1411-8767.
Decided by Board January 28, 1955.
Communist Party of the United States — Affiliation, elements constituting, under the Immigration and Nationality Act — Affidavits of deceased persons — Adverse testimony of wife.
(1) Affiliation with the Communist Party from 1927 to 1930, is established pursuant to section 241 (a) (6) (C) of the Immigration and Nationality Act by evidence showing that the respondent attempted to obtain subscriptions to a Communist newspaper, urged individuals to attend C.P. meetings, attempted to convince several persons of desirability of Communist rule in the United States, distributed C.P. literature, displayed a C.P. election poster during an election campaign, drove an automobile in a C.P. parade, attended a C.P. public rally wearing a C.P. button in his lapel, and carried C.P. literature in his automobile.
(2) Evidence of affiliation as set forth in the preceding paragraph is sufficient to sustain deportability under section 241 (a) (6) (C) of the Immigration and Nationality Act even though the Government has not established the existence of a status of mutual recognition between the respondent and the Communist Party that he could be relied upon to cooperate with the Party on a fairly permanent basis. The "mutual recognition" rule discussed in Bridges v. Wixon, 326 U.S. 135 and Kettunen v. Reimer, 79 F. (2d) 315, is no longer applicable in view of the provisions in section 101 (e) (2) of the Immigration and Nationality Act.
(3) Affidavits made by persons who are now deceased or which were made 25 years ago by persons not able to remember all of the facts are admissible as evidence in administrative proceedings.
(4) The testimony of respondent's wife is admissible in deportation proceedings notwithstanding his claim of privilege.
CHARGES:
Warrant: Act of 1952 — An alien affiliated with the Communist Party of the United States.
BEFORE THE BOARD
Discussion: This is an appeal from the order of the special inquiry officer requiring J----'s deportation on the ground set forth above. Respondent is a 64-year-old male, a native and last a citizen of Poland. He entered for legal residence in 1913 and has been a resident since. In 1928, he was naturalized as a citizen of the United States. In 1933, a decree was entered in a United States District Court in Missouri cancelling the naturalization.
The special inquiry officer found that J---- had been affiliated with the Communist Party in St. Louis, Missouri, from 1928 to 1930 because he had then publicly displayed support for the Communist Party and attempted to convince others to give moral and financial aid to the Communist Party. Counsel contends that the order of deportation is based upon incompetent evidence and the special inquiry officer's erroneous conception of the meaning of the term "affiliation." We find the charge in the warrant of arrest is sustained.
Service in the cancellation proceeding was made upon the respondent by publication. He made no appearance. He stated that he had no knowledge of the proceedings brought against him. Since the decree of the United States District Court recites, among other things, that at the time of naturalization, the alien made false representations concerning his belief in organized government because he was then "a member of and affiliated with an organization and body of persons teaching disbelief in organized government, and disbelief in the Constitution and laws of the United States," we must determine what effect the finding of the court should have on the issue of affiliation before us.
The special inquiry officer found that the decree of the court cancelling naturalization amounted to a judicial determination on the issue of affiliation. The exact meaning of this and the extent to which the special inquiry officer relied upon his belief in arriving at his conclusion that the respondent had been affiliated with the Communist Party is not shown in the record. We do not believe it played a material part in the conclusion at which he arrived because he stated that he found the evidence presented concerning the respondent's activities during the period from 1928 to 1930 clearly established affiliation. However this may be, we rely in no part upon the finding of the court as to the existence of affiliation with the Communist Party. We feel that the judgment of the court is binding as to the fact that the respondent is not a United States citizen by reason of the naturalization proceeding in 1928, but that the judgment should be very narrowly considered in all other respects because respondent was not personally served; he did not appear; and there is no showing that he had knowledge of the existence of the action ( See Restatement of the Law, Judgment, section 74; Cromwell v. County of Sac, 94 U.S. 351; In re Van Buren, 2 Fed. 643, D.C., N.Y.; 50 C.J.S., section 631). Moreover, the question as to affiliation appears to have been an evidentiary fact, not the ultimate fact, to which alone the rule of collateral estoppel by judgment applies ( Bauer v. Watkins, 171 F. (2d) 492, C.A. 2).
We must now determine whether respondent's activities establish that he was affiliated with the Communist Party. The charge against J---- is based upon that portion of the Immigration and Nationality Act which makes deportable
Aliens who are members of or affiliated with (i) the Communist Party of the United States (section 241 (a) (6) (C)).
