A-1281257
Decided by the Board February 11, 1953
Communist Party of the United States of America; past affiliation as ground of deportability.
An alien, who, although not a member of the Communist Party, was a sympathizer with its principles, who subscribed to and sold the Daily Worker, distributed Communist literature and made speeches in behalf of the Party is deemed to have been affiliated with the Communist Party during 1931-32 and to be deportable under the act of October 16, 1918, as amended by the Internal Security Act of 1950.
CHARGES:
Warrant: Act of October 16, 1918, as amended by act of June 5, 1920 — Member of or affiliated with organization that distributes, etc., printed matter advocating sabotage.
Act of October 16, 1918, as amended by act of June 5, 1920 — Member of or affiliated with organization that advocates or, etc., teaches sabotage.
Act of October 16, 1918, as amended by act of June 5, 1920 — Member of or affiliated with organization that distributes, etc., printed matter advocating or teaching overthrow, by force or violence, of Government of United States.
Act of October 16, 1918, as amended by act of June 5, 1920 — He writes, or knowingly circulates, distributes, displays, etc., printed matter advocating or teaching overthrow, by force or violence, of Government of United States.
Act of October 16, 1918, as amended by act of June 5, 1920 — Member of or affiliated with organization that advocates or teaches overthrow, by force or violence, of Government of United States.
Lodged: Act of October 16, 1918, as amended by act of September 23, 1950 — After entry, alien who was affiliated with Communist Party of United States.
BEFORE THE BOARD
Discussion: Proceedings in this case were instituted in 1932 and the presiding inspector at the first hearing recommended deportation. The board of review, on February 7, 1933, ordered the case reopened for the introduction of evidence to establish the aims and purposes of the Communist Party and, on June 11, 1934, directed the subject's deportation to Rumania on the grounds of affiliation with an organization, association, society or group that believes in, advises, advocates or teaches the overthrow by force or violence of the Government of the United States, or all forms of law. It was then found to be impractical to effect this subject's deportation and, on December 22, 1934, the board of review authorized his voluntary departure under the outstanding order and warrant of deportation. This Board, on March 17, 1948, ordered the proceedings reopened for the introduction of evidence identifying and authenticating certain documents and other evidence regarding the nature of the Communist Party of the United States, on motion of the Immigration and Naturalization Service. The Assistant Commissioner, on February 12, 1952, directed the subject's deportation from the United States, pursuant to law, on the charge lodged at the hearing. The case is now before us on appeal from that order of the Assistant Commissioner, and counsel is here requesting termination of the proceedings.
This record relates to a 67-year-old male alien, a native and last a citizen of Rumania. He first entered the United States on September 25, 1907, and last entered this country in July of 1926. He has denied that he was ever a member of the Communist Party of the United States, and the record does not otherwise establish such membership. The only issue presented in this case is whether, within the contemplation of the applicable provisions of law, the respondent has been affiliated with the Communist Party of the United States.
The respondent made a sworn statement before an officer of the Immigration and Naturalization Service on June 25, 1932, a transcript of which has been entered in evidence in the present proceedings. The respondent then stated that he had been a sympathizer with the Communist principles until a few months previously; that he had been a sympathizer of the Communist Party for a year and a half or two years; that he bought literature and subscribed to the Daily Worker; that he had sold the Daily Worker; and that he had made speeches in Waco, Tex., for the Communist Party. He made another sworn statement before the same official on the following day, and on this occasion stated that he had withdrawn from active participation in the communist affairs and explained, "I haven't yet actually withdrawn although I am trying to do so gradually." He then admitted that in the past he had advocated the principles of Communism, stated that he had accepted contributions with which he bought communist literature, some of which he sold and some of which he gave away; he described this literature as "Pamphlets on communism and official organs of the Communist party, such as the Daily Worker and the Communist." In the present proceedings, the respondent retracted his previous testimony.
