Gastelum-Quinones v. Kennedy

PETITIONER:Gastelum-Quinones
RESPONDENT:Kennedy
LOCATION:Clauson’s Inn

DOCKET NO.: 39
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 374 US 469 (1963)
ARGUED: Mar 19, 1963
DECIDED: Jun 17, 1963

Facts of the case

Question

Audio Transcription for Oral Argument – March 19, 1963 in Gastelum-Quinones v. Kennedy

Earl Warren:

Number 39, Jose Maria Gastelum-Quinones versus Robert F. Kennedy, Attorney General.

Mr. Rein.

David Rein:

May it please the Court.

This case is here challenging the validity of the deportation order entered against the petitioner.

The petitioner is a Mexican National who has resided in the United States since he entered in this country in 1920 at the age of 10.

He is married and supports his wife who resides in this country.

He has two American born children and eight American born grandchildren who also live in this country.

Although not a citizen of the United States, he has lived here since the age of 10 and his roots are definitely in this country and not in Mexico.

He was ordered deported on a finding that he had been a member of the Communist Party in 1949 and 1950, and hence was deportable under the provisions of Section 241 (a) (6) (C) of the Immigration and Nationality Act.

Arthur J. Goldberg:

[Inaudible]

David Rein:

I don’t believe it does.

Arthur J. Goldberg:

[Inaudible]

David Rein:

Yes, he sells tortillas in the Los Angeles area.

He comes from Los Angeles.

Earl Warren:

He sells what?

David Rein:

Tortillas.

Earl Warren:

Tortillas.

Potter Stewart:

He was never a naturalized citizen?

David Rein:

No.

Potter Stewart:

This was not preceded by the nationalization rule?

David Rein:

No, he’s never gone through the process of naturalization.

Potter Stewart:

Right.

David Rein:

This Section of the Immigration and Nationality Act provides for deportation for past membership in the Communist Party.

And the chief issue in this case is whether or not that finding can be — that holding can be supported on the basis of the findings made by the Board of Immigration Appeals in this case.

The findings upon which the order of deportation rests were set forth and summarized by the BIA and that’s quoted in our brief at page 5 to 6, these are the essential findings.

According to the BIA, membership in the Communist Party was found to have been established on the testimony of Government witness, Scarletto, who testified that he had collected Communist Party dues from the respondent and had attended close meetings of the Communist Party with him, and the general corroboration offered by the testimony of Government witness, Elorriaga.

There were no findings beyond this as to the nature of petitioner’s membership.

There were no findings that the petitioner had ever engaged in any Party activity of any kind, or that he had ever said anything at any party meetings.

Simply, there’s bare finding that he had attended some meetings and had paid dues.

The Board of Immigration Appeals nevertheless held that on these findings, that petitioner was deportable within the requirements of this Court’s decision in Rowoldt and I digress for a moment, this Court held in the Rowoldt case, that aliens who were only nominal members of the Party were not deportable and that it was necessary to establish deportability to show a “meaningful association” with the Party.

Arthur J. Goldberg:

[Inaudible]

David Rein:

I submit that there was no such evidence.

I can get to it — I tend get to it a little later on the Government’s contention, if I may, but primarily on that point, I would take this point that this —

Arthur J. Goldberg:

[Inaudible]

David Rein:

Not to witness Elorriaga, yes.

The witness, Elorriaga, if I may digress for a moment, testified in this case.

He testified at one point that the petitioner attended meetings regularly, I think three or four times a month over a period of three years.

At another point in his testimony, the same witness testified that over a period of three years, he saw the petitioner at a total of two meetings.

Now, what is significant is that the Board of Immigration Appeals in its opinion, recognizing the conflict in this testimony, said, “We find it unnecessary to resolve this conflict, because under our view, it doesn’t make any difference whether he attended two meetings or meetings regularly, he is still a member of the Communist Party, and in any event, we will only consider this witness, Elorriaga to be corroborative of the witness, Scarletto.”

From the portion I have just read to you, they relied upon the witness, Scarletto and said that Elorriaga is merely corroborative.

So you have two points, I say both reading the witness fairly, there is no such evidence, and secondly, and perhaps more decisive, I think for this Court, this Court has repeatedly said and most recently in the Burlington Truck Lines case that when a case comes here from an administrative agency, it will examine it on the basis of the findings made by the administrative agency and not go beyond it.

Now, the Board of Immigration Appeals made no finding that the petitioner here had attended any executive meetings of the club.

The sole finding on the basis of all Elorriaga’s testimony was that they were considered to be merely corroborative in view of the great contradiction in his testimony.

So I think it’s fair to say and although the Government disputes it and I have discussed their statements in my reply brief at some length, but I think there is no question that on the BIA findings, all that there is before this Court and all that there is before the BIA, and all that the BIA thought it had was attendance at some meetings.

And as I point out these meetings were not more than about possibly 15 meetings over a period of two years and payment of dues and nothing more.

Now, the BIA said and recognizing the force of the Rowoldt case that one of the prime indicia that must be examined in the Rowoldt case to see whether or not there was the necessary “meaningful association” was the alien’s awareness of the political implications of his membership.

The BIA recognized that and in its opinion, it stated, that there was little development of the respondent’s awareness of the fact that he belonged to a political organization.

As I indicate that that really is an overstatement because there was no development of the respondent’s awareness.

Nevertheless, according to the BIA, the petitioner was deportable, and it arrived at that conclusion on the following theory.

On the theory that once the Government had shown a bare organizational membership, it was permissible to draw an inference that there was a “meaningful association” and the BIA would presume a “meaningful association” unless the alien came forward and demonstrated to the contrary.

In other words, the way they view the case was that once there was bare organizational membership, the burden of proof as to the character of that membership rested upon the petitioner and not upon the Government.

We brought a complaint originally in the United States District Court to challenge the validity of the deportation order in that theory.

The District Court gave judgment for the Government and on appeal, the Court of Appeals affirmed.

Now, the Court of Appeals affirmed agreeing with the Board of Immigration Appeals’ theory that a presumption can be drawn from bare organizational membership, but it arrived at this result by a very novel and unprecedented route which was quite different from the one that the Board of Immigration Appeals had arrived at.

In essence, what the Court of Appeals held was as follows.

It read the various statutes on this subject and this Court’s opinions as coming to the following conclusion that prior to the 1950 Act and going back to the 1940 Act, the Court said, “It was necessary to establish deportability to show that the alien involved had personally advocated the overthrow of Government by force and violence.”

It then said that the 1950 Act which provided the deportation on membership alone or did it as follows, that Congress made a legislative finding, that the Communist Party advocated the overthrow of the Government by force and violence.

It then established a legislative presumption that all members of the Communist Party advocated the overthrow of Government by force and violence.

And that the force of this Court’s decision in Rowoldt case was that that presumption was a rebuttable.

We petitioned the Court for certiorari from that opinion of the Court of Appeals pointing out the novel nature of the opinion and what seemed to be a faulty analysis of this Court’s previous decisions in the area.

David Rein:

The Government represented, we say erroneously and they’re still apparently maintaining the same misconstruction of the record that the Court had merely evaluated the testimony.

Now, there’s nothing in the Court’s opinion could show that they were merely evaluating testimony.

In any event, this Court denied certiorari at that time.

The net result of that was that under the Court of Appeals decision which by virtue of this Court’s denial of certiorari, became the final law of the case.

The petitioner was to be deported because he had failed to rebut the presumption that he had personally advocated the violent overthrow of the Government.

Since prior to that ruling, neither petitioner nor the Service knew or had a reason to know that such evidence relating to the petitioner’s personal advocacy was at all relevant to the issue, petitioner requested the Board of Immigration Appeals to reopen his case so as to give him an opportunity to prove that he never personally advocated the violent overthrow of the Government and hence was not deportable under the Court of Appeals’ decision and the theory of the Court of Appeals.

He supported this motion with an affidavit to the effect that he had never advocated or espoused violent overthrow of the Government and stated that if the hearing were reopened, he would so testify.

The Board of Immigration Appeals granted oral argument on this petition to reopen.

After argument, it denied the petition to reopen on the ground that under the decisions of this Court, evidence as to whether or not the petitioner affirmatively himself espoused violent overthrow is not material to deportability.

It disposed of the opinion of the Court of Appeals’ decision on the ground that the Court of Appeals’ decision which justified petitioner’s motion was inconsistent with the decisions of this Court and we concede that, as a matter of fact, we pointed that out in our original petition.

Byron R. White:

Is it your view that the Court of Appeals overruled Galvan against Press?

David Rein:

No, it’s our view that the Court of Appeals established the law of the case for this particular case.

We don’t think the Court of Appeals could have overruled Galvan against Press.

It did not have the authority, but we say that under the law of the case, once the Court of Appeals established the particular rule for this particular case, it was certainly binding at least on the lower tribunals.

Byron R. White:

Even though erroneous.

David Rein:

Even though erroneous, I think that’s perfectly clear.

Byron R. White:

[Inaudible]

David Rein:

No.

As a matter of fact, we do not say that.

We concede that once this case comes up here, this Court is perfectly free to examine the case on the merits, but we think on the merits and on the correct analysis of the evidence, we’re certainly would prevail on either event.

Byron R. White:

[Inaudible]

David Rein:

That’s correct.

I think there’s no question about that.

Byron R. White:

[Inaudible]

David Rein:

No, I think the Court of Appeals — let me put it this way and I will develop it much later when I get into my arguments.

The law of the case doctrine holds that once a — in an appellate tribunal, sets down an issue of law in a particular case, it does not necessarily apply to other cases, that rule of law is binding on a lower tribunal whether or not correct in that same case and I submit you could not have an orderly process of law.

If you could have a lower tribunal say, “Well, I’m not going to be bound by what the appellate tribunal said in this case because it was wrong.

It does not have the authority to inquire into whether or not in that particular case, the appellate tribunal was correct because otherwise, I don’t know what the force of a ruling of an appellate tribunal would be.”

It is bound by it and it’s bound by that particular case even if it thinks it’s wrong.

Arthur J. Goldberg:

[Inaudible]

David Rein:

I would submit that that I think is the proper issue before this Court.

I felt it necessary to indicate to the Court that I had gone up before, this Court had denied certiorari and indicated the basis on which we came back.

And I will just —

William J. Brennan, Jr.:

[Inaudible]

David Rein:

I’m sorry.

William J. Brennan, Jr.:

That the issue is even narrowly made on this record, on which you relied, Rowoldt and Galvan. [Inaudible]

David Rein:

That’s — I would submit that that the essential issue here.

William J. Brennan, Jr.:

[Inaudible] That’s what we’re down to for the purposes of our —

David Rein:

That’s correct.

William J. Brennan, Jr.:

— view in (Voice Overlap).

David Rein:

I would — certainly clear that this Court does not have to follow the erroneous reasoning from the Court of Appeals.

The law of the case doctrine makes it perfectly clear.

As a matter of fact, that the erroneous decision of the Court of Appeals was not even binding on the Court of Appeals and it’s certainly not binding on this Court.

But to turn then for the question of what is the heart of the case as to whether or not on these facts, the — the petition that comes within the Rowoldt case, I’ll turn now to argue that.

Rowoldt against Perfetto established that the statutory provision which provides for deportation for past membership in the Communist Party applies only to membership which has a certain political significance described as a “meaningful association.”

Aliens whose membership was only nominal and which lacked the “meaningful association” are not deportable.

In Rowoldt itself, the alien belonged to the Communist Party.

There was much language which the Government emphasizes in its brief about how the Board found that the petitioner here voluntarily joined the Party.

There is no question that Rowoldt voluntarily joined the Party.

He belonged to the Party for about a year.

He attended closed party meetings.

He paid dues.

He ran a Party bookstore and to quote Justice Harlan, he had considerable albeit rudimentary knowledge of Communist history and philosophy.

William J. Brennan, Jr.:

That was [Inaudible]

David Rein:

But I don’t know that anybody disagreed with the Court in that.

Secondly, we leave that out.

The majority said that he belonged to the Party for about a year.

He paid dues and he ran a Party bookstore.

