A-2483471 A-4388595.
Decisions by Board May 19, September 8, and October 18, 1955. Assistant Commissioner Orders May 19, and September 27, 1955. Decided by Attorney General April 2, 1956.
Subversive — International Workers Order.
Administrative notice may not be taken of affiliation between the Communist Party and the International Workers Order.
CHARGES:
Warrants: (Both aliens) Act of 1918, as amended — Has been after entry member of the following class set forth in section 1 of said act: An alien who was a member of a section, subsidiary, branch, affiliate or subdivision of the Communist Party of the United States, to wit: International Workers Order.
BEFORE THE BOARD
(May 19, 1955)
Discussion: These are appeals from the orders of the special inquiry officer requiring the deportation of the aliens on the ground stated above. The aliens were given hearings at separate times but are both represented by the same counsel and the issues in each case are similar. The cases will therefore be considered together.
S---- is a 74-year-old married male, a native and citizen of Czechoslovakia, who has been a permanent resident of the United States since 1923 when he was lawfully admitted for permanent residence. C---- is a 57-year-old married male, a native of Germany and citizen of Italy, who has been a permanent resident of the United States since 1923 when he was admitted for permanent residence. The record establishes that each alien had been a member of the International Workers Order, S---- from 1933 to 1952 and C---- from 1941 to 1951, and that each was active in the affairs of his lodge. In the case of S---- the record establishes he was active in the national organization of International Workers Order for a period of about 20 years.
At the hearing each alien stood mute and refused to testify. After addressing a series of questions to the aliens concerning many matters, including their membership in IWO and its affiliation with the Communist Party, the Government rested without introducing any evidence as to the affiliation of IWO with the Communist Party. The aliens introduced no defense. The special inquiry officer found that such affiliation existed because this Board had decided in Matter of D----, A-5390614, Int. Dec. No. 339 ( 4 IN Dec. 578), a case involving neither S---- nor C----, that the International Workers Order had been affiliated with the Communist Party.
It was error to take administrative notice of the subversive nature of the IWO ( Matter of H----, A-9682749, A.G., Nov. 14, 1947, unreported). We believe that affiliation must be established in each case where deportation was sought of a member of IWO on the ground that the organization was affiliated with the Communist Party. Such proof does not exist herein. The proceedings will therefore be ordered reopened to enable the Government to adduce evidence as to the character of IWO. Careful consideration was given to the arguments of the Service representative before we reached our conclusion.
Order: It is ordered that action in accordance with the foregoing be taken.
(May 19, 1955)
Discussion: The special inquiry officer ordered both respondents deported on the ground set forth above. The Board of Immigration Appeals held it was error to take administrative notice of the subversive nature of the International Workers Order and ordered the hearings reopened for the introduction of evidence to establish that the said organization was affiliated with the Communist Party of the United States. The Service disagrees with the view of the Board.
The International Workers Order has been the subject of investigation by both the executive and legislative branches of the Government and has been the subject of judicial proceedings in the State of its incorporation. A review of the contents of some of the reports and the character of the action taken with respect to the organization is essential to a consideration of the issue here presented.
The Special Committee on Un-American Activities of the House of Representatives after extensive investigation and study concluded that the International Workers Order was one of the most effective Communist front movements; that the organization contributed large sums of money to Communist Party campaigns and supported Communist Party endorsed candidates for public office (Report of Special Committee on Un-American Activities, House of Representatives, 76th Congress, 1st session, January 3, 1939; Report of Special Committee on Un-American Activities, House of Representatives, 76th Congress, 3d session, January 3, 1940; Report of Special Committee on Un-American Activities, House of Representatives, 78th Congress, 2d session, March 29, 1944). In a report on the American Slav Congress and associated organizations it was described as one of the strongest Communist organizations (Congressional Committee on Un-American Activities, House Report No. 1951, 81st Congress, 2d session, April 26, 1950. See also House Report No. 448, 78th Congress, 1st session, May 14, 1943, and House Report No. 812, 77th Congress, 2d session).
Numerous state legislative bodies have investigated the activities of the organization and found that it followed the Communist Party line; that it actively supported all Communist causes and supported Communist Party candidates for public office (California Committee on Un-American Activities, Report, 1948, pp. 267, 268, and 271; Massachusetts House Committee on Un-American Activities, Report, 1938, pp. 308, 398, and 570; Pennsylvania Board of Assistance, January 1942; Legislative Document No. 49, 1942, New York State Sub-Committee, Joint Legislative Committee on Subversive Procedures, etc.).
