MATTER OP G—Q---
In DEPORTATION Proceedings
A-5176004
Deckled by Board August 1, 1961
Deportability—Communist Party membership—Materiality of personal advocacy or awareness of Party doctrines.
(1) Ruling in Galvan v. Press, 347 U.S. 522 (1954), that support or knowledge or communist rarty's advocacy of force ana violence was not intended to be prerequisite to deportation remains unimpaired by subsequent
judicial decisions. However, inquiry into whether an alien personally advocated violence may be material if it is part of an effort by the alien to
show that his membership was accidental, artificial, or unconsciously in
appearance only, or within Rowoldt.
(2) Respondent's motion to reopen deportation proceedings for purpose of
testifying on issue of personal advocacy and belief in Party's doctrines of
force and violence is denied whete record reflects that respondent refused
to testify on claim of privilege at six deportation hearings in 1956, that he
offered no testimony or evidence at previous reopening obtained at his instance to allow him to establish he was within Rowoldt, and there is uncontrad icted testimony to prove that his membership in the Communist
Party was both voluntary and Meaningful.
DEPORTABLE: Act of 1952—Section 241(a) (6) [8 U.S.C. 1251 (a ) (6)1—After
entry, member of a section, subsidiary, branch, affiliate, or
subdivision of the Communist Party of the United States.
BEFORE THE BOARL
DISCUSSION: This is a motion for reopening of proceedings.
It follows judicial review affirming the finding of cleportability entered by this Board on May 18, 7959. The motion will be denied.
Tho respondent, a 41 your old male, a native and citizen of Mox
ico, has been a resident of the United States since 1920. We found
he was a member of the Communist Party from about 1948 to at
least the end of 1950. At the six deportation hearings held from
April 1956 to July 1956, the respondent refused to testify on a claim
of privilege. At a hearing reopened on his motion so that he could
testify, the respondent offered no evidence on the ground that the
Service had failed to make out a case. Reopening is now requested
so that the respondent may testify that he did not advocate the
376
overthrow of the Government by force and violence and that he
had no knowledge that the Communist Party advocated the overthrow of the Government by force and violence. It is stated that
such testimony was not offered previously because it was not known
that it was admissible and material.
The Service opposes the motion contending that the respondent
has had since 1953 to present the facts and has refused to avail himself of the many opportunities given, including one which was
granted to him at his request after deportation had been ordered,
and that the offer of proof neither contests the existence of membership nor goes to the question of its meaningfulness. The Service, quoting Jimenez v. Barber, 252 F.2d 550, contends that the respondent must take the consequences of the course of defense which
ha pursued and points to the threat which is offered the deportation
process if an alien who has been ordered deported and who has
secured administrative and judicial review can upset deportation
proceedings by asserting his willingness to testify after having refused when he had an opportunity.
The respondent was ordered deported on the basis of his membership in the Communist Party under a statute whose scheme was
explained in Galvan v. Press, 347 U.S. 522, where the Supreme
Court, which had been urged to construe the statute "as providing
for the deportation only of those aliens who joined the Communist
Party fully conscious of its advocacy of violence, and who, by so
joining, thereby committed themselves to this violent purpose,"
ruled that the law "… appears to preclude an interpretation
which would require proof that an alien had joined the Communist
Party with full appreciation of its purposes and program." The
Supreme Court stated that "… it … did not exempt 'innocent'
members of the Communist Party." The conclusion of the Supreme
Court was "that support, or even demonstrated knowledge, of the
Communist Party's advocacy of violence was not intended to be a
prerequisite to deportation. It is enough that the alien joined the
Party, aware that he was joining an organization known as the
Communist Party which operates as a distinct and active political
organization, and that he did s6 of his own free will."
Shortly after the decision in the respondent's case, Raw,"ldt v.
Perfecto, 355 U.S. 115, was decided. The Service had sought the
deportation of Rowoldt who had been a member of the Communist
Party for about a year in 1935. Uncontradicte.d evidence in the
record revealed that Rownldt joined at a time when he had no job
and was concerned primarily with obtaining food, clothing and
shelter. The Supreme Court held that under the facts presented,
Rowoldt's affiliation with the Communist Party may well have been
wholly devoid of any political implications and was, therefore, not
377
"meaningful." After Rowoldt was decided, we received a motion
from the respondent, couched in similar terms to the present motion, asking for reconsideration of the case (which we denied) and
asking for "… the right to offer testimony to show that he in
fact can place himself within the framework of the rule laid down
in Rowoldt, which to his knowledge would have been to no avail
prior to the decision of the Supreme Court *." We reopened
the proceedings to give the respondent an opportunity to bring
himself within the framework of Rowoldt. At the reopened hearing he offered no evidence and refused to testify claiming the Service had failed to make a case.
