Gastelum-Quinones v. Rogers, 15429.

• Decision Date: 08 December 1960
• Docket Number: No. 15429.,15429.
• Citation: 286 F.2d 824
• Parties: Jose Maria GASTELUM-QUINONES, Appellant, v. William P. ROGERS, Attorney General of the United States, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

286 F.2d 824 (1960)

Jose Maria GASTELUM-QUINONES, Appellant, v. William P. ROGERS, Attorney General of the United States, Appellee.

No. 15429.

United States Court of Appeals District of Columbia Circuit.

Argued October 27, 1960.

Decided December 8, 1960.

Petition for Rehearing Denied January 9, 1961.

Mr. David Rein, Washington, D. C., with whom Mr. Joseph Forer, Washington, D. C., was on the brief, for appellant.

Mr. Gilbert Zimmerman, Sp. Asst. U. S. Atty., with whom Messrs. Oliver Gasch, U. S. Atty., and Carl W. Belcher, Asst. U. S. Atty., were on the brief, for appellee.

Before EDGERTON,^** DANAHER and BASTIAN, Circuit Judges.

BASTIAN, Circuit Judge.

This is an appeal from a judgment of the District Court dismissing appellant's plaintiff's complaint for review of an order of deportation issued by the Board of Immigration Appeals Board. The order complained of was issued pursuant to authority delegated to the Board by the Attorney General under § 241(a) (6) of the Immigration and Nationality Act, 8 U.S.C.A. § 1251(a) (6), which reads in pertinent part:

"(a) Any alien in the United States * * * shall, upon the order of the Attorney General, be deported who —

* * * * * *

"(6) is or at any time has been, after entry, a member of any of the following classes of aliens:

* * * * * *

"(C) Aliens who are members of * * * the Communist Party of the United States * * *."

Appellant, a Mexican national, first entered the United States in 1920 and has resided here since that time. On February 28, 1957, a special inquiry officer of the United States Department of Justice, Immigration and Naturalization Service, after hearing on a rule to show cause issued March 23, 1956, found that, after his aforementioned entry into the United States, appellant was a voluntary member of at least two units of the Communist Party of the United States in Los Angeles, California. At the hearing, although voluntarily placed under oath, appellant, upon advice of counsel, invoked the Fifth Amendment and refused to testify. Appellant was accordingly ordered deported.

On November 14, 1957, the Board, to which appellant had appealed, ordered the appeal dismissed on the basis of the testimony before the special inquiry officer and his findings. The Board, in the appellate proceeding, stated that appellant was represented by able counsel, who was given the widest latitude in conducting his defense. Reviewing the testimony, the Board said:

"Counsel contends the record does not establish that respondent\'s membership was voluntary. The testimony introduced by the Government reveals that the respondent\'s membership continued over a period from late 1948 or early 1949 to at least the end of 1950; that for several months, an attempt was made to make the respondent a leading figure in a unit of the Communist Party; that the respondent paid dues over the period of his membership; and attended many meetings closed to all but members of the Communist Party. This testimony establishes a prima facie case of voluntary membership. The respondent made no attempt to rebut this prima facie case. He did not assert that the membership was involuntary. We believe this record establishes that respondent\'s membership was voluntary."

We think the record amply supports this finding.

About one month later, on December 9, 1957, the Supreme Court rendered its decision in Rowoldt v. Perfetto, 1957, 355 U.S. 115, 78 S.Ct. 180, 2 L.Ed.2d 140. On the basis of that decision and at appellant's request, the Board reopened the case so that, in the Board's words, "appellant will be permitted to present such evidence as may be appropriate to place his case within the framework of Rowoldt."

All that occurred at the reopened hearing before the special inquiry officer was that appellant's counsel made a statement to the effect that the evidence of record did not establish the "meaningful association" adverted to in Rowoldt, that a prima facie case did not exist and, therefore, that it was unnecessary to offer any further evidence. Accordingly, appellant again did not take the stand nor offer any evidence.

After the second and abortive hearing, the special inquiry officer filed his second opinion, calling attention to the fact that appellant had refused to testify during the original hearing, on a claim of privilege, and added:

"Although the respondent\'s motion requested reopening of the proceedings to offer testimony which he alleged would place him within the framework of Rowoldt, and despite the fact that the Board of Immigration Appeals granted the reopening for said purpose, the respondent failed to testify, to offer any documentary evidence, or to present any witnesses at the reopened hearing."

Calling attention to the fact that, despite the reopened hearing, the sum total of the evidence of record was exactly the same as it was when the decision of February 28, 1957, was entered and that the only new development was the Supreme Court's Rowoldt decision, the special inquiry officer proceeded to compare Rowoldt with the instant case, holding them to be clearly distinguishable, quoting from the decision of the Board in ordering reopening of the case as follows:

"In the instant case, however, the situation is quite different. Neither by testimony at the hearing nor as in Rowoldt\'s case by statements under oath prior to the hearing has the respondent given information which would challenge the normal inference which would flow from the fact that one who joined a political party, joined knowing that it was a political party. When the respondent registered as an alien in 1940, he stated that he had not belonged to any clubs, organizations or societies (Exhibit 3). When questioned in 1953 prior to hearing, concerning membership in the Communist Party, he refused to answer. During the five hearings which were held from April 13, 1956 to July 9, 1956, he never admitted having been a member of the Communist Party but sat by silently while his counsel attacked the testimony of the witnesses who stated that he had been a member of the Communist Party. Quite different then is the situation in the instant case from that in Rowoldt where unchallenged testimony accepted by the authorities presented a record at the most so balanced that it permitted the inference that Rowoldt\'s affiliation with the Communist Party may well have been wholly devoid of any political implications. This type of a balanced record is not presented in the instant case. Here we have nothing to prevent the drawing of the normal inferences which flow from the joining of a political party and long association with it. Moreover, Rowoldt joined at a time when it meant to him getting something to eat, something to wear and a place to `crawl into.\' This element tended to place the case in a state of balance for it made questionable the validity of drawing the inference which normally follows from the joining and association with a political party. The respondent\'s membership on the other hand was at a time when economic conditions did not require the individual to join in mass effort to obtain the simple necessities of life. (See Schleich v. Butterfield, 252 F.2d 191, C.A.6, February 14, 1958)"

The special inquiry officer, therefore, reaffirmed his original findings of fact and conclusions of law and, there being no request for discretionary relief, again ordered deportation. The appeal taken from that order was dismissed by the Board on May 18, 1959, the Board concluding its opinion as follows:

"Both sides are content to rest upon the record. The record establishes membership. We

...