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(p. 99); he knew that the meetings he attended at respondent's home were not meetings of the rank and file committee (p. 100); and he identified the meeting as Communist Party meetings, although he was aware that at the meetings there was discussion of problems confronting the furniture workers union (pp. 103, 104).

Counsel contends that Fikes' description of what occurred at the Communist Party meetings he attended is so lacking in details that what is described is nothing but the general procedure at any Communist Party club meetings, and could be used by Fikes to place himself at any Communist Party meeting he desired to testify about. The contention is without merit. Fikes testified in 1962 about meetings which had occurred some 12 years previously. He knew they were Communist Party meetings; he placed the respondent at these meetings; he stated that the respondent's wife would check on persons coming to determine if they were communists and eligible to attend the meeting. Neither of the persons specifically mentioned contradicted this testimony. It is understandable that the specific details of matters handled at these meetings cannot be given at this date. The special inquiry officer who had the opportunity to observe Fikes testify, found him credible. After careful review of the record we find the witness credible, and accept his account of attendance at Communist Party meetings with the respondent.

Fikes testified that one of the items considered at the Communist Party meetings in respondent's apartment was the Stockholm Peace Petition. Counsel drawing upon matter not in the record contends that the petition could not have been discussed at these meetings which Fikes stated occurred in late 1949 or early 1950 because the Stockholm Peace Appeal was first passed in March 1950 and circularization of petitions started at the end of May or beginning of June 1950. Counsel has not asked for a reopening of proceedings to cross-examine the witness on the basis of this information. For the sake of argument we shall assume that the facts alleged by counsel concerning the petition could be established at the hearing. Since the witness revealed his uncertainty about the exact period of time that he lived with the respondent, placing it as late 1949 or early 1950, it is not significant that he could have been in error a month or two concerning the period he spent with the respondent. In any event, discussions which may have taken place in April to June 1950 could well fall within Fikes' testimony that the meetings could have taken place in early 1950. In view of this fact and noting that counsel does not request reopening of proceedings to cross-examine Fikes on this matter and give him a chance to explain the conflict if any, we do not believe that Fikes' credibility is lessened.

Counsel contends that the respondent, a person of mature years, would not have divulged Communist Party membership to Fikes, then a youth. There would appear to be no reason for concealing the fact of membership if Fikes was considered a proper person to invite to the Communist Party meetings in respondent's home.

Counsel takes issue with Fikes' designation of a social affair as a closed one on the ground the record clearly establishes that admission was open to anyone who paid the admission price. Fikes' testimony is that the dance was open only to individuals who were members of the Party, even though tickets were sold (pp. 66-67, 94-96). We do not find it clearly established the meeting was open to the general public. Fikes denied that it was so open.

Counsel contends the Service has failed to carry its burden of proof that respondent was a member of the Communist Party and that membership was meaningful. We believe that the fact of membership is established by the testimony of Fikes. As to meaningfulness, Fikes' testimony-that the respondent acted as chairman at meetings, that unwanted people would have been prevented from attending, that he attempted to recruit people for the Communist Party (p. 65) and that the respondent with his wife attended a special meeting at which Fikes made a report on activities of the Party for the South, and that respondent was active in arranging the meeting (p. 74)-reveals more than a nominal membership. The appeal will be dismissed.

Counsel requests that if the appeal is not sustained, that his motion be granted. The motion is not for reopening of proceedings but that respondent be furnished with copies of statements, memoranda and reports made by Fikes to the Service and other Federal agencies relating to the respondent. In particular all reports relating to the respondent's whereabouts in 1949, 1950 and 1957 are requested. At oral argument, counsel stated that she would be satisfied if the information was made available to the special inquiry officer presumably for disposition in the spirit of 18 U.S.C. 3500.

The request for reports relating to the whereabouts of Fikes is occasioned by the fact that Fikes testified, at the deportation hearing, that late in 1949 or early 1950 (pp. 52, 57, 67, 102) he spent four weeks with the respondent in New York, and that this testimony is in conflict with testimony counsel now presents which shows that at a trial in November 1959 in Denver, Fikes testified that from about the summer or fall of 1949 until about the fall of 1950 he had been a member of the Communist Party club in Birmingham, Alabama, and had apparently spent his time in Birmingham during this period. Counsel also cites from the report of an FBI agent on the same trial that Fikes had informed him that he came to Birmingham in 1950 and joined the Communist Party there and counsel contrasts this with Fikes' testi

mony at the deportation hearing that he came to New York City in late 1949 or early 1950 and remained until January 1951 at which time he returned to Birmingham and entered the United States Army.

