author: Mr. Justice Goldberg Mr. Justice Clark,

text:
    ROSENBERG, DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE, v. FLEUTI.
    No. 248.
    Argued March 26, 1963.
    Decided June 17, 1963.

      Philip R. Monahan argued the cause for petitioner. With him on the brief were Solicitor General Cox, Assistant Attorney General Miller and Maurice A. Roberts.

      Hiram W. Kwan argued the cause and filed a brief for respondent.
   Mr. Justice Goldberg

delivered the opinion of the' Court.

Respondent Fleuti is a Swiss national who was originally admitted to this country for permanent residence on October 9, 1952, and has been here continuously since except for a visit of “about a couple hours” duration to Ensenada, Mexico, in August 1956. The Immigration and Naturalization Service, of which petitioner Rosenberg is the Los Angeles District Director, sought in April 1959 to deport respondent on the ground that at the time of his return in 1956 he “was within one or more of the classes of aliens excludable by the law existing at the time of such entry,” Immigration and Nationality Act of 1952, § 241 (a)(1), 66 Stat. 204, 8 U. S. C. § 1251 (a)(1). In particular, the Service alleged' that respondent had been “convicted' of a crime involving moral turpitude,” § 212 (a) (9), 66 Stat. 182, 8 U. S. C. § 1182 (a) (9), before his 1956 return, and had for that reason been excludable when he came back from his brief trip to Mexico. A deportation order issued on that ground, but it was discovered a few months later that the order was invalid, because the crime was a petty offense not of the magnitude encompassed within the statute. The deportation proceedings were thereupon reopened and a new charge was lodged against respondent: that he had been excludable at the time of his 1956 return, as an alien “afflicted with psychopathic personality,” §212 (a)(4), 66 Stat. 182, 8 U. S. C. § 1182 (a)(4), by reason of the fact that he was a homosexual. Deportation was ordered on this ground and Fleuti’s appeal to the Board of Immigration Appeals was dismissed, whereupon he brought the present action for declaratory judgment and review of the administrative action. It was stipulated that among the issues to be litigated was the question whether § 212 (a) (4) is “unconstitutional as being vague and ambiguous.” The trial court rejected,respondent’s contentions in this regard and in general, and granted the Government’s motion for summary judgment. On appeal, however, the United States Court of Appeals for the Ninth Circuit set aside the deportation order and enjoined its enforcement, holding that as applied to Fleuti § 212 (a).(4) was unconstitutionally vague in that homosexuality was not sufficiently encompassed within the term “psychopathic personality.” 302 F. 2d 652.

The Government petitioned this Court for certiorari, which we granted in order to consider the constitutionality of § 212 (a) (4) as applied to respondent Fleuti. 371 U. S. 859. Upon consideration of the case, however, and in accordance with the long-established principle that “we ought not to pass on questions of constitutionality . . . unless such adjudication is unavoidable,” Spector Motor Service, Inc., v. McLaughlin, 323 U. S. 101, 105; see also Alma Motor Co. v. Timken-Detroit Axle Co., 329 U. S. 129; Neese v. Southern R. Co., 350 U. S. 77; Mackey v. Mendoza-Martinez, 362 U. S. 384, we have concluded that there is a threshold issue of statutory interpretation in the case, the existence of which obviates.decision here as to whether §212 (a)(4) is constitutional. as applied to respondent.

That issue is whether Fleuti’s return to the United States from his afternoon trip to Ensenada, Mexico, in August 1956 constituted an “entry” within the meaning of § 101 (a) (13) of the Immigration and Nationality Act of. 1952, 66 Stat. 167, 8 U. S. C. § 1101 (a)(13), such that Fleuti was excludable for a condition existing at that time even though he had been permanently and continuously resident in this country for nearly four years prior thereto. Section 101 (a) (13), which has never been directly construed by this Court in relation to the kind of brief absence from the country that characterizes the present case, reads as follows:

“The term ‘entry’ means any coming of an alien into the United States, from a foreign port or place or from an outlying possession, whether voluntarily or otherwise, except that an alien having a lawful permanent residence in the United States shall not be regarded as making an entry into the United States for the purposes of the immigration laws if the alien proves to the satisfaction of the Attorney General that his departure to a foreign port or place or to an outlying possession was not intended or reasonably to be expected by him or his presence in a foreign port or place or in an outlying possession was not voluntary: Provided, That no person whose departure from the United States was occasioned by deportation proceedings, extradition, or other legal process - shall be held to be entitled to such exception.”