These findings were nonetheless held insufficient to establish the “meaningful association” which was a requisite for deportability.

A further gloss on the Court’s opinion in Rowoldt was given by this Court in the subsequent case of Scales against the United States.

David Rein:

That case which was a criminal case involved the construction of the term “member” as used in the criminal provisions.

He was not necessarily member of the Communist Party, member of an organization advocating the overthrow of Government by force and violence but it involved the construction of the meaning of that word “member”.

This Court, relying on its previous decisions in Galvan and in Rowoldt, held that the 10-member must be confined to only active members and that it cannot be applied to nominal members.

In the course of its opinion, the Court pointed out that Rowoldt, in relying on Rowoldt, would not permit deportation solely on the ground of a voluntary joining of the Party and it argued that a similar construction would certainly be applied to the criminal portion of the statute.

It is significant and I think the Court, it’s worthwhile to note that the language, so far as the word “member” is concerned, both as was used in the provision of the Smith Act involved in Scales, and both as used here in the deportation provision, both trace their origin back to the Alien Registration Act of 1940.

They both really go back to the same statute.

It is plain that the findings of the Board of Immigration Appeals, which I have quoted, cannot possibly satisfy this term of “meaningful association” or active membership.

Since the Board found only the petitioner attended some Party meetings and paid dues and no more and this in fact was less than was found in Rowoldt.

To turn very briefly to the Government’s contention as to the — what the facts are that might support other findings; they say — as I started to say earlier, our first answer to that, would be that this Court ordinarily reviews administrative findings — administrative orders on the basis of the findings made by the Board of Immigration of — by the administrative agency.

It does not go behind it to see whether or not the agency could have made other findings and could have acted on another theory.

I think that that matter was put very succinctly, very recently by this Court in the Burlington Truck case saying that the Court would not have recognized appellate counsel’s post hoc argument as to the rationalization of an agency’s decision.

But leaving that aside, we turn to what the Government says, “The Board could have found even if we want to look into the record.”

They say first, that the petitioner was an active member of the Party.

Now, the Board never found the petitioner was active and unless you say that because he attended meetings and paid dues, he was an active member, it adds nothing.

There is no evidence of any activity and indeed, the Government points to none.

It then argues that he was a regular member of the Party.

Now significantly, it talks constantly throughout its brief about the testimony of two witnesses.

As I have pointed out, the Board relied only on one indicating that the other witness because of the big cut — the complete contradiction in this testimony could be considered only corroborative.

That witness, one Scarletto, testified and this is Scarletto’s testimony, that petitioner just went once in a while to Party meetings.

He testified, and if you want to really look at the testimony that his Communist Party Club in which both he and the petitioner were members, met regularly once a week at the home of a different member of the club.

Nevertheless, over the two-year period, he could recall seeing petitioner at the most at maybe 15 meetings or he wasn’t sure.

Byron R. White:

(Voice Overlap) how many did he go to?

David Rein:

He — he went regularly once a week, Scarletto did.

Byron R. White:

He went to all of them.

David Rein:

Yes.

That’s his testimony.

He went and the club met regularly once a week.

He went regularly, he can recall seeing the petitioner maybe at 15, he wasn’t sure.

He said several, maybe 15, maybe 16, but he couldn’t be pinned down to any number and the most he could say was several.

And they never met although they met regularly at the homes of different members of the club, they never met at the home of the petitioner’s club.

Earl Warren:

How big was the club?

David Rein:

I’m sorry.

They never met at — the club never met at the meeting of petitioner’s home.

Earl Warren:

How big was the club?

David Rein:

He said it varied in size from about 30 members, I think, and then it was broken up later into about 15 or 16 members.

It was Scarletto’s testimony.

Earl Warren:

Yet he didn’t meet the petitioner at any of those meetings?

Is that what I understood you to say?

David Rein:

No.

What he said was, he did meet petitioner at these meetings but although the club met regularly, once a week —

Earl Warren:

Yes.

David Rein:

— over a period of two years, he could only recall seeing petitioner at several of those meetings and at the most maybe 15 over the period of two years.

Potter Stewart:

You know where that is in the record off hand?

David Rein:

Well, yes, it appears in the record, 74, here’s the record, at page 74.

He was at several of those meetings.

By several, you mean more than a couple or it could be 15 or 16 times.

The testimony is to how often the Party met, he said 61 to 62, how often the clubs met, it was from 61 to 62 where Scarletto said, “One day a week the executives would meet and then the club would meet also one day a week.”

Byron R. White:

But he said that it could’ve been 15 times or could be more that he recalled seeing him.

David Rein:

He couldn’t recall.

Byron R. White:

Well, he said, it could be 15, it could be more.

David Rein:

But you have no present recollection in regard to the number of times.

He says no.

I submit that when a witness just gives (Voice Overlap) —

Byron R. White:

It could’ve been every week.

David Rein:

What?

Byron R. White:

IN could’ve been every week?

David Rein:

No, it couldn’t have been once every week.

I don’t think the witness could possibly say that he was at several of those meetings when he’s talking about the fact that these meetings happened once a week over a period of two years which is a 100 meetings.

It seems inconceivable to me that a witness would say, “He might have been at 15 but I’m not sure.”

And in any event, I should certainly say, all that the Board of Immigration Appeals found was that the witness attended meetings.

David Rein:

It didn’t say he find that he attended and I submit it would be improper for him to find any more than that on the basis of such a vague testimony.

The Government also argues that there was evidence although the Board made no findings.

The petitioner had attended a Party convention.

We have set out in our footnote the testimony of Scarletto on that subject at page 7, and I can read it very briefly.

The testimony was, “Do you know whether Jose Gastelum ever attended any such party convention?”

Answer: I saw him at one convention one time.

Question: Do you know whether he was there on an official capacity?

Answer: No.

That’s the total of his testimony on that.

It’s perfectly clear the Board of Immigration Appeals saw no significance in that particular bit of testimony as adding to the total picture and had made no findings on it.

Arthur J. Goldberg:

[Inaudible]

David Rein:

Yes.

Arthur J. Goldberg:

[Inaudible]

David Rein:

That’s correct.

Arthur J. Goldberg:

[Inaudible]

David Rein:

The record shows, he says —

Arthur J. Goldberg:

[Inaudible]

David Rein:

Well, the record shows exactly what I have read that there was a convention which Mr. Scarletto attended as an official delegate and was there and participated in the discussions.

He also said that this convention was closed to anybody but Communist Party members and then he said, “Do you know whether Jose Gastelum ever attended any such convention?”

“I saw him at one convention, one time.”

“Do you know whether he was there on official capacity?”

“No.”

“That’s — that’s the total of the testimony and I submit that there are no findings made by the BIA.

You will find nothing in the BIA report that ever mentions that petitioner attended the convention.

And I say that this decision should be based on BIA findings and obviously the BIA did not consider this little bit of testimony to have any significance.

Otherwise, I assume it would have dwelt on it and said that its finding of “meaningful association” was based upon it because after all what is before this Court is a decision of the BIA and if the BIA says, it finds “meaningful association” solely on bare organizational membership, I don’t think it’s appropriate for the Government to argue and certainly not for the Court to find that maybe the BIA is wrong on that theory but it could have found something else.

That flies in the face of all the cases in this Court in reviewing administrative agency decisions.

Hugo L. Black:

Where are these findings that you referred?

David Rein:

The BIA findings?

Hugo L. Black:

Yes.

David Rein:

Well, there were several opinions of the BIA.

Hugo L. Black:

Did they make separate findings, that’s what I was asking?

David Rein:

Well, I have quoted from the transcript on page 6.

Hugo L. Black:

Six?

David Rein:

Yes in which the BIA made the following statement, and this was referring to a previous decision in which it had.

It said, “Membership in the Communist Party was found to have been established on the testimony of Government witness, Scarletto, who testified that he had collected Communist Party dues from the respondent and had attended close meetings of the Communist Party with him and the general corroboration offered by the testimony of Government witness, Elorriaga.

Arthur J. Goldberg:

[Inaudible]

David Rein:

There were not detailed findings, I submit.

There’s a detail account on what the testimony was.

Arthur J. Goldberg:

But the evidence [Inaudible]

David Rein:

Well, it recites, for example, at page 2 at great length what Elorriaga testified to but then at page 4 of that opinion, it points out that Elorriaga contradicted himself and that he was not going to make any findings on the basis of his testimony.

Arthur J. Goldberg:

[Inaudible]

David Rein:

Yes, but I say that you would come to no different conclusion because if you eliminate their account of what Elorriaga testified to which you must on the basis of what they said at page 4 of that same opinion, you find merely Scarletto’s testimony and that’s all that Scarletto testified to was that he attended meetings with the respondent and that the respondent pay — with the petitioner and that the petitioner paid dues.

There isn’t anything else recited any place.

There is no recital for example, anywhere in here, about how the — either as a testimony about petitioner attending a convention at any time.

Arthur J. Goldberg:

[Inaudible]

David Rein:

Yes.

Arthur J. Goldberg:

[Inaudible]

David Rein:

Well, that comes from Elo — Elorriaga’s testimony.

Arthur J. Goldberg:

[Inaudible]

David Rein:

That’s correct.

Arthur J. Goldberg:

[Inaudible]

David Rein:

Yes, but I say they’re no different from what I said, with the exception of that other matter which I say was Elorriaga’s testimony and was discounted.

Now —

Arthur J. Goldberg:

[Inaudible]

David Rein:

1949 and 1950 prior to the Korean War.

Arthur J. Goldberg:

[Inaudible]

David Rein:

Well, I think that’s the heart of the case as to who has to prove deportability.

Now first, let me get down to the point that if Rowoldt held and the meaning of the Rowoldt decision is what had to be proved before an alien could be brought within the scope of the statute.

As a matter of fact, Rowoldt did not testify at the deportation proceeding.

David Rein:

Rowoldt gave a pre-hearing statement to an immigration officer which was the sole evidence introduced against Rowoldt at the deportation proceeding, but at the deportation proceeding itself, Rowoldt like the petitioner here, refused to testify.

Now, there was nothing in Rowoldt that lent sanction to the idea that it laid down a new novel rule of method of proof or to suggest that the situation would have been any different as to whether the testimony came from Rowoldt or whether it came from any place else.

Now the important point to note here is what did Rowoldt decide?

Rowoldt decided that an alien is not deportable unless there is a “meaningful association.”

Now, it is clear and I don’t think the Government disputes that the burden of proof in all deportation cases rests upon the Government.

If it is an element of deportability, that “meaningful association” must be shown and that burden of proof rests upon the Government.

So that if you have a record here which shows membership and gives you no light whatsoever on whether or not that there is a “meaningful association”, the Government has not carried its burden of proof and the case must be thrown out.

Arthur J. Goldberg:

How’d make some [Inaudible]

David Rein:

Well —

Arthur J. Goldberg:

Is that a possible distinction?

David Rein:

I submit no, it’s not a possible distinction.

If you can make inferences from which are in the record, they must be sufficient inferences to support your burden of proof in the first place.

And then you could say —

Arthur J. Goldberg:

[Inaudible]

David Rein:

I don’t have to argue that case here.

You might say that attending meetings regularly every week is enough to show the “meaningful association,” but that’s not a question of making an inference which shifts the burden of proof.

The question would be whether the Government had proved enough to bring him within Rowoldt.

I say and there’s particularly no reason, it’s a very novel rule of law.

It’s never been applied in any other deportation case that I know of to say that any element of the deportability should be shifted to the alien and does not rest upon the Government.

And I might indicate that —

Potter Stewart:

Mr. Rein, I — don’t we have to begin with the statute?

And the statute as it’s set out on page 2 of your brief, says that the — I’m talking about the Immigration Nationality Act provides that a person shall be deported who at any time after entry has been an alien who is a member of or affiliated with the Communist Party of the United States.

Now, you — certainly you’re not — you’re not suggesting that the Government did not prove that this petitioner was a member of the Communist Party of the United States after he was — after he entered United States, —

David Rein:

No, I’m not —

Potter Stewart:

— isn’t that correct?

David Rein:

That’s correct.

