Petitioner, an alien long resident in this country, was ordered
deported on the ground that, for a period in 1949 and 1950, he was
a member of the Communist Party, within the meaning of §241
(a)(6)(C) of the Immigration and Nationality Act of 1952. In the
deportation hearing, the evidence consisted solely of the testimony
of two government witnesses that, between either late 1948 or early
1949 and the end of 1950 or early 1951, petitioner was a
dues-paying member of a club of the Communist Party in Los Angeles,
and that he attended about 15 meetings of this club, one executive
meeting of the group, and one area party convention. Petitioner
chose to introduce no evidence.
Held: On the record in this case, the Government did
not sustain its burden of establishing that petitioner's
association with the Communist Party was meaningful, as
contemplated by §241 (a)(6)(C), and the deportation order cannot
stand.
Rowoldt v. Perfetto, 355 U.
S. 115. Pp.
374 U. S.
470-480.
(a) In deportation cases such as this, the ultimate burden is on
the Government to establish that the alien was a meaningful member
of the Communist Party, and there is insufficient evidence in this
record to support such a finding. Pp.
374 U. S.
473-478.
(b) Because deportation is a drastic sanction and because the
Government's witnesses might well have been able, if asked, to
testify concerning the character of petitioner's association with
the Party, the deportation order cannot be sustained on a bare
inference based upon petitioner's failure to produce or elicit
evidence in response to the Government's proof that he paid dues to
the Party and attended some meetings. Pp.
374 U. S.
479-480.
Reversed.
Page 374 U. S. 470
MR. JUSTICE GOLDBERG delivered the opinion of the Court.
This case, stripped of its procedural complexities, raises the
question whether an alien long resident in this country is
deportable because, for a period during 1949 and 1950, he paid dues
to and attended several meetings of a club of the Communist Party
in Los Angeles. The Immigration and Naturalization Service sought
and obtained an order for petitioner's deportation on the ground
that these facts established petitioner's membership in the
Communist Party of the United States within the meaning of §
241(a)(6)(C) of the Immigration and Nationality Act of 1952, 66
Stat. 163, 204-205, 8 U.S.C. § 1251(a)(6)(C). [
Footnote 1] Whether membership was so established
turns on the application of two decisions of this Court which
construed the immediate predecessor of § 241(a)(6)(C), § 22 of the
Internal Security Act of 1950, 64 Stat. 987, 1006, 1008. In
Galvan v. Press, 347 U. S. 522,
347 U. S. 528,
it was held that deportability on the ground of Communist Party
membership turns on whether the alien was "aware that he was
joining an organization known as the Communist Party which operates
as a distinct and active political organization . . . ," and
Page 374 U. S. 471
in
Rowoldt v. Perfetto, 355 U.
S. 115,
355 U. S. 120,
it was held, in elaboration of
Galvan, that the alien must
have had a "meaningful association" with the Communist Party in
order to be deportable. The evidence in the record, to which the
standards set forth in these decisions must be applied, was all
elicited at hearings before the Service's special inquiry officer
in 1956. This evidence consists solely of the testimony of two
government witnesses, petitioner having chosen to introduce no
evidence.
The special inquiry officer entered a deportation order against
petitioner on February 28, 1957. The Board of Immigration Appeals
dismissed petitioner's appeal on November 14, 1957, on the ground
that the record established his voluntary membership in the
Communist Party. A few weeks later, this Court decided
Rowoldt
v. Perfetto, supra, and petitioner asked the Board to
reconsider its decision in light of the opinion in that case. The
Board denied the application, pointing out that the record as it
stood still supported the deportation order. It did, however, order
a reopening of the proceedings before the special inquiry officer
so that petitioner might have a chance to offer rebuttal testimony
and thereby bring himself, possibly, within the framework of the
Rowoldt decision.
