Matter of C----

• Decision Date: 10 May 1962
• Docket Number: A-5542165.
• Citation: 9 I&N Dec. 650
• Parties: MATTER OF C----. In DEPORTATION Proceedings.
• Court: U.S. DOJ Board of Immigration Appeals

9 I&N Dec. 650

MATTER OF C----.

In DEPORTATION Proceedings.

A-5542165.

Board of Immigration Appeals.

Decided by Board May 10, 1962.

Evidence — Admissibility of statements for impeachment purposes — Demand for witness' statement must be timely made.

(1) Alleged statements by three individuals that Government witnesses were perjurers are not admissible in evidence for impeachment purposes since there is nothing to indicate that any of the three persons had knowledge of the reputation of the witnesses in the neighborhoods in which they lived.

(2) Since counsel made no demand for the statement of a Government witness during cross-examination in 1953 at which time existence of the statement was disclosed, he is not entitled, nine years later and after six hearing adjournments at his request, to production of the statement nor to further cross-examination of the witness.

(3) The record establishes, in this case, by reasonable, substantial and probative evidence that the respondent was, after entry, a member of the Communist Party of the United States as the word "member" has been judicially defined.

CHARGE:

Warrant: Act of October 16, 1918, as amended September 23, 1950 [40 Stat. 1012; 64 Stat. 1006; 8 U.S.C. 137-3, 1946 ed. Supp.] — After entry, member of Communist Party of United States.

BEFORE THE BOARD

DISCUSSION: The special inquiry officer's decision of October 10, 1961, contains a full summary of the proceedings in this case since its commencement on October 31, 1950. This need not be repeated here with the exception of a reference to a few matters. On September 4, 1953, we dismissed the respondent's appeal from an order of deportation entered by a special inquiry officer. The order of deportation was affirmed in Carlisle v. Brownell, 149 F.Supp. 855 (Dist. of Col., 1957). On appeal, the judgment of the district court was vacated and withdrawal of the order of deportation was directed without prejudice to further action by the Service. Carlisle v. Rogers, 262 F.2d 19 (C.A.D.C., 1958). The latter decision held that the special inquiry officer's refusal to order the production of a pre-hearing statement of witness H---- was prejudicial error. On April 28, 1959, we remanded the case to the Service for further proceedings. A further hearing was held, and the case is now before us on appeal from the special inquiry officer's order of October 10, 1961, directing the respondent's deportation.

The respondent is a 64-year-old male alien, native of England and British subject, whose last entry into the United States apparently occurred on or about June 18, 1920. He has resided in this country since about 1917. Counsel stated that the respondent married an American citizen but the record does not show whether this marriage is in existence at the present time. The special inquiry officer found that the respondent "was voluntarily a member of the Communist Party of the United States between 1933 and 1938, inclusive, and 1946 and 1947, inclusive." The sole issue to be determined is whether the respondent is deportable on the charge stated above.

We have carefully reviewed the entire record. J---- L---- L---- testified that he was a member of the Communist Party of the United States from 1930 to 1937; that during 1933 he was a student in the Workers School at Hollywood, California, which was organized by the Communist Party to train a new layer of leadership for the Party; that the respondent was one of the instructors at this school; and that he had seen the respondent at meetings of the State Committee of the Communist Party and at various meetings of sections and subsections of the Party during 1934 and 1935. He stated that only members of the Communist Party were permitted to attend such meetings. He also testified that from 1934 until November 1936 his duties as an officer in the Los Angeles Section of the Party required the inspection once each year of Communist Party membership cards and the issuance of new cards to replace those for the previous year and that, in this connection, he saw the respondent's Communist Party membership card about November 1934 and November 1935.

L---- testified that, in his capacity of Los Angeles County Organizational Secretary, and pursuant to a decision of the Section Committee, he assigned the respondent to represent the Communist Party in the American League Against War and Fascism late in 1933 or early in 1934; that this assignment continued for five or six months; and that, pursuant to a decision of the State Committee in June 1935, he assigned the respondent, who was then in Los Angeles, to report to San Francisco to become co-editor of the Communist newspaper on the West Coast — the Western Worker. L---- was cross-examined at length by the respondent's former counsel.

