Interim Decision #1315 

ILiwron or PAUL 

In DEPORTATION Proceedings 

A-5142538 

Decided by Board December 27, 1963 

To sustain a charge of deportability under section 241(a) (6), Immigration and 

Nationality Act, the ultimate burden of proof rests with, and requires, the 

Government to overcome the possibility that membership in the Communist 

Party was devoid of political implications, since unexplained voluntary 

membership and activity therein over a period of time does not justify an 

inference of awareness of the political nature thereof (Gastaran-Quinones 

v. Kennedy, 374 U.S. 469 (June 17, 1963) ). 

CHARGE! 

Order : Act of 1952—Section 241(a) (6) [8 U.S.C. 1251(a) (6) (1958) 1-After 

entry, an alien who was a member of the Communist Party of the 

United States. 

Respondent, a 67-year-old married male, a resident of the United 

States since his admission for permanent residence in 1922, has been 

the subject of two Board orders declaring him deportable on the 

charge stated above for membership in the Communist Party in 1950. 

The Service, although. of the belief that respondent is deportable, 

moves the Board to evaluate the deportation record in light of the 

decision in Gastelum-Quinones v. Kennedy, 374 U.S. 469 (June 7, 

1963). This evaluation is requested so that if decision as to deportability stands and respondent seeks judicial review, the court will have 

before it a deportation record which has been administratively considered in light of the latest Supreme Court pronouncement on the 

law involved. Counsel agrees that reconsideration is necessary but 

contends that the Board's evaluation of the record in light of the 

Court's decision should result in termination of proceedings. We 

have reconsidered the case and agree that Gastebum-Qwkonee requires 

termination of these proceedings. 

Gastelum-Quinones, the petitioner, an alien about 53 years old, a 

resident of the United States since 1920, had been ordered deported on 

the same charge involved in the instant case, for membership in the 

Communist Party during 1949 and 1950. He did not testify at his 

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deportation hearing; two Government witnesses established that he 

had paid dues to the Party, that he had attended several Party meetings at the local level, that he had attended a Party convention, and 

that he attended a Party unit executive board meeting : 

The Court (5-4) found the petitioner was not deportable. The 

Court's opinion reveals that the charge could not be sustained unless 

the Service eliminated "the possibility that the alien's joining was 

without understanding the nature of the Party as a distinct political 

unit," at 473. The Court, examining the record for direct or indirect 

proof that the petitioner possessed the requisite awareness, held that 

the Service had failed to bear its burden. As to direct proof, the 

Court found none to establish that the alien was aware the Party 

was a, political organization, or that he was aware of the aims and 

purposes of the Party (knowledge of the Party's advocacy or violence 

is not required), or that he had knowledge of its international relationships. Indirect proof consisting of the fact that the petitioner 

had attended a Party convention, the Court characterized as deficient 

in that the Government witness "neither described what petitioner 

would have heard at the convention nor suggested that there was any 

prerequisite such as officership or executive responsibility to petitioner's attendance, at the convention." As the Government witness' 

testimony that at Party conventions "they would have discussions on 

what was going on in the Party, and what drives were coming up," the 

Court pointed out that the Government witness "did not elaborate 

this statement with reference to the convention that petitioner attended 

or to what petitioner did there." As to the Government witness' 

testimony, that petitioner had been present at a Party executive board 

meeting, that he 'supposed' that petitioner was a Party official, and 

that attendance was 'probably' limited to officials of the club, the 

Court stated that the witness "did not elaborate specifically upon the 

significance of petitioner's presence at the one meeting, making only 

the general statement that '[a]t this time I cannot say definitely the 

purpose [of that meeting] but it was either organizational or to form 

an agenda for the regular meetings" (all quotations from note 6, at 

477). 

As to the alien's silence, the Court considering the slimness of the 

evidence, and the drastic sanction involved, ruled that evidence of 

awareness of the political nature must be based on something "More 

directly probative than a mere inference based on the alien's 'silence," 

at 479. 

The dissenters concluded that Gastelum-Quinones was deportable. 

They pointed out that the evidence established that at conventions 

'they would have discussions on what was going on in the Party, and 

what drives were coming up,' at 485. The dissenters stated, ibid : 

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After regular attendance at Party meetings and functions, and regular financial support for its activities, it is rather fanciful to believe petitioner was 

still unaware of the political nature of the Communist Party. It is doubtful 

that the meetings were so ineptly run or structured. 

