Bridges v. Wixon

326 U.S. 135, 65 S. Ct. 1443, 89 L. Ed. 2103, 1945 U.S. LEXIS 2603

• Court: Supreme Court of the United States
• Decided: June 18, 1945
• Docket: 788
• Status: Published

Opinions

Mr. Justice Douglas

delivered the opinion of the Court.

Harry Bridges is an alien who entered this country from Australia in 1920. In 1938 deportation proceedings were instituted against him on the ground that he both had been and then was a member of or affiliated with the Communist Party of the United States and that that party advised and taught the overthrow by force of the government of the United States and caused printed matter to be circulated which advocated that course. Under the statute then in force, past membership or past affiliation was insufficient for deportation, present membership or present affiliation being required. Kessler v. Strecker, 307 U. S. 22. A hearing was had. The-examiner, Hon. James M. Landis, concluded that the evidence established neither that Harry Bridges “is a member of nor affiliated with” the Communist Party of the United States. The Secretary of Labor sustained the examiner and dismissed the proceedings. That was in January 1940. By the Act of June 28,1940, Congress amended the statute so as to provide for deportation of any alien who was “at the time of entering the United States, or has been at any time thereafter” a member of or affiliated with an organization of the character attributed to the Communist Party in the first proceeding.¹ A second deportation proceeding was instituted against Harry Bridges under the amended statute on the ground that he had been a member of or affiliated with that organization.² Another hearing was had. The inspector designated to conduct the hearings and make a report, Hon. Charles B. Sears, found that the Communist Party of the United States was an organization of the character described in the statute, that the'Marine Workers’ Industrial Union was affiliated with the Communist Party and was an organization of the same character, and that after entering this country Harry Bridges had been affiliated with both organizations and had been a member of the Communist Party. He recommended deportation. The case was heard by the Board of Immigration Appeals⁸ which found that Harry Bridges had not been a member of or affiliated with either of those organizations at any time after he entered this country. The Attorney General reviewed the decision of the Board and rendered an opinion in which he made findings in accordance with those proposed by the inspector and ordered Harry Bridges to be deported. A warrant of deportation was issued. Harry Bridges surrendered himself to the custody of respondent and challenged the legality of his detention by a petition for a writ of habeas corpus in the District Court for the Northern District of California. That court denied the petition and remanded petitioner to the custody of respondent. 49 F. Supp. 292. The Circuit Court of Appeals affirmed by a divided vote. 144 F. 2d 927, 944. The case is here on a petition for a writ of certiorari which we granted because of the serious character of the questions which are presented.

As we have said, Harry Bridges came here from Australia in 1920. He has not returned to Australia since that time. He was a longshoreman. In 1933 he became active in trade-union work on the water front in San Francisco. The Attorney General found that he had “done much to improve the conditions that existed among the longshoremen.” He reorganized and headed up the International Longshoremen’s Association, an American Federation of Labor union. He led the maritime workers’ strike on the Pacific Coast in 1934. He was president of the local International Longshoremen’s Association from 1934 to 1936 and was Pacific Coast president in 1936. In 1937 his union broke with the American Federation of Labor, changed its name to International Longshoremen and Warehouse-men’s Union, and became affiliated with the Committee, for Industrial Organization. Bridges was elected Pacific Coast District President of that union and has held the office ever since. He also holds several important offices in the C. I. 0.

The two grounds on which the deportation order rests— that Harry Bridges at one time had been both “affiliated” with the Communist party and a member of it — present different questions with which we deal separately.

Affiliation. The statute defines affiliation as follows:

“For the purpose of this section: (1) the giving, loaning or promising of money or any thing of value to be used for the advising, advocacy, or teaching of any doctrine above enumerated shall constitute the advising, advocacy, or teaching of such doctrine; and (2) the giving, loaning or promising of money or any thing of value to any organization, association, society, or group, of the character above described shall constitute affiliation therewith; but nothing in this paragraph shall be taken as an exclusive definition of advising, advocacy, teaching, or affiliation.” 41 Stat. 1009, 8 U. S. C. § 137f.