At the reopened hearing, however, petitioner's counsel took the
position that, on the record as it stood, the Government had failed
to establish Communist Party membership in the sense contemplated
by the
Rowoldt decision, and therefore chose not to offer
further evidence. The Government also offered no additional
evidence. The special inquiry officer reaffirmed his previous
decision, and the Board of Immigration Appeals on May 18, 1959,
dismissed petitioner's appeal. Petitioner thereupon filed an action
in Federal District Court for review of the deportation order. That
court granted the Government's motion for summary judgment, and
dismissed the action. The United States Court of Appeals for the
District of
Page 374 U. S. 472
Columbia Circuit Affirmed the dismissal,
Gastelum-Quinones
v. Rogers, 109 U.S.App.D.C. 267, 286 F.2d 824, and this Court
denied a petition for certiorari, 365 U.S. 871.
Petitioner read the Court of Appeals' opinion as suggesting that
§ 241(a)(6)(C) would not have applied to him if he had introduced
evidence that he had not personally advocated the forcible
overthrow of the Government. [
Footnote 2] He therefore moved before the Board of
Immigration Appeals that the deportation hearing be reopened to
permit him to introduce evidence that he did not personally
advocate the violent overthrow of the Government. The Board of
Immigration Appeals heard oral argument on the motion and, on
August 1, 1961, denied it.
Petitioner then brought the present action in the District
Court, praying that the Board be ordered to reopen the deportation
hearing and that the Attorney General and his agents be enjoined
from enforcing the outstanding deportation order. A preliminary
injunction to the latter effect was also requested. The court
denied the motion for preliminary injunction on August 14, 1961,
and the Court of Appeals summarily affirmed this denial on
September 13. Petitioner filed a petition for certiorari in this
Court to review the denial of preliminary injunctive relief, and
THE CHIEF JUSTICE ordered deportation stayed until the petition
should be disposed of. Meanwhile, summary judgment was granted the
Government on the merits of petitioner's complaint, which was
thereupon dismissed, a disposition which was summarily affirmed by
the Court of Appeals on February 23, 1962. Petitioner filed an
additional petition for certiorari to review this judgment. We
granted both petitions. 371 U.S. 860. No. 39 involves the
preliminary injunction,
Page 374 U. S. 473
and No. 293 relates to the ultimate dismissal of petitioner's
complaint on the merits.
In determining whether, on the record before us, the Government
has fulfilled its burden of proving that petitioner was a "member"
of the Communist Party of the United States within the meaning of §
241(a)(6)(C), we must recognize at the outset what the history of
the times amply demonstrates, [
Footnote 3] that some Americans have joined the Communist
Party without understanding its nature as a distinct political
entity. The
Rowoldt decision, as well as other decisions
of this Court, reflects that there is a great practical and legal
difference between those who firmly attach themselves to the
Communist Party, being aware of all of the aims and purposes
attributed to it, and those who temporarily join the Party, knowing
nothing of its international relationships and believing it to be a
group solely trying to remedy unsatisfactory social or economic
conditions, carry out trade-union objectives, eliminate racial
discrimination, combat unemployment, or alleviate distress and
poverty. [
Footnote 4] Although
the Court specifically recognized in
Galvan, supra, at
347 U. S. 528,
that
"support, or even demonstrated knowledge, of the Communist
Party's advocacy of violence was not intended to be a prerequisite
to deportation,"
it did condition deportability on the alien's awareness of the
"distinct and active political" nature of the Communist Party,
ibid. This, together with the requirement of "meaningful
association" enunciated in
Rowoldt, supra, at
355 U. S. 120,
led the Court to declare later that in
Galvan and
Rowoldt, it
Page 374 U. S. 474
had "had no difficulty in interpreting
membership' . . . as
meaning more than the mere voluntary listing of a person's name on
Party rolls." Scales v. United States, 367 U.
S. 203, 367 U. S.
222.
