A-6713987
Decided by Board May 1, 1956
Subversive — Communist Party of Great Britain — Proof of nature of Party is required to support charge of deportability under section 241 (a) (1), Immigration and Nationality Act, where entry is subject to provisions of the Act of 1918, as amended in 1940.
(1) Mere membership in the Communist Party of Great Britain is not sufficient to support a charge of deportability under section 241 (a) (1) of the Immigration and Nationality Act as an alien who was inadmissible at the time of entry in 1947 by reason of such membership prior to entry. Excludability at that time must be determined in accordance with the Act of October 16, 1918, as amended by the Alien Registration Act of 1940. Hence, it is incumbent upon the Government to establish by competent proof that the Communist Party of Great Britain believes in, advocates, or teaches the overthrow by force and violence of the Government of the United States.
(2) Judicial or administrative notice may be taken that the Communist Party of the United States is an organization which seeks to overthrow the Government of the United States by force and violence; but such notice may not be taken as to any other organization.
CHARGES:
Warrant: Act of 1952 — Section 241 (a) (1) — Excludable by Act of October 16, 1918, as amended — At time of entry, an alien who had been a member of or affiliated with the Communist Party of a foreign state — Communist Party of Great Britain.
Lodged: Act of 1952 — Section 241 (a) (1) — Excludable under Act of May 26, 1924, as amended — At time of entry an alien presenting invalid visa procured by fraud or misrepresentation. Act of 1952-Section 241 (a) (1) — Excludable at time of entry by Act of October 16, 1918, as amended by section 23 (a) of the Act of June 28, 1940 — An alien who had been a member of an organization which advocates the overthrow by force and violence of the Government of the United States, to wit: Communist Party of Great Britain.
BEFORE THE BOARD
Discussion: The respondent appeals from an order entered by the special inquiry officer November 18, 1955, directing his deportation on the charge stated in the warrant of arrest and upon each of the two charges lodged during the hearings of October 28, 1954, and September 8, 1955. Counsel on appeal urges that the finding of deportability under section 241 (a) (1) of the Immigration and Nationality Act is in error for the reason that the Government submitted no proof that the Communist Party of Great Britain advocated the overthrow of the Government of the United States by force and violence. It is also urged that the Government has failed to prove by a preponderance of the evidence that the respondent was a member of the Communist Party of Great Britain prior to his entry on June 20, 1947.
The record relates to a native and citizen of Great Britain, male, married, 56 years of age, who last entered the United States at the port of New York on June 20, 1947. He was admitted pursuant to section 6 (a) (3) of the Immigration Act of May 26, 1924, as a British quota immigrant for permanent residence. He presented immigration visa No. 33163 issued on June 10, 1947, by the American Consul at London, England. The special inquiry officer finds that the respondent was a member of the Communist Party of Great Britain for a period of three to six months in 1943 or 1944. The special inquiry officer also finds material to the respondent's admissibility in 1947 the fact that he failed to reveal his membership in the Communist Party when he applied for the immigration visa which he presented.
The warrant of arrest, issued July 8, 1954, charges deportability under section 241 (a) of the Immigration and Nationality Act, in that, he (respondent) was a member of the following class of aliens excludable by the Act of October 16, 1918, as amended:
An alien who had been a member of or affiliated with the Communist Party of a foreign state, or of a political or geographical subdivision of a foreign state, to wit: The Communist Party of Great Britain.
At the time of respondent's entry in 1947, the then excludable class of aliens were set forth in the Act of October 16, 1918 ( 40 Stat. 1012), as amended. This act was amended in 1920 in 41 Stat. 1009 and again in the Alien Registration Act of 1940 ( 54 Stat. 673). Section 23 (a) of the 1940 act amends the 1918 act to provide in section 1:
That any alien who, at any time, shall be or shall have been a member of any one of the following classes shall be excluded from admission into the United States: * * * (c) Aliens who believe in, advise, advocate, or teach, or who are members of or affiliated with any organization, association, society, or group, that believes in, advises, advocates, or teaches: (1) the overthrow by force or violence of the Government of the United States or of all forms of law, or (2) the duty, necessity or propriety of the unlawful assaulting or killing of any officer or officers (either of specific individuals or of officers generally) of the Government of the United States or of any other organized government, because of his or their official character * * *.
