Earl Warren: Number 130, Willia Niukkanen, Petitioner, versus E. D. McAlexander. Mr. Forer, proceed.
Joseph Forer: Mr. Chief Justice, may it please the Court. This case comes here from the Ninth Circuit. It challenges the validity of a deportation order that was entered against the petitioner based on a finding that the petitioner was a member of the Communist Party from 1937 to 1939. The petitioner was born in Finland in 1908. In 1909, when he was 9 months old, he entered this country and was admitted as an immigrant. He has lived in the United States ever since. He is married to a native-born citizen of the United States. He has citizen step son. His aged parents live here as do both his sisters. In 1950, 11 years after the period of alleged Communist Party membership in this case, Congress for the first time enacted in the Internal Security Act, a requirement that all aliens who had been members of the Communist Party at anytime after entry must be expelled from the country. In 1952, deportation proceedings were started against the petitioner under this provision. Two witnesses testified that he had been member of the Communist Party in the period of 1937 and 1939. He did not testify and a deportation order was issued. The deportation proceeding was then reopened in order to allow the petitioner to apply for suspension of deportation as had become possible by reason of the enactment of the Immigration and Nationality Act of 1952. Now at the reopened hearing, petitioner did testify and at the reopened hearing, he testified for the first time that he had never been a member of the Communist Party. And he explained his failure to testify to that fact originally at the original hearing, by saying in effect that he figured that the original hearing that he did not have a chance when he saw that the service had produced two witnesses to testify contrary to the fact and particularly when one of the witnesses was a person who had never seen him in his life.
Speaker: Was he told at the original hearing an inference will be taken from his failure to take the stand?
Joseph Forer: He was. He was, but as I say at the reopened hearing, he testified. Now the --
Charles E. Whittaker: In reopened hearing, may I ask, did the reopened hearing that you referred to, one directed to the question of deportation or to the question of discretionary relief?
Joseph Forer: It was reopened for the purpose of discretionary relief, but nevertheless, he testified on the subject of deportability which incidentally was also apparently considered relevant on discretionary relief. And the special inquiry officer who presided at the reopened hearing chose to believe the services witnesses and disbelieved the petitioner and he repeated his finding of deportability. He also denied suspension. The Board of Immigration Appeals affirmed. Following that came this Court's decision in Rowoldt against Perfetto and the petitioner moved the Board of Immigration Appeals as he could under the regulations to have the deportation case reopened and reconsidered in the light of the Rowoldt decision. The Board of Immigration Appeals denied the motion and refused to reopen the proceeding on the ground that they were satisfied with the evidence in the light of Rowoldt and that the evidence satisfied the Rowoldt decision. Then this litigation followed.
Felix Frankfurter: Were briefs submitted on that motion before the Board?
Joseph Forer: There was argument whether or not there would be for the Board, there was an application which the brief did somewhat, yes.
Felix Frankfurter: Do you say there's argument but was there an oral presentation?
Joseph Forer: There was both an oral presentation.
Felix Frankfurter: So --
Joseph Forer: No. I beg your pardon. I'm – I'm wrong. What was submitted was a motion which was an argumentative motion and the Board of Immigration Appeals did not just issue an order denying the motion, but reviewed the facts and – and the evidence and held that Rowoldt was not applicable.
Felix Frankfurter: Is that in the record?
Joseph Forer: Before – the opinion of the BIA denying --
Felix Frankfurter: On the denial of the Court.
Joseph Forer: Yes. That is in the supplemental transcript of the record, it's the last BIA opinion in that volume.
Felix Frankfurter: Supplemental?
Joseph Forer: Well the supplemental transcript of the record which contains all the relevant excerpts from the Immigration proceedings and at page 61 of the supplemental transcript is this Board -- Board's opinion.
Felix Frankfurter: Is that a separate volume?
Joseph Forer: Yes. There's a transcript of the record known as the separate supplemental transcript of the record which was printed late. Now, the first issue in this case is whether the deportation order is justified by the evidence in the light of the Rowoldt case. Now, in Rowoldt, this Court held in effect that the statute requiring the expulsion of aliens who had been members of the Communist Party did not include every member of the party in an organizational sense even though like Rowoldt, the individual had actually joined the party and been accepted by it as a member and the Court limited the term “member” for the purpose of the deportation statute to a person who had what the Court described as a meaningful association with the party and whose affiliation had what the Court described as political implication. Now in the present case the evidence regarding membership and the nature of the membership can be summarized, I think, as follows. The petitioner as I have said denied membership of any kind. The service witness Knight however testified that he and the petitioner had been members of the same party unit from 1937 to 1939. And Knight testified that during this time, the petitioner attended about 30 to 35 party meetings and then he paid him 25 cents a month. He said that petitioner had been on the executive committee or executive board of the unit but he did not say for how long or what the petitioner did if anything in that capacity. He did say that, the petitioner had never been an officer of the party. He also testified that the petitioner was not interested or knowledgeable in communist theory or political discussions but said he was interested in the discussions of “bread and butter” and welfare topics. And it is clear both from Knight's testimony and from the petitioner's testimony that the petitioner was and he is thoroughly ignorant of Communist Party doctrine and literature. Now, the Board of Immigration Appeals expressed doubt about Knight's credibility, but it found that his testimony was corroborated by the second service witness, a man by the name of Wilmot. Wilmot was in a different class than either the petitioner or Knight, both of them were working men, Wilmot was intellectual. In the critical period he was the editor of an official C.I.O. newspaper which he testified was controlled by members of the Communist Party including himself. Now, Wilmot did not claim like Knight, Wilmot did not claim to be a member of the same Communist Party unit or section as the petitioner but he testified that as editor of this paper and as a communist he would get around to various Communist Party sections and he testified that he saw the petitioner at some close party meetings and that he once saw the petitioner pay dues. He also testified that the petitioner would come to the office of the C.I.O. newspaper which although, it was the C.I.O newspaper, he sort of callused with also being a communist organ, said petitioner would come to the office of the newspaper once or twice a month to get copies for circulation purposes. And that on sometimes on those visits, he would sit in on discussions held by communists who were on the staff of the paper and Wilmot quotes these discussions, “close the party meetings”. Wilmot said that he considered that petitioner was in what he called “the top fraction of the party”. Now, I don't -- he didn't say what he meant by “top fraction” but if he meant anything significant, I think, it is clear from the record that this bit of testimony about “top fraction” which was relied on heavily below and it's relied on heavily by the Government was a wholly unsupported and unreliable piece of sheer opinion testimony which furthermore, is inconsistent with the testimony of Knight who was in a better position to know the facts. I may say that when you read the opinion of the Board of Immigration Appeals and of the court below, they constantly emphasize the evidence against the petitioner and either slur over or ignore the evidence in favor of the petitioner. The petitioner testified that he had never seen Wilmot in his life before the hearing and that Wilmot had never seen him. Now, I think that a fair assessment of the government's evidence assuming that one disbelieves the petitioner is not more than that the petitioner had been organizationally a member of the Communist Party that he attended meetings, that he paid dues of 25 cents a month, that he was ignorant of and not interested in communist theory and literature but he was interested in discussions of “bread and butter” matter. Now, this evidence it seems to me, falls far short of the evidence about Rowoldt whom this Court held was not a member of the Communist Party for the purposes of a deportation statute.