Potter Stewart:

And Rowoldt, as I understand the Government’s argument at least says that the terms of the — that the — to be sure the statute says that, but if it can be shown affirmatively by the petitioner, that he wasn’t — that his membership was not a political kind of a membership, that it was not as you say a meaningful membership as the — the court said in that case, then he doesn’t come within the statute, but isn’t it enough beginning with the statute which is where it normally begins for the Government to prove his membership and certainly that was proven here, was it not?

David Rein:

The answer to that clearly is no.

Potter Stewart:

Well, now why?

David Rein:

Because Rowoldt says that being a member of the Communist Party, as a matter of fact, Galvan, despite the language of the statute is not enough to be deportable, that you must show more.

Potter Stewart:

Well, you must under Galvan show knowing membership and didn’t the Government show that here?

David Rein:

You must show membership which is meaningful according to Rowoldt —

Potter Stewart:

I’m talking about Galvan.

David Rein:

— which contains necessary political implications.

Well, Galvan didn’t explore it.

May I point that Scales went on to say in interpreting the word “member” there that you had to be an active member.

There was no notion that you could be convicted as a member under the Smith Act unless the defendant came in and said, he was not an active member and this Court —

Potter Stewart:

Mr. Scales didn’t involve the statute which had — which talked about membership in the Communist Party, did it?

David Rein:

It said member.

It had just the term member.

Potter Stewart:

Of the Communist Party?

David Rein:

Member in an organization that advocates the overthrow of Government by force and violence.

Potter Stewart:

Well, it might have been a question under the criminal statute.

David Rein:

Well, may I say that this Court thought it was the same question because it argued on the basis of Rowoldt and Galvan that you should have a similar construction in Scales as the Court had previously given to the Rowoldt case.

And there is no question about the fact that in Rowoldt —

John M. Harlan II:

[Inaudible]

David Rein:

Well, I think I have but let’s — leaving that aside, there is no question that Rowoldt held that it is not enough to prove just membership in the Communist Party that you have to prove something more.

Potter Stewart:

Did Rowoldt say anything about the burden of proof?

David Rein:

No.

Potter Stewart:

So Rowoldt didn’t hold that it was not enough for the Government just to prove membership, did it?

David Rein:

Well yes, it held what was necessary for the deportability —

Potter Stewart:

(Voice Overlap) —

David Rein:

— and I would assume — I would assume from the decision, I think there’s no reason.

Now, let me correct myself.

I think Rowoldt probably read — did say something about the burden of proof and if I refer to the language of Rowoldt, I would indicate this is what Rowoldt said insofar as it commented on the point.

It said and I quote from Rowoldt, “There must be a substantial basis of finding meaningful membership and a solidity of proof is required.”

Now, I submit it did not consider the issue on the terms on which is being presented here as to whether the burden of proof is on the alien or on the Government.

What — obviously the idea that the burden of proof of any element of deportability should be upon the alien is a novel and new idea.

Rowoldt didn’t say that the burden of proof was on the Government it just assumed it because the burden of proof and deportability is always on the Government.

And if this Government wishes to make a new suggestion, I might indicate incidentally for what its worth that the Government does not support in its brief or argue the validity of the BIA theory that is possible to shift his burden of proof.

David Rein:

It simply abandons the whole question.

I don’t know what view we’ll have in argument but its brief is silent on the point.

But deportation, even though the Court has found that it’s technically, perhaps not punishment in the legal sense, this Court has recognized on numerous occasions, the harsh consequences of a deportation statute.

In Galvan it recognized the harsh consequences and the unjust character of this particular statute.

And I would certainly suggest to the Court that certainly this case is not a case in which the Court should invent novel rules of proof and novel rules of the order of proof and the burden of proof so as to make it easier for the Government to make out a case against aliens and against this petitioner then normally apply in ordinary administrative hearings.

I am certainly asking for no more than the application of the novel rules of proof in administrative proceedings generally.

The Government and the BIA would be asking to carve out an exception for a case of this kind to say that in this case, the burden rests not upon the Government but upon the alien, and I say there is no justice in that kind of a —

Arthur J. Goldberg:

[Inaudible]

David Rein:

That’s correct.

That’s exactly my position.

Arthur J. Goldberg:

[Inaudible]

David Rein:

That is exactly my position, that there just is not enough evidence and that it cannot be bolstered by saying that even though there is not enough evidence to support the order, he’s deportable because he didn’t come forward to show that he was not deportable.

I say that —

Arthur J. Goldberg:

[Inaudible]

David Rein:

I think it would be much preferable for the Court to decide the case on the basis made out here rather than on the — I agree that the aberrations of the Court of Appeals is probably no part of the issue before the Court here and need not be — and it would not be appropriate and necessarily for the Court to consider it.

Byron R. White:

So, I gather you would indicate that fair membership in the Communist Party is unless shown otherwise meaningless membership and — if all you show is a membership and haven’t shown anything meaningful, you must show something besides membership.

David Rein:

That’s correct.

Byron R. White:

And that it — and your contention is that, that there’s no ground for saying that membership in an organization like the Communist Party is meaningful and that all go into a certain case, a person might be able to show that it isn’t meaningful doesn’t have the burden to do it.

David Rein:

That if the burden is on the Government, that if the alien is not deportable unless the membership is shown to have a “meaningful association” and the burden and that is an element of deportability as much as any other element —

Byron R. White:

Do you think it’s consistent with experience to what the — knowledge about the Communist Party do you say that membership of the Communist Party is normally meaningful?

David Rein:

No, I say it’s consistent with experience to show that membership in the Communist Party may or may not be meaningful or meaningless and that as a matter of fact that the Rowoldt case itself shows that.

That there are number of cases which were decided in the Court of Appeals on the basis of the Rowoldt doctrine where they found that the membership was not meaningful and the Board of Immigration Appeals has held that too.

I say you can’t draw any inference one way or the other.

I don’t have to say that the fair inference is that it was meaningless.

And may I point out that even in Rowoldt —

Byron R. White:

Do you have to say and you do have to (Voice Overlap) —

David Rein:

That the Government hasn’t shown that it’s meaningful.

Byron R. White:

Now, do you have to say that the — and you are saying that the Government must show more than membership.

David Rein:

That’s correct.

Byron R. White:

They must go on and show that it’s meaningful.

Byron R. White:

If they haven’t shown that it’s meaningful, if they just show membership, in account of (Voice Overlap).

David Rein:

That is right.

That is not because it’s a fair inference that mere membership is meaningless, but it’s a fair inference —

Byron R. White:

Meaningful or meaningless (Voice Overlap) —

David Rein:

That it may be even meaningful or meaningless depending on certain other circumstances which have not been presented here in which the record is barren.

In other words, if you can draw either inference the Government hasn’t supported their burden of proof.

Byron R. White:

Well, you are saying then that it’s a — that membership in a Communist Party is absolutely [Inaudible] and it’s the — that its —

David Rein:

It may be.

Byron R. White:

It — it’s the fact that — the fact that the —

David Rein:

It may be.

Byron R. White:

— it doesn’t point one way or another.

David Rein:

Without more, that’s correct.

Just membership alone doesn’t show that there was a “meaningful association” and I don’t see any other way to read Rowoldt, and let me —

John M. Harlan II:

You have to distinguish surely between whether the membership to a Communist Party to which you’re referring to [Inaudible] Constitution.

You are here on appeal, a conviction on the Government certainly and it’s made of the [Inaudible] but you’re not that kind of case.

You’re here under a statute, the constitutionality which have been upheld by this Court not in fact that Galvan [Inaudible] which makes membership in the Communist Party independent with membership concerning with so-called illegal activities or its so-called political activities, [Inaudible] and that’s the statute here that [Inaudible]

David Rein:

With all —

John M. Harlan II:

And you’re arguing meaningful membership, if I understand your argument correctly as if meaningful then, that something had to be shown that indicates some association [Inaudible] described —

David Rein:

No.

John M. Harlan II:

— aspect of the Communist Party (Inaudible).

David Rein:

I’m not —

John M. Harlan II:

[Inaudible]

David Rein:

I’m not arguing that.

I’m saying that it must be shown some activities within the Communist Party, not within the proscribed activities, but something — let’s for example take what this Court had in Niukkanen.

John M. Harlan II:

In Rowoldt you said at that time, the one in Rowoldt was — the context of the case was a man who said he thought — he said he’s going to a YMCA where there’s some [Inaudible] he thought the Communist Party would be able to [Inaudible].

That was the context in Rowoldt.

David Rein:

No, that was the reason he was given for joining the Communist Party but he knew he was joining the Communist Party, it was a voluntary joining of the Communist Party and he attended meetings and paid dues and he did more.

He ran a Party bookstore —

John M. Harlan II:

Well, that’s a (Voice Overlap) —

David Rein:

— and the Court —

John M. Harlan II:

That’s the way I gather the [Inaudible] in that case.

David Rein:

No.

I —

John M. Harlan II:

[Inaudible]

David Rein:

I beg to get through with you, Mr. Justice Harlan.

I think the point the majority looked at it was that you had to show more than just membership to bring you within the scope of the statute then that’s the — the gist of Rowoldt.

John M. Harlan II:

But sure you don’t have to be —

David Rein:

Well, let me give you an example.

John M. Harlan II:

— (Voice Overlap) these opinions to recognize that if the views that I’m indicating [Inaudible] accepted by the majority, the decision would be different.

David Rein:

That’s correct.

John M. Harlan II:

[Inaudible]

David Rein:

And then I think I probably would have been out of Court if your views have been accepted at the present time, but I’m arguing on the basis of the majority opinion.

Now, let me give you an example — for example, it means — this is presented as somewhat of a dilemma.

This Court has recently since Niukkan — since Rowoldt has had one other case in which it considered the meaning of Rowoldt and what had to be proved and that was the Niukkanen case.

Now, the Court there affirmed on the basis of the findings of fact made by the Court of Appeals.

Now, what did the Court of Appeals find in Niukkanen?

It didn’t find just that he was a member.

They found that Niukkanen actively participated in discussions of the policies of the Party and the circulation of newspaper as a Party order.

They found that Niukkanen was not an ordinary member of the Communist Party, but belonged to what members of the Party called the “top fraction,” and that he actively participated in party councils.

Now, these are not necessarily related to the proscribed activities of illegal overthrow, but it was necessary to find and Niukkanen did found — it find into the Court in Niukkanen — the Court of Appeals in Niukkanen did find and this Court sustained him that there was activity of some kind, an activity of a responsible nature sufficiently to show a “meaningful association”.

And I submit that that is the burden on the Government under Rowoldt and under any other logical — I mean in view of the deportation statute.

And let me make this final word with respect to it, that this statute has been sustained.

Its constitutionality has been sustained, and was sustained in Galvan against Press.

The Court later recognized that it would sustain what it considered to be purely historical reasons.

It’s been sustained on a theory that after all deportation is not punishment, but the Court has recognized consistently although not punishment in the legal sense the consequences of deporting an alien, who has lived here all his life and has his roots here, has extremely harsh consequences.

I submit that in a — that type of case, there is no reason whatsoever to relax the normal rules of the standard of proof and the burden of proof assuming that we have this harsh statute and because of the nature, this harsh nature of the statute, if the petitioner and the evidence brings the petitioner within the meaning of the statute as interpreted by this Court, then he is unfortunately deportable and these harsh consequences must be visited on him.

But I see no reason whatsoever why the Government or this Court should stretch anything to force him within the scope of the statute rather than outside.

John M. Harlan II:

Who gets to stretch the other way, if you were addressing this argument to the [Inaudible] —

David Rein:

I’m not —

John M. Harlan II:

— [Inaudible]

David Rein:

I’m not asking the Court to go one with — beyond the extent to which it went in the Rowoldt case.

And I submit that what the Government is asking here, is asking the Court, and if the Court did stretch in Rowoldt, I think that that is the law I’m not asking the Court to go beyond it.

The Government is asking the Court to retreat from Rowoldt and now establish a new standard at a much more stricter — stringent standard of proof that was applied in the Rowoldt case.

Now, I think that’s what this case comes down to.

