Respondent never obtained the consent of the Attorney General to her applying for admission after deportation (section 212(a) (17) of the Act, 8 U.S.C. 1182 (a) (17)). However, she reentered the United States in 1958 or 1959. On April 21, 1964 she was deported for having reentered without the Attorney General's consent to apply. She again entered the United States on November 24, 1964. In March 1966 the Service started the instant proceedings under section 242(f) of the Act (8 U.S.C. 1252(f)) to deport respondent on the basis of the 1953 order of deportation, and because of the fact she had entered without the Attorney General's consent. The special inquiry officer ruled that the 1953 deportation was a gross miscarriage of justice, that it must be considered a nullity, and that it therefore could not serve as a basis for deporting the respondent. The special inquiry officer ruled as he did because of his belief that the charge should not have been sustained at the original hearing for at that time proof of even one act of prostitution would not have required a finding of deportability (U.S. ex rel. Mittler v. Curran, 8 F.2d 355, 2d Cir., 1925; see Mirabal-Balon v. Esperdy, 188 F. Supp. 317, S.D.N.Y., 1960; Matter of T-, 6 I. & N. Dec. 474) and at that time the Service had not even presented proof of one act of prostitution: the controverted proof merely showed an offer to commit prostitution.

We concur in the special inquiry officer's well-reasoned conclusion. Respondent's deportation in 1953 on the charge that she had been a prostitute is based upon a record which plainly reveals that the Service had failed to sustain its burden of proof. There was a gross miscarriage of justice; the error should not be perpetuated (McLeod v. Peterson, 283 F.2d 180 (3rd Cir., 1960); accord, United States v. Bowles, 331 F.2d 742 (3rd Cir., 1964); see Matter of S-, 3 I. & N. Dec. 83. But see De Souza v. Barber, 263 F.2d 470 (9th Cir., 1959), cert. den. 359 U.S. 989).

The Service pointing to judicial decisions holding that a collateral attack on a prior deportation proceeding cannot be made unless there was a lack of due process or a jurisdictional issue, contends that neither of these elements is present here. The short answer is that the special inquiry officer relied upon judicial and administrative authority permitting collateral attack where there has been a gross miscarriage of justice.

The Service contends that the issue of deportability should not be retried so many years after it was decided. We are neither reevaluating evidence nor applying an interpretation of law made subsequent to the time of the original deportation decision. We merely state that on the basis of judicial and administrative decisions exist

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ing at the time of the original proceeding, no order of deportation should have been entered. The finding of deportability in 1953 was not in accord with the law as interpreted at that time.

Without citation of authority, the Service contends that the Board is interfering with the operation of criminal statutes (relating to the reentry of deported aliens) by permitting a collateral attack on the prior deportation proceeding. The contention cannot stand in view of the judicial authority which permits collateral attack under certain circumstances.

The Service contends that the special inquiry officer acted in the belief that proof of even one act of prostitution could not have served as the basis for deportation in 1953, whereas the law then was that such proof might be sufficient. The special inquiry officer's statement must be taken as applied to the facts before him where there was no proof that the respondent had engaged in prostitution.

The special inquiry officer properly waived the technical grounds of deportation which might arise from the fact that the respondent reentered the United States without proper documents after her deportation. In addition, we shall give the respondent a nunc pro tunc grant of permission to reapply in connection with each of these reentries to eliminate whatever technical objection may arise from the fact that she reentered without the prior consent of the Attorney General after having been deported.

ORDER: It is ordered that respondent be granted permission to reapply nunc pro tunc in connection with each entry made after her deportation in 1953.

It is further ordered that no change be made in the order of the special inquiry officer.

MATTER OF WILLIAMS

In Deportation Proceedings

A-5378538

Decided by Board June 14, 1966

Active opposition to the doctrine, principles and ideology of the Communist Party is established within the meaning of section 212(a) (28) (I) (ii) (a), Immigration and Nationality Act, where respondent, a public figure, declared publicly his break with the Party and that the Party is not the answer to U.S. problems, he has fought Party efforts to use his deportation proceedings to get attention and funds, he has repeatedly expressed willingness to cooperate with the government, his reputation is good and he is considered by his neighbors and acquaintances to be loyal to this country and anti-communist; further, respondent's remaining in the United States would be in the public interest within the meaning of section 212(a) (28) (I) (ii) (b) of the Act since he has been here for 55 years, having entered at age one, his family resides here, his deportation would result in hardship to him and would have an adverse effect on international opinion, and his present actions are designed to uphold and inculcate a positive belief in the American way of life and the continuing lesson resulting from the fact a well-known former communist has found that communism is not the answer to American problems.

