A-4690122
Decided by Board September 13, 1949
Membership in a proscribed organization (Communist Party of United States of America) — Deportability — Act of October 16, 1918, as amended by acts of June 5, 1920, and June 28, 1940 — Evidence — Burden of proof — Quantum of proof — Questions of "constitutionality" of statutes involved.
1. The proscribed nature of the Communist Party of the United States of America during a given period may be established by documentary evidence and oral testimony, and it is not necessary for the administrative agency determining deportability under the act of October 16, 1918, as amended, to refine and construe language so as to reach a different result, when in their ordinary sense, statements in many documents of that party in evidence import force and violence.
2. "Past" membership is within the purview of the act of October 16, 1918, as amended (act of June 28, 1940).
3. The "constitutionality" of statutes enacted by Congress is not a matter within the province of the Board of Immigration Appeals to pass upon.
4. Knowledge of the proscribed doctrines by the alien need not be proved.
5. The doctrine of "clear and present danger" does not apply, since the courts have held that the imminence of the changes advocated is not a factor to be considered.
6. The doctrine as to "ex post facto" laws applies to criminal or penal laws and not to deportation statutes.
7. The burden of proof upon the Government (see sec. 23 of the Immigration Act of 1924) in deportation proceedings as to the proscribed nature of the party need not be met by evidence which is "clear, unequivocal, and convincing."
CHARGES:
Act of 1918, as amended — After entry into the United States became a member of and affiliated with an organization which advocated the overthrow by force and violence of the Government of the United States;
Act of 1918, as amended — After entry into the United States became a member of and affiliated with an organization which distributed printed matter which advocated the overthrow by force and violence of the Government of the United States.
BEFORE THE BOARD
Discussion: On February 17, 1949, the Assistant Commissioner found that the respondent was subject to deportation and ordered that he be deported to Germany. The record is before us on appeal from that order.
The statute under which the Assistant Commissioner found the respondent deportable is the act of October 16, 1918, as amended by the acts of June 5, 1920, and June 28, 1940 ( 40 Stat. 1012; 41 Stat. 1008; 54 Stat. 673; 8 U.S.C. 137).
The respondent was born in Munich, Bavaria, Germany, on November 13, 1892. He came to the United States on June 23, 1914, and with the exception of two temporary visits abroad, has resided continuously in this country since that date. He last entered the United States in August 1923 and was readmitted for permanent residence.
It has been stipulated that between 1930 and January 1, 1939, continuously, the respondent was a member of and affiliated with the Communist Party of the United States of America; and that between 1933 and 1935, continuously, he was a member of and affiliated with the Trade Union Unity League.
The presiding inspector and the Assistant Commissioner have found that during the period of the respondent's membership in the Communist Party, it advocated the overthrow of the Government of the United States by force and violence. Although the presiding inspector also found that during the period of the respondent's membership in the Trade Union Unity League, it likewise advocated the overthrow of the Government of the United States by force and violence, the Assistant Commissioner found that the evidence of record was insufficient to warrant a finding that the Trade Union Unity League was an organization which so advocated.
The pertinent parts of the statute involved read as follows:
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 * * * 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 * * *
* * * * * * *
(e) Aliens who are members of or affiliated with any organization, association, society, or group that writes, circulates, distributes, prints, publishes, or displays, or causes to be written, circulated, distributed, printed, published, or displayed, or that has in its possession for the purpose of circulation, distribution, publication, issue, or display, any written or printed matter of the character described in subdivision (d) ["advising, advocating or teaching; (1) the overthrow by force or violence of the Government of the United States."]
SEC. 2. Any alien who was at the time of entering the United States, or has been at any time thereafter, a member of any 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 in the manner provided in the Immigration Act of February 5, 1917. 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. (Act of October 16, 1918, as amended by the acts of June 5, 1920, and June 28, 1940; 40 Stat. 1008; 54 Stat. 673; 8 U.S.C. 137.)
It is not within the province of this Board to pass upon the constitutionality of statutes enacted by Congress. ( Panitz v. District of Columbia, 112 F. (2d) 39, 42; Todd v. Securities and Exchange Commission, 137 F. (2d) 475, 478; Central Nebraska Public Power Irr. Dist. v. Federal Power Commission, 160 F. (2d) 782, 783; Interchangeable Mileage Ticket Investigation, 77 I.C.C. 200, 202; Maritime Assn., Boston Chamber of Commerce v. Ann Arbor R. Co., 95 I.C.C. 539, 542; Telephone and Railroad Depreciation Charges, 118 I.C.C. 295, 325-326; Galveston Commercial Assn. v. Galveston H. S.A. Ry. Co., 128 I.C.C. 349, 378-379; In the Matter of East Ohio Gas Company, 1 F.P.C. 586, 592; Mississippi River Fuel Corporation, 2 F.P.C. 170, 175). We shall, however, comment on the constitutional aspects of the statute's application to the instant proceedings.
