failed to report his current address in order to avoid deportation was found not to have established that his violation was reasonably excusable and not willful. Bufalino v. Holland, 277 F. 2d 270 (3d Cir. 1960), cert. denied, 364 U.S. 863 (1960); Gallegos-Covarrubia v. Del Guercio, 251 F. 2d 519 (9th Cir. 1958).

7. Security risks (241 (a) (6) and (7))

In Galvan v. Press, 347 U.S. 522 (1954), the Supreme Court upheld the constitutionality of the deportation provisions directed against former members of the Communist Party.

Galvan v. Press also rejected a contention that the statute contemplated deportation only upon a showing that the alien member knew or subscribed to the proscribed objectives of the Communist Party. It declared that the requisite voluntariness was shown if it appeared that the alien knew he had joined the Communist Party and was aware that it operated as a political organization and had become a member of his own free will.

Subsequent cases have sought to explore this concept of voluntariness. In Rowoldt v. Perfetto, 355 U.S. 115 (1957), the Supreme Court, following Galvan, declared that the membership had to be a "meaningful association" and that Rowoldt's membership was not "meaningful" since it seemed to have been motivated by economic rather than political considerations. Later cases have upheld deportation upon a showing of membership and activity sufficient to indicate an awareness of the organization's political character. Niukkanen v. McAlexander, 362 U.S. 390 (1960); MacKay v. McAlexander, 268 F.2d 35 (9th Cir. 1959), cert. denied, 362 U.S. 961 (1960); Schleich v. Butterfield, 252 F. 2d 191 (6th Cir. 1958), cert. denied, 358 U.S. 814 (1958); Wellman v. Butterfield, 253 F. 2d 932 (6th Cir. 1958); Williams v. Mulcahey, 253 F. 2d 709 (6th Cir. 1957), cert. denied, 356 U.S. 946 (1958). The proof of membership must be substantial. Yiannopoulos v. Robinson, 247 F. 2d 655 (7th Cir. 1957). When the proof showed that the alien was "a small rabbit in the Communist hutch" whose membership was not meaningful, the deportation order was not upheld. Diaz v. Barber, 261 F.2d 300 (9th Cir. 1958). The Supreme Court has held that the burden is upon the Government to establish an alien's membership in the Communist Party was meaningful, and an alien's silence and failure to explain the circumstances of his membership did not relieve the Government of the need to show that the membership was meaningful. Gastelum-Quinones v. Kennedy, 374 U.S. 469 (1963).

Involuntariness of membership may be indicated by economic compulsion. See Grzymala-Siedlecki v. United States, 285 F. 2d 836 (5th Cir. 1961) (needed for college education). Cf. Langhammer v. Hamilton, 295 F. 2d 642 (1st Cir. 1961). In Scythes v. Webb, 307 F. 2d 905 (7th Cir. 1962), the court refused to sanction the deportation of a former member of the Socialist Workers Party. The court applied the definition of "advocates" in Scales v. United States, 367 U.S. 203 (1961) and Noto v. United States, 367 U.S. 290, 297 (1961) which were criminal prosecutions under the Smith Act. It ruled that there was insufficient evidence that the Socialist Workers Party advocated violent overthrow of the U.S. Government. Some cases have considered the effect of absence from the United States upon an alien's deportability for Communist Party membership. It has been held

that temporary absence abroad does not extinguish deportability which attaches because of misconduct in this country. Belfrage v. Kenton, 224 F. 2d 803 (2d Cir. 1955). However, the Supreme Court has ruled that where the alien had discontinued his membership prior to leaving this country and thereafter reentered lawfully in 1938 as a quota immigrant he was not deportable because of his earlier membership. Bonetti v. Rogers, 356 U.S. 691 (1958).