Arthur J. Goldberg:

[Inaudible]

David Rein:

Well, except that Rowoldt attended certainly as many meetings and the point about Rowoldt —

Arthur J. Goldberg:

[Inaudible]

David Rein:

Well, I don’t think that that — if I may submit it, that if the burden is on the Government to prove something, I think the absence of evidence is in the favor of the petitioner rather than against it as against Rowoldt.

Arthur J. Goldberg:

[Inaudible]

David Rein:

Well, the record is un-contradicted here to that extent too, but the point about Rowoldt —

Byron R. White:

Yes, (Voice Overlap) —

David Rein:

— is that Rowoldt said — I’m sorry, if I may finish my sentence.

Byron R. White:

You go right ahead.

David Rein:

That Rowoldt said, “That you can’t deport someone solely on the ground of evidence that he’s a member.

There must be something more.”

Arthur J. Goldberg:

Well, I didn’t say that.

Byron R. White:

That isn’t what it said.

Arthur J. Goldberg:

Rowoldt said that [Inaudible]

David Rein:

Well, un-contradicted that he was a member.

But it said it lacked the necessary extra thing of “meaningful association” and political understanding of the political implications of this joining.

Arthur J. Goldberg:

[Inaudible]

David Rein:

Well, I submit, really — it can’t logically be read any other way than to say that once you know that a man is a member, he is not deportable unless you show something more which will show “meaningful association.”

Arthur J. Goldberg:

[Inaudible]

David Rein:

No, I submit that he could not possibly be read in that fashion because it would be creating a new doctrine in deportation orders about shifting burden of proof —

Byron R. White:

This isn’t shifting any burden of proof, you’re just saying that burden of proof is satisfied when as the matter of common experience you attach the membership the fact that it’s a meaningful membership, it’s not just that I don’t think he’d join the Communist Party. And that your burden of proof is completely satisfied when you show membership.

This (Voice Overlap) —

David Rein:

Certainly, there’s nothing —

Byron R. White:

There’s no way — you satisfy your burden in your — at least you get by a motion to dismiss and get by anything else by showing that you — that made your case and that somebody does something to it which destroys it.

David Rein:

Well, it’s certainly —

Byron R. White:

And in Rowoldt, the Government case was destroyed.

David Rein:

But certainly nothing in Rowoldt that says that.

Byron R. White:

It doesn’t change the burden of proof.

David Rein:

Well, I think it does change the burden of proof.

I don’t understand that if a membership is enough to make a man deportable now what is it that Rowoldt showed?

He showed that he was a member and there he won — that he was still a member after he presented his evidence.

He didn’t disproved the Government’s —

Hugo L. Black:

(Voice Overlap) did he not that he paid Party dues.

David Rein:

Yes.

He didn’t disprove the Government, its evidence that he was a member.

Hugo L. Black:

That he worked without pay in the Communist bookshop for a long time.

David Rein:

That’s correct.

Hugo L. Black:

Did this man work in the Communist bookshop and sold Communist books?

David Rein:

No.

There’s no evidence that he ever did anything (Voice Overlap) in connection with the Communist Party.

Hugo L. Black:

— that he did anything more than what is said and what I think was a correct statement of the fact that Justice Harlan has said at page 125 that he was freely admitted, he was a member of the Party about a year, he paid Party dues, that he attended Party meetings, worked without pay at the Party bookstore which was recognized as an official outlet for Communist liberty.

David Rein:

That is correct.

Hugo L. Black:

Now, what do you see as to that, here, that’s in there that in the case that somehow the — that destroyed the Government’s case?

David Rein:

Well, let me say just this very briefly —

Hugo L. Black:

Is that the fact if they held that was meaningful membership, if it had to be more than that.

David Rein:

That is —

Hugo L. Black:

They have more solidity in the mere membership.

David Rein:

That is correct and that’s the way I read it and to read it any other way means that once the Government shows membership that the — you would have to assume that Rowoldt had presented some evidence to disprove that he was a member and he did not do that.

Earl Warren:

Mr. Terris.

Bruce J. Terris:

Mr. Chief Justice, may it please the Court.

As I understand Mr. Rein, he’s no longer arguing about the first issue which he presented to this Court.

That is whether the Board of Immigration Appeals erred in refusing to allow the reopening of the deportation proceedings for a second time to hear petitioner’s proper testimony that he had never advocated overthrow of the Government of the United States by force and violence.

Now, since he is no longer making this contention, the Government’s answer to this may be either irrelevant or if it’s not irrelevant, it could be left to the brief.

I would just like to know that —

William J. Brennan, Jr.:

As I understand it, Mr. Terris, Mr. Rein has made it very clear.

Bruce J. Terris:

Well —

William J. Brennan, Jr.:

The problem is that this case Rowoldt or wasn’t it?

Bruce J. Terris:

If that’s the — if that’s his sole (Voice Overlap) issue.

If that’s his sole issue, then he’s also given up on another point which he wasn’t quite so explicit on and that’s whether he was denied any rights by the Court of Appeals in knowing — having two judges to decide his second appeal.

I don’t think that’s a very serious issue. He only contends that this violated the spirit of the statute not its letter.

I think it’s sufficiently answered in the Government’s brief and I’ll pass that over too. Turning now to what Mr. Rein says is the issue in the case, and that is whether the evidence was sufficient under the standards laid down by this Court in Galvan, Rowoldt, and Niukkanen, not merely in Rowoldt because Rowoldt doesn’t purport to create a new standard, purports to follow the standard in Galvan and Niukkanen also purports to follow the standard in Galvan.

That under those standards, whether there was reasonable substantial and probative evidence as Section 242 of the 1952 Act requires to sustain petitioner’s deportation.

I wish to underline the standard here is not the criminal standard.

It’s not the standard in expatriation cases.

It’s reasonable, substantial and probative evidence.

And under Rowoldt, in Galvan, and Niukkanen, that would be reasonable, substantial, and probative evidence of meaningful membership in the Communist Party.

Now, at the start, I’d like to emphasize that this issue has already been fully litigated.

The Board of Immigration Appeals found that the evidence was sufficient under the standard in Galvan in the first deportation proceeding.

After Rowoldt had been determined by this Court, the Board held that the evidence established meaningful membership in the Communist Party under the standards laid down in the Galvan decision.

In making this determination, the Board did not rely as petitioner contends on petitioner’s mere membership in the Communist Party.

Instead the Board emphasized and this is — Mr. Justice Goldberg pointed out that the actual findings are at page 2 of the record that after peti — petitioner’s active participation in Communist Party affairs, which the Board emphasized was totally unexplained unlike in the Rowoldt decision.

And the Board’s determination was sustained in the face of explicit attacks on the sufficiency of the evidence by the District Court, the Court of Appeals, and then in the denial of certiorari by this Court.

After the Board refused to reopen the deportation proceedings for a second time, petitioner again attacked the sufficiency of the evidence in the District Court and the Court of Appeals, and both of these courts again denied these contentions.

This Court has repeatedly held that it will not reassess administrative findings of fact which have been carefully considered by the lower courts.

And we submit that it follows a fortiori in this case, that in the absence of the plainest kind of error, that the prior review of the Board’s findings of fact in litigation which came through the District Court, the Court of Appeals, and to the — this Court, the Highest Court in the land, should be conclusive here.

Hugo L. Black:

What did they find on page 2?

They found, did they not, that the membership was voluntary?

Bruce J. Terris:

That’s right.

They — at that point, Rowoldt hadn’t been decided, Your Honor.

Hugo L. Black:

What was found in Rowoldt about that?

Bruce J. Terris:

Pardon me?

Hugo L. Black:

What was found in Rowoldt about the voluntary membership?

Bruce J. Terris:

Rowoldt decided that merely voluntary membership was not enough.

Now, at —

Hugo L. Black:

But what — what was meant by that, not enough, as you understand Rowoldt?

Bruce J. Terris:

I understand Rowoldt to hold nothing different than what — than what this Court had decided in the Galvan case although with further explanation.

Bruce J. Terris:

Now, I — it seems to me therefore that — that the crucial — that the crucial test is — is what this Court laid down in Galvan and which in Rowoldt was explicitly reaffirmed.

It isn’t a matter that it was something that Rowoldt was silent on the issue. It reaffirmed the test.

Hugo L. Black:

But Rowoldt modified it to the extent that it must be, did it not, whatever it is meant by meaningful and the Court — where the Court had and had this validity.

Bruce J. Terris:

Well —

Hugo L. Black:

I can understand you’re thinking that Rowoldt is wrong.

Bruce J. Terris:

No, that would — the Government does not —

Hugo L. Black:

I — it’s difficult for me to see the distinction which is attempted to be drawn between this case and Rowoldt.

Bruce J. Terris:

Well you —

Hugo L. Black:

Except by the Board which said it was voluntary and it was voluntary in Rowoldt.

Bruce J. Terris:

Your Honor, I — there are series of things I would like to answer in that.

I don’t think Rowoldt modified Galvan.

The reason I don’t think so is because Rowoldt says that it’s not.

It applies the standard of Galvan.

Hugo L. Black:

Well, had Galvan said anything about having been meaningful and more than membership?

Bruce J. Terris:

Yes, Your Honor.

Hugo L. Black:

It had?

Bruce J. Terris:

It said — it says more than just membership.

Hugo L. Black:

What did it say?

Bruce J. Terris:

It is — it — the Court in — in Galvan said at page 528 of 347 United States v. Forest, “It is enough that the alien joined the Party and doesn’t stop there because that would be membership”, 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.

Now —

Hugo L. Black:

Now, isn’t every bit of that proven in Rowoldt?

Wasn’t everything there you said proven in Rowoldt?

Bruce J. Terris:

This Court found that it wasn’t for the reason that Rowoldt’s un-contradicted statement was that he joined the Party for other than political reasons.

Hugo L. Black:

But do you mean then if this man had taken the stand and said, he joined it for other than political reasons, he couldn’t have been deported under Rowoldt?

Bruce J. Terris:

And it said the reason he joined the Communist Party was because he was fighting for something to eat and he was looking for the necessities of life.

Hugo L. Black:

Well, do you mean it has to be precise — just precisely that.

Bruce J. Terris:

Well, I’m assuming that there’s more content than just the con — just the conclusion.

He says well I’ve read the Rowoldt decision and I am — I’m going to testify to the conclusions there.

I assume that he’s going to — he’s going to give to — he’s going to be specific as to why he joined the Party.

If that’s un-contradicted by the Government and there’s no reason to believe and the Government does not say that he had any other reason, and there’s no way you can draw an inference from objective facts such as active participation in Party affairs which would contradict your statement, then we — then we’d have Rowoldt.

Bruce J. Terris:

That’s — that — those are the facts in Rowoldt.

And I suppose there —

Byron R. White:

Mr. Terris, you truly lose me along the way when you say that Rowoldt having more than membership and that you must have more than membership and the Government must show meaningful membership.

That’s your burden of proof that you must satisfy.

That’s your position, is it?

Bruce J. Terris:

That’s right.

Now, I may say that the Court’s (Voice Overlap) —

Hugo L. Black:

The — the dissent took the other view, didn’t it?

The dissent took the view that that proved enough in Rowoldt.

Bruce J. Terris:

Well, As I understand that the difference between the dissent and the majority of Rowoldt was in the — was in the — with the evidence, and also whether — also whether — well, I think it was mainly in the evidence that the majority said that there was no political implications in his joining.

The dissent in particularly relying on the appendix set out some evidence indicating that he did have political motivations in his joining and in his membership.

Now —

Hugo L. Black:

What the Court said was it meant — may well have been devoid of any political implications.

But I do not read the opinion as resting on that fact.

I read it as resting on the fact that entails a consequence of deportation and it applies more solidity of proof than was [Inaudible] — that was held there which was fairly set out in the dissent.

Bruce J. Terris:

Your Honor, the only — the only lack of the solidity of proof is — is this lack.

I — in this, it was just a general statement which wasn’t going to be tied to any — any of the specific evidence in the case.

The only thing that they specifically tied it to was this being devoid of any political implications.

