Rowoldt v. Perfetto , 78 S. Ct. 180 ( 1957 )

Mr. Justice Frankfurter

delivered the opinion of the Court.

Petitioner is an alien who has been ordered deported by virtue of § 22 of the Internal Security Act of 1950, 64 Stat. 987, 1006,¹ for past membership in the Communist Party. He attacks the judgment below on the ground — the only claim we need to consider — that he was not a “member” of the Communist Party within the scope of that section.

Petitioner is an alien who entered the United States in 1914 and, except for a short interval in Canada, has resided here continuously. The finding of “membership” by the hearing officer rested on petitioner’s own testimony. He stated that he joined the Communist Party in “the spring or summer of 1935,” paid dues, attended meetings, and remained a member “until I got arrested [in deportation proceedings] and that was at the end of 1935. When I was arrested, I finished the Communist Party membership . . . At a later point in his testimony, petitioner stated that he was probably a member for approximately one year.

He then explained his reasons for joining the Communist Party:

“The purpose was probably this — it seemed to me that it came hand in hand — the Communist Party and the fight for bread. It seemed to me like this— let’s put it this way — that the Communist Party and the Workers’ Alliance had one aim — to get something to eat for the people. I didn’t know it was against the law for aliens to join the Communist Party and the Workers’ Alliance. . . .”

In response to a question whether his joining the Communist Party was “motivated by dissatisfaction in living under a democracy,” the following colloquy took place:

“A. No, not by that. Just a matter of having no jobs at that time. Everybody around me had the idea that we had to fight for something to eat and clothes and shelter. We were not thinking then— anyways the fellows around me, of overthrowing anything. We wanted something to eat and something to crawl into.

“Q. You say 'fight for something to eat and crawl into.’ What do you mean by that term?

“A. We had to go and ask those who had it — that was the courthouse at that time. We petitioned city, state and national government. We did and we succeeded. We finally got unemployment laws and a certain budget. Even at the few communist meetings I attended, nothing was ever said about overthrowing anything. All they talked about was fighting for the daily needs. That is why we never thought much of joining those parties in those days.”

The other activity bearing on petitioner’s membership in the Communist Party was discussed in the following colloquy:

“Q. Were you an active worker in the Communist Party?

“A. The only active work I did was running the bookstore for a while.

“Q. What sort of bookstore was it?

“A. Oh, all kinds of literature — all kinds of writers in the whole world — Strachey, Marx, Lenin’s writing and others. Socialism and all that stuff.

“Q. Did you own the bookstore?

“A. No. I didn’t get a pennyjthere.

“Q. What was the arrangement there?

“A. I was kind of a salesman in there, but the Communist Party ran it.

“Q. You secured this employment through your membership in the Communist Party?

“A. Yes.

“Q. Was this store an official outlet for communist literature?

“A. Yes.”

Petitioner testified that he never advocated change of government by force or violence and he also gave his unilluminating understanding of, and beliefs about, the principles of communism. His account of the circumstances and motives that led him to join the Communist Party stood unchallenged and was evidently accepted at face value.

This testimony was all given during an examination of petitioner by the Immigration and Naturalization Service in 1947. At the hearing below, in 1951, petitioner refused to answer whether he had ever been a member of the Communist Party on the ground that the answers might incriminate him. The hearing officer found, from the evidence in the record, that petitioner “was a member of the Communist Party of the United States in 1935.” On appeal, to both the Assistant Commissioner, Adjudications Division of the Immigration and Naturalization Service, and subsequently the Board of Immigration Appeals, this finding was held supported by the record. Petitioner then sought a writ of habeas corpus from the District Court for the District of Minnesota. Both the District Court and, on appeal, the Court of Appeals for the Eighth Circuit held that the evidence produced at the hearing was sufficient to sustain the finding that petitioner was a “member” of the Communist Party. 228 F. 2d 109. As the case involves an application of Galvan v. Press, 347 U S. 522, we granted certiorari. 350 U. S. 993.

