Section 212(a) (17) of the Immigration and Nationality Act provides, in pertinent part, that aliens who have been arrested and deported shall be excluded from admission into the United States unless prior to embarkation or reembarkation at a place outside the United States or their attempt to be admitted from foreign contiguous territory, the Attorney General has consented to their applying or reapplying for admission.

The applicant was last admitted to the United States as a nonimmigrant crewman under section 252(a)(1) of the Immigration and Nationality Act, and subsequent thereto did knowingly and willfully violate his status by deserting his vessel and accepting employment ashore in the United States. The applicant has attempted to justify his actions by stating that the salary he earned as a crewman was only $50 a month and that he was not paid for óvertime services performed. The applicant's explanation for his past immigration violation is without merit.

Section 101 (a) (15) (D) defines a crewman as an alien serving in good faith as such in any capacity required for the normal operation and service on board a vessel (other than a fishing vessel having its home port or an operating base in the United States) or aircraft, who intends to land temporarily and solely in pursuit of his calling as a crewman and to depart from the United States with the vessel or aircraft on which he arrived or some other vessel or aircraft.

Section 252(a) of the Immigration and Nationality Act, in part, states that no alien crewman shall be permitted to land temporarily in the United States unless an immigration officer finds upon examination that an alien crewman is a nonimmigrant under section 101 (a) (15) (D), and is otherwise admissible and has agreed to accept the conditions of such permit.

The evidence of record indicates that at the time of admission on September 4, 1958, it was the applicant's intention to desert his vessel and seek employment ashore, and that he deliberately withheld this information from the immigration officer which, if known, would have prevented him from receiving a conditional landing permit. It is concluded from the subject's past violation of the immigration laws that he cannot be considered a bona fide crewman within the meaning of section 101(a)(15) (D) of the act. If he were now to apply for admission to the United States as a crewman in pursuit of his calling, he would on the basis of his past record be denied a conditional landing permit under section 252(a) of the act. Accordingly, no purpose would be served in granting permission to reapply on the basis of the instant application and it will be denied.

Order: It is ordered that the denial of the district director be affirmed.

MATTER OF J

In DEPORTATION Proceedings

A-3322627

Decided by Board February 23, 1960

Evidence Failure to testify-Unfavorable inference proper only after prima facie case of deportability is established.

Unfavorable inference from alien's refusal to testify can be drawn only after a prima facie case of deportability has been established. Record should also reflect that the alien was requested to give testimony, that there was a refusal to testify, and the ground of the refusal.

CHARGE:

Order: Act of 1952-Section 241 (a) (6) [8 U.S.C. 1251(a)(6)]-Member of or affiliated with the Communist Party of the United States after entry.

BEFORE THE BOARD

Discussion: This is an appeal from the order of the special inquiry officer requiring respondent's deportation on the ground stated above.

Respondent, a 55-year-old married female, a native and last a national of Russia, has been a resident of the United States since her admission for permanent residence in 1905. The special inquiry officer found that she had been a member of the Communist Party of the United States at least in the years 1946 through 1949. The appeal will be sustained.

The case was previously before us on appeal. On November 18, 1958, we reopened proceedings so that statements made by Government witnesses prior to the hearing might be made available to respondent. Reopened hearing was held on June 24, 1959. At the reopened hearing, a statement made by Government witness Mwas produced; M was called as a witness; he identified the statement as one he had made in 1954; and over objection of counsel the statement was put into the record. Counsel refused to examine the witness. The examining officer said there were no other statements known to the Government. Counsel was not permitted to question the examining officer on this matter. An offer was made to recall the other witnesses to make them available to counsel for questioning concerning statements they had made. Counsel rejected

the offer, He asked that a hearing de novo be given. By briefs and at the two oral arguments, counsel raised questions of due process and the constitutionality of the laws governing the case; he argued, that the evidence is not reasonable, substantial, and probative and that even if Communist Party membership is established it is of such a "nominal" nature that proceedings must be terminated; that hearing should have been reopened de novo; that respondent should have the right to question the examining officer to determine whether other statements existed which might have to be produced; and that it was improper to draw a presumption from the silence of respondent.

The Service representative argued the evidence is sufficient; that the examining officer's claim as to the nonexistence of additional statements should have been sufficient; that in any event counsel was given an opportunity to reexamine the witnesses to determine if there were statements, and did not; that an inference has not been drawn from the silence of respondent, but that the evidence of the Government stands uncontroverted; and that the hearing officer handled the case properly.

The burden of proving that respondent was a member of the Communist Party is upon the Government. This burden requires the Service to establish its case by evidence that is reasonable, substantial, and probative. Respondent has been in the United States for 55 years. She was eight months old when she entered. She is married to a citizen of the United States and has two United States citizen children. We cannot say that the proof which is required has been furnished by the Service.