The operation in practice of this wise distinction is
illustrated by
Rowoldt, to which we think the present case
is analogous on its facts. In
Rowoldt, the sole evidence
in the record was Rowoldt's statement to an inspector of the
Immigration and Naturalization Service, in the course of which he
admitted voluntary membership but said nothing which indicated that
he had been aware while a member that the Communist Party was a
"distinct and active political organization." Mr. Justice
Frankfurter, speaking for the Court, concluded that,
"[f]rom 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."
355 U.S. at
355 U. S. 120.
The Court therefore decided that the record was too insubstantial
to support the order of deportation. The same is true here. The
testimony of the two government witnesses establishes only that,
between either late 1948 or early 1949 and the end of 1950 or early
1951, petitioner was a dues-paying member of a club of the
Communist Party in Los Angeles, and that he attended about 15
meetings of his Party club, one executive meeting of the group, and
one area Party convention.
One witness, Scarletto, testified to having joined the Communist
Party in Los Angeles in 1947 "under the supervision of the FBI." At
a date which he did not recall, but which he thought was in late
1948 or early 1949, Scarletto was assigned to the El Sereno Club,
which "was one of the large divisions (of the Communist Party)
which was split up later." There were "approximately 32 members in
the El Sereno Club at that time," and Scarletto was the press
director of the club. Scarletto was only in the El Sereno Club for
"a few months" when
Page 374 U. S. 475
it "was split up into smaller units for security reasons."
During these few months, Scarletto testified, he was introduced to
petitioner at an El Sereno Club meeting, and saw him there one
other time. Since attendance at club meetings was restricted to
Communist Party members, Scarletto inferred that petitioner was a
member of the Party.
Scarletto was next assigned, sometime in early 1949, to the
Mexican Concentration Club, which, he testified, was also a unit of
the Communist Party of the United States. Petitioner, he said, was
put into the same new group. Scarletto shortly became organization
secretary of this group, a job which, among other things, gave him
the duty of collecting dues, and he testified that he collected
dues from petitioner. Scarletto left the Concentration Club in
early 1951, when he was transferred by the Party "to the
underground."
Concentration Club meetings were held weekly. Petitioner,
Scarletto testified, "just went once in awhile, but he was a
regular member." Over the approximately two-year period of
Scarletto's membership in the Concentration Club, during which he
attended "most" of its meetings, he testified that he saw
petitioner at "about 15" meetings. All but "a couple" of these, he
said, were restricted to Communist Party members. Although meetings
were held in members' homes, Scarletto did not recall any at
petitioner's home, and said that he himself had never been in
petitioner's home. Scarletto did not remember whether petitioner
ever held "an official position" in either the El Sereno Club or
the Mexican Concentration Club. Finally, Scarletto, who attended
Communist Party conventions in the Los Angeles area with some
regularity, recalled seeing petitioner at one such convention. He
said he himself attended these conventions in an official capacity,
but did not know in what capacity petitioner attended, except that
membership in the Party was a prerequisite to attendance.
Page 374 U. S. 476
The other witness, one Elorriaga, testified that he, too, joined
the Communist Party in Los Angeles in 1947. He, too, was a member
of the El Sereno Club, but did not meet petitioner until he was
assigned to a smaller unit "known as the Forty-Fifth
Concentration," which apparently was the same entity as the
"Mexican Concentration Club" discussed by Scarletto. Elorriaga did
not recall petitioner as being a member of the El Sereno Club.
Elorriaga's testimony as to the frequency of petitioner's
attendance at Concentration Club meetings was contradictory. After
having testified on direct examination that he saw petitioner at
three or four meetings a month, Elorriaga radically revised his
estimate the next day on redirect examination to say that he saw
petitioner at "about two or three meetings" in total, adding that
"I was present at one meeting in 1951 and another in 1949 with . .