Over a period of years several Attorneys General of the United States have also had frequent occasion to consider the character of the International Workers Order. Attorney General Francis Biddle considered the organization one of the strongest Communist organizations (Report of Attorney General Francis Biddle, Congressional Record, September 24, 1942, pp. 7444, 7447, 7688). The organization was cited as subversive and Communistic by Attorney General Tom Clark in letters to the Loyalty Board, released December 4, 1947, and September 21, 1948 ( 13 F.R. 1471, 1473, March 20, 1948; 13 F.R. 6135, 6137, October 21, 1948). In connection with the federal security program, the International Workers Order has consistently been designated as a Communist organization.
On or about the 19th day of August, 1953, the Attorney General filed with the Subversive Activities Control Board a petition for an order requiring the International Workers Order, Inc., to register with the Attorney General as required by section 7 (b), (c), and (d) of the Internal Security Act of 1950. In paragraph III were included numerous specifications charging that the International Workers Order was directly dominated and controlled by the Communist Party and had been primarily operated for the purpose of giving aid and support to the Communist Party. Because the organization had been dissolved by the State of its incorporation, the proceedings were subsequently dismissed as moot by the Court of Appeals for the District of Columbia. Nevertheless, the Attorney General must have instituted these proceedings only after investigation had established to his satisfaction that the charges could be sustained and that the International Workers Order was affiliated with the Communist Party of the United States.
The Board of Immigration Appeals has also had occasion to consider the proscribed character of this organization. In Matter of D----, A-5390614, Int. Dec. No. 339, 1951 ( 4 IN Dec. 578), 13 witnesses testified at the deportation proceedings and 85 exhibits were introduced by the Government. After a hearing which lasted 19 days and consisted of 2,165 pages of testimony, the hearing officer concluded that the International Workers Order was affiliated with the Communist Party of the United States. The Board affirmed these findings and held that such affiliation had been established.
The courts, too, have been required to scrutinize the activities of the International Workers Order. In Application of Bohlinger: In re International Workers Order, Inc. ( 106 N.Y.S. (2d) 953, Spec. Term N.Y., 1951) the Superintendent of Insurance of the State of New York filed an application for an order permitting him to take possession of the property, to liquidate the body, and to dissolve the corporate existence of the International Workers Order, Inc. The Superintendent charged that the continued operation of the society would be hazardous to its policy holders, creditors, and the public, since the corporation had as its paramount policy its allegiance to the Communist Party. This was an adversary proceeding in which the corporation was represented by astute counsel (see comment of Justice Greenberg, 127 N.Y.S. 2d 142, 144-1953) who vigorously defended against the charges brought by the Superintendent of Insurance. The hearing on this petition took approximately 11 weeks during which 46 witnesses were examined and cross-examined and 350 exhibits embracing books, magazine articles, speeches, and other material were received in evidence. In addition to attorneys for the International Workers Order, the Court permitted attorneys for a policy holders' committee to appear and examine and cross-examine witnesses. The record of this hearing filled approximately 5,200 pages. At the conclusion of this hearing the judge summarized his findings as follows:
Some of its chief activities as established by the evidence are: support and participation in political campaigns of the Communist Party; support of the `Daily Worker' and the `Workers Press'; serving as a spawning and recruiting ground for members of the Communist Party; participation in the campaign to raise money for the 11 indicted Communist leaders; dissemination of Communist literature, political and economic theory and current news interpreted in line with Communist doctrine and ideology; development of admiration and sympathy for the U.S.S.R. and encouragement of antipathy toward every program undertaken by the Government of the United States which was not wholly and completely in accord with the policies and programs of the U.S.S.R.; participation in causes and campaigns for civil rights, labor rights, peace, war effort, disarmament, etc., espoused by the Communist Party.
The findings of the trial judge that the IWO was operated as an arm of the Communist Party of the U.S.S.R. was affirmed by the Appellate Division ( 280 App. Div. 517; 113 N.Y.S. 2d 755, 757-1st Dept.-1952) and the Court of Appeals of the State of New York ( 305 N.Y. 258; 112 N.E. 2d 280-1953). Certiorari was denied by the Supreme Court ( 346 U.S. 857) and rehearing was also denied ( 346 U.S. 913).
Despite the extensive and comprehensive investigations conducted by the legislative bodies of both the Federal and State governments, despite the protracted hearings before the courts and the Board itself, despite the numerous investigations conducted at the direction of the Attorney General, all of which result in findings based upon an overwhelming amount of evidence that the IWO promoted the ideologies of the Communist Party; that it supported both financially and otherwise the Communist Party of the United States in its political activities; and that it was affiliated with the Communist Party in every sense of the word, the Board now holds that it may not take official cognizance of the fact that the IWO was affiliated with the Communist Party of the United States during the period of its existence. There is no legal support for this view.
