In DEPORTATION Proceedings

MAI Jr..a OF C

In DEPORTATION Proceedings

A-3415533

Decided by Board February 29, 1960

of collateral

estoppel by judgment Finding of membership in denaturalization proceedings held conclusive in subsequent deportation proceedings Original entry

as basis for deportation charge under section 241(a)(6) of 1952 act.

Subversive organization—Evidence of membership—Doctrine

—

—

(1) Where one of the principal Issues in a denaturalization suit was whether

respondent had been a member of the Communist Party from 1930 to 1936

and this Issue was litigated and was essential to the court's determination

which resulted in a Judgment revoking citizenship; held, under doctrine of

collateral estoppel the finding by the court in the denaturalization suit was

conclusive in the subsequent deportation proceeding involving charge based

upon like period of membership in the Communist Party.

(2) Where respondent lawfully entered the United States for permanent residence in 1923, reentered illegally following a trip to Moscow in 1932, and

last entered in 1945 as a member of the armed forces, deportability under

section 241(a) (6) of the act as a member of the Communist Party after

entry is established with relation to his 1923 entry. Bonetti v. Rogers, 356

'U.S. 691, distinguished.

CHARGE:

Order: Act of 1952—Section 241(a) (6) [8 U.S.C. 1251(a) (0)]—After entry, member of Communist Party of United States.

BEFORE THE BOARD

Discussion : On April 6, 1959, a special inquiry officer directed the

respondent's deportation. Upon his appeal, we entered an order on

October 2T, 1950, directing that the hearing be reopened and that

the case be remanded to the Service. The matter is now before us

on motion of the Service dated December 8, 1959, requesting reconsideration of our order of October 27, 1959.

The respondent is a 53-year-old male, native and last a citizen of

Russia. He entered the United States on January 1, 1923, and apparently was lawfully admitted for permanent residence at that time.

He departed for Moscow, U.S.S.R., in November 1932, and thereafter illegally reentered the United States. He also arrived in the

United States on October 4, 1945. following service outside this coun577

try with the United States Army. His present marital status is not

shown by the record. The special inquiry officer found that the

respondent was a member of the Communist Party of the United

States from about 1930 to about 1937, and in 1946. The issues raised

by the motion are whether our previous order should be withdrawn

and, if so, whether the respondent is deportable on the charge stated

above. For the reasons hereinafter stated, we will grant the motion

of the Service and dismiss the respondent's appeal from the order

of deportation.

On May 14, 1943, while serving in the United States Army, the

respondent was naturalized as a citizen of the United States under

the provisions of section 701 of the Nationality Act of 1940, as

amended [56 Stat. 182; 8 U.S.C. 1001, 1940 ed. Supp.]. His naturalization was revoked on June 27, 1956, by a decree of the United

States District Court for the District of Maryland (Exh. 2). The

respondent filed an appeal from that decision in the United States

Court of Appeals for the Fourth Circuit but this was dismissed on

September 19, 1958, upon agreement between the parties (Exh. 3).

In addition, the Government introduced a copy of the court's opinion

in the denaturalization proceeding (Exh. 4) which will also be found

in the case entitled United States v. Chandler, 152 F. Supp. 169.

On the basis of the findings of fact in that opinion, the special

inquiry officer held that the respondent's deportahility had been established under the doctrine of collateral estoppel by judgment.

When we previously reviewed the record, we observed that the

respondent had said that he supposed he would answer questions and

that he had not been asked thereafter whether he had been a member

of the Communist Party. Accordingly, we directed that the hearing

be reopened to permit the respondent and the Government to present

:any pertinent evidence. In its motion, the Service takes the position

that it met its burden of proof when exhibits 2 to 4, inclusive, pertaining to the denaturalization proceedings, were received in evidence and that it was under no obligation to specifically question the

respondent concerning his Communist Party membership.

Counsel has urged that this Board should not entertain the motion

of the Service and complains that the procedure followed in this

case was unfair because the Service received notice of our decision

before he did. He also contends that the time within which he

might reply to the Service motion should have been fixed by us

rather than by the Service.