The question we must consider, more specifically, is whether Fleuti’s short visit to Mexico can possibly be regarded, as a “departure to a foreign port or place . . . [that] was not intended,” within the meaning x»f the-exception to the term “entry” created by the statute. Whether the 1956 return was within that exception is crucial, because Fleuti concededly was not excludable as a “psychopathic personality” at the time of his 1952 entry.

The definition of “entry” as applied for various purposes in our immigration laws was evolved judicially, only becoming encased in statutory form with the inclusion of § 101 (a) (13) in the 1952 Act. In the early cases there was developed a judicial definition of “entry” which had harsh consequences for aliens. This viewpoint was expressed most restrictively in United States ex rel. Volpe v. Smith, 289 U. S. 422, in which the Court, speaking through Mr. Justice McReynolds, upheld deportation of an alien who, after 24 years of residence in this country following a lawful entry, was held to be excludable on his return from “a brie^ visit to Cuba,” id., at 423. The Court stated that “the word ‘entry’ . . . includes any coming of an alien from a foreign country into the United States whether such coming be the first or any subsequent one.” Id., at 425. Although cases in the lower courts applying the strict re-entry doctrine to aliens who had. left the country for brief visits to Canada or Mexico or elsewhere were numerous, many courts, applied the doctrine in such instances with express reluctance and explicit recognition of its harsh consequences, and there were a few instances in which district judges refused to hold that aliens who had been absent from the country only briefly had made “entries” upon their return.

Reaction to the severe effects produced by adherence to the strict definition of “entry” resulted in a substantial inroad being made upon that definition in 1947 by a decision of the Second Circuit and a decision of this Court. The Second Circuit, in an' opinion by Judge Learned Hand, refused to allow a deportation which depended on the alien’s being regarded as having re-entered this country after having taken an overnight sleeper from Buffalo to Detroit on a route lying through Canada. Di Pasquale v. Karnuth, 158 F. 2d 878. Judge Hand'recognized that the alien “acquiesced in whatever route the railroad might choose to pull the car,” id., at 879, but held that it would be too harsh to impute the carrier’s intent to the alien, there being no showing that the alien knew he would be entering Canada. “Were it otherwise,” Judge Hand went on, “the alien would be subjected without means of protecting himself to the forfeiture of privileges which may be, and often are, of the most grave importance to him.” Ibid. If there were a duty upon aliens to inquire about a carrier’s route, it “would in practice become a trap, whose closing upon them would have no rational relation to anything they could foresee as-significant. We cannot believe that Congress meant to subject those who had acquired a residence, to the sport of chance, when the interests at stake may be so momentous.” Ibid. Concluding, Judge Hand said that if the alien’s return were held to be an “entry” under the circumstances, his “vested interest in his residence” would

“be forfeited because of perfectly lawful conduct which he could not possibly have supposed would result in anything of the sort. Caprice in the incidence of punishment is one of the indicia of tyranny, and nothing can be more disingenuous than to say that deportation in these circumstances is not punishment. It is well that we should be free to rid ourselves of those who abuse our hospitality.; but it is more important that the continued enjoyment of that hospitality once granted, shall not be subject to meaningless and irrational hazards.” Ibid.

Later the same year this Court, because of a conflict between Di Pasquale and Del Guercio v. Delgadillo, 159 F. 2d 130 (C. A. 9th Cir. 1947), granted certiorari in the latter case and reversed a deportation order affecting an alien who, upon rescue after his intercoastal merchant ship was torpedoed in the Caribbean during World War II, had been taken to Cuba to recuperate for a week before returning to this country. Delgadillo v. Carmichael, 332 U. S. 388. The Court pointed out that it was “the exigencies of war, not his voluntary act,” id., at 391, which put the alien on foreign soil, adding that “[w]e might as well hold that if he had been kidnapped and taken to Cuba, he made a statutory 'entry’ on his voluntary return. Respect for law does not thrive on captious interpretations.” Ibid. Since “[t]he stakes are indeed high and momentous for the alien who has acquired his residence here,” ibid., the Court held that

“[w]e will not attribute to Congress a purpose to make his right to remain here dependent on circumstances so fortuitous and capricious as those upon which the Immigration Service has here seized. The ha. ards to which we are now asked to subject the alien are too irrational to square with the statutory scheme.” Ibid.

