PAUL

                                                  Interim Decision #1315

                             ILiwron or PAUL

                  In DEPORTATION Proceedings

                                A-5142538

                 Decided by Board December 27, 1963
To sustain a charge of deportability under section 241(a) (6), Immigration and
  Nationality Act, the ultimate burden of proof rests with, and requires, the
  Government to overcome the possibility that membership in the Communist
  Party was devoid of political implications, since unexplained voluntary
  membership and activity therein over a period of time does not justify an
  inference of awareness of the political nature thereof (Gastaran-Quinones
 v. Kennedy, 

 (June 17, 1963) ).
CHARGE!
  Order : Act of 1952—Section 241(a) (6) [8 U.S.C. 1251(a) (6) (1958) 1-After
           entry, an alien who was a member of the Communist Party of the
           United States.


   Respondent, a 67-year-old married male, a resident of the United
States since his admission for permanent residence in 1922, has been
the subject of two Board orders declaring him deportable on the
charge stated above for membership in the Communist Party in 1950.
The Service, although. of the belief that respondent is deportable,
moves the Board to evaluate the deportation record in light of the
decision in Gastelum-Quinones v. Kennedy, 

 (June 7,
1963). This evaluation is requested so that if decision as to deportability stands and respondent seeks judicial review, the court will have
before it a deportation record which has been administratively considered in light of the latest Supreme Court pronouncement on the
law involved. Counsel agrees that reconsideration is necessary but
contends that the Board's evaluation of the record in light of the
Court's decision should result in termination of proceedings. We
have reconsidered the case and agree that Gastebum-Qwkonee requires
termination of these proceedings.
  Gastelum-Quinones, the petitioner, an alien about 53 years old, a
resident of the United States since 1920, had been ordered deported on
the same charge involved in the instant case, for membership in the
Communist Party during 1949 and 1950. He did not testify at his

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Interim Decision #1315
deportation hearing; two Government witnesses established that he
had paid dues to the Party, that he had attended several Party meetings at the local level, that he had attended a Party convention, and
that he attended a Party unit executive board meeting :
  The Court (5-4) found the petitioner was not deportable. The
Court's opinion reveals that the charge could not be sustained unless
the Service eliminated "the possibility that the alien's joining was
without understanding the nature of the Party as a distinct political
unit," at 473. The Court, examining the record for direct or indirect
proof that the petitioner possessed the requisite awareness, held that
the Service had failed to bear its burden. As to direct proof, the
Court found none to establish that the alien was aware the Party
was a, political organization, or that he was aware of the aims and
purposes of the Party (knowledge of the Party's advocacy or violence
is not required), or that he had knowledge of its international relationships. Indirect proof consisting of the fact that the petitioner
had attended a Party convention, the Court characterized as deficient
in that the Government witness "neither described what petitioner
would have heard at the convention nor suggested that there was any
prerequisite such as officership or executive responsibility to petitioner's attendance, at the convention." As the Government witness'
testimony that at Party conventions "they would have discussions on
what was going on in the Party, and what drives were coming up," the
Court pointed out that the Government witness "did not elaborate
this statement with reference to the convention that petitioner attended
or to what petitioner did there." As to the Government witness'
testimony, that petitioner had been present at a Party executive board
meeting, that he 'supposed' that petitioner was a Party official, and
that attendance was 'probably' limited to officials of the club, the
Court stated that the witness "did not elaborate specifically upon the
significance of petitioner's presence at the one meeting, making only
the general statement that '[a]t this time I cannot say definitely the
purpose [of that meeting] but it was either organizational or to form
an agenda for the regular meetings" (all quotations from note 6, at
477).
  As to the alien's silence, the Court considering the slimness of the
evidence, and the drastic sanction involved, ruled that evidence of
awareness of the political nature must be based on something "More
directly probative than a mere inference based on the alien's 'silence,"
at 479.
   The dissenters concluded that Gastelum-Quinones was deportable.
They pointed out that the evidence established that at conventions
'they would have discussions on what was going on in the Party, and
what drives were coming up,' at 485. The dissenters stated, ibid :

