1. The order for the deportation of the petitioner -- issued
under the Act of June 28, 1940, providing for the deportation of
any alien who was at the time of his entry into the United States,
or has been at any time thereafter, a member of or affiliated with
an organization that believes in, advises, advocates, or teaches
the overthrow of this Government by force or violence -- rests upon
a misconstruction of the term "affiliation" as used in the Act, and
upon an unfair hearing on the question of his membership in the
Communist Party, wherefore
Page 326 U. S. 136
his detention under the warrant of deportation is unlawful. Pp.
326 U. S. 140,
326 U. S.
156.
2. The act or acts tending to prove "affiliation" within the
meaning of the deportation statute must be of that quality which
indicates an adherence to or a furtherance of the purposes or
objectives of the proscribed organization, as distinguished from
mere cooperation with it in lawful activities. The act or acts must
evidence a working alliance to bring the program to fruition. P.
326 U. S.
143.
3. Freedom of speech and of the press is accorded aliens
residing in this country. P.
326 U. S.
148.
4. So far as the record shows the literature published by the
petitioner, the utterances made by him were entitled to the
protection of the freedom of speech and of the press. They revealed
a militant advocacy of the cause of trade unionism, but did not
teach or advocate or advise the subversive conduct condemned by the
statute. P.
326 U. S.
148.
5. Detention under an invalid order of deportation is
established where an alien is ordered deported for reasons not
specified by Congress. P.
326 U. S.
149.
6. Upon the record in this case, the finding of "affiliation"
was based on too loose a meaning of that term. P.
326 U. S.
149.
7. A person under investigation with a view to deportation is
legally entitled to insist upon the observance of rules promulgated
pursuant to law by the agency entrusted with the power to deport.
P.
326 U. S.
153.
8. Objection to evidence on the ground that it violates the
governing regulations is timely where made before both the Board of
Immigration Appeals and the Attorney General, though not at the
hearing before the inspector. P.
326 U. S.
151.
9. Since it was error to admit into evidence against the
petitioner certain unsworn statements in violation of Rules
150.1(c) and 150.6(i) of the Regulations of the Immigration and
Naturalization Service -- construed as meaning (1) that an
investigating officer, in obtaining a "recorded statement," must
obtain the statement by interrogation under oath, and seek to
obtain it over the signature of the maker, and (2) that only such a
"recorded statement," so safeguarded, may be used as evidence when
the maker of the statement gives contradictory evidence on the
stand -- since the statements in question were so crucial to the
findings of membership, and since that issue was so close, this
Court is unable to say that the order of deportation may be
sustained without them. Pp.
326 U. S. 151,
326 U. S.
156.
10. In habeas corpus proceedings challenging the legality of
detention upon a warrant of deportation, the petitioner does not
prove he had
Page 326 U. S. 137
an unfair hearing merely by proving the decision to be wrong or
by showing that incompetent evidence was admitted or considered;
but the case is different where evidence as improperly received and
where, but for that evidence, it is wholly speculative whether the
requisite finding would have been made. P.
326 U. S.
156.
144 F.2d 927, reversed.
Certiorari,
323 U. S. 708, to
review the affirmance of a judgment denying a petition for a writ
of habeas corpus.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Harry Bridges is an alien who entered this country from
Australia in 1920. In 1938, deportation proceedings were instituted
against him on the ground that he both had been and then was a
member of or affiliated with the Communist Party of the United
States, and that that party advised and taught the overthrow by
force of the government
Page 326 U. S. 138
of the United States and caused printed matter to be circulated
which advocated that course. Under the statute then in force, past
membership or past affiliation was insufficient for deportation,
present membership or present affiliation being required.
Kessler v. Strecker, 307 U. S. 22. A
hearing was had. The examiner, Hon. James M. Landis, concluded that
the evidence established neither that Harry Bridges "is a member of
nor affiliated with" the Communist Party of the United States. The
Secretary of Labor sustained the examiner and dismissed the
proceedings. That was in January, 1940. By the Act of June 28,
1940, Congress amended the statute so as to provide for deportation
of any lien who was "at the time of entering the United States, or
has been at any time thereafter" a member of or affiliated with an
organization of the character attributed to the Communist Party in
the first proceeding. [
Footnote
1] A second deportation proceeding was instituted
Page 326 U. S. 139
against Harry Bridges under the amended statute on the ground
that he had been a member of or affiliated with that organization.
[
Footnote 2] Another hearing
was had. The inspector designated to conduct the hearings and make
a report, Hon. Charles B. Sears, found that the Communist Party of
the United States was an organization of the character described in
the statute, that the Marine Workers Industrial Union was
affiliated with the Communist Party and was an organization of the
same character, and that, after entering this country, Harry
Bridges had been affiliated with both organizations, and had been a
member of the Communist party. He recommended deportation. The case
was heard by the Board of Immigration Appeals, [
Footnote 3] which found that Harry Bridges had not
been
Page 326 U. S. 140
a member of or affiliated with either of those organizations at
any time after he entered this country. The Attorney General
reviewed the decision of the Board and rendered an opinion in which
he made findings in accordance with those proposed by the inspector
and ordered Harry Bridges to be deported. A warrant of deportation
was issued. Harry Bridges surrendered himself to the custody of
respondent and challenged the legality of his detention by a
petition for a writ of habeas corpus in the District Court for the
Northern District of California. That court denied the petition and
remanded petitioner to the custody of respondent.
49 F. Supp.
292. The Circuit Court of Appeals affirmed by a divided vote.
144 F.2d 927, 944. The case is here on a petition for a writ of
certiorari which we granted because of the serious character of the
questions which are presented.
As we have said, Harry Bridges came here from Australia in 1920.
He has not returned to Australia since that time. He was a
longshoreman. In 1933, he became active in trade union work on the
waterfront in San Francisco. The Attorney General found that he had
"done much to improve the conditions that existed among the
longshoremen." He reorganized and headed up the International
Page 326 U. S. 141
Longshoremen's Association, an American Federation of Labor
union. He led the maritime workers' strike on the Pacific Coast in
1934. He was president of the local International Longshoremen's
Association from 1934 to 1936, and was Pacific Coast president in
1936. In 1937, his union broke with the American Federation of
Labor, changed its name to International Longshoremen and
Warehousemen's Union, and became affiliated with the Committee for
Industrial Organization. Bridges was elected Pacific Coast District
President of that union, and has held the office ever since. He
also holds several important offices in the CIO.
The two grounds on which the deportation order rests -- that
Harry Bridges at one time had been both "affiliated" with the
Communist party and a member of it -- present different questions,
with which we deal separately.
Affiliation. The statute defines affiliation as
follows:
"For the purpose of this section: (1) the giving, loaning, or
promising of money or anything of value to be used for the
advising, advocacy, or teaching of any doctrine above enumerated
shall constitute the advising, advocacy, or teaching of such
doctrine, and (2) the giving, loaning or promising of money or
anything of value to any organization, association, society, or
group of the character above described shall constitute affiliation
therewith; but nothing in this paragraph shall be taken as an
exclusive definition of advising, advocacy, teaching, or
affiliation."
41 Stat. 1009, 8 U.S.C. § 137(f). The doctrine referred to is
the overthrow of the government by force or violence. [
Footnote 4] The organizations or groups
referred to are those which advise and teach that doctrine or which
write, circulate, display, and the like, or have in their
possession for such purpose, any written or printed matter of that
character.
Page 326 U. S. 142
In ruling on the question whether an alien had been "affiliated"
with the Communist party, and therefore could be deported, the
court in
United States v. Reimer, 79 F.2d 315, 317, said
that such an affiliation was not proved
"unless the alien is shown to have so conducted himself that he
has brought about a status of mutual recognition that he may be
relied on to cooperate with the Communist Party on a fairly
permanent basis. He must be more than merely in sympathy with its
aims or even willing to aid it in a casual intermittent way.
Affiliation includes an element of dependability upon which the
organization can rely which, though not equivalent to membership
duty, does rest upon a course of conduct that could not be abruptly
ended without giving at least reasonable cause for the charge of a
breach of good faith."
The same idea was expressed by Dean Landis in the first Bridges'
report. After stating that "affiliation" implies a "stronger bond"
than "association," he went on to say:
"In the corporate field, its use embraces not the casual
affinity of an occasional similarity of objective, but ties and
connections that, though less than that complete control which
parent possesses over subsidiary, are nevertheless sufficient to
create a continuing relationship that embraces both units within
the concept of a system. In the field of eleemosynary and political
organization, the same basic idea prevails."
And he concluded:
"Persons engaged in bitter industrial struggles tend to seek
help and assistance from every available source. But the
intermittent solicitation and acceptance of such help must be shown
to have ripened into those bonds of mutual cooperation and alliance
that entail continuing reciprocal duties and responsibilities
before they can be deemed to come within the statutory requirement
of affiliation. . . . To expand that statutory definition to
embrace within its terms
ad hoc cooperation on objectives
whose pursuit is clearly allowable under our constitutional system,
or
Page 326 U. S. 143
friendly associations that have not been shown to have resulted
in the employment of illegal means, is warranted neither by reason
nor by law."