The doctrine referred to is the overthrow of the government by force or violence.⁴ The organizations or groups referred to are those which advise and teach that doctrine or which write, circulate, display and the like or have in their possession for such purpose any written or printed matter of that character.

In ruling on the question whether an alien had been “affiliated” with the Communist Party and therefore could be deported, the court in United States v. Reimer, 79 F. 2d 315, 317, said that such an affiliation was not proved “unless the alien is shown to have so conducted himself that he has brought about a status of mutual recognition that he may be relied on to co-operate with the Communist Party on a fairly permanent basis. He must be more than merely in sympathy with its aims or even willing to aid it in a casual, intermittent way. Affiliation includes an element of dependability upon which the organization can rely which, though not equivalent to membership duty, does rest upon a course of conduct that could not be abruptly ended without giving at least reasonable cause for the charge of a breach of good faith.” The same idea was expressed by Dean Landis in the first Bridges’ report. After stating that “affiliation” implies a “stronger bond” than “association,” he went on to say: “In the corporate field its use embraces not the casual affinity of an occasional similarity of objective, but ties and connections that, though less than that complete control which parent possesses over subsidiary, are nevertheless sufficient to create a continuing relationship that embraces both units within the concept of a system. In the field of eleemosynary and political organization the same basic idea prevails.” And he concluded: “Persons engaged in bitter industrial struggles tend to seek help and assistance from every available source. But the intermittent solicitation and acceptance of such help must be shown to have ripened into those bonds of mutual cooperation and alliance that entail continuing reciprocal duties and responsibilities before they can be deemed to come within the statutory requirement of affiliation. . . . To expand that statutory definition to embrace within its terms ad hoc cooperation on objectives whose pursuit is clearly allowable under our constitutional system, or friendly associations that have not been shown to have resulted in the employment of illegal means, is warranted neither by reason nor by law.”

The legislative history throws little light on the meaning of “affiliation” as used in the statute. It imports, however, less than membership but more than sympathy. By the terms of the statute it includes those who contribute money or anything of value to an organization which believes in, advises, advocates, or teaches the overthrow of our government by force or violence. That example throws light on the meaning of the term “affiliation.” He who renders financial assistance to any organization may generally be said to approve of its objectives or aims. So Congress declared in the case of an alien who contributed to the treasury of an organization whose aim was to overthrow the government by force and violence. But he who cooperates with such an organization only in its wholly lawful activities cannot by that fact be said as a matter of law to be “affiliated” with it. Nor is it conclusive that the cooperation was more than intermittent and showed a rather consistent course of conduct. Common sense indicates that the term “affiliation” in this setting should be construed more narrowly. Individuals, like nations, may cooperate in a common cause over a period of months or years though their ultimate aims do not coincide. Alliances for limited objectives are well known. Certainly those who joined forces with Russia to defeat the Nazis may not be said to have made an alliance to spread the cause of Communism. An individual who makes contributions to feed hungry men does not become “affiliated” with the Communist cause because those men are Communists. A different result is not necessarily indicated if aid is given to or received from a proscribed organization in order to win a legitimate objective in a domestic controversy. Whether intermittent or repeated, the act or acts tending to prove “affiliation” must be of that quality which indicates an adherence to or a furtherance of the purposes or objectives of the proscribed organization as distinguished from mere cooperation with it in lawful activities. The act or acts must evidence a working alliance to bring the program to fruition.