And therefore, I have — I have to assume —

Hugo L. Black:

Well, he didn’t say that —

Bruce J. Terris:

— that that was the crucial thing.

Hugo L. Black:

He didn’t say that the evidence showed it was devoid of political implications in the opinion here, as I read it.

I agree with it.

Bruce J. Terris:

That’s right.

Hugo L. Black:

I can agree readily on it that the test is a very loose one of what is meaningful, but I have found a difficulty of this term, up to this time, why — that was not as much or more have justified deportation in Rowoldt as in this case?

Bruce J. Terris:

Your Honor, he — the majority went on also to say and I gather that — that this also a part of what it thought was lacking, presumably, he, Rowoldt had to live on something and further inquiry might have elicited that he was getting the necessities of life where he’s worked in the bookshop nor was there a hint in the record that this was not a bona fide bookshop.

I — the tenor of the opinion was that this was a man who was there for economic reasons and not for political reasons that under Galvan, this Court said, that person had to join the Communist Party as a distinct —

Hugo L. Black:

He’s been a member a year.

He went to all the meetings, paid his dues, and in addition to that, worked in the Communist bookstore.

It seems to me that your argument show that it takes a pretty heavy burden somewhere as to the kind of meaningful membership it is.

Bruce J. Terris:

Well, Your Honor, if you — if you compare the facts in Niukkanen and in Rowoldt, they’re not tremendously differently.

The only thing that Niukkanen had that was different than Rowoldt that I can see that’s of any considerable importance is that Niukkanen didn’t say he joined the Communist Party for any other than political reasons.

Now Niukkanen — it is true there is evidence in the Niukkanen case that said that Niukkanen was in the “top fraction” of the Communist Party, although Mr. Justice Douglas in his dissent that he said he wasn’t a functionary.

I — assuming that the Court of Appeals was right that he was in the “top fraction” of the Communist Party and further that he discussed Communist actions with other people in the Communist Party.

I still — that evidence doesn’t advance you tremendously past Rowoldt unless you emphasize the distinction that in Niukkanen, that alien did not explain why he was in the Communist Party.

That’s — that is the major distinction and this is the major distinction which has been seen by the Courts of Appeals.

He too was —

Earl Warren:

Well, Mr. Terris, let me ask you this question.

Assume — let’s discard for the moment that the ex parte statement that Rowoldt made at the time he’s arrested to the effect that he joined the Party for bread and butter, or words to that effect, let’s exclude that from that case.

Is there any meaningful difference between Rowoldt and this case with the exception of that?

Bruce J. Terris:

There is evidence in this case that is different and it seems to me in at least three important respects why this case is stronger.

First in Rowoldt, the alien was a member of the Communist Party for a year, as long ago was 1935.

Now, that’s a very, very different situation than a man who is a member of the Communist Party in 1948 to 1950.

Earl Warren:

Two years instead of one.

Bruce J. Terris:

That — that difference but also more important is the time.

In 1935, it was not — is well known that the Communist Party was an active political organization with particular views.

Now, it’s very hard for me to believe that any average and the intelligent person, in 9th — who was living in this country in 1948 to 1950 had any doubts that the Communist Party was an active political organization.

Hugo L. Black:

Do you suppose anybody doubted it in 1935?

Bruce J. Terris:

Your Honor, there’s [Inaudible] —

Hugo L. Black:

They had — they were running candidates to various places there.

I should think that it was a —

Bruce J. Terris:

Well, Mr. Rowoldt apparently —

Hugo L. Black:

— a reason to believe that that was a political organization then.

Bruce J. Terris:

Well, Mr. Rowoldt apparently doubted because he — he apparently joined it to get something to eat and —

Hugo L. Black:

But I thought he told them when he — when they asked him that, but he also paid dues and went to meetings, attended meetings regularly for a year.

Byron R. White:

[Inaudible]

Bruce J. Terris:

Yes, sir.

That’s right, Your Honor.

If Rowoldt hadn’t — if Rowoldt hadn’t testified and that hadn’t been — and if —

Earl Warren:

Rowoldt didn’t testify, did he?

Bruce J. Terris:

I’m — the only evidence was a statement and that was the equivalent of testimony because under the Board’s rules, if — it allows the admission of statements.

You’re right, Your Honor.

Arthur J. Goldberg:

[Inaudible]

Bruce J. Terris:

That’s right.

They’re introduced it — as evidence.

Tom C. Clark:

But did he — petitioner testified?

Bruce J. Terris:

Pardon me.

Tom C. Clark:

That if petitioner testified, he would never have to choose.

Bruce J. Terris:

In Rowoldt?

Tom C. Clark:

In —

Bruce J. Terris:

In Rowoldt, but he didn’t testify, Your Honor.

Assuming, in the same sense that I used, testified to that (Voice Overlap) —

Hugo L. Black:

(Voice Overlap)

Earl Warren:

Well now let’s — let’s get back to my question if we can.

What other meaningful distinction is there between this case and Rowoldt other than the fact that his was for one year, this was for two years, and Rowoldt’s was in 1938 and this was 1949, or whenever it was.

Bruce J. Terris:

That’s right.

That was 1935.

Earl Warren:

Was there any — is there any —

Bruce J. Terris:

The other — the other important thing is that there is testimony in this record that he was a member — that he attended at least a few executive meetings and that he was apparently an officer of his local unit.

Now —

Earl Warren:

Is there a finding to that effect that he was an officer?

Bruce J. Terris:

I — there isn’t an explicit finding, Your Honor, but that’s how I read this on page 2 of the record which Mr. Justice Goldberg was — is alluding to, that for several months, an attempt was made to make the respondent a leading figure in the unit of the Communist Party.

I think that — that is the evidence —

Byron R. White:

Well, was there any evidence to support that other than nowhere here on page 72 of the record?

I don’t know where is that page now?

Bruce J. Terris:

I think — let’s see.

Byron R. White:

Well it’s at 69.

All I know at that time he was an official of the club because he attended a few executive meetings.

Bruce J. Terris:

That’s right.

That is — that is the testimony.

Byron R. White:

That’s all there was to it.

Bruce J. Terris:

That’s right.

Hugo L. Black:

Which one was that (Voice Overlap) —

Bruce J. Terris:

The record in this case, the actual record which you don’t have here is some 300 — 250 pages long, but almost all of it is on cross-examination in the light which doesn’t go directly to the issues.

Hugo L. Black:

Which one of the two witnesses testified (Voice Overlap) —

Bruce J. Terris:

Elorriaga.

I may — I may say on that issue because Mr. Rein has made a great deal of it that special inquiry officer who heard the testimony of Scarletto and Elorriaga specifically credited both witnesses.

Now, his report is — his decision is not again in the printed record.

It is in the record which is — which the clerk has.

Now, he specifically credited —

Hugo L. Black:

Now, what was read from awhile ago as to the effect that they were — they didn’t have to resolve that difference?

Bruce J. Terris:

There — there was one discrepancy in the testimony which was not brought up before the special inquiry officer.

Nobody noticed it.

It was — he said at one point that Elorriaga said at one point the petitioner attended meetings regularly, I think it was maybe two or three times a month over the two-year period.

And then later on, he said, that he had seen him at two or three meetings in 1949 and 1951.

Now nobody noticed this discrepancy when the hearing was actually being held, and so it wasn’t brought to the attention of the Government or the witness that he had testified in contradiction to himself.

The Board noticed the discrepancy.

I suppose counsel brought it to the Board’s attention.

The Board said that it didn’t have to decide which version was correct.

Hugo L. Black:

Did the Board decide that he was an official?

Bruce J. Terris:

Your Honor, the only —

Hugo L. Black:

I don’t see it here.

Bruce J. Terris:

The only — the only — the only actual reference to that point which is in any of its opinions is the sentence that I’ve pointed out to you on page 2.

That’s — I think what it is alluding to.

I don’t know of anything else in the record it could be alluded to.

Hugo L. Black:

It seems to me that this is very unsatisfactory set of findings.

You say whether or not the Board found the facts, sufficient to show that he had a meaningful membership.

I can’t tell which part of its findings and which part of it is just to say that there was evidence.

Bruce J. Terris:

Well, I don’t —

Hugo L. Black:

I can see that they said that he was a voluntary member.

Hugo L. Black:

They found that very clearly and specifically.

Bruce J. Terris:

Well then later on, Your Honor, I didn’t come back to the — this part of your earlier suggestion to me.

At that point, Rowoldt hadn’t determined that the language that’s — that one uses in these cases is meaningful that that — you don’t just find — you got to find meaningful.

The issue then came before the Board again specifically arguing Rowoldt to the Board.

The Board said looking again at the record, that this was meaningful.

Hugo L. Black:

Now what — where are the findings on which they based that?

I mean the findings of fact, not their conclusion that was meaningful —

Bruce J. Terris:

Well, I think the findings that — the findings are the same.

Hugo L. Black:

They did not make any (Voice Overlap) —

Bruce J. Terris:

New findings —

Hugo L. Black:

— findings of fact.

Bruce J. Terris:

There was no new testimony.

Hugo L. Black:

So we have to look back at page 2.

Bruce J. Terris:

That’s right Your Honor.

Hugo L. Black:

And that’s the part, it seems to me to be very unsatisfactory, the findings of fact.

Bruce J. Terris:

I think — I think there is another point and I can’t find it at the moment.

There is another point where the Board says that petitioner was a regular member, he attended meetings regularly, and that he paid dues regularly.

Hugo L. Black:

Well, there’s no doubt about that.

Bruce J. Terris:

That’s right.

There is no doubt about that.

Hugo L. Black:

But that’s what Rowoldt is?

Bruce J. Terris:

That’s right.

But Rowoldt — again I have to emphasize that Rowoldt explained why he was in the Communist Party.

Hugo L. Black:

That’s right.

That’s your difference.

Bruce J. Terris:

That — that is the most important difference in —

Earl Warren:

That’s — those are the only differences you know of.

Bruce J. Terris:

And the ones that I’ve –Yes.

— indicated to you, Mr. Chief Justice.

Earl Warren:

Yes.

Earl Warren:

So if — this man when he was arrested for deportation and said well yes, I did join the Party but I only did it for bread and butter and that was not contested by the Government, would that have put him within the Rowoldt rule and would he be entitled to — now to remain in the country?

Bruce J. Terris:

I would think — I would think that’s correct, Your Honor.

Earl Warren:

Don’t you think that’s — do you think that’s a meaningful distinction?

Don’t you think that every Communist will — if that’s the only distinction every Communist will say, “Oh yes, I joined it but I joined it for bread and butter personally not for political purposes” and then you’re stuck with all of them.

Bruce J. Terris:

Well, I’m not so sure in the next case to figure — I’m not so sure in the next case that the Government is going to let them — those kinds of statements go un-contradicted.

Earl Warren:

Well, there might be no way the Government couldn’t — might be no way the Government can (Voice Overlap).

Bruce J. Terris:

Well, it’s possible that more evidence could have been gotten even in this case.

I don’t know.

Earl Warren:

It could say that a man —

Bruce J. Terris:

Scar —

Earl Warren:

— 10 years ago wasn’t hungry for some reason —

Bruce J. Terris:

Well —

Earl Warren:

— or other and joined the Party that promised him some food and some better condition in life.

Bruce J. Terris:

Well — you can’t — you may not be able to contradict that directly.

But it would — in this case, Scarletto and Elorriaga were at meetings (Voice Overlap) —

Earl Warren:

I beg your pardon?

Bruce J. Terris:

Scarletto and Elorriaga were at meetings in which petitioner was present, Communist Party meetings.

Now, if this issue was squarely presented, that he said at the hearing, the witness said, “Well, I just joined the Communist Party because I was looking for — looking for food.”

It may well be that Scarletto could testify.

Well, he talked about an awful lot of other things.

He talked about the — that the Communist Party should try to spread its influence in the steel plants.

I don’t know what —

Earl Warren:

Well, isn’t that a little strange that in a proceeding of this kind where they bring two witnesses to testify how many times a man has attended inside meetings, that they wouldn’t ask him one word about whether the man had talked to — whether he discussed any problems, whether he’d advocated anything, whether he’d taken any action at all?