N---- H----'s original testimony appears at pages 671 to 681, and 687 to 742. On October 8, 1952, we directed that his testimony be taken de novo and his subsequent testimony appears at pages 779 to 922. He testified that he was a member of the Communist Party of the United States from 1927 until 1939; that at San Francisco from April 1936 until August 1937 he was Labor Editor and later Managing Editor of the Western Worker, the West Coast publication of the Communist Party; that at the time the witness came to the Western Worker in April 1936 he was introduced to the respondent who was then Editor in Chief of that publication; and that the respondent remained as Editor in Chief for a period of approximately four to six months thereafter. H---- identified the masthead of the Western Worker as it appeared in the issues of May 7, 1936 (Exh. 13) and May 14, 1936 (Exh. 14). The mastheads contain the statement "Western Organ of the Communist Party, U.S.A. (Section of the Communist International)." H---- stated that he and the respondent attended staff meetings of the Western Worker; that all who attended these meetings were members of the Communist Party; and that, during the period that he (H----) was on the staff of the Western Worker, it was obligatory that all persons working for the newspaper be members of the Communist Party of the United States.

M---- B---- stated that he became a member of the Communist Party of the United States in New York City during the fall of 1936; that he came to California during January 1937; and that he was in the Hollywood Section of the Communist Party from that time until 1943 or 1944. He testified that he met the respondent in 1937 and during that year attended several closed meetings of the Communist Party at which the respondent was present. Only members of the Communist Party were permitted to attend these closed meetings.

R---- M---- H---- stated that he was a member of the Communist Party of the United States for a short time in 1940; that he rejoined in 1943; that he retained his membership until 1947; and that during 1946 and 1947 he attended several closed meetings of the Communist Party which were restricted to members of the Party. He testified that he met the respondent in 1946 at a closed meeting of the Communist Party and saw him at several additional closed meetings of the Party during 1946 and 1947.

During the hearing in January 1953, witness H---- was cross-examined at considerable length. At that time, counsel requested the production of a statement this witness had previously made to an officer of the Service concerning the respondent but the special inquiry officer denied the request. As we have indicated, the Court of Appeals in Carlisle v. Rogers, supra, held this was prejudicial error. At the reopened hearing on October 18, 1960, the statement made by H---- on October 30, 1952, was made part of the record as Exhibit 23, and during July and August 1961 the witness was again questioned by counsel. His testimony at that time was substantially similar to the statements he had made on October 30, 1952, and his credibility was not impeached. On the contrary, the special inquiry officer found the witness to be entirely convincing and credible. His testimony in 1961 was also similar to that given in January 1953.

When counsel filed the notice of appeal on October 18, 1961, he requested an extension of time within which to submit a written brief and he was granted until November 20, 1961. However, no brief was submitted. We have carefully considered counsel's contentions at the oral argument. The transcript of testimony comprises 1462 pages. During the oral argument, counsel made certain assertions as to what the record showed but in no instance did he furnish any page reference in support of his assertions.

With respect to two of the Government witnesses mentioned above, counsel alleged that H---- and L---- had reputations as perjurers; that H---- had been called a perjurer by the hearing officer [Judge Sears] in the second Bridges case; that Dean L---- and is, the hearing officer in the first Bridges case, and a Congressional Committee had so characterized L----; and that counsel was not permitted to introduce these three statements at the original hearing [1950-1953] nor at the reopened hearing [1960-1961]. Since no brief was submitted, we believe that during the oral argument counsel should at least have furnished a specific reference and quotation of the exact statements which were supposed to have been made by Judge Sears, Dean Landis and the Congressional Committee rather than a mere assertion by counsel that these three sources had characterized H---- and L---- as perjurers. We note that no claim was made that Dean Landis had called L---- a perjurer in counsel's undated memorandum of law which was submitted about March 24, 1961. On page 9 of that memorandum there is a purported quotation from the report of Dean Landis which refers to L----'s testimony in the Bridges case as being evasive and contradictory but there is nothing to indicate that Dean Landis had referred to L---- as a perjurer.

Counsel did not furnish any reference to the...