The increased protection of returning resident aliens which-was brought about by the Delgadillo decision, both in its result and in its express approval of Di Pasquale, was reflected in at least two subsequent lower-court decisions' prior to the enactment of § 101 (a) (13). In Yukio Chai v. Bonham, 165 F. 2d 207 (C. A. 9th Cir. 1947), the court held that no “entry” had occurred after a ship carrying a resident alien back from seasonal cannery work in Alaska made an unscheduled stop in Vancouver, B. C., and in Carmichael v. Delaney, 170 F. 2d 239 (C. A. 9th Cir. 1948), the court held that a resident alien returning from wartime service with the United States Maritime Service during which he had stopped at many foreign ports made no “entry” because all of the movements of the ship to which he had been assigned were pursuant to Navy orders.

It was in light of all of these developments in the case law that § 101 (a) (13) was included in the immigration laws with the 1952 revision. As the House and Senate Committee Reports, the relevant material from which is quoted in the margin, make clear, the major congressional concern in codifying the definition of “entry” was with “the status of an alien who has previously entered the United States and resided therein . . . .” This concern was in the direction of ameliorating the harsh results visited upon resident aliens by the rule of United States ex rel. Volpe v. Smith, supra, as is indicated by the recognition that “the courts have departed from the rigidity of . . . [the earlier] rule,” and the statement that “[t]he bill . . . [gives] due recognition to the judicial precedents.” It must be. recognized, of course, that the only liberalizing decisions to which the Reports referred specifically were Di Pasquale and Delgadillo, and that there is no indication one way or the other in the legislative history of what Congress thought about the problem of resident aliens who leave the country for insignificantly short periods of time. Nevertheless, it requires but brief consideration of the policies underlying §101 (a) (13), and of certain other aspects of the rights of returning resident aliens, to conclude that Congress, in approving the judicial undermining of Volpe, supra, and the relief brought about by the Di Pasquale and Delgadillo decisions, could not have meant to limit the meaning of the exceptions it created in § 101 (a) (13) to the facts of those two cases.

The most basic guide to congressional intent as to the reach of the exceptions is the eloquent language of Di Pasquale and Delgadillo themselves, beginning with the recognition that the “interests at stake” for the resident alien are .“momentous,” 158 F. 2d, at 879, and that “[t]he stakes are indeed high and momentous for the alien who has acquired his residence here,” 332 U. S., at 391. This general premise of the two decisions impelled the more general conclusion that “it is . . . important that the continued enjoyment of . . . [our] hospitality once granted, shall not be subject to meaningless and irrational hazards.” 158 F. 2d, at 879. See also Delgadillo, supra, at .391. Coupling these essential principles of the two-decisions explicitly approved by Congress in enacting § 101 (a) (13) with the more general observation, appearing in Delgadillo as well as elsewhere, that “[d]eportation can be the equivalent of banishment or exile,” it is difficult to conceive that Congress meant its approval of the liberalization wrought by Di Pasquale and Delgadillo to be interpreted mechanistically to apply only to cases presenting factual situations identical to what was involved in those two decisions.

The idea that the exceptions to § 101 (a) (13) should be read nonrestrictively is given additional credence by the way in which the immigration laws define what constitutes “continuous residence” for an alien wishing to be naturalized. Section 316 of the 1952 Act, 66 Stat. 242-243, 8 U. S. C. § 1427, which liberalized previous law in some respects, provides that an alien who wishes to seek naturalization does not begin to endanger the five years of “continuous residence” in this country which must precede his application until he remains outside the .country for six months, and does not damage his position by cumulative temporary absences unless they total over half of the five years preceding the filing of his petition for naturalization. This enlightened concept of what constitutes a meaningful interruption of the continuous residence which must support a petition for naturalization, reflecting as it does a congressional judgment that an alien’s status is not necessarily to be endangered by his absence from the country, strengthens the foundation underlying a belief that the exceptions to § 101 (a) (13) should be read to protect resident aliens who are only briefly absent from the country. Of further, although less specific, effect in this regard is this Court’s holding in Kwong Hai Chew v. Colding, 344 U. S. 590, that the returning resident alien is entitled as a matter of due process to a hearing on the charges underlying any attempt to exclude him, a holding which supports the general proposition that a resident alien who leaves this country is to be regarded as retaining certain basic rights.