As I read this record, those two witnesses testified and nobody asked them, did he take any part from the meetings?

Did he say anything?

Did he preside at the meeting?

Was he a head of any committee?

Did he do anything?

And some of these meetings, most of them were as small as six people.

Bruce J. Terris:

That’s right Your Honor.

Earl Warren:

And still there’s nothing in this record to indicate that he did anything meaningful at any of those meetings.

Why —

Bruce J. Terris:

That’s right.

The —

Earl Warren:

Why is that —

Bruce J. Terris:

I may say that —

Earl Warren:

— a proceeding comes to us in that manner?

Bruce J. Terris:

I think the reason it did, Your Honor, because at that time, both sides believe that just being a member of the Communist Party.

Voluntarily, it was enough at the time of the — of the hearing in the Board’s first decision.

Now, I think Rowoldt explained that Galvan didn’t mean just that, that there was something else that would be relevant.

Earl Warren:

Well then, why shouldn’t that go back from now and be heard in the light of Rowoldt?

Bruce J. Terris:

It did, Your Honor.

That’s exactly what happened.

It went back to the Board.

That’s what we — well, the second time the Board didn’t allow reopening but he went back —

Earl Warren:

It didn’t allow reopening.

Bruce J. Terris:

— to the Board the first time in — yes, it did.

The Board explicitly allowed reopening in the light of Rowoldt.

That’s exactly what happened.

Tom C. Clark:

Did he have a lawyer?

Bruce J. Terris:

Yes, he did, he had a lawyer all the way through.

Tom C. Clark:

Did his lawyer ask him anything about whether they talked or go to the meeting?

Bruce J. Terris:

No.

But he didn’t testify although — I want to make that clear.

Tom C. Clark:

[Inaudible]

Bruce J. Terris:

He didn’t take the —

Tom C. Clark:

— the witnesses.

Bruce J. Terris:

No.

They had extensive cross-examination over hundreds of pages but there was no — there was no cross-examination as to what occurred at the meetings.

John M. Harlan II:

[Inaudible]

Bruce J. Terris:

That’s right.

He said he only —

John M. Harlan II:

[Inaudible]

Bruce J. Terris:

That — well, he — what happened when it went back, he said, he said that the Board — all he was arguing was that under Rowoldt, the evidence was insufficient.

The same argument he’s making here.

So the Board said, “Well, we’re also giving you the opportunity to present more evidence under Rowoldt.”

He said, “Well, you misconstrued my petition to reopen.”

And so the Board found that on an existing evidence, that there was sufficient evidence to show that he was a meaningful member of the Communist Party.

So he’s had — it’s not a matter of not having —

Hugo L. Black:

But they’re having no additional findings of facts.

Rowoldt had been a man here 40 years.

The Court took that into the consideration.

How long have this man been here?

Bruce J. Terris:

Well, Your Honor, he’s — he came here in 1920 so —

Hugo L. Black:

43 years.

Bruce J. Terris:

At the moment he’s been here 43 years.

He wasn’t at the time he’s a member, that’s right.

William J. Brennan, Jr.:

How old is he now, Mr. Terris?

Bruce J. Terris:

He’s 53.

Let me say — I don’t know that this is relevant but Mr. Justice Goldberg asked what employment he had.

The record indicates and I gather maybe he’s had different jobs.

The reason for this, there’s one point in the record which Scarletto says that he left to sell insurance for a while.

And then the alien registration form when he — that he filed with the Government indicated that he was self-employed in the ice business.

So I gather maybe that as I say that he’s had different job.

Hugo L. Black:

Is there any indication in the record that he’s ever done anything unlawful unless he was joining the Communist Party —

Bruce J. Terris:

No, Your Honor.

Hugo L. Black:

— within that 43 years?

Bruce J. Terris:

But of course, that isn’t the test under this provision of the statute.

I mentioned one other thing about what he did in the Party.

There is — there is a statement that the reason he didn’t attend more meetings — and by the way the number of meetings to be absolutely accurate that Scarletto testified to is two or three in the El Sereno Club.

Bruce J. Terris:

He was in two clubs, two or three in the El Sereno Club at the beginning of 1949 and at least 15 or 16 in the Mexican Concentration Club from 1949 at least through 1950.

Now, there’s an indication why he didn’t attend more meetings and that is, Scarletto says that he was occasionally transferred out by the Party to other work.

Scarletto apparently may not have known what the other work was or at least he didn’t testify to what it was.

But that may explain why he didn’t attend more meetings although he was a regular member of the unit.

He paid dues regularly and sometimes had amounted to a considerable amount of money because they had special assessments.

Now, I haven’t yet come to the issue which Mr. Rein says this is the heart of the case and I think it may indeed be, and that is this issue which may be called the burden of proof issue.

Earl Warren:

What were dues by way?

Bruce J. Terris:

I — the dues themselves, the actual assessments I think were a dollar a month but then they gave special assessments for — for drives and things like that.

I can’t — can’t remember the exact amount but some of those I think if my recollection is correct, would amount to $25 or $50, I may be wrong, Your Honor.

I — it’s not in this portion; it’s not in the printed record.

I don’t believe it’s — it’s in the transcript.

Tom C. Clark:

What period was it that he was a member for 3 years?

Bruce J. Terris:

He was from — he was 48 — the Board said 1948 or 1949 to the end of 1950, at least to the end of 1950.

There were seven testimonies by Elorriaga that he was — that went into 1951.

Tom C. Clark:

Rowoldt was 1935, was it?

Bruce J. Terris:

Rowoldt was 1935, that’s right, Your Honor.

Galvan was 1944 to 1946 and Niukkanen was 1937 to 1939.

That’s what we think the evidence here on this fact and I think it is an important fact.

It’s considerably strong for in this case that he knew what he was doing when he was a member of the Communist Party.

Hugo L. Black:

Well, there was no idea that this man didn’t know what he was doing, Rowoldt, was there except the same as a normal man who was working in a bookstore.

Bruce J. Terris:

But Galvan said the test was whether he joined the Communist Party —

Hugo L. Black:

I’m not talking about Galvan, I’m talking about Rowoldt.

Bruce J. Terris:

Well, but Rowoldt purports to apply this standard.

That’s the reason I think it’s significant.

Galvan says that the test is whether you join the Communist Party as a political organization.

This Court said in Rowoldt that he joined the Communist Party for economic reasons.

Now, that’s —

Hugo L. Black:

No.

It didn’t quite say that.

It said that he was not devoid of evidence from which it might be inferred that he joined for something else besides political reasons.

Hugo L. Black:

But that case unless I’m wrong that I rest on this, as Mr. Justice Frankfurter who wrote it that deportation is a very, very serious thing.

It must not be lightly considered to reach the conclusion that should occur, particularly in reference the man has been there 40 years and that it’s got to be something more than membership.

This man had membership.

That was — it was the approach that the Court took to the effect of deportation on the man.

And I don’t see where it could be said that it didn’t — it didn’t engraft a modification of their meaningful modification on Galvan.

Bruce J. Terris:

Yes, Your Honor, I really must emphasize this point because it seems to me that —

John M. Harlan II:

[Inaudible]

Bruce J. Terris:

That’s right, it sorted out there must be substantial basis for finding that an alien committed himself to the Communist Party in consciousness that he was quote, and this is from Galvan, “joining an organization known as the Communist Party which operates as a distinct and active political organization.”

I think it excerpted this test from Galvan and then applied it.

I don’t think there’s any other way to read it and then Niukkanen —

Tom C. Clark:

What about the last [Inaudible]?

What do you say there?

Bruce J. Terris:

The difference is on the facts between Galvan and Press and this case are too obvious to be detailed and Niukkanen does exactly the same thing.

It says that it’s relying on the ultimate question is whether petitioner is subject to deportation under Galvan and Press or it’s saved from it under Rowoldt and Perfetto.

Hugo L. Black:

Well, the dissent has pointed out that there wasn’t much difference, didn’t it?

Bruce J. Terris:

That’s right.

They said —

Hugo L. Black:

And I said that it’s not accurately stated what the facts were.

Bruce J. Terris:

In the majo — in the majority —

Hugo L. Black:

Unless you can show they didn’t.

And the argument said the opposite.

No, they didn’t say the —

[Inaudible] [Laughter]

Hugo L. Black:

The majority decided and it did with the knowledge with the fact stated as the dissent was correct.

They could not be disputed.

Bruce J. Terris:

Your Honor —

Earl Warren:

Do you —

Bruce J. Terris:

I don’t want to —

Earl Warren:

Why do you think that Mr. Justice Frankfurter would have ignored the difference between them?

He wrote both opinions, did he not?

Bruce J. Terris:

Well, Niukkanen was per curiam, Your Honor.

Earl Warren:

No, I’m talking — no, I’m talking about Galvan and —

Bruce J. Terris:

Galvan, yes.

Earl Warren:

— Galvan and Rowoldt.

Bruce J. Terris:

Yes.

Earl Warren:

He wrote both of them.

So —

Bruce J. Terris:

On the question of the facts in Niukkanen, of course, it’s to the Government’s benefit to make the facts in Niukkanen as weak as possible so that we can show that —

William J. Brennan, Jr.:

Well, there’s much emphasis on it, was not in Niukkanen on the finding of the two courts below at least to the [Inaudible] I’ve forgotten.

That Niukkanen had pressured himself and the trial judge say, —

Bruce J. Terris:

Yes, that’s —

William J. Brennan, Jr.:

— “pressured himself [Inaudible].”

Bruce J. Terris:

The only thing that the majority alludes to is this question of whether Niukkanen was a member of the Communist Party.

And the majority says that was a question of fact.

They’re going to accept the determination of the District Court and that — and that under Rowoldt and Galvan, this was sufficient to show meaningful membership.

Now, the dissent says, that Niukkanen really hadn’t done very much.

It says that he wasn’t as functionary of the Communist Party.

Now, the Court of Appeals as I’ve indicated, said that he was a member of the “top fraction”.

If the dissent in Niukkanen is right, that he was not a functionary, he really wasn’t very important at all, then I think Niukkanen is absolutely controlling on this case.

I am not going back into the record to find out whether the dissent in Niukkanen is accurate in the Court of Appeals and Niukkanen is wrong or the converse is true, but it’s to the Government’s benefit to if the facts in Niukkanen is weak as possible, I suppose.

Arthur J. Goldberg:

[Inaudible]

Bruce J. Terris:

That’s right.

Arthur J. Goldberg:

[Inaudible]

Bruce J. Terris:

I think that’s right, Your Honor.

That’s right.

Arthur J. Goldberg:

[Inaudible]

Bruce J. Terris:

No.

Arthur J. Goldberg:

[Inaudible]

Bruce J. Terris:

Very detailed consideration –.

Arthur J. Goldberg:

[Inaudible]

Bruce J. Terris:

That’s right.

Arthur J. Goldberg:

[Inaudible]

Bruce J. Terris:

That’s right.

Arthur J. Goldberg:

[Inaudible]

Bruce J. Terris:

Yes, that’s right.

Arthur J. Goldberg:

[Inaudible]

Bruce J. Terris:

This controversy about official by the way, as far as the convention is concerned, I gather what Scarletto meant was he didn’t know what capacity was there.

Hugo L. Black:

Well, I hope (Voice Overlap) —

Bruce J. Terris:

He was there as a member of the Communist Party.

Hugo L. Black:

I hope you have argued on the basis a little more than that in it for this reason.

There should be findings of fact by the agency charged with the findings of facts that it’s sufficient to support the conclusion.

I do not think we should be required to wade through this evidence of how much there is to make findings which the Board failed to make.

And for me, as to my way of thinking, they have not made adequate finding —

Bruce J. Terris:

Your Honor —

Hugo L. Black:

— on subsidiary facts.

Bruce J. Terris:

Your Honor that’s — of course, that’s an issue that — that hasn’t been briefed or argued by either side I may say that the question of the point is I’m not ruling much of the position —

Hugo L. Black:

The challenge was to the fact that he said that to read that page is — when I read it, I felt to agree with but it’s largely just a recital of evidence.