CHARGE:

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

Two appeals are before us. The special inquiry officer granted respondent's application for adjustment of status (section 245 of the Act) but denied his application for suspension of deportation (section 244(a) (2) of the Act). The trial attorney appeals from the special inquiry officer's grant of the adjustment of status; respondent appeals from the denial of suspension of deportation. We believe that the adjustment of status was properly granted; we shall not consider the issues presented by the respondent's appeal. Both appeals will be dismissed.

The facts have been stated in great detail in the previous orders. Briefly, the only entry of respondent, a 60-year-old married male, a

native of Wales and citizen of Great Britain, occurred on December 21, 1907 when at the age of one he was admitted for permanent residence. The respondent is charged with having been a member of the Communist Party. He admitted that he joined the Communist Party in 1931, that he left in 1947 for tactical reasons, and that his ideological break with the Party may not have come until as much as three years later. He testified that he never believed in force and violence, and that he was primarily interested in trade union activity. His deportability is clear.

The issue concerning the application for adjustment of status is whether the special inquiry officer was justified in finding that in the five years prior to November 11, 1964, the date of respondent's application, he had been a defector, i.e., a person "actively opposed to the doctrine, program, principles, and ideology" of the Party and whether adjustment would be in the public interest (section 212 (a) (28) (I) (ii) of the Act).

The special inquiry officer found that the respondent was a defector. The special inquiry officer relied upon the example furnished by the respondent's conduct, his disassociation from Communist Party friends, his public statements, and his offers of assistance to the Government. The Service contends that respondent's membership may have continued until 1956 (respondent on four occasions in 1955 and 1956, and possibly once in 1958, attended public meetings of Communist Party front organization because of his interest in fighting deportation of aliens and revising immigration laws) that he never strongly expressed himself against communism, that his willingness to help the Government must be considered in light of his refusal to give names of Communist Party members, and that he has furnished no proof that he gave speeches, prepared writings or performed other acts in opposition to the program of the Communist Party. The Service is of the belief that highly meritorious factors do not exist in the case.

The requirement concerning active opposition by a former Communist Party member is to insure that he "adequately demonstrates his redemption" and to specify the active opposition by which the demonstration is to be made (S. Rept. No. 1137, 82nd Cong., 2d Sess. 10 (1952)). We believe the respondent's redemption and active opposition are established by the record. The respondent is a public figure. He was a leader in Communist Party affairs (a candidate for the Michigan State legislature on the Communist Party ticket in 1946) and he was a leader in union matters (a business representative for 13 years and apparently among the early organizers of a union for auto workers). The fact that he is well known to the pub

lic gives added weight to his publicly declared break with the Communist Party and his public statement that the Communist Party is not the answer to United States union or other problems. His public position must have a considerable impact on the wide public aware of his previous Communist Party activity and must therefore be considered active opposition to the Communist Party. (The fact that respondent's public statements were made in connection with his deportation proceedings does not deprive them of their impact.) Active opposition to Communist Party policies and program can also be found in the fact that respondent has fought efforts of the Communist Party and its front organization to use his deportation proceeding to get attention and funds. His vigorous fight to avoid deportation has been made an AFL-CIO union effort (pp. 82-3). The United Auto Workers Union, despite considerable difficulty caused them in the past because of the respondent's Communist Party activities, believes that he has reformed, and is furnishing legal support for effort to avoid deportation.

Active opposition can further be found from the following facts: in 1961, he furnished the Federal Bureau of Investigation with details of his Communist Party membership, naming individuals who were active with him in the Communist Party and expressing his willingness to testify against the Communist Party and against the then chairman of the Party; in 1958, in connection with a motion to this Board to reopen proceeding, he made an affidavit offering to testify as to any matters concerning his Party membership; in 1957, when seeking congressional aid in his fight to avoid deportation he offered to cooperate; on two separate occasions in 1955 he offered to appear before the House Un-American Activities Committee. (True he limited his offer to the Committee by stating he would not reveal names, but the important thing is that he offered to appear and cooperate; he now states that if he had been called and had been pressed to give names, he would have done so.)

Activity in opposition to the Communist Party can be found in the fact that respondent is actively engaged as advisor to a youth group in his church--living a Christian life, he seeks to encourage others to follow such a life.

Respondent's reputation is good. His pastor, who has known respondent since 1957, regards him as a genuine convert and a person loyal to the United States. He states that respondent attends worship regularly and is active in church affairs. Four of respondent's neighbors who have known him since about May 1959 considered him an asset to the community: one stated that she believed he had an American attitude. No derogatory information was received. The