We are satisfied that the term “affiliation” was not so construed either by Judge Sears or by the Attorney General. The reports made in this case contain no precise formulation of the standard which was employed. But the way in which the term “affiliation” was used and applied convinces us that it was given a looser and more expansive meaning than the statute permits. Judge Sears in his report stated that “Affiliation is clearly a word of broader content than membership, and of narrower content than sympathy. Generally, there will be some continuity of relationship to bring the word into application.” But he concluded that that was not necessarily so in view of the statutory definition. And he added: “Affiliation may doubtless be shown circumstantially. Assisting in the enterprises of an organization, securing members for it, taking part in meetings organized and directed by or on behalf of the organization, would all tend to show affiliation. The weight to be given to such evidence is, of course, determined by the trier of the fact.” That view was apparently shared by the Attorney General. But the broad sweep which was given the term in its application to the facts of this case is illustrated by the following excerpt from the Attorney General’s report:

“Judge Sears summarizes Bridges’ attitude towards the Communist Party and its policies by saying that the ‘isolated instances,’ while not evidence to establish membership in or affiliation with the Communist Party, nevertheless show a sympathetic or cooperative attitude on his part to the Party, and form ‘a pattern which is more consistent with the conclusion that the alien followed this course of conduct as an affiliate of the Communist Party, rather than as a matter of chance coincidence.’ This conclusion, said Judge Sears, was strengthened by his consistently favoring nondiscrimination against union men because of Communist membership; and by his excoriating £red baiters,’ as he called those who took an opposite view, which ‘amounted to cooperation with the Communist Party in carrying out its program of penetration and boring from within’.”

But when we turn to the facts of this case we have little more than a course of conduct which reveals cooperation with Communist groups for the attainment of wholly lawful objectives.

The associations which Harry Bridges had with various Communist groups seem to indicate no more than cooperative measures to attain objectives which were wholly legitimate. The link by which it is sought to tie him to subversive activities is an exceedingly tenuous one, if it may be said to exist at all. The Trade Union Unity League was found to be a Communist organization. It chartered the Marine Workers’ Industrial Union in 1930, which continued until 1935 and was found to be a proscribed organization. That union launched the Waterfront Worker, a mimeographed sheet, in 1932. The Attorney General sustained Judge Sears’ finding that Bridges sponsored it and was responsible for its publication shortly after it first appeared in 1932 and down to its abandonment in 1936. The paper acknowledged the assistance of the MWIU prior to September 15,1933. The question when Bridges took over the paper was closely contested, the Board of Immigration Appeals finding that Bridges became connected with it about September 15, 1933, after the MWIU had abandoned it. The finding of Judge Sears, approved by the Attorney General, that the paper was an instrument of the MWIU and the Communist Party from December 1932 to its abandonment in 1936 and that it was under the domination and control of those organizations during that period rested primarily on the following grounds: “(1) The acknowledged cooperation with the M. W. I. XL, in the early issues of the paper and subsequent favorable treatment of the M. W. I. U., T. U. U. L., and other Communist-sponsored organizations during the paper’s entire existence. (2) Consistent attacks upon the so-called ‘reactionary’ leaders of the A. F. of L. (3) Support of the Communist candidates for political office. (4) Advice to read Communist literature. (5) The use of addresses of Communists or Communist-affiliated organizations.” But when the evidence underlying these findings is examined it is found to be devoid of any showing that the Waterfront Worker advocated overthrow of the government by force. It was a militant trade-union journal. It aired the grievances of the longshoreman. It discussed national affairs affecting the interests of working men. It declared against war. But we have found no evidence whatsoever which suggests that it advocated the overthrow of the government by force. Nor is there any finding that Bridges took over this project with the view of doing more than advancing the lawful cause of unionism. The advice to support for office certain candidates said to be Communists was based entirely on the platform on which they ran — cash relief; abolition of vagrancy laws; no evictions; gas, water and electricity for the unemployed; and unemployment relief. The advice to read Communist literature was not general; it was specifically addressed to the comparative merits of those publications and other papers on the truthfulness of labor news. The use of addresses of Communist organizations, especially stressed by the Attorney General, was said by Judge Sears to demonstrate “a close cooperation with the Communists and Communist Organizations.” But close cooperation is not sufficient to establish an “affiliation” within the meaning of the statute. It must evidence a working alliance to bring the proscribed program to fruition.