At the same time, section 2 of the 1918 act was amended to read:
Any alien who was at the time of entering the United States, or has been at any time thereafter, a member of any one of the classes of aliens enumerated in section 1 of this Act, shall, upon the warrant of the Attorney General, be taken into custody and deported * * *. 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.
This case was before us on April 11, 1955. We considered, on that occasion, similar exceptions raised by counsel. We said:
The law existing at the time of respondent's entry in 1947 (the Act of October 16, 1918, as amended by section 23 (a) of the Alien Registration Act of 1940 ( supra)), by its terms, requires proof that the respondent at any time prior to entry was a member of or affiliated with an organization which advocated or advised "the overthrow by force and violence of the Government of the United States." In other words proof must be submitted that the Communist Party of Great Britain advocates the overthrow of the Government of the United States by force and violence. We must, therefore, conclude that the charge in the warrant of arrest and the conclusion of law with respect thereto are in error and do not state proper grounds for deportation because they do not charge the respondent with being deportable for being within a class of aliens excludable by the law existing at the time of his entry in 1947.
We remanded the case to the Immigration and Naturalization Service for such action deemed advisable under the circumstances and directed that respondent be afforded an opportunity to prepare a defense to any action taken by the Immigration and Naturalization Service.
A reopened hearing pursuant to our order of April 11, 1955, was accorded respondent on September 8, 1955. There was lodged under section 241 (a) (1) of the Immigration and Nationality Act of 1952 the charge: " At the time of entry (respondent) was within one or more of the classes of aliens excludable by the law existing at the time of such entry," to wit: "The Act of October 16, 1918, as amended by section 23 (a) of the Act of June 28, 1940; an alien who had been a member of an organization which advocates the overthrow by force and violence of the Government of the United States, to wit, the Communist Party of Great Britain."
The special inquiry officer relying on the case of Martinez v. Neely, 197 F. (2d) 462 (C.C.A. 7, 1952), affirmed 344 U.S. 916 (1953), and a precedent decision of this Board, concludes that respondent at the time of his only entry in 1947 was a member of a class barred from entry by the Act of 1918 as amended by the Act of June 28, 1940, by reason of prior membership in the Communist Party of Great Britain. No evidence was offered to establish that the Communist Party of Great Britain advocated the overthrow of the Government of the United States by force or violence during respondent's alleged membership for a period of three to six months in 1943. The special inquiry officer dispensed with such proof on the theory that none is required under the statute and that, in any event, administrative notice may be taken that the Communist Party, regardless of where located, is devoted to the overthrow of the United States Government by force and violence.
Matter of D----, A-7808001, 4 IN Dec. 745 (B.I.A., 1952).
The issue presented by the aforestated action is whether it is incumbent upon the Government to establish by competent evidence the proscribed nature of the Communist Party of Great Britain in order to establish deportability under section 241 (a) (1) of the Immigration and Nationality Act, where the deportation charge is based on alleged party membership antedating the respondent's last and only entry in 1947 and the exclusion statute did not then specifically preclude the admission of former communists, per se, but rather prohibited the admission of "any alien who, at any time, shall be or shall have been a member of any one of the following classes * * * (c) aliens * * * who are members of or affiliated with any organization * * * that believes in * * * (1) the overthrow by force or violence of the Government of the United States * * *" (Act of October 16, 1918, as amended by the Act of June 28, 1940 ( 54 Stat. 673)).