The act also provides that
The giving, loaning, or promising of support or of money or any other thing of value for any purpose to any organization shall be presumed to constitute affiliation therewith; but nothing in this paragraph shall be construed as an exclusive definition of affiliation (section 101 (e) (2)).
The evidence establishing that respondent cooperated with the Communist Party has been outlined in great detail by the special inquiry officer in his 17 page opinion. Briefly, he found that between 1927 and 1930, respondent attempted to obtain subscriptions to a Communist newspaper; that he urged individuals to attend meetings of the Communist Party; that he attempted to convince several persons of the desirability of Communist rule in the United States and the superiority of Communist over American laws; that in public and in private he passed out Communist Party literature; and that for about two weeks in 1928, during national presidential elections, he displayed an election poster in his living room window facing the main street. This poster bore the Communist emblem and urged individuals to vote for the Communist Party candidate for president. The evidence reveals that J---- had driven an automobile in a Communist Party parade and subsequently attended a Communist Party public rally. On this occasion, he wore a Communist Party button on his lapel, and in the rear of his car was found Communist Party literature.
Concerning the placard in his window, respondent had testified that he had found it in his window and taken it down and destroyed it. Concerning the wearing of a Communist Party button at a May-day parade, he stated that he could not remember the incident. He had further stated that the literature found in his car on that occasion had been thrown in by someone unknown and that his presence at the park where the Communist Party meeting had been held occurred after some persons carrying a crippled man requested him to take the man to the park and that he went there solely because of that reason. When asked concerning membership in the Communist Party or its predecessor, he had stated that he could not remember if he did or did not belong. When asked concerning distribution of handbills urging people to support the Communist Party, he had replied he could not recall whether or not he had done so.
The competency of the evidence relied upon by the special inquiry officer is attacked. Objections were made to the receipt in evidence of ex parte affidavits made by persons now deceased or made some 25 years ago by persons who in some cases could not recall all the facts contained in the affidavits. We know of no regulation, or rule of law, pertaining to administrative proceedings which would prevent the receipt into evidence of the testimony and statements in question. The test in a proceeding of this nature is not directed toward the admissibility of the evidence, but toward its probative value. Even without the equivocation revealed by the respondent in reply to questions concerning his activities in the period from 1928 to 1930, we would find the evidence presented by the Service to be reasonable, substantial and probative (See Matter of M----, A-4904219, 5 IN Dec. 484; Matter of K----, A-5204481, 5 IN Dec. 175). The claim of privilege concerning the testimony by the respondent's "wife," is without merit. The rules of evidence do not apply to an administrative proceeding ( Falsone v. United States, 205 F. (2d) 734, 742, C.A. 5, certiorari denied 346 U.S. 864). Furthermore, the existence of a valid marriage relation is not established. Finally, to a great extent the material matters on which respondent's "wife" testified were matters which the respondent had revealed to others by action or words; it would therefore appear that these matters were not privileged. We find no reason to question any of the evidence introduced by the Government to establish J----'s conduct between 1927 and 1930. After carefully considering all the evidence of record, we find that the acts of support of the Communist Party that we have set forth are established by evidence that is reasonable, substantial and probative.
Counsel argues that under the rule in the case of Bridges v. Wixon, 326 U.S. 135, 89 L. Ed. 2103, affiliation cannot be found. The leading cases on affiliation are United States ex rel. Kettunen v. Reimer, 79 F. (2d) 315 (C.C.A. 2); and Bridges v. Wixon, supra. In Kettunen, the court said there could be no finding of affiliation unless the Government established that the acts of cooperation by the alien were such that the subversive organization could reasonably believe that it could rely upon him. In Bridges, the court quoted with approval the rule set forth in Kettunen, but added something further-the Supreme Court stated that it was necessary to establish that the acts of cooperation were such as to aid the organization in its illegal purposes.
We find Bridges and Kettunen no longer applicable because of important changes now contained in the law. The law then required the deportation of certain aliens —
members of or affiliated with any organization, association or society or group, that believes in, advises, advocates or teaches: (1) the overthrow by force or violence of the Government of the United States.
And the law then also provided
The giving, loaning or promising of money or anything of value to any organization, association, society or group of the character above described (advocating the overthrow of the Government of the United States by force or violence) shall constitute affiliation therewith; but nothing in the paragraph shall be taken as an exclusive definition of * * * affiliation.