Earl Warren: Is there anything indicating what his educational background was, Mr. Forer?
Joseph Forer: I don't recall that. He was an ordinary working man. He is a house painter. Now, I believe -- I -- I believe that it is in the record he went through high school. Rowoldt joined the party. Rowoldt was accepted by the party. Rowoldt paid dues and Rowoldt attended the meetings and that's the most if you can say about the petitioner here, but in addition, Rowoldt had intellectual and political sophistication that this petitioner doesn't have. And unlike this petitioner, Rowoldt had read communist literature, he knew its language, he was interested in its view of society and there to some extent insofar as he understood the pack and he agreed with it and moreover Rowoldt carried out in assignment from the Communist Party. He ran a party book shop. Now, the government distinguishes Rowoldt on the ground that in Rowoldt, Rowoldt himself described the nature of his membership. Now, the petitioner didn't do that here because he -- instead of describing the membership he denied it, but it seems to me, that the -- if what is important is the nature of the evidence then what is important is what the evidence shows or fails to show about the nature of the membership and not who the evidence and not whom the evidence came from. Now, actually, it seems to me, in order to sustain this deportation order consistently with Rowoldt, you have to take the position and it's the position that has been taken by the Board of Immigration Appeals if not in this case, as I think, they had taken this case, in numerous cases. You had to take the position that initially the obligation of the service is merely to prove organizational membership in the Communist Party. Once the service does that then the burden is on the alien to give a convincing explanation that his membership was not sufficiently political, not sufficiently meaningful so as to bring him under the statute as construed by the Rowoldt case. And on this theory if the alien does not give an adequate explanation of the nature of his membership and on credited denial it's obviously not an explanation then the service can infer meaningful membership that is deportable membership from nothing more that evidence of organizational membership or nondeportable membership and that's really, what I think, this case comes down to and I think, that that position is Rowoldt. The service has the burden under the statute of proving that any alien against whom it proceeds for expulsion purposes is in a deportable class. Now, that means that it must prove, in terms of the Communist Party class, not nearly that the alien had been a member of the Communist Party in some commonly accepted sense but that he was a member within the sense of the statute that they don't prove the latter, they are not entitled to deduce it solely from the former because that is shifting the burden approved to the alien and they have no right to do that.
Speaker: Does -- does this case bring up here a question relating to the propriety of denial of suspension of the deportation?
Joseph Forer: Unfortunately does was not the one of the question presented. The denial of suspension was not ready sir.
Felix Frankfurter: I take it, that the testimony of the petitioner in his application for suspension for deportation and filed with the clerk's office here? Because --
Joseph Forer: Yes. I mean --
Felix Frankfurter: (Inaudible)
Joseph Forer: Yes. The whole immigration record is -- is filed with clerk's office, certified record. It covers everything, including the --
Felix Frankfurter: That's the only testimony we have from him.
Joseph Forer: Well, he also --
Felix Frankfurter: About which one can draw inferences bearing on the Chief Justice's question as to intellectual qualification?
Joseph Forer: Well, from him, yes. Well, he also --
Felix Frankfurter: From him --
Joseph Forer: -- except that he also testified in the habeas corpus proceeding and that testimony is --
Felix Frankfurter: Is that here?
Joseph Forer: That's printed in the transcript, original transcript of the record, yes, and you can draw inferences from that as to his intellectual sophistication. Well, I was talking about the burden of poof. As I said, the burden approved is on the service to prove this meaningful membership and in Rowoldt, it seems to me, clear that the Court put on the service, the burden of proving from the solidity of proof that the membership was of the sufficiently meaningful kind. Now, this case also turns, I think, not only on who has the burden of proof but on what's standard of proof you use in assessing the evidence. Now, ordinarily in expulsion cases, the service decides according to preponderance of the evidence, which is the general standard of course in civil cases and it is our view that there is a certain class of expulsion cases, which I will define in a moment, in which there should be required a higher standard of proof through the preponderance of the evidence and that's the standard that this Court erected in the denaturalization cases and then transfer to the expatriation cases, namely a standard requiring, clear, convincing and unequivocal evidence which does not leave the issue in doubt and if that standard were applied to this case it would have to be concluded, I think, that the burden of proving that petitioner is deportable was not carried not only under the Rowoldt but even as to whether petitioner was ever any kind of a member of a Communist Party.
Felix Frankfurter: Mr. Forer has -- has this Court or have the Court of Appeals dealt either by way of decision, I am sure we haven't, by way of decision or comment on the proposition which you are now urging here?
Joseph Forer: No. I haven't, I think, that in effect that was the test applied in Bridges against Wixon, but it has never been articulated, it has not. Now, I want now, to describe the two classes of expellable aliens as to one of which, I think, you should have -- erect a higher a standard of proof, then I will explain why we think that is so, if you look at the statutory clauses for expulsion of aliens as they are collected for instance in Section 241 of the current Immigration Nationality Act, you can already see right from the face of them that they fall into two -- two classes. The clauses in the first class can be described as a kind of deferred exclusion because on their face, their purpose is to aid the screening of arriving aliens and basically they require the expulsion of aliens who are in this country for clauses which existed at the time of entry and they deal with aliens who either were not admitted for permanent residents in the first place or would not have been admitted for permanent residence in the first place if at the time of entry all pertinent facts were known. And if I might give examples of this, you have the aliens who are expellable because they entered without inspection or because although they were admitted, they were in fact for reasons that no one knew about excludable by law at the time of entry or they are paid entry papers by fraud or they became institutionalized or public charges within five years after entry, but for reasons which appear at the attributable to the conditions which existed at the time of entry or they entered for a limited time or purpose and overstayed their leave. Now, the great majority of deportations and I'm not talking about exclusions, I'm talking about expulsions, the great majority of expulsions are for such clauses and they involve people, for the most part, who have not had long residence in this country and who were not entitled to act on any assumption that they have been accepted for permanent residence. Now the second class of expellable aliens consist of those who were lawfully and regularly admitted for permanent residence as to whom there was no mistake on admitting them, who made their homes here in reliance on their screening and acceptance by the Government, but who then become expellable solely for conduct which occurred after entry and which cannot be trudged to or derive from conditions existing at the time of entry. Now, these expulsions comprise only about one-sixth of the total deportation or total expulsions which occur in the 40-year period from 1908 to 1948 and these aliens fall into four major groupings. The majority of them, the great bulk of them, are aliens convicted of certain crimes who are deportable for that. Then there's another group, aliens who become narcotic addicts. Then there's a third group, aliens who become prostitutes or go into the business of prostitution and finally what they called the “subversive aliens,” the aliens who become expellable on communist or anarchist grounds or something that --
Felix Frankfurter: That is the first two of the vast category that you just mentioned is there a time limit within which the disqualifying presence must occur?
Joseph Forer: No. There is none.
Felix Frankfurter: So that -- so that --
Joseph Forer: There is --
Felix Frankfurter: -- negotiation you have been saying is length of residence.
Joseph Forer: That is correct.
Felix Frankfurter: And the cases that have come before us, have been cases of long residences?