The legislative history throws little light on the meaning of
"affiliation" as used in the statute. It imports, however, less
than membership, but more than sympathy. By the terms of the
statute, it includes those who contribute money or anything of
value to an organization which believes in, advises, advocates, or
teaches the overthrow of our government by force or violence. That
example throws light on the meaning of the term "affiliation." He
who renders financial assistance to any organization may generally
be said to approve of its objectives or aims. So Congress declared
in the case of an alien who contributed to the treasury of an
organization whose aim was to overthrow the government by force and
violence. But he who cooperates with such an organization only in
its wholly lawful activities cannot by that fact be said as a
matter of law to be "affiliated" with it. Nor is it conclusive that
the cooperation was more than intermittent, and showed a rather
consistent course of conduct. Common sense indicates that the term
"affiliation" in this setting should be construed more narrowly.
Individuals, like nations, may cooperate in a common cause over a
period of months or years though their ultimate aims do not
coincide. Alliances for limited objectives are well known.
Certainly those who joined forces with Russia to defeat the Nazis
may not be said to have made an alliance to spread the cause of
Communism. An individual who makes contributions to feed hungry men
does not become "affiliated" with the Communist cause because those
men are Communists. A different result is not necessarily indicated
if aid is given to or received from a proscribed organization in
order to win a legitimate objective in a domestic controversy.
Whether intermittent or repeated, the act or acts tending to prove
"affiliation" must be of
Page 326 U. S. 144
that quality which indicates an adherence to or a furtherance of
the purposes or objectives of the proscribed organization, as
distinguished from mere cooperation with it in lawful activities.
The act or acts must evidence a working alliance to bring the
program to fruition.
We are satisfied that the term "affiliation" was not so
construed either by Judge Sears or by the Attorney General. The
reports made in this case contain no precise formulation of the
standard which was employed. But the way in which the term
"affiliation" was used and applied convinces us that it was given a
looser and more expansive meaning than the statute permits. Judge
Sears, in his report, stated that
"Affiliation is clearly a word of broader content than
membership, and of narrower content than sympathy. Generally there
will be some continuity of relationship to bring the word into
application."
But he concluded that that was not necessarily so in view of the
statutory definition. And he added:
"Affiliation may doubtless be shown circumstantially. Assisting
in the enterprises of an organization, securing members for it,
taking part in meetings organized and directed by or on behalf of
the organization, would all tend to show affiliation. The weight to
be given to such evidence is, of course, determined by the trier of
the fact."
That view was apparently shared by the Attorney General. But the
broad sweep which was given the term in its application to the
facts of this case is illustrated by the following excerpt from the
Attorney General's report:
"Judge Sears summarizes Bridges' attitude towards the Communist
Party and its policies by saying that the 'isolated instances,'
while not evidence to establish membership in or affiliation with
the Communist Party, nevertheless show a sympathetic or cooperative
attitude on his part to the Party, and form 'a pattern which is
more consistent with the conclusion that the alien followed this
course of conduct as an affiliate of the Communist Party,
Page 326 U. S. 145
rather than as a matter of chance coincidence.' This conclusion,
said Judge Sears, was strengthened by his consistently favoring
nondiscrimination against union men because of Communist
membership, and by his excoriating 'red baiters,' as he called
those who took an opposite view, which 'amounted to cooperation
with the Communist Party in carrying out its program of penetration
and boring from within.'"
But, when we turn to the facts of this case, we have little more
than a course of conduct which reveals cooperation with Communist
groups for the attainment of wholly lawful objectives.
The associations which Harry Bridges had with various Communist
groups seem to indicate no more than cooperative measures to attain
objectives which were wholly legitimate. The link by which it is
sought to tie him to subversive activities is an exceedingly
tenuous one, if it may be said to exist at all. The Trade Union
Unity League was found to be a Communist organization. It chartered
the Marine Workers' Industrial Union in 1930, which continued until
1935 and was found to be a proscribed organization. That union
launched the Waterfront Worker, a mimeographed sheet, in 1932. The
Attorney General sustained Judge Sears' finding that Bridges'
sponsored it and was responsible for its publication shortly after
it first appeared in 1932 and down to its abandonment in 1936. The
paper acknowledged the assistance of the MWIU prior to September
15, 1933. The question when Bridges took over the paper was closely
contested, the Board of Immigration Appeals finding that Bridges
became connected with it about September 15, 1933, after the MWIU
had abandoned it. The finding of Judge Sears, approved by the
Attorney General, that the paper was an instrument of the MWIU and
the Communist Party from December, 1932, to its abandonment in
1936, and that it was under the domination and control
Page 326 U. S. 146
of those organizations during that period rested primarily on
the following grounds:
"(1) the acknowledged cooperation with the MWIU, in the early
issues of the paper and subsequent favorable treatment of the MWIU,
TUUL, and other Communist-sponsored organizations during the
paper's entire existence, (2) Consistent attacks upon the so-called
'reactionary' leaders of the AFL, (3) support of the Communist
candidates for political office, (4) advice to read Communist
literature, (5) the use of addresses of Communists or
Communist-affiliated organizations."
But when the evidence underlying these findings is examined, it
is found to be devoid of any showing that the Waterfront Worker
advocated overthrow of the government by force. It was a militant
trade union journal. It aired the grievances of the longshoreman.
It discussed national affairs affecting the interests of working
men. It declared against war. But we have found no evidence
whatsoever which suggests that it advocated the overthrow of the
government by force. Nor is there any finding that Bridges took
over this project with the view of doing more than advancing the
lawful cause of unionism. The advice to support for office certain
candidates said to be Communists was based entirely on the platform
on which they ran -- cash relief; abolition of vagrancy laws; no
evictions; gas, water and electricity for the unemployed, and
unemployment relief. The advice to read Communist literature was
not general; it was specifically addressed to the comparative
merits of those publications and other papers on the truthfulness
of labor news. The use of addresses of Communist organizations,
especially stressed by the Attorney General, was said by Judge
Sears to demonstrate "a close cooperation with the Communists and
Communist Organizations." But close cooperation is not sufficient
to establish an "affiliation" within the meaning of the statute. It
must evidence a working alliance to bring the proscribed program to
fruition.
Page 326 U. S. 147
It must be remembered that the Marine Workers Industrial Union
was not a sham or pretense. It was a genuine union. It was found to
have, and we assume it did have, the illegitimate objective of
overthrowing the government by force. But it also had the objective
of improving the lot of its members in the normal trade union
sense. One who cooperated with it in promoting its legitimate
objectives certainly could not, by that fact alone, be said to
sponsor or approve of its general or unlawful objectives. But,
unless he also joined in that overall program, he would not be
"affiliated" with the Communist cause in the sense in which the
statute uses the term.
Whether one could be a member of that union without becoming
"affiliated" with the Communist party within the meaning of the
statute we need not decide. For Harry Bridges was never a member of
it. To say that his cooperation with it made him in turn
"affiliated" with the Communist party is to impute to him belief in
and adherence to, its general or unlawful objectives. In that
connection, it must be remembered that, although deportation
technically is not criminal punishment (
Johannessen v. United
States, 225 U. S. 227,
225 U. S. 242;
Bugajewitz v. Adams, 228 U. S. 585,
228 U. S. 591;
Mabler v. Eby, 264 U. S. 32,
264 U. S. 39),
it may nevertheless visit as great a hardship as the deprivation of
the right to pursue a vocation or a calling.
Cf. 71 U.
S. Missouri, 4 Wall. 277;
Ex parte
Garland, 4 Wall. 333. As stated by Mr. Justice
Brandeis speaking for the Court in
Ng Fung Ho v. White,
259 U. S. 276,
259 U. S. 284,
deportation may result in the loss "of all that makes life worth
living."
We cannot assume that Congress meant to employ the term
"affiliation" in a broad, fluid sense which would visit such
hardship on an alien for slight or insubstantial reasons. It is
clear that Congress desired to have the country rid of those aliens
who embraced the political faith of force and violence. But we
cannot believe that Congress intended to cast so wide a net as to
reach those whose ideas
Page 326 U. S. 148
and program, though coinciding with the legitimate aims of such
groups, nevertheless fell far short of overthrowing the government
by force and violence. Freedom of speech and of press is accorded
aliens residing in this country.
Bridges v. California,
314 U. S. 252. So
far as this record shows the literature published by Harry Bridges,
the utterances made by him were entitled to that protection. They
revealed a militant advocacy of the cause of trade unionism. But
they did not teach or advocate or advise the subversive conduct
condemned by the statute.
Inference must be piled on inference to impute belief in Harry
Bridges of the revolutionary aims of the groups whose aid and
assistance he employed in his endeavor to improve the lot of the
workingmen on the waterfront. That he enlisted such aid is not
denied. He justified that course on the grounds of expediency -- to
get such help as he could to aid the cause of his union. [
Footnote 5] But there is evidence that
he opposed the Communist tactics of fomenting strikes; that he
believed in the policy of arbitration and direct negotiation to
settle labor disputes, with the strike reserved only as a last
resort. As Dean Landis stated in the first report:
Page 326 U. S. 149
"Bridges' own statement of his political beliefs and disbeliefs
is important. It was given not only without reserve, but vigorously
as dogma and faiths of which the man was proud, and which
represented in his mind the aims of his existence. It was a
fighting apologia that refused to temper itself to the winds of
caution. It was an avowal of sympathy with many of the objectives
that the Communist Party at times has embraced, an expression of
disbelief that the methods they wished to employ were as
revolutionary as they generally seem, but it was unequivocal in its
distrust of tactics other than those that are generally included
within the concept of democratic methods. That Bridges' aims are
energetically radical may be admitted, but the proof fails to
establish that the methods he seeks to employ to realize them are
other than those that the framework of democratic and
constitutional government permits."