It must be remembered that the Marine Workers’ Industrial Union was not a sham or pretense. It was a genuine union. It was found to have, and we assume it did have, the illegitimate objective of overthrowing the government by force. But it also had the objective of improving the lot of its members in the normal trade union sense. One who cooperated with it in promoting its legitimate objectives certainly could not by that fact alone be said to sponsor or approve of its general or unlawful objectives. But unless he also joined in that over-all program, he would not be “affiliated” with the Communist cause in the sense in which the statute uses the term.

Whether one could be a member of that union without becoming “affiliated” with the Communist Party within the meaning of the statute, we need not decide. For Harry Bridges was never a member of it. To say that his cooperation with it made him in turn “affiliated” with the Communist Party is to impute to him belief in and adherence to its general or unlawful objectives. In that connection, it must be remembered that although deportation technically is not criminal punishment (Johannessen v. United States, 225 U. S. 227, 242; Bugajewitz v. Adams, 228 U. S. 585, 591; Mahler v. Eby, 264 U. S. 32, 39), it may nevertheless visit as great a hardship as the deprivation of the right to pursue a vocation or a calling. Cf. Cummings v. Missouri, 4 Wall. 277; Ex parte Garland, 4 Wall. 333. As stated by Mr. Justice Brandéis speaking for the Court in Ng Fung Hoy. White, 259 U. S. 276, 284, deportation may result in the loss “of all that makes life worth living.”

We cannot assume that Congress meant to employ the term “affiliation” in a broad, fluid sense which would visit such hardship on an alien for slight or insubstantial reasons. It is clear that Congress desired to have the country rid of those aliens who embraced the political faith of force and violence. But we cannot believe that Congress intended to cast so wide a net as to reach those whose ideas and program, though coinciding with the legitimate aims of such groups, nevertheless fell far short of overthrowing the government by force and violence. Freedom of speech and of press is accorded aliens residing in this country. Bridges v. California, 314 U. S. 252. So far as this record shows the literature published by Harry Bridges, the utterances made by him were entitled to that protection. They revealed a militant advocacy of the cause of trade-unionism. But they did not teach or advocate or advise the subversive conduct condemned by the statute.

Inference must be piled on inference to impute belief in Harry Bridges of the revolutionary aims of the groups whose aid and assistance he employed in his endeavor to improve the lot of the workingmen on the water front. That he enlisted such aid is not denied. He justified that course on the grounds of expediency — to get such help as he could to aid the cause of his union.⁵ But there is evidence that he opposed the Communist tactics of fomenting strikes; that he believed in the policy of arbitration and direct negotiation to settle labor disputes, with the strike reserved only as a last resort. As Dean Landis stated in the first report:

“Bridges’ own statement of his political beliefs and dis-beliefs is important. It was given not only without reserve but vigorously as dogma and faiths of which the man was proud and which represented in his mind the aims of his existence. It was a fighting apologia that refused to temper itself to the winds of caution. It was an avowal of sympathy with many of the objectives that the Communist Party at times has embraced, an expression of disbelief that the methods they wished to employ were as revolutionary as they generally seem, but it was unequivocal in its distrust of tactics other than those that are generally included within the concept of democratic methods. That Bridges’ aims are energetically radical may be admitted, but the proof fails to establish that the methods he seeks to employ to realize them are other than those that the framework of democratic and constitutional government permits.”

That observation is equally pertinent to the record before us. We cannot construe “affiliation” as used in the statute to bring such conduct and attitudes within its reach. Whether the evidence would justify a finding of “affiliation” in the strict sense in which the statute uses the term is not for us to say. An act innocent on its face may be done with an evil purpose. But where the fate of a human being is at stake the presence of the evil purpose may not be left to conjecture. In these habeas corpus proceedings we do not review the evidence beyond ascertaining that there is some evidence to support the deportation order. Vajtauer v. Commissioner, 273 U. S. 103, 106. But detention under an invalid order of deportation is established where an alien is ordered deported for reasons not specified by Congress. Mahler v. Eby, supra. That is the case here. For our review of the record convinces us that the finding of “affiliation” was based on too loose a meaning of the term.

