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GRUBISICH v. ESPERDY

July 10, 1959

Nate GRUBISICH, Plaintiff,
v.
P. A. ESPERDY, District Director of the Third District of the Immigration and Naturalization Service of the Port of New York, Defendant



The opinion of the court was delivered by: DAWSON

This is a motion by plaintiff, brought on by an order to show cause containing a temporary restraining order, for an injunction pendente lite seeking to restrain the defendant from enforcing an order for plaintiff's deportation. Defendant has made a cross-motion for summary judgment dismissing the complaint under Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A.

The basic undisputed facts in this case are as follows:

 In March 1951 the Immigration and Naturalization Service instituted deportation proceedings against the plaintiff by the service upon him of a warrant of arrest. He was charged with being subject to deportation pursuant to the Act of October 16, 1918, as amended,* in that subsequent to his entry he became a member of a proscribed class set forth in that statute, to wit, an alien who was a member of the Communist Party of the United States.

 An additional ground alleged at that time was that plaintiff, a native and citizen of Yugoslavia, had made his last entry into the United States at the Port of New York on May 29, 1933, and that the reentry permit which he presented was invalid since it was procured by fraud or misrepresentation. He was in possession of what at that time purported to be a valid reentry permit which was procured on the representation that his last entry into the United States was in 1921, whereas the Government alleges that he entered unlawfully in 1926.

 The deportation hearing was held commencing on March 24, 1953. Plaintiff was represented by counsel and had the benefit of an interpreter. He nevertheless refused to be sworn or to give testimony under oath. While he did make certain unsworn statements, he either stood mute to invoked the statutory privilege against self-incrimination with respect to any questions asked relevant to the charges contained in the warrant of arrest which formed the basis for the deportation proceedings.

 The basic issues which this Court must decide is whether plaintiff was a 'member' of the Communist Party within the meaning of the Internal Security Act of 1950, 50 U.S.C.A. § 781 et seq., and whether his reentry into the United States in 1933 was accomplished by means of a reentry permit procured by fraud or misrepresentation. An affirmative finding on either of these issues would sustain his deportation at this time.

 A review of the record of the hearing in the deportation proceedings against this plaintiff is highly informative. With respect to the first charge the Government introduced two witnesses, both of whom testified as to plaintiff's membership in the Communist Party of the United States from 1932 to 1935 and from 1937 to 1939. The first witness testified that she was a member of the Communist Party: that she attended meetings of the Yugoslavic fractions of the Communist Party: that she held office in the Communist Party organization. She further stated that she attended schools of the Communist Party and identified plaintiff, who was present at the hearing, and indicated that she saw plaintiff at every Communist Party meeting of the particular fraction, as well as at closed meetings. It was her testimony that plaintiff spoke at closed meetings; that he reported on his activities on the waterfront as a Communist Party member, and that in general he was an active working member of this unit. It was her testimony Party only members of the Communist Party could attend fraction meetings and speak at these meetings, and she further stated that plaintiff gave reports of various assignments given to him as a Communist Party member.

 The second witness examined by the Government with respect to plaintiff's deportability as a member of the Communist Party was the husband of the first witness. He stated that he was a member of the Communist Party fraction in the Longshoremen's Union and that plaintiff attended Communist Party meetings and that he was known as a member of the Communist Party. He testified further that he saw the plaintiff pay his dues and that he had seen plaintiff's membership book.

 Alienage was established both by plaintiff's unsworn statements and matters of record admittedly relating to him. The Special Inquiry Officer, in his decision, sustained the first charge of deportability on the ground of membership in the Communist Party, independent of the fact that plaintiff refused to testify. He analyzed the testimony of the Government witnesses and considered their credibility, as well as the fact that their testimony was unrefuted. Accordingly, the Special Inquiry Officer found that plaintiff, an alien, was subject to deportation under the Act of October 16, 1918, as amended. *fn1" As to this point plaintiff maintains that under the applicable law the Government did not adduce such evidence as to his Communist Party activities as would constitute a 'meaningful association' with it, and thus subject him to deportation. The argument which supports plaintiff's contention is discussed in two decisions of the United States Supreme Court.

 In Galvan v. Press, 1954, 347 U.S. 522, 74 S. Ct. 737, 741, 98 L. Ed. 911, the Supreme Court interpreted the statute which is applicable in this action. The Supreme Court held that support, or even demonstrated knowledge of the Communist Party's advocacy of violence, was not intended to be a prerequisite of deportation. The Court said:

 '* * * It is enough that the alien joined the Party, aware that he was joining an organization known as the Communist Party which operates as a distinct and active political organization, and that he did so of his own free will * * *.'

 The Court, in effect, held that the Internal Security Act of 1950 dispensed with the necessity of proving in each case where membership in the Communist Party was made the basis for deportation, that the party did, in fact, advocate the violent overthrow of the Government. At the same time, the Court indicated that a person's relationship to the Communist Party might be so nominal, even though technically a member, as not to make him a 'member' within the terms of the Act. In the Galvan case the petitioner disclosed that he had joined the Communist Party of his own free will, giving the time and place of doing so, and indicating generally that the distinction between the party and other groups was clear in his mind. There was also evidence that he had been elected an officer of the Spanish-speaking Club, an alleged Communist Party unit. The Court held that this evidence was sufficient to support a finding of membership in the Communist Party and sustained the order of deportation. See also, Schleich v. Butterfield, 6 Cir., 1958, 252 F.2d 191.

 Thus in Galvan the Court laid down an understandable rule which could be used as the basis for deportation in subsequent proceedings. This rule would lie today unchallenged were it not for a subsequent decision of the same tribunal which modified to a very slight degree the definition of a 'member of the Communist Party' within the context of deportability. The subsequent decision was Rowoldt v. Perfetto, 1957, 355 U.S. 115, 78 S. Ct. 180, 2 L. Ed. 2d 140.

 In Rowoldt the Court again considered what constituted membership in the Communist Party. In that case the petitioner was an alien who entered the United States in 1914. He stated that he had joined the Communist Party, paid dues, attended meetings and remained a member until he was arrested in connection with deportation proceedings, which was at the end of 1935, and that he was probably a member for about one year. He also worked for a while as a salesman in a bookstore run by the Communist Party. The Court said that, bearing in mind the solidity of proof that is required for a judgment entailing the consequences of deportation, it could not say that such evidence established the kind of 'meaningful association' required by the Internal Security Act of 1950, as amended; that in ...


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