8 CFR 3.8 is the pertinent regulation concerning motions to the

Board for reopening or reconsideration. Subsection (c) thereof,

relating to eases where the Service is the moving party, provides

that it shall cause one copy to be served upon the alien. The time

for filing a reply in the respondent's case was not fixed by the Serv578

ice, but the regulation itself provides that the alien shall have a

period of 10 days from the date of service upon him of the motion

within which to submit a brief in opposition to the motion, and that

the Board, in its discretion, may extend the time within which such

brief may be submitted. The regulations do not specify any time

limitation upon the filing of a motion for reconsideration by the

Service or by counsel. In this case, counsel states that he received

the Service motion one day after he received our order of October 27,

1959. Hence, counsel was not misled into believing that the Service

acquiesced in our order.

The procedure followed here complied with the regulations. Counsel did not request any extension of the period within which he

might reply to the motion of the Service, and there is nothing in

his reply brief which would indicate that he desires an extension of

time to answer more fully the motion of the Service. He also has

not contended that the respondent was prejudiced in any manner

by the fact that counsel received our order and a copy of the Service

motion at ,about, the same time. Under the circumstances, we reject

counsel's contention that the motion of the Service for reconsideration should not be entertained.

Although counsel urged that the Board should not entertain the

motion of the Service, he did not press for reopening of the hearing

nor indicate that the respondent desired to testify. Since it is clear

that the Service wishes to have the matter adjudicated on the present record and inasmuch as we now believe that no useful purpose

would be served in reopening the hearing, we will grant the motion

for reconsideration, withdraw our previous order, and proceed to a

determination of the question of whether the respondent is deportable

on the charge stated in the order to show cause.

Under the doctrine of res judicator, a judgment on the merits in a

prior suit bars a second suit between the same parties on the same

cause of action. Where the parties are the same but the causes of

action are different, the doctrine of collateral estoppel by judgment

precludes relitigation in the second suit of issues actually litigated

and determined in the prior suit. The special inquiry officer recognized 1111t, distinction and both parties before us are agreed that this

case is to be determined under the applicable principles pertaining

to the doctrine of collateral estoppel. On the basis of this doctrine,

the Service asserts that deportability has been established while

counsel's contention is to the contrary.

Counsel contends that the judgment in the denaturalization suit

rests on alternative findings and that, no estoppel is created in such

cases. He asserts that the decision rested on four alternative grounds

but does not state what he considers these to be. He does state that

the respondent could not test, on appeal, the court's finding concern579

ing nonattachment to the principles of the Constitution "because the

judgment was clearly sustainable on one of the alternate holdings—

misrepresentation of the arrest record." Before discussing the effect

of a judgment resting on alternative grounds, two preliminary obser

vations are pertinent.

In the first place, there is considerable question whether the judgment in the respondent's case would have been clearly sustainable

on the basis of the concealment of the arrest record. This is so

because the court did not even make a definite finding as to the

materiality of the arrests.

Secondly, counsel says it is necessary that alternative findings

should not create estoppels because otherwise findings would become

conclusive although they were not capable of being appealed, and

he contends that this respondent could not appeal from the adverse

finding. In this connection, he referred us to the footnotes on pages

99 and 109 of Partmar Corporation v. Paramount Pictures Theatres

Corporation, 347 U.S. 89 (1954), and to Gelpi v. Tugwell , 123 F.2d

377 (C.C.A. 1, 1941). The footnote on page 109 of the Part/mar case

is in the dissenting opinion and may be disregarded. In the footnote on page 99, it was stated that Partmar (for whom judgment

was entered) did not appeal but could have done so, and there is the

specific statement: "It is only when a finding of law or fact is not

necessary for a decree that the prevailing party may not appeal and

the finding does not form the basis for collateral estoppel" (emphasis supplied). Obviously, this case does not help the respondent.

In the Gelpi case, the appeal was dismissed as moot but the court

stated that, since the appellant was prevented from obtaining a review of the judgment through no fault on her part, the judgment

would not become res judicata on the issues involved in any subsequent litigation upon a different cause of action.