The record also includes the transcript of a sworn statement made by one J---- M---- B---- before an officer of the Immigration and Naturalization Service on June 28, 1932. Therein Mr. B---- described respondent's connection with the Communist Party as, "he might be called an unofficial unit organizer for the party." Mr. B---- identified himself as section secretary of the tenth district of the Communist Party, appointed at the Communist convention at Chicago in May of 1932. Excerpts from letters written by J---- M---- B---- were properly introduced and received as evidence in this record. One letter written by him to one A---- W---- B----, district secretary of the Communist Party of Kansas City, Mo., contains the following: "Comrades G---- and other party sympathizers here have turned over to me all of the active and secretarial work of the party here, and from now on request that all correspondence of an official nature from your office and that of Comrade M---- H---- be sent to me here. * * * Dr. G---- is practically bankrupt, but managed to give me $1 for eating expenses. He also gave me 40 cents today for mimeograph stencils for a `Manifesto' to the Mexican workers here." B---- admitted that he wrote the letters and that the G---- referred to in them is the G---- who is the subject of these proceedings. In connection with financial assistance rendered by G----, B---- testified that G---- had helped him out personally and had contributed to various organizers when they were in Waco, Tex. In the instant proceedings, Mr. B---- endeavored to retract his prior statements.
There is evidence in the record consisting of the testimony of witnesses that the alien had in the waiting room of his offices copies of the paper Daily Worker which he sold or gave away. One witness has testified that he bought the Daily Worker from the respondent and that he heard the respondent say that he believes in the overthrow by force and violence of the Government of the United States.
The Assistant Commissioner has directed the respondent's deportation under the act of October 16, 1918, as amended by the act of September 23, 1950, on the ground that he is an alien who was, after entry, affiliated with the Communist Party of the United States. That official's order is based on the finding that the respondent was a voluntary affiliate of the Communist Party of the United States during at least 1931 and 1932. Counsel contends that the legal requirements for "affiliation," as enunciated by the courts, are completely lacking. For the purposes of the statute under which it is sought to deport this alien, "affiliation" is defined as: "(17) The giving, loaning, or promising of support or of money or any other thing of value for any purpose to any organization shall be conclusively presumed to constitute affiliation therewith; but nothing in this paragraph shall be construed as an exclusive definition of affiliation"; whereas in the cases cited by counsel (footnote 1, supra), the courts were concerned with the definition of "affiliation" prescribed by the act of June 5, 1920 which amended the act of October 16, 1918, and provided as follows: "(2) The giving, loaning or promising of money or anything of value to any organization, association, society, or group, of the character above described shall constitute affiliation therewith; but nothing in this paragraph shall be taken as an exclusive definition of advising, advocacy, teaching, or affiliation." Examination of those amendments shows that the most recent definition broadened the prior one by adding the word "support." That appears to be the only substantive change of concern to us in our present consideration.
United States ex rel. Kettunen v. Reimer, 79 F.(2d) 315; and Bridges v. Wixon, 326 U.S. 135 (1945).
Sec. 3(17) of the Subversive Activities Control Act of 1950, title I of the Internal Security Act of 1950, P.L. 831, 81st Cong., ch. 1024, 64 Stat. 987 et seq.
41 Stat. 1008; 8 U.S.C. 137.
40 Stat. 1012; 8 U.S.C. 137.
Sec. 1(e) of the act of October 16, 1918, as amended.
The court in the Reimer case held that "affiliation" is not proved, "* * * unless the alien is shown to have so conducted himself that he has brought about a status of mutual recognition that he may be relied on to cooperate with the Communist Party on a fairly permanent basis. He must be more than merely in sympathy with its aims or even willing to aid it in a casual intermittent way. Affiliation includes an element of dependability upon which the organization can rely which, though not equivalent to membership duty, does rest upon a course of conduct that could not be abruptly ended without giving at least reasonable cause for the charge of a breach of good faith. * * *." In the Wixon case the court held that "affiliation," "* * * means something more than mere cooperation with such an organization, even where the cooperation indicates a consistent course of conduct, but the acts complained of must be of such quality as to indicate an adherence to or a furtherance of the purposes or objectives of the organization and a working alliance to bring them to fruition. * * *."
We have carefully considered the evidence of record in the light of the foregoing judicial pronouncements. So tested, we conclude that the evidence of record clearly and definitely establishes that this respondent was affiliated with the Communist Party of the United States at least during the years 1931 and 1932, within the purview of statutes then under consideration by those courts. A fortiori, he was affiliated with the Communist Party of the United States during those years within the contemplation of the law here applicable.
Finally, counsel's contention that the Government relied, in the main, on the testimony of one witness, which is alleged to be flimsy, is plainly without merit; and as to the constitutional arguments advanced by counsel, it has long been the position of this Board that it is not within our province to pass on such questions.
On the basis of the foregoing, we must dismiss the appeal and will now so order.
Order: It is ordered that the appeal be and the same is hereby dismissed.