We are of the opinion that the special inquiry officer erred in relying upon a statement by the Circuit Court of Appeals of the 7th Circuit in the case of Martinez v. Neely, supra, to the effect that "the time has passed when it can be successfully contended that proof is required that the Communist Party is or has been an organization which advocates `the overthrow by force or violence of the Government of the United States'." The Martinez case is distinguishable on substantive as well as technical grounds. Martinez in his complaint alleged error in that the record developed administratively in his case failed to establish "by substantial evidence" that the Communist Party of the United States, in fact, believed in or advocated the overthrow of the Government of the United States by force or violence during his admitted membership therein. Another allegation in the complaint relates, "The representatives of the Immigration and Naturalization Service introduced documents and verbal evidence which they claimed established otherwise." It is thus clear from the allegations in the complaint that proof as to the nature of the Communist Party of the United States was a part of the record. The service in the case before us introduced no evidence of the beliefs or advocacy of the Communist Party of Great Britain.
It is noted that the Government in its brief in opposition to the writ of certiorari before the Supreme Court ( Martinez v. Neely, 344 U.S. 810) did not rely on the concept of "Judicial Notice" as to the nature of the Communist Party but rather stressed the point that Martinez would be deportable irrespective of this issue by reason of recent legislation (Internal Security Act of 1950).
The other substantive ground wherein the case before us differs from the Martinez case concerns the fact that Martinez would be deportable regardless of the proof submitted as to the nature of the Communist Party. The Circuit Court in their opinion mentioned with particularity that if Martinez were allowed a review of the administrative procedure and should establish the allegations of his complaint he would still be deportable without proof as to the proscribed nature of the Communist Party of the United States by reason of the fact that a new charge could be lodged under section 22 of the Internal Security Act of 1950 and this charge could be sustained merely upon a showing of past membership in that organization. In other words, irrespective of their decision on the issue as to proof of the nature of the Communist Party, none of Martinez' rights would be substantially affected because all that would be necessary to establish his deportability would be to reopen the proceedings and lodge the proper charge.
This issue is vital in the instant case because respondent does not find himself in such an awkward position. Unlike Martinez, a charge will not lie under the Internal Security Act of 1950 or under section 241 (a) (6) of the Immigration and Nationality Act, neither of which require proof of the nature of the Communist Party. This is so for two reasons. First, the Government cannot lodge a charge under the Internal Security Act of 1950 because section 22 thereof, amending the Act of October 16, 1918, has been repealed by section 403 (a) of the Immigration and Nationality Act. Second, the charge under the 1952 act (section 241 (a) (6)) on which Martinez could have been deported applies only to aliens who were members of the Communist Party after their entry into the United States. It cannot be used in this case because the respondent was never a member after entry. We know of no provision of the Immigration and Nationality Act under which respondent may be deported by reason of his membership in a proscribed organization prior to entry if he is not deportable on the charges laid under section 241 (a) (1) of that act. In other words, respondent's deportability, unlike Martinez', depends solely upon maintaining the charges here under consideration which involve establishing his inadmissibility under the law as it existed at the time of his entry, to wit, the Act of October 16, 1918, prior to its amendment by the Internal Security Act of 1950.
We next turn to administrative decisions concerned with the issue presented in the case before us. The special inquiry officer relies upon Matter of D----, A-7808001, 4 IN Dec. 745, B.I.A., September 22, 1952. Matter of D---- presents a factual situation which in some respects is similar to that now before us. Primarily the distinguishing feature is the fact that the warrant charge in Matter of D---- is laid under the Act of October 16, 1918, as amended by the Internal Security Act of 1950. That act provided for the deportation of an alien who at the time of entry, regardless of whether before or after the passage of the act, had been a member of certain stated classes among which were:
Matter of R----, A-8015055, 5 IN Dec. 505, B.I.A., October 28, 1953, cited by the special inquiry officer involves membership in the Communist Party of Great Britain. It presents the identical issue discussed in Matter of D----, supra, with respect to a charge laid under the Act of 1918, as amended by the Internal Security Act of 1950, and an entry prior to the 1950 amendment.