That observation is equally pertinent to the record before us.
We cannot construe "affiliation" as used in the statute to bring
such conduct and attitudes within its reach. Whether the evidence
would justify a finding of "affiliation" in the strict sense in
which the statute uses the term is is not for us to say. An act
innocent on its face may be done with an evil purpose. But where
the fate of a human being is at stake, the presence of the evil
purpose may not be left to conjecture. In these habeas corpus
proceedings, we do not review the evidence beyond ascertaining that
there is some evidence to support the deportation order.
Vajtauer v. Commissioner, 273 U.
S. 103,
273 U. S. 106.
But detention under an invalid order of deportation is established
where an alien is ordered deported for reasons not specified by
Congress.
Mabler v. Eby, supra. That is the case here. For
our review of the record convinces us that the finding of
"affiliation" was based on too loose a meaning of the term.
Membership. The evidence of "affiliation" was used not
only to support the finding that Harry Bridges had
Page 326 U. S. 150
been "affiliated" with the Communist party, but also to
corroborate the finding that, at one time, he had been a member of
that organization. We may assume that such evidence, though falling
short of the requirements of "affiliation," might be admissible for
the latter purpose. But the difficulty is that the finding of
membership, like the finding of affiliation, has an infirmity which
may be challenged in this attack on the legality of Harry Bridges'
detention under the deportation order.
Rule 150.1(c) of the Regulations of the Immigration and
Naturalization Service (8 C.F.R., 1941 Supp., 150.1(c))
provides:
"All statements secured from the alien or any other person
during the investigation, which are to be used as evidence, shall
be taken down in writing, and the investigating officer shall ask
the person interrogated to sign the statement. Whenever such a
recorded statement is to be obtained from any person, the
investigating officer shall identify himself to such person, and
the interrogation of that person shall be under oath or
affirmation. Whenever a recorded statement is to be obtained from a
person under investigation, he shall be warned that any statement
made by him may be used as evidence in any subsequent
proceeding."
And Rule 150.6(i) provides in part:
"A recorded statement made by the alien (other than a General
Information Form) or by any other person during an investigation
may be received in evidence only if the maker of such statement is
unavailable or refuses to testify at the warrant hearing or gives
testimony contradicting the statements made during the
investigation."
O'Neil was a government witness. He was intimate with Harry
Bridges. During the course of the examination, O'Neil was asked
about statements which he allegedly had made to investigating
officers some months earlier. These statements were not signed by
O'Neil. They were not made by interrogation under oath. And it was
not
Page 326 U. S. 151
shown that O'Neil was asked to swear and sign, or that, being
asked, he refused. They were read into the record and verified by
the stenographer who took them down. And an officer testified that,
later, O'Neil had repeated the statements to him and to other
witnesses. These statements were that O'Neil joined the Communist
party in December, 1936; that he walked into Bridges' office one
day in 1937 and saw Bridges pasting assessment stamps in a
Communist party book, and that Bridges reminded O'Neil that he had
not been attending party meetings. O'Neil admitted making
statements to the investigating officers, but denied making those
particular statements.
Judge Sears admitted the statements not for purposes of
impeachment, but as substantive evidence. The Board of Immigration
Appeals and the Attorney General both conceded that the statements
were admitted in violation of Rules 150.1(c) and 150.6(i).
[
Footnote 6] The Board held
that it was error to consider the statements as affirmative,
probative evidence. The Attorney General ruled:
"Had the
Page 326 U. S. 152
alien raised the question at the time of the hearing, compliance
with the Departmental Regulations would have been obligatory, and a
deliberate rejection of a request to exclude the testimony would
have rendered appropriate the objections now raised by the Board.
No objection having been raised by the alien throughout the
hearing, however, he waived the right to object on the technical
ground that the statement was not taken in accordance with the
rules."
One difficulty with that position is that Bridges did protest
before Judge Sears over the use of the statement. He maintained
that they were erroneously received and were without probative
value, though he did not rest his objection on the regulations. But
there is a more fundamental difficulty. The original deciding body
is not the inspector who hears the case. He merely submits a
memorandum setting forth the evidence adduced at the hearing, his
proposed findings of fact and conclusions of law, and a proposed
order. [
Footnote 7] The case
then is heard by the Board of Immigration Appeals, which is
authorized to perform the functions of the Attorney General in
relation to deportation. 8 C.F.R., 1940 Supp., §§ 90.2, 90.3. And
the case may then go to the Attorney General for decision. If the
objection to evidence on the ground that it violates the governing
regulations is made before the agency entrusted with the duty of
deciding whether a case for deportation has been established, it is
made soon enough. Objection to the use of these statements as
probative evidence was made before both the Board and the Attorney
General. It was specifically objected that the statements did not
qualify under the regulations.
The rules are designed to protect the interests of the alien and
to afford him due process of law. It is the action of the deciding
body, not the recommendation of the inspector, which determines
whether the alien will be deported.
Page 326 U. S. 153
The rules afford protection at that crucial stage of the
proceedings or not at all. The person to whom the power to deport
has been entrusted is the Attorney General, or such agency as he
designates. 8 U.S.C. § 155. He is an original trier of fact on the
whole record. It is his decision to deport an alien that Congress
has made "final." 8 U.S.C. § 155. Accordingly, it is no answer to
say that the rules may be disregarded because they were not called
to the attention of the inspector.
It was assumed in
Bilokumsky v. Tod, 263 U.
S. 149,
263 U. S. 155,
that "one under investigation with a view to deportation is legally
entitled to insist upon the observance of rules promulgated by the
Secretary pursuant to law." We adhere to that principle. For these
rules are designed as safeguards against essentially unfair
procedures. The importance of this particular rule may not be
gainsaid. A written statement at the earlier interviews under oath
and signed by O'Neil would have afforded protection against
mistakes in hearing, mistakes in memory, mistakes in transcription.
Statements made under those conditions would have an important
safeguard -- the fear of prosecution for perjury. Moreover, if
O'Neil had been asked to swear to and sign the statements and had
refused to do so, the fact of his refusal would have weight in
evaluating the truth of the statements.
The statements which O'Neil allegedly made were hearsay. We may
assume they would be admissible for purposes of impeachment. But
they certainly would not be admissible in any criminal case as
substantive evidence.
Hickory v. United States,
151 U. S. 303,
151 U. S. 309;
United States v. Block, 88 F.2d 618, 620. So to hold would
allow men to be convicted on unsworn testimony of witnesses
[
Footnote 8] -- a
Page 326 U. S. 154
practice which runs counter to the notions of fairness on which
our legal system is founded. [
Footnote 9] There has been some relaxation of the rule in
alien exclusion cases.
See United States ex rel. Ng Kee Wong v.
Corsi, 65 F.2d 564. But we are dealing here with deportation
of aliens whose roots may have become, as they are in the present
case, deeply fixed in this land. It is true that the courts have
been liberal in relaxing the ordinary rules of evidence in
administrative hearings. Yet, as was aptly stated in
Interstate
Commerce Co mission v. Louisville & Nashville R. Co.,
227 U. S. 88,
227 U. S.
93,
"But the more liberal the practice in admitting testimony, the
more imperative the obligation to preserve the essential rules of
evidence by which rights are asserted or defended."
Here, the liberty of an individual is at stake. Highly
incriminating statements are used against him -- statements which
were unsworn and which, under the governing regulations, are
inadmissible. We are dealing here with procedural requirements
prescribed for the protection of the alien. Though deportation is
not technically a criminal proceeding, it visits a great hardship
on the individual, and deprives him of the right to stay and live
and work in this land of freedom. That deportation is a penalty --
at times, a most serious one -- cannot be doubted. Meticulous care
must be exercised lest the procedure by which he is deprived of
that liberty not meet the essential standards of fairness.
On the record before us, it is clear that the use of O'Neil's
ex parte statements was highly prejudicial. Those unsworn
statements of O'Neil and the testimony of one Lundeberg were
accepted by the Attorney General as showing
Page 326 U. S. 155
that Bridges was a member of the Communist party. There was
other testimony, but it was so "untrustworthy, contradictory, or
unreliable" as to be rejected by the Attorney General. If the
finding as to Lundeberg's testimony was treated by the Attorney
General independently of his finding as to O'Neil's, we would have
a different case. Then we would have to determine whether the
testimony of Lundeberg alone was sufficient to sustain the order.
