Schleich v. Butterfield, 13240.

• Decision Date: 14 February 1958
• Docket Number: No. 13240.,13240.
• Citation: 252 F.2d 191
• Parties: Arnold SCHLEICH, alias Joseph Ring, Appellant, v. James W. BUTTERFIELD, District Director of Immigration and Naturalization, etc., Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

252 F.2d 191 (1958)

Arnold SCHLEICH, alias Joseph Ring, Appellant, v. James W. BUTTERFIELD, District Director of Immigration and Naturalization, etc., Appellee.

No. 13240.

United States Court of Appeals Sixth Circuit.

February 14, 1958.

Bernard J. Fieger, Detroit, Mich., for appellant.

Charles Gordon, Regional Counsel, Immigration & Naturalization Service, St. Paul, Minn. (Fred W. Kaess, U. S. Atty., John L. Owen, Asst. U. S. Atty. Detroit, Mich., on the brief), for appellee.

Before SIMONS, Chief Judge, and ALLEN and MILLER, Circuit Judges.

SHACKELFORD MILLER, Jr., Circuit Judge.

The appellant, Arnold Schleich, filed this action in the District Court seeking a review of a final order of deportation entered by the United States Immigration & Naturalization Service at Detroit, Michigan, on or about June 4, 1953, and affirmed by the Board of Immigration Appeals on August 19, 1953. The appellant, not being in custody, but having been ordered to report for deportation, also asked for temporary and permanent injunctions restraining the defendant-appellee, who was the District Director of Immigration & Naturalization in Detroit, from deporting the appellant or from molesting him pursuant to the deportation order. Jurisdiction exists under Section 1329, Title 8 U.S.C.A. See: Section 10 of the Administrative Procedure Act, Section 1009(a) and (b), Title 5 U.S.C.A. Shaughnessy v. Pedreiro, 349 U.S. 48, 52, 75 S.Ct. 591, 99 L. Ed. 868; Callow v. Lehmann, 6 Cir., 233 F.2d 859; Muscardin v. Brownell, 97 U. S.App.D.C. 16, 227 F.2d 31.

The appellant is a native of Germany and an alien. He entered the United States in 1923 and has been a resident of Detroit for many years. On or about July 21, 1952, the appellee issued a warrant for appellant's arrest for the purpose of initiating deportation proceedings against him. The warrant alleged that appellant was an alien found in the United States in violation of the immigration laws thereof, in that he had been, after entry, a member of the Communist Party of the United States and an alien who was a member of a section, subsidiary, branch, affiliate or sub-division of the Communist Party of the United States, namely, "The Young Communist League." Act of October 16, 1918, as amended by the Internal Security Act of 1950, 64 Stat. 987, 1006, 1008. The substance of these provisions of the Internal Security Act of 1950 was subsequently incorporated in the Immigration and Nationality Act of 1952. Section 1251(a) (6) (C), Title 8 U.S.C.A., effective December 24, 1952, § 407, Section 1101 Note, Title 8 U.S.C.A. Following an administrative hearing, the Special Inquiry Officer of the Immigration & Naturalization Service found that the appellant was an alien who was "a voluntary member of the Communist Party of the United States from 1933 to the end of 1936" and "a voluntary member of an affiliate of the Communist Party, the Young Communist League, from 1929 to 1934." The order of deportation followed.

The appellant contends in this action (1) that the evidence was not sufficient to establish that he was a member of or affiliated with the Communist Party within the meaning of the statute, (2) that the statutory provision authorizing deportation under which he has been ordered deported is unconstitutional, and (3) the fact that the Special Inquiry Officer was an employee of and under the control of the agency which instituted and conducted the proceedings against the appellant constituted a denial to him of due process of law. These contentions were rejected by the District Judge who sustained appellee's motion for a summary judgment. Schleich v. Butterfield, D. C.E.D.Mich., 148 F.Supp. 44.

The appeal from that ruling was argued before this court prior to the recent decision of the Supreme Court in Rowoldt v. Perfetto, 355 U.S. 115, 78 S. Ct. 180, 2 L.Ed.2d 140. At the time of the argument appellant recognized the weakness of his contentions under the rulings of the Supreme Court in Galvan v. Press, 347 U.S. 522, 74 S.Ct. 737, 98 L. Ed. 911, and Marcello v. Bonds, 349 U.S. 302, 75 S.Ct. 757, 99 L.Ed. 1107. He relied largely upon the possibility that these rulings would be changed or modified by the ruling being awaited in Rowoldt v. Perfetto which had been argued and submitted but not then decided. We now have the ruling in Rowoldt v. Perfetto. The issues raised by the second and third contentions of the appellant, above set out, are not discussed in the opinion. Accordingly, the contentions with respect to the constitutionality of the statute and lack of due process in the hearing are rejected upon the authority of Galvan v. Press, supra, and Marcello v. Bonds, supra. This leaves for consideration only appellant's first contention that there was not sufficient competent evidence to establish that the appellant was a member of or affiliated with the Communist Party within the meaning of the statute.

On this issue it was held in Galvan v. Press, supra 347 U.S. 522, 74 S. Ct. 741, that support, or even demonstrated knowledge, of the Communist Party's advocacy of violence was not intended to be a prerequisite to deportation. The Court said, "It is enough that the alien join the Party, aware that he was joining an organization known as the Communist Party which operates as a distinct and active political organization, and that he did so of his own free will." The Court also held that the Internal Security Act of 1950 dispensed with the necessity of proving in each case, where membership in the Communist Party was made the basis of deportation, that the Party did, in fact, advocate violent overthrow of the Government. At the same time, the Court indicated that a person's relationship to the Communist Party might be so nominal, even though technically a member, as not to make him a "member" within the terms of the Act. In that case the petitioner disclosed that he had joined the Communist Party of his own free will, giving the time and place...