Membership. The evidence of “affiliation” was used not only to support the finding that Harry Bridges had been “affiliated” with the Communist party but also to corroborate the finding that at one time he had been a member of that organization. We may assume that such evidence, though falling short of the requirements of “affiliation,” might be admissible for the latter purpose. But the difficulty is that the finding of membership, like the finding of affiliation, has an infirmity which may be challenged in this attack on the legality of Harry Bridges’ detention under the deportation order.

Rule 150.1 (c) of the Regulations of the Immigration and Naturalization Service (8 C. F. R., 1941 Supp., 150.1 (c)) provides: “All statements secured from the alien or any other person during the investigation, which are to be used as evidence, shall be taken down in writing; and the investigating officer shall ask the person interrogated to sign the statement. Whenever such a recorded statement is to be obtained from any person, the investigating officer shall identify himself to such person and the interrogation of that person shall be under oath or affirmation. Whenever a recorded statement is to be obtained from a person under investigation, he shall be warned that any statement made by him may be used as evidence in any subsequent proceeding.” And Rule 150.6 (i) provides in part: “A recorded statement made by the alien (other than a General Information Form) or by any other person during an investigation may be received in evidence only if the maker of such statement is unavailable or refuses to testify at the warrant hearing or gives testimony contradicting the statements made during the investigation.”

O’Neil was a government witness. He was intimate with Harry Bridges. During, the course of the examination, O’Neil was asked about statements which he allegedly had made to investigating officers some months earlier. These statements were not signed by O’Neil. They were not made by interrogation under oath. And it was not shown that O’Neil was asked to swear and sign; or that, being asked, he refused. They were read into the record and verified by the stenographer who took them down. And an officer testified that later O’Neil had repeated the statements to him and to other witnesses. These statements were that O’Neil joined the Communist Party in December, 1936; that he walked into Bridges’ office one day in 1937 and saw Bridges pasting assessment stamps in a Communist Party book; and that Bridges reminded O’Neil that he had not been attending party meetings. O’Neil admitted making statements to the investigating officers but denied making those particular statements.

Judge Sears admitted the statements not for purposes of impeachment but as substantive evidence. The Board of Immigration Appeals and the Attorney General both conceded that the statements were admitted in violation of Rules 150.1 (c) and 150.6 (i).⁶ The Board held that it was error to consider the statements as affirmative, probative evidence. The Attorney General ruled: “Had the alien raised the question at the time of the hearing, compliance with the Departmental Regulations would have been obligatory and a deliberate rejection of a request to exclude the testimony would have rendered appropriate the objections now raised by the Board. No objection having been raised by the alien throughout the hearing, however, he waived the right to object on the technical ground that the statement was not taken in accordance with the rules.” One difficulty with that position is that Bridges did protest before Judge Sears over the use of the statement. He* maintained that they were erroneously received and were without probative value though he did not rest his objection on the regulations. But there is a more fundamental difficulty. The original deciding body is not the inspector who hears the case. He merely submits a memorandum setting forth the evidence adduced at the hearing, his proposed findings of fact and conclusions of law, and a proposed order.⁷ The case then is heard by the Board of Immigration Appeals, which is authorized to perform the functions of the Attorney General in relation to deportation. 8 C. F. R., 1940 Supp., §§ 90.2, 90.3. And the case may then go to the Attorney General for decision. If the objection to evidence on the ground that it violates the governing regulations is made before the agency entrusted with the duty of deciding whether a case for deportation has been established, it is made soon enough. Objection to the use of these statements as probative evidence was made before both the Board and the Attorney General. It was specifically objected that the statements did not qualify under the regulations.

