The opinion
WASHINGTON, Circuit Judge,
(dissenting).
This case presents a narrow problem of statutory construction: whether a resident alien who was a member of the Communist Party of Canada prior to his entry into the United States and at no time thereafter, is deportable under Section 22 of the Internal Security Act of 1950. The issue is not whether membership in the Communist Party after entry but prior to the passage of the Act is ground for deportation under the above section; plainly it is. Galvan v. Press, 1954, 347 U.S. 522 , 74 S.Ct. 737 . The issue is not whether appellant Klig would be excludable if he applied for entry today; plainly he would be. 8 U.S.C.A. § 1182 (a) (28) (C) (iv). Nor is the issue whether Klig illegally entered this country: the Government makes no such claim.
Klig last entered this country in 1945. From 1929 to 1932 he had been a member of the Communist Party of Canada. The pertinent exclusion statute in effect in 1945 was the Anarchist Act of 1918, 40 Stat. 1012 , as amended by the Alien Registration Act of 1940, 54 Stat. 673 , which provided for the exclusion of alien members of an organization advocating the overthrow of the Government of the United States or of all forms of law. 8 U.S.C. § 137 (e) (1946). No administrative contention was then made *748 that the Communist Party of Canada was such an organization, nor is it made now. Klig was not excluded, and resumed residence in this country.
Under present law, an alien is de-portable if he “at the time of entry was within one or more of the classes of aliens excludable by the law existing at the time of such entry.” 8 U.S.C.A. § 1251 (a) (1). But the Government has not undertaken to show that Klig was excludable in 1945 “by the law existing at the time of [his] entry,” and has expressly disclaimed in this court any reliance on 8 U.S.C.A. § 1251 (a) (1), or its predecessor, 8 U.S.C. § 155 (a) (1946). 1 Nor is it basing its action on any theory that Klig was engaged in subversive activity after entering this country, or is so engaged at the present time. Rather, the Government relies solely on Section 22 of the Internal Security Act: a section which amends Section 4(a) of the Anarchist Act of 1918 to provide for the deportation of 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(2)” of the Act. Insofar as here pertinent the latter section reads:
“[Sec. 1] That any alien who is a member of any one of the following classes shall be excluded from admission into the United States:
******
“(2) Aliens who, at any time, shall be or shall have been members of any one of the following classes:
“(A) * * *
* * * * * *
“(C) Aliens who are members of * * * the Communist Party * * * of * * * any foreign state * * *.
******
“(H) * * *.”
The question which divides us in this case is whether the reference in Section 4(a) to the “classes enumerated” in Section 1(2) of the exclusion statute incorporates only the classes enumerated in letters (A) through (H), or those classes plus the preliminary matter in (2) relating not to classes as such but to the time of membership in the classes enumerated. Under the first construction, which is mine, Section 4(a) would require the deportation of an alien who was “at the time of entering the United States, or has been at any time thereafter” a member of the Communist Party of any foreign state; this would not reach Klig. Under the other view, Section 4(a) would require the deportation of an alien who “at the time of entering the United States or at any time thereafter” was an alien “who, at any time, shall be or shall have been” a member of the class “who are members of the Communist Party” of any foreign state; the majority adopts this reading of the statute to deport Klig.
I think the first construction is very plainly the correct one. Section 4(a) refers to Section 1(2) only to incorporate “the classes of aliens enumerated” therein, and the classes of aliens are enumerated only in subsections (A) through (H), inclusive — not in the preamble which relates merely to time. Section 4(a) specifies its own time period for membership for purposes of deportation, whereas the preliminary matter of (2) states another time period for membership for purposes of exclusion. To read the exclusion time period as a nullification or amendment of the deportation time period is unjustified in the absence of plain language; here the language used clearly shows that no such implied repeal or amendment was intended. Our colleagues of the Fifth Circuit have already so concluded: Berrebi v. Crossman, 1953, 208 F.2d 498 . And *749 compare Galvan v. Press, supra, 347 U.S. at pages 525, 525 n. 2, 74 S.Ct. 737 .
The premise underlying the majority’s view is that the “motif” of the deportation section must parallel the exclusion statute; since the exclusion statute reaches members of classes (2) (C) regardless of the time of their membership, the court concludes that the deportation section must or should have similar effect. But the premise is not supportable. If Congress had wanted to carry out the “motif” of the exclusion statute in the deportation statute, it could simply have said “all aliens who were ex-cludable under Section 1 are deportable” or “all aliens who at any time shall be or shall have been members of the classes excludable under Section 1 are deporta-ble.” But Congress did not so provide. The language it used cannot reasonably be construed to allow the exclusion time element to obliterate the deportation time element.