The Board may and should take judicial notice of the official reports of legislative and Congressional committees where the reports contain findings of fact on a matter which is at issue in a proceeding before it without the formal introduction of the reports into evidence ( Stasiukevich v. Nicolls, 168 F. (2d) 474, 479 (C.C.A. 1-1948)). Just as a court may take judicial notice of its records and files in other cases ( Ira S. Bushey and Sons v. W.E. Hedger Transp. Corp., 167 F. (2d) 9, Footnote 2 on p. 12 (C.C.A. 2-1948), cert. den. 335 U.S. 816; Latta v. Western Inv. Co., 173 F. (2d) 99, 101 (U.S.C.A. 9-1949), cert. den. 337 U.S. 940), so may an administrative agency take official cognizance of its prior proceedings involving the same issue ( Ex parte Masamichi Ikeda, 68 F. (2d) 276, 278 (C.C.A. 9-1933); Jung See v. Nash, 4 F. (2d) 639 (C.C.A. 8-1925); United States ex rel. Mg Kee Wong v. Corsi, 65 F. (2d) 564, 565 (C.C.A. 2-1933); Wong Gim Ngoon v. Proctor, 93 F. (2d) 704, 708 (C.C.A. 9-1937)).
The Attorney General, who is responsible for the administration of the immigration laws, has concluded upon every occasion that the question came before him that the IWO is a subversive organization affiliated with the Communist Party. If the decision of the Board of Immigration Appeals is permitted to stand, the Attorney General must efface from his memory in each and every case where the question is at issue in a deportation proceeding the contents of the investigations and reports compiled at his behest and the orders and proceedings instituted upon his direction. There is no reason to apply such a rigid rule of evidence in this administrative procedure.
Insofar as the decision of the New York courts is concerned, it must be remembered that the IWO was a corporate entity which owed its very existence to the state and was subject to dissolution by the state. That state saw fit to terminate the corporate existence of this organization because of its subversive activities and that decision was affirmed without exception by the judges of all the appellate courts which reviewed the case. Certainly, we should take official cognizance of the reported decision of the courts of the state where the organization was incorporated.
In its memorandum the Board erroneously cited the unreported case of Matter of H----, A-9682749, A.G., November 14, 1947, in support of its view that it could not take administrative notice of the subversive nature of the IWO. In a notation dated November 10, 1947, on that case, the then Attorney General expressly stated he thought the court would take judicial notice of the character and purpose of the Communist Party but he did not pass on this question as it was unnecessary. The order of the Board of Immigration Appeals was affirmed solely on the ground of inadmissibility arising under the Passport Act of 1918, as amended. Consequently, Matter of H---- supports the view presented by the Service.
"Courts will take judicial notice of all facts which are generally known and accepted" ( Mills v. Denver Tramway Corp., 155 F. (2d) 808, 811 (C.C.A. 10-1946)). Since the courts and legislative bodies of both the Federal and State governments, the executive branch of the Federal government, and the courts of the State of incorporation have all investigated the operations and activities of the IWO and since all have uniformly concluded that the IWO was affiliated with the Communist Party, manifestly we may now conclude that the fact is one "generally known and accepted."
Taking official cognizance of the fact that the IWO was affiliated with the Communist Party will constitute no denial of due process to the aliens. The aliens are not precluded from introducing evidence which they deem will overcome the evidence of the prior investigations and reports ( Stasiukevich v. Nicolls, 168 F. (2d) 474, 479 (C.C.A. 1-1948)). The issue here presented is whether the Government must introduce evidence of such affiliation in the absence of any countervailing evidence on the question. Furthermore, the conclusion that the IWO was affiliated with the Communist Party does not automatically render every member thereof deportable. The Government must still prove that the aliens at the time of their membership were aware of that affiliation ( Matter of C----, A-4894489, A.G., March 14, 1955, Int. Dec. No. 669).
The Service contends that we may now take judicial notice of the affiliation of the IWO with the Communist Party because that fact has been so well established and is now so well known. The Service does not here contend that the fact of affiliation was so well known at the time of the aliens' membership that they would be presumed to have knowledge of the fact. Proof of such knowledge must be presented by the Government in each case.
Motion is hereby made that the Board of Immigration Appeals reconsider and withdraw its order directing a reopening of the proceedings and dismiss the appeal from the decision of the special inquiry officer.