Aliens who are members of or affiliated with * * * (iv) the Communist or other totalitarian party of any State of the United States, of any foreign state, or of any political or geographical subdivision of any foreign state * * *.
The 1952 act makes no such declaration with respect to an alien who entered prior to the effective date thereof, December 24, 1952. The 1952 act insofar as it relates to aliens who entered prior to December 24, 1952, merely provides for the deportation of those aliens who had been inadmissible under the laws in effect at the time of entry. Respondent's case, unlike Matter of D----, supra, must be adjudicated under the Act of 1918, as amended in 1940. The amendment in effect at the time of respondent's entry in 1947 did not, as in the 1950 amendment, make an alien inadmissible by reason of membership per se in the Communist Party. It required membership in an organization that "believes in, advises, advocates or teaches: (1) the overthrow by force or violence of the Government of the United States * * *." This is what the Government must establish and this it has not done.
Matter of C----, E-131734, 6 IN Dec. 219 (B.I.A., 1954), although not relied upon by the special inquiry officer, presents an issue similar to the one now before us. It was established in this case ( Matter of C----, supra) that the alien had been a member of the Communist Party of the United States from 1933 to 1935. He last entered in 1945. Deportation was sought under section 241 (a) (1) of the 1952 act as one excludable at the time of entry (1945) under the Act of October 16, 1918, as amended by the Act of June 28, 1940. We found on the basis of the proof supplied by the record that the conditions required by the 1918 act as amended by the 1940 act did exist and that the alien was inadmissible at the time of entry by reason of membership, per se, in an organization seeking the overthrow of this Government by force and violence. We specifically stated that we did not seek to administratively amend the law existing at the time of respondent's entry. We rested our finding that the Communist Party of the United States came within the proscription set forth in the 1940 amendment on the preamble (section 2) of the Internal Security Act of 1950, wherein Congress in paragraphs 9, 12, and 15 clearly set forth the classes of individuals who were devoted to the overthrow of the Government of the United States by force or violence. The organization here under consideration is the Communist Party of Great Britain and not, as in Matter of C----, supra, the Communist Party of the United States. Even if we resorted to administrative notice in this instance, there is nothing in this record to show that the Communist Party of Great Britain is one of the organizations designated by Congress in the preamble of the Internal Security Act of 1950. Furthermore, there is nothing in the record before us to establish that the Communist Party of Great Britain advocates the establishment of a totalitarian Communist dictatorship in any or all of the countries of the world through the medium of an internationally coordinated Communist movement. It is our opinion that evidence of this nature is required under the 1952 act. Cf. Sections 101 (a) (37), (40) and 101 (e) (3).
We have had occasion within the past year to interpret our decision in Matter of C----, supra, as to whether it is authority for eliminating proof of the nature of organizations other than the Communist Party of the United States where the entry was prior to the passage of the Internal Security Act of 1950 ( Matter of K----, A-6487695, B.I.A., April 11, 1955, unreported). We said:
Matter of C----, supra, is strictly limited to a single category, namely, that proof that an alien was a member of the Communist Party (of the United States) is satisfactory proof that he was a member of an organization which sought the overthrow of the Government by force and violence. Our decision that membership in the Communist Party, per se, renders an alien deportable regardless of when he entered, was based upon congressional declarations found in the Internal Security Act of 1950 and the Immigration and Nationality Act of 1952 to the effect that sufficient evidence had been accumulated establishing that the Communist Party is an organization which seeks to overthrow the Government of the United States by force and violence.
Congress has made no such statutory declarations with respect to the Young Communist League of the United States or the Komsomol of the Soviet Union. In other words we finding [find] nothing in the Immigration and Nationality Act of 1952 (sections 101 (a) (37) and (40); 212 (a) (28) (C); 241 (a) (6) (C)) which eliminates the burden of introducing affirmative evidence that the organizations here under consideration advocate the overthrow of the Government of the United States by force and violence.