The Service contends that the following facts directly or indirectly 

support the finding or inference that the respondent was aware of 

the political nature of the Party : 

The record establishes that the respondent presided at four or five closed meetings of the communist party at his apartment in 1949 or 1950; that he held frequent conversations with [government witness] Pikes regarding communist party 

affairs, during this period; that respondent stated he had been a member "quite 

a number of years" (p. 58) ; that the Stockholm Peace Petition as a Party function and device for recruitment of Party members was a subject of discussion ; 

that communist party literature was discussed; that the respondent bad tried 

to recruit furniture workers for the communist party; that as recently as 1957 

the respondent helped arrange a meeting at his apartment with two communist 

party officials; that there was a discussion about communist party recruiting; 

that respondent was quoted as having stated he was disposed to leave a dinner 

at one time because two of the persons present "were deviating from -the Party 

Line, and that they were not good Communists" (p. 76) . 

Counsel's contention, apart from attacks upon the credibility of the 

Government witness, is in brief that the Government witness' testimony 

concerning respondent's Party membership fails to establish that respondent was aware of the political nature of the Party or that respondent was an officer or had executive responsibility of an official 

nature. More specifically, counsel states that the record establishes not 

that respondent chaired the -four or five Communist Party meetings 

at his home in an 'official position. but rather that he was lithe more 

than a host in his own home. He is of the belief, that the record is 

deficient since it fails to show the substance of the conversations and 

the nature of the Party affairs discussed with the Government witness; 

that a simple arhnission of membership by respondent does not elucidate the character of the membership; that the concern with the Stockholm Peace Petition does not establish the political nature of the 

Party; that the effort to recruit workers to the Party was not shown 

to have resulted in success; that respondent's chance presence at a 

meeting between the Government witness and officials at which the 

Party's work in the North and South were discussed is no more evidence that the respondent was aware of the political nature of the 

Party than was Gastelum-Quinones' attendance at a Communist Party 

convention; and that respondent's characterization of two individuals 

as deviators from the Party line and bad communists was without significance in the absence of evidence as to what the Party line was or 

what constituted a bad communist. Counsel further contends the evidence fails to reveal the nature of Party activities or the nature of re433 

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Interim Decision #1315 

spondent's work, except perhaps to show that respondent's efforts 

were to better working conditions among furniture workers or to carry 

out trade union objectives. 

From this review, it is clear that the charge before us cannot be 

sustained unless the Service rules out the possibility that respondent's 

affiliation with the Party was devoid of political implications. We 

believe the service has failed to sustain its burden. There is no direct 

proof in the record that the respondent was aware of the political 

nature of the Party; nor does the evidence justify an inference that 

respondent was aware of the Party's political aspect. Evidence that 

the respondent presided at four or five meetings in his apartment does 

not justify such an inference in absence of proof that respondent 

presided because he had an official obligation to do so , or that matters 

relating to the Party's political nature were discussed. Respondent's 

presence at the Party meetings and at the meeting with the Party 

officials is an aspect of membership which appears to differ little in 

quality from Gastelum-Quinones' attendances at Party meetings, the 

convention and the unit executive board meeting. The testimony of 

the Government witness fails to show participation in Party activities 

to such Q. degree that it would be fair to infer that the alien had to know 

the political nature of the Party. 

Although we find the charge has not been sustained on this record 

we shall not terminate proceedings without affording the Service a 

chance to proceed further if it desires. Until Gastelum-Quinones was 

decided, the administrative view was that an alien's unexplained voluntary membership and activity in the Communist Party over a period 

of time justified an inference that he knew the political nature of the 

Party. Until Gastelum 7Qtrimones, we were unaware of the degree of 

involvement required before such an inference was justified. Had the 

Service been aware of the standard which Gastelsan-Qicinortes exacts, 

the Service presentation of its case might have been different. Therefore, if the Service wishes to offer further testimony as to the nature 

of the respondent's membership and activity, it may, within three 

months from the date of this order apply for reopening of proceedings 

to the special inquiry officer who held this hearing or his substitute. If 

application for reopening of proceedings is not made within the period, 

or authorized extension thereof, these proceedings shall be considered 

terminated. 

ORDER: It is ordered that the outstanding order of deportation 

be andthe same is hereby withdrawn_ 

It is further ordered that if the Service fails to move for reopening 

of proceedings within three months from the date of this order or any 

authorized extension thereof, the proceedings shall be considered 

terminated. 

434