It’s hard to tell what facts are found except that this man voluntarily joined the Party.

Bruce J. Terris:

Well, Your Honor, I think it’s perfect —

Hugo L. Black:

And nobody denied.

Bruce J. Terris:

The thing is perfectly clear from page 2 that that paragraph, one of the findings of the Board.

We believe this record establishes the respondent’s membership was voluntary, that’s the last sentence of that paragraph.

Hugo L. Black:

That’s right.

Bruce J. Terris:

I’d assume that means that the things that are stated in that paragraph are accepted as true by the Board.

Now, the Government says that what’s found in that paragraph is sufficient under Rowoldt, and the absence of any explanation whatsoever by the alien.

Hugo L. Black:

The first sentence and that last sentence from the paragraph relates to whether his membership was voluntary.

That finding is that he was a voluntary member —

Bruce J. Terris:

Right.

Hugo L. Black:

— and nobody denied.

Bruce J. Terris:

Right.

Bruce J. Terris:

But Your Honor, let me try — I don’t think I am making myself clear.

That paragraph says that the following facts are true.

We’ve looked at the record.

We’ve accept it’s true the following facts and they’ve followed a series of facts, the dues, the meetings and the like.

They say on the basis of those facts, we make a determination; the conclusion that respondent’s membership was voluntary.

Hugo L. Black:

That’s right, voluntary.

Bruce J. Terris:

Okay now, then Rowoldt was decided, but the alien argued to the Board that Rowoldt was controlling that the facts which had been established did not show meaningful membership, but the Board then said — the Board then said that the facts in the record established meaningful membership.

Now, those facts that it had found are on page 2.

Hugo L. Black:

But those facts that they had there, if you call that a finding of fact, relate to being voluntary.

They do not, as far as I’m concerned, the facts they’ve stated there, if you call them findings, do not support any different kind of membership to that of Rowoldt.

Bruce J. Terris:

Well, Your Honor then — I think that that is the issue whether those facts are sufficient to show meaningful membership.

Hugo L. Black:

In that paragraph — in that paragraph?

Bruce J. Terris:

That’s right.

Byron R. White:

Well, I gather Mr. Terris, you concede that it wouldn’t be proper for us — at least we don’t have to — put it the first way, it wouldn’t be proper for us to support the findings of meaningfulness by any facts in the record other than in that paragraph.

Bruce J. Terris:

Well, I think — as I — as I say in general, some of the — some of the things in the record are more specific as to what — in other words, he —

Byron R. White:

Well, that we could find our judgment about meaningfulness or not with the facts in that paragraph, or are you urging us to look to some other?

Bruce J. Terris:

No.

When the — no, Your Honor, only —

Byron R. White:

Do you think — I know you think those are not?

Bruce J. Terris:

No, well, what I’m trying to say is this.

Underneath each one of those general sentences, there are number of specific facts that are testified, they didn’t testify it generally as these sentences would indicate.

But these are con — general sentences including a number of subsidiary facts which were testified to the —

Byron R. White:

Do you think for example the attempt to make him a leading figure, for example, encompasses any specific evidence —

Bruce J. Terris:

That’s right.

That’s what I’m saying.

Byron R. White:

— such as he was an official.

Bruce J. Terris:

That’s right.

That’s all I’m — he attended executive meetings and he attended the convention.

That’s — that’s all I’m suggesting by that.

These — these conclusory sentences as to facts, grouping facts within — with one — within a general statement, we submit, are sufficient under Rowoldt to establish meaningful nature.

Byron R. White:

If we went outside those findings and took a — found something in the record that was entirely independent of those findings, different and said this supports the meaningfulness, do we have a plenary problem here or –?

Bruce J. Terris:

I don’t think so, Your Honor.

I don’t think you do.

I think —

Byron R. White:

That’s a different theory.

Bruce J. Terris:

Yes, that’s right, because it isn’t a different theory.

It’s just —

Hugo L. Black:

You mean if — you mean — I thought that — it’s pretty well settled that if an agency made findings, subsidiary findings, we look to them to make the findings and we didn’t go look to see if other findings could have been made by them from other evidence.

Bruce J. Terris:

Well, Your Honor, we — of course this is a — this is a — the Board found that it believed Scarletto and it believed Elorriaga.

Now, I think anything they testified to can be used to support this.

I don’t — I don’t want to press this too far because I don’t think you’re going to find very much other than things that are concluded within those sentences.

And I don’t — I think we could have a discussion but it would be — it would be pretty theoretical —

Hugo L. Black:

And it might be —

Bruce J. Terris:

— as far as this case is concerned.

Hugo L. Black:

— it might be where you can see now, which part of this do you think is a subsidiary finding different to Rowoldt.

Testimony introduced by the Government reveals that respondent’s membership continued over a period from 1948 or 1949 to at least end of 1950.

That’s a difference in time.

Bruce J. Terris:

Difference in time and length of time.

Hugo L. Black:

That’s right.

That for several months an attempt was made to make the respondent a leading figure in the unit of the Communist Party.

Bruce J. Terris:

That’s totally different.

Hugo L. Black:

Totally different.

Byron R. White:

And that includes that he was in fact —

Bruce J. Terris:

That’s right.

That thing (Voice Overlap) —

Hugo L. Black:

Well, would it — would you think if that was sufficient to show that he was an official that the fact that several months, somebody made an effort to make him a leading figure in the unit of the Communist Party?

Bruce J. Terris:

I think that they haven’t assumed —

Hugo L. Black:

(Voice Overlap)

Bruce J. Terris:

I think that shows that —

Hugo L. Black:

— that as a serious finding that this man was an official of the Communist Party.

Bruce J. Terris:

I find that this is — that this at the very least means that he was not just the average person down at the bottom.

Hugo L. Black:

That he — that — I agree to that.

The respondent paid dues over the period of his membership, that’s Rowoldt and attended many meetings, he claimed close to all but members of the Communist Party.

That’s Rowoldt, wasn’t it?

Bruce J. Terris:

I’m not sure about the closed part of it in Rowoldt but (Inaudible) —

Hugo L. Black:

Then they said that this testimony established a prima facie case of voluntary membership, and you say that we should substitute for that, I agree that that could be done.

Bruce J. Terris:

The Board did.

Hugo L. Black:

Under that — (Voice Overlap)

Bruce J. Terris:

The Board substituted it.

It wasn’t just that I wanted —

Hugo L. Black:

That was sufficient and that judgment to show meaningful.

That’s what they rested on.

Bruce J. Terris:

Along with the fact that there was no explanation.

That’s —

Byron R. White:

Now, Mr. Terris before it said later that it is meaningful —

Bruce J. Terris:

That’s right.

That’s what I’m saying.

It’s substituted.

Byron R. White:

That the Board later (Voice Overlap) —

Bruce J. Terris:

That’s right.

Byron R. White:

— itself said it on these facts, it is meaningful —

Bruce J. Terris:

That’s what I was —

Byron R. White:

— not just voluntary.

Bruce J. Terris:

That’s right.

That’s what I was trying to —

Hugo L. Black:

That’s what I called your attention to.

Would you say that these facts which I’ve read to you that this was meaningful in there in the beginning would have distinguished this from Rowoldt sufficiently?

Bruce J. Terris:

Yes, Your Honor.

Except in Rowoldt —

Hugo L. Black:

And that’s what your case hangs on?

Hugo L. Black:

You’re not asking us, are you, to go look over this record.

Read all the evidence and make findings of our own in addition to these.

Bruce J. Terris:

Of course our argument is Your Honor that you — that you shouldn’t be doing that in this record because it’s already — that we’ve already had the determination of four courts that the evidence was sufficient and that the proper standard is (Voice Overlap) —

Hugo L. Black:

Evidence to support these findings.

Bruce J. Terris:

Evidence to support the conclusion that there was meaningful membership and this Court has repeatedly said that it doesn’t reassess those.

Hugo L. Black:

Then, do I understand that the Government — I want to know this in connection with Government cases.

The Government is now taking the position is when their agencies make findings of specific facts that we ought to go out and look beyond those each time we have an agency determination to see if we could find — make some more findings from the record.

Bruce J. Terris:

No, Your Honor.

I’m trying — if anything, I’m arguing quite exactly the opposite that you —

Hugo L. Black:

I thought so.

Bruce J. Terris:

— that you — that the Government’s argument is that when four courts have all found that the evidence is sufficient, this Court shouldn’t reexamine the evidence at all except for when there is indication of the plainness sort of error and this is nothing novel.

This Court has said it in numerous cases.

I’m quite —

William J. Brennan, Jr.:

Mr. Terris, may I ask another — a different question to you.

I think Rowoldt involved the membership in the theory, the third of the 1930s.

Bruce J. Terris:

1935.

William J. Brennan, Jr.:

I haven’t heard you said anything about it but do you draw a distinction between Rowoldt and this case bearing on meaningfulness that membership here was 1949 to 1953 whatever the time is whereas membership in Rowoldt —

Bruce J. Terris:

Yes Your Honor.

William J. Brennan, Jr.:

— was incurred to — are you arguing that point?

Bruce J. Terris:

Yes, I — indeed I do emphasize that point. I think it is important, then if — that in the 30s —

William J. Brennan, Jr.:

I gather you — I gather — if you’ve argued that —

Bruce J. Terris:

Yes.

William J. Brennan, Jr.:

— I don’t believe you argued —

Bruce J. Terris:

Yes.

William J. Brennan, Jr.:

I guess I didn’t hear it.

Bruce J. Terris:

I think that is of considerable importance that people in the — in the 1940s, I think, were quite aware of the nature of the Communist Party.

Earl Warren:

Mr. Terris, I understood you say a few moments ago that in the same document that we’re reading from on page 2, that the Board later found that this voluntary membership was meaningful membership, where does that appear?

Bruce J. Terris:

It appears twice Your Honor, actually.

It appears at — on page 14.

Earl Warren:

Oh, well that’s a different document.

Earl Warren:

That’s in a different proceeding.

Bruce J. Terris:

Oh, what — well —

Earl Warren:

That’s entirely a different proceeding.

Mr. Justice Black was asking you about these findings in this particular — your argument that —

Bruce J. Terris:

Your Honor, Rowoldt hadn’t been decided when that opinion was handed down.

The terms meaningful membership, I don’t think it even existed in the law at the time that — that this first opinion was handed down.

Earl Warren:

But what is there in this document, that part of it appears on page 2 that we can refer to in determining whether the Commission found that this was meaningful as well as voluntary.

Bruce J. Terris:

You can find nothing in it.

Earl Warren:

There is none.

Bruce J. Terris:

That’s not — that is not — that is not the document you’re reviewing.

If you were —

Earl Warren:

Well, that’s (Voice Overlap) —

Bruce J. Terris:

If you were reviewing that document, and there’d been no consideration of Rowoldt, it might be — well, it might be the proper disposition to send it back to the Board to determine whether the standards of Rowoldt had been met.

William J. Brennan, Jr.:

That has been done.

Bruce J. Terris:

That’s been done.

That’s exactly what has been done.

It’s been done three times.

Potter Stewart:

And on page 14, of the final paragraph there, they explained that their first opinion in which it satisfies them that the membership was meaningful.

Bruce J. Terris:

That’s right.

Earl Warren:

Did they take any further testimony or — to determine or just say that’s what we meant.

Bruce J. Terris:

What they said — no, this isn’t a matter of what they meant.

They said that the testimony which had been taken satisfied the standards of Rowoldt, then they said and this is in the — in the first reopening of the proceedings.

We will allow the petitioner even though we think that the evidence is sufficient to satisfy Rowoldt, despite that we will allow the petitioner to have the opportunity to introduce further evidence on this issue, petitioner decided not to do so.

He had no evidence apparently.

John M. Harlan II:

[Inaudible]

Bruce J. Terris:

And it’s in the — yes.

William J. Brennan, Jr.:

Well, you have the opening sentence at page 14, both sides are content to rest upon the record.