But the Attorney General, unlike Judge Sears, did not separate the
testimony of Lundeberg and that of O'Neil for the purpose of his
finding as to membership. He lumped them together and found that,
between them, their total weight was sufficient to tip the scales
against Harry Bridges. He ruled that, if the unsworn statements of
O'Neil and the testimony of Lundeberg were believed, "the doubt is
decided." [
Footnote 10] It
is thus apparent not only that the unsworn statements of O'Neil
weighed heavily in the scales, but also that it took those unsworn
statements, as well as Lundeberg's testimony, to resolve the doubt
on this sharply contested and close question. Whether the finding
would have been made on this record
Page 326 U. S. 156
from the testimony of Lundeberg alone is wholly conjectural and
highly speculative. Not only was Lundeberg admittedly hostile to
Bridges. Not only did the Attorney General fail to rule that, on
the basis of Lundeberg's testimony alone, Bridges had been a member
of the party. But, beyond that, the Board of Immigration Appeals
significantly concluded that, apart from O'Neil's unsworn
statements, the evidence of Bridges' membership was too flimsy to
support a finding. It is thus idle to consider what the Attorney
General might have ruled on the basis of the other evidence before
him.
Cf. United States v. Dunton, 291 F. 905, 907. The
issue of membership was too close and too crucial to the case to
admit of mere speculation. Since it was error to admit O'Neil's
unsworn statements against Bridges, since they were so crucial to
the findings of membership, and since that issue was so close, we
are unable to say that the order of deportation may be sustained
without them.
In these habeas corpus proceedings, the alien does not prove he
had an unfair hearing merely by proving the decision to be wrong
(
Tisi v. Tod, 264 U. S. 131,
264 U. S. 133)
or by showing that incompetent evidence was admitted and
considered.
Vajtauer v. Commissioner, supra, p.
273 U. S. 106.
But the case is different where evidence was improperly received
and where, but for that evidence, it is wholly speculative whether
the requisite finding would have been made. Then there is
deportation without a fair hearing which may be corrected on habeas
corpus.
See Vajtauer v. Commissioner, supra.
Since Harry Bridges has been ordered deported on a
misconstruction of the term "affiliation" as used in the statute
and by reason of an unfair hearing on the question of his
membership in the Communist party, his detention under the warrant
is unlawful. Accordingly, it is unnecessary for us to consider the
larger constitutional questions
Page 326 U. S. 157
which have been advanced in the challenge to the legality of
petitioner's detention under the deportation order.
The judgment below is
Reversed.
MR. JUSTICE JACKSON took no part in the consideration or
decision of this case.
[
Footnote 1]
The statute as amended (40 Stat. 1012, 41 Stat. 1008, 54 Stat.
673, 8 U.S.C. § 137) provides in part as follows:
"That any alien who at any time, shall be or shall have been a
member of any one of the following classes shall be excluded from
admission into the United States:"
"
* * * *"
"(c) Aliens . . . who are members of or affiliated with any
organization, association, society, or group, that believes in,
advises, advocates, or teaches: (1) the overthrow by force or
violence of the Government of the United States."
"
* * * *"
"(e) Aliens who are members of or affiliated with any
organization, association, society, or group that writes,
circulates, distributes, prints, publishes, or displays, or causes
to be written, circulated, distributed, printed, published, or
displayed, or that has in its possession for the purpose of
circulation, distribution, publication, issue, or display any
written or printed matter of the character described in subdivision
(d) [advising, advocating or teaching the overthrow by force or
violence of the Government of the United States]."
"For the purpose of this section: (1) the giving, loaning, or
promising of money or anything of value to be used for the
advising, advocacy, or teaching of any doctrine above enumerated
shall constitute the advising, advocacy, or teaching of such
doctrine, and (2) the giving, loaning, or promising of money or any
thing of value to any organization, association, society, or group
of the character above described shall constitute affiliation
therewith, but nothing in this paragraph shall be taken as an
exclusive definition of advising, advocacy, teaching, or
affiliation."
"Sec. 2. 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 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 Immigration Act of February 5, 1917 is found in 39 Stat.
874.
[
Footnote 2]
Since June 14, 1940, the immigration laws have been administered
by the Attorney General. Reorganization Plan No. V, effective June
14, 1940. 54 Stat. 230, 1238, 5 U.S.C. fol. 133t, 5 U.S.C.
133v.
[
Footnote 3]
The Regulations of the Immigration and Naturalization Service
provide that the alien shall be accorded a hearing before an
immigrant inspector to determine whether he is subject to
deportation on the charges stated in the warrant of arrest at which
hearing the alien is entitled to representation by counsel and to
offer evidence in his behalf. As soon as practicable after the
hearing has been concluded, the inspector is required to prepare a
memorandum setting forth a summary of the evidence adduced at the
hearing, his proposed findings of fact and conclusions of law, and
a proposed order, which are to be furnished to the alien or his
counsel, who may file exception thereto and submit a brief, 8
C.F.R., 1941 Supp., 150.6, 150.7. The case is then heard by the
Board of Immigration Appeals, a body authorized to perform the
functions of the Attorney General in relation to deportation, but
responsible solely to him. 8 C.F.R., 1940 Supp., 90.2-90.3. If
exceptions have been filed, oral argument before the Board is
permitted.
Ibid., 90.5. Where a member of the Board
dissents, where the Board certifies that a question of difficulty
is involved, or in any case in which the Attorney General directs,
the Board must refer the case to the Attorney General for review.
If the Attorney General reverses the decision of the Board, the
Attorney General must state in writing his conclusions and the
reasons for his decision.
Ibid., 90.12.
[
Footnote 4]
See note 1
supra.
[
Footnote 5]
As respects printing releases of the Communist party in a union
paper, he testified:
"As I understand, the question was my position in regard to
printing official Communist releases. I still say it might depend.
For example, if -- there was a lot of trouble up there at that
time, a lot of action and tieups. I believe that, if the Communist
party happened to send in a statement saying that they would do
everything they could to support the particular dispute at that
time in behalf of the Union position, my position would be that I
wouldn't have any great objection to seeing that carried in the
Union paper."
As respects voting for a political candidate known to be a
Communist, he testified:
"The question of support only goes to whether he is a unionist
or not. If he is a bad unionist, we don't care what he is, we are
against him; if he is a good one, we don't care what he is, we are
for him. His first allegiance must be for the union."
[
Footnote 6]
We accept that construction of the Rules. For Rule 150.6(i),
when read in conjunction with Rule 150.1(c), fairly means (1) that
an investigating officer in obtaining a "recorded statement" must
obtain the statement by interrogation under oath and seek to obtain
it over the signature of the maker, and (2) that only such a
"recorded statement," so safeguarded, may be used as evidence when
the maker of the statement gives contradictory testimony on the
stand. It is true that Rule 150.6(i) also provides that
An affidavit of an inspector as to the statements made by the
alien or any other person during an investigation may be received
in evidence, otherwise than in support of the testimony of the
inspector, only if the maker of such statement is unavailable or
refuses to testify at the warrant hearing or gives testimony
contradicting the statement and the inspector is unavailable to
testify in person.
If we assume that that provision creates an exception from the
general rule in case of the inspector who is unavailable to testify
in person, we can hardly infer that the exception was designed to
swallow the general rule. The deep-rooted policy of the law towards
hearsay evidence cautions against such a loose reading of these
fundamental procedural safeguards.
[
Footnote 7]
See note 3
supra.
[
Footnote 8]
We have here quite a different case from that where a prior
statement of an alien, contradictory of testimony made at the
hearing, is admitted.
See Chan Wong v. Nagle, 17 F.2d 987;
Ex parte Ematsu Kishimoto, 32 F.2d 991; 4 Wigmore,
Evidence (3rd ed.) § 1048.
[
Footnote 9]
Dean Wigmore, in his third edition of Evidence (1940) § 1018(b),
took the other position. But he added,
"The contrary view, however, is the orthodox one. It is
universally maintained by the Courts that Prior Self-Contradictions
are not to be treated as having any
substantive or independent
testimonial value."
[
Footnote 10]
The Attorney General stated, immediately prior to his analysis
of the testimony of Lundeberg and O'Neil, the following:
"Judge Sears examines in detail the evidence of fifteen
witnesses as bearing on Bridges' membership in or affiliation with
the Communist Party. Much of this evidence is rejected as being
untrustworthy, contradictory, or unreliable. However, the evidence
of two witnesses is accepted as showing that Bridges was a member
of the party. If this evidence is believed -- and Judge Sears
believed it -- the doubt is decided. The question is substantially
one of credibility. The Review Board did not think the evidence
credible. But it should be remembered that Judge Sears saw the
witnesses on the stand, watched their demeanor and expression, and
was in a far better position to judge their truthfulness than the
Review Board, dealing with the cold print of the record."
"The two most important witnesses as to membership are Harry
Lundeberg and James D. O'Neil."
MR. JUSTICE MURPHY, concurring.
The record in this case will stand forever as a monument to
man's intolerance of man. Seldom if ever in the history of this
nation has there been such a concentrated and relentless crusade to
deport an individual because he dared to exercise the freedom that
belongs to him as a human being and that is guaranteed to him by
the Constitution.
For more than a decade, powerful economic and social forces have
combined with public and private agencies to seek the deportation
of Harry Bridges, who came to this country in 1920 from Australia.
