A-5098547
Decided by Board November 23, 1951
"Subversive" — Member of Communist Party of the United States after entry — Act of October 16, 1918, as amended by the Internal Security Act of 1950 — Fact of such membership, stipulated before Internal Security Act of 1950 came into effect — Evidence — Fair hearing — Lodging of additional charge. (See 4 IN Dec. 556.)
When fact of membership in the Communist Party of the United States was stipulated by the respondent, the Internal Security Act of 1950 had not come into effect, and counsel now asserts this stipulation would not have been entered into had such act then been in effect; but such stipulation was not entered into under a mistake of law or of fact and could not be claimed to have been inadvertently signed, wherefore he cannot be relieved from it, under the circumstances in this case.
CHARGES:
Warrant: Act of October 16, 1918, as amended — Member of an organization, association, society, or group that advises, advocates, or teaches the overthrow, by force or violence, of the Government of the United States.
Act of October 16, 1918, as amended — Member of an organization, association, society, or group that writes, circulates, distributes, prints, publishes, or displays any written or printed matter, advising, advocating, or teaching the overthrow, by force or violence, of the Government of the United States.
Lodged: Act of October 16, 1918, as amended — Member of the Communist Party of the United States.
BEFORE THE BOARD
Discussion: Counsel and his associates argued this case with another, the Matter of R---- L----, A-4942707. The cases present some similar legal questions but different facts.
Respondent is a native and formerly a citizen of Russia. He last entered the United States at New York on June 23, 1913. He was admitted for permanent residence, and has been at all times since a resident of the United States. The hearing officer recommended that respondent be deported from the United States pursuant to law on the lodged charge, and the Assistant Commissioner affirmed that order. In the Matter of R---- L----, A-4942707, 4 IN Dec. 556, we have already discussed our views and findings as to counsel's arguments on the constitutionality of the Internal Security Act of 1950 and the Administrative Procedure Act, the rules and regulations under which the hearings were held, particularly relating to the regulations with regard to the lodging of the new charges during the course of the hearing. It is not necessary for us to repeat our conclusions here.
The principal difference between this and the L---- case is that in this case counsel and the alien stipulated that he was a member of the Communist Party of the United States from about 1919 to about 1938, at which time he disaffiliated and rejoined sometime in 1947. They stipulated that he was a member during the entire year of 1948 and down to the present time, that when he rejoined the Communist Party of the United States in 1947 he became the financial secretary of the Hamtramck, Michigan section of the Communist Party of the United States, that he was financial secretary of that section of the Communist Party from shortly after his rejoining in 1947 up to the time of the September 19, 1950, hearing, and at the time of the hearing was still financial secretary of his section of the party. Before entering into this stipulation, counsel made the following statement to the hearing examiner:
Mr. BROWN. It is our contention that membership alone in the Communist Party would not constitutionally warrant deportation proceedings against this respondent. That question has — the constitutionality of that question has never heretofore been decided on, solely on that point. There is now pending appeal to the United States Supreme Court in re Peter Harisiades, in which that question is raised and will ultimately be resolved. In the interests of time-saving and energy-saving. I respectfully submit — request an adjournment until the determination of that case.
Hearing Examiner LOMBARDINI. Your request____
Mr. BROWN. Because, if that case — if the Supreme Court should state that — that membership alone without overt acts, or without advocating overt acts, is still deportable, then there is no defense that this agent has.
In oral argument before this Board, counsel stated that it was in order to prevent the introduction of the transcript of an earlier statement by the alien to an immigrant inspector as an exhibit in the case that counsel had entered into this stipulation. There is no such statement in the record of the hearing. Counsel requests that they be relieved from the effect of this stipulation, because of the passage of the Internal Security Act of 1950. They now claim that they would not have entered into such a stipulation had that act been in effect. We do not believe that it can be said that this was a stipulation which was entered into under a mistake of law or fact, because all three counsel involved in this case were aware that this Board and the courts have held in many cases that the Communist Party is an organization, association, society, or group that believes in, advises, advocates, and teaches the overthrow by force and violence of the Government of the United States, and that any alien who has been a member of that organization subsequent to entry is deportable from the United States. Counsel was aware when he agreed to stipulation that it was within the power of the Immigration and Naturalization Service to prove the alien's membership in the Communist Party. The passage of the section of the Internal Security Act of 1950 applicable here merely relieved the Government of the necessity of proving the nature of the Communist Party in each proceeding. Counsel cannot now claim that the stipulation was inadvertently signed and that on that ground he is entitled to relief from it.
Counsel protests the questioning of respondent on May 25, 1947. The statement respondent made at that time does not appear as an exhibit in the record, and none of the admissions of respondent during that investigation were made the basis of the order of deportation. At the time that statement was taken, the inspector made the following preliminary statement to respondent:
I want to tell you that I am an inspector in the employ of the United States Immigration and Naturalization Service, and so being, I am empowered by law to administer oaths and accept testimony relative to your status under the Immigration, Nationality, and Alien Registration laws. I want you to understand that any statement you make at this time may be used against you or any other persons in any proceedings the Government of the United States may decide to institute and that anything you may say must be true and correct especially for that reason and also must be voluntary.
The alien was then asked if he had any objection to making a statement under oath, and he replied that he did not. The regulations do not provide that it is necessary to inform an alien that he is entitled to counsel during a preliminary investigation. The purpose of this investigation is to discover whether or not a warrant should be issued. Counsel's brief devotes a great deal of attention to this preliminary statement of respondent's. The order of deportation is not based on that statement, but on the stipulation, which was entered into by counsel, as we have already pointed out, as a time-saving device.
Counsel quotes from the opinion of the circuit court of appeals in Zydok v. Butterfield, 187 F. (2d) 802 (C.A. 6, March 1951) litigation involving respondent. Following passage of the Internal Security Act, alien was taken into custody by the Immigration and Naturalization Service. Only the bail issue was involved in that proceeding — whether or not the Attorney General had abused his discretion under section 23 of the Internal Security Act of 1950 in causing appellant to be held without bail. The court found that there was no reasonable ground to indicate that if this alien were admitted to bail that he would forfeit it. The circuit court reversed the order of the district court dismissing the writ of habeas corpus. So far as we can discover from the opinion of the court, the record of respondent's hearings in the deportation proceeding was not before the court. The court merely stated that a deportation proceeding against the alien had begun in 1949 and that there was no indication of an early termination thereof. The finding of the court was not determinative of the issues here involved. Counsel indicated in argument before us that following the circuit court's opinion the alien was released from detention.
It is our opinion that the alien was given a fair hearing in accordance with the regulations. He is admittedly a former member of the Communist Party and is mandatorily deportable under the Internal Security Act of 1950.
Order: It is ordered that the appeal be and the same is hereby dismissed.