IN THE MATTER OF D

In DEPORTATION Proceedings

A-5390614

Decided by Board December 26, 1951

"Subversive," deportability-After entry, voluntary member of International Workers' Order-After entry, voluntarily affiliated with Communist Party of the United States of America-Act of 1918, as amended by Acts of 1920 and 1940-Evidence.

(1) An alien, who last entered here in 1915, was found to be a voluntary member at least from 1935 to 1950 of an organization (i. e., of the International Workers' Order) which circulated, etc., printed matter advocating, etc., the overthrow by force and violence of the Government of the United States, and hence subject to deportation under the act of October 16, 1918, as amended by the acts of June 5, 1920, and June 28, 1940.

(2) The evidence established that the International Workers' Order was voluntarily affiliated from its inception in 1930 to at least 1939 with the Communist Party of the United States of America.

(3) Based on the evidence of this alien's active membership in the International Workers' Order (which included holding office in and organizing branches of this order), it was found that he was voluntarily affiliated with the Communist Party of the United States of America from at least 1935 to at least 1939, and hence subject to deportation under the act of October 16, 1918, as amended by the acts of June 5, 1920, and June 28, 1940. CHARGES:

Warrant: Act of 1918-After entry he was a member of the following class, set forth in section 1 of said act: An alien who is a member of an organization, association, society and group, to wit: International Workers' Order, that writes, circulates, distributes, prints, publishes and displays, and causes to be written, circulated, distributed, printed, published, and displayed, and has in its possession for the purpose of circulation, distribution, publication, issue, and display, any written and printed matter advising, advocating, and teaching the overthrow, by force and violence, of the Government of the United States.

Act of 1918-After entry he was a member of the following class, set forth in section 1 of said act: An alien who is affiliated with an organization, association, society, and group, to wit: Communist Party of the United States, that believes in, advises, advocates, and

teaches the overthrow, by force and violence, of the Government of the United States.

BEFORE THE BOARD

Discussion: The case comes forward on appeal from the decision dated June 18, 1951, of the Assistant Commissioner ordering the respondent deported on the charges stated in the warrant of arrest modified as follows:

The act approved October 16, 1918,' as amended, in that he was, after entry, a member of the following class, set forth in section 1 of said act: An alien who was a member of an organization, to wit: The International Workers' Order, that circulated, distributed, and displayed and caused to be circulated, distributed, and displayed, and had in its possession for the purpose of circulation, distribution, issue, and display printed matter advising, advocating, and teaching the overthrow by force and violence of the Government of the United States.

The act approved October 16, 1918, as amended, in that he was, after entry, a member of the following class, set forth in section 1 of said act: An alien who was affiliated with an organization, to wit: The Communist Party of the United States, that believed in, advised, advocated, and taught the overthrow by force and violence of the Government of the United States.

Upon advice of counsel, the respondent stood mute and failed to testify during these proceedings. Information concerning respondent's personal history had to be obtained by recourse to Government exhibits 3 and 4 consisting of a sworn statement of the respondent made to a Government investigator on March 16, 1950, and a copy of his alien registration form. According to this evidence, the respondent is a stateless alien, a native of the village of Yaholnycia, near Dolyna, Galicia, Western Ukraine, which was located in Austria at the time of his birth on December 21, 1891, who last entered the United States at the port of Detroit, Mich., in November 1915 by ferry from Windsor, Ontario, Canada. Upon the basis of Government evidence which is not seriously controverted, the respondent was employed by the International Workers' Order (hereinafter referred to as the IWO) from 1935 to 1950; was a full-time paid official, the vice president and organizer of the Ukrainian-American Fraternal Union of the International Workers' Order at New York City; was a national committee member of the Ukrainian section of the IWO; and as vice president of the Ukrainian Society had organized 100 other lodges in the Ukrainian Society. At oral argument counsel for the respondent conceded that the respondent was a member of the IWO from 1935 to at least 1947 and also conceded that he was an official holding position of vice president and organizer of the Ukrainian Society, a section of the IWO.

1 40 Stat. 1012, 8 U. S. C. 137.

. Act of June 5, 1920, 41 Stat. 1008, 8 U. S. C. 137; act of June 28, 1940, 54 Stat. 673, 8 U. S. C. 137.

The hearing in this case was commenced on July 11, 1950, before a hearing examiner pursuant to the requirements of the Administrative Procedure Act of June 11, 1946 (5 U. S. C. 1001, et seq.), and regulations promulgated pursuant thereto (8 C. F. R. 151). Counsel for the respondent has attacked the qualifications of the hearing examiner, Mr. W, on the ground that his previous service in various positions with the Immigration and Naturalization Service disqualified him, that he was prejudiced and biased; that his appointment as a hearing examiner was temporary and since he was paid by the Service he lacked that independence and tenure which alone could guarantee the impartiality of the administrative process; that the hearing examiner was not assigned to this case in rotation as required by the Administrative Procedure Act; and that because he is subject to the provisions of Executive Order No. 9835, 12 Federal Register 1935 (also known as the Loyalty Order), and since the charge involved a communist or subversive charge, the hearing examiner could not properly discharge his duties as an impartial arbitrator because he was bound to be under pressure. Several of these charges were renewed by counsel at oral argument. We feel that these charges have been adequately answered by the Assistant Commissioner in his order, and we do not intend to repeat the reasons presented therein. Indeed, if we were to follow counsel's argument to its conclusion, no former member of the Immigration and Naturalization Service who had done investigative work or had participated in the prosecution of any immigration case could hold the position of hearing examiner even though he had never participated in the subject matter of the controversy; and to extend the parallel a bit further, no prosecuting attorney could ever hope to become a judge. There is no allegation on the part of counsel that the hearing examiner in the instant case participated in the investigation or preparation of this case on the part of the Government, and it is difficult to understand how the respondent was prejudiced by his selection. There is no evidence other than mere allegation on the part of counsel that this examiner was selected out of rotation, and it may be presumed that his selection was made in accordance with official and regular procedure. We accordingly conclude that the respondent was accorded a proper hearing under the provisions of the Administrative Procedure Act which at the time of the hearings were applicable to deportation proceedings. (Wong Yang Sung v. McGrath, 339 U. S. 33.)