Emerging from the Pacific Coast maritime strike of 1934 as a
recognized labor leader in that area, Bridges incurred the hatred
and hostility of those whose interests coincided directly or
indirectly with the "vicious and inhumane practices toward
longshoremen," 144 F.2d 927, 938, that Bridges was combatting. His
personal viewpoint on certain matters also antagonized many people
of more conservative leanings. Agitation for his deportation arose.
Industrial and farming organizations, veterans' groups, city police
departments, and private undercover agents all joined in an
unremitting effort to deport him on the ground that he was
connected with organizations dedicated to the overthrow of the
Government of the United States by force and violence. Wiretapping,
searches and seizures without warrants, and other forms of invasion
of the right of privacy have been widely employed in this
deportation drive.
Page 326 U. S. 158
This opposition to Bridges' presence in the United States has
been as persistent as it has been undaunted by temporary setbacks
to its aims. The Immigration and Naturalization Service, after a
thorough investigation of the original charges in 1934 and 1935,
was unable to find even a "shred of evidence" warranting his
deportation, and the matter officially was dropped. But the
campaign to banish him continued unabated. Eventually a warrant was
issued by the Immigration and Naturalization Service in 1938
seeking his deportation. A clean bill of health was given him,
however, after a full hearing before a special examiner, Dean
Landis of the Harvard Law School. This only led to demands that the
deportation laws be changed to make sure that Bridges was exiled.
Thereupon, a special bill was introduced and actually passed by the
House of Representatives directing the Attorney General
"notwithstanding any other provisions of law" forthwith to take
into custody and deport Harry Bridges, "whose presence in this
country the Congress deems hurtful." H.R. 9766, 76th Cong., 3rd
Sess. Fortunately, this bill died in a Senate committee after the
Attorney General denounced it as inconsistent with the American
practice and tradition of due process of law. S.Rep. No. 2031, 76th
Cong., 3rd Sess., p. 9.
As a substitute for this direct legislative assault upon
Bridges, Congress amended the deportation law by enacting Section
23 of the Alien Registration Act of 1940, 54 Stat. 673. This
amendment set aside this Court's decision in
Kessler v.
Strecker, 307 U. S. 22, by
making it clear that an alien could be deported if, at the time of
entering the United States or at any time thereafter, he was a
member of or affiliated with an organization advocating the
forceful overthrow of the Government. It thus was no longer
necessary that the alien be an affiliate or member at the time of
the issuance of the warrant of arrest. In the words of the author
of this amendment:
"It is my joy to
Page 326 U. S. 159
announce that this bill will do, in a perfectly legal and
constitutional manner, what the bill specifically aimed at the
deportation of Harry Bridges seeks to accomplish. This bill changes
the law so that the Department of Justice should now have little
trouble in deporting Harry Bridges and all others of similar
ilk."
86 Cong.Rec. 9031.
This prophecy was quickly realized, to the satisfaction of the
vast interests arrayed against Bridges. A warrant for his arrest
and deportation under this new statutory provision was issued in
1941, followed by a hearing before another special examiner, Judge
Sears. Evidence was presented by the Government on practically the
same matters as in the first proceeding. This time, however, the
examiner discovered sufficient grounds for recommending
deportation. Although the Board of Immigration Appeals unanimously
rejected this recommendation, the Attorney General, without holding
a hearing or listening to argument, reversed the Board and ordered
the deportation of Bridges.
It is not surprising that the background and intensity of this
effort to deport one individual should result in a singular lack of
due process of law. Much of the evidence presented by the
Government has been described by the Attorney General as
"untrustworthy, contradictory, or unreliable." The remaining
Government evidence can scarcely be described in more generous
terms. And the Court's opinion, in which I join, demonstrates that
the proceeding had its validity further undermined by a
misconception of the statutory term "affiliation" and by the
improper use of hearsay statements.
But the Constitution has been more than a silent, anemic witness
to this proceeding. It has not stood idly by while one of its
subjects is being excommunicated from this nation without the
slightest proof that his presence constitutes a clear and present
danger to the public welfare. Nor has it remained aloof while this
individual is
Page 326 U. S. 160
being deported, resulting in the loss "of all that makes life
worth living,"
Ng Fung Ho v. White, 259 U.
S. 276,
259 U. S. 284,
on a finding that, regardless of his personal beliefs, he was a
member and an affiliate of an organization advocating the forceful
overthrow of the Government. When the immutable freedoms guaranteed
by the Bill of Rights have been so openly and concededly ignored,
the full wrath of constitutional condemnation descends upon the
action taken by the Government. And only by expressing that wrath
can we give form and substance to "the great, the indispensable
democratic freedoms,"
Thomas v. Collins, 323 U.
S. 516,
323 U. S. 530,
to which this nation is dedicated.
The unconstitutionality of the statute in issue and the
invalidity of the proceeding brought pursuant thereto are obvious.
As construed and applied in this case, the statute calls for the
deportation of Harry Bridges after a fair hearing in which "some"
evidence is established that he was a member or affiliate of an
organization advocating the forceful overthrow of the Government.
Such a provision rests its claim to legality upon one basic
assumption, an assumption that is obnoxious and intolerable when
viewed in light of the supernal heritage and ideals of this
nation.
This assumption underlying the statute is that the "plenary"
power of Congress to deport resident aliens is unaffected by the
guarantee of substantive freedoms contained in the Bill of Rights.
In other words, as the Government has urged before us, the
deportation power of Congress
"is unaffected by considerations which, in other contexts, might
justify the striking down of legislation as an abridgment of
constitutionally guaranteed rights of free speech and
association."
From this premise it follows that Congress may constitutionally
deport aliens for whatever reasons it may choose, limited only by
the due process requirement of a fair hearing. The color of their
skin, their racial background, or their religious faith may
Page 326 U. S. 161
conceivably be used as the basis for their banishment. An alien
who merely writes or utters a statement critical of the Government,
or who subscribes to an unpopular political or social philosophy,
or who affiliates with a labor union, or who distributes religious
handbills on the street corner, may be subjected to the legislative
whim of deportation.
I am unable to believe that the Constitution sanctions that
assumption or the consequences that logically and inevitably flow
from its application. The power to exclude and deport aliens is one
springing out of the inherent sovereignty of the United States.
Chinese Exclusion Case, 130 U. S. 581.
Since an alien obviously brings with him no constitutional rights,
Congress may exclude him in the first instance for whatever reason
it sees fit.
Turner v. Williams, 194 U.
S. 279. The Bill of Rights is a futile authority for the
alien seeking admission for the first time to these shores. But,
once an alien lawfully enters and resides in this country, he
becomes invested with the rights guaranteed by the Constitution to
all people within our borders. Such rights include those protected
by the First and the Fifth Amendments and by the due process clause
of the Fourteenth Amendment. None of these provisions acknowledges
any distinction between citizens and resident aliens. They extend
their inalienable privileges to all "persons," and guard against
any encroachment on those rights by federal or state authority.
Indeed, this Court has previously and expressly recognized that
Harry Bridges, the alien, possesses the right to free speech and
free press, and that the Constitution will defend him in the
exercise of that right.
Bridges v. California,
314 U. S. 252.
Since resident aliens have constitutional rights, it follows
that Congress may not ignore them in the exercise of its "plenary"
power of deportation. As this Court said in a previous exclusion
case,
"But this court has never held, nor
Page 326 U. S. 162
must we now be understood as holding, that administrative
officers, when executing the provisions of a statute involving the
liberty of persons, may disregard the fundamental principles that
inhere in 'due process of law' as understood at the time of the
adoption of the Constitution."
"
Japanese Immigrant Case, 189 U. S.
86,
189 U. S. 100. No less may a
statute on its face disregard the basic freedoms that the
Constitution guarantees to resident aliens. THE CHIEF JUSTICE, in
his dissenting opinion in
Jones v. Opelika, 316 U. S.
584,
316 U. S. 609, has stated
that 'The First Amendment prohibits all laws abridging freedom of
press and religion, not merely some laws or all except tax laws.'
By the same token, the First Amendment and other portions of the
Bill of Rights make no exception in favor of deportation laws or
laws enacted pursuant to a 'plenary' power of the Government.
Hence, the very provisions of the Constitution negative the
proposition that Congress, in the exercise of a 'plenary' power,
may override the rights of those who are numbered among the
beneficiaries of the Bill of Rights."
Any other conclusion would make our constitutional safeguards
transitory and discriminatory in nature. Thus, the Government would
be precluded from enjoining or imprisoning an alien for exercising
his freedom of speech. But the Government at the same time would be
free, from a constitutional standpoint, to deport him for
exercising that very same freedom. The alien would be fully clothed
with his constitutional rights when defending himself in a court of
law, but he would be stripped of those rights when deportation
officials encircle him. I cannot agree that the framers of the
Constitution meant to make such an empty mockery of human
freedom.
Since the basic assumption of the statute is false, the Bill of
Rights must be brought to bear. And when that is done, several
constitutional infirmities are apparent in this legislation.
See 52 Yale L.J. 108. As shown by the
Page 326 U. S. 163
record in this case, Harry Bridges has done no more than
exercise his personal right to free speech and association. Yet,
upon proof of that fact, he would be subject to deportation under
the statute. The invalidity of legislation of such nature is
inescapable.
