The opinion of the court was delivered by: DAWSON
This is a proceeding for a judicial review of a final administrative order of deportation which has been instituted by a writ of habeas corpus. The petition raises two principal points of law:
(1) May an alien who was first admitted to the United States in 1937 and left the United States in 1944, and was re-admitted to the United States in 1945 as a returning alien resident, be deported upon a finding that petitioner had been a member of the Communist Party in 1937 and 1938; and
(2) On the present record, is petitioner entitled to be enlarged on bail, pending final judicial review of the deportation order?
Issues as to the manner of conducting the deportation hearing and the sufficiency of the evidence to support the finding of deportability are also raised by petitioner.
The undisputed facts show the petitioner, a subject of Great Britain, first entered the United States in 1926. In July, 1937, he was admitted as an immigrant for permanent residence. His occupation was that of a writer and journalist. During World War II, he worked for the British Security Coordination Service in the United States, which was an intelligence agency of the British Government, and then in the Spring of 1944, went to England and there worked for the Ministry of Information. He continued thereafter in the work of that Ministry in France and Germany after the Allied landing in France and the invasion of Germany.
In the latter part of 1945, petitioner determined to resume his residence in the United States. His re-entry permit which had been issued in 1944 had expired on May 5, 1945, but he was issued a further re-entry permit entitling him to return to the United States as a returning alien resident. He re-entered the United States with this permission on October 28, 1945.
Deportation proceedings were instituted against petitioner in 1953 on two grounds: (1) that petitioner, after entry into the United States, was a member of, or affiliated with, the Communist Party of the United States; and (2) that at the time of his entry, he was an alien who was a member of, or affiliated with, an organization advocating overthrow of the government, to wit, the Communist Party of the United States. After long hearings, the Special Inquiry Officer of the Immigration and Naturalization Service directed the deportation of petitioner on both grounds. An appeal was taken to the Board of Immigration Appeals which sustained the deportation of petitioner on the first ground, but found that the second ground had not been established.
Petitioner has urged in this proceeding that he was deprived of due process of law in that the hearing was not conducted in accordance with the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq. This point is without validity. Couto v. Shaughnessy, 2 Cir., 1955, 218 F.2d 758; Marcello v. Ahrens, 5 Cir., 1954, 212 F.2d 830.
Petitioner also urges that because the Attorney General had announced a determination to drive subversive aliens from our shores, it was impossible to get a fair determination of the issues from the Board of Immigration Appeals. The careful analysis of the evidence by that Board, as reflected in its opinion, shows that such an accusation is without foundation. See Shaughnessy v. United, States ex rel. Accardi, 75 S. Ct. 746.
Petitioner does raise an issue of law, however, which requires consideration. He urges that his deportation was sustained on the ground that he was a member of the Communist Party in 1937 and 1938, but that his last entry into the United States was in 1945, and that, therefore, it cannot be found, under Sec. 241(a)(6)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(6)(C) that he was a person who had been 'after entry' a member of, or affiliated with, the Communist Party. He urges that his entry, for the purposes of the Act, was the entry of 1945 and that if he was a Communist in 1937 and 1938, this was not 'after entry'. This raises the question as to what is meant by the word 'entry' where, as here, the alien has entered the United States on a number of occasions over a long period of The word 'entry' is defined in the Act itself to mean:
'Any coming of an alien into the United States, from a foreign port or place or from an outlying possession'. 8 U.S.C. 1101(13).
In United States ex rel. Volpe v. Smith, 1933, 289 U.S. 422, at page 425, 53 S. Ct. 665, at page 667, 77 L. Ed. 1298, the Supreme Court, in construing the word 'entry' in the Immigration Act of 1917, 39 Stat. 874, said that it accepted the view that the word
'includes any coming of an alien from a foreign country into the United States whether such coming be the first or any subsequent one.'
At that time, the word 'entry' had not been defined in the Act. At the present time, the word is defined and it is defined in consonance with that previously held to be ...