The foregoing two cases were the only ones cited by counsel for

his theory that the respondent could not appeal from the adverse

finding. That the rule is otherwise is shown by the decisions in

Galloway v. General Motors Acceptance Corporation, 106 F.2d 466,

467 (C.C.A. 4, 1939), and Fish.gold v. Sulli/van. Drydock & Repair

Corp., 328 U.S. 275 (1946). In the first case, it was stated that the

general rule is that one may not appeal from a verdict in his favor

or from that portion of a decision which is favorable but he may

secure a review of that portion of a decision which is adverse. In

the Fishgold case, a union which had a collective bargaining agreement with Sullivan was permitted to intervene. The District Court

entered a money judgment for the petitioner. Only the union appealed. The Supreme Court held that the union had an appealable

interest because there had been a construction of the collective bargaining agreement which had resulted in an adjudication adverse

580

to the union. Accordingly, the judicial authority is contrary to

.counsel's position that the respondent could not appeal from the

adverse finding that he was a member of the Communist Party. As

a matter of fact, the respondent did appeal although the appeal

was subsequently dismissed by agreement of the parties.

We turn now to the contention itself which is that no estoppel is

created where the judgment rests on alternative findings One matter which counsel offered in support was his quotation of a single

sentence appearing on page 307 of the decision in Fayerweather v.

Bitch, 195 U.S. 276 (1904). The sentence is as follows: "And

where the evidence is that testimony was offered at the prior trial

upon several distinct issues, the decision of any one of which would

justify the verdict or judgment, then the conclusion must be that the

prior decision is not an adjudication upon any particular issue or

issues, and the plea of ree judicata must fail." Immediately preceding this sentence, there was a statement to the effect that, when

the pleadings are general, evidenee may be given concerning the

testimony which was introduced on the trial since that may disclose

what must have been considered and determined. The judgment in

the first suit contained no findings to indicate upon what it was

based, and the case is not analogous to that of the respondent in

which the court made specific findings. When the statement quoted

by counsel is considered in context, it is clear that it relates only to

a case in which there were no findings and in which it was necessary

to produce evidence as to what testimony was introduced at the

original trial. The Supreme Court's conclusion was that although

there was not even a specific finding in the first suit, the decision

there had necessarily determined that certain releases were valid and

the point could not be relitigated in the second suit. Hence, we

believe that this decision does not support counsel's contention but

actually is opposed to his claim that the question concerning the

respondent's Communist Party membership can be relitigated.

Counsel also cited six decisions of state courts which are supposed

to hold that alternative findings do not create an estoppel. An examination of these shows that in one case the former judgment was

based on lathes and not upon the merits; in another case the jury

was not authorized to render a verdict finding both sides negligent;

and in three cases the attempt was to claim as an estoppel a fact

found in the first suit which was immaterial to that decision. The

remaining case cited by counsel was BurZen. v. Shannon, 99 Mass.

200 (1868). There, Mrs. Shannon had previously filed a libel for

divorce a mensa against Mr. Shannon. There was a general verdict

in his favor, and it was impossible to determine whether this was

because his wife had failed to prove her charges of misconduct or

whether it was because his divorce from her, previously obtained in

581

Indiana, was valid. A third party subsequently sued Mr. Shannon

for room and board furnished the wife, and it was held that the third

party was not estopped from showing the invalidity of the Indiana

divorce. Not only did this case involve an attempt to set up the

estoppel against one who was not even a party to the prior suit, but

it is merely another illustration of the well-settled rule that estoppel

does not arise unless the particular finding was necessary to the decision in the first suit. For the reasons indicated, we do not consider

that the cases cited by counsel support his contention. On the other

hand, the authorities mentioned below show that the rule is not as

he claims.

*Where a decision is rested on two grounds, the ruling on neither

is obiter but each is the judgment of the court and of equal validity

with the other. United States v. Title Insurance irk Trust Company,

265 U.S. 472, 486 (1924) ; Union Pacific Railroad Company v. Mason

City and Fort Dodge Railroad Company, 199 U.S. 160, 166 (1905) ;

Railroad Companies v. Schulte, 103 U.S. 118, 143 (1880) ; The Choctaw Nation v. United States, 135 F. Supp. 536 (Court of Claims,

1955), cert. den. 352 U.S. 825.

In the last mentioned case, there was involved the Choctaws' claim

to ownership of land lying west of the 100th meridian. There had

been a prior court decision against them in a case which did not

involve this land but which related only to land lying east of the

100th meridian. However, in the earlier case the Choctaws had used

as an argument a claim that they owned the land west of the 100th

meridian but the court in that case found to the contrary and this

was held res judicata in the second suit. (Since the cause of action

was not the same in the second suit, there was actually involved the

doctrine of collateral estoppel by judgment.)