8. Narcotics violators (241(a)(11))

As noted under section 101, a narcotics violator in this country is deportable at any time irrespective of the manner of his entry. Rabang v. Boyd, 353 U.S. 427 (1957). The retroactivity of the statutory mandate has been upheld against a claim that it is ex post facto. Marcello v. Bonds, 349 U.S. 302 (1955). Finding the distinction between narcotics offenders and other offenders to be a rational one, the court has held the mandatory deportation of narcotics offenders non-violate of equal protection. Guan Chow Tok v. INS, 538 F. 2d 36 (2d Cir. 1976). Moreover, the statute has been upheld in the face of the Eighth Amendment's proscription against cruel and unusual punishment. Santelises v. INS, 491 F. 2d 1254 (2d Cir. 1974), cert. denied, 417 U.S. 968 (1974); Rodriguez-Romero v. INS, 434 F. 2d 1022 (9th Cir. 1970), cert. denied, 401 U.S. 976 (1971).

The Supreme Court also has held that the 1952 Act's savings clause did not preserve a status of nondeportability for aliens who previously were not deportable. Mulcahey v. Catalanotte, 353 U.S. 692 (1957).

The 1960 amendment subjecting to deportation aliens convicted of possession of marijuana was found applicable to an alien who had entered the United States before the amendment but who had been convicted for this violation in Canada prior to such entry. The constitutionality of such a retroactive application was upheld. Gardos v. INS, 324 F.2d 179 (2d Cir. 1963).

However, an immigrant's conviction for misprison of a felony of conspiracy to possess heroin is not itself a conviction relating to narcotics and thus does not render here deportable under this section. Castaneda de Esper v. INS, 557 F. 2d 79 (6th Cir. 1977).

9. Smugglers of aliens (241(a)(13))

Deportation is prescribed for those who smuggle aliens "for gain." Gain is construed as not necessarily meaning direct monetary reward but may also include other benefits such as use of the alien's services. Gallegos v. Hoy, 262 F. 2d 665 (9th Cir. 1958), cert. denied, 360_U.S. 935 (1959). It also requires guilty knowledge but this may be shown by conduct. Reyes v. Neely, 228 F. 2d 609 (5th Cir. 1956). In Ribeiro v. INS, 531 F. 2d 179 (3d Cir. 1976), the court declined to find an alien deportable where he was to receive fifty dollars in return for providing transportation for illegal aliens entering the United States but the Government failed to show by clear, convincing and unequivocal evidence that the payment was for gain and not simply a reimbursement for expenses.

10. Waiver of deportability-misrepresentations (241(f))

In INS v. Errico, 385 U.S. 214 (1966), the Supreme Court held that the statutory waver of deportability, for misrepresentations by certain relatives of American citizens or resident aliens, benefits

one whose misrepresentation enabled him to evade the established numerical limitations. In Petition of Hom, 289 F. Supp. 204 (S.D. N.Y. 1968), the court applied the statutory waiver of deportability to one who had entered innocently as the spouse of a person who hae fraudulently claimed U.S. citizenship.

The statutory waiver has been held to be unavailable when there is no charge that the original entry was irregular. Tsaconas v. INS, 397 F.2d 946 (7th Cir. 1968). It was found unavailable to those whose entry was surreptitious, Monarrez-Monarrez v. INS, 472 F. 2d 119 (9th Cir. 1972); Gambino v. INS, 419 F. 2d 1355 (2d Cir. 1970), cert. denied, 399 U.S. 905 (1970). In light of the "otherwise admissible" requirement in the statute, the waiver has also been held to be unavailable to those excludable at entry on grounds other than fraud. Velasquez Espinosa v. INS, 404 F. 2d 544 (9th Cir. 1969), cert. denied, 396 Ú.S. 877 (1969) (relief from military service); de Vargas v. INS, 409 F.2d 335 (5th Cir. 1969), cert. denied, 396 U.S. 895 (1969), (reentry without permission following deportation); Cacho v. INS, 547 F. 2d 1057 (9th Cir. 1976) (entry to work without labor certification). Yet in Persaud v. INS, 537 F. 2d 776 (3d Cir. 1976), even though the alien was excludable on other grounds, the court granted the waiver reasoning that where the same facts that established fraud under section 212(a) (19) also establish the lack of a valid visa under section 212(a) (20), the two grounds for exclusion are not separate and independent but inextricably intertwined. See also Cacho v. INS, 547 F. 2d 969 (5th Cir. 1976), cert. denied, 426 U.S. 938 (1976), rehearing denied, 430 U.S. 923 (1977), declined to follow this reasoning and held instead that where an invalid visa was the grounds for deportation, the section 241(f) forgiveness clause did not allow reopening of deportation proceedings even though the companion ground, fraud, `standing alone would have permitted reopening.