The Assistant Commissioner has in a lengthy and exhaustive decision come to the same conclusion as the hearing examiner in finding the respondent subject to deportation on the first warrant charge (as modified) and also upon the second charge in the warrant of arrest. In his decision the Assistant Commissioner carefully ex

amined the evidence submitted by the Government to sustain the charges, including the testimony of witnesses, publications and documents, and also considered the arguments of counsel as set forth in his brief. We feel that no purpose would be served in another lengthy and prolonged review and consideration of the evidence, inasmuch as we find ourselves in substantial agreement with the conclusion reached by the Assistant Commissioner. We shall content ourselves with a few pertinent observations and we shall also comment upon the further arguments advanced by counsel for respondent during the course of oral argument.

Counsel offered to stipulate that the respondent is a member of the Communist Party and was willing to have the proceedings proceed upon a basis of the charge of membership in the Communist Party. On the refusal of the Government to accept this stipulation, counsel charged that a justiciable controversy was not involved, but that this was a sham proceeding brought to test a moot question in order to attack the IWO. By these tactics counsel appears to undertake the curious position that the respondent shall be the one who shall dictate to the Government what charge it shall select upon which to try the question of the respondent's deportability. This is to say the least a novel contention. Its novelty appears to be its only virtue, since it is clearly within the sphere of the Government's discretion to opt what charges shall be used against the respondent in the light of the evidence available in the preparation of its case. There can be no doubt that a genuine controversy is present here since the charges in the warrant of arrest laid under section 1 of the act of October 16, 1918, as amended, are predicated upon membership in the IWO, and it is the nature of that organization which is at issue.

Admittedly, the IWO is obstensibly a mutual benefit insurance society, incorporated under the laws of the State of New York in April 1930.3 It offers life insurance, sickness and accident insurance at low rates, and functions through national group societies organized according to national origin or descent. In addition to providing insurance benefits, it also offers certain health, cultural, educational, and recreational interests. However, the purported legitimate objectives of the organization is no bar to an attempt by the Government to pierce the corporate veil of the organization in order to show its true nature as a Communist front or mass organization created by the Communists to do the party's work in the foreign language mass

Of interest is the fact that upon a petition of liquidation and dissolution of the Department of Insurance of the State of New York an order was entered on December 15, 1950, by the supreme court of the State of New York restraining the IWO founding, from transacting any new business, further present business and from disposition of assets except under the joint supervision, control, and signature of the superintendent of insurance.

field. Respondent's membership and role in the IWO is acknowledged and conceded and the nature of the organization has been established by documents and the testimony of witnesses to sustain the charges stated in the warrant of arrest. In the face of voluminous evidence, much of it cumulative, that the IWO was the creature of the Communist Party and that it engaged in the activities proscribed by the act of October 16, 1918, as amended, the respondent remained mute, and counsel produced only one witness, an office manager named R. The function of this witness appears to have been not to furnish any positive testimony in opposition to that adduced by various witnesses for the Government, but to attack the credibility of such witnesses by pointing up inconsistencies in some of their testimony. True, it was shown that the recollection of various witnesses was not perfect in all details and that inconsistencies were present. However, an overwhelming amount of unrefuted evidence fully established the contentions advanced by the Government, and in the face of such damaging testimony and evidence, inferences unfavorable to the respondent can be drawn from his silence and from the failure to produce controverting evidence.

Counsel has complained regarding the admission of certain testimony by witnesses and of certain documents, and the hearing examiner has ruled from consideration in arriving at his decision certain of the evidence adduced at the hearing; and, in addition, the Assistant Commissioner has likewise ignored other evidence which was admitted by the hearing examiner. Even if some evidence was incorrectly admitted, it does not render the hearing unfair or result in a denial of due process. As was stated by Chief Justice Stone in his dissent in which he was joined by Justices Roberts and Frankfurter in the case of Bridges v. Wixon, 326 U. S. 135, 176 (1945):

No principle of law has been better settled than that the technical rules for the exclusion of evidence applicable in trials and courts, particularly the hearsay rule, need not be followed in deportation proceedings more than in other administrative proceedings. (U. S. ex rel. Bilokumsky v. Tod, 267 U. S. 157, 68 L. Ed. 225; U. S. ex rel. Tisi v. Tod, 264 U. S. 133, 68 L. Ed. 591; U. S. ex rel. Vajtauer v. Commissioner of Immigration, 273 U S. 103, 71 L Ed. 563; Consolidated Edison Co. v. National Labor Relations Board, 305 U. S. 197, 229, 230, 83 L. Ed. 126, 140, 1941; Opp Cotton Mills v. Administrator, Wage & Hour Division, 312 U. S. 126, 155, 85 L. Ed. 624, 641.)

The only objections that can be taken to the evidence in such proceedings are not its admissibility, but to its probative value. See Consolidated Co. v. National Labor Relations Board (supra).

The hearing examiner before whom the deportation proceedings were conducted had the opportunity to observe the demeanor of the witnesses and to hear their testimony. He was in the best position to judge for himself the credibility and weight to be attached to their testimony. He has chosen to accept their testimony, and no attack