The special inquiry officer rested his case upon these matters:

(1) Respondent attended closed Communist Party meetings;

(2) Respondent's name appears in a Communist Party bulletin as one who recruited members;

(3) Respondent sold the "Daily Worker," Communist Party paper.

We shall deal with each of the items seriatim. Attendance at closed meetings of the Communist Party is found from testimony of M. At the hearing, M- testified that he had been a member of the Communist Party from 1936 to 1940 and from 1942 to 1948. He stated that he collected dues; that some of the Communist Party meetings were restricted only to members; that he first met respondent (CJ) at a picnic in about 1947 or 1948; that in 1947 and 1948 she occasionally attended meetings of the Communist Party restricted only to members; and that he had been at open meetings with respondent. He could not give an estimate of the number of meetings because he could not recall. He testified that respondent took part in the meetings, but he could not recall enough about the meetings to give details. He said that respondent

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sold the "Daily Worker"; and that when they had "an affair or something" he had seen her at work in the kitchen scrubbing. He said that he had a membership card but that he could not say whether respondent had one. He stated that he did not know "any other Js as members" of the Communist Party during the period of his membership.

A statement made by M- prior to the hearing reveals that he was asked whether he knew a person by the name of "C-Jor Mrs. RJ" and that he replied that he "was acquainted with a person known as Mrs. R-J—"; that he first met her in about 1937 or 1938; that he met her at meetings of the International Workers Order; and that during 1946 and 1947 he saw her on several occasions at closed meetings of the Communist Party. He said that he could not recall having ever seen either her Communist Party card or payment of Communist Party dues by her. He stated that respondent would have had to have been a member of the Communist Party to have attended the meetings and that he knew respondent's husband R- J— to have attended closed meetings of the Communist Party.

We can give M-'s testimony little weight. His recollection is admittedly poor. He could not recall what went on at the meetings or what respondent did there. His statement made in 1954 differs from his testimony at the hearing as to when he first met respondent and the years he saw her at Communist Party meetings. In his statement, he apparently attempted to make the distinction between knowing Mrs. R-J and CJ and each reference to respondent was in terms of Mrs. J or Mrs. R—J—. Yet, at the hearing, he identified respondent as if he had known her as C—J—. At the hearing, the witness testified he did not know any other Js as a member of the Communist Party; yet, his statement in 1954 reveals that he knew that RJ attended closed meetings of the Communist Party which were open only to members of the Party. Moreover, it is strange that the witness, who had the duty of collecting dues, did not collect from respondent. In view of the limited association M- had with respondent, the passage of time, his poor recollection, the discrepancies in his testimony, and the lack of care in making the distinctions that he knew about, we cannot find M-'s testimony reasonable, substantial, and probative proof of membership in the Communist Party. The record also fails to establish how M- knew that the meetings were closed meetings.

The special inquiry officer has found that respondent's name appears in a 1946 Communist Party bulletin as one who recruited members. Exhibit 5 shows that one "C. J" was an active worker in recruiting members for the Communist Party. The special in

quiry officer found that respondent is the "C. J." The special inquiry officer came to this conclusion because street directories for the area listed only one "C. J," and M- had testified that he knew no other J— who was a member of the Communist Party. The special inquiry officer concluded that because of the possibility of error and because the "C. J-" listed could have lived out of the area, the directories of themselves were of little or no evidentiary value. He gave them weight only because of M's testimony that he knew no other J who was a member of the Communist Party. There are two reasons why M- -'s statement can add nothing to the weight to be given the directories: (1) M— knew at least one other J who was a member of the Communist Party and did not reveal it, and (2) there is nothing to show that M- knew all the members of the Communist Party in the area.

The special inquiry officer found the sale of the "Daily Worker" significant because C testified that he knew no one who distributed the Communist Party paper who was not a member of the Communist Party, except for distribution at newsstands and places of business. However, this witness did not testify that he knew all the persons who distributed the paper, and that he knew they were Communist Party members. He did not know respondent. He did not testify that the rules of the Communist Party forbade the sale of the "Daily Worker" by others than Communist Party members. This evidence is neither substantial nor probative. The special inquiry officer found that respondent had been a member of the Communist Party from 1946 through 1949. The only "evidence" as to membership in 1949 is the testimony that respondent solicited a subscription to the "Daily Worker" from a non-Communist and left copies with him for distribution to customers in his store. This evidence is not sufficient.

The final item for consideration is the fact that respondent did not testify. The special inquiry officer did not state that he assigned any weight to her silence in arriving at a determination that respondent had joined the Communist Party. He did state that it prevented respondent from proving that her membership had been "nominal." At oral argument, the Service representative stated that there is no issue as to the drawing of an inference, since none was drawn, but that the issue is merely whether the unrebutted evidence is sufficient. We shall set forth the matters of record which bear upon respondent's failure to testify. At the outset of the hearing, the special inquiry officer informed counsel:

* Before you do that [make motions], however, I understand that you will not have the respondent testify in this proceeding.

By COUNSEL:

That's right.