. [petitioner]." [
Footnote 5]
The over-all lack of precision of Elorriaga's answers to questions
concerning petitioner is also suggested by a comparison of his
assertion that petitioner must have been an official of the club
"because he attended a few [of its] executive meetings," with his
immediately following admission that he himself remembered being
present at only one executive meeting with petitioner.
The evidence contained in the record is thus extremely
insubstantial in demonstrating the "meaningful" character
Page 374 U. S. 477
of petitioner's association with the Party, either directly, by
showing that he was, during the time of his membership, sensible to
the Party's nature as a political organization, or indirectly, by
showing that he engaged in Party activities to a degree
substantially supporting an inference of his awareness of the
Party's political aspect. [
Footnote
6]
Page 374 U. S. 478
In one sense, indeed, this record is even less substantial in
support of the deportation order than was the record in
Rowoldt, because, although Rowoldt stated that he joined
thinking the Party's aim was "to get something to eat for the
people," 355 U.S. at
355 U. S. 117,
it was also true that he had worked as a salesman in a bookstore
which was "an official outlet for communist literature,"
id. at
355 U. S. 118,
and that he showed some awareness of Communist philosophy and
tactics in response to questioning by the immigration inspector.
Bearing in mind that the ultimate burden in deportation cases such
as this is on the Government, it is apparent that here, as in
Rowoldt, there is insufficient evidence to support the
deportation order. [
Footnote
7]
Page 374 U. S. 479
As against the slimness of the evidence that it introduced, the
Government seeks the benefit of an inference, based upon
petitioner's failure to produce or elicit evidence in response to
the Government's proof that he paid dues to the Party and attended
some meetings, that his association with the Party was "more than
the mere voluntary listing of . . . [his] name on Party rolls."
Scales, supra, at
367 U. S. 222. It is a sufficient answer to the
Government's argument to point out that, as recognized in
Galvan, supra, at
347 U. S. 530, and
Rowoldt, supra, at
355 U. S. 120,
deportation is a drastic sanction, one which can destroy lives and
disrupt families, and that a holding of deportability must
therefore be premised upon evidence of "meaningful association"
more directly probative than a mere inference based upon the
alien's silence. [
Footnote 8]
Moreover, the fact is that the Government might well have asked its
two witnesses about petitioner's knowledge of the Party as a
political entity and about the qualitative nature of petitioner's
activities in the Party. If it were the fact that petitioner was
more aware of the Party's nature than this record shows, the
Government's witnesses could likely have given testimony, either
about petitioner's knowledge or about his Party activities, which
would have tended to prove that awareness. With the facts
concerning the nature of petitioner's association perhaps near at
hand, and in light of both the possibility that those facts would
not be consistent with a finding of "meaningful association" and
the harshness of the deportation sanction, we cannot sustain
petitioner's deportation upon a bare inference which the Government
would have us derived from petitioner's failure to introduce
evidence in
Page 374 U. S. 480
response to the Government's proof of his dues-paying membership
and sometime attendance at Party meetings.
We are hence confronted with a case in which the Government did
not sustain its burden of establishing that petitioner was a
meaningful member of the Party, as contemplated by § 241(a)(6)(C).
To paraphrase the holding of
Rowoldt, supra, at
355 U. S. 120:
from the testimony of the two government witnesses, which is all
there is, the dominating impulse to petitioner's affiliation with
the Communist Party may well have been wholly devoid of any
"political" implications. We hold that, on the record before us,
the deportation order against petitioner is not supported by
substantial evidence,
Universal Camera Corp. v. Labor
Board, 340 U. S. 474, and
therefore cannot stand. [
Footnote
9]
Judgment reversed.
[
Footnote 1]
"(a) Any alien in the United States . . . shall, upon the order
of the Attorney General, be deported who --"
"
* * * *"
"(6) is or at any time has been after entry, a member of any of
the following classes of aliens:"
"
* * * *"
"(C) Aliens who are members of or affiliated with (i) the
Communist Party of the United States. . . ."