In Railroad Companies v. Schutte, supra, the Supreme Court said

(p. 143) ;

It cannot be said that a case is not authority on one point because, although that point was properly presented and decided in the regular course

of the consideration of the cause, something else was found in the end which

disposed of the whole matter. Here the precise question was properly presented, fully argued and elaborately considered in the opinion. The decision

on this question was as Lune11 a part of the judgment of the court as was that

on any other of the several matters on which the case as a whole depended.

In Irving Nat. Bctnie v. Law, 10 F.2d 721 (C.C.A. 2, 1926), it was

stated at page 724: "* * * if a court decides a case on two grounds,

each is a good estoppel." The following rule is set forth in Restatement of the Law of Judgments, section 68, comment "n": "Where

the jiidgme.nt, is based upon the matters litigated as alternative

grounds, the judgment is determinative on both grounds, although

either alone would have been sufficient to support the judgment."

Accordingly, we reject this contention of counsel.

582

Counsel is correct in his statement that under the doctrine of collateral estoppel the point or question to he determined in the second

action must be the same as that litigated in the original action and

that it must have been a fact. which was essential to the first decision

(Tait v. Western Maryload Railway Co., 289 U.S. 620, 623 (1933) ;

Yates v. United States. 354 U.S. 298 (1957)). In the last mentioned

case, at page 336, the court said that the doctrine of collateral estoppel "makes conclusive in subsequent proceedings only determinations

of fact, and mixed fact and law, that were essential to the decision."

Counsel also asserts that a finding creates an estoppel only if it

was a finding of the ultimate fact in issue. In connection with this

contention, the Service stated its position as follows on page 8 of the

memorandum which accompanied its motion: "In other words, that

there is no distinction between ultimate facts and mediate data so

long as they were necessary to the result and were actually litigated;

that what is meant. by 'evidentiary' facts must be those facts which

were not litigated and not put in issue and did not in and of themselves effect the determination that was reached." We do not agree

with this statement nor with the view of the Service concerning the

analogy between the respondent's case and Local .167, International

Brotherhood of Teamsters, etc. v. United States, 291 U.S. 293, 298299 (1934). That case held only that the judgment in the prior

criminal case conclusively established that those found guilty were

parties to the conspiracy and those persons were estopped in the subsequent civil suit from denying participation in the conspiracy.

In support of this contention, counsel quoted the following which

appears in Restatement of the Law of Judgments, 1948 Supplement,

section 68, comment "p":

p. Evidentiary facts. The rules stated in this section are applicable to the

determination of facts in issue, i.e., those facts upon whose combined occurrence the law raises the duty or the right in question, but not to the determination of merely evidentiary or mediate facts, even though the determination of the facts in issue is dependent upon the determination of the evidentiary or mediate facts.

Comment "p" of section 68 of Restatement of the Law of Judgments employs the term "facts in issue" but does not use "ultimate

facts" which is the term on which counsel relies. Similarly, Travelers insurance Co. v. Commissioner of Internal Revenue, 161 F.2d

93 (C.C.A. 2, 1947), cert. den. 332 U.S. 766, and Norton v. Larney,

266 U.S. 511 (1925), cited by counsel, do not even refer to the term

"ultimate facts." Hymen v. Regenstein, 258 F.2d 502 (C.A. 5, 1958),

does mention ultimate facts but the decision there was predicated on

the well settled principle that a fact decided in an earlier suit is

conclusively established between the parties in subsequent litigation

provided it was necessary to the result in the first suit, and the court

held against Hyman on four alleged frauds—three of them under

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583

the doctrine of collateral estoppel. The Evergreens v. Num.an, 141

F.2d 927 (C.C.A. 2, 1944), cert. den. 323 U.S. 720, is of no assistance

to counsel because the court specifically said (pp. 929-931) that the

question involved was not the relative conclusiveness of mediate data

and ultimate facts in the first suit, and the actual ruling was that

no fact decided in the first suit, whether an ultimate fact or a mediate

datum, conclusively establishes anything except a fact ultimate in

the second suit.

In connection with this contention, counsel also cited Yates v.

