A-5048318 and E-47403.
Decided by Board August 3, 1954.
Subversive: Communist Party of the United States — Evidence.
Government is held not to have sustained burden of proof in deportation proceedings on charge of past membership in the Communist Party where the respondent denied such membership at the hearing, the only evidence produced by the Service was a preliminary statement made by the respondent in English admitting Communist Party membership, which he repudiated at the hearing, and it is shown that respondent has a poor understanding of the English language and that the statement was not a verbatim one.
CHARGES:
Warrant: Act of 1918 — After entry, member of Communist Party of the United States.
Lodged: Act of 1952 — Convicted of crime prior to entry.
BEFORE THE BOARD
Discussion: This is an appeal from the order of the special inquiry officer requiring respondent's deportation on the grounds stated above.
Respondent is a 62-year-old male, a native and citizen of Mexico, who, with the exception of short visits to Mexico, has been a resident of the United States since his admission for permanent residence in 1916. Deportation on the charge in the warrant of arrest is based entirely upon admissions contained in a question — and — answer statement made by the respondent on August 28, 1952, before two officers of the Immigration Service. At his hearing, respondent denied his answers constituted admissions of membership in the Communist Party and he denied having been a member of the Communist Party at any time. We believe that on this issue, the Government has failed to bear its burden of proof of establishing membership in the Communist Party by evidence that is reasonable, substantial and probative. The warrant charge will not be sustained.
L---- F---- and B----, Service investigators, testified that they had taken the question — and — answer statement from respondent; that they spoke Spanish and were competent to take the statement in Spanish, if that had been necessary; and that it had been taken in English because that seemed to be the easiest language for the respondent.
L---- F---- testified that he had not entered the respondent's exact answers to the questions, but only the substance of the answers because of the difficulty in taking the answer down as fast as it was given; that he excluded matters which were in his opinion irrelevant; and that he may have asked some questions and received some answers which he did not include on the statement, although he can recall only one such question and answer. He stated that if any explanation followed a categorical answer, it was placed on the statement and that while he could not recall any lengthy answers accompanying the categorical answers, it is possible that the respondent may have entered into an explanation of some sort which was not put on the record. L---- F---- gave an illustration of one case in which he had omitted additional information volunteered by the alien. This was in answer to a question concerning his last entry. The respondent had discussed the reason why he went to Mexico and what he had done there. L---- F---- had omitted this because that information was irrelevant and because there was no place to put it on the form. He stated "there may have been other instances of like nature in this part of the form."
B---- testified that the answers contained on the record were obtained in the following manner. After a question was asked, there would be some discussion which was not put on the record, and that as a result of the discussions, respondent and L---- F---- would arrive at what the answer would be and then it would be put down in that exact form. He testified that he had read the statement to respondent and was sure he had understood it; that he had the respondent initial each page and sign it; and that he had read it back in English. He stated that respondent had not stated he did not understand any of the questions and answers and had not complained concerning the manner in which the answers had been entered.
Pertinent extracts from the statement of August 28, 1952, follow. The questions are put by L---- F----. The answers are purportedly those of the alien.
Q. When and where did you last enter the United States?
A. July 18, 1951, San Ysidro, Calif.
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Q. The records of the Immigration and Naturalization Service show that you joined the Communist Party of the United States on January 20, 1937. Is that correct?
A. Yes.
Q. Do you recall who presented your application for Communist Party membership?
A. I think that it was a man by the name of G----.
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Q. To whom did you pay Communist Party dues?
A. To N---- M----. I did pay some dues to Mr. G----.
Q. Do you remember what the Dues Stamps looked like?
A. They had a hammer and sickle on them.
Q. Did you have a Communist Party membership book?
A. Yes, but I don't remember what happened to it.
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Q. When did you quit the Communist Party?
A. I quit in less than six months after I joined.
Q. What other organizations were you a member?
A. I did belong to the Alianza Espanol Americana (Alianza Hispana Americana) for two or three years during the 1920's.
Q. At the time you were attending the Communist Party meetings did you belong to any other organizations?
A. No Sir.
Q. What was discussed in the Communist Party meetings which you attended?
A. Many different things. They talked a lot about Russia. They said that they liked the way they did things in Russia. I don't see how they knew — they had never been there.
Q. What language was used during the meetings?
A. Spanish.
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Q. Why did you get out of the Communist Party?
