Scythes v. Webb

• Decision Date: 13 September 1962
• Docket Number: No. 13580.,13580.
• Citation: 307 F.2d 905
• Parties: George Albert SCYTHES, Petitioner, v. Richard L. WEBB, Officer in Charge, Immigration and Naturalization Service, United States Department of Justice of Milwaukee, Wisconsin, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

307 F.2d 905 (1962)

George Albert SCYTHES, Petitioner, v. Richard L. WEBB, Officer in Charge, Immigration and Naturalization Service, United States Department of Justice of Milwaukee, Wisconsin, Respondent.

No. 13580.

United States Court of Appeals Seventh Circuit.

September 13, 1962.

Leonard S. Zubrensky, Milwaukee, Wis., Melvin L. Wulf, New York City, for petitioner.

James B. Brennan, U. S. Atty., Milwaukee, Wis., James P. O'Brien, U. S. Atty., John Powers Crowley, Asst. U. S. Atty., Chicago, Ill., John Peter Lulinski, Asst. U. S. Atty., of counsel, for respondent.

Before KNOCH, CASTLE and SWYGERT, Circuit Judges.

SWYGERT, Circuit Judge.

Petitioner, George Albert Scythes, seeks review under the provisions of Section 106 of the Immigration and Nationality Act, 8 U.S.C.A. § 1105a, of a deportation order of the Board of Immigration Appeals. The Board's order followed an appeal from a determination by a Special Inquiry Officer of the Immigration and Naturalization Service that petitioner is an alien who had been a member of an organization, the Socialist Workers Party, which advocates the overthrow of the Government of the United States by force and violence or other unconstitutional means.¹ This review is governed by Section 242(b) (4) of the Immigration and Nationality Act, 8 U.S.C.A. § 1252(b) (4), which provides in part, "No decision of deportability shall be valid unless it is based upon reasonable, substantial, and probative evidence."

Petitioner, a native and citizen of Canada, entered this country on a temporary basis in 1933. He returned to Canada in 1940 to obtain an immigration visa. On June 1, 1940 he was admitted into the United States for permanent residence.

Petitioner became a member of the Socialist Workers Party in 1939, joining the Newark, New Jersey branch of the party. In 1947 he became a member of the Milwaukee, Wisconsin branch where he remained until he quit the party in 1955.

Petitioner admitted during the hearing that he was familiar with and had read many of the publications distributed by the Socialist Workers Party; that he had served as treasurer of the Newark and Milwaukee branches; that he had served on educational committees of these branches; and that he had addressed meetings of the party in Newark. Under Section 1251(a) (6) (F) the government must establish that the alien sought to be deported not only has been a member of the organization in question, but that his membership was "meaningful" as that word is used in Rowoldt v. Perfetto, 355 U.S. 115, 78 S. Ct. 180, 2 L.Ed.2d 140. See also, Galvan v. Press, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911. We are convinced that petitioner's activities while a member of the Socialist Workers Party clearly establish that his membership was sufficiently "meaningful" to satisfy the test laid down by these cases.

The crucial question is the correctness of the Board of Immigration Appeals' decision that the Socialist Workers Party is an organization that advocates the overthrow of the Government of the United States by force, violence, or other unconstitutional means. Section 1251(a) (6) (F) covers membership in an organization that "advocates or teaches * * * the overthrow by force, violence, or other unconstitutional means of the Government of the United States * * *." We believe it is significant to note that this language and that of a part of the Smith Act, 18 U.S.C. § 2385 (the federal criminal statute defining crimes for subversive activities) are practically identical. The Smith Act covers known membership in a "society, group, or assembly of persons" who "teach, advocate, or encourage the overthrow or destruction" of the United States Government "by force or violence."

While we recognize the distinction between a prosecution under the Smith Act and a deportation proceeding under Section 1251(a) (6) (F), the distinction relates not to the subversive character of the organization in question, but rather to the quantum of proof required to convict or to deport. In a Smith Act prosecution the proof must be beyond a reasonable doubt, whereas in a deportation proceeding it is sufficient if the Attorney General's finding is based on "reasonable, substantial, and probative evidence." Nonetheless, we believe the determination whether an organization is one which advocates or teaches the violent overthrow of the United States Government ought not be made by a test which is different in a deportation proceeding from that used in a Smith Act prosecution.

With this in mind, we believe that the test for deciding the question presented in the instant case must be substantially the same as that laid down in the two cases that have been decided by the Supreme Court under the membership clause of the Smith Act, Scales v. United States, 367 U.S. 203, 81 S.Ct. 1469, 6 L.Ed.2d 782, and Noto v. United States, 367 U.S. 290, 81 S.Ct. 1517, 6 L.E.2d 836. In Noto the Supreme Court said at 297, 81 S.Ct. at 1521:

"We held in Yates Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356,² and we reiterate now, that the mere abstract teaching of Communist theory, including the teaching of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action. There must be some substantial direct or circumstantial evidence of a call to violence now or in the future which is both sufficiently strong and sufficiently pervasive to lend color to the otherwise ambiguous theoretical material regarding Communist Party teaching, and to justify the inference that such a call to violence may fairly be imputed to the Party as a whole, and not merely to some narrow segment of it.

* * * * * *

"But it should also be said that this element of the membership crime, like its others, must be judged strictissimi juris, for otherwise there is a danger that one in sympathy with the legitimate aims of such an organization, but not specifically intending to accomplish them by resort to violence, might be punished for his adherence to lawful and constitutionally protected purposes, because of other and unprotected purposes which he does not necessarily share."

The government's evidence before the Special Inquiry Officer consisted of the testimony of three witnesses and a number of documentary exhibits such as pamphlets, tracts, and books circulated by the Socialist Workers Party. The documentary exhibit principally relied upon by the government is the "Declaration of Principles and Constitution of the Socialist Workers Party." Government counsel, during oral argument, admitted, however, that he could point to no passage in the "Declaration" which advocated the violent overthrow of the Government. Passages in the document, such as those recited in Dunne v. United States, 8 Cir., 138 F.2d 137, are ambiguous and abstract.³ We think that the characterization of the Socialist Workers Party as an organization advocating violent overthrow of the Government on the basis of such passages would be a characterization based on what was not said rather than what was said.⁴

Petitioner contends that the other evidence, aside from the "Declaration," including the documentary exhibits and testimony of the witnesses, does not justify his deportation because it does not establish that there is such discipline within the party organization that the views of certain party leaders and pamphlet writers can be properly attributed to the organization itself. In other words, petitioner contends the government has failed to provide the essential proof that there is a party line within the Socialist Workers Party.

All three government witnesses had been members of the Socialist Workers Party (the period of their membership was from approximately 1938 to approximately 1941) and all identified James P. Cannon as the head of the Socialist Workers Party during the period of their membership. Witnesses Bartlett and Zygmont testified that in their opinion the Socialist Workers Party, during the period of their...