In the Bridges case, the law was the Act of October 16, 1918, 40 Stat. 1012, as amended by the Act of June 28, 1940, 54 Stat. 673, c. 439, 8 U.S.C.A. 137, 1942 ed. In the Kettunen case, the law was the Act of October 16, 1918, 40 Stat. 1012, as amended by the Act of June 5, 1920, c. 251, 41 Stat. 1008, 8 U.S.C.A. 137, 1942 ed.
It is important to note that neither Kettunen nor Bridges was charged with the performance of any act which the law specified should be considered an act of affiliation — at that time — the giving of financial support.
Deportation of Kettunen was sought on the ground that he had been affiliated with an organization seeking the overthrow of the Government by force or violence. The Communist Party was found to be such an organization. Kettunen attended a meeting of the Communist Party, filled out an application for membership, and turned it in to the local secretary, and paid an initiation fee. He attended a subsequent meeting of the Communist Party at which time he asked that his application be held in a pending status for the time being. As a result of this, no final action was taken on the application and he never received a membership book or became a member of the Communist Party. The following year he sold newspapers for a bookstore in New York City. Among the newspapers he sold was the Daily Worker, the official organ of the Communist Party. He accounted for the proceeds of the sale of the newspaper to the bookstore and received an agreed part of the proceeds for his work. The bookstore was not connected in any way with the Communist Party and there was no showing that Kettunen dealt with any representative of that organization. Kettunen was found not to have been affiliated. The court stated:
(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 co-operate 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. So tested we cannot agree that there was evidence to establish that this relator was affiliated with the Communist Party. His application for membership would indicate his then sympathy with its aims, but his reconsideration and failure to join shows his unwillingness to let his sympathy control his actions, and there is no proof which shows any mutual recognition that co-operation was to be expected from him.
In Bridges, financial aid, the only act then specifically stated by Congress to constitute affiliation, was not an element. There the Government sought the deportation of Bridges on the ground that he had been affiliated with an organization seeking the overthrow of the Government by force or violence. He was the head of a labor union. His union was not charged with being subversive, but is was found that he had cooperated with an organization which was the creature of an organization seeking the overthrow of the Government by force or violence. The main act of cooperation was the sponsoring of a trade union journal which urged the support of Communist candidates for public office, advised the subscribers to read Communist Party literature and made use of Communist addresses. The law under which deportation was sought provided that the cooperation had to be with an organization seeking the overthrow of the Government of the United States by force or violence. The court ruled that this language meant that only acts which had as their primary purpose the advancement of the unlawful purposes of the organization were acts of affiliation. Since Bridges had shown that his acts of cooperation with the subversive organization were for the purpose of advancing the lawful aims of his own labor union, and since there had been no showing by the Service that the cooperation was for the purpose of advancing the unlawful aims of the proscribed organization, the court held affiliation had not been established.
As we have pointed out, neither Kettunen nor Bridges had been charged with the doing of an act specifically characterized by law as an act of affiliation — such as an act of giving financial aid. Had they been so charged and had proof established that they had performed an act which the statute labeled an act of affiliation, we believe they would have been held deportable as "affiliated" without the necessity of establishing "mutual recognition" or that the act was to advance the unlawful purposes of the subversive group. In support of this belief, we point out that in Bridges, the court said "By the terms of the statute, it [affiliation] includes those who contribute money or anything of value" (p. 143). We find a later court to say "For more than 30 years Congress, in statutes pertaining to the exclusion and expulsion from the United States of aliens, has declared that the giving of money by aliens to certain proscribed organizations constitutes their `affiliation' with such organization" ( Quattrone v. Nicolls, 210 F. (2d) 513, C.A. 1).
Unlike Bridges or Kettunen, the alien here is charged with the commission of an act which Congress stated was to be considered affiliation — support of a subversive organization. The law under which respondent's deportation is sought now provides that in addition to financial aid, support of an organization for any purpose shall be presumed to constitute an affiliation therewith. The term "support" is defined in many ways. The definition which seems most pertinent here is
The congressional committee reports accompanying the legislation which became the Immigration and Nationality Act reveal that the doing of any of the acts set forth in section 101 (e) (2) was intended to result in a rebuttable presumption of affiliation which if not rebutted could be overcome only by proof that the doing of the act was involuntary (H.R. 1365, February 14, 1952; S.R. 1137, January 29, 1952).