The waiver has also been held to be unavailable where the related family member was not in the United States at the time of the entry. United States v. Palmer, 458 F. 2d 663 (9th Cir. 1972). However, Lee v. INS, 439 F. 2d 244 (9th Cir. 1971) and United States v. OscunaPicos, 443 F. 2d 907 (9th Cir. 1971 found that the waiver applied to an alien who entered the United States without inspection under a false claim of citizenship. On the other hand, De Leon v. INS, 547 F. 2d 142 (2d Cir. 1976), cert. denied, 434 U.S. 841 (1977), found that the waiver did not apply where deportability was based not on a minor fraud or misrepresentation but on the more serious impersonation of a resident alien at the time of entry (section 241(a)(5)). Vitales v. INS, 443 F. 2d 343 (9th Cir. 1971), vacated and remanded, 405 U.S. 983 (1972), after extending the Lee doctrine, held the automatic waiver of deportability to be available to an alien otherwise eligible who entered as a nonimmigrant and who claimed that he then had an undisclosed intention to defraud; the court then vacated judgment when the petitioner left the country voluntarily. In Mangabat v. INS, 477 F. 2d 108 (9th Cir. 1973), the court refused to follow its prior decision in Vitales and held that a nonimmigrant is deportable for overstaying a temporary visit and not entitled to 241(f) relief. The Eighth and Tenth Circuits reached the same conclusion in Pirzadian v. INS, 472 F. 2d 1211 (8th Cir. 1973) and Preux v. INS, 484 F. 2d 396 (10th Cir. 1973), cert. denied, 415 U.S. 916 (1974). Even where the statutory waiver does apply, it merely averts de

portation and does not confer lawful residence status. Eng v. INS, 464 F. 2d 1265 (2d Cir. 1972).

SECTION 242. DEPORTATION PROCEEDINGS

1. Arrest and detention pending disposition of proceedings (242(a))

The power of immigration officers to make arrests was upheld in Abel v. United States, 362 U.S. 217 (1960). This power, and the resulting authority to detain, is not lost because the respondent claims to be a citizen of the United States. Hernandez-Avila v. Boyd, 294 F. 2d 373 (9th Cir. 1961). Allegations of improprieties in the arrest have not been substantiated, and they generally are not deemed to invalidate the deportation order if it is adequately supported. PineiroLopez v. Kennedy, 203 F. 2d 540 (D.C. Cir. 1961), cert. denied, 368 U.S. 866 (1961); Vlissidis v. Anadell, 262 F. 2d 398 (7th Cir. 1959); Tsimounis v. Holland, 228 F. 2d 907 (3d Cir. 1956).

However, in the only court of appeals ruling to date applying the exclusionary rule in civil deportation proceedings, Wong Ching Che v. INS, 565 F. 2d 166 (1st Cir. 1977), an alien seaman's expired landing permit, which was seized in an illegal search of his apartment, was held inadmissible. On the other hand, where an illegal arrest only led to the discovery of an alien's identity which in turn led to an inculpatory visa petition in the INS file, that evidence was found. to be independent and admissible. Hoonsilapa v. INS, 575 F. 2d 735 (9th Cir. 1978). Likewise, in Ho Chong Tsao v. INS, 538 F. 2d 667 (5th Cir. 1976), cert. denied, 430 U.S. 906 (1977), the court held that evidence of a deserting seaman's deportability, which was already in the possession of INS when the allegedly illegal arrests took place, could not be tainted by those arrests.

In the criminal law context, the fruit of the poisonous tree doctrine has been readily applied. In a situation involving illegal aliens, who were seized in an illegal search of the defendant's restaurant, and who later agreed to testify at a criminal trial for harboring illegal aliens in return for promises of voluntary departure, their testimony was deemed tainted as the fruit of the poisonous tree and thus inadmissible. United States v. Karathanos, 531 F. 2d 26 (2d Cir. 1976), cert. denied, 428 U.S. 910 (1976).