It has been contended that as applied to the respondent, the statute is an ex post facto law and hence unconstitutional. This argument is advanced on the grounds that the respondent entered the United States 4 years prior to the enactment of the basic act of 1918 and that the respondent left the Communist Party at least 1 year prior to the enactment of the 1940 amendment.
The argument that an alien may not be deported except in accordance with the laws in existence at the time of his admission has been rejected by the courts time and time again ( Sire v. Berkshire, 185 Fed. 967, 971; Chin Shee v. White, 273 Fed. 801, 804; Chung Yim v. U.S., 78 F. (2d) 43, 45. Ng Fung Ho v. White, 259 U.S. 276, 279-280, 66 L. Ed. 938, 941, 42 S. Ct. 492, 494).
With respect to the act of June 28, 1940, its legislative history shows that it was enacted specifically to include past membership because the Supreme Court had held in Kessler v. Strecker, 307 U.S. 22, 83 L. Ed. 1082, 59 S. Ct. 694, that the act of October 16, 1918, as amended by the act of June 5, 1920, did not provide for the deportation of past members of a proscribed organization. House of Represenatives Report No. 994, Seventy-sixth Congress, first session, 1939, page 6; Senate Report No. 1154, Seventy-sixth Congress, first session, 1939, page 5. We are obliged to give effect to every clause and part of a statute. ( Ginsberg and Sons v. Popkin, 285 U.S. 204, 708, 76 L. Ed. 704, 52 S. Ct. 322). Furthermore, the prohibition against the passage of ex post facto laws applies only to penal or criminal laws ( Johannessen v. U.S., 225 U.S. 227, 56 L. Ed. 1066, 32 S. Ct. 613; Bugajewitz v. Adams, 228 U.S. 585, 57 L. Ed. 978, 33 S. Ct. 607). Although the Supreme Court has stated that deportation may result in the "loss of all that makes life worth living" ( Ng Fung Ho v. White, 259 U.S. 276, 284, 66 L. Ed. 938, 942, 42 S. Ct. 492, and that "it may visit as great a hardship as the deprivation of the right to pursue a vocation or a calling" ( Bridges v. Wixon, 326, U.S. 135, 145, 89 L. Ed. 2013, 2111, 65 S. Ct. 1443) and that "it can be the equivalent of banishment or exile" ( Delgadillo v. Carmichael, October term, 1947, Supreme Court of the United States), it has never construed deportation as punishment or as a penalty so as to bring it within the ex post facto inhibition. On the contrary, the courts have held that the fact that an immigration law may be retrospective in its application to an alien does not make it unconstitutional ( Mahler v. Eby, 264 U.S. 32, 39, 68 L. Ed. 549, 554, 44 S. Ct. 283, 286; U.S. ex rel Lubbers v. Reimer, 22 Fed. Supp. 573). See also Lauria v. U.S., 271 Fed. 261, certiorari denied 257 U.S. 635, 66 L. Ed. 408, 42 S. Ct. 48.
It has been argued that the statute should not be held to apply unless there be proof of knowledge by the alien that the organization advocated force or violence.
In the first place, the statute by its language does not apply only to "knowing membership." It is, therefore, unnecessary to prove knowledge ( Greco v. Haff, 63 F. (2d) 863; In re Saderquist, 11 F. Supp. 525, affirmed Sonquist v. Ward, 83 F. (2d) 890. Secondly, it has been held that membership is sufficient evidence or knowledge of the proscribed doctrines. Skeffington v. Katzeff, 277 Fed. 129, 132; Ex parte Vilarino, 50 F. (2d) 582, 586). Lastly, the evidence in this case, largely advanced by the respondent, shows that he was an active and alert leader among a large group of people. We do not believe that such an individual could have been a member of the Communist Party for 9 years without knowing its nature and aims.
Counsel has argued that the statute should be held to be inapplicable to the instant case because of the absence of evidence of a "clear and present danger."