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After regular attendance at Party meetings and functions, and regular financial support for its activities, it is rather fanciful to believe petitioner was
still unaware of the political nature of the Communist Party. It is doubtful
that the meetings were so ineptly run or structured.
  The Service contends that the following facts directly or indirectly
support the finding or inference that the respondent was aware of
the political nature of the Party :
The record establishes that the respondent presided at four or five closed meetings of the communist party at his apartment in 1949 or 1950; that he held frequent conversations with [government witness] Pikes regarding communist party
affairs, during this period; that respondent stated he had been a member "quite
a number of years" (p. 58) ; that the Stockholm Peace Petition as a Party function and device for recruitment of Party members was a subject of discussion ;
that communist party literature was discussed; that the respondent bad tried
to recruit furniture workers for the communist party; that as recently as 1957
the respondent helped arrange a meeting at his apartment with two communist
party officials; that there was a discussion about communist party recruiting;
that respondent was quoted as having stated he was disposed to leave a dinner
at one time because two of the persons present "were deviating from -the Party
Line, and that they were not good Communists" (p. 76) .
   Counsel's contention, apart from attacks upon the credibility of the
Government witness, is in brief that the Government witness' testimony
concerning respondent's Party membership fails to establish that respondent was aware of the political nature of the Party or that respondent was an officer or had executive responsibility of an official
nature. More specifically, counsel states that the record establishes not
that respondent chaired the -four or five Communist Party meetings
at his home in an 'official position. but rather that he was lithe more
than a host in his own home. He is of the belief, that the record is
deficient since it fails to show the substance of the conversations and
the nature of the Party affairs discussed with the Government witness;
that a simple arhnission of membership by respondent does not elucidate the character of the membership; that the concern with the Stockholm Peace Petition does not establish the political nature of the
Party; that the effort to recruit workers to the Party was not shown
to have resulted in success; that respondent's chance presence at a
meeting between the Government witness and officials at which the
Party's work in the North and South were discussed is no more evidence that the respondent was aware of the political nature of the
Party than was Gastelum-Quinones' attendance at a Communist Party
convention; and that respondent's characterization of two individuals
as deviators from the Party line and bad communists was without significance in the absence of evidence as to what the Party line was or
what constituted a bad communist. Counsel further contends the evidence fails to reveal the nature of Party activities or the nature of re-

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Interim Decision #1315
 spondent's work, except perhaps to show that respondent's efforts
were to better working conditions among furniture workers or to carry
 out trade union objectives.
   From this review, it is clear that the charge before us cannot be
sustained unless the Service rules out the possibility that respondent's
 affiliation with the Party was devoid of political implications. We
believe the service has failed to sustain its burden. There is no direct
proof in the record that the respondent was aware of the political
nature of the Party; nor does the evidence justify an inference that
respondent was aware of the Party's political aspect. Evidence that
the respondent presided at four or five meetings in his apartment does
not justify such an inference in absence of proof that respondent
 presided because he had an official obligation to do so , or that matters
relating to the Party's political nature were discussed. Respondent's
presence at the Party meetings and at the meeting with the Party
officials is an aspect of membership which appears to differ little in
quality from Gastelum Quinones' attendances at Party meetings, the
                         -


convention and the unit executive board meeting. The testimony of
the Government witness fails to show participation in Party activities
to such Q. degree that it would be fair to infer that the alien had to know
the political nature of the Party.
   Although we find the charge has not been sustained on this record
we shall not terminate proceedings without affording the Service a
chance to proceed further if it desires. Until Gastelum-Quinones was
decided, the administrative view was that an alien's unexplained voluntary membership and activity in the Communist Party over a period
of time justified an inference that he knew the political nature of the
Party. Until Gastelum 7Qtrimones, we were unaware of the degree of
involvement required before such an inference was justified. Had the
Service been aware of the standard which Gastelsan-Qicinortes exacts,
the Service presentation of its case might have been different. Therefore, if the Service wishes to offer further testimony as to the nature
of the respondent's membership and activity, it may, within three
months from the date of this order apply for reopening of proceedings
to the special inquiry officer who held this hearing or his substitute. If
application for reopening of proceedings is not made within the period,
or authorized extension thereof, these proceedings shall be considered
terminated.
   ORDER: It is ordered that the outstanding order of deportation
be andthe same is hereby withdrawn_
   It is further ordered that if the Service fails to move for reopening
of proceedings within three months from the date of this order or any
authorized extension thereof, the proceedings shall be considered
terminated.
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