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of exchange of representatives. However, he testified that "The Communist Party had young communists in the Young Communist League."

It was brought out in his testimony that C was himself under deportation proceedings based upon a charge of membership in the Communist Party of the United States. It seems to us that under the circumstances the testimony of this witness must be considered in the light of the fact that he has some interest in the subject-matter in issue. Such interest makes his credibility a matter to be weighed.

We have carefully examined the entire record. We perceive no reason to doubt the veracity of witness S- C- who testified in behalf of the Government. It is our finding that she qualifies as an expert on the organizational structure, aims, and activities of the Young Communist League and of the Communist Party. On the basis of her testimony and documents which she has identified as official publications of these organizations, we find that the Young Communist League was, during the period of respondent's membership therein, an organization dominated and controlled by, and therefore an affiliate of, the Communist Party of the United States. Respondent has admitted that he is an alien, and that he was a member of the Young Communist League for a period of about 6 months during the year 1938. The record also contains his statement that he was married in Mexico on January 26, 1945. Records of this Service show that he was lawfully admitted to this country for permanent residence on March 29, 1928. On the basis of all of the foregoing evidence, we find that respondent is an alien, who was, after entry into this country, and prior to an entry into this country, a voluntary member of the Young Communist League, an organization affiliated with the Communist Party of the United States. He therefore falls within deportable classes enumerated in the act of October 16, 1918, as amended by section 22 of the Subversive Activities Control Act of 1950 (title I of the Internal Security Act of 1950), effective September 23, 1950 (Public Law 831, 81st Cong., ch. 1024, 64 Stat. 1006).1

'The 1950 amendment devises sec. 4 (a) of the act of October 16, 1918, to read:

"SEC. 4. (a) Any alien who was at the time of entering the United States, or has been at any time thereafter, a member of any one of the classes of aliens enumerated in *** sec. 1 (2) of this act, shall, upon the warrant of the Attorney General, be taken into custody and deported in the manner provided in the Immigration Act of February 5, 1917. The provisions of this section shall be applicable to the classes of aliens mentioned in this act, irrespective of the time of their entry into the United States."

Section 1 (2) of said act reads, in pertinent part:

"(2) Aliens who, at any time shall be or shall have been members of any of the following classes: *** (C) Aliens who are members of or affiliated with (i)

Counsel has contended that we cannot properly hold that respondent is deportable on the basis of membership in a proscribed organization after entry, on the ground that such charge is not geared to his last entry into this country. Respondent first entered the United States in 1928; his membership in the Young Communist League occurred in 1938; and he last entered this country in 1945. We do not agree with counsel that only the last entry may be used as a basis for deportation under the act of October 16, 1918, as amended. In United States ex rel. Volpe v. Smith, Director of Immigration, 289 U. S. 422, 425 (1933), the Supreme Court said:

We accept the view that the word "entry” * * * includes any coming of an alien from a foreign country into the United States whether such coming be the first or any subsequent one ***.

It is our view that a proper interpretation of the act of October 16, 1918, as amended, permits finding respondent deportable as an alien who was a member of a proscribed organization (1) after an entry, and/or (2) prior to his last entry.

The applicable statute contains no limitation as would make the test of deportability dependent solely upon the relationship of the proscribed membership to the alien's most recent entry. Nor does this legislation prohibit the use of any or every arrival as a base in the calculation of deportability. We believe that deportability may be found on more than one charge even where there has been but a single proscribed deed, if the deed be applied to more than one entry. Thus, in the instant case, it is our conclusion that respondent's membership in an affiliate of the Communist Party in 1938 renders him amenable to deportation as an alien who was a member of a proscribed organization (1) after (his 1928) entry and prior to (his 1945) entry.

the Communist Party of the United States, * * (v) any section, subsidiary, branch, affiliate, or subdivision of any such association or party

* * *."