(September 8, 1955)
Discussion: The facts have been fully stated in previous orders. The Commissioner requests that we reverse our decision of May 19, 1955, holding that it is prejudicial error for a special inquiry officer to take official notice that the International Workers Order (IWO) was affiliated with the Communist Party of the United States. We ordered the proceedings reopened to enable the Service to present evidence on the issue of affiliation. The motion will be denied.
No evidence to establish affiliation is contained in the record. The aliens were not informed at the hearing or prior to decision that official notice was to be taken of any fact. The special inquiry officer concluded that affiliation existed, but on the issue stated only that this Board in Matter of D----, A-5390614, 4 IN Dec. 578, a case involving neither of the respondents, had ruled that affiliation had been established.
We believe that in these proceedings an error has occurred which is so prejudicial that it requires the reopening of proceedings. The error was committed when the special inquiry officer based his decision, which is of an adjudicatory nature, upon evidence not made known to the alien prior to the decision — if the decision is based on evidence at all ( Baltimore Ohio Railroad Co. et al. v. United States, 264 U.S. 258; United States v. B. O. Southwestern Ry., 226 U.S. 14 (1912); Interstate Commerce Commission v. Louisville Nashville R.R. Co., 227 U.S. 88 (1913); United States v. Abilene So. Ry. Co., 265 U.S. 274; Ohio Bell Tel. Co. v. Public Utilities Commission, 301 U.S. 292; Funk v. Commissioner of Internal Revenue, 163 F. (2d) 796 (C.C.A. 3, 1947); Stroh Products Co. v. Davis, 8 F. (2d) 773 (D.C., E.D. Mich., 1925); In re Stridacchio, 107 F. Supp. 486 (U.S.D.C., N.J., 1952); Stasiukevich v. Nicolls, 168 F. (2d) 474, 479 (C.C.A. 1, 1948)).
The decision of the special inquiry officer, if based upon evidence, was based upon evidence not made known to the aliens. There was no advance information by the Service or the special inquiry officer concerning the facts of which the special inquiry officer would take notice. The Service made no request at the hearing that the special inquiry officer take official notice of any facts or even the conclusion that affiliation existed. There was no advice given at the hearing by the special inquiry officer that he would take official notice of anything. (There was no concession by the respondents that affiliation existed.) As we have pointed out, the order of the special inquiry officer merely refers to the Board's conclusion in the Matter of D----, supra. What facts, if any, in Matter of D----, that the special inquiry officer relied upon are not known to respondents or to us. To state generally that Matter of D---- is relied upon, is "tantamount to giving no notice whatsoever" of the facts relied upon. The decision of the special inquiry officer was made upon evidence that the aliens had no opportunity to refute. Therefore, even if the facts were susceptible to official notice, there was a procedural failure which deprived the aliens of due process.
We come now to the Service's contention that evidence of the affiliation did not have to be produced because it was proper to take official notice of the existence of the affiliation. The Service feels that a court would have taken judicial notice on the basis of the circumstances which existed and, therefore, an administrative official could take notice of the same fact.
We believe that the rules relating to the taking of official notice in deportation proceedings should in essence be those which are applicable to court proceedings (5 U.S.C.A. 1007 (d); Senate Report No. 752, 79th Congress, 1st session; see Ohio Bell Tel. Co. v. Public Utilities Commission, 301 U.S. 292). However, we do not believe that a court would have taken judicial notice of the affiliation of the International Workers Order and the Communist Party.
No case has been cited to us where a court has taken judicial notice of the existence of affiliation. We must, therefore, go on general principles applicable to the subject of judicial notice. While judicial notice may be taken of other matters, it is with the judicial notice of facts so notorious as not to be the subject of reasonable dispute or of propositions of a generalized knowledge capable of immediate and accurate demonstration by easily accessible sources of indisputable accuracy with which we are concerned (A.L.I. Model Code of Evidence, Rules 801-06 (1942); 9 Wigmore, Evidence, sec. 2565-83, 3rd ed.).