In making arrests it is proper for Service officers to cooperate in good faith with other enforcement agents, Abe v. United States, supra, but administrative arrest is permitted only in connection with a deportation proceeding under this section, and Service officers are not authorized to arrest aliens on behalf of other government agencies. Martinez-Angosto v. Mason, 344 F. 2d 673 (2d Cir. 1965).

Since the validity of an arrest made pursuant to a warrant may depend upon the validity of the warrant, the warrants themselves have generated litigation. In the original Blackie's House of Beef, Inc. v. Castillo, 467 F. Supp. 170 (D.D.C. 1978), where the warrant authorized only the search and seizure of property and did not authorize any search for persons, the court held that such a warrant did not justify INS entry and search of a privately owned restaurant to find and arrest aliens employed there. INS returned to Blackie's a second time with a warrant to search for illegal aliens but the court again found the warrant defective because it authorized only a search and

did not justify the seizure of alien employees which happened as planned. Blackie's House of Beef, Inc. v Castillo, 480 F. Supp. 1078 (D.D.C. 1979). In an opposite decision the court in I.L.G.W.U. v. Sureck, F. Supp. (C.D. Cal. 1980), upheld INS use of a Rule 41 search warrant for property in order to enter a factory to seek out employees believed to be illegally in the United States. (See Federal Rules of Criminal Procedure 41 (b) (4).)

While it is better practice for INS to provide an alien's counsel with notice of impending contacts and investigations which may involve crucial aspects of an alien's case, Nai Cheng Chen v. INS, 537 F.2d 566 (1st Cir. 1976), held that failure to provide notice to counsel of an interview with an alien which occurred in the preliminary stage of investigation, before institution of deportation proceedings, did not require the exclusion of evidence obtained from that interview at a deportation hearing. In Cuevas-Ortega v. INS, 588 F. 2d 1274 (9th Cir. 1979), where INS investigators merely knocked at the alien's door, spoke to her over the threshold and later inside the apartment where she freely admitted that she, her husband, and five of their six children were here illegally, the court found that there was no search or seizure of either her person or her conversation and thus the Fourth Amendment exclusionary rule did not apply. In Smith v. Morris, 442 F. Supp. 712 (E.D. Pa. 1977), one court surmised that even assuming the Fourth Amendment is fully applicable to the activities of INS officers, and assuming the aliens are entitled to the full protection afforded by the Fourth Amendment, it would seem nevertheless that the exclusionary rule serves no useful purpose in a deportation proceeding in which the decision does not depend on the proof of specific events but merely on the proof of status. Another warrantless arrest occurred in Aguirre v. INS, 553 F. 2d 501 (5th Cir. 1977), where the court found that an alien's voluntary admission that he was an illegal alien who had been "picked up before" was sufficient for the arresting officer to believe that he might abscond before a warrant could be obtained and thus justified a warrantless arrest.

The Attorney General's power to detain those likely to abscond has been upheld. Hernandez-Avila v. Boyd, 294 F. 2d 373 (9th Cir. 1961) (previous history of absconding from criminal prosecution; $25,000 bail upheld); Marks v. Esperdy, 198 F. Supp. 40 (S.D. N.Y. 1961) (same; bail denied). The courts have held that the 1952 Act did not change the previous standard of review of the Attorney General's custody determinations, which may be overturned only for clear abuse. Yaris v. Esperdy, 202 F. 2d 109 (2d Cir. 1953); Hyndman v. Holton, 205 F. 2d 228 (7th Cir. 1953). An alien's release on bail in criminal proceedings has been deemed not inconsistent with the authority of the Service to detain the alien pending the determination of his deportability. Application of Bruno 224 F. Supp. 152 (D.P.R. 1963). 2. Deportation hearings (242(b))

a. Commencement of proceedings.-The use of the order to show cause procedure has been approved by the courts. Ben Huie v. INS, 349 F.2d 1014 (9th Cir. 1965). The order to show cause is not defective for failure to name the country of proposed deportation. Sze v. INS, 389 F. 2d 978 (2d Cir. 1968), cert. denied, 390 Ú.S. 1040 (1968). Since there is no time limitation, the Government is not estopped by mere delay in bringing the proceedings. Hamadeh v. INS, 343 F. 2d 530 (7th Cir. 1965), cert. denied, 382 U.S. 838 (1965). A challenge to the