Given that the congressional protection of returning resident aliens in § 101 (a) (13) is not to be woodenly construed, we turn specifically to construction of the exceptions contained in that section as they relate to resident aliens who leave the country briefly. What we face here is another harsh consequence of the strict “entry” doctrine which, while not governed directly by Delgadillo, nevertheless calls into play the same considerations, pp. 454-456; 458-459, supra, which led to the results specifically approved in the Congressional Committee Reports. It would be as “fortuitous and capricious,” and as “irrational to square with the statutory scheme,” Delgadillo, supra, at 391, to hold that an alien may necessarily be deported because he falls into one of the classes enumerated in § 212 (a) when he returns from “a couple hours” visit to Mexico as it would have been to uphold the order of deportation in Delgadillo: Certainly when an alien like Fleuti who has entered the country lawfully and has acquired a residence here steps across a border and, in effect, steps right back, subjecting him to exclusion for a condition for which he Could not have been deported had he remained in the country seems to be placing him at the mercy of the “sport of chance” and the “meaningless and irrational hazards” to which Judge Hand alluded. Di Pasquale, supra, at 879. In making such a casual trip the alien would seldom be aware that he was possibly walking into a trap, for the insignificance of a brief trip to Mexico or Canada bears little rational relation to the punitive consequence of subsequent excludability. There are, of course, valid policy reasons for saying that an alien wishing to retain his classification as a permanent resident of this country imperils his status by interrupting his residence too frequently or for an overly long period of time, but we discern no rational policy supporting application of a re-entry limitation in all cases in which a resident alien crosses an international border for a short visit. Certainly if that trip is innocent, casual, and brief, it is consistent with all the discernible signs of congressional purpose to hold that ihe “departure '. . . was not intended” within the meapiing and ameliorative intent of the exception to § 101 (a) (13). Congress unquestionably has the power to exclude all classes of undesirable aliens from this country, and the courts are charged with enforcing such exclusion when Congress has directed it, but we do not think Congress intended to exclude aliens long resident in this country after lawful entry who have merely stepped across an international border and returned in “about a couple of hours.” Such a holding would be inconsistent with' the general purpose of Congress in enacting § 101 (a) (13) to ameliorate the severe effects of the strict “entry” doctrine.

We conclude, then, that it effectuates congressional purpose to construe the intent exception to § 101 (a) (13) as meaning an intent to depart in a manner which can be regarded as meaningfully interruptive of the alien’s permanent residence. One major factor relevant to whether such intent can be inferred is, of course, the length of time the alien is absent. Another is the purpose of the visit, for if the purpose of leaving the country is to accomplish some object which is itself contrary to some policy reflected in our immigration laws, it would appear that the interruption of residence thereby occurring would properly be regarded as meaningful. Still another is whether the alien has to procure any travel documents in order to make his trip, since the need to obtain such items might well cause the alien to consider more fully the implications involved in his leaving the country. Although the operation of these and other possibly relevant factors remains to be developed “by the-gradual process of judicial inclusion and exclusion,” Davidson v. New Orleans, 96 U. S. 97, 104, we declare today simply that an innocent, casual, and brief excursion by a resident alien outside this country’s borders may not have been “intended” as a departure disruptive of his resident alien status and therefore may not subject him to the consequences of an “entry” into' the country on his return. The more civilized application of our immigration laws given recognition by Congress in § 101 (a) (13) and other provisions of the 1952 Act protects the resident alien from unsuspected risks and unintended consequences pf such a wholly innocent action. Respondent here, so'far as appear^ from the record, is among those to be protected. However, because attention waá not'previously focused upon the application of § 101 (a) (13) to the case, the record contains no detailed description or characterization of his trip to Mexico in 1956, except for his testimony that he was gone “about a couple hours,” and that he was “just visiting; taking a trip.” That being the case, we deem it appropriate to remand the case for further consideration of the application of § 101 (a) (13) to this ease in light of our discussion herein. If it is determined that respondent did not “intend” to depart in the sense contemplated by § 101 (a) (13), the deportation order will not stand and adjudication of the constitutional issue reached by the court below will be obviated. The judgment of the Court of Appeals is therefore vacated and the case remanded with directions that the parties be given leave to amend their pleadings to putin issue the question of “entry” in accordance with the foregoing, and for further proceedings consistent herewith.

So ordered.

Mr. Justice Clark,

with whom Mr. Justice Harlan,... Mr. Justice Stewart and Mr. Justice White join,

dissenting.

I dissent from the Court’s judgment and' opinion because “statutory construction” means to me that the Coult can construe statutes but not that it can construct them. The latter function is reserved to the Congress, which clearly said what it meant and undoubtedly meant what it said when it defined “entry” for immigration purposes as follows:

“The term ‘entry’ means any coming of an alien into the United States, from a foreign port or place or from an outlying possession, whether voluntarily or otherwise, except that an alien having a lawful permanent residence in the United States shall not be regarded , as making an entry into the United States for the purposes of the immigration laws if the alien proves to the satisfaction of the Attorney General that his departure to a foreign port or place or to an outlying possession was not intended or reasonably to be expected by him or his presence in a foreign port or place or in an outlying possession was not voluntary. ...” 8 U. S. C. § 1101 (a) (13).