Counsel has not requested the right to cross-examine the witness on either of these matters. On this record we do not find that a conflict of a serious nature exists. At the deportation hearing, Fikes testified that he remained in Birmingham, Alabama, to late 1949 or early 1950; the transcript of trial testimony merely reveals that it was around the fall of 1950 that he had left Birmingham rather than early 1950 as his deportation testimony indicates it could have been. But it is not clear from the trial testimony that Fikes actually left Birmingham late in 1950; the trial testimony reveals that Fikes was uncertain as to the time he left Birmingham, indicating that it was "sometime in 1950" and that the best he could recall was that it had happened in the fall. As to the report of the FBI agent that Fikes stated he joined the Communist Party in 1950 in Birmingham we do not see how Fikes can be held responsible for the agent's testimony. The FBI report is in conflict with Fikes' own testimony at the trial that he had joined the Communist Party in Birmingham in the summer or fall of 1949 and if the quotation furnished by counsel is accurate, it shows the respondent as having attended a Communist Party school in New York in 1941 (the respondent attended in 1949).

The request for production of reports made by Fikes concerning the respondent must be denied. As the Service representative has pointed out, counsel who represented the respondent at the hearing had notice of the existence of the report (pp. 83-84) but did not request that "statements" be made available. Respondent is, therefore, not entitled to the production of the statements. Ogden v. United States, 303 F.2d 724, 733, 9th Cir., and cases cited in footnote 27.

ORDER: It is ordered that the appeal be and the same is hereby dismissed.

It is further ordered that the motion for production of documents be and the same is hereby denied.

273

MATTER OF LEONG

In DEPORTATION Proceedings

A-12653531

Decided by Board May 16, 1963

Respondent, who is otherwise qualified, is not precluded from establishing eligibility for suspension of deportation under section 244 (a)(1), Immigration and Nationality Act, as amended, by reason of his absence from the United States from May 1960 to August 1960, since under the provisions of section 244 (b) of the Act, as amended, the requirement of continuous physical presence is inapplicable to him, having served honorably in an active-duty status in the Armed Forces of the United States from March 1956 to March 1959 following enlistment in California.

CHARGE:

Order: Act of 1952-Section 241(a)(2) [8 U.S.C. 1251 (a) (2) ]—Entered without inspection.

The case comes forward pursuant to certification by the special inquiry officer of his order dated March 29, 1963, ordering that the deportation of the respondent be suspended under the provisions of section 244(a) (1) of the Immigration and Nationality Act, as amended.

Discussion As To Deportability: The respondent is a native and citizen of China, 31 years old, male, married, who first entered the United States at the port of San Francisco on April 28, 1951, on a false claim of United States citizenship. He last entered the United States at Anchorage, Alaska on August 21, 1960, after a brief absence to China from May 1960 and was again admitted upon his false claim of citizenship. At the time of his last entry he was not inspected as an alien. The respondent is subject to deportation on the charge stated in the order to show cause.

Discussion As To Eligibility For Suspension of Deportation: The respondent knew at the time he first came to the United States that the person from whom he was claiming United States citizenship was not in fact his father. The arrangements for him to come to the United States were made by his parents. Although the respondent

was 19 when he first entered the United States he attended high school in Sacramento, California and was graduated. He has been employed in various capacities in restaurants in Sacramento, California and is presently employed as a bus boy at $272 per month plus tips. Assets are valued at $20,000, including $10,000 in cash and the remainder in common stock and other personal property. He enlisted at Sacramento, California and from March 29, 1956 to March 25, 1959 he was in active service in the Army of the United States and served overseas two years and four months. He was transfered to the Reserve on March 25, 1959, and was honorably discharged on February 15, 1963. During the respondent's period of active service in the Army, he was injured and the Veterans Administration has certified that he has suffered a thirty per cent degree of disability as a result of a service connected residuals of cerebral concussion and has awarded him payments of $44 per month commencing March 26, 1959.

From May 1960 to August 1960 the respondent visited Hong Kong where he was married on June 23, 1960, to a native and citizen of China, now 27 years old, who still resides there. They have no children. The respondent's mother, one sister and a brother reside in Macao. One of his brothers is on the Chinese mainland; another brother, now a lawful permanent resident, resides in California. The quota for Chinese persons, to which the respondent is chargeable, is heavily oversubscribed and the respondent cannot otherwise adjust his immigration status.

The respondent, has resided in the United States since April 28, 1951. He has been regularly employed in the United States since his arrival. The respondent served honorably and actively for three years from March 1956 to March 1959, two years and four months of which were overseas, and thereafter served in the Army Reserve until February 15, 1963. His deportation could only be effected to Formosa or Macao. The respondent's adult years have been spent in the United States. In view of the respondent's residence in the United States since 1951, his honorable Army service, his service-incurred disability and the fact that his earning ability has been impaired by his injury, it is concluded that he would suffer extreme hardship if deported. A character investigation conducted by the Service and reports of the Federal Bureau of Investigation and of the local police department during the past seven years reveal no information adverse to the respondent. No connection with subversive groups has been shown. Affidavits of witnesses attesting to his good moral character have been introduced into evidence. The respondent has established that during the seven years immediately preceding the date of his application for

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