A. Because I do not believe in that stuff. I do not like it.
The respondent testified under oath at the hearing. He stated that he spoke mainly Spanish and understood very little of the English language. He stated that in 1937 he was unemployed and had six children to support and was desperate for work. A person named G---- had invited him to attend meetings of the Workers Alliance and informed him that the object of the organization was to obtain work for people who were unemployed and there was an indication he would be helped. G---- took him to three or four meetings. At the third meeting G---- told him it was time to make an application for membership. The respondent, however, had become convinced by this time that he could not obtain employment through the organization and did not make an application, and after attending about one more meeting did not return. He stated that at each meeting he had given $0.10 not as dues, but as his contribution toward payment of the refreshments which had been served there. He stated he had not been asked for money by anyone, but since he had seen people paying $0.10 he formed the opinion that it was in payment for the refreshments and had also contributed the $0.10 for this purpose. He stated he had no recollection of signing any application; that he was given no literature; and nothing occurred there which would indicate that it was a Communist organization. He denied having ever received a book or registration card to show membership in the Workers Alliance or any other organization or that he had ever received any dues stamps or any other indicia of membership.
In corroboration of his statement that he had a poor understanding of English, respondent presented two persons with whom he has been employed since 1942. Both testified in English and stated they did not speak English with the respondent because he does not understand English well. To corroborate his statement concerning his association with the Workers Alliance, he introduced a witness who testified that he has known respondent since 1926; that between 1936 and 1937 he had a conversation with the respondent concerning the Workers Alliance; that the respondent had informed him that he was going to get work through the organization; and that subsequently, the respondent had informed him that he had not joined the organization because he had found out it was a communistic organization. None of the witnesses presented by respondent had any knowledge that he had engaged in communistic activities.
Respondent testified that B---- had helped him read the question — and — answer statement before it had been signed; that he did not understand all the questions and answers that were read before he signed it, but that he did not tell this to the Service officers because he was instructed by them to sign and informed there was nothing in it against him. He explained his answer about payment of dues as the giving of a contribution toward the payment of the refreshments served. The respondent stated that the answer concerning the stamps which had a picture of a hammer and "sickle" had been made although he had never heard of the word "sickle" before and did not understand it. He explained his answer as to whether he had a Communist Party membership book as made in answer to a question which he did not understand well and which he understood as asking him whether books had been distributed in the place where he had gone. He stated books had been distributed, but he himself had never received a book. He stated his answer that he had quit in less than 6 months merely meant that he had quit attending meetings after visiting three or four meetings.
It may thus be seen that there is presented a sharp conflict in the evidence as to whether the respondent is capable of understanding English and whether he admitted membership in the Communist Party. In view of the evidence of record, we cannot consider the question — and — answer statement as reflecting an admission of Communist Party membership by the respondent. The fact that the statement is not a verbatim one; the fact that matter the Service officer deemed immaterial was or may have been excluded in recording the answers; and the fact that it is apparently couched in the language suggested by the Service officer to an individual who two witnesses have sworn has a poor understanding of English, require us to regard this exhibit not as reflecting admissions by respondent, but rather as a record of the Service officer's impressions drawn from the respondent's answers. Under oath, the respondent has denied that these impressions are accurate reflections of the facts. He has made a sworn denial that he admitted membership in the Communist Party or that he has ever been a member of the Communist Party. The testimony of his witness to the effect that in 1937 respondent stated that he would have nothing to do with an organization that was reported to be communistic is some corroboration of respondent's testimony. Grave doubt as to his ability to understand English is raised by the testimony of people with whom he is employed. In view of all these matters, we do not believe it can be said that the Government has borne its burden of proof in this case. We, therefore, find the warrant charge is not sustained.
We believe the lodged charge is sustained. The matter has been amply dealt with by the special inquiry officer. The respondent was inadmissible at the time of his last entry by reason of his conviction for violation of section 499 of the Penal Code of California for larceny of either water or electricity. This occurred in 1935. He has been a resident of the United States since 1916. He has testified that he is the father of seven children, all born in the United States; that the one son who is a minor is being supported by him; that he is the owner of real property in which he has an equity of about $11,000; that he is steadily employed at a salary of $60 or $65 a week; and that he has been a person of good moral character. He does not appear to have been convicted since 1936, although it appears that he was arrested for failure to provide in 1951, no disposition of the case being shown. There is no evidence of Communist Party activity or sympathy. We believe the respondent's case merits further consideration for relief under section 212 (c) of the Immigration and Nationality Act. We will remand the case to the field for appropriate investigation so that we may determine the advisability of granting such relief.
Order: It is ordered that the case be remanded to the Service for appropriate investigation and such further action as they deem necessary.