The Supreme Court has cautioned us in such matters not to “assume that Congress meant to trench on [an alien’s] freedom beyond that which is required by the narrowest of several possible meanings of the words used.” Fong Haw Tan v. Phelan, 1948, 333 U.S. 6, 10 , 68 S.Ct. 374, 376 , 92 L.Ed. 433 ; see also Barber v. Gonzales, 1954, 347 U.S. 637, 642, 643 , 74 S.Ct. 822 , 98 L.Ed. 1009 . Surely, the interpretation of the statute adopted by the majority is exactly contrary to this admonition.
Not only does the statutory language itself leave no room for doubt, but a review of congressional activity in the area demonstrates that Congress did not intend to deport persons like this appellant. In 1939 a proposed amendment to the Anarchist Act of 1918 would have deleted the words “at any time after entering the United States” and substituted the words “at any time.” H.R. 5138, 76th Cong., 1st Sess. (1939), 84 Cong.Rec. 10,383. There was considerable objection to such all-inclusive language. Accordingly, the deportation statute (but not the exclusion statute) was changed by the Senate Committee so as, said the Committee, “to prevent hardship on aliens who may have been, in the distant past, but who had renounced before coming to the United States, their membership.” S.Rep. No. 1721, 76th Cong., 3d Sess. (1940). 2
Did Congress change its mind in 1950, when it adopted the Internal Security Act? At one stage it evidently considered doing so. 3 But later on — when the Conference Report was written on the final legislation, H.Rep. No. 3112, 80th Cong., 2d Sess. (1950), accompanying H.R. 9490 — the Report said: “ * * * in general, this provision [Section 4(a)] covers those classes of aliens who * * are members of subversive organizations.” (Emphasis added.) And when Senator McCarran explained on the Senate floor the effect of the 1950 changes in detail, he at no point suggested that membership before entry was being added as a new ground for deportation. 4 The majority finds support (fn. 9) for its conclusion in a Senate report which was issued by a subcommittee in 1950 in connection with the studies leading to recodification of all immigration laws into the Walter-McCarran Act of 1952. 5 But on its face the statute, as enacted, does not incorporate the particular view *750 expressed in the Senate report which is relied on by the court. The new statute abandons the technique of incorporating part of the exclusion statute in the deportation statute. It continues the form of listing classes in which membership “at any time after entry” is grounds for deportation. See Section 241(a) (6) (C) (iv), 8 U.S.C.A. § 1251 (a) (6) (C) (iv). But these classes are now set out in the present tense, indicating that membership before entry is not a ground for deportation. And whatever doubt could possibly remain is dispelled by both the House and Senate reports accompanying the recodification, which state, referring to Section 241(a) (6):
“This class has been clarified to make it clear, that aliens who are not excludable under the law existing at the time of entry because of past membership in the proscribed subversive classes are not to be de-portable solely because of such past membership ■ * * •*.” 6
It is not at all incongruous to say that membership prior to entry warrants exclusion but not deportation. For it is entirely reasonable for Congress to deny admission to former Communists, no matter how far distant their membership. But as to those already here for years, who may have demonstrated desirability as residents and have acquired families and property here, different considerations enter. Congress has indicated that Communist Party membership will be considered grounds for deportation only if it occurred after entry, while the alien was enjoying United Státes residence. Of course, Congress may sometime say that membership before entry is a ground for deportation. But until it does so, I find no basis for holding that this alien is deportable. On the contrary, I think that Congress has specifically provided that he is not deportable.
. To the extent that the majority opinion assumes' that the Government’s deportation order can now be supported by reliance on the section just cited it is on indefensible ground. Not only does the administrative agency itself disclaim any sueb view, it admits that no findings were made in the instant case which would justify the application of that view to Klig.
. The wording, as finally enacted, was changed from the 1918 version to overrule Kessler v. Strecker, 1939, 307 U.S. 22 , 59 S.Ct. 694 , 83 L.Ed. 1082 . The 1918 language had said “at any time after entering the United States, is found to have been at the time of entry, or to have become thereafter,” and the 1940 language, as enacted, said “at the time of entering the United States, or has been at any time thereafter.” This made it clear that even brief membership was grounds for deportation, but it must still be membership at any time “thereafter,” meaning after entry.
. See S.Rep. No. 2230, 81st Cong., 2d Sess. 7 (1950), accompanying S. 1832; S.Rep. No. 2369, 81st Cong., 2d Sess. 12 (1950), accompanying S. 4037.
. 96 Cong.Rec. 14,179-34,180 (1950).
. S.Rep. No. 1515, 81st Cong., 2d Sess. (1950).
. S.Rep. No. 1137, 82d Cong., 2d Sess. 22 (1952); see also H.Rep. No. 1365, 82d Cong., 2d Sess. 60 (1952).