Interim Decision *1283
MAn.J. K OF PAUL
In DEPORTATION Proceedings
A-5142538
Decided by Board May 14, 1903
Since respondent was represented during the deportation hearing by counsel
who had notice of the existence of pre-hearing statements made by a Government witness but did not request that the statements be made available, he
is not subsequently entitled to the production of the statements.
CHAZGE :
Order: Act of 1952—Section 241(a) (6) [8 U.S.C. 1251(a) (8)3—After entry,
an alien who was a member of the Communist Party of the United
states.
Before us are an appeal from the order of the special inquiry officer
requiring respondent's deportation upon the ground stated above and
a motion for the production of documents. The appeal will be dismissed and the 'notion denied.
On February 4, 1963, the special inqury officer ordered respondent's
deportation upon the charge stated above. The special inquiry officer
found the charge sustained on the basis of the testimony of Service
witness Pikes. The attorney of record became ill; notice of appeal
was filed by a new attorney who thereafter handled the case. In the
notice of appeal deportability was contested on the ground that the
evidence did not support an order of deportation.
A day after the appeal was filed, =nisei filed a motion asking that
the appeal be held in abeyance and that she be furnished with copies
of all statements made by Government witness Pikes to any agency of
the Federal Government. The motion was forwarded to the special
inquiry officer who informed counsel that the record. contained no
copies of statements made by Pikes and that the motion was belated
since the proceedings before him had been completed. This motion
is now before us.
Respondent, a 66-year-old married male, a native and last a citizen
of Ruagift, has resit -led in the United States since his admission for
permanent residence in 1922. The order of deportation is based on the
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Interim Decision 4fr1283
finding that respondent had been a member of the Communist Party
after his entry. Counsel raises four main issues; laches, lack of
credibility, meaningfulness of membership, and nonaccess to
documents.
The special inquiry officer has dealt in great detail with the facts
of record and we shall state no more than is required to understand
the contentions of counsel.
Deportation hearings required three sessions. At the first (April
13, 1959) counsel conceded the accuracy of all findings of fact contained in the order to show cause except the one which charged the
respondent with having been a member of the Communist Party after
entry. The respondent refused to be sworn and testify at this session
or at those which followed.
At the second session (May 19, 1959) the Service produced Abraham
Zide who testified he had attended Communist Party meetings with
respondent from the end of 1946 to about August 1948. At the conclusion of his examination, the Service asked for an adjournment to
arrange for the appearance of another witness. Counsel objected;
when he was overruled he stated that in view of the courtesies which
had been extended to him by the examining officer he would have no
objection to the case going over sine die.
At the third session (November 1, 1962) counsel moved for termination of proceedings on the ground the Government was guilty of
lathes. The motion was overruled. (We believe the special inquiry
officer has adequately discussed this issue.) The testimony of Government witness Fikes was taken at this session.
Fikes testified that he had joined the Communist Party in Birmingham, Alabama, in 1949, that in late 1949 or early 1950, he had gone to
New York where a Communist Party representative arranged that he
stay with the respondent, that he stayed about four weeks, that during
the stay he attended four or five Communist Party meetings held at
the respondent's apartment, that respondent presided at the meetings,
that respondent paid Communist Party dues, and that in discussions
with the witness, respondent admitted that he was a member of the
Communist Party.
Fikes testified that the Stockholm Peace Petition had been one of
the subjects of discussion at the meetings, that on two or three occasions
between 1953 and 1958, he stayed at the respondent's home in New
York, that he last saw respondent in 1957'when he received a donation
for the Communist Party from him, and when in the respondent's
presence and in respondent's apartment, and after the respondent had
helped arrange the meeting, the witness met on Communist Party
matters with Communist Party officials, Silvia Hall and Jim Jackson
(pp. 77-75, 97-98, 104).
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Interim Decision #1283
Pikes admitted, that in completing a United States Army form
which asked for information concerning Communist Party membership, he had lied about membership in the Communist Party (p. 79).