United ,States, supra. One of the defendants in that case was

Schneiderman who claimed that the court had made determinations'

favorable to him in a denaturalization proceeding and that these

were conclusive under the doctrine of collateral estoppel in a subsequent criminal proceeding. The court held that the prior determinations did not create an estoppel in the second proceeding because the

issues were different and the first suit involved a period prior to

1927 whereas the second suit involved the period from 1948 to 1951.

Schneiderman urged that, even if the prior determinations were not

conclusive, they should be given partial conclusive effect but the

court stated that the doctrine of collateral estoppel does not establish

any such concept. It was in this connection that the court made the

following statement at page 338: "The normal rule is that a prior

judgment need be given no conclusive effect at all unless it establishes one of the ultimate facts in issue in the subsequent proceeding.

So far as merely evidentiary or 'mediate' facts are concerned, the

doctrino of collateral estoppel is inoporativo." Counsel quoted and

relied on the second sentence. When considered in context, however,

it is clear that it relates only to the facts in the subsequent proceeding and has nothing to do with the relative conclusiveness of mediate

and ultimate facts in the first suit.

The remaining case cited by counsel in support of his contention

is King v. Chase, 15 N.H. 9 (1844). In that case also there is no

reference to "ultimate facts," although the case does illustrate a view

of a few courts that "ultimate fact" should be defined as "final fact."

However, the facts in the case were not as counsel stated them. The

first suit was for taking away a large quantity of oats and the se,eund

suit was for taking 30 tons of hay and other articles. In the first

suit, the finding that the plaintiff had no title to the oats must have

been predicated on the opinion that the mortgage he held was fraudulent. The court concluded that the title to the property in the

second suit had not been tried.

While only King v. Clumo, copra, lends any support to counsel's

contention that only ultimate facts found in the first suit become

an estoppel in the second suit, there are judicial decisions to that

effect. The matter is discussed in 142 A.L.R., pages 1243 to 1252,

584

inclusive. From what is there stated, it appears that, the. courts

generally agree that the doctrine of collateral estoppel is confined

to the ultimate facts in the first action and that it does not extend

to evidentiary facts. However, difficulty arises in defining the meaning of ultimate fact, as distinguished from evidentiary fact, for the

purposes cf the rule. The question is discussed in the "Comment

Note" in A.L.R. by considering ultimate fact under the concepts of :

(1) a pleadable fact or fact in issue, (2) a material element of legal

relationship in controversy, (3) an essential fact, and (4) a final fact.

In discussing the concept of ultimate fact as a final fact, the

"Comment Note" in A.L.R. refers to King v. Chase, supra, as the

leading case illustrating the view of some courts under which they

treat as an ultimate fact only what was actually the final issue between the parties and consider as evidentiary any fact from which

the ultimate fact is derived regardless of whether such evidentiary

fact was essential to the judgment. However, it is stated in the

"Comment Note" (142 A.L.R. at page 1248) that a comparatively

small number of cases hold that, under such circumstances, the determination of a litigated question does not. create an estoppel and that

these cases express a minority view. Considering counsel's reliance

on King v. Chase, supra, as well as the general tenor of his argument, it seems apparent that his contention is that it is only the final

issue in the first suit which becomes an estoppel. We dismiss this

contention since it is our opinion that such a definition of ultimate

fact is contrary to the view of the majority of the courts.

While we reject the concept that it is only the final issue in the

first action which creates a collateral estoppel in the nocond suit,

there is no question but that such an estoppel occurs if "ultimate

fact" is considered as being a fact in issue or a material element of

the suit or an essential fact.. However, under those circumstances,

the use of the word "ultimate" actually adds nothing to the determination of the question in this respondent's case. We will, therefore,

make our determination in his case in accordance with the principles

stated in Cromwell v. County of Sac, 94 U.S. 351 (1876), and Southern Pacific Railroad Co. v. United States, 168 U.S. 1 (1897).

In Cromwell v. County of Sap, supra, at page 353, it was said:

"* * * where the second action between the same parties is upon a

different claim or demand, the judgment in the prior action operates

as an estoppel only as to those matters in issue or points controverted,

upon the determination of which the finding or verdict. was rendered."