First. The deportation statute completely ignores the
traditional American doctrine requiring personal guilt, rather than
guilt by association or imputation, before a penalty or punishment
is inflicted.
The statute does not require that an alien, to be deportable,
must personally advocate or believe in the forceful overthrow of
the Government. It is enough if he is a member or an affiliate of
an organization which advocates such a doctrine. And, in this case,
the Government admits that it has neither claimed nor attempted to
prove that Harry Bridges personally advocated or believed in the
proscribed doctrine. There is no evidence, moreover, that he
understood the Communist Party to advocate violent revolution, or
that he ever committed or tried to commit an overt act directed to
the realization of such an aim.
The doctrine of personal guilt is one of the most fundamental
principles of our jurisprudence. It partakes of the very essence of
the concept of freedom and due process of law.
Schneiderman v.
United States, 320 U. S. 118,
320 U. S. 154.
It prevents the persecution of the innocent for the beliefs and
actions of others.
See Chafee, Free Speech in the United
States (1941), pp. 472-475.
Yet the deportation statute, on its face and in its present
application, flatly disregards this rule. It condemns an alien to
exile for beliefs and teachings to which he may not personally
subscribe and of which he may not even be aware. This fact alone is
enough to invalidate the legislation.
Cf. DeJonge v.
Oregon, 299 U. S. 353;
Herndon v. Lowry, 301 U. S. 242;
Whitney v. California, 274 U. S. 357.
It is no answer that a deportation proceeding is technically
noncriminal in nature, and that a deportable alien is
Page 326 U. S. 164
not adjudged guilty of a "crime." Those are over-subtle niceties
that shed their significance when we are concerned with
safeguarding the ideals of the Bill of Rights. The impact of
deportation upon the life of an alien is often as great, if not
greater than, the imposition of a criminal sentence. A deported
alien may lose his family, his friends, and his livelihood forever.
Return to his native land may result in poverty, persecution, and
even death. There is thus no justifiable reason for discarding the
democratic and humane tenets of our legal system and descending to
the practices of despotism in dealing with deportation.
Second. The deportation statute is further invalid
under the "clear and present danger" test enunciated in
Schenck
v. United States, 249 U. S. 47.
It is clear that, if an organization advocated and was capable
of causing immediate and serious violence in order to overthrow the
Government, and if an alien member or affiliate personally joined
in such advocacy, a clear and present danger to the public welfare
would be demonstrated, and the Government would then have the power
to deport or otherwise punish the alien. But the statute in issue
makes no attempt to require such proof. It is apparently satisfied
if an organization, at any time since the alien became a member or
affiliate, advocated as a theoretical doctrine the use of force
under hypothetical conditions at some indefinite future time. It is
immaterial whether the organization presently advocates such an
abstract doctrine, or whether the alien is presently a member or an
affiliate, or whether he presently adheres to the organization's
views. It matters not that an alien member never knew or understood
the organization's illegal aim, or that he may have resigned in
protest upon learning of it. It appears to be enough that the
organization at one time advocated the unlawful doctrine, and that
the alien was a member or affiliate at some time in the past, even
if for no longer than one minute. 86 Cong.Rec. 9032. It is not
Page 326 U. S. 165
even clear that the organization's advocacy of violent
revolution and an alien's membership or affiliation must coincide
in point of time. Such a statute fails to satisfy any rational or
realistic test. It certainly does not pretend to require proof of a
clear and present danger so as properly to negative the presumption
that individual rights are supreme under the Constitution. It
therefore founders in constitutional waters.
The Government frankly concedes that this case was not tried or
decided below on the theory that the "clear and present danger"
test had any application. Proof of Bridges' membership and
affiliation with the Communist Party was shown by some of the most
tenuous and unreliable evidence ever to be introduced in an
administrative or legal proceeding. Proof that the Communist Party
advocates the theoretical or ultimate overthrow of the Government
by force was demonstrated by resort to some rather ancient party
documents, certain other general Communist literature, and oral
corroborating testimony of Government witnesses. Not the slightest
evidence was introduced to show that either Bridges or the
Communist Party seriously and imminently threatens to uproot the
Government by force or violence.
Deportation, with all its grave consequences, should not be
sanctioned on such weak and unconvincing proof of a real and
imminent threat to our national security. Congress has ample power
to protect the United States from internal revolution and anarchy
without abandoning the ideals of freedom and tolerance. We, as a
nation, lose part of our greatness whenever we deport or punish
those who merely exercise their freedoms in an unpopular though
innocuous manner. The strength of this nation is weakened more by
those who suppress the freedom of others than by those who are
allowed freely to think and act as their consciences dictate.
Our concern in this case does not halt with the fate of Harry
Bridges, an alien whose constitutional rights have
Page 326 U. S. 166
been grossly violated. The significance of this case is
far-reaching. The liberties of the 3,500,000 other aliens in this
nation are also at stake. Many of these aliens, like many of our
forebears, were driven from their original homelands by bigoted
authorities who denied the existence of freedom and tolerance. It
would be a dismal prospect for them to discover that their freedom
in the United States is dependent upon their conformity to the
popular notions of the moment. But they need not make that
discovery. The Bill of Rights belongs to them, as well as to all
citizens. It protects them as long as they reside within the
boundaries of our land. It protects them in the exercise of the
great individual rights necessary to a sound political and economic
democracy. Neither injunction, fine, imprisonment, nor deportation
can be utilized to restrict or prevent the exercise of intellectual
freedom. Only by zealously guarding the rights of the most humble,
the most unorthodox, and the most despised among us can freedom
flourish and endure in our land.
MR. CHIEF JUSTICE STONE.
MR. JUSTICE ROBERTS, MR. JUSTICE FRANKFURTER, and I think that
the deportation order should be sustained, and the judgment below
affirmed.
This case presents no novel question. Under our Constitution and
laws, Congress has its functions, the Attorney General his, and the
courts theirs in regard to the deportation of aliens. Our function
is a very limited one. In this case, our decision turns on the
application of the long settled rule that, in reviewing the
factfindings of administrative officers or agencies, courts are
without authority to set aside their findings if they are supported
by evidence. This Court has not heretofore departed from that rule
in reviewing deportation orders upon collateral attack by habeas
corpus,
Tisi v. Tod, 264 U. S. 131;
Vajtauer v. Commissioner of Immigration, 273 U.
S. 103,
273 U. S.
106;
Page 326 U. S. 167
Costanzo v. Tillinghast, 287 U.
S. 341,
287 U. S. 343,
and cases cited, and there is no occasion for its doing so now.
Congress, in the exercise of its plenary power over the
deportation of aliens, has directed the deportation of any alien
who, at the time of his entry into the United States or at any time
thereafter, has been a member of or affiliated with
"any organization, association, society, or group, that believes
in, advises, advocates, or teaches . . . the overthrow by force or
violence of the Government of the United States . . . [or] that
writes, circulates, distributes, prints, publishes, or displays . .
. any written or printed matter"
advising, advocating or teaching the overthrow by force or
violence of the Government of the United States. §§ 1 and 2 of the
Act of October 16, 1918, c. 186, 40 Stat. 1012, as amended by the
Act of June 5, 1920, c. 251, 41 Stat. 1008, 1009, and the Act of
June 28, 1940, c. 439, 54 Stat. 673, 8 U.S.C. § 137.
Congress has committed the conduct of deportation proceedings to
an administrative officer, the Attorney General, with no provision
for direct review of his action by the courts. Instead it has
provided that his decision shall be "final," 8 U.S.C. § 155, as it
may constitutionally do.
Zakonaite v. Wolf, 226 U.
S. 272,
226 U. S. 275,
and cases cited. Only in the exercise of their authority to issue
writs of habeas corpus may courts inquire whether the Attorney
General has exceeded his statutory authority or acted contrary to
law or the Constitution.
Bilokumsky v. Tod, 263 U.
S. 149,
263 U. S. 153;
Vajtauer v. Commissioner of Immigration, supra. And, when
the authority to deport the alien turns on a determination of fact
by the Attorney General, the courts, as we have said, are without
authority to disturb his finding if it has the support of evidence
of any probative value.
In this proceeding, the Attorney General, following the
prescribed procedure, issued a warrant for the arrest of
petitioner, charging that, after his entry into the United
Page 326 U. S. 168
States, he had been a member of and affiliated with
organizations of the type referred to in the part of the
deportation statute we have quoted. The Attorney General, as
authorized by the applicable statutes and regulations, appointed
the Honorable Charles B. Sears, an experienced judge formerly of
the Court of Appeals of New York, to act as an inspector to hear
evidence on the charges. The hearings before Judge Sears extended
over a period of nearly three months, in the course of which
evidence was offered by the Government and by petitioner, who was
represented by counsel. The evidence is contained in more than
seventy-five hundred typewritten pages of the record and in three
hundred and fifty-nine exhibits. The record in this Court covers
some seventy-eight hundred printed pages.