He testified that' e had'een a witness before the grand jury in a case
involving the Mine, Mill and Smelter Workers Union. He stated on
cross-examination that from 1953 to 1958 he had made weekly reports,
some oral and some in writing on Communist Party matters to the
Federal Bureau of Investigation and that some of the reports mentioned respondent (pp. 83-85) . At the hearing, counsel did. not request
production of these reports, nor did counsel v...sk for a continuation
of the hearing to enable him to determine whether material existed
which would be of use in cross-examining Pikes.
It is contended that Pikes' testimony is lacking in probity and
reasonableness. Counsel contends that Pikes' testimony that he attended Communist Party meetings at respondent's home strains
credulity because the Party's concern with membership exposure
would have made it unlikely that a nonmember of a Communist Party
would have been invited to attend Communist Party meetings. We
find no merit in this contention. There is no evidence in the record
that a Communist Party member who had moved from the area where
his unit was located and who presumably would be away from that area
for some time would not have been permitted to attend. meetings of
other Communist Party units. On the contrary, it appears to us most
likely that arrangements would have been made to continue Pikes
under the direction and discipline of the Communist Party by requiring him to attend a unit in the place where he found himself.
Counsel contends that meetings at respondent's home were meetings
of members of a furniture workers union who were interested in union
problems. Pikes was a knowledgeable member of the Communist
Party : he had attended a Communist Party school, he had collected
Communist Party dues, he had been the chairman of the Communist
Party unit to which he had belonged in Birmingham, Alabama, he was
the liaison man between the Communist Party and the Mine, Mill and
Smelter Workers Union unit there, he was a member of the Southern
Regional Section of the Communist Party and was sent by the Communist Party of Alabama to New York to represent them at meetings.
Pikes testified that the meetings were Communist Party meetings
composed of persons who were furniture workers; that Communist
Party literature was distributed; that Communist Party dues were
collected.; that meetings would be stopped at the prospect of a person
not a member of the Party coming to the apartment (p. 60) ; and that
the respondent had told him that he was attempting to recruit furniture workers for the Communist Party (p_ 65). The witness knew
that there was a rank and file committee of furniture workers union
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Interim Decision #1283
(p. 99) ; he knew that the meetings he attended at respondent's home
were not meetings of the rank and file committee (p. 100) ; and he
identified the meeting as Communist Party meetings, although he was
aware that at the meetings there was discussion of problems confronting the furniture workers union (pp. 103,104) .
Counsel contends that Pikes' description of what occurred at the
Communist Party meetings he attended is so lacking in details that
what is described is nothing but the general procedure at any Communist Party club meetings, and could be used by Pikes to place himself at any Communist Party meeting he desired to testify about.
The contention is without merit. Pikes testified in 1962 about meetings which had occurred some 12 years previously. He knew they
were Communist Party meetings; he placed the respondent at these
meetings; he stated that the respondent's wife would check on persons
coining to determine if they were communists and eligible to attend
the meeting. Neither of the persons specifically mentioned contradicted this testimony. It is understandable that the specific details of
matters handled at these meetings cannot be given at this date. The
special inquiry officer who had the opportunity to observe Pikes testify,
found him credible. After careful review of the record we find the
witness credible, and accept his account of attendance at Communist
Party meetings with the respondent.
Pikes testified that one of the items considered at the Communist
Party meetings in respondent's apartment was the Stockholm Peace
Petition. Counsel drawing upon matter not in the record contends
that the petition could not have been discussed at these meetings which
Fikes stated occurred in late 1949 or early 1950 because the Stockholm
Peace Appeal was first passed in March 1950 and circularization of
petitions started at the end of May or beginning of June 1950. Counsel has not asked for a reopening of proceedings to cross-examine the
witness on the basis of this information. For the sake of argument we
shall assume that the facts alleged by counsel concerning the petition
could be established at the hearing. Since the witness revealed his
uncertainty about the exact period of time that he lived with the respondent, placing it as late 1949 or early 1950, it is not significant that
he could have been in error a month or two concerning the period he
spent with the respondent. In any event, discussions which may
have taken place in April to June 1950 could well fall within Fikes'
testimony that the meetings could have taken place in early 1950. In
view of this fact and noting that counsel does not request reopening of
proceedings to cross-examine Pikes on this matter and give him a
chance to explain the conflict if any, we do not believe that Pikes' credibility is lessened.