8 C. F. R. 174.1 (i) effective April 4, 1951 (16 F. R. 2907), promulgated in conformity with an act approved on March 28, 1951 (Public Law 14, 82d Cong., ch. 23), which authorized and directed the Attorney General to provide such regulation, declares:

"(i) The terms 'members of' and 'affiliated with' where used in the act of October 16, 1918, as amended, shall include only membership or affiliation which is or was voluntary, and shall not include membership or affiliation which is or was solely (1) when under 16 years of age, (2) by operation of law, or (3) for purposes of obtaining employment, food rations, or other essentials of living, and where necessary for such purposes."

Hence, the act of October 16, 1918, as amended, calls for the deportation of this alien who was, at a time after his entry into this country, and at a time prior to this entry into this country in 1945, a voluntary member of an organization affiliated with the Communist Party of the United States.

Another contention of counsel is that respondent was denied due process of law, in that he did not receive a fair hearing. It must be noted that respondent was protected by the basic safeguards of our system of jurisprudence: reasonable notice of the charges against him, the right to counsel, and adequate opportunity to prepare and present a defense. We are particularly unimpressed by this complaint when we regard it in the light of respondent's refusal to testify in these proceedings. Further, the conduct of the presiding officers was bound by the provisions of 8 C. F. R. 151.2 (b), published 15 F. R. 1299, March 10, 1950; amended November 10, 1950, published 15 F. R. 7637. This regulation states, in pertinent part:

(b) Hearing officer; general duties.-The hearing officer shall conduct a fair and impartial hearing. He shall use his independent judgment in rendering his decision and shall not perform any duties inconsistent with the duties and responsibilities of an adjudicating officer *

In the instant case, there is no evidence that the hearing officers consulted any person or party on any fact in issue unless upon notice and opportunity for all parties to participate; or that the hearing officers engaged in the performance of investigative or prosecuting functions; or that they are responsible to, or subject to the supervision or direction of, any Federal officer engaged in the performance of investigative or prosecuting functions: or that any person other than the hearing officer participated in his decision. Nor is there any evidence of personal bias or prejudice on the part of the hearing officers, either in favor of the Government or against the respondent. Objection has been made by counsel to the substitution of one presiding officer for another during the course of these proceedings. We find that such substitution was permissible, and that compliance was made with the provisions of 8 C. F. R. 151.2 (e), which reads:

(e) Withdrawal and substitution of hearing officer.-* * * If a hearing officer becomes unavailable to complete his duties within a reasonable time in connection with any case, another hearing officer shall be assigned to complete the case. In such event the new hearing officer shall first familiarize himself with the case and shall state for the record that he had done so.

The courts have upheld the validity of immigration hearings where there has been a change in the personnel engaged in the conduct of such hearings, (Quon Quon Poy v. Johnson, Commissioner, 273 U. S. 352 (1927), United States ex rel. Minuto v. Reimer, Commissioner of Immigration and Naturalization, 83 F. (2d) 166 (C. C. A. 2, 1936), and cases cited therein.)

In the Minuto v. Reimer case, the Court stated at pp. 167–168:

The change in the personnel of the Board furnishes no proof that there was not a fair hearing. The minutes of the first hearing were made part of the record at the second, so everything was before the Board that took final action. It is well settled that a maintenance of continuity of personnel is not necessary

so long as all the essentials of a fair hearing are observed by the Board exercising ultimate judgment.

Counsel asserts that the warrant of arrest upon which these proceedings are based, failed adequately to inform respondent of the matters of fact relied upon by the government. It has been judicially determined that such charges as are stated in this particular warrant are legally sufficient. A warrant of arrest need not have the formality and particularity of an indictment. It need only contain sufficient information to enable the alien to prepare a refutation of the charges, (Podolski v. Baird, 94 F. Supp. 294 (E. D. Mich., S. D., 1950), citing United States ex rel. Bauders v. Uhl, 211 Fed. 628 (C. C. A. 2, 1914)). Counsel also argues that the hearing was held in accordance with rules and regulations which were made effective without notice or hearing, and therefore in violation of the Administrative Procedure Act. Although these regulations became effective on the date of their publication in the Federal Register, compliance was made with the provisions of section 4 of the Administrative Procedure Act (60 Stat. 238; 5 U. S. C. 1003). This section permits the omission of notice and hearing in any situation in which the agency for good cause finds (and incorporates the finding and a brief statement of the reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.