Judicial notice will not be taken of a fact reasonably open to dispute. We believe the record presented to us establishes that the issue of affiliation is still in the disputable stage. The term "reasonably disputable" is a broad one, and when interpreted in the light of past experience reveals to us that the issue of affiliation must still be considered in the category of items reasonably disputable. The liberality of the construction given the term "reasonably disputable" may be seen from an examination of a situation analogous to that before us. For example, prior to 1950 when deportation was sought of an alien on the ground that he had been a member of an organization seeking the overthrow of the Government by force or violence, mere proof that the alien belonged to the Communist Party did not establish that he had belonged to an organization which taught the overthrow of the Government by force or violence. The majority rule was that the subversive nature of the Communist Party had to be established in each case by evidence. This was so despite the fact that for over thirty years, decisions of courts and pronouncements of the legislative and executive branches of Federal and state government had characterized the Communist Party as a subversive organization ( Loew's, Inc. v. Cole, 185 F. (2d) 641, C.A. 9 (1950); Harisiades v. Shaughnessy, 342 U.S. 580; Galvan v. Press, 347 U.S. 522; Ex parte Fierstein, 41 F. (2d) 53, C.A. 9; Black v. Cutter, 278 2d 905 (Calif.); Carlson v. Landon, 187 F. (2d) 991, C.A. 9, affd. 342 U.S. 524; see State v. Reeves, 106 (2d) 729, 731 (Wash.)). Neither the common knowledge of mankind nor the accumulation of official conclusions as to the subversive nature of the Communist Party amassed over so many years took the issue as to the subversive nature of the Communist Party out of the realm of reasonable dispute. How much less reason is there to accept the affiliation of the Communist Party and the IWO as an indisputable fact on the basis of the meager matters from which the Service asks that we find affiliation existed. (See pp. 3 and 4 of Matter of C----, A-4894489, Int. Dec. No. 669, for a previous Service view of the notoriety of the existence of affiliation.)
The evidence relied upon by the Service consists of six reports issued by committees of the Federal legislature in the years between 1939 and 1950; four reports of committees of state legislatures issued in the years between 1938 and 1948; one case considered by the New York State courts between 1951 and 1953; three statements made between 1942 and 1948 by Attorneys General of the United States, including the listing of the IWO as a subversive organization for Federal Civil Service loyality purposes; the action of the Attorney General in August 1953 in filing a petition for an order requiring the IWO to register as a Communist front organization; and the fact that in Matter of D----, supra, this Board, upon the evidence there presented, had found that affiliation existed. The paucity of this authority in contrast to the abundance of authority on the issue of the subversive nature of the Communist Party — an abundance which was nevertheless found wanting — clearly illustrates it would be erroneous to take official notice of the existence of affiliation.
The reports are cited by the Service to show that the existence of affiliation is no longer a fact subject to reasonable dispute. We have shown by analogy that the Service's conclusion is not justified. For this reason and because the reports are not in evidence, we have not made a detailed examination of all the reports cited by the Service. We note, however, that the Service does not establish that any of the authorities cited took official notice of the existence of affiliation, and in each case we have examined we have found that evidence of some nature was considered. In the court case, as pointed out by counsel, considerable evidence was taken and perusal of the opinions reveals the issue of affiliation was decided only after "unusually long and exhaustive" anaylsis. Interestingly enough, the trial court refused to give any effect to the fact that the Attorney General had listed the IWO as a subversive organization for Civil Service loyalty purposes and attached sharply the thought that the action of the Attorney General should be considered evidence ( Application of Bohlinger, 106 New York Supp. 2d 953, 958, 959). Neither the trial court, nor the appellate courts, nor the administrative actions prior to trial were based upon official notice of the affiliation of IWO with the Communist Party. In the Attorney General's case the Government was ready to present evidence on the issue of affiliation but the default of IWO on technical grounds made that unnecessary. So, it is clear that evidence was the basis of the conclusion as to the nature of IWO. True, the evidence may have been ex parte in some cases; it was hearsay in others; in some it may have been based on restricted information, but in any event, it is implicit in all the cases that the statements were based upon some evidence rather than upon notice.
Because of the reliance placed upon the proceedings commenced by the Attorney General in August 1953 requesting that IWO be designated "a Communist front organization" and because it is the last official action cited by the Service, we will examine that proceeding in some detail. The petition filed by the Attorney General requested that the Subversive Activities Control Board order IWO to register as an affiliate of the Communist Party. This petition lists twelve pages of facts from which the Attorney General concluded that affiliation had existed. The petition is made upon information and belief, and was signed by the Attorney General who stated that the source of the information and the grounds of belief were investigative reports made by the Federal Bureau of Investigation. There is no reference to legislative reports or court decisions concerning the vital issue of affiliation.
Shortly before the decision was made, the IWO came under the sole supervision of the New York State Superintendent of Banking. The Superintendent of Banking refused to oppose the petition of the Attorney General and refused to authorize the expenditure of IWO funds to contest the action. Former officials of IWO and members were denied the right to oppose the petition on the ground that they were not proper parties. The Subversive Activities Control Board then ruled that there was a default on the part of IWO. They found that "the Attorney General had stood ready to submit evidence in support of the allegations of the petition," and ruled that affiliation existed.