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Interim Decision #1283
Counsel contends that the respondent, a person of mature years,
would not have divulged Communist Party membership to Fikes, then
a youth. There would appear to be no reason for concealing the fact
of membership if Pikes was considered a proper person to invite to the
Communist Party meetings in respondent's home.
Counsel takes issue with Pikes' designation of a social affair as a
closed one on the ground the record clearly establishes that admission
was open to anyone who paid the admission price. Pikes' testimony
is that the dance was open only to individuals who were members of
the Party, even though tickets were sold (pp. 66-57, 94-96). We do
not find it clearly established the meeting was open to the general
public. Fikes denied that it was so open.
Counsel contends the Service has failed to carry its burden of proof
that respondent was a member of the Communist Party and that
membership was meaningful. We believe that the fact of membership
is established by the testimony of Pikes. As to meaningfulness, Pikes'
testimony—that the respondent acted as chairman at meetings, that
unwanted people would have been prevented from attending, that he
attempted to recruit people for the Communist Party (p. 65) and
that the respondent with his wife attended a special meeting at which
Pikes made a report on activities of the Party for the South, and that
respondent was active in arranging the meeting (p. 74)—reveals• more
than a nominal membership. The appeal will be dismissed.
Counsel requests that if the appeal is not sustained, that his motion
be granted. The motion is not for reopening of proceedings but that
respondent be furnished with copies of statements, memoranda and
reports made by Pikes to the Service and other Federal agencies relating to the respondent. In particular all reports relating to the
respondent's whereabouts in 1949, 1950 and 1957 are requested. At
oral argument, counsel stated that she would be satisfied if the information was made available to the special inquiry officer presumably
for disposition in the spirit of 18 U.S.C. 3500.
The request for reports relating to the whereabouts of Fikes is occasioned by the fact that Pikes testified, at the deportation hearing,
that late in 1949 or early 1950 (pp. 52, 57, 67,102) he spent four weeks
with respondent in New York, and that this testimony is in conflict
with testimony counsel now presents which shows that at a trial in
with
November 1959 in Denver, Pikes testified that from about the summer
or fall of 1949 until about the fall of 1950 he had been a member of
the Communist Party club in Birmingham, Alabama, and had apparently spent his time in Birmingham during this period. Counsel also
cites from the report of an FBI agent on the same trial that Pikes
had informed him that ho came to Birmingham in 1950 and joined the
Communist Party there and counsel contrasts this with Pikes' testi-
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Interim Decision #1283
mony at the deportation hearing that he came to New York City in
late 1949 or early 1950 and remained until January 1951 at which
time he returned to Birmingham and entered the United States Army.
Counsel has not requested the right to cross-examine the witness
on either of these matters. On this record we do not find that a conflict
of a serious nature exists. At the deportation hearing, Fikes testified that he remained in Birmingham, Alabama, to late 1949 or early
1950; the transcript of trial testimony merely reveals that it was
around the fall of 1950 that he had left Birmingham rather than early
1950 as his deportation testimony indicates it could have been. But
it is not clear from the trial testimony that Fikes actually left Birmingham late in 1950; the trial testimony reveals that Fikes was uncertain
as to the time he left Birmingham, indicating that it was "sometime in
1950" and that the best he could recall was that it had happened in the
fall. As to the report of the FBI agent that Fikes stated he joined the
Communist Party in 1950 in Birmingham we do not see how Fikes
can be held responsible for the agent's testimony. The FBI report
is in conflict with Fikes' own testimony at the trial that he had joined
the Communist Party in Birmingham in the summer or fall of 1949
and if the quotation furnished by counsel is accurate, it shows the
respondent as having attended a Communist Party school in New York
in 194f (the respondent attended in 1949) .
The request for production of reports made by Fikes concerning
the respondent must be denied. As the Service representative has
pointed out, counsel who represented the respondent at the hearing
had notice of the existence of the report (pp. 83-84) but did not request
that "statements" be made available. Respondent is, therefore, not
entitled to the production of the statements. Ogden v. United States,
303 F. 2d 724,733,9th Cir., and cases cited in footnote 27.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
It is further ordered that the motion for production of documents
be and the same is hereby denied.
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708-156---05-19