[
Footnote 2]
There is no dispute before this Court, nor could there be, that,
under
Galvan, supra, at
347 U. S. 528,
the absence of personal advocacy of violent overthrow is not, by
itself, a bar to deportability under § 241(a)(6)(C).
See
pp.
374 U. S.
473-474,
infra.
[
Footnote 3]
See, e.g., Aaron, Writers on the Left (1961), 149-160;
Decter, The Profile of Communism (1961), 50-51; Ernst and Loth,
Report on the American Communist (1952), passim; Glazer, The Social
Basis of American Communism (1961), 115 and passim.
[
Footnote 4]
Compare Yates v. United States, 354 U.
S. 298,
354 U. S.
327-333;
Scales v. United States, 367 U.
S. 203,
367 U. S.
222-223, 230-255;
Noto v. United States,
367 U. S. 290.
[
Footnote 5]
Elorriaga's testimony on direct examination was as follows:
"Q. Now you say you met him in meetings of that club, how often
would you say you saw the respondent in meetings of that club?"
"A. How often, about maybe three or four meetings a month."
One possible explanation of the apparent contradiction is that
Elorriaga understood the question on direct examination as merely
an inquiry into how often club meetings were held, and answered
accordingly. This is borne out to some extent by the fact that the
witness gave his "revised" answer to the question on two separate
occasions, some minutes apart, during the redirect examination.
[
Footnote 6]
Since some activities may be engaged in without the requisite
awareness, satisfaction of the Government's burden as to the
ultimate fact of "meaningful association" by evidence of activities
instead of by direct evidence of awareness of the Party's "distinct
and active political" nature must be based upon evidence of
activities sufficient to give substantial support to an inference
of the alien's awareness of the Party's political aspect. The sole
aspect of the witness Scarletto's testimony which might have
implied that petitioner's association with the Party was
"meaningful" was his reference to having seen petitioner at one Los
Angeles area convention of the Party. However, in contrast to the
testimony in
Niukkanen v. McAlexander, 362 U.
S. 390,
note 7
infra, Scarletto neither described what petitioner would
have heard at the convention nor suggested that there was any
prerequisite such as officership or executive responsibility to
petitioner's attendance at the convention. Scarletto said that the
nature of such conventions generally was that "they would have
discussions on what was going on in the Party, and what drives were
coming up," but did not elaborate this statement with reference to
the convention that petitioner attended or to what petitioner did
there. Scarletto could only be sure that petitioner had to be a
member to be present. The only facet of Elorriaga's testimony which
touched upon the qualitative aspect of petitioner's membership was
his statement that he had seen petitioner at one executive board
meeting of the Party unit. However, in contrast to the testimony in
Galvan, supra, at
347 U. S. 524,
347 U. S. 529,
he only supposed petitioner to have been an "official of the club"
because of petitioner's presence at an executive meeting which
Elorriaga thought was "probably" limited to "officials of the
club," and he did not elaborate specifically upon the significance
of petitioner's presence at the one meeting, making only the
general statement that,
"[a]t this time, I cannot say definitely the purpose [of that
meeting], but it was either organizational or to form an agenda for
the regular meeting."
Thus, none of the testimony of either Scarletto or Elorriaga was
significantly probative of petitioner's "meaningful association"
with the Party.
[
Footnote 7]
This Court's later per curiam decision in
Niukkanen v.
McAlexander, 362 U. S. 390, in
no way qualified the meaning of
Rowoldt, since the
evidence in the record in
Niukkanen, clearly showed
"meaningful association."