At the conclusion of the hearings, Judge Sears made his
memorandum decision, in which he found that the Communist Party of
the United States and the Marine Workers' Industrial Union were, at
all relevant times, each an organization which believed in and
advocated the overthrow by force and violence of the Government of
the United States, and that the Communist Party also wrote,
circulated, distributed, printed, published, and displayed printed
matter advising, advocating, or teaching the overthrow by force and
violence of the Government of the United States. Those findings are
not challenged here. Judge Sears also found that petitioner was
subject to deportation, and recommended that he be deported, on two
separate and independent grounds: (a) that he was a member of the
Communist Party of the United States, and (b) that he was
affiliated with the Communist Party and with the Marine Workers'
Industrial Union, which was a part of the Communist Party of the
United States.
As we are of opinion that the finding of Bridges' membership in
the Communist Party, standing alone, supports the deportation
order, and that the finding is supported
Page 326 U. S. 169
by evidence, we deem it unnecessary to consider other
contentions to which the Court's opinion is principally directed.
The evidence of membership is of two kinds, and may be briefly
summarized. It consists of background testimony of numerous
witnesses, much of it uncontradicted, which Judge Sears found to be
true and which showed that Bridges had long and continuously
associated with Communists and Communist Party organizations, and
had exhibited a sympathetic attitude toward the Communist Party and
its program. More important and decisive of the issue now before us
is evidence concerning Bridges' interviews with two witnesses
which, if true, as to either interview, showed that Bridges, both
by his words and conduct, proved his membership in the Party.
One witness, Lundeberg, a prominent labor leader, testified that
he had dined at Bridges' home in 1935; that Bridges, along with a
member of the Communist Party who was also present, urged the
witness to join the Communist Party, and that this took place in
the presence of two members of Bridges' family and his secretary.
Lundeberg testified that Bridges said on that occasion:
"You don't have to be afraid, because nobody has to know you are
a member of the Communist Party. . . . You don't have to be afraid,
because I am one too. . . . I am a member of the Communist
Party."
Bridges denied making these statements, although he admitted
that the witness had dined with him at his home in 1935 when
several members of his family were present. The others said to be
present failed to testify, and their absence from the witness stand
is unexplained.
The other witness, O'Neil, who was the publicity director of the
CIO, a member of the Communist Party, and an intimate of Bridges,
and who shared offices with him after 1936, made a statement to
members of the Federal Bureau of Investigation that, in 1937, he
saw Bridges in his office pasting assessment stamps (receipts for
payment
Page 326 U. S. 170
of Communist Party dues) in a Communist Party book, which the
witness was certain was petitioner's membership book in the Party,
and that Bridges on several occasions reminded the witness that he
had not been attending Party meetings. The accuracy of the
statement, as given in evidence, was verified by the stenographer,
who, testifying as a witness, read the statement from her
stenographic notes. Major Schofield, a Special Assistant to the
Attorney General, testified that O'Neil had repeated substantially
the same statement to him in the presence of two witnesses. O'Neil,
who had demonstrated his hostility to the Government and his
unwillingness to testify, testified, when he was called as a
Government witness, that he had made two statements at the times
and in the manner indicated, and that they were true statements,
but he denied that he had said that Bridges was a Communist, or
that he had seen him pasting assessment stamps in a Communist Party
book.
Judge Sears, who saw and heard the witnesses, ruled that the
prior statements of O'Neil were admissible. He declared in his
decision that he believed and accepted as true Lundeberg's
testimony and O'Neil's prior statements; that each supported his
finding that Bridges was a Party member, and that each was
corroborated by Bridges' associations with Communist Party members
and organizations, as well as by other circumstances, appearing in
the testimony, and which it is unnecessary to detail. On review,
the Board of Immigration Appeals proposed findings which would have
rejected the findings of Judge Sears as unsupported by evidence.
The Attorney General declined to follow the recommendations of the
Board, but instead adopted the findings of Judge Sears. He
therefore ordered petitioner's deportation.
On this record, we have only a single question to decide. Was
there some evidence supporting the findings of Judge Sears and the
Attorney General that Bridges was a member
Page 326 U. S. 171
of the Communist Party? If there was, then, as we have said, we
have no further function to perform, and the judgment must be
affirmed. To determine that issue, we need not look beyond the
testimony of Lundeberg. If his testimony is to be believed, Bridges
admitted his membership in the Communist Party in circumstances
which carry conviction of the truth of the fact admitted. It was
for the hearing officer, Judge Sears, and the trier of fact, the
Attorney General, not the courts, to say whether Lundeberg was to
be believed. In deciding that issue, the administrative officials
could take into account, as they did, the facts that four persons,
all evidently friendly to Bridges, and who according to the
testimony were present at the interview between Lundeberg and
Bridges, failed to testify, and that Bridges' failure to call them
as witnesses stands unexplained.
Interstate Circuit v. United
States, 306 U. S. 208,
306 U. S.
225-226, and cases cited.
The conclusion which the two administrative officers, charged
with finding the facts, have drawn from this testimony is not to be
brushed aside by saying that the O'Neil statements are inadmissible
as evidence, and that the triers of fact would not or might not
have accepted Lundeberg's testimony without O'Neil's. For neither
Judge Sears nor the Attorney General made acceptance of the one
dependent on acceptance of the other. Not a word in Judge Sears'
decision or that of the Attorney General suggests that they did not
regard the testimony of Lundeberg or the statements of O'Neil, each
without the other, as sufficient to support their finding that
Bridges was a member of the Communist Party. On the contrary, each
declared that he accepted Lundeberg's testimony and O'Neil's
statements, and that he believed each. It can hardly be said,
without more, that they did not accept the credited evidence
furnished by each witness as sufficient, in itself, to support
their finding of Party membership.
But the record does not stop there. Both Judge Sears and the
Attorney General examined the Lundeberg and
Page 326 U. S. 172
the O'Neil testimony separately and made separate findings as to
the effect to be given to each. The findings of Judge Sears,
adopted by the Attorney General, show affirmatively that both
officials accepted the testimony of Lundeberg and the statements of
O'Neil as independently sufficient to support the finding that
Bridges was a member of the Communist Party.
Lundeberg's testimony related wholly to his interview with
Bridges in 1935. Of Lundeberg's testimony, Judge Sears said:
"The question for me to answer is whether the Government has
established that Bridges admitted to Lundeberg at the time
specified that he was a member of the Communist Party. If he did so
admit, it is, in my judgment, conclusive evidence of the fact."
After examining Lundeberg's testimony and considering his
demeanor on the witness stand and the strongly corroborative
circumstance that others who were in a position to deny his
testimony had failed to do so, Judge Sears said:
"I reach the conclusion, therefore, that the conversation did
take place substantially as testified by Lundeberg, and that
Bridges did then and there admit to Lundeberg that he was a member
of the Communist party."
Thus, Judge Sears clearly stated that Lundeberg's testimony
alone was sufficient to sustain a finding that petitioner was a
member of the Communist Party in 1935.
At the conclusion of his like examination of O'Neil's
statements, which related wholly to O'Neil's interview with Bridges
in 1937, Judge Sears said:
"Having thus concluded that O'Neil made the statements
attributed to him by Mrs. Segerstrom [the stenographer] and Major
Schofield, I am also convinced of their truth. I do not overlook
O'Neil's repudiation of the statements or Bridges' denials of the
facts recited therein."
"Taking into consideration all the evidence bearing on this
phase of the proceeding, I conclude that it is established
Page 326 U. S. 173
that the narrations contained in O'Neil's statement to Mrs.
Segerstrom and in his conversation in the presence of Major
Schofield are the truth, and I find the fact, in accordance
therewith, that Bridges was, in 1937, a member of the Communist
Party."
The Attorney General, after a like separate examination of the
Lundeberg and O'Neil evidence, made it perfectly clear that he
accepted Judge Sears' findings as to each. He too said that the
question as to each witness was a matter of his credibility, and
that he believed the witness, rather than petitioner, because, on
this point, he accepted Judge Sears' finding that they, and not
Bridges, were to be believed. The conclusion is inescapable that
the administrative officers, whose concurrent findings we are bound
to accept if supported by evidence, did not make their finding,
from the Lundeberg testimony, that Bridges was a Party member in
1935, dependent in any degree upon their finding, from the O'Neil
evidence, that Bridges was a member of the Party in 1937, or vice
versa. This is particularly the case since Lundeberg's and O'Neil's
testimony was not cumulative as to membership in the Communist
Party at a single time; each testified as to a different time, some
two years apart.
It is true that the Attorney General, in an introductory
paragraph in his decision, said:
"However, the evidence of two witnesses is accepted as showing
that Bridges was a member of the Party. If this evidence is
believed -- and Judge Sears believed it -- the doubt is
decided."
But he went on to say that the question was one of credibility,
and that Judge Sears, who saw the witnesses, was in a far better
position to decide that question than the Review Board. He
continued with a separate discussion of each witness and his
testimony. He concluded as to each, without any reference to the
other, that the witness should be believed, rather than Bridges,
and that Judge Sears' conclusion as to the credibility of each
(which was not dependent
Page 326 U. S. 174
upon his like conclusion as to the other) should be
sustained.
The record thus conclusively shows that both Judge Sears and the
Attorney General found, on the Lundeberg testimony alone, that
Bridges was a member of the Communist Party in 1935. That finding
is supported by the sworn testimony of Lundeberg, which was
admissible in evidence and has probative force. As it supports the
concurrent findings of Judge Sears and of the Attorney General that
Bridges was a Party member at that time, we cannot reject that
finding.