The constitutionality of the act of October 16, 1918, as amended, has been challenged by counsel. This Service is powerless to pass upon that question. Determination of the constitutionality of a statute enacted by the Congress is a function restricted to the judicial branch of the Government, (Panitz v. District of Columbia, 112 F. (2d) 39, 42 (C. A., D. C., 1940); Todd v. Securities and Exchange Commission, 137 F. (2d) 475, 478 (C. C. A. 6, 1943)). However, in our enforcement of the law we must be guided by judicial interpretations of the past. Contentions such as those raised by counsel have been faced, and rejected by the courts. Thus, it has been held that an immigration law which is retrospective in its application to an alien is not unconstitutional, (Mahler v. Eby, 264, U. S. 32, 39 (1924), United States ex rel. Lubbers v. Reimer, 22 F. Supp. 573 (D. C., S. D. N. Y., 1938)). The Supreme Court has made it clear that the Congress holds plenary authority to exclude aliens altogether, or to prescribe the terms and conditions upon which they may come into or remain in this country, (Lapina v. Williams, 232 U. S. 78, 88 (1914), United States ex rel. Volpe v. Smith, Director of Immigration, 289 U. S. 422 (1933)).

Order: It is ordered that the alien be deported from the United States, pursuant to law, on the following lodged charges:

The act of October 16, 1918, as amended, in that he was, after entry, a member of the following class set forth in section 1 of said act: An alien who was a mem

ber of the Young Communist League of the United States, an affiliate of the Communist Party of the United States.

The act of October 16, 1918, as amended, in that he was, prior to entry, a member of the following class set forth in section 1 of said act: An alien who was a member of the Young Communist League of the United States, an affiliate of the Communist Party of the United States.

BEFORE THE BOARD

(November 19, 1952)

Discussion: This is an appeal from the Acting Assistant Commissioner's decision dated January 24, 1952, requiring deportation of the respondent on the lodged charges.

The facts of the case are adequately set forth in the opinion of the hearing officer and the Acting Assistant Commissioner.

The respondent is a 45-year-old married male, a native and citizen of Mexico, who last arrived in the United States on or about January 26, 1945, after a temporary visit to Mexico. He was lawfully admitted for permanent residence on March 29, 1928.

The record affirmatively establishes that the respondent was a voluntary member of the Young Communist League of the United States for about 6 months during 1938; that he was in fact the president of the Mexican group of that league; and that the Young Communist League of the United States is an affiliate of the Communist Party of the United States. The evidence from which these findings were made is adequately set forth in the order of the hearing officer and the Acting Assistant Commissioner. It need not be repeated.

Every question presented on the appeal was exhaustively discussed and correctly decided by the Acting Assistant Commissioner. We find it necessary only to cite several cases decided after the Acting Assistant Commissioner's opinion was written, which are a further judicial authorization of the position taken by the Service in regard to the constitutional objections raised by counsel. These cases are Harisiades v. Shaughnessy, 342 U. S. 580, and Carlson et al. v. Landon, 342 U. S. 524. Careful consideration of the briefs and the oral arguments before this Board convinces us that the decision was without error. Accordingly, the appeal must be dismissed.

Order: It is ordered that the appeal be and the same is hereby dismissed.

BEFORE THE BOARD

(February 20, 1953)

Discussion: This is a motion for reconsideration of our order of November 19, 1952, which dismissed an appeal from an order of the Acting Assistant Commissioner, finding the respondent deportable on the grounds stated above.

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