See Niukkanen v. McAlexander,
265 F.2d 825 (C.A.9th Cir. 1959). Two witnesses testified for the
Government. Both confirmed Niukkanen's Party membership and his
regular attendance at meetings. In addition, one witness testified
that Niukkanen helped in the distribution of a Communist-controlled
trade union newspaper edited by the witness, and actively
participated in discussions at the newspaper office and elsewhere
pertaining to policies of the Communist Party and circulation of
the newspaper as a Communist organ. This witness also testified
that Niukkanen had attended a regional "plenum" of the Party -- a
meeting wherein all aspects of regional Party activities were
reported on. Such a meeting, said the witness, was only for the
"anointed people," the "top fraction" in the Party, to which, the
witness added, Niukkanen belonged. The other witness, who had been
a member of the same unit of the Party as Niukkanen, added that
Niukkanen, although never an officer of the unit, was a member of
its executive board.
Nor is
Galvan, supra, which was decided before
Rowoldt, inconsistent with either that case or the present
one. Mr. Justice Frankfurter, who wrote the Court's opinions in
both
Galvan and
Rowoldt, stated in
Rowoldt that "[t]he differences on the facts between
Galvan v. Press, supra, and this case are too obvious to
be detailed." 355 U.S. at
355 U. S.
121.
[
Footnote 8]
In the present case, for example, deportation would remove a man
who has resided in this country since 1920, when he came from
Mexico as a 10-year-old boy, and has raised and supported a family
who are all American citizens.
[
Footnote 9]
Our disposition of the case makes it unnecessary to consider
petitioner's contention that "at least the spirit" of 28 U.S.C. §
46 was violated when the panel of the Court of Appeals assigned to
hear petitioner's appeal in the current series of proceedings
transferred the appeal instead to the same panel which had heard
his first appeal, 109 U.S.App.D.C. 267, 286 F.2d 824, it being
clearly predictable that one of the three judges on that panel
would not participate, since he had been unable to participate in
the disposition of the first appeal.
MR. JUSTICE WHITE, whom MR. JUSTICE CLARK, MR. JUSTICE HARLAN
and MR. JUSTICE STEWART join, dissenting.
Petitioner is charged with being an alien who, after entry, had
become a member of the Communist Party, and thus subject to
deportation under § 241(a)(6)(C) of the Immigration and Nationality
Act of 1952. Hearings were held from April through July, 1956, at
which the United States introduced testimony of two witnesses as to
petitioner's affiliation with Communist Party units in Los Angeles
from 1949 to 1951, but petitioner refused to answer any question
concerning his membership in the
Page 374 U. S. 481
Communist Party. The special inquiry officer found petitioner
deportable under § 241(a)(6)(C) and the Board of Immigration
Appeals dismissed the petitioner's appeal on November 14, 1957,
holding that the evidence established a
prima facie case
of membership which petitioner made no attempt to rebut. On January
13, 1958, after this Court's decision in
Rowoldt v.
Perfetto, 355 U. S. 115, the
Board of Immigration Appeals reconsidered petitioner's case in
light of
Rowoldt. Noting that, unlike the petitioner in
Rowoldt, petitioner here had offered no evidence which
would upset the normal inference of political awareness flowing
from his two-year association with the Communist Party at a time
when the purposes and activities of the Party were a matter of
public record, the Board granted petitioner's request to reopen the
proceedings in order that he might present testimony which would
bring him within
Rowoldt. At the reopened hearings,
however, petitioner offered no evidence, but merely introduced a
statement asserting that the existing record did not establish
meaningful membership and suggesting that the Government present
additional evidence. The special inquiry officer, after reexamining
the record, adhered to his original conclusion that the evidence
showed voluntary, meaningful membership in the Communist Party. On
appeal to the Board of Immigration Appeals, that body, after
examining the record again, reaffirmed its decision that the
testimony established meaningful membership within the
Rowoldt case. Petitioner filed a petition for declaratory
and injunctive relief in the District Court to review the
deportation order and, after still another examination of the order
and the supporting record, the court granted the Board's motion for
summary judgment. The Court of Appeals held that "the findings of
the Board that [petitioner's] Party membership was meaningful is
established by the record," 109 U.S.App.D.C. 267, 271, 286 F.2d
824, 828,
Page 374 U. S. 482
and affirmed. In a petition for certiorari to this Court,
petitioner argued that the evidence was insufficient to support the
deportation order, but certiorari was denied, 365 U.S. 871.
