E-131734.
Decided by Board July 23, 1954.
Subversive organization: Communist Party of the United States — Deportability under section 241 (a) (1) of the Immigration and Nationality Act — Evidence of membership prior to entry sufficient to prove excludability under the Act of October 16, 1918, as amended.
A charge under section 241 (a) (1) of the Immigration and Nationality Act that an alien who entered the United States in 1945 is deportable because of his excludability under the law existing at the time of entry, to wit, the Act of October 16, 1918, as amended, as a former member of the Communist Party of the United States, does not require specific evidence establishing that the Communist Party of the United States was an organization advocating forcible overthrow of the Government. Proof of the alien's membership in the Communist Party is sufficient to sustain the charge. Deportability under section 241 (a) (1) of the Immigration and Nationality Act by reason of such membership is established even though the entry occurred prior to the effective date of legislation making members of the Communist Party, per se, deportable and excludable.
BEFORE THE BOARD
Discussion: By order dated December 18, 1953, this Board dismissed respondent's appeal from the order of the special inquiry officer requiring respondent's deportation on the ground that he was deportable under section 241 (a) (1) of the Immigration and Nationality Act of 1952 as one excludable at the time of entry in 1945 under the act of October 16, 1918, as amended, as an alien who had been a member of the Communist Party of the United States. Membership from 1933 to 1935 was established.
The motion is for reopening and reconsideration on the ground, among others, that the decision of the Board is contrary to the law as set forth in Berrebi v. Crossman, 208 F. (2d) 498 (C.A. 5, 1953). We do not believe Berrebi is controlling herein because there the Government stipulated that the alien had entered the United States lawfully. This is the keystone of the decision. In the instant case, the Government has not stipulated that the alien's entry was lawful; in fact, it argues that the entry is unlawful. Moreover, Berrebi involved the meaning of a grammatical construction which is not involved herein.
Counsel also contends that there is no evidence in the record that petitioner was a member of an excludable class in 1945 unless it be shown that the Communist Party was during the period of his membership (1933-35), an organization which engaged in proscribed activities. Although this objection was not previously raised on appeal, we did indicate in our order of December 18, 1953, our belief that it was unnecessary to establish the nature of the Communist Party in this case. Since counsel has raised the issue despite our previous statement, we will add the following.
Deportation is sought under section 241 (a) of the Immigration and Nationality Act (Public Law 414, 82d Cong., 2d sess.) which provides as follows:
Any alien in the United States * * * shall, upon the order of the Attorney General, be deported who —
(1) at the time of entry was within one or more of the classes of aliens excludable by the law existing at the time of such entry; * * *.
As pertinent to this discussion, the law existing at the time of respondent's entry in 1945 provided for the exclusion of an alien who at any time had been a member of an organization that sought the overthrow by force and violence of the Government of the United States (act of October 16, 1918, as amended, 40 Stat. 1012, 54 Stat. 673). It did not provide for the deportation of a Communist as such.
Counsel contends that there is no evidence of record that the respondent was a member of an organization which sought to overthrow the Government by force and violence and that the proceeding should therefore be terminated. We found that the necessary proof was offered by the Service when it established that the respondent was a member of the Communist Party. Counsel argues that to accept Communist Party membership as proof of membership in an organization seeking the overthrow of this Government by force and violence incorporates subsequent legislation and makes section 241 (a) (1) a denial of due process of law. No authority for this contention is cited; we believe it to be without foundation.
We believe that the function of section 241 (a) (1) is to direct us to the law which must be considered in determining whether the respondent was excludable and, consonant with the principles of due process, to determine if the alien falls within a class barred by that law. That is its full force. It no more requires us to utilize any particular evidence to establish the fact of inadmissibility than it requires us to give the alien the board of special inquiry hearing which then existed to determine admissibility of aliens. It does not require us to return to the date of his entry and erase from our minds what has occurred between the date of entry and the time we make our decision. Section 241 (a) (1) requires us to now determine if the alien was inadmissible at the time he entered. It does not specify the nature of proof which is necessary to satisfy that requirement. We believe that proof that one was a member of the Communist Party is satisfactory proof that he was a member of an organization which sought the overthrow of the Government by force and violence. We believe that it is satisfactory proof because Congress had indicated the weight and sufficiency to be given such proof is such that deportation may be ordered.