Joseph Forer: That is correct and that certainly includes that. Now, these aliens in the second class, that is who were regularly admitted frequently even normally, to have long-term residents here and in reliance on their having been admitted and accepted for this country, they've acquired families here, they have acquired property here, their roots are here. From a sociological point of view they're Americans. The petitioner here is not Fin, he's an American. No matter what technically, he can be called in the law of nation. Furthermore, the post entry conduct that makes these aliens considered undesirable for continued residency here comes from our society. It doesn't come from the country of origin. It was America that made this petitioner a communist. It wasn't Finland which he left when he was nine months old. And then these cases too, the evidence characteristically goes back for years the events long remote in time and to events frequently, which when they occurred, were not grounds for deportation.
Felix Frankfurter: All you can say that he became a communist in America not with American native one.
Joseph Forer: Well, what --
Felix Frankfurter: It's a geographic fact and no more?
Joseph Forer: He became a communist, it seems to me in rebellion against the society we had in America not in rebellion against the society --
Felix Frankfurter: Is that all spelled out in his testimony?
Joseph Forer: I don't know why anybody else becomes a communist. In other words, his testimony denied he hadn't been a communist.
Felix Frankfurter: (Voice Overlap) complicated question in there (Voice Overlap)
Joseph Forer: Well -- well, I'm not sure if I can answer [Attempt to Laughter] it satisfactory but that's how it seemed to me. When these aliens in the second class are expelled, they're not being sent back to their -- the land they come from in the sense of aid of exclusion. They're being banished from what is really their home and they're being sent back is not a regulation of immigration. It's not a regulation of the immigration here with Finland. They're being sent back because Congress decided it didn't like the particular kind of conduct they engaged in. Now the Immigration and Nationality Act says, “That deportation orders, in order to be valid, have to be supported by reasonable, substantial, and probative evidence.” Now, I say that it is not unreasonable to have a preponderance of evidence test for the expulsion of the first class of aliens. Those who -- whose expulsion is basically a deferred explosion, and they are not being deprived of any lawful established states, but a second, a higher standard of proof is reasonable for the second class of aliens, those that are being banished.
Felix Frankfurter: Is there a time limit within which your first class can be deported?
Joseph Forer: No, but --
Felix Frankfurter: So that in those cases --
Joseph Forer: -- as soon as they are caught.
Felix Frankfurter: -- in those cases too, you have had long residence.
Joseph Forer: That is correct, but normally, it is not -- that is not the case.
Felix Frankfurter: That were not and you would do this statistically --
Joseph Forer: It is possible.
Felix Frankfurter: -- this hour?
Joseph Forer: Yes.
Felix Frankfurter: Where is such a study?
Joseph Forer: Well, you can get them from some of the -- from the -- I believe, the report of the President's commission and there are numerous other sources, including the reports of the Immigration services. Now, in the denaturalization cases, you erected a higher standard of proofd than in the ordinary civil case because of the harshness of uprooting a person from the society of which he is a part. And also because, I think, you realize that denaturalization cases, since they are not subject to any statute of limitations, frequently involved long past occurrences and stale evidence.
Felix Frankfurter: Is there any indication why this man never got the citizenship papers?
Joseph Forer: It's very obscure. He applied for citizenship papers and it dragged on for years and -- then they -- they didn't grant it then they wrote him saying that they were throwing his application out because of the failure of prosecution. That's all the record shows.
Tom C. Clark: When did (Inaudible)
Joseph Forer: I don't know the date of hand. Now, these same features that he is being uprooted from his society and that there is no statute of limitations and -- and he's being uprooted because of long past recurrence, these same features which induce you to adopt a higher standard of proof in denaturalization cases are present and consistently present in the second kind of expulsion cases, the real banishment cases. And for the same reasons you should adopt the higher standard of proof. And in fact, the higher standard of proof is more necessary in the expulsion cases because at least in the denaturalization cases, the individual is guaranteed a judicial trial and in the expulsion cases he is guaranteed only an administrative hearing.
Felix Frankfurter: Well, he -- he is -- he is guaranteed a judicial trial because he was a citizen. I mean, that – that --
Joseph Forer: Because of great citizenship.
Felix Frankfurter: (Inaudible) citizenship.
Joseph Forer: This man is not a citizen.
Felix Frankfurter: Yes. I think he isn't but the denaturalization cases are citizens.
Joseph Forer: That's right.
Felix Frankfurter: And there is a great big difference between being a citizen and not a citizen.
Joseph Forer: I know. I know there is a big difference but what I am trying to say is that the consequences here are very similar. I mean, as a matter of fact the consequences here is even harsher and the -- aside from the fact that one is technically a citizen and the other isn't, you are doing the same thing to the individual.
Felix Frankfurter: But the citi -- citizenship isn't a technicality, Mr. Forer.
Joseph Forer: I'm not saying it's a technicality, but I am saying, what you're doing to him justifies him, I think it requires the higher standard of proof. And I think, that that was really -- that degree of standard of proof was applied by this Court in Bridges against Wixon. And in Jordan against De George you carried over a criminal test, a test of criminal statute, to deportation, to expulsion precisely for the same reason. And it would not be unreasonable therefore to carry over what amounts to a proof beyond unreasonable doubt. I would like to, in my part of the argument, just say a one word about the meaning of the word “member of the Communist Party in the deportation statute”. Now I think both the Government and we agree that it would be good if there could be a more specific definition of that term than is supplied in the Rowoldt case. Fortunately, such a definition or more specific definition has been proposed by the Solicitor General. He hasn't proposed it in this case. He hasn't proposed it for the purposes of deportation statute, but he did propose it in the Scales case and he has proposed it in the Scales case for the purpose of the membership clause of the Smith Act. And this meaning was given to the jury in Scales' the second trial at the request of the Government. Now, the theory of the definition is that the Solicitor General advanced in Scales, as I understand it, is that the Communist Party is such a special kind of organization that it has two kinds of members. One are the real members, the active people, the people that really contribute to the purposes, the sinister purposes attributed to the party, it says, “They are the people that Congress really has in mind, the stereotype of Communist Party members in anti-communist legislation. Then there are a lot of other members or at least some other members who are unofficial members. They think their members but they're not members in the sense that Congress had in mind and they are not the active members and the Solicitor General's definition of between the active member and the nonactive member and he helps us, what he calls – he defines active member. And the suggestion he made on defining active member for the purposes of the Smith Act ,which I suggest you translate to the deportation statute, is that a member is active if “he might know -- that he is one who “must have voted all or a substantial part of his time and efforts to the party”. Now if that definition is a test, obviously it wasn't meant here. And obviously, it seems to me, that this test of activity is the minimum needed to make any sense out of the statute. It makes no sense, I think. It is just the irrational and cruel to banish a person from the land where he's lived all his life except for the first nine months and to destroy his family of Americans for what? Merely for attending years back some meetings and paying 25 cents a month due and otherwise being inactive, innocent and thoroughly uninformed member of the Communist Party or any other organization. At a minimum, and this minimum would be supplied by the Solicitor General's activity test, at a minimum you should require that there'd be a showing that this alleged member did something to substantially promote the organization and its activities beyond just belonging to it in a routine sort of way.
Speaker: Perhaps this is irrelevant or collateral, but did the service give any reason for declining to suspend deportation?