Petitioner thereupon commenced the proceedings which bring the
case before us today. He filed a motion to reopen the proceedings
before the Board of Immigration Appeals on the ground that he
should be permitted to testify that he never personally advocated
the overthrow of the Government by force and violence. While not
disputing that an inquiry into whether an alien personally
advocated violent overthrow is immaterial in deportation
proceedings,
Galvan v. Press, 347 U.
S. 522, petitioner nonetheless insisted upon introducing
the testimony because, as he read the opinion of the Court of
Appeals, 109 U.S.App.D.C. 267, 286 F.2d 824, proof that an alien
did not personally espouse the cause of violent overthrow of the
Government would save him from deportation under § 241(a)(6)(C).
The Board of Immigration Appeals declined to reopen the proceedings
again because, in its view, the Court of Appeals did not announce
the rule on which petitioner relied, and because
Galvan v.
Press and
Rowoldt v. Perfetto so clearly held that
proof of such a personal commitment to the tenet of violent
overthrow was not required for deportation proceedings. After
reviewing the record for the third time, the Board concluded that
"there is uncontradicted testimony to show that a voluntary
meaningful membership existed." Petitioner filed his second action
for judicial review, contending that the refusal to reopen the
hearings so that he could submit his testimony was "erroneous,
unconstitutional and illegal." The District Court, finding no abuse
of discretion in the Board's refusal to reopen the proceedings,
declined to disturb the deportation order. The Court of Appeals
affirmed, the case was brought here, and the Court now reverses. I
respectfully dissent.
Page 374 U. S. 483
First. The issue tendered to the District Court was
whether the Board of Immigration Appeals should have reopened the
record to allow petitioner to present evidence of the kind stated
in the affidavit attached to the complaint. Both the District Court
and the Court of Appeals upheld the Board's refusal to reopen the
proceedings. The Court here does not disagree, nor does it suggest
that the evidence which petitioner sought to add to the record was
in any way material to the question of deportability under the
statute. Instead, it decides that the record does not show
meaningful or voluntary membership, thus resurrecting an issue
supposedly settled in previous proceedings in this case, an issue
which the courts below time after time decided contrary to the view
now taken by this Court and an issue which the Court itself
previously declined to review by certiorari. A wise use of the
Court's powers would confine decision here to the issue presented
to the District Court, rather than afford repeated review of
previously decided matters, and so call into question the integrity
of the administrative and judicial process.
Second. Shaughnessy v. Pedreiro, 349 U. S.
48, held that an alien could, by bringing an action for
declaratory judgment and injunction, secure judicial review of a
"final" order of deportation under § 10 of the Administrative
Procedure Act. This is such an action, as the complaint expressly
states, and affirmance of the order of deportation is required in
this case unless the administrative findings are not supported by
substantial evidence. Although the order must
"be set aside when the record before a Court . . . clearly
precludes the Board's decision from being justified by a fair
estimate of the worth of the testimony of witnesses or its informed
judgment on matters within its special competence or both,"
review under § 10 does not
"mean that, even as to matters not requiring expertise, a court
may displace the Board's
Page 374 U. S. 484
choice between two fairly conflicting views, even though the
court would justifiably have made a different choice had the matter
been before it
de novo."
Universal Camera Corp. v. Labor Board, 340 U.
S. 474,
340 U. S. 488,
340 U. S.
490.
"It is . . . immaterial that the facts permit the drawing of
diverse inferences. The [agency] alone is charged with the duty of
initially selecting the inference which seems most reasonable, and
[its] choice, if otherwise sustainable, may not be disturbed by a
reviewing court."
Cardillo v. Liberty Mutual Ins. Co., 330 U.