The history of the laws relating to subversives makes this clear. Congress early indicated its belief in the necessity of ridding the country of the presence of persons who are members of an organization which seeks the overthrow of the Government by force and violence. Many changes were made in an effort to expedite the removal and exclusion of subversives. The inability to deport Communists without entering into prolonged and difficult matters of proof was found unsatisfactory by Congress. Thus, in the 1949 Senate Report accompanying the bill which became the Internal Security Act of 1950 ( 64 Stat. 987, 1006) is found a review of the then existing law, followed by this statement:
* * * While Congress has clearly proscribed classes of aliens which are to be excluded from admission or deported after admission, there is the obvious difficulty of establishing that certain aliens or organizations do advocate overthrowing the Government by force or violence. It is inherent in the tactics of such persons and organizations that their real intentions be concealed under an aura of legitimacy in order to accomplish their purpose. Thus, though it may be common knowledge that certain organizations advocate such beliefs, satisfactory proof of that position offers a formidable obstacle. The evidence developed by the subcommittee should remove any doubt about the Communist Party's advocating the overthrow of our Government by force or violence in order to consummate its plans of a world-wide Communist totalitarian dictatorship. Yet, membership in the Communist Party, without positive proof that it so advocates the overthrow of government by force and violence, is insufficient grounds for deporting such an alien member. (S. Rept. 2230, 81st Cong., 2d sess., pp. 24-25.)
In 1950, Congress rewrote the laws relating to the control of subversives (Internal Security Act of 1950). Based on findings it set forth in section 2 of that act to the effect that the world Communist movement "in its origins, its development, and its present practice," was devoted to the overthrow of non-Communist governments by force, violence and other illegal means, it specifically made members of the Communist Party, per se, deportable and excludable.
When Congress did this, it in effect said that sufficient evidence had then been accumulated establishing that the Communist Party was an organization that sought to overthrow the Government by force and violence so that when membership in the Communist Party was the basis for deportation proceedings, the mandate imposed by the courts requiring the Government to establish the nature of the Communist Party in each and every proceeding was no longer necessary, and that mere proof of membership in the Communist Party was sufficient to sustain deportation or exclusion. Alien Communists were made deportable "because of Congress' understanding of their attitude toward the use of force and violence" ( Carlson v. Landon, 342 U.S. 524, 541 (1952)).
The action in listing Communist Party members as deportable and excludable was congressional declaration of the fact that the Communist Party was an organization seeking the overthrow of the Government by force and violence. It was no more than the elimination of the burden of introducing over and over again evidence as to the Party's nature and activities. It dispensed with the need for proof of the nature of the organization ( Galvan v. Press, 347 U.S. 522 (1954); Matter of D----, A-7808001, 4 IN Dec. 745; Matter of K----, A-5277515, 5 IN Dec. 49; see Harisiades v. Shaughnessy, 342 U.S. 580, 595-596 (1952)).
The provisions of the 1950 act were carried over in the codification of the immigration and nationality laws which became effective December 24, 1952 (Immigration and Nationality Act, supra). The codification made a present or past member of the Communist Party excludable if he attempted to enter the United States (sec. 212 (a) (28) (C)), and made him deportable if he became a Communist Party member after entry (sec. 241 (a) (6) (C)). As to those not otherwise covered, i.e., those who had been members of the Communist Party prior to their entry and who had succeeded in entering the United States undetected prior to the Immigration and Nationality Act, provision was made for their deportation in the catchall clause which has been previously set forth (sec. 241 (a) (1)).
The catchall clause covers also the alien who was inadmissible by reason of the commission of crime; likelihood of becoming a public charge; affliction with loathsome and contagious disease; mental or other specified affliction; polygamists; prostitutes; etc.
In the codification Congress expressed no specific desire to change the nature of proof required to deport Communist Party members, and in fact expressly cautioned in at least two instances against construing anything said in the Immigration and Nationality Act as an expression by Congress that the Communist Party does not advocate the overthrow of the Government by force and violence (secs. 212 (a) (28) (C) and 241 (a) (6) (C)).
The codification was not preceded by any judicial pronouncements questioning the constitutionality or correctness of the finding by Congress, and we know of no demand by legislative or administrative bodies indicating the desirability of changing the congressional action. It proved an effective aid to deportation of subversives. There was no reason for a change.
There is no evidence that Congress desired a change or intended it. We do not believe that any change was made in the codification. Proof that one was a member of the Communist Party remained a satisfactory basis for finding that the alien was a member of an organization that sought the overthrow of the Government by force and violence. It made no change as to those who sought entry or became members after the codification. We can see no reason why a change would be desired for those who were Communist Party members before they came to the United States and entered before the codification.