This examination reveals to us that the Attorney General who presumably had before him all the matters cited by the Service, did not take official notice of the existence of affiliation and furthermore, it reveals that the decision made on his petition should not remove the issue from the realm of reasonably disputable fact.
We have found that the matter of the affiliation of IWO and the Communist Party has not received such thorough litigation and consideration that it may be safely placed in the area of facts not reasonably subject to dispute. We find also that the existence of affiliation is not a "notorious" fact. (See Matter of C----, A-4894489, Int. Dec. No. 669, supra, where the Attorney General on March 14, 1955, held that evidence of record must establish that an alien member of IWO who was an officer of the organization could not be deported as a member of an affiliate of the Communist Party if he denied knowledge of the affiliation and it was not shown that he had knowledge of the existence of affiliation. We do not believe such a ruling would have been possible had the existence of the affiliation been as notorious a matter as the Service claims.)
Detailed analysis of the cases cited on the top of page 5 of the Service motion will not be undertaken in this order. We have carefully considered each of the cases. None states that judicial notice may be taken of the affiliation of the IWO with the Communist Party. The cases are distinguishable on various grounds. Some involve consideration of a previous case involving the same parties or their witnesses. For the most part, the previous cases were made part of the record in the last proceeding and opportunity for refutation was permitted. In one case where a report of an investigative nature was not made a part of the record it was used only for the limited purpose of checking and weighing evidence which had been properly introduced. In Jung See the recital of facts would make it appear that the matter complained of although not made a part of the record was nevertheless properly considered; however, Jung See was cited by a subsequent court as standing for the proposition, among others, that a fair hearing requires that the decision shall be based only on evidence produced at the hearing ( Gambroulis v. Nash, 12 F. (2d) 49, 52, C.A. 8 (1926)). In Latta the court took judicial notice that it had decided adversely to Freeman an issue again raised by Latta. However, the court did not state that it was unnecessary to consider evidence in Latta's case. In fact, the court went on to consider the evidence presented by Latta and his opponent and it was only on the basis of the evidence in the Latta case that a decision was made. Latta is, therefore, no authority for the Service position. Latta is in line with the well-established rule that while a court may at times take judicial notice of the existence of proceedings in its court, it does not mean the court "can give weight to the conclusions embodied" in the proceedings noticed, in deciding the issues in another action involving different parties ( Fox v. Schaeffer, 41 A. 2d 46 (Conn.); White v. Central Dispensary, 99 F. (2d) 355, 359, C.A.D.C.).
The latest of the cases cited by the Service which involve immigration matters was decided in 1938, yet despite the many cases on the nature of the Communist Party decided after 1938 and prior to 1950 when legislative intervention changed the picture, it is not shown that the weight of authority permitted judicial notice to be taken of the nature of so notorious an organization as the Communist Party ( Schneiderman v. United States, 320 U.S. 118, and cases cited in this order).
Finally, the court cases cited involving immigration matters must all be considered in light of the fact that they were decided prior to 1952 when there was no statutory requirement as there is now that the decision must be made "upon a record made in a proceeding before a special inquiry officer" (section 242 (b), Immigration and Nationality Act; 8 C.F.R. 242.54 (a)).
Our citation of Matter of H----, A-9682749, A.G., November 14, 1947, unreported, which is found in our original decision, is criticized in the Service motion. In Matter of H----, supra, we stated that it was improper to take official notice of the nature of the Communist Party. We find nothing in the order of the Attorney General contrary to the Board's position in the case and we are not informed of any official action by the Attorney General in any of the many cases involving the Communist Party where it was stated that it was proper to take judicial notice of the nature of the Communist Party prior to 1950.
In summary, we find that the affiliation of IWO and the Communist Party is not a notorious fact and the issue still remains in the realm of facts reasonably disputable. The finding of affiliation as a matter of official notice by the special inquiry officer was therefore not justified. The record contains no evidence of affiliation (and therefore nothing which can be reviewed by the court on such an issue). Prejudicial error was, therefore, committed by the special inquiry officer which required reopening of the proceeding. This we have ordered.
Order: It is ordered that the motion be and the same is hereby denied.
(September 27, 1955)
The Board has held that the special inquiry officer committed error in deportation proceedings when he took administrative notice of the affiliation between the Communist Party of the United States and the International Workers Order. It is believed that the Board and not the special inquiry officer is in error.