In Southern Pacific Railroad Co. v. United States, supra, at pages

48 49, the Supreme Court made the following statement: "The general principle announced in numerous cases is that a right, que s tion

or fact, distinctly put in issue and directly determined by a court of

competent jurisdiction, as a ground of recovery, cannot be disputed

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585

in a subsequent suit between the same parties or their privies; and

even if the second suit is for a different cause of action, the right,

question or fact once so determined must, as between the same

parties or their privies, be taken as conclusively established, so long

as the judgment in the first suit remains unmodified." These rules

have been quoted in many subsequent decisions (Partmar Corporation v. Paramount Pictures Theatres Corporation, supra,at page 91;

United States v. International Building Co., 345 U.S. 502, 50-1-505

(1953), reh. den. 345 U.S. 978; United States v. Munsingwear,

340 U.S. 36, 38 (1950) ; Mercoid Corporation v. 111id-Continent Investment Co., 320 U.S. 661, 671 (1944) ; United States v. Moser, 266

U.S. 236, 241 (1924)).

In the denaturalization suit, the court found that the respondent

was an active member of the Communist Party and attended closed

meetings of the Party at least from 1930 to 1936, inclusive; that in

November 1932, together with other communists who had been selected or approved by the Communist Party, he went to Moscow,

U.S.S.R., where he attended the Lenin School; and that about 1934

he became section organizer for the New Kensington district of the

Party. The court also found that the respondent had penetrated

sufficiently far into the councils of the Communist Party to be thoroughly familiar with its ultimate objective of overthrowing the

Government of the United States by force and violence if necessary,

and that from 1930 to 1936 the respondent was committed to the

ultimate objectives of the Party. The court also found that in 1946

he joined the District of Columbia Communist Party.

We ,will first consider the quelduab which were at issue and controverted in the denaturalization suit and which were directly determined by the court. Since the Service and counsel did not offer in

evidence a copy of the complaint and the answer in that action, we

have found it necessary to determine the issues in that proceeding

on the basis of the pertinent statutory provision, the judgment

(Exh. 2), and the opinion of the court (Exh. 4; 152 F. Supp. 169).

8 E.S.C. 1451(a) authorizes the institution of denaturalization proceedings "on the ground that such order [of admission to citizenship]

and certificate of naturalization were procured by concealment of a

material fact or by willful misrepresentation."

Counsel apparently considers that one of the issues in the denaturalization proceeding was whether the respondent was attached to

the principles of the Constitution of the United States. After

stating in the penultimate paragraph of the opinion that the respondent's naturalization must be revoked because it was procured by

material misrepresentations and concealment, it was stated that the

same result was required by the court's findings that the respondent

was not sincere in his representation that he was attached to the

586

winciples of the Constitution of the United States and well disposed

o the good order and happiness of the United States. There was no

finding that the respondent was a member of the Communist Party

It the time of his naturalization in 1043, but the court inferred

(p. 176) from the respondent's activities between 1930 and 1936

and from his membership in 1946 that he was committed to the ultimate objectives of the Party at the time of naturalization and that

he was not attached to the principles of the Constitution. Under

the circumstances, the finding of nonattachment was merely a subsidiary one, was completely dependent upon the respondent's Communist Party membership and activity, and we believe it can he disregarded as an independent issue in the case.

In the first paragraph of the court', opinion, the concealments

and misrepresentations which were alleged by the Government as

the statutory basis for revocation were stated to be the respondent's

"membership in the Communist Party, his prior arrests, his illegal

departures from the United States to attend the Lenin School *

and his subsequent illegal entry into the United States." The respondent's illegal departure from the United States in November

1932, his use of a fraudulently obtained United States passport and

his subsequent illegal entry do not appear to be points which were

controverted because counsel conceded that the respondent had not

legally entered or reentered the United States after November 12,

1932 (p. 174). The respondent's concealment of his arrests does not

appear to have been an important issue because the court did not

reach any definite conclusion as to whether the arrests were material

except insofar as they might have led to discovery of the respondent's

Communist, Party membership and activities (p. 178).