Joseph Forer: Yes. They did and I think it is quite relevant because if you look at the reasons given the entire time, I agree to -- to the Court, the reasons are, first, that he showed reluctance to be an informer, when they asked him who attended certain meetings of the Oregon committee (Inaudible). And their theory, it seems to be, that the only people that are reluctant to be reformers are unreformed communist, and secondly, that -- that he had joined the Methodist Federation for Social Action after he has been ordered, deported, and that he didn't -- and that he didn't think very much of the Immigration Nationality Act. All this is a particularly plain in the opinion of the special inquiry officer, at page, beginning at page 54 of the supplemental printed record. And those were the reasons incidentally that they considered that the witness, that -- that the petitioner was not entitled to credence in denying membership in the Communist Party. Mr. Peterson will continue with the argument.
Nels Peterson: May it please the Court.
Earl Warren: Mr. Peterson.
Nels Peterson: Let me say at the outset that I shall address my argument to the constitutional aspects of the Internal Security Act of 1950 upon which this man was arrested. Let me further say that I'm a little a bit odd to stand up here and (Inaudible) in part the arguments have made -- were made by Joseph. H. Choate in 1893 in the case Fong Haw Tan that has been referred to by this Court. In arguing the constitutional -- the constitutionality of this Act, I shall address my remarks that this Act is a bill of attainder, it's an ex post facto law or denies due process or denies freedom of speech under the First Amendment. Now in the setting of the control of the immigrants, I think it must be understood that when the Constitution was adopted mostly by lawyers in 1787, that they -- this was -- these were people who were immigrants themselves. Immigrant has a special meaning and connotation. Everyone who -- that they are persons that people of this land as of that time were immigrants. The bills of attainder and ex post facto of the laws were well known to the lawyers who drafted the Constitution. Now, in the body of the Constitution there is no -- there is no division between the citizen and person. It's is the Constitution directs itself to people and to persons. The -- in the first article of the body of the Constitution that was put in by the constitutional convention, the drafters of the Constitution they put in -- in the first article that their -- that Congress shall pass no bill of attainder nor ex post facto of law. Now, when that was submitted to the people in 1789, they -- they added the first ten amendments. Now the -- the First Amendment was not directed to citizens, it was directed to persons. The Fifth Amendment guaranteeing due process was directed to persons. So in that setting then, we must now look then at what is the extreme of constitutional history as it relates to this problem. The Constitution also provided that the Congress could enact and would -- and was delegated authority to enact a uniform method of naturalization. The body of the Constitution also directed that the Federal Government could regulate foreign commerce. Now, there -- there is no specific provision in the Constitution about deportation of aliens that's the essence of what has been included in the body of the Constitution. Now, in that light, I would like to call the Court's attention to the first case that I can find where this Court had occasion to look at the question of bill of attainder. In 1782, the sovereign State of Georgia passed a law in which the legislative body said that, “Any person who had supported the British in the revolution was banished and had no rights to the courts. Mr. Cooper was -- apparently had lived in Georgia had supported the British king and he sued on a 1000 pound note. The defense was that he had no rights to the courts of Georgia. Now the Circuit Court of Georgia sustained that defense. The Supreme Court of Georgia did likewise. This Court in 1800 reviewed that legislation and reviewed this defense, in the four opinions. The -- it was said that in two of opinions, that since it did not appear from the record that Mr. -- that Mr. Cooper was -- had committed the act of treason in any county in Georgia, it -- they're forced then not a bill attainder meaning and accepting the -- then well know definition of a bill of attainder, that is a legislative act which imposes a punishment and substitute the word penalty because it means pains and penalties less than death, historically without a judicial trial. And so therefore, they said there was no denial of a judicial trial when it did not appear from the record that he was triable for treason in any county in Georgia. Now, -- but in any event Mr. Justice Chase said I question the power of -- of the Supreme Court of the United States to declare invalid a legislative act of a State, this was before Marbury versus Madison in the whole stream of history -- of judicial history of Baghdad. The -- but they said in any event this was an act passed in 1782 before the adoption of the United States Constitution. Now, the -- the next it seems that the bill -- bill of attainders, historically and before the adoption of the Constitution has arisen from legislation that occurred during a period of great political excitement. In following the civil war, you have the illustration of the Constitution of -- of State of Missouri which imposed a test oath, a person had to sign an affidavit to preach, to teach, to be a lawyer, among other things. He had to sign a test oath that he had not supported the south. Cummings is a Catholic priest, went on preaching anyway without the test oath and without being licensed by Missouri. This Court struck it down and said a bill of attainder because the purpose of this legislation was to impose a punishment, a penalty, against a class of persons. The same -- on the same, the very same day, the Ex parte Garland decided by this Court, a lawyer not admitted -- admitted to this Court in 1860 who pleaded his own case and Congress had passed a law and saying that no one could be admitted to practice in the supreme Court unless they took a test oath all of the same as Cummings essentially and they have not supported the south. Mr. Garland, a lawyer said the he could not take such oath because he had supported the south, he had been convicted, and he had been pardoned by the President. They struck it down said “bill of attainder,” this is a deprivation of -- it's a legislative act which imposes a penalty without a judicial trial. Now, the next great case on the -- and which is the most comprehensive, it seems to me on the bill of attainder, is United States versus Lovett. 1943, there was a legislative act, passed in the middle of World War II, a period of great political excitement against -- directed against Mr. Dodd, Mr. Watson, and Robert Morss Lovett withholding their salaries, stricken down by this Court as a bill of attainder. Now, the next case is that has been decided by this Court is A.C.A. versus Douds where it was said that that was not a bill of attainder, the Act of Congress which required a noncommunist affidavit from a labor union official was not a bill of attainder because it had a prospective effect and there was a choice given. Now with that background and assuming that this Court will agree that, as it has said before in contrary to Fong Haw Tan decided in 1893 on the -- on the Chinese exclusion legislation, that this is an exercise of a constitutional power, the power to regulate commerce and not upon an inherent sovereignty power. That was Mr. Gray -- Mr. Justice Gray's opinion in Fong Haw Tan decided in 1893, where he said that the -- this was an exercise of the inherent sovereignty power. Mr. Justice Brewer wrote a stinging dissent and he said, “No there is no end to this doctrine of inherent sovereign power because it's not spelled out in the Constitution,” no one knows it's in. Mr. Brewer -- Mr. Justice Brewer dissented as well as Mr. Chief Justice Fuller and there Mr. Justice Field. Now, looked at in that part, here's an Act passed in 1950 during the Korean War and after the atom bomb, they (inaudible) political excitement. The Act is Internal Security Act, insofar as it relates to the declarations about the Communist Party in the United States speaks as of the present, 1950. It does not say that the Communist Party in the 1930s or anytime passed, why it speaks -- it is used in the present tense. Now, however the Act where it says that anytime after entry, a person who has been found to be a member is -- can be deported. It has been given a retroactive effect and it has been applied to this man. The warrant of arrest upon which he was arrested said, the base upon evidence that the immigration department had and since entry and that he'd entered the country in 1909. They don't question so far as the knowledge of the person is concerned and the statute of limitation, there is none, no one could know. Well, what time the Government would claim that he had been a member of the Communist Party after 1909. Now with that-- with that setting in mind, the -- and assuming that the Congress has the power to regulate commerce then all of the provisions of the Constitution then applies. This I say is punishment. This Court has said it is punishment for deportation for a person to be deported. It is -- it has a retroactive effect imposing a penalty for that which was innocent when done. Now, I recognize that this Court in the Harisiades case decided in 1952 in construing the Alien Registration Act of 1940 said that, “the ex post facto