By motion dated May 19, 1955, the Service requested the Board to reconsider its decision. The contentions of the Service and the authorities in support thereof are fully set forth in the Service motion and need not be repeated here. The Board not only adhered to its original view but interposed a new objection that notice to the respondent of intent to rely upon administrative notice was required and the failure to give such notice constituted a denial of due process. The primary issue is whether official cognizance of such affiliation may be taken and little consideration need be given to the added objection since it is one which may, if necessary, be easily remedied. Nevertheless, the authorities do not support the position taken by the Board.
Only three of the cases cited by the Board in its memorandum decision dated September 8, 1955, even considered the question of judicial notice and these cases do not support the contention of the Board. In Ohio Bell Tel. Co. v. Public Utilities Commission, 301 U.S. 292, the Commission conducted an investigation as to the value of certain property and refused to produce the reports upon request. Furthermore, the Court pointed out that the value of property is a subject upon which experts disagree and, consequently, is not an appropriate one for judicial notice. In Funk v. Commissioner of Internal Revenue, 163 F. (2d) 796, at page 801, the Court stated: "However, exceptions are admitted, and it may indeed be more appropriate to say that the extent to which the doctrine will be applied depends to a large degree upon considerations of expediency and justice under the particular circumstances of a case, as well as upon what it is that a court is asked to notice." The Court in Stasiukevich v. Nicolls, 168 F. (2d) 474, held that reports of congressional committees may be judicially noticed, even though not introduced into evidence and, therefore, supports the position of the Service. Not one case cited by the Board supports the view that notice must be given to the respondent of an intent to rely upon public records such as legislative reports, judicial decisions, and prior administrative decisions of the very agency before which the case is pending.
In support of its contention that official cognizance may not be taken of the affiliation between the Communist Party and the International Workers Order, principal reliance is placed by the Board upon the fact that it has never been done before. If that were a valid argument, then the doctrine of judicial notice would be but a hollow phrase since there could never arise a first time when the court might apply it. However, the Board overlooks the fundamental fact that judicial notice is an ever expanding and not a static concept. Matters formerly the subject of dispute eventually become so well known and so well established that they are accepted without the introduction of evidence (1 Jones, Commentaries on Evidence, sec. 367, p. 642; 31 C.J.S., Evidence, sec. 7, p. 510). Furthermore, it is significant that in Matter of C----, E-131734, Int. Dec. No. 589 (B.I.A., 1954), in discussing the character of the Communist Party of the United States, the Board stated: "Moveover, if the basis upon which we have rested our decision had not been available to us, we would have taken administrative note that the Communist Party was one devoted to the overthrow of the Government by force and violence. The mass of evidence which has been accumulated, the pronouncements of Congress and other legislatures, the courts, and our experiences in deportation and exclusion proceedings involving membership in the Communist Party, justify such a conclusion (citations omitted).
Whatever doubts may have existed in the past, the fact of affiliation between the Communist Party and the International Workers Order is so well established now that administrative notice may be taken thereof. Matter of C----, A-4894489, Int. Dec. No. 669, cited by the Board has no application to the issue herein presented. The question to be determined here is not whether the fact of affiliation was generally known and established at the time of membership, but whether such affiliation is now generally known as having existed at the time of membership. The administrative notice will extend only to the fact of affiliation and not the respondent's knowledge thereof.
Before engaging the services of large numbers of former members of the Communist Party of the United States and the International Workers Order to act as Government witnesses in deportation proceedings, before undertaking the reproduction of numerous pamphlets and other documents for use as exhibits, with the consequent expenditure of great sums of money, in order to establish the fact of affiliation in each and every deportation case, it is believed that the decision of the Board of Immigration Appeals should be referred to the Attorney General for consideration.
In the event that the Attorney General concludes that administrative notice may be taken of the affiliation, it will also be necessary, in order to clarify the decision of the Board, to determine:
1. Whether the intention of the Service to rely upon administrative notice to establish affiliation need be given to the respondent in advance despite the fact that affiliation has been established by public records such as legislative reports, litigation in the courts, and the prior decision of the Board.
2. If notice is required, the nature and character of the notice. The Board implies that notice of an intent to rely upon the conclusion of affiliation is insufficient but that each and every fact relied upon to support the conclusion of affiliation must be disclosed.Request is hereby made to the Board of Immigration Appeals that this case be referred to the Attorney General for review in accordance with the authority contained in 8 C.F.R. 6.1 (h) (1) (iii).
(October 18, 1955)
Discussion: The facts have been fully stated in previous orders. Briefly, C---- and S---- are married male aliens, who have been permanent residents of the United States since their lawful admission thirty-two years ago. The record establishes that both men were members of International Workers Order, each as late as at least 1951. Their deportation is sought on the ground that IWO was an affiliate of the Communist Party and that they as members of IWO, thus were members of an affiliate of the Communist Party.