The rules are designed to protect the interests of the alien and to afford him due process of law. It is the action of the deciding body, not the recommendation of the inspector, which determines whether the alien will be deported. The rules afford protection at that crucial stage of the proceedings or not at all. The person to whom the power to deport has been entrusted is the Attorney General or such agency as he designates. 8 U. S. C. § 155. He is an original trier of fact on the whole record. It is his decision to deport an alien that Congress has made “final.” 8 U. S. C. § 155. Accordingly, it is no answer to say that the rules may be disregarded because they were not called to the attention of the inspector.

It was assumed in Bilokumsky v. Tod, 263 U. S. 149, 155, that “one under investigation with a view to deportation is legally entitled to insist upon the observance of rules promulgated by the Secretary pursuant to law.” We adhere to that principle. For these rules are designed as safeguards against essentially unfair procedures. The importance of this particular rule may not be gainsaid. A written statement at the earlier interviews under oath and signed by O’Neil would have afforded protection against mistakes in hearing, mistakes in memory, mistakes in transcription. Statements made under those conditions would have an important safeguard — the fear of prosecution for perjury. Moreover, if O’Neil had been asked to swear to and sign the statements and had refused to do so, the fact of his refusal would have weight in evaluating the truth of the statements.

The statements which O’Neil allegedly made were hearsay. We may assume they would be admissible for purposes of impeachment. But they certainly would not be admissible in any criminal case as substantive evidence. Hickory v. United States, 151 U. S. 303, 309, United States v. Block, 88 F. 2d 618, 620. So to hold would allow men to be convicted on unsworn testimony of witnesses⁸ — a practice which runs counter to the notions of fairness on which our legal system is founded.⁹ There has been some relaxation of the rule in alien exclusion cases. See United States v. Corsi, 65 F. 2d 564. But we are dealing here with deportation of aliens whose roots may have become, as they are in the present case, deeply fixed in this land. It is true that the courts have been liberal in relaxing the ordinary rules of evidence in administrative hearings. Yet as was aptly stated in Interstate Commerce Commission v. Louisville & Nashville R. Co., 227 U. S. 88, 93, “But the more liberal the practice in admitting testimony, the more imperative the obligation to preserve the essential rules of evidence by which rights are asserted or defended.”

Here the liberty of an individual is at stake. Highly incriminating statements are used against him — statements which were unsworn and which under the governing regulations are inadmissible. We are dealing here with procedural requirements prescribed for the protection of the alien. Though deportation is not technically a criminal proceeding, it visits a great hardship on the individual and deprives him of the right to stay and live and work in this land of freedom. That deportation is a penalty— at times a most serious one — cannot be doubted. Meticulous care must be exercised lest the procedure by which he is deprived of that liberty not meet the essential standards of fairness.

On the record before us it is clear that the use of O’Neil’s ex parte statements was highly prejudicial. Those un-sworn statements of O’Neil and the testimony of one Lun-deberg were accepted by the Attorney General as showing that Bridges was a member of the Communist Party. There was other testimony but it was so “untrustworthy, contradictory, or unreliable” as to be rejected by the Attorney General. If the finding as to Lundeberg’s testimony was treated by the Attorney General independently of his finding as to O’Neil’s, we would have a different case. Then we would have to determine whether the testimony of Lundeberg alone was sufficient to sustain the order. But the Attorney General, unlike Judge Sears, did not separate the testimony of Lundeberg and that of O’Neil for the purpose of his finding as to membership. He lumped them together and found that between them their total weight was sufficient to tip the scales against Harry Bridges. He ruled that if the unsworn statements of O’Neil and the testimony of Lundeberg were believed “the doubt is decided.” ¹⁰ It is thus apparent not only that the unsworn statements of O’Neil weighed heavily in the scales but also that it took those unsworn statements as well as Lundeberg’s testimony to resolve the doubt on this sharply contested and close question. Whether the finding would have been made on this record from the testimony of Lundeberg alone is wholly conjectural and highly speculative. Not only was Lundeberg admittedly hostile to Bridges. Not only did the Attorney General fail to rule that on the basis of Lundeberg’s testimony alone Bridges had been a member of the party. But beyond that, the Board of Immigration Appeals significantly concluded that apart from O’Neil’s unsworn statements the evidence of Bridges’ membership was too flimsy to support a finding. It is thus idle to consider what the Attorney General might have ruled on the basis of the other evidence before him. Cf. United States v. Dunton, 291 F. 905, 907. The issue of membership was too close and too crucial to the case to admit of mere speculation. Since it was error to admit O’Neil’s unsworn statements against Bridges, since they were so crucial to the findings of membership, and since that issue was so close, we are unable to say that the order of deportation may be sustained without them.