What we have said is not to be taken as conceding that O'Neil's
prior statements were improperly admitted. The Court rejects them
on two grounds -- that they were admitted in violation of
departmental regulations and that, as hearsay, they were so
untrustworthy as to make them inadmissible in any event. We think
neither ground tenable.
We find nothing in the rules and regulations applicable to
deportation cases calling for the exclusion of the testimony
concerning O'Neil's prior statements. [
Footnote 2/1] Rule 150.1 provides that statements
secured during an investigation "which are to be used as evidence"
shall be made under oath, and taken down in writing and signed by
the person
Page 326 U. S. 175
interrogated. Such a statement is denominated a "recorded
statement" by the rule. The purpose of securing recorded statements
is obviously to preserve evidence in a readily available form, and
to insure that, before a warrant of arrest is issued, there is
credible evidence that the person investigated is an alien and is
subject to deportation. It provides neither explicitly nor by
implication that statements other than recorded statements are
inadmissible.
It is true that Rule 150.6 excludes "recorded" statements unless
the maker of the statement is unavailable, refuses to testify, or
gives inconsistent testimony. These restrictions on the
admissibility of
ex parte recorded statements hardly can
be strained into a sweeping exclusion of all unrecorded statements
otherwise admissible in the proceeding. Indeed, the rule, on its
face, quite clearly permits an inspector to testify as to
statements made by persons who are unavailable, refuse to testify,
or give testimony contradictory to a prior statement. [
Footnote 2/2] The statements as to which
the inspector may testify are not restricted by the terms of the
rule to recorded statements. Hence, Judge Sears' ruling that Mrs.
Segerstrom and Major Schofield could testify, under oath, that
O'Neil had made statements to them in contradiction with his
testimony on the stand, was not in conflict with the departmental
rules.
But it is said that the evidence was, in any event,
inadmissible. That the evidence would be inadmissible in a criminal
proceeding is irrelevant here, since a deportation proceeding is
not a criminal proceeding.
Bugajewitz
v.
Page 326 U. S. 176
Adams, 228 U. S. 585,
228 U. S. 591,
and cases cited;
Bilokumsky v. Tod, supra, 263 U.S.
263 U. S.
154-155;
Mabler v. Eby, 264 U. S.
32,
264 U. S. 39.
And no principle of law has been better settled than that the
technical rules for the exclusion of evidence, applicable in trials
in courts, particularly the hearsay rule, need not be followed in
deportation proceedings,
Bilokumsky v. Tod, supra,
263 U. S. 157,
and cases cited;
Tisi v. Tod, supra, 264 U. S. 133;
Vajtauer v. Commissioner of Immigration, supra,
273 U. S. 106,
more than in other administrative proceedings.
Consolidated
Edison Co. v. Labor Board, 305 U. S. 197,
305 U. S.
229-230, and cases cited;
Opp Cotton Mills v.
Administrator, 312 U. S. 126,
312 U. S. 155,
and cases cited. The only objections that can be taken to the
evidence in such proceedings are not to its admissibility, but to
its probative value.
See Consolidated Edison Co. v. Labor
Board, supra, 305 U. S.
230.
Judge Sears completely and accurately ruled on the admissibility
of Mrs. Segerstrom's and Major Schofield's testimony as to O'Neil's
earlier statements to them. He said:
"Whatever may be the common law rule in relation to the
reception of such evidence as that of Mrs. Segerstrom and Major
Schofield, in this hearing, the parties are not confined to common
law proof. Hearsay is admissible, but the character of such
evidence is an element to be used in its evaluation. The principal
reason for the exclusion of hearsay at common law is that the
opportunity for cross-examination is absent. In the present case,
the sanction of cross-examination was present. Although the
statement given to Mrs. Segerstrom and the statement made in the
presence of Major Schofield were not under oath, there is something
equivalent, for O'Neil testified on the stand that he told the
truth in his interview with the agents of the FBI and in the
interview at which Major Schofield was present. There is, in my
opinion, therefore, every reason why this testimony should
Page 326 U. S. 177
be heard and considered as substantive proof. It falls within
the definition of substantial evidence heretofore quoted."
He appended in a footnote:
"(1) This view is fully supported by Dean Wigmore in the 3rd
edition of his work (3 Wigmore, Evidence, 3rd ed., section
1018(b):"
" It does not follow, however, that Prior Self-Contradictions,
when admitted, are to be treated as having no affirmative
testimonial value, and that any such credit is to be strictly
denied them in the mind of the tribunal. The only ground for so
doing would be the Hearsay rule. But the theory of the Hearsay rule
is that an extrajudicial statement is rejected because it was made
out of Court by an absent person not subject to cross-examination.
. . . Here, however, by hypothesis, the witness is present, and
subject to cross-examination. There is ample opportunity to test
him as to the basis for his former statement. The whole purpose of
the Hearsay rule has been already satisfied. Hence, there is
nothing to prevent the tribunal from giving such testimonial credit
to the extrajudicial statement as it may seem to deserve.
Psychologically, of course, the one statement is as useful to
consider as the other, and everyday experience outside of
courtrooms is in accord."
See also Opp Cotton Mills v. Administrator, supra,
312 U. S. 155,
and cases cited. [
Footnote 2/3]
Page 326 U. S. 178
We think that the O'Neil statements were properly admitted, and
that, independently of the Lundeberg testimony, they warranted the
Attorney General's finding that Bridges was a Party member.
With increasing frequency this Court is called upon to apply the
rule, which it has followed for many years, in deportation cases as
well as in other reviews of administrative proceedings, that, when
there is evidence more than a scintilla, and not unbelievable on
its face, it is for the administrative officer to determine its
credibility and weight.
Merchants' Warehouse Co. v. United
States, 283 U. S. 501,
283 U. S. 508;
Federal Trade Commission v. Education Society,
302 U. S. 112,
302 U. S. 117;
Consolidated Edison Co. v. Labor Board, supra,
305 U. S. 229;
Labor Board v. Nevada Copper Co., 316 U.
S. 105;
Marshall v. Pletz, 317 U.
S. 383,
317 U. S. 388;
Labor Board v. Southern Bell Co., 319 U. S.
50,
319 U. S. 60;
Medo Corp. v. Labor Board, 321 U.
S. 678,
321 U. S.
681-682. We cannot rightly reject the administrative
finding here and accept, as we do almost each week, particularly in
our denials of certiorari, the findings of administrative agencies
which rest on the tenuous support of evidence far less persuasive
than the present record presents. That is especially the case here,
since the Attorney General, the district court, and the court of
appeals have all concurred in the conclusion that the evidence is
sufficient to support the findings.
Coryell v. Phipps,
317 U. S. 406,
317 U. S. 411;
United States v. Johnson, 319 U. S.
503,
319 U. S. 518;
Mahnich v. Southern S.S. Co., 321 U. S.
96,
321 U. S. 99,
and cases cited;
Goodyear Co. v. Ray-O-Vac Co.,
321 U. S. 275,
321 U. S.
278.
Petitioner has made a number of other arguments which the Court
finds it unnecessary to discuss. We think that they too are without
merit. We would affirm the judgment.
[
Footnote 2/1]
The opinion of the Court states that the Attorney General
conceded that the evidence was admitted in violation of the Rules.
The Department of Justice made no such concession in this Court.
And we think that the Attorney General's decision, which is quoted
by the Court, when fairly read, stated no more than that the
objection based on the rules came too late; that, had the question
been raised in time, compliance with the rules would have been
required (it was not stated what compliance with the rules would
have entailed); that, if the Inspector, after deliberation, then
had rejected the objection based on the rules, it would have been
"appropriate" to raise the objections before the Board of
Immigration Appeals, and that the right to raise the objection had
been waived. Plainly he did not state or suggest that objections to
their admissibility would have been valid if timely made, and there
was no occasion for him to consider that question.
[
Footnote 2/2]
Rule 150.6(i) provides, in part:
"An affidavit of an inspector as to the statements made by the
alien or any other person during an investigation may be received
in evidence, otherwise than in support of the testimony of the
inspector, only if the maker of such statement is unavailable or
refuses to testify at the warrant hearing or gives testimony
contradicting the statement and the inspector is unavailable to
testify in person."
[
Footnote 2/3]
Wigmore concedes that his views have not been accepted by the
courts generally. But, as we have said, the technical rules of
evidence applied by the courts are not applicable to administrative
proceedings.
Consolidated Edison Co. v. Labor Board,
305 U. S. 197,
305 U. S.
229-230, and cases cited;
Opp Cotton Mills v.
Administrator, 312 U. S. 126,
312 U. S. 155,
and cases cited. For that reason, the considerations suggested by
Wigmore are controlling here, and the Attorney General and Judge
Sears could rightly consider O'Neil's statements as proof of the
matters stated.
Bilokumsky v. Tod, 263 U.
S. 149,
263 U. S. 157,
and cases cited;
Tisi v. Tod, 264 U.
S. 131,
264 U. S. 133;
Vajtauer v. Commissioner of Immigration, 273 U.
S. 103,
273 U. S.
106.