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decided: June 17, 1963.



Warren, Black, Douglas, Clark, Harlan, Brennan, Stewart, White, Goldberg

Author: Goldberg

[ 374 U.S. Page 470]

 MR. JUSTICE GOLDBERG delivered the opinion of the Court.

This case, stripped of its procedural complexities, raises the question whether an alien long resident in this country is deportable because, for a period during 1949 and 1950, he paid dues to and attended several meetings of a club of the Communist Party in Los Angeles. The Immigration and Naturalization Service sought and obtained an order for petitioner's deportation on the ground that these facts established petitioner's membership in the Communist Party of the United States within the meaning of § 241 (a)(6)(C) of the Immigration and Nationality Act of 1952, 66 Stat. 163, 204-205, 8 U. S. C. § 1251 (a)(6)(C).*fn1 Whether membership was so established turns on the application of two decisions of this Court which construed the immediate predecessor of § 241 (a)(6)(C), § 22 of the Internal Security Act of 1950, 64 Stat. 987, 1006, 1008. In Galvan v. Press, 347 U.S. 522, 528, it was held that deportability on the ground of Communist Party membership turns on whether the alien was "aware that he was joining an organization known as the Communist Party which operates as a distinct and active political organization . . . ," and

[ 374 U.S. Page 471]

     in Rowoldt v. Perfetto, 355 U.S. 115, 120, it was held, in elaboration of Galvan, that the alien must have had a "meaningful association" with the Communist Party in order to be deportable. The evidence in the record, to which the standards set forth in these decisions must be applied, was all elicited at hearings before the Service's special inquiry officer in 1956. This evidence consists solely of the testimony of two government witnesses, petitioner having chosen to introduce no evidence.

The special inquiry officer entered a deportation order against petitioner on February 28, 1957. The Board of Immigration Appeals dismissed petitioner's appeal on November 14, 1957, on the ground that the record established his voluntary membership in the Communist Party. A few weeks later, this Court decided Rowoldt v. Perfetto, supra, and petitioner asked the Board to reconsider its decision in light of the opinion in that case. The Board denied the application, pointing out that the record as it stood still supported the deportation order. It did, however, order a reopening of the proceedings before the special inquiry officer so that petitioner might have a chance to offer rebuttal testimony and thereby bring himself, possibly, within the framework of the Rowoldt decision.

At the reopened hearing, however, petitioner's counsel took the position that on the record as it stood the Government had failed to establish Communist Party membership in the sense contemplated by the Rowoldt decision, and therefore chose not to offer further evidence. The Government also offered no additional evidence. The special inquiry officer reaffirmed his previous decision and the Board of Immigration Appeals on May 18, 1959, dismissed petitioner's appeal. Petitioner thereupon filed an action in Federal District Court for review of the deportation order. That court granted the Government's motion for summary judgment and dismissed the action. The United States Court of Appeals for the District of

[ 374 U.S. Page 472]

     Columbia Circuit affirmed the dismissal, 109 U. S. App. D.C. 267, 286 F.2d 824, and this Court denied a petition for certiorari, 365 U.S. 871.

Petitioner read the Court of Appeals' opinion as suggesting that § 241 (a)(6)(C) would not have applied to him if he had introduced evidence that he had not personally advocated the forcible overthrow of the Government.*fn2 He therefore moved before the Board of Immigration Appeals that the deportation hearing be reopened to permit him to introduce evidence that he did not personally advocate the violent overthrow of the Government. The Board of Immigration Appeals heard oral argument on the motion and, on August 1, 1961, denied it.

Petitioner then brought the present action in the District Court, praying that the Board be ordered to reopen the deportation hearing and that the Attorney General and his agents be enjoined from enforcing the outstanding deportation order. A preliminary injunction to the latter effect was also requested. The court denied the motion for preliminary injunction on August 14, 1961, and the Court of Appeals summarily affirmed this denial on September 13. Petitioner filed a petition for certiorari in this Court to review the denial of preliminary injunctive relief, and THE CHIEF JUSTICE ordered deportation stayed until the petition should be disposed of. Meanwhile, summary judgment was granted the Government on the merits of petitioner's complaint, which was thereupon dismissed, a disposition which was summarily affirmed by the Court of Appeals on February 23, 1962. Petitioner filed an additional petition for certiorari to review this judgment. We granted both petitions. 371 U.S. 860. No. 39 involves the preliminary injunction,

[ 374 U.S. Page 473]

     and No. 293 relates to the ultimate dismissal of petitioner's complaint on the merits.

In determining whether, on the record before us, the Government has fulfilled its burden of proving that petitioner was a "member" of the Communist Party of the United States within the meaning of § 241 (a)(6)(C), we must recognize at the outset what the history of the times amply demonstrates,*fn3 that some Americans have joined the Communist Party without understanding its nature as a distinct political entity. The Rowoldt decision, as well as other decisions of this Court, reflects that there is a great practical and legal difference between those who firmly attach themselves to the Communist Party being aware of all of the aims and purposes attributed to it, and those who temporarily join the Party, knowing nothing of its international relationships and believing it to be a group solely trying to remedy unsatisfactory social or economic conditions, carry out trade-union objectives, eliminate racial discrimination, combat unemployment, or alleviate distress and poverty.*fn4 Although the Court specifically recognized in Galvan, supra, at 528, that "support, or even demonstrated knowledge, of the Communist Party's advocacy of violence was not intended to be a prerequisite to ...

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