The authority for the order deporting petitioner derives from the Internal Security Act of 1950, as amended by the Act of March 28, 1951, 65 Stat. 28. As indicated, its evidentiary support rests entirely on petitioner’s testimony before an immigration inspector in 1947. The transcript of that hearing was the foundation of the administrative proceedings that resulted in the order now under review. The adequacy of that testimony to sustain the order must be judged by the Internal Security Act of 1950, which was amended by § 1 of the Act of March 28, 1951, 65 Stat. 28, set forth in the margin.²

As pointed out in Galvan v. Press, supra, at 527, the legislative history of this amendatory statute shows that the three specified qualifications are not to be applied as narrow exceptions but are to be considered as illustrative of the spirit in which the rigorous provisions regarding deportability of § 22 (2) are to be construed. There must be a substantial basis for finding that an alien committed himself to the Communist Party in consciousness that he was “joining an organization known as the Communist Party which operates as a distinct and active political organization . . . .” 347 U. S., at 528.

Bearing in mind the solidity of proof that is required for a judgment entailing the consequences of deportation, particularly in the case of an old man who has lived in this country for forty years, cf. Ng Fung Ho v. White, 259 U. S. 276, 284, we cannot say that the unchallenged account given by petitioner of his relations to the Communist Party establishes the kind of meaningful association required by the alleviating Amendment of 1951 as expounded by its sponsor, Senator McCarran, and his legislative collaborator, Senator Ferguson. (See 97 Cong. Rec. 2368 and 2387.) All that the Immigration authorities went on is what the petitioner himself said, for his truthfulness was not called into question. From his own testimony in 1947, which is all there is, the dominating impulse to his “affiliation” with the Communist Party may well have been wholly devoid of any “political” implications. To be sure, he was a “salesman” in a Communist book store, but he “didn’t get a penny there.”

Presumably he had to live on something and further inquiry might have elicited that he was getting the necessities of life for his work in the book store. Nor is there a hint in the record that this was not a bona fide book shop.

Accordingly, we are of the opinion that the record before us is all too insubstantial to support the order of deportation. The differences on the facts between Gal-van v. Press, supra, and this case are too obvious to be detailed.

Judgment reversed.

1 That section amended the Act of October 16, 1918, 40 Stat. 1012, as amended, to provide:

“[See. 1] That any alien who is a member of any one of the following classes shall be excluded from admission into the United States:

“(2) Aliens who, at any time, shall be or shall have been members of any of the following classes:

“(C) Aliens who are members of or affiliated with (i) the Communist Party of the United States ....

“Sec. 4. (a) Any alien who was at the time of entering the United States, or has been at any time thereafter, ... a member of any one of the classes of aliens enumerated in section 1 (2) of this Act, shall, upon the warrant of the Attorney General, be taken into custody and deported in the manner provided in the Immigration Act of February 5, 1917. The provisions of this section shall be applicable to the classes of aliens mentioned in this Act, irrespective of the time of their entry into the United States.”

The substance of the relevant portion of this provision was incorporated in the Immigration and Nationality Act of 1952, 66 Stat. 163, 205, 8 U. S. C. § 1251 (a) (6) (C).

2 “Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Attorney General is hereby authorized and directed to provide by regulations that the terms ‘members of’ and ‘affiliated with’ where used in the Act of October 16, 1918, as amended, shall include only membership or affiliation which is or was voluntary, and shall not include membership or affiliation which is or was solely (a) when under sixteen years of age, (b) by operation of law, or (c) for purposes of obtaining employment, food rations, or other essentials of living, and where necessary for such purposes.” See 16 Fed. Reg. 2907. These three exclusions from the substantive provision were, so far as deportations are concerned, repealed by the Immigration and Nationality Act of 1952, 66 Stat. 163, 280; however, as the text of this opinion makes clear, we are not deciding this case on the basis of (c), supra.