That this definition of “entry” includes the respondent’s entry after his brief trip to Mexico in 1956 is a conclusion which seems to me inescapable. The conclusion is compelled by the plain meaning of the statute, its legislative history, and the consistent interpretation by the federal courts. Indeed, the respondent himself did not even question that his return to the United States was an “entry” within the meaning of § 101 (a) (13). Nonetheless, the Court has rewritten the Act sua sponte, creating a definition of “entry” which wás suggested by many organizations during the hearings prior to its enactment but which was rejected by the Congress. I believe the authorities discussed in the Court’s opinion demonstrate that “entry” as defined in § 101 (a) (13) cannot mean what the Court says it means, but I will add a few words of explanation.

The word “entry” had acquired a well-defined meaning for immigration purposes at the time the Immigration and Nationality Act was passed in 1952. The leading case was United States ex rel. Volpe v. Smith, 289 U. S. 422 (1933), which held that an alien who had resided continuously in the United States for 26 years except for a brief visit to Cuba made an “entry” at the time of his return from Cuba. The Court there stated that the word “entry” in the Immigration Act of 1917. “includes any coming of an alien from a foreign country into the United States whether such coming be the first or any subsequent one.” Id., at 425. That conclusion was based on sound authority, since the'Court had earlier held that a resident alien who crossed the river ’from Detroit to Windsor, Canada, and returned on the same day made an “entry” upon his return. Lewis v. Frick, 233 U. S. 291 (1914).

The federal courts in numerous cases were called upon to apply this definition of “entry” and did so consistently, specifically recognizing that the brevity of one’s stay outside the country was immaterial to the question of whether his return was an “entry.” See, e. g., United States ex rel. Kowalenski v. Flynn, 17 F. 2d 524 (D. C. W. D. N. Y. 1927); Schoeps v. Carmichael, 177 F. 2d 391 (C. A. 9th Cir. 1949). A related but obviously distinguishable question did create difficulties for .the courts, however, leading to conflicting opinions among the Circuits as to whether á resident alien makes an “entry” when he had no intent to leave the country or did not leave voluntarily. It was decided by this Court in Delgadillo v. Carmichael, 332 U. S. 388 (1947), which held that an alien whose ship had been torpedoed and sunk, after which he was rescued and taken to Cuba for a week, did not make an “entry” on his return to the United States. The Court discussed the Volpe case but distinguished it and others on the ground that “those were cases where the alien plainly expected or planned to enter a foreign port or place. Here he was catapulted into the ocean, rescued, and taken to Cuba. He had no part in selecting the foreign port as his destination.” Id., at 390. The Court- specifically relied on Di Pasquale v. Karnuth, 158 F. 2d 878 (C. A. 2d Cir. 1947), where an alien who had ridden a sleeping car from Buffalo to Detroit, without knowledge that the train’s route was through Canada, was held not to have made an “entry” upon his arrival in Detroit.

These cases and others discussed by the Court establish the setting in which the Immigration and Nationality Act was passed in 1952. The House and Senate reports quoted by the Court show that the Congress recognized the courts’ difficulty with the rule that “any coming” óf an alien into the United States was an “entry,” even when the departure from the country was unintentional or involuntary. The reports discuss the broad rule of the Volpe case and the specific limitations of the Di Pasquale and Delgadillo cases, citing, those cases by name, and conclude with the following language:

“The bill defines the term ‘entry’ as precisely as practicable, giving due recognition to the judicial precedents. Thus any coming of an alien from a foreign port or place or an outlying possession into the United States is to be considered an entry, whether voluntary or otherwise, unless the Attorney General is satisfied that the departure of the alien, other than a deportee, from this country was unintentional or was not voluntary.” H. R. Rep. No. 1365, 82d Cong., 2d Sess. 32; S. Rep. No: 1137, 82d Cong., 2d Sess. 4.

Thus there is nothing in the legislative history or in the statute itself which would exempt the respondent’s return from Mexico from the definition of “entry.” Rather, the statute in retaining the definition expressed in Volpe seems clearly to cover respondent’s entry, which occurred after he knowingly left the United States in order to travel to a city in Mexico. That the trip may have been “innocent, casual, and brief” does not alter the fact that, in the words of the Court in Delgadillo, the respondent “plainly expected or planned to enter a foreign port or place.”. 332 U. S., at 390.