The one remaining matter concerning which there was concealment

and misrepresentation was the respondent's membership in the Communist Party. The court found that the designated naturalization

examiner had asked the respondent at the time he filed his petition

for naturalization, "Are you now or have you ever been a communist,

a nazi, a fascist, or a radical of any type?" and that the respondent

answered, "No." The respondent did not take the stand during the

trial of the denaturalization suit and, hence, there was the uncontradieted testimony of the examiner concerning the question asked and

the answer the respondent gave. Counsel apparently contends that

the issue was whether the respondent gave false testimony before

the examiner and not whether he was a member of the Communist

Party. However, if the respondent had not been a communist or a

member of the Communist Party, his negative, answer would have

been truthful. Accordingly, we conclude that the basic question and

the principal point which was actually controverted in the denaturalization suit was whether the respondent had been a member of

the Communist Party during the 10 years preceding his naturalization. That this was the chief question in that proceeding is illustrated by the extent of the findings and discussion concerning that

matter in the court's opinion.

We next consider the questions in controversy in this deportation

proceeding. At the hearing, the respondent through counsel conceded that he is not a citizen or national of the United States, that

he is a native of Russia, and that he entered the United States at

New York on or about January 1, 1923. The only point in controversy in this deportation proceeding is the same as the one we have

concluded was the principal point controverted in the denaturalization suit, that is, the respondent's membership in the Communist

Party. This is subject to the qualification that the word "member"

must be understood as it has been judicially defined in Gahan, v.

Press, 347 U.S. 522 (1954), and Rowoldt v. Perfetto, 355 U.S. 115

(1957). Rowoldt was decided on December 9. 1957, which was subsequent to the court's opinion dated June 13, 1957, in the denaturalization suit relating to this respondent. However, in Rowoldt the

court affirmed the conclusions it had previously reached in the

Galvan ease.

In Gabvan v. Press, supra, the court found the alien deportable

but referred (p. 527) to a memorandum inserted in the Congressional

Record indicating "that Congress did not provide that the three types

of situations it enumerated in the 1951 corrective statute [Act of

March 28, 1951, 65 Stat. 28] should be the only instances where

membership is so nominal as to keep an alien out of the deportable

class." The court concluded (p. 528) that support, or even demonstrated knowledge, of the Communist Party's advocacy of violence

was not intended to be a prerequisite to deportation but that it

"is enough that the alien joined the Party, aware that he was joining an organization known as the Communist Party which operates

as a distinct and active political organization, and that he did so of

his own free will."

In the denaturalization suit against the respondent, the Government was required to meet a higher standard of proof than in a

deportation proceeding, that is, it was required to establish its case

by clear, unequivocal and convincing evidence. Although the Galvan case involved a deportation proceeding, we believe that the

Government was required to establish in the denaturalization proceeding against the respondent that he was a "member" of the Communist Party as the term had been judicially defined. The opinion

of the court, in the denaturalization suit against the respondent,

does not mention the Galvan case but, since the court specifically

stated that "mere membership" would not have been sufficient, we

588

believe it is apparent that it took cognizance of the judicial definition

which had been given to the word "member."

As stated above, the rule laid down in Cromwell v. County of Sac

and Southern Pacific Railroad Co. v. United States, supra, is that

the judgment in the prior action operates as an estoppel as to those

matters in issue or points controverted upon the determination of

which the finding was rendered, and that a question or fact distinctly put in issue and directly determined in the first action must

be taken as conclusively established in subsequent proceedings. We

have concluded above that one of the matters in issue and points

controverted (in fact, the principal one), upon the determination

of which the judgment in the denaturalization suit was rendered,

related to whether the respondent was a member of the Communist

Party during the 10 years preceding his naturalization in 1943.

This was an essential matter in issue in that proceeding and the

court made a direct determination of that, question. It found that

the respondent had been an active member of that organization from

at least 1930 to 1936 and that he was familiar with, and committed

to, its ultimate objective of overthrowing the Government of the

United States by force and violence if necessary. Accordingly, we

hold that, under the doctrine of collateral estoppel by judgment, it

has been establishe_. that the respondent during the period from

1930 to 1936 had been a "member" of the Communist Party of the

United States as the term "member" has been judicially defined.

The court stated that the respondent was not found to have been

actually a member of the Communist Party at the time of his naturalization in 1943. He joined the District of Columbia Communist

Party in 1946 but was not very active. From the testimony of a

witness concerning the 1946 membership of the respondent, the court

found that the respondent was committed to the objectives of the

Communist Party at that time and inferred that he was also committed to those objectives at the time of his naturalization in 1943.