To prove that these aliens are deportable as charged, it is, of course, necessary that the Service establish that IWO was in fact an affiliate of the Communist Party. Neither the special inquiry officer nor the Service relies upon the records created in the deportation proceedings as establishing the existence of affiliation; both rely upon the taking of official notice. The pertinent matters of record on the issue of affiliation, consisting of denials of the existence of affiliation and a vague allusion to an act performed by IWO, or refusal of the aliens to testify on the matter, were not mentioned by the special inquiry officer in his decision. Without informing either alien that he would take official notice of the existence of affiliation or that he would consider evidence introduced by the Service to establish affiliation in a nonrelating immigration case, the special inquiry officer entered orders of deportation making the following finding of fact:
That the International Workers Order from 1930 to 1939 and from 1945 or 1946 to 1950 was affiliated with the Communist Party of the United States.
The only reason given for the conclusion that affiliation existed was stated by the special inquiry officer as follows:
In a recent decision ( Matter of D----, A-5390614, Dec. 26, 1951, Interim Decision 339), it was held that from 1930 to 1939 and from 1945 or 1946 to 1950, the International Workers Order was affiliated with the Communist Party of the United States.Matter of D----, supra, was a deportation case which did not involve either C---- or S----.
The special inquiry officer's orders were entered in June 1953. Appeals were taken to this Board. On May 19, 1955, we ordered reopening of the proceedings so that the Service could produce proof of affiliation. On September 8, 1955, we entered an order denying a Service motion for reconsideration of our decision. The Acting Assistant Commissioner, Examinations Division, now asks that these cases be referred to the Attorney General.
These cases were heard by the Board on oral argument in August 1953. Decision was held in abeyance pending ruling by the Attorney General in Matter of C----, A-4894489, Int. Dec. No. 669, a test case involving IWO membership. Matter of C---- was decided in March 1955.
The issue presented to us is the propriety of taking official notice of the existence of the affiliation of IWO and the Communist Party. Our position which has been set forth in detail in previous orders is, briefly, as follows:
(1) If, the finding of affiliation was made as a matter of official notice, the action was improper because the existence of affiliation is neither a fact that is notorious nor is it one that is not subject to reasonable dispute, so as to be in the field of administrative notice.
(2) If, the finding of affiliation was made after consideration of evidence submitted by the Service in Matter of D----, supra, it was improper because the decision would then have been made upon evidence which was not a part of the record and which the aliens had no opportunity to refute.
The Acting Assistant Commissioner is of the opinion that since we would now be justified on our own accord in taking administrative notice of "so well established" a fact as that of affiliation, we need not confine ourselves to the question as to whether the special inquiry officer acted properly in taking administrative notice of affiliation in June 1953 when he entered his order. In our previous orders, we made clear our belief that not only was the action of the special inquiry officer in June 1953 without authorization, but that it would be improper to take administrative notice at this time.
A recent decision dated June 10, 1955, lends support to our view. In that case, an alien, a person who the evidence established had been a member of IWO and two other organizations, sought to become a citizen by naturalization. Other than a reference to the fact that IWO and the other organizations were "designated by the Attorney General pursuant to Executive Order 10450" no evidence was introduced by the Service as to the character of the organizations. The Service opposed the alien's petition on the ground that he had been a member of a proscribed organization. The court granted the petition, holding that there was no competent evidence that any of the organizations with which the petitioner had been affiliated was of a proscribed nature. The court stated, "I do not think that it was the intention of Congress that the Immigration Service, by simply claiming that an organization, of which a petitioner had been a member, was an organization of the proscribed character, should be able to cast upon the petitioner the burden of proving its acceptability" ( Petition of Antisin, No. 259, U.S.D.C., S.D.N.Y., June 10, 1955).
In this request for referral, the Acting Assistant Commissioner states that our citation of certain cases is not in point. The cases mentioned were cited for the proposition that it is error to decide adversely to a party on the basis of evidence not a part of the record. The citations properly stand for this proposition (and for the proposition that where administrative notice may be taken, a party to a deportation proceeding must be informed before an adverse decision is made, that official notice was to be taken of a vital matter).
In accordance with the provisions of 8 C.F.R. 6.1 (h) (1) (iii), this case is referred to the Attorney General for review.
(April 2, 1956)
The decision and order of the Board of Immigration Appeals in the above-styled cases, embodying the Board's view that administrative notice may not be taken of affiliation between the Communist Party and the International Workers Order, are hereby approved.