It is true that this application of the law to a resident alien may be harsh, but harshness is a far cry from the irrationality condemned in Delgadillo, supra, at 391. There and in Di Pasquale contrary results would have meant that a resident alien, who was not deportable unless he left the country and reentered, could be deported as a result of circumstances either beyond his control or beyond his knowledge. Here, of course, there is no claim that respondent 'did not know he was leaving the country to enter Mexico and, since one is presumed to know the law, he knew that his brief trip and reentry would render him deportable. The Congress clearly has chosen so to apply the long-established definition, and this Court cannot alter that legislative determination in the guise of statutory construction. Had the Congress not wished the definition of “entry” to include a return after a brief but voluntary and intentional trip, it could have done so. The Court’s discussion of § 316 of the Act shows that the Congress knows well how to temper rigidity when it wishes. Nor can it be said that the Congress was unaware of the breadth of its definition. Even aside from the evidence that it was aware of the judicial precedents, numerous organizations unsuccessfully urged that the definition be narrowed to accomplish what the Court does today. Thus, it was urged that the Act’s definition of “entry” “should, we believe, be narrowed so that it will not be applicable to an alien returning from abroad, after a temporary absence, to an unrelinquished domicile here.” Other groups complained also that “[t]he term ‘entry’ is defined to mean any coming of an alien into the United States. It is recommended that this be narrowed to provide that a return, after a temporary absence, to an unrelinquished domicile, shall not constitute a new entry.” Despite such urging, however, the Congress made no change in the definition. Further, this Court in 1958 specifically recognized that the word “entry” retained its plain meaning, stating that “a resident alien who leaves the country for any period, however brief, does make a new entry om his return . . . .” Bonetti v. Rogers, 356 U. S. 691, 698.

All this to the contrary notwithstanding, the Court today decides that one does not really intend to leave the country unless he plans a long trip, or his journey is for an illegal purpose, or he needs travel documents in order to make the trip. This is clearly contrary to the definition in the Act and to any definition of “intent” that I was taught.

What the Court should do is proceed to the only question which either party sought to resolve: whether-the deportation order deprived respondent of due process of law. in that the term “afflicted with psychopathic personality,” as it appears in § 212 (a) (4) of the Act, is unconstitutionally vague. Since it fails to do so, I must dissent.

       Although there is dictum on the point of Bonetti v. Rogers, 356 U. S. 691, 698-699, We regard it as not fully considered, since resolution of the issue was not crucial to decision of the case. Compare Shaughnessy v. United States ex rel. Mezei, 345 U. S. 206, 213.

       The 1952 Act became effective on December 24, 1952, and Fleuti entered the country for permanent residence on October 9, 1952, a fact which is of significance because §241 (a)(1) of the Act only commands the deportation of aliens “excludable by .the law existing at' the time of such entry ...” Hence, since respondent’s homosexuality did not make him excludable by any law existing at the time of his 1952 entry, it is critical to determine whether his return from a few hours in Mexico in 1956 was an “entry” in the statutory sense. If it was not, the question whether § 212 (a) (4) could constitutionally be applied to him need not be resolved.

       Previous cases which contain the same general kind of language, but which are distinguishable on their facts, are Lapina v. Williams, 232 U. S. 78; Lewis v. Frick, 233 U. S. 291; United States ex rel. Claussen v. Day, 279 U. S. 398; United States ex rel. Polymeris v. Trudell, 284 U. S. 279; and United States ex rel. Stapf v. Corsi, 287 U. S. 129. The only one of these cases which involved an absence from the country as extremely brief as Fleuti’s is Lewis v. Frick, and in that case deportation was premised on the fact that on his return from the trip in issue the alien had sought to bring a woman into the country for an immoral purpose. 233 U. S., at 297-300.

        E. g., Ex parte Parianos, 23 F. 2d 918 (C. A. 9th Cir. 1928); United States ex rel. Medich v. Burmaster, 24 F. 2d 57 (C. A. 8th Cir. 1928); Cahan v. Carr, 47 F. 2d 604 (C. A. 9th Cir. 1931), cert. denied, 283 U. S. 862; Zurbrick v. Borg, 47 F. 2d 690 (C. A. 6th Cir. 1931); Taguchi v. Carr, 62 F. 2d 307 (C. A. 9th Cir. 1932); Ward v. De Barros, 75 F. 2d 34 (C. A. 1st Cir. 1935); Guarneri v. Kessler, 98 F. 2d 580 (C. A. 5th Cir. 1938), cert. denied, 305 U. S. 648; Del Castillo v. Carr, 100 F. 2d 338 (C. A. 9th Cir. 1938); United States ex rel. Kowalenski v. Flynn, 17 F. 2d 524 (D. C. W. D. N. Y. 1927); United States ex rel. Siegel v. Reimer, 23 F. Supp. 643 (D. C. S. D. N. Y.), aff’d, 97 F. 2d 1020 (C. A. 2d Cir. 4938).