provision of the Constitution was limited to criminal punishment and therefore the ex post facto provision of the Constitution did not apply. We think the premise upon which that has been made is incorrect. We think that the Harisiades decision should be overruled. Now, getting down further then to the question of whether or not the, this is a valid constitutional exercise of a -- of a specific provision with the Constitution respecting regulation of foreign commerce, we think that the -- that then -- that due process would require under the Fifth Amendment which says, persons that due process would require that -- if they proved by a proof that is equivalent to proof beyond a reasonable doubt or by clear, convincing an unequivocal evidence which is required in that in denaturalization proceedings. Now, Mr. -- the American Committee for Protection of Foreign Born has been permitted to file a brief amicus curiae cited as one of the citations there as a rather comprehensive and complete annual analysis of the various questions on deportation, entitled the constitutional status of lawfully admitted, permanent resident aliens published in Yale Law Journal of 1959. There is an exhaustive analysis of every case that has been decided this Court. Now in the -- getting down to the case of Galvan versus Press, Mr. Justice Frankfurter in writing the opinion, impliedly recognized the -- a separate status for the person who has been admitted for lawful permanent residence. He occupies a status that is different from the illegal entry, the temporary resident, or the person who has been erroneously admitted. The cases we've cited in Galvan versus Press were Bugajewitz and Fong Haw Tan. Now the -- if we look at the case of Bugajewitz, it was really a case where the Congress had -- was controlling entry into this country. They -- the Bugajewitz case, the only thing that was involved there was the conclusive presumption, established that a prostitute who became a prostitute within three years was deemed to be have been illegally admitted. Mr. Justice Holmes said that a three-year statute of limitations or a three-year basis to which we go back, formed a reasonable -- formed a reasonable basis to impose a condition to raise the -- to support the presumption and thus due process. The -- I see that my time is about up. I submit Your Honors that this is a case of fundamental importance and I do want to say that the -- in respect to the question asked by one of the justices that the suspension of deportation was raised before the Ninth Circuit of Court of Appeals and this Court denied certiorari in December 1957, eight days after Rowoldt versus Perfetto. The -- when the Court denied certiorari at that time, we thought this question was precluded. It had been passed upon by the Federal District Court and the Ninth Circuit Court of Appeals and this Court had denied certiorari. The present appeal arise from -- arises from an additional petition filed in the Federal District Court for injunctive relief and for a writ of habeas corpus. And that how -- that's how Communist gets before this Court. We thought we were precluding from raising the question of suspension, denial of suspension of deportation. The -- and there it – therefore it's not before this Court. Now, to summarize the -- it would appear to me that a proper construction of this Act that is involved here then would be based upon a constitutional exercise of power by the Congress of the United States to regulate commerce and not upon any ideas of inherent sovereignty. But then every other constitutional guarantee as this Court has said before applies to the person who is here all of the other constitutional guarantees apply. And that a distinction can and should be made as to the person who has been lawfully admitted for permanent residence than the illegal entrant, the temporary entrant, or the person who has been erroneously admitted, a separate status should -- should apply to that person.
Charles E. Whittaker: What is the finding -- understanding it more fully the distinction. The distinction you make is that one of quantum of proof that requiring one and not from the others, or what is the difference?
Nels Peterson: Well, now the -- every -- the difference is and it should be that the bill of attainder should apply to the person, that the person who has been admitted for lawful residence is entitled to protection of ex post facto law. That the person is entitled to the Due Process Clause of the Fifth Amendment, that no person shall be deprived of life, liberty, or property without due process of law. And he has the right of freedom of speech and assembly in the First Amendment. It should be guaranteed to him. The -- and that here is a first this act as it applies to Mackie. It -- there are elements of a bill of attainder every element of the bill of attainder particularly in the Lovett is present. Every element of an ex post facto law is present except this is not criminal punishment. The Court has said it's not criminal punishment. If this -- it is not -- it has not been thought that any citizen could be deprived of a jury trial if a penalty was to be imposed upon him of this kind. The -- he would be entitled to the rules of evidence. They're not -- it's not enough they're followed here in this administrative proceeding. There is no guarantee for a trial in any sense. This is an administrative hearing where the rules of evidence are not followed. Where the -- the residing officer is not a lawyer, the prosecutor so to speak is not a lawyer. These are fundamental guarantees to -- to liberty. Now it seems to me that this case presents again, this Court has issued, I think, this is the fourth certiorari in this kind of case and I say that this -- what this Court does today in this case if we over abuse to say -- say that this is not a valid exercise of constitutional power, you will strike a blow for liberty, you will give meaning to Emma Lazarus' poem on the statute of Liberty. Thank you very much.
Earl Warren: Mr. Davis.
Oscar H. Davis: Mr. Chief Justice may it please the Court. It maybe helpful if I point out at the beginning of my argument that the original record in the case was simply, the record, which is labeled transcript of record, which contains almost none of the Immigration proceedings, but does contain the proceedings before the District Court. The briefs on both sides were written on the basis of this printed record alone and references were made to the unprinted immigration file, which is on file with the clerk. After the briefs were written, the supplemental transcript of record was printed at the instance of the petitioner. I say this because the Court will not find a correspondence between the page references in the briefs to the immigration file and this printed record. Though I think the clerk has been helpful in putting folio references to help you discover the various pages. I think I should also point out though, Mr. Peterson, adverted to it at the end of his argument that this is the second go round in this case. Petitioner filed a petition for habeas corpus and declaratory relief originally which was denied by Judge Solomon in Oregon after the denial of suspension of deportation and after the finding of deportability. That was taken to the Ninth Circuit which affirmed. A petition for certiorari was filed on this Court. This Court held that petition for certiorari until one week after the Rowoldt decision and then denied that petition for certiorari along with two or three others which were being held pending Rowoldt. The petitioner then applied, as has been indicated to the Board of Immigration Appeals for reconsideration on the basis of the Rowoldt decision. The Board of Immigration Appeals did reconsider on the basis of the Rowoldt decision, reaffirmed its own original determination. Petitioner then brought the present suit in the District Court in Oregon and it is that which is here. Now, on that present suit, the petitioner asked for leave to proceed with oral evidence before the District Court in Oregon and Judge Solomon thought that that was improper as did the Government believe, but he allowed the petitioner to present evidence including the petitioner's own evidence before the Court. After that hearing at which Judge Solomon said, “I do not believe the petitioner. I've been through the immigration file. I do not believe this petitioner has testified before me. I do believe as did the administrative officials that the opposing evidence presented before the administrative tribunal was credible.” Judge Solomon reaffirmed his -- his conclusion that the petitioner was the deportable and that conclusion was affirmed again by the Court of Appeals and the case is now here on this petition for certiorari. Therefore, if I may summarize, the case has had three reviews before the Board of Immigration Appeals. It had its first review after the original order of deportation. It had its second review before the Board of Immigration Appeals after the denial suspension of deportation and it had its third review after the Rowoldt decision. It has had two reviews before the District Court in Oregon, as I indicated, and it has two -- had two reviews before the Court of Appeals for the Ninth Circuit. I say this because this Court has indicated perhaps mainly in other cases but also, I think, somewhat in immigration cases that it will pay attention to -- on a fair assessment of the record made by the lower courts in this field as well as in others. And it will not review de novo for itself on assessment of the record made by lower courts.
Felix Frankfurter: As I understand that there were two hearings before Judge Solomon.