Bruce J. Terris:

Yes, that’s of course the Board’s conclusion, the actual —

Hugo L. Black:

I understood (Inaudible) —

Bruce J. Terris:

It’s on pages 9 to 13 is the hearing on the reopening when petitioner said that he had nothing to introduce.

Bruce J. Terris:

Now, I’d like to turn to the — to the issue —

Byron R. White:

The Government didn’t offer any evidence either.

Bruce J. Terris:

No.

It was satis — well, the reason he was satisfied is because the Board I suppose had already said that the evidence was sufficient under Rowoldt.

Hugo L. Black:

You don’t mean they told them in advance.

Bruce J. Terris:

It was an opinion. [Laughter]

It was an opinion, Your Honor.

Tom C. Clark:

It’s on page 8.

Byron R. White:

That was after the chance — that was after the chance to offer evidence.

They had to make —

Bruce J. Terris:

No.

Byron R. White:

— both their minds, didn’t they, in advanced —

Bruce J. Terris:

No.

Byron R. White:

— whether they would or would not for evidence?

Bruce J. Terris:

No, what happened — what happened was this, Your Honor.

You had the first decision of voluntary membership found by the Board.

Rowoldt was decided.

Petitioner then moved to reopen.

The Board said — to reconsider under Rowoldt and reopen, the Board then found that Rowoldt did not require a different determination.

It analyzed the Rowoldt decision; it said the evidence was sufficient, but it would allow petitioner to reopen even though the evidence was sufficient as it now stood.

Petitioner —

Tom C. Clark:

And that — and that order said, in the last sentence of paragraph on page 8, in view of all these factors considering to be reopened and the respondent will be permitted to present such evidence as may be true.

Bruce J. Terris:

Precisely and then — and then he deliberately decided to introduce no evidence.

Hugo L. Black:

My trouble in the questions I’ve asked you is not that.

I understood that that was the fact.

I understood that the Board, when he get back said they found — what they found before to show meaningfulness within Rowoldt.

My trouble is that I do not think what they did find, brings it in Rowoldt.

Bruce J. Terris:

Well — and that — and that of course, is the — is the controversy between the petitioner and the Government.

Tom C. Clark:

When was the Yates case filed in Los Angeles?

Bruce J. Terris:

Pardon me.

Tom C. Clark:

When was the Yates case filed in Los Angeles?

Bruce J. Terris:

The Yates — I don’t know the exact time, but it was prior to the original hearing because Scarletto testified at the Yates case, in fact, I think — so I know that it was prior, I don’t know the exact date.

William J. Brennan, Jr.:

Was Scarletto an undercover informer —

Bruce J. Terris:

Yes. Yes.

William J. Brennan, Jr.:

— or had he been —

Bruce J. Terris:

Elorriaga was not.

Scarletto was.

Tom C. Clark:

Wasn’t it filed at the same time with Jennings, it was Jennings, wasn’t it?

Bruce J. Terris:

I — well, I think — no, wait a minute.

No — the trial — the trial in — in Yates was in 1952 because that — because that’s the time that Scarletto left the Communist Party to testify at the — at Yates’ trial.

Now, I’d like to turn in the time I have left to the issue of — that petitioner calls the burden of proof.

And he emphasizes that the Board said at one — in one of the opinions, that there wasn’t a great deal of evidence showing petitioner’s awareness that he was joining the Communist Party as distinct political organization.

Petitioner emphasizes to show that there wasn’t proof satisfying the standards of Galvan and Rowoldt.

But as the Board and the lower courts have all held, if petitioner had not known that the political implications joined the Communist Party, it was his responsibility to come forward with such evidence just as Rowoldt had done.

We submit there’s nothing —

Hugo L. Black:

Yes, but Rowoldt hadn’t come forward.

Bruce J. Terris:

Yes, he had.

Hugo L. Black:

Does your case depend on our taking at that adopting a theory that we believe when a man is being deported or when a man was being tried for something, and the Government failed to put up enough evidence, somehow when he puts up a certain amount, changes the duty, and makes him — go follow it to put on the evidence.

Bruce J. Terris:

No.

Hugo L. Black:

I hope it doesn’t.

Bruce J. Terris:

No.

The Government’s argument is this evidence is sufficient to establish meaningful membership.

We say that the normal inference that can be drawn from somebody showing up at the Communist Party meetings for over two years paying dues, attending a party convention, attending executive meetings is that he knew what he was doing, that he was joining a political organization.

We say that’s the normal and reasonable inference that you can draw that kind of an inference in any kind of case.

Hugo L. Black:

You say that he knew he was joining political organization that is [Inaudible] in Rowoldt.

Bruce J. Terris:

That’s what this Court said in Galvan.

And then we said —

Hugo L. Black:

Do you think —

Bruce J. Terris:

Yes.

Hugo L. Black:

In other words, your argument is that there’s enough evidence for them to find that he knew he’s joining political organization that brings it in Rowoldt.

Bruce J. Terris:

Your Honor, that’s — that’s what this Court said in Galvan and then said again.

That’s right.

That’s — that’s — that’s the Government’s position and we say that you can draw that inference from an active participation in Communist affairs.

And this isn’t a novel doctrine that the Government is suggesting.

You can do this in criminal cases.

In fact, in criminal cases, the burden may even be on the defendant to come forward with evidence not the burden of proof and I wanted to distinguish the burden of proof.

We have the burden of proof.

Hugo L. Black:

Well, I’ve never been able to understand that difference.

I tried to explain my difficulty, the first year I was on this Court, an explanation that I’ve never been able to understand that there’s any distinction between those two ideas.

Bruce J. Terris:

Your Honor, I — I’m trying to explain the distinction.

I don’t (Voice Overlap).

I could not be successful.

Hugo L. Black:

But how would it be different from that?

It’s like that disappearing presumptively [Inaudible]

Bruce J. Terris:

The distinction as I see it is, that for certain types of things that are peculiarly within the knowledge of one party, it is required to come forward, but the finder of fact in assessing the proof which is before it assesses it on the basis that the burden of proof is on maybe — it maybe on the other party.

Now, in this case the burden of proof is on the Government, but we don’t have to go as far as that.

We say the normal inference from this — from these — from the facts in this case isn’t membership in the Communist Party knowing that it is an active political organization.

Now, we say if there was any evidence to rebut this normal inference which could have been — we say that kind of inference could be made in the criminal case and this — and here of course, the standards that the burden on the Government is considerably less, that if that could be done in the criminal case, it fairly can be done in this case.

Byron R. White:

What you’re saying is that if he rested at that point —

Bruce J. Terris:

That’s enough.

Byron R. White:

— that there was no more evidence, you’ve won your case.

Bruce J. Terris:

That’s right.

That’s enough.

Now, if he wants to rebut it —

Byron R. White:

What’s made by the burden is that if he wants to win this case is that — if defendant wants to win the case that time, he better do something about your case.

Bruce J. Terris:

That’s right.

Now, if he comes in and says as in Rowoldt that I joined the Communist Party for nonpolitical reasons, then the standard which the Board applies in evaluating that evidence like the Government’s evidence is the Government had the burden of proof.

We do not say and as far as I know, none of the — the Board did not say it, that the burden of proof shifted to the alien in the sense that he had to prove something by substantial evidence.

Now, I’d like to turn finally to the Scales decision.

And this as members of the Court have indicated the Scales decision did not involve as to the facts which were before it, deportation and all involved the criminal prosecution under the Smith Act.

Bruce J. Terris:

And we don’t believe that a modification in the standards for deportation which involves an entirely different statute and in fact an entirely different constitutional basis should be inferred from the Court’s opinion in Scales unless the Court made that modification extremely clear.

Now, all that the Court said in Scales and this is what petitioner relies on, this Court in passing on a similar provision requiring the deportation of aliens will become members of the Communist Party.

The provision which rested on Congress is far more plenary power over aliens and hence did not press nearly so closely on the limits of constitutionality as this enactment that is the — the Smith Act, had no difficulty in interpreting membership there as a meaning — as meaning more than the mere voluntary listing of a person’s name on party roles.

Then the Court cited Galvan and Rowoldt.

A similar construction is called for here.

Now, we say that all these sentence means, all these two sentences mean is what the Government concedes that more than mere membership is required both for deportation and for a prosecution under the Smith Act.

Now, we submit there’s no basis for believing that this Court sub silentio in dictum overruled Galvan and Rowoldt and Niukkanen.

But even if Scales did modify those cases, we submit that the evidence here as to active membership was sufficient under the test laid down in Scales.

The Court said in Scales that the element of activity in the proscribed membership stands apart from the gradient of guilty knowledge in that the former, that is activity, may be shown by defendant’s participation in general party affairs whereas the latter, the guilty knowledge requires linking him with the Party’s illegal activities and we think the evidence here is plain.

The petitioner did actively participate in general party affairs.

He paid dues, he attended numerous closed meetings of his unit, he attended a party convention and attended executive sessions for his Party unit, and he was apparently an officer of the unit.

Therefore, we submit that the Board applied proper legal standards, the standards laid down in Galvan and Rowoldt in finding the petitioner was a meaningful member of the Communist Party.

This finding is twice been upheld by the District Court and twice been upheld by the Court of Appeals.

We submit that the lower courts were correct, that the Board’s determination, the petitioner was a meaningful member of the Communist Party.

It’s supported by reasonable, substantial, and probative evidence, which is what Section 242 of the Act requires.

And therefore, the Government submits that the judgment of the Court of Appeals should be affirmed.

Earl Warren:

Mr. Rein.

David Rein:

I’d like briefly to discuss the point about the actual findings of the Board of Immigration Appeals.

As Mr. Terris has indicated, the Board first made its findings before Rowoldt.

The petition for reopen was filed asking it to reconsider the case in the base — on the basis of Rowoldt or at least to reopen.

And it’s significant that in that decision, in which it considered the meaning of Rowoldt, this is what the Board said it had found and what its findings were.

And here are findings at page — it appears at page 6 of the transcript, membership in the Communist Party was found to have been established on the testimony of Government witness, Scarletto, who testified that he had collected Communist Party dues from the respondent and had attended closed meetings of the Communist Party with him, and the general corroboration offered by the testimony of Government witness, Elorriaga.

Those are your findings are meant, the Board goes on to say at page 8, there was little development of the respondent’s awareness of the fact that he belonged to a political organization.

When the case went back, it wasn’t at the question of the respondent not offering evidence, the Government offered no evidence.

And mind you, in this particular case, they had a witness who was an undercover informant for the FBI who according to the Government had observed the respondent over a considerable period of time and had adequate opportunity to testify to anything that he did.

The fair inference to draw from the lack of any testimony is that there was no test — there was no activity to testify to.

And I submit that where the Government has an opportunity to present testimony of “meaningful association,” has witnesses who would have knowledge or that if there were and presents no such testimony, it is certainly as fair an inference to conclude there was no “meaningful association” rather than to say that the Government had to prove it.

One last point —

Earl Warren:

Well, Was one of these two witnesses, Scar — or the other fellow an FBI agent?

David Rein:

No.

David Rein:

Scarletto, the one on which the Board relied was the undercover informant for the FBI.

Earl Warren:

Which one?

David Rein:

Scarletto.

Earl Warren:

Scarletto, that’s what I’m asking.

David Rein:

The other one, the Board indicated, they could not rely in his testimony.

I wanted have one further point.

There’s been much discussion here that Rowoldt joined the Communist Party merely to get something to eat.

I wanted to indicate and I want to read now from the opinion in Rowoldt, in which Rowoldt, the Court says, Rowoldt then explains his reasons for joining the Communist Party, “the purpose was probably this.

It seemed to me that he came hand in hand, the Communist Party and the fight for bread.

It seemed to me like this.

Let’s put it this way that the Communist Party and the workers’ alliance had one aim to get something to eat for the people.

I didn’t know it was against the law for aliens to join the Communist Party and the workers’ alliance.”

Now, it’s perfectly clear that Rowoldt was not joining the Communist Party to get a hand out.

He did not think it was a salvation army.

He joined it as an organization which he thought would help get people food generally.

It was not personally to get food.

Now, I just want to make that point clear.

Thank you.

Earl Warren:

Very well.