        E. g., Jackson v. Zurbrick, 59 F. 2d 937 (C. A. 6th Cir. 1932) ; Zurbrick v. Woodhead, 90 F. 2d 991 (C. A. 6th Cir. 1937); United States ex rel. Ueberall v. Williams, 187 F. 470 (D. C. S. D. N, Y. 1911); Guimond v. Howes, 9 F. 2d 412 (D. C. D. Maine 1925); Ex parte Piazzola, 18 F. 2d 114 (D. C. W. D. N. Y. 1926).

        In re Michael Bonadino, D. C. W. D. N. Y., unreported, Dec. 20, 1924; United States ex rel. Valenti v. Karmuth, 1 F. Supp. 370 (D. C. N. D. N. Y. 1932); Annello ex rel. Annello v. Ward, 8 F. Supp. 797 (D. C. D. Mass. 1934).

       It should be pointed out, however, that the Ninth Circuit has, subsequent to the decisions cited in the text, held specifically that length of time outside the country is still irrelevant to the question of “entry.” Schoeps v. Carmichael, 177 F. 2d 391 (C. A. 9th Cir. 1949), cert. denied, 339 U. S. 914; Pimental-Navarro v. Del Guercio, 256 F. 2d 877 (C. A. 9th Cir. 1958).

       The House and Senate Committee Reports preceding enactment of the bill both contained the following relevant paragraph:
      “Section 101 (a)(13) defines the term ‘entry.’ Frequent reference is made to the term ‘entry’ in the immigration laws, and many consequences relating to the entry and departure of aliens flow from its use, but the term is not precisely defined in the present law. Normally an entry occurs when the alien crosses the border of the United States and makes a physical entry, and the question of whether an entry has been made is susceptible of a precise determination. However, for- the purposes of determining the effect of a subsequent entry upon the status of an alien who has previously entered the United States and resided therein, the preciseness of the term ‘entry’ has not been found to be as apparent. Earlier judicial constructions of the term in the immigration laws, as set forth in Volpe v. Smith (289 U. S. 422 (1933)), generally held that the term ‘entry’ included any. coming of an alien from a, foreign. country to the United States whether such coming be the first or a subsequent one. More recently, the courts have departed.from the rigidity of that rule and have recognized that an alien does not make an entry upon his return to the United States from a foreign country where he had no intent to leave the United States (Di Pasquale v. Karnuth, 158 F. 2d 878 (C. C. A. 2d 1947)), or did not leave the country voluntarily (Delgadillo v. Carmichael, 332 U. S. 388 (1947)). The bill defines the term ‘entry’ as precisely as practicable, giving due recognition to the judicial precedents. Thus any. coming of an alien from a foreign port or place or an outlying possession into the United States is to be considered an entry, whether voluntary or otherwise, unless the Attorney General is satisfied that the departure of the alien, other than a deportee, from, this country was unintentional or was not voluntary.” H. R. Rep. No. 1365, 82d Cong., 2d Sess. 32 (1952) ; S. Rep. No. 1137, 82d Cong., 2d Sess. 4 (1952).

       See Ng Fung Ho v. White, 259 U. S. 276, 284; Bridges v. Wixon, 326 U. S. 135, 147; Fong Haw Tan v. Phelan, 333 U. S. 6, 10; Barber v. Gonzales, 347 U. S. 637, 642-643.

       Compare Bernard, American Immigration Policy (1950), 296; Gordon, When Does an Alien Enter the United States? 9 Fed. B. J. 248, 250, 258-259 (1948); Hofstein, The Returning Resident Alien, 10 Intra. L. Rev. 271, 273, 280 (1955); Konvitz, Civil Rights in Immigration (1953), 92; Maslow, Recasting Our Deportation Law: Proposals for Reform, 56 Col. L. Rev. 309, 327-329 (1956); Report of the President’s Commission on Immigration and Naturalization, Whom We Shall Welcome (1953), 179-180, 199-200; Note, Rights of Aliens in Exclusion Proceedings, 3 Utah L. Rev. 349, 350 n. 20 (1953); Note, Limitations on Congressional Power to Deport Resident Aliens Excludable as Psychopaths at Time of Entry, 68 Yale L. J. 931,937-938 n. 25 (1959).