Oscar H. Davis: The first one did not entail any oral evidence. The first one did not, but it was a review on the administrative record. The second one did entail oral evidence and before him. Now, turning first to the statutory and factual issues, it has been claimed here after the briefs were filed and so, we do not discuss it in our brief, it's claimed here on oral argument that the standard of deportability for a long time resident is different from the ordinary standard which is applicable in civil proceedings generally, that it is the higher standard applicable in criminal proceedings or in denaturalization or expatriation cases. We, of course, denied that this is so and we denied that is so because it is now some 70 years since Congress has been passing broad deportation statutes. And it is 70 years since Congress has dealt with the subject and since this Court and the lower courts have dealt with this subject. And we cannot find in any of this -- this legislation or in any of the decisions of this Court or the lower courts any such distinction between on -- with respect to deportability on the basis of the length of residence of the -- of the individual or on the basis of whether the deportation is related to original entry or whether it arises from some cause which later occurred. There are hosted decisions in the lower courts and a fair number of decisions in this Court, all of which apply the usual role of substantial evidence without exception. In fact in some them cases -- cases written by Justice Brandeis and Justice Stone, the phrase has given some evidence to support the deportation. And in Bridges against Wixon to which reference was made, Mr. Justice Douglas for the Court also used that phrase some evidence. And the Court has never even intimated nor have any of the lower courts that a higher standard, the standard of denaturalization should apply in deportation cases nor has Congress in any of the statutes made any exemption. You will not find in this statute which is the Immigration and Nationality Act of 1952 or in any of the preceding statutes, any distinction such as has been suggested at the bar of this Court. So, I think -- I think, I fairly stated when I say that until very recently and not until probably today before this Court has it been seriously urged that there is a separate standard for deportations of people who have been long resident in this country. Now, an effort is made to say that the prior rule was changed by the 1952 McCarran-Walter Act because the 1952 statute did spell out for the first time various procedural requirements which should be followed in the administrative proceeding. It said that the Attorney General shall prescribe by regulation and certain requirements shall be followed and one of the requirements that was prescribed by the statute was that the -- an order of deportation should be entered only on substantial, probative, and reasonable evidence, substantial, probative and reasonable evidence. An effort is made to read into that language, a requirement of the higher standard to which counsel has referred. We think that this is clearly an incorrect argument. Not only was the prior law both in the statute and in the cases all the other way, but Congressmen (Inaudible) to prepare the 1952 statute when the Senate Committee set forth what it considered, the prior law to be, it said explicitly that the prior law was the general rule applicable in administrative and civil cases, the preponderance of the evidence standard, the substantial evidence standard. There is no indication in the legislative history of any attempt to change that standard. The Senate and the house reports referred to the -- this -- this phrase substantial, probative, and reasonable evidence as simply an incorporation of the -- of the prior law and they indicate fairly that it means that a reviewing tribunal is not to overturn the finding simply because it disagrees with it, but if -- if the finding is based on substantial, probative, and reasonable evidence. But perhaps most persuasive of all, to my mind, is the fact that the Administrative Procedure Act which, of course, antedated the 1952 statute contains the similar standard. It says, “reliable, probative and substantial evidence”. And this Court in the Marcello opinion of Mr. Justice Clark for that Court said quite clearly and explicitly, that the 1952 Immigration Standard is the same as the Administrative Procedure Act Standard of few prior years. And of course, there has never been any claim by anybody that the Administrative Procedure Act Standard adopts any special higher standard for administrative proceeding as generally. Now, the standard which -- which counsel present to that Court clear, convincing, and unequivocal evidence has been accepted and limited by the Court only to cases in which it has -- it has admitted that a man or woman once had citizenship and the Government claims that he has lost it. It is -- been limited to that. That is when the Government is claiming when a man is either lost or should have his citizenship taken away and it is in that area only that that Court has accepted or established a clear, convincing, and unequivocal standard. In particular that Court has not accepted that standard where an alien claims that he's a citizen, where an alien claims, “I am a citizen”. The Court has accepted the preponderance of the evidence standard there. It is only when you have once been found to be a citizen, when you've once been found to be a citizen and the issue is whether you have lost that citizenship or have it -- had it taken away from you that the higher standard has been applied either by this Court or by the lower courts. So, we think that that there is nothing to the argument that -- that that 1952 statute established a higher standard and I think, it's correct to say that none of the lower courts since the 1952 Act went into effect have applied any higher standard regardless of the length of time where the resident was here. And as my last word on that issue, I think, I should also say that the Court has applied the regular standard in many cases in which there was a long time residence by the person. It itself is not indicated either in the Chinese deportation cases which some which involved people who have been here, a decade or two decades or in the later cases involving deportation which have come through the years that there was any difference depending on length of residence.
Felix Frankfurter: Mr. Davis, in the cases involving the issue of citizenship, not denaturalization, but when the issue of citizenship is tended there, the courts have been explicit that the quantum of evidence required is irregular?
Oscar H. Davis: The lower courts have been explicit.
Felix Frankfurter: No.
Oscar H. Davis: This Court --
Felix Frankfurter: Is that has been --
Oscar H. Davis: Yes.
Felix Frankfurter: -- (inaudible) and decided.
Oscar H. Davis: That's right. That in -- where the issue is an issue of citizenship preponderance to the evidence is enough. Both ways, Mr. Justice, either when the Government wins and the Court holds that the -- that the man was an alien and not a citizen or where the Court holds that the man was a citizen. Both ways it's been held by the lower courts that the preponderance was enough. Now as to the -- the particular facts of this case, which in my view, have only been stated partially by counsel for petitioner. First, I should say, Mr. Chief Justice, the record does show that the petitioner is a high school graduate and from Portland High School. I should also explain that the petitioner has gone in this country under the name Mackie M.A.C.K.I.E. so you will find in both the judicial and the administrative record, constant references to Mackie rather than to the name Niukkanen under which -- which is his Finish name under which the petition was filed here.
Hugo L. Black: Is there any significance to that?
Oscar H. Davis: No. I just say it for the benefit of the Court because you will find references constantly --
Felix Frankfurter: The way it wanted it, if we look at the record as I've paused around and I saw Mackie now Niukkanen.
Oscar H. Davis: Yes, Mackie is the petitioner. He has gone under the name of William Mackie. And as -- Mr. Justice Clark, as far as the record shows, he applied for naturalization first in 1935. The record doesn't show what happened to that. He apparently tried again because the record does indicate that for the second or third time he applied in January 1942 and then it does indicate that in -- in 1946 his application for denaturalization was dismissed for wanted of prosecution on his part. So that's all that the record here -- the immigration followed the judicial record indicates as to his -- his applications for naturalization. Now as has been indicated by counsel, two live witnesses appeared before the special inquiry officer and they were examined and extensively cross-examined by counsel for the petitioner. Their testimony was credited by the special inquiry officer and on the whole by the Board of Immigration Appeals, Judge Solomon on review says explicitly in the record that I have read the record and I credit the testimony of Bob Wilmot and Knight and I do not credit the testimony of the petitioner either before the Board of Immigration Appeals or before me.
Felix Frankfurter: It was one of these two that the petitioner said he never saw him (Voice Overlap) never laid eyes on him.
Oscar H. Davis: It is Mr. Wilmot that he said he never seen.
Speaker: What page is that to be that we found on?