In these habeas corpus proceedings the alien does not prove he had an unfair hearing merely by proving the decision to be wrong (Tisi v. Tod, 264 U. S. 131, 133) or by showing that incompetent evidence was admitted and considered. Vajtauer v. Commissioner, supra, p. 106. But the case is different where evidence was improperly received and where but for that evidence it is wholly speculative whether the requisite finding would have been made. Then there is deportation without a fair hearing, which may be corrected on habeas corpus. See Vajtauer v. Commissioner, supra.

Since Harry Bridges has been ordered deported on a misconstruction of the term “affiliation” as used in the statute and by reason of an unfair hearing on the question of his membership in the Communist Party, his detention under the warrant is unlawful. Accordingly, it is unnecessary for us to consider the larger constitutional questions which have been advanced in the challenge to the legality of petitioner’s detention under the deportation order.

The judgment below is

Reversed.

Mb. Justice Jackson took no part in the consideration or decision of this case.

1 The statute as amended (40 Stat. 1012, 41 Stat. 1008, 54 Stat. 673, 8 U. S. C. § 137) provides in part as follows:

“That any alien who, at any time, shall be or shall have been a member of any one of the following classes shall be excluded from admission into the United States:

“(c) Aliens . . . who are members of or affiliated with any organization, association, society, or group, that believes in, advises, advocates, or teaches: (1) the overthrow by force or violence of the Government of the United States . . .

“(e) Aliens who are members of or affiliated with any organization, association, society, or group, that writes, circulates, distributes, prints, publishes, or displays, or causes to be written, circulated, distributed, printed, published, or displayed, or that has in its possession for the purpose of circulation, distribution, publication, issue, or display, any written or printed matter of the character described in subdivision (d) [advising, advocating or teaching the overthrow by force or violence of the Government of the United States].

“For the purpose of this section: (1) the giving, loaning or promising of money or any thing of value to be used for the advising, advocacy, or teaching of any doctrine above enumerated shall constitute the advising, advocacy, or teaching of such doctrine; and (2) the giving, loaning or promising of money or any thing of value to any organization, association, society, or group, of the character above described shall constitute affiliation therewith; but nothing in this paragraph shall be taken as an exclusive definition of advising, advocacy, teaching, or affiliation.

“Sec. 2. 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 section 1 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.”

The Immigration Act of February 5, 1917 is found in 39 Stat. 874.

2 Since June 14, 1940 the immigration laws have been administered by the Attorney General. Reorganization Plan No. V, effective June 14, 1940. 54 Stat. 230, 1238, 5 U. S. C. fol. 133t, 5 U. S. C. 133v.

