MATTER OF PAUL In DEPORTATION Proceedings A-5142538 Decided by Board May 14, 1963 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. CHARGE: Order: Act of 1952-Section 241 (a) (6) [8 U.S.C. 1251(a) (6)]—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 motion 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 Fikes. 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, counsel 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 Fikes 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 Fikes 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 Russia, has resided in the United States since his admission for permanent residence in 1922. The order of deportation is based on the 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 documents. to 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 laches. 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). MATTER OF PAUL In DEPORTATION Proceedings A-5142538 Decided by Board May 14, 1963 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. CHARGE: Order: Act of 1952-Section 241(a)(6) [8 U.S.C. 1251(a) (6)]—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 motion 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 Fikes. 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, counsel 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 Fikes 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 Fikes 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 Russia, has resided in the United States since his admission for permanent residence in 1922. The order of deportation is based on the 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 laches. 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). Fikes 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 he had been 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 ask for a continuation of the hearing to enable him to determine whether material existed which would be of use in cross-examining Fikes. It is contended that Fikes' testimony is lacking in probity and reasonableness. Counsel contends that Fikes' 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 Fikes 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. Fikes 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. Fikes 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 |