3. To uphold (one) by aid or countenance; to take the side of, esp. in a dispute, an election, etc.; as, to support the defendant in an action; also, to uphold or defend as valid, right, just, etc., as a cause or a policy (Webster's New Collegiate Dictionary, p. 853, 1949 ed.).
The term "support" now found in the law eliminates a necessity of establishing the existence of "mutual recognition" — the rule that the organization assisted must have reason to believe that the one assisting it can be depended upon to perform further acts of cooperation. This rule is no longer applicable, for "support" may be a one way affair; those whose cause is championed do not necessarily have to accept the support, and support can conceivably exist without the knowledge of those who are aided. It follows then that as before the Immigration and Nationality Act a finding that financial aid was extended to an organization required, without more, the conclusion that affiliation existed, so now, the finding that "support" for any purpose was extended to the organization requires the conclusion that affiliation existed. The Kettunen rule of mutual recognition no longer applies to a situation where support of the Communist Party is involved.
The Bridges rule that the cooperation must extend to the illegal purposes of the organization is likewise not applicable to proceedings under the Immigration and Nationality Act charging affiliation with the Communist Party, for the reason, at the least, that Congress has now, for the first time, specifically provided that acts of cooperation "for any purpose" with the organization are sufficient to make the alien deportable as an affiliate (section 101 (e) (2), Immigration and Nationality Act, supra).
Furthermore, the Immigration and Nationality Act contains several sections making "affiliation" a ground of deportation. Two subsections of section 241 (a) (6) are pertinent here — subsections (C) and (F). These proceedings are brought under (C) which provides for the deportation of a member or affiliate of the Communist Party. Subsection (F), as in the law considered in the Bridges case, makes deportable an alien who is affiliated with an organization teaching the overthrow of the Government by force or violence. Under (C), the law requires affiliation to be with a named organization, in this case, the Communist Party. Under (F), the law does not name a specific organization, but speaks generally of organizations that seek the overthrow of the Government by force or violence.
As we have stated, subsection (C) makes deportable members or affiliates of the Communist Party. Similar language in the law preceding the Immigration and Nationality Act, insofar as it concerned "members" of the Communist Party, was construed by the Supreme Court to make an alien deportable upon proof that he had voluntarily joined an organization he was aware was the one "known as the Communist Party which operates as a distinct and active political organization." No more was required. It was not necessary to show "support, or even demonstrated knowledge of the Communist Party's advocacy of violence" ( Galvan v. Press, 347 U.S. 522, 98 L. Ed. 911). Since (C) makes members or affiliates equally deportable, it seems reasonable that the rule in the Galvan case should apply equally to both members and affiliates. It follows that proof of support of the political entity known as the Communist Party should without more require an order of deportation (See Quattrone v. Nicholls, supra; Sigurdson v. Landon, 215 F. (2d) 791, C.A. 9).
Section 22 (1) (2) (C), Internal Security Act of 1950, Chapter 1024, 81st Congress, Second session, 64 Stat. 987, 1006 (Section 3 (17) contains definition of affiliation under the 1950 act).
Matter of G----, A-1281257, 5 IN Dec. 112, construed "affiliation" under the Internal Security Act of 1950. Any implication there to the effect that the Bridges and Kettunen rule are applicable under the 1950 act where the alien's affiliation with the Communist Party resulted from giving support or financial aid, is disavowed.
Finally, we believe Bridges differs because there, the alien established that his acts of cooperation with the subversive organization were acts to further the lawful ends of his own union — a nonsubversive group. As we have shown, respondent does not show that he performed any of the acts of cooperation with the Communist Party in furtherance of the aims of any organization other than the Communist Party. He does not urge that his actions in cooperation with the Communist Party were performed in furtherance of any legitimate occupation in which he was then engaged. He either denies their occurence or explains them to be a haphazard result of circumstances.
J----'s actions on behalf of the Communist Party were solely to advance the cause of that party. They reveal a systematic and persistent attempt to champion and obtain champions for the Communist Party. He worked publicly to this end. His actions constitute support of the Communist Party. Affiliation is established.
Counsel refers to the fact that there is no evidence linking J---- with the Communist Party in recent years. This point is not pertinent. Past acts of affiliation or membership are grounds for deportation. The appeal will be dismissed.
Order: It is ordered that the appeal be and the same is hereby dismissed.