S. 469,
330 U. S.
478.
If
Galvan v. Press and
Rowoldt v. Perfetto are
not to be overruled or substantially modified, neither of which
petitioner has requested here, and if the substantial evidence rule
is not to be abandoned, there is ample basis on this record to
sustain the finding of voluntary, meaningful membership. Petitioner
was a regular dues-paying member of the Party at least from 1949 to
1951, and there is no evidence that his membership terminated at
the latter date. When the Party was reorganized into smaller units,
petitioner was transferred to a new group, and he was seen 15 times
("it could be 15, it could be more") at meetings of the unit which
were restricted to Party members. "He was an official of the club
because he attended a few executive meetings of the Forty-Fifth,"
at one of which he was seen by the government witness. This meeting
was "either organizational or to form an agenda for the regular
meeting." Attendance at executive meetings was restricted "to Party
members, and probably officials of the club." At one time,
petitioner was transferred out of the Mexican Concentration Club
"for some other job." Petitioner was also known to have attended at
least one Party convention, attendance at which was restricted to
Party members --
"you had to face the panel and give your club, your position of
that club, and be identified by the members that were on the, on
this panel, before you were admitted."
At the conventions,
Page 374 U. S. 485
"they would have discussions on what was going on in the Party,
and what drives were coming up."
These facts are sufficient basis for the Board's finding of
voluntary, meaningful membership.
* After regular
attendance at Party Meetings and functions, and regular financial
support for its activities, it is rather fanciful to believe
petitioner was still unaware of the political nature of the
Communist Party. It is doubtful that the meetings were so ineptly
run or structured.
To be sure, facts purporting to show voluntary membership can be
explained away and rendered meaningless by further facts, as in
Rowoldt. But here, petitioner did not testify and did not
attempt to characterize or to limit the significance of his
association with the Party. In the circumstances,
"it is enough that the alien joined the Party, aware that he was
joining an organization known as the Communist Party which operates
as a distinct and active political organization, and that he did so
of his own free will. A fair reading of the legislation requires
that this scope be given to what Congress enacted. . . ."
Galvan v. Press, 347 U.S. at
347 U. S.
528.
I would therefore affirm the repeated holdings of the courts
below, made after several thorough examinations of the record.
"This is not the place to review a conflict
Page 374 U. S. 486
of evidence nor to reverse a Court of Appeals because, were we
in its place, we would find the record tilting one way rather than
the other, though fairminded judges could find it tilting either
way."
Labor Board v. Pittsburgh S.S. Co., 340 U.
S. 498,
340 U. S. 503.
"We do no more on the issue of insubstantiality than decide that
the Court of Appeals has made a
fair assessment' of the
record." Federal Trade Comm'n v. Standard Oil Co.,
355 U. S. 396,
355 U. S. 401;
Peurifoy v. Commissioner, 358 U. S.
59, 358 U. S. 61;
Labor Board v. Pittsburgh S.S. Co., 340 U.
S. 498, 340 U. S.
502.
"This Court will intervene only in what ought to be the rare
instance when the standard appears to have been misapprehended or
grossly misapplied."
Universal Camera Corp. v. Labor Board, 340 U.
S. 474,
340 U. S.
491.
* The Court is concerned about the insufficiency of the "direct"
and "indirect" evidence of awareness and participation. The record,
though, contains "direct" evidence from Scarletto, who saw
petitioner at Party meetings and at a convention, and who testified
that at such conventions "they would have discussions on what was
going on in the Party." Elorriaga stated that he saw petitioner at
an executive meeting "either organizational or to form an agenda
for the regular meeting." Both witnesses testified "directly" that
petitioner was a dues-paying member and attended Party meetings. To
me, this uncontradicted testimony plainly is "direct" evidence that
petitioner was aware of the distinct and active political nature of
the Communist Party or at the very least sufficient "indirect"
evidence from which an inference of meaningful membership could be
drawn.