3 The Regulations of the Immigration and Naturalization Service provide that the alien shall be accorded a hearing before an immigrant inspector to determine whether he is subject to deportation on the charges stated in the warrant of arrest, at which hearing the alien is entitled to representation by counsel and to offer evidence in his behalf. As soon as practicable after the hearing has been concluded, the inspector is required to prepare a memorandum setting forth a summary of the evidence adduced at the hearing, his proposed findings of fact and conclusions of law, and a proposed order, which are to be furnished to the alien or his counsel, who may file exception thereto and submit a brief, 8 C. F. R., 1941 Supp., 150.6, 150.7. The case is then heard by the Board of Immigration Appeals, a body authorized to perform the functions of the Attorney General in relation to deportation, but responsible solely to him. 8 C. F. R., 1940 Supp., 90.2-90.3. If exceptions have been filed, oral argument before the Board is permitted. Ibid., 90.5. Where a member of the Board dissents, where the Board certifies that a question of difficulty is involved, or in any case in which the Attorney General directs, the Board must refer the case to the Attorney General for review. If the Attorney General reverses the decision of the Board, the Attorney General must state in writing his conclusions and the reasons for his decision. Ibid., 90.12.

4 See note 1, swpra.

5 As respects printing releases of the Communist Party in a union paper, he testified:

“As I understand, the question was my position in regard to printing official Communist releases. I still say it might depend. For example, if — there was a lot of trouble up there at that time, a lot of action and tieups. I believe that if the Communist Party happened to send in a statement saying that they would do everything they could to support the particular dispute at that time in behalf of the Union position, my position would be that I wouldn’t have any great objection to seeing that carried in the Union paper.”

As respects voting for a political candidate known to be a Communist, he testified:

“The question of support only goes to whether he is a unionist or not. If he is a bad unionist, we don’t care what he is, we are against him; if he is a good one, we don’t care what he is, we are for him. His first allegiance must be for the union.”

6 We accept that construction of the Rules. For Rule 150.6 (i) when read in conjunction with Rule 150.1 (c) fairly means (1) that an investigating officer in obtaining a “recorded statement” must obtain the statement by interrogation under oath and seek to obtain it over the signature of the maker, and (2) that only such a “recorded statement,” so safeguarded, may be used as evidence when the maker of the statement gives contradictory testimony on the stand. It is true that Rule 150.6 (i) also provides that “An affidavit of an inspector as to the statements made by the alien or any other person during an investigation may be received in evidence, otherwise than in support of the testimony of the inspector, only if the maker of such statement is unavailable or refuses to testify at the warrant hearing or gives testimony contradicting the statement and the inspector is unavailable to testify in person.” If we assume that that provision creates an exception from the general rule in ease of the inspector who is unavailable to testify in person, we can hardly infer that the exception was designed to swallow the general rule. The deep-rooted policy of the law towards hearsay evidence cautions against such a loose reading of these fundamental procedural safeguards.

7 See note 3, supra.

8 We have here quite a different ease from that where a prior statement of an alien, contradictory of testimony made at the hearing, is admitted. See Chan Wong v. Nagle, 17 F. 2d 987; Ex parte Kishimoto, 32 F. 2d 991; 4 Wigmore, Evidence (3rd ed.) § 1048.

9 Dean Wigmore in Ms tMrd edition of Evidence (1940) § 1018 (b) took the other position. But he added, “The contrary view, however, is the orthodox one. It is universally maintained by the Courts that Prior Self-Contradictions are not to be treated as having any substantive or independent testimonial value.”

10 The Attorney General stated, immediately prior to his analysis of the testimony of Lundeberg and O’Neil, the following: “Judge Sears examines in detail the evidence of fifteen witnesses as bearing on Bridges’ membership in or affiliation with the Communist Party. Much of this evidence is rejected as being untrustworthy, contradictory, or unreliable. However, the evidence of two witnesses is accepted as showing that Bridges was a member of the party. If this evidence is believed — and Judge Sears believed it — the doubt is decided. The question is substantially one of credibility. The Review Board did not think the evidence credible. But it should be remembered that Judge Sears saw the witnesses on the stand, watched their demeanor and expression, and was in a far better position to judge their truthfulness than the Review Board, dealing with the cold print of the record.

“The two most important witnesses as to membership are Harry Lundeberg and James D. O’Neil.”