Oscar H. Davis: That it's in the -- in the regular transcript of the testimony, page 78 at the bottom, Mr. Justice Harlan. And again at page 83 at the top 78 --
Speaker: Oh, yes.
Oscar H. Davis: -- and 83. Now, what did these witnesses testified to? They testified that the petitioner has attended many close party meetings? Knight himself said there were 30 to 35 that he intended with the petitioner. And they were very definite that these were not any ordinary meeting that they were closed party meetings. Wilmot also testified that there were closed party meetings that he attended to with petitioner. Both of them saw that he had party card. Both of them testified that he had a Communist Party card. Both testified that they saw him pay dues. Knight testified that though petitioner was not an officer of the Albina Branch, Albina is a section of Portland and the branch of the Communist Party to which both he and Knight joined was the Albina branch, that though he was not an officer, he was on the executive board of the branch and this is an important factor which Mr. Forer failed to mention. Wilmot testified that he and the petitioner attended a party Plenum P.L.E.N.U.M. in Aberdeen, Washington which was to be a meeting of top officials or top persons in the party for the northwest area, that both he and petitioner attended this Plenum at Aberdeen, Washington. He testified that the people went there such as petitioner and he were the anointed ones, were the top fraction ones, that they were known to the people who are carrying on this -- this meeting. Both Knight and Wilmot indicated that the petitioner was a top fraction man. He was a good member as I have said, that he was an anointed one.
Speaker: Is that word Plenum a word of ours, I never heard that before?
Oscar H. Davis: I think it's the word used in Communist Party parliament. So it's a meaning a gathering, wider than a small -- a unit gathering or a large.
Felix Frankfurter: It's like our word plenary.
Oscar H. Davis: Yes.
Felix Frankfurter: It's plain, that's all.
Oscar H. Davis: I think that's right.
Felix Frankfurter: It's (inaudible)
Oscar H. Davis: Yes. And there -- they were cross-examined as -- as to this by petitioner's counsel and they explained perhaps more footing on cross examination and they did on direct exactly what went on at -- at this Plenum meeting. It's also, I think, significant and I should point out to the Court that Wilmot testified that petitioner knew where he was going just as Wilmot who, of course, was party member himself. Both Wilmot and Knight were party -- had been party members at -- were at the time in question. Now, it has also been indicated, petitioner refused to -- though warned refused to take the stand and testify at the original deportation hearing. He did also only after the Board and Immigration Appeals had decided that he was deportable and he then applied for -- for suspension of deportation and on that suspension, he testified. Now, as the Court knows from previous cases, suspension of deportation of a man who was been ordered deported for membership in the Communist Party requires an affirmative recommendation by the Attorney General to converse and then an affirmative concurrent resolution by both houses of Congress before suspension of deportation can be allowed. And the statute also requires that to be eligible for suspension, you have to show that for 10 years after the status or Act which made you deportable occurred, you have been a person of good moral character and so forth. Now, this has been interpreted by the Department of Justice and by the Congress to require in cases of suspension for subversive activity cases that the alien show that for 10 years he has made a break from the Communist Party that he has not been connected with it that he has been free of it that he is antagonistic to it, that he is not part of it. And it was in connection with that that petitioner testified. And he's -- he denied that he had ever been a member of the Communist Party. He denied that he -- that he had known or seen Wilmot at all. His testimony as to Knight was that yes, he knew him. He knew him but he couldn't -- he didn't know whether Knight was a party official or a party member. He couldn't tell. Petitioner's testimony with respect to his -- his views on communism appear really twice in the record one in the -- in the immigration file at pages 45 to 48, and the other in the -- in the judicial trial before Judge Solomon, on 56, and 61, and 62. What they amount to is a denial -- a complete denial of membership in the Communist Party, except that he said he never knowingly attended party meetings. He apparently indicated that he had attended lots of meetings during this period of time and he -- his -- his statement was that he hadn't knowingly attended Communist Party meetings. He refused when requested to state his views of what communism was today. He said well he couldn't go into that, he didn't -- he didn't really know what was all about and it was on the basis of his -- of his statements as to -- as to the Communist Party in his views that he was denied suspension of deportation. Because as I've indicated, the principal has been that you aren't granted suspension of deportation unless you have indicated affirmatively that you have made a break from the Communist Party. And the conclusion of the administrative officials was that he had not at all shown that he made a break from the Communist Party that he had not indicated any -- shall I say dissatisfaction with the Communist Party though he had denied that he was ever a member. And as I've pointed out, the District Judge, Judge Solomon, who was corporal part, may I note was the local counsel for De Jonge in the case of De Jonge against Oregon, Judge Solomon said although he indicated his -- his dissatisfaction with the law as -- as -- as a proper law, he said that he had to enforce it. And he felt that in this case he was properly enforced against this petitioner that -- and he disbelieved the petitioner's denial of Communist Party membership and he said my credit with -- what the Government's witnesses said. Now, you have then a testimony of live witnesses, cross-examined witnesses, credited by the administrative officials and by the District Court accepted by the Court of Appeals twice. On the other hand, you have the petitioner's testimony character -- discredited by the administrative officials characterized as vague, evasive, unresponsive, discredited by the trial judge who did hearing. And in those circumstances, we feel, that as the Court has indicated in the past this is not its providence to reassess or reweigh the evidence. It will accept the views of the -- of the courts below and the administrative officials. Now, was the membership which I have been describing, the type of membership which is covered by the deportation provisions of the 1952 statute? We think clearly that it was -- that it was the kind of meaningful political membership with which the Court was dealing in Galvan, in Harisiades, and in Rowoldt. He was cart (Inaudible), he was dues paying. He attended many close meetings. He was a top fraction, a person who attended this Northwest Plenum in Aberdeen, Washington. He was very active and I think I fairly state that they both testified that though they couldn't recall any theoretical discussions with him on the principles of Marxist-Leninist -- Marxism-Leninism, he was very active in discussion of party activities in the Portland area. Both Knight testified that and Wilmot testified that he was active in discussion with the party activities in that area. He was a member of the Executive Board of his party branch. Both Knight and Wilmot testified though they testified they had never heard him advocate the overthrow of the Government by force and violence, they did testify that the -- they -- that all the activities of the party which they knew about it and which he was connected with were leading to an eventual revolt, and Wilmot testified that petitioner as Wilmot knew where he was going. The Court has indicated that it is permissible for administrative officials to draw inferences from silence and inferences for failures to explain. If you put that together with the testimony, credited testimony of these witnesses and the type of activity which has been shown that this petitioner engaged in, we think he falls clearly within the -- the rules laid down. He was not a minor. There are certain exceptions which have been read by statute and initial decision into the concept of the term membership. He was not a communist by operation of law which of course could not occur in the United States and unlike Rowoldt, there is no indication that he was communist to obtain the necessities of life. Rowoldt was a man who was deported solely on the basis of his own testimony which that majority of the Court thought was not clear enough to indicate that he had any political connection with the Communist Party, that he wasn't a member of the Communist Party as he said to -- for -- for bread and food, this is a different type of man.
Felix Frankfurter: Believing this fellow, according to his own testimony, he worked only intermittently during the period from 29 hours and 30 hours, is that right?
Oscar H. Davis: Well he worked intermittently but he was unemployed the part of that time and part of the time he was employed, yes. But there is no indication that he joined the Communist Party in the sense that it was the way, that he was going to get food for himself. He joined the Communist Party because he thought the Communist Party was going to lead to a type of society that -- that -- he -- he wanted and in that broader sense. He -- he was --
Hugo L. Black: Where is the evidence on that?