Our position in unreported Matter of K----, supra, is supported by the Attorney General's recent decision in Matter of C---- and S----, A-2483471 and A-4388595, 6 IN Dec. 597, April 2, 1956. The issue before the Attorney General was the propriety of taking administrative notice of the existence of an affiliation between the International Workers Order and the Communist Party of the United States. The Attorney General affirmed the Board's view that administrative notice may not be taken of an affiliation between the Communist Party of the United States and the International Workers Order.
We come now to the question of whether the evidence of record establishes deportability under section 241 (a) (1) of the Immigration and Nationality Act of 1952. The conclusion that respondent is deportable under the aforestated provision of law rests solely on findings of fact based on the premise that administrative notice may be taken that the Communist Party of Great Britain during respondent's alleged membership advocated the overthrow of the Government of the United States by force and violence. Administrative notice may not be taken of a fact reasonably open to dispute. Deportation statutes are to be strictly construed against the Government ( Barber v. Gonzales, 347 U.S. 637, 642-643 (1954)). Congress expressly dispensed with proof of the nature of the Communist Party in section 241 (a) (6) of the Immigration and Nationality Act which provides for the deportation of aliens who become members of proscribed organizations after entry. It made no such declaration in section 241 (a) (1) where deportability depends upon inadmissibility at the time of entry under " the law existing at the time of such entry." Prior to the enactment of the Internal Security Act of 1950 there had been no congressional declaration of the nature of the Communist Party.
Matter of C---- and S----, supra; see B.I.A. opinion of September 8, 1955.
It may be argued that the phrase found in the proviso of section 241 (a) (6) (C), to wit, "or in any other provision of this Act" is a congressional declaration that no proof of the nature of the Communist Party of Great Britain is required in the instant case. We do not subscribe to such an interpretation because respondent's deportability is based upon his excludability under the Act of 1918, as amended by the Act of 1940, and not under a "provision" of the 1952 act for an entry subsequent to the effective date thereof.
The proviso in section 241 (a) (6) (C) reads as follows:
(C) * * * That nothing in this paragraph, or in any other provision of this Act, shall be construed as declaring that the Communist Party does not advocate the overthrow of the Government of the United States by force, violence, or other unconstitutional means.
Under the circumstances, we find in this instance that the burden is upon the Government to establish by competent evidence the proscribed nature of the Communist Party of Great Britain in order to establish deportability under section 241 (a) (1) of the Immigration and Nationality Act. This it has not done. A fortiori, the issue of whether membership in the party has been proven by a preponderance of the evidence becomes moot. The charge stated in the warrant of arrest and that lodged during the hearing of September 8, 1955, are not sustained.
The charge lodged under section 241 (a) (1) of the Immigration and Nationality Act relative to the validity of the visa presented by respondent at the time of his entry on September 20, 1947, requires an affirmative finding that he procured it by fraud or misrepresentation to render him deportable thereon. The evidence relied upon by the Government consists of the following statement in the visa application executed by the respondent before the Vice Consul at London, England, on June 10, 1947:
That I have had the following excludable classes explained to me, and that except as hereafter noted, I am not a member of any one of the following classes of individuals excluded from admission to the United States under the immigration laws:
(17) Persons who believe in or advocate the overthrow by force or violence of the Government of the United States * * *;
(19) Persons inadmissible under the provisions of the Act of October 16, 1918, as amended * * *.
The respondent testified that no one at the consular office explained to him the Act of October 16, 1918, as amended. He also testified that he has never believed in or advocated the overthrow by force and violence of the Government of the United States. Since there is no evidence of record: (1) which places respondent within the classes of aliens excluded by the Act of October 16, 1918, as amended, or (2) that he was at the time of entry a person who believed in or advocated the overthrow by force or violence of the Government of the United States, we find the documentary charge lodged on October 28, 1954, not sustained.
An order terminating the proceedings will be entered.
Order: It is ordered that the proceedings under the warrant of arrest issued July 8, 1954, be and the same are hereby terminated.