jurisdiction to adjudicate constitutional objections. A letter from counsel requests that we postpone decision in this case until Garcia is finally determined. The issue in each of the cases is factual. One is not dependent upon the other. There is no reason to delay decision here. The appeal will be dismissed.
Order: It is ordered that the appeal be and the same is hereby dismissed.