Oscar H. Davis: There is no evidence. I mean he -- it's said there is evidence that he was interested in -- in the -- that the Government's witnesses were asked, and said, “Yes, he was interested in the activities of the parties so as to obtain more relief and food and so on for the people at that time” and that he was active in those things and it's on basis of that that I infer that that he was interested in those activities, there is testimony to that effect.
Earl Warren: In testimonial Wilmot and the other fellow, is there anything to indicate what kind of party activities the petitioner was engaged in?
Oscar H. Davis: No. There was with relation to the newspaper that is he was trying to sell the newspaper which -- which was a C.I.O. newspaper with Wilmot the editor said was being run by a Communist Party unit that the organization of the newspaper in that particular area in Portland was a Communist Party unit. Aside from the generalities that I've indicated, I don't think there was any indication of the particular kind of activities that he was -- that petitioner was engage in.
Hugo L. Black: What was that about tying to sell the newspaper?
Oscar H. Davis: Yes he was -- he -- he would come in and take the newspaper and -- and go out and sell the newspaper.
Tom C. Clark: What he get for them?
Oscar H. Davis: A very few -- few cents or something but I think, it was not done for money purposes, I think, it was done because he believed the newspaper (Voice Overlap) --
Tom C. Clark: Does the evidence show that?
Oscar H. Davis: Well, the evidence shows that he didn't get very much from the newspaper. The evidence does show that -- that the Wilmot testified that he got 2 or 3 cents or some other thing like that.
Speaker: (Inaudible)
Oscar H. Davis: Pardon me!
Speaker: He (Inaudible)
Oscar H. Davis: Yes. It would -- I should make clear that this was the C.I.O. newspaper this was before the AFL-CIO in 1936 to 1939. The C.I.O. newspaper which the editor of the newspaper, Wilmot testified was really a Communist Party organization. He was a communist and all the people working for it were communists and that they were -- it was uses as a Communist Party organ in that evidence.
Tom C. Clark: Where is that evidence about the selling the paper, would you mind, can you point me to it easily? If it is too much --
Oscar H. Davis: Page 9 of the supplementary record, Mr. Justice.
Tom C. Clark: Page 9.
Oscar H. Davis: Yes.
Tom C. Clark: Thank you.
Felix Frankfurter: Am I right --
Oscar H. Davis: Nine and 10.
Felix Frankfurter: Am I right in getting the impression, I have notice that someone that would reveal at this that in his testimony before the Board, before the examiner, he rather indicated that a lack of interest in political matters?
Oscar H. Davis: That was he said but of course he want --
Felix Frankfurter: But I mean (Inaudible)
Oscar H. Davis: Yes.
Felix Frankfurter: I'm talking about his test.
Oscar H. Davis: Yes. His testimony was that he was interested in political matters, yes. I should also say, Mr. Justice Frankfurter, that there's a great deal of more testimony by him on other aspects of the suspension application. What has been reprinted here is only the testimony relating to what questions asked about the Communist Party.
Felix Frankfurter: I been meaning -- I been meaning (Inaudible)
Oscar H. Davis: No. Yes of course.
Earl Warren: Where is the testimony that or is there a testimony by Wilmot and the other witness to the effect that he was interested in political matters?
Oscar H. Davis: There is no specific testimony if he using the word political but the testimony is that he was interested in the activities of the party in that area and this was of course the Communist Party. It was not a front organization. It was the Communist Party as such in which he had a party card.
Tom C. Clark: What activities did they say?
Oscar H. Davis: They didn't say. It was just said the activities whatever the party was carrying on in that area and Justice -- other parties carrying on activities and we know judicially that the Communist Party has at least in until very recent, it carried on a number of activities of different types under the rule brick of the Communist Party which were party activities in the same sense that other parties carry on activities which have oblique political consequences so they may immediately have other purposes as well.
Felix Frankfurter: He did acknowledge knowing Knight?
Oscar H. Davis: Yes. He said he knew --
Felix Frankfurter: And he acknowledged that he had seen a great deal of Knight (Inaudible)
Oscar H. Davis: Yes he did.
Felix Frankfurter: Something like on it 50 times.
Oscar H. Davis: That's right. Yes he did.
Felix Frankfurter: But he flatly denied that he ever laid eyes on Wilmot.
Oscar H. Davis: That's right. I should [Attempt to Laughter] it maybe proper for me to say that point that Judge Solomon's interpretation was that Knight -- that Knight tried to be as easy on -- on petitioner is possible and own it's our cross examination that the most damaging testimony against petitioner was brought as far as Knight is concerned. Now, I think --
Earl Warren: The Judge said he believed Knight?
Oscar H. Davis: Yes. He said that page 70, he didn't -- I should make it clear that he -- Knight did not testify before Judge Solomon but Judge Solomon said, that he had read and reread the testimony, the administrative testimony, there's one part of the record where he says, “I stayed up to 1 o'clock this morning rereading the entire transcript,” in this case.
Felix Frankfurter: Rereading, meaning he read that the -- (Voice Overlap)
Oscar H. Davis: At the earlier time, yes. And --
Felix Frankfurter: Read this -- this making (Inaudible) and on the basis of that he believe Knight and Wilmot to disbelieve?
Oscar H. Davis: Yes. He said I believe the testimony above Wilmot, this is on page 78, Mr. Chief Justice, and I believe the testimony of Knight and I do not believe Mr. Mackie's testimony, I believe that he purges himself before and I believe that he purges himself today because I think the evidence is clear that he was a member of the Communist Party during the period in which it was said that he was a member.
Earl Warren: Wasn't there -- wasn't there something at some place along the line where admittedly Knight lied?
Oscar H. Davis: Yes. That would --
Earl Warren: That what -- what was that about?
Oscar H. Davis: Well, Knight was asked whether he ever committed felony and he first denied it. It then turned out that he had been convicted in California for forgery which probably was a felony. He then explained --
Earl Warren: Well, of course it is felony.
Oscar H. Davis: Yes. Well, he then explained that it was a $25 check many, many years ago and that he had not thought that it was felony because it's so small in amount and that he had not wanted to admit it was a felony because the effect on his children. But it -- that of course was brought out in the -- in the hearing and taken account of both by the special inquiry officer Board Immigration Appeals and of course, it was before the courts below. It's not a new factor that is come into the case. It was there all along.
Tom C. Clark: The main issue here, is it not, not whether he's a communist but whether he's the kind of economist that could -- the liable under the rule of doctrine.
Oscar H. Davis: Yes. That's right. And I shall try to explain in a minute or two left, further reasons and after lunch, why we think Congress clearly wanted this kind of person to be -- to be deported.
Felix Frankfurter: Would you -- would you agree that whether he is the kind of a communist under Rowoldt, if I may be short at it, that it is a question of law for the Court?
Oscar H. Davis: Oh, yes.
Felix Frankfurter: No question about that.
Oscar H. Davis: No question about that, but I think that the Court has to accept the facts.
Felix Frankfurter: (Voice Overlap) he said he had law for the District Court first in.
Oscar H. Davis: Yes.
Felix Frankfurter: All right.
Earl Warren: You accept Rowoldt and distinguish this case from it.