An illustration of the incongruous result which would follow if counsel's interpretation were accepted supports our conclusion. Under the present act, an alien who had been a member of the Communist Party of U.S.S.R. in 1947 can be barred from entry without any proof as to the aims of the Communist Party of U.S.S.R. (sec. 212 (a) (28) (C)). Now, if the same individual had succeeded in entering the United States in 1948 and had been apprehended after the Immigration and Nationality Act became effective, the charge in deportation proceedings would be based on the fact that at time of entry he was inadmissible as one who had been a member of an organization seeking overthrow of the Government by force and violence (sec. 241 (a) (1) and act of October 16, 1918, as amended, supra).
Under counsel's contention, the proof which would be sufficient to bar the alien today applying for admission, would not be sufficient to deport him, even though membership during the same period in the same organization was involved. It would, under counsel's contention, become necessary for the Government to produce expert witnesses and documentary evidence of the nature of the Communist Party of U.S.S.R. in the second case. We do not find in the general language of the catchall clause, relating as it does to many different classes of aliens, the command of Congress that such a paradoxical situation be created. In the absence of express language requiring the construction that counsel requests, we will not assume it. This would be our position even if Congress had not expressly stated that nothing in the codification was to be taken as indicating the Communist Party did not advocate the overthrow of this Government by force and violence.
Of course, the fact that one proceeding was in exclusion and the other in deportation could not justify this difference because even in a deportation proceeding under the Immigration and Nationality Act brought against one who had become a member after his entry, mere proof of membership would be sufficient (sec. 241 (a) (6) (C)).
In brief summary, we state that we do not seek to administratively amend the law existing at the time of respondent's entry. We find on the basis of the proof supplied in this case that the conditions required by that law exist and that the alien was inadmissible at the time of entry by reason of membership in an organization seeking the overthrow of this Government by force and violence.
Moreover, if the basis on 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 (H. Rept. 2290, 71st Cong., 3d sess., pp. 15, 65, 66; H. Rept. 153, 74th Cong., 1st sess., pp. 12, 21; S. Rept. 2230, 81st Cong., 2d sess., pp. 10-12, 16, 24-25; Skeffington v. Katzeff, 277 Fed. 129 (C.C.A. 1, 1922) (covering the period 1919-20); Antolish v. Paul, 283 Fed. 957 (C.C.A. 7, 1922) (early 1920's); Ungar v. Seaman, 4 F. (2d) 80, 81 (C.C.A. 8, 1924) (1912-20); Ex parte Jurgans, 17 F. (2d) 507, 511 (D. Minn., 1927) (early 1920's); Ex parte Vilarino, 50 F. (2d) 582 (C.C.A. 9, 1931) (1926-29); Murdoch v. Clark, 53 F. (2d) 155 (C.C.A. 1, 1931) (the 1920's); United States ex rel. Yokinen v. Commissioner of Immigration, 57 F. (2d) 707 (C.C.A. 2, 1932) (the late 1920's); Kjar v. Doak, 61 F. (2d) 566 (C.C.A. 7, 1932) (the late 1920's); In re Saderquist, 11 F. Supp. 525 (D. Maine), aff'd 83 F. (2d) 890 (C.C.A. 1, 1935) (1930-35); United States ex rel. Harisiades v. Shaughnessy, 187 F. (2d) 137 (C.A. 2, 1951) (1925-39), aff'd 342 U.S. 580 (1952); United States v. Dennis, 183 F. (2d) 201 (C.A. 2, 1950) (1945-48), aff'd 341 U.S. 494 (1950); Quattrone v. Nicolls, 210 F. (2d) 513 (C.A. 5, 1954); Martinez v. Neelly, 197 F. (2d) 462 (C.A. 7, 1952), aff'd 344 U.S. 916 (1953); Block v. Hirsh, 256 U.S. 135 (1921); American Communications Association v. Douds, 339 U.S. 382 (1950); Carlson v. Landon, supra; Adler v. Board of Education, 342 U.S. 485 (1952); Heikkila v. Barber, 345 U.S. 229 (1953); Galvan v. Press, supra). (See Milasinovich v. The Serbian Progressive Club, 369 Pa. 26, and Albert Appeal, 372 Pa. 13, in which the Supreme Court of Pennsylvania held that judicial notice may be taken of the fact that the Communist Party advocates the overthrow of the Government by force. In the latter case, the court stated that ( 372 Pa. at 20-21):
It would seem almost an absurdity of legal procedure to continue to submit to various juries in individual cases a question so readily and authoritatively determinable from the mere perusal of the writings of the acknowledged founders and protagonists of the Communist movement * * *.)
Constitutional objections are not a proper matter for our consideration ( Matter of L----, A-4942707, 4 IN Dec. 556). The motion will be denied.
Order: It is ordered that the motion be and the same is hereby denied.