The principle set forth in Schenck v. U.S., 249 U.S. 47, 52, 63 L. Ed. 470, 473, 39 S. Ct. 247, that freedom of speech may not be abridged unless the activities create "a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent," is inapplicable to these proceedings. The courts have held that the imminence of the changes or other actions advocated is not a factor to be considered ( U.S. ex rel. Georgian v. Uhl, 271 Fed. 676, 677; U.S. ex rel. Abern v. Wallis, 268 Fed. 413, 416. See also Kjar v. Doak, 56 F. (2d) 566, 568; Lopez v. Howe, 259 Fed. 401, 404-405; Turner v. Williams, 194, U.S. 279, 294, 48 L. Ed. 979, 985, 24 S. Ct. 719; Tiaco v. Forbes, 228 U.S. 549, 556-557, 57 L. Ed. 960, 965, 33 S. Ct. 585).
Counsel has also contended that the burden of establishing that the Communist Party advocated the overthrow of the Government of the United States during the period of respondent's membership is upon the Government, and that it must be met by evidence that is "clear, unequivocal and convincing" ( Schneiderman v. U.S., 320 U.S. 118, 125, 87 L. Ed. 1796, 1802, 63 S. Ct. 1333).
Counsel is in error. While the burden of proof is upon the Government, the Schneiderman formula is inapplicable. In the Schneiderman case the court was dealing with a proceeding to set aside a judicial decree of naturalization. Such a proceeding the court held was analogous to the setting aside of a public grant of land for the purpose of which the evidence must be "clear, unequivocal, and convincing." The court arrived at this conclusion because "rights once conferred should not be lightly revoked. And more especially is this true when the rights are precious and when they are conferred by solemn adjudication, as in the situation when citizenship is granted" ( 320 U.S. 118, 125; 87 L. Ed. 1796, 1802).
The criteria applicable to the instant proceedings are entirely different. No prior judicial determination is involved; no attempt is here made to set aside a decree entered into after opportunity to be heard. As a matter of fact, the court made it abundantly clear in the Schneiderman case that had the proceeding before it been other than denaturalization proceedings on the ground of illegality, it might have reached a different result. To quote the court, "We do not say that a reasonable man could not have possibly found, as the district court did, that the Communist Party in 1927 actively urged the overthrow of the Government by force and violence. But that is not the issue here * * * As pointed out before, this is a denaturalization proceeding in which, if the Government is entitled to attack a finding of attachment as we have assumed, the burden rests upon it to prove the alleged lack of attachment by "clear, unequivocal, and convincing evidence" ( 320 U.S. 118, 153, 154, 87 Law Ed. 1796, 1817).
Many documents of the Communist Party were introduced into evidence by stipulation for the purpose of establishing the nature and aims of the Communist Party. We find that they contain such statements as (the Communists) "openly declare that their aims can be attained only by the forcible overthrow of all existing social conditions" ( Communist Manifesto, Ex. 16, p. 44). "The replacement of the bourgeois by the proletariat state is impossible without a violent revolution" ( State and Revolution, Ex. 15, p. 20). "To think that such a revolution can be carried out peacefully * * * means * * * either madness or else an open and gross repudiation of the proletarian revolution" ( Problems of Leninism, Ex. 23, p. 20).
In their ordinary sense the foregoing statements import force and violence. We are not called upon the refine and construe the language so as to reach any different result ( U.S. ex rel. Albern v. Wallis, 268 Fed. 413, 414; Antolish v. Paul, 283 Fed. 957, 959; Kenmotsu v. Nagle, 44 F. (2d) 953, 955, cert. den. 283 U.S. 832, 75 L. Ed. 1444, 51 S. Ct. 365).
The testimony of several persons who had previously testified in other deportation proceedings brought on similar grounds, was also introduced into the record by stipulation. We have carefully considered their testimony as well as all of the documentary evidence. We have carefully reviewed the analyses of the evidence by the presiding inspector and the Assistant Commissioner. We have examined closely all of the contentions of counsel raised in oral argument and by brief. We find on the basis of all of the evidence adduced that during the period of the respondent's membership in the Communist Party of the United States of America, it advocated the overthrow of the Government of the United States by force and violence, and that it distributed printed matter which so advocated ( Matter of H----, 5300756, May 13, 1949; Matter of F----, A-3430058, July 1, 1949; Matter of M----, A-3407165, Aug. 12, 1949). The order of deportation will be affirmed.
Order: It is ordered that the appeal from the decision of the Assistant Commissioner be and the same is hereby dismissed.