After the respondent was again found deportable by this Board,
he filed a complaint for judicial review. The district court dismissed the complaint. Appeal to the circuit court was dismissed
on December 8, 1960 (Gastelum-Quinories v. Rogers, 286 F.2d 824,
C.A. D.C.). This motion was filed almost five months later (May
4, 1961). It is the respondent's belief that the court of appeals, in
reviewing the administrative proceedings in his case, ruled that
meaningful association is equivalent to advocacy of the overthrow
of the Government by force and violence; that the court of appeals
believed that the respondent, had been given an opportunity to testify with regard to his personal advocacy, although the respondent
did not have the opportunity for had he offered to testify on this
point the special inquiry officer would have ruled it was not material under Galvan; and that the respondent must now be given an
opportunity to testify on the issue of belief in force and violence
and the Party's advocacy of forceful overthrow.
It requires a far stretch of the imagination to interpret Gastelum
Quinones as modifying either GaLvan, or Rowoldt, making deportation dependent upon proof that the alien or the Party advocated
the forceful overthrow of the Government. The circuit court quoted
language from Galivan setting forth the rule that personal advocacy
of violence was not a prerequisite to deportation, and in its own
words stated: "Under the present Act as interpreted by Gal on
actual personal advocacy of the overthrow of the government by
force and violence is not a prerequisite to deportation; it is enough
for the Government to show membership in the Communist Party."
Bearing in mind that the Supreme Court rejected as a defense
Galvin's claim that "he was unaware of the Party's true purposes
and program" and bearing in mind the reaffirmation of Gahan by
the Supreme Court from time to time, it is our belief that an inquiry into whether an alien personally advocated violence is not
material in a deportation proceeding unless it is part of an effort
by the alien to show that his membership was of a nature described
in Galvan as accidental, artificial, or unconsciously in appearance
only.
878
In CaBtolum-Quinones the circuit court speaks of permitting an
alien to rebut a presumption of the espousal of the basic tenets of
the Communist Party which arises from the mere fact that the
alien was a member of the Party. Because of the reliance placed
by the circuit court upon Gay= and Rowoldt, and its own statement of the meaning of Galvan, we think that this language concerning the rebutting of the presumption means only that it is
proper to show nominal membership as a defense; i.e., as in Ga
membership that is involuntary, accidental, artificial, or unconciously in appearance only ; or as in Rowoldt, membership for the
purpose of obtaining food and other necessities by one who presumably would just as well have joined the Salvation Army or one
of the major political parties if he Could thereby have obtained
his necessities.
Counsel believes that &Wee v. United Suttee, 260 F.2d 21 (CA. 4,
1958), requires membership to be more than normal before it can
be a ground of deportation. Counsel is of the belief that to be
morn than a normal member one must have devoted all or a substantial part of his time and efforts to the Party. Scales involved
the Smith Act under which to obtain a conviction it is necessary
to show the existence of active and knowing membership held with
the intent of furthering the proscribed purposes of the Party. This
is unlike the deportation law which requires the establishment of
only voluntary membership in an organization which the alien
understood was the political organization known as the Communist
Party. In Scales, the Supreme Court stated that it had interpreted
deportation statutes as requiring "more than the mere voluntary
listing of a person's name on Party rolls." Gah,an is cited as authority. To us, the statement in Scales indicates no more than the
fact that a person who has been a member is not precluded from
explaining that his membership was artificial. In the instant case,
there is uncontradicted testimony to show that a voluntary meaningful membership existed.
The respondent has been given an opportunity to show that his
membership was nominal. He refused to present evidence on this
issue. There is no reason to believe that his membership was
nominal. Execution of the deportation order entered upon the
adminictrative proceedings started in March 1956 should not encounter further delay.
ORDER: It• is ordered that the motion be and the same is hereby
denied.
379