While the 1940 membership was pertinent in that connection, it was

not so essential to that decision as to create an estoppel in this

deportation proceeding. The Government offered no other evidence

that the respondent was a member of the Communist, Party in 1946,

and we hold that his membership at that time has not been established.

Counsel also contends that the respondent is not. deportable because the Government has not established Communist Party membership subsequent to his last entry on September 19, 1945, when he

returned to the United States as a member of the armed forces of

this country. As we have stated above, the Government has established that the respondent was a member of the Communist Party

from 1930 to 1936 but not that he was a member in 1946. 8 U.S.C.

589

1251(a) (6) (C), in effect, authorized the deportation of an alien who

has been, after entry, a member of the Communist Party of the

United States. Hence, the respondent would not be deportable on

the present record if membership were required to be established

subsequent to his last entry on September 19, 1945. The question

resolves itself, therefore, into whether the word "entry" in the statute can be said to mean either the respondent's original entry on

January 1, 1923, or his illegal reentry following his trip to Moscow

in November 1932. We have previously held that the original entry

may be used in a deportation proceeding under 8 U.S.C. 1251(a) (6)

(Matter of H , A-1743741, Int. Dec. No. 956 (1958)).

Counsel cited Talc Shan Fong v. United States, 359 U.S. 102

(1959) ; Petition of Zaino, 131 F. Supp. 456 (S.D.N.Y., 1955) ; and

In re Tehalcalian's Petition, 146 F. Supp. 501 (N.D. Cal., 1956).

These cases relate to petitions for naturalization which had been

filed under the Act of June 30, 1953 (67 Stat. 108; 8 U.S.C. 144a,

1952 ed., Supplement V). The particular question related to the

construction to be given to language which permitted the naturalization of an alien member of the armed forces who had been lawfully admitted to the United States and had been physically present

within the United States for a single period of at least one year at

the time of entering the armed forces. In re EcItiverri. 131 F. Supp.

674 (D. Hawaii, 1955), merely involved the question of whether the

alien had been lawfully admitted on December 21, 1946. These

cases offer no support to this contention of counsel.

The remaining case cited in this connection was Bonetti v. Rogers,

356 U.S. 691 (1958). In that case the alien entered the United

States in 1923 and was a member of the Communist Party from

1932 to 1936. He abandoned all rights of residence in the United

States on June 28, 1937. Subsequently, he obtained a quota immigration visa abroad and on October 8, 1938, he was admitted to the

United States for permanent residence. The court stated that the

Government was not seeking to annul any right of presence which

Bonetti acquired under the 1923 entry and that it could not be that

entry which the deportation statute contemplated since Bonetti

had abandoned all rights of residence under that entry. Counsel

interprets the Bonetti case as holding that Communist Party membership is a ground for deportation only if it occurred after "the

last legal entry." Bonetti does not hold that it is only the last entry

which governs since he had last entered in September 1939 after a

one-day visit to Mexico. Similarly, that case contains no language

indicating that a person who entered unlawfully and who thereafter became a member of the Communist Party could escape deportation under 8 U.S.C. 1251(a) (6). In other words, the case also

590

ru_ethat 1ceportation under Ihat statutory provision must

does not1

be predicated on a legal entry.

The word "entry" is defined in 8 U.S.C. 1101(a) (13) as any coming of an alien into the United States from a foreign port or place

with certain exceptions which are inapplicable to the case of this

respondent. The special inquiry officer adopted the four allegations

in the order to show cause as his four findings of fact. The only

finding concerning entry was that the respondent entered the United

States on January 1, 1923. Hence, it appears that the Government

is seeking to annul the respondent's "right of presence" acquired

under the 1923 entry. There is nothing in this record which would

indicate that the respondent had any intention of abandoning his

residence in the United States when he went to Moscow in 1932 to

attend the Lenin School or when he &parted for duty overseas as a

member of the United States Armed Forces on July 3, 1943. In

relation to this respondent's case, we hold that the word "entry" in

8 U.S.C. 1251(a) (6) refers to the respondent's entry on January 1,

1923, and that he is deportable because thereafter he was a member

of the Communist Party of the United States. The following order will be entered.

Order: It is ordered that the motion of the Service dated December 8, 1959, be granted and that our order of October 27, 1959,

be withdrawn.

It is further ordered that the respondent's appeal from the order

of deportation be dismissed.

591