       Statement of Edward J. Ennis, Representing the American Civil Liberties Union, printed in Joint Hearings before the Subcommittees of the Committees on the Judiciary on S. 716, H. R. 2379, and H. R. 2816, 82d Cong., 1st Sess. 143.

       Recommendations and Suggestions With Respect to Titles I and II of S. 716 and H. R. 2379, printed in Joint Hearings, supra, note 1, at 617. See also Testimony of Stanley H. Lowell on Behalf of Americans for Democratic Action, id., at 445.

       See, e. g., Morissette v. United States, 342 U. S. 246 (1952); Hall, General Principles of Criminal Law (2d ed: 1960), 105-145;. Prosser, Torts (2d ed. 1955), 29-30.


source: Caselaw Access Project

author: Mr. Justice Goldberg Mr. Justice White,

license: Public Domain

text:
    GASTELUM-QUINONES v. KENNEDY, ATTORNEY GENERAL.
    Nos. 39 and 293.
    Argued March 19, 1963.
    Decided June 17, 1963.

      David Rein argued the cause for petitioner. With him on the briefs was Joseph Forer.

      Bruce J. Terris argued the cause for respondent- With him on the brief were Solicitor General Cox,- Assistant Attorney General Miller, Beatrice Rosenberg and Julia P. Cooper.

   Mr. Justice Goldberg

delivered the opinion of the Court.

This case, stripped of its procedural complexities, raises the question whether an alien long resident in this country is deportable-because, for a period during 1949 and 1950, he paid' dues to and attended several meetings of a club of the Communist Party in Los Angeles. The Immigration and Naturalization Service sought and obtained an order for petitioner’s deportation on the ground that these facts established petitioner’s membership in the. Communist Party of the United States within the meaning of § 241 (a)(6)(C) of the Immigration and Nationality Act of 1952, 66 Stat. 163, 204-205, 8 U. S. C. § 1251 (a)(6)(C). Whether membership was so established turns on the application of- two decisions of this Court which construed the immediate predecessor of. §241 (a)(6)(C), § 22 of the Internal Security Act of 1950, 64 Stat. 987, 1006, 1008. In Galvan v. Press, 347 U. S. 522, 528, it was held that deportability on the ground of Communist Party membership turns on whether the alien was “aware that he was joining an organization known as the Communist Party which operates as a distinct and active political organization . . . ,” and in Rowoldt v. Perfetto, 355 U. S. 115, 120, it was held, in elaboration of Galvan, that the alien must have had .a “meaningful association” with the Communist Party-in order to be deportable. The evidence, in the record-, to which the standards set forth in these decisions must be applied, was all elicited at hearings before the Service’s special inquiry officer in 1956. This evidence consists solely of the testimony of two government witnesses, petitioner having chosen to introduce no evidence.

The special inquiry officer entered a deportation order against petitioner on February 28, 1957. The Board of Immigration Appeals dismissed petitioner’s appeal on November 14, 1957, on the ground that the record established his voluntary membership in the Communist Party. A few weeks later, this Court decided Rowoldt v. Perfetto, supra, and petitioner asked the Board to reconsider its decision in light of the opinion in that case. The Board denied the application, pointing out that the record as it stood still supported the deportation order. It did, however, order a reopening of the proceedings before the special inquiry officer so that petitioner might have a chance to offer rebuttal testimony and thereby bring himself, possibly, within the framework of the Rowoldt decision.

At the reopened hearing, however, petitioner’s counsel took the position that on the record as„ it stood the Government had failed to establish Communist Party membership in the sense contemplated by the Rowoldt decision, and therefore chose not to offer further evidence. The Government also offered no additional evidence. The special inquiry officer reaffirmed his previous decision and the Board of Immigration Appeals on May 18, 1959, dismissed petitioner’s appeal. Petitioner thereupon filed an action in Federal District Court for review of the deportation order. That court granted the Government’s motion for summary judgment and dismissed the action. The United States Court of Appeals for the District of Columbia Circuit affirmed the dismissal, 109 U. S. App. D. C. 267, 286 F. 2d 324, and this Court denied a petition for certiorari, 365 U. S. 871.

Petitioner read the Court of Appeals’ opinion as suggesting that § 241 (a)(6)(C) would not have applied to him if he had introduced evidence that he had not personally advocated the forcible overthrow of the Government. He therefore moved before the Board of Immigration Appeals that the deportation hearing be reopened to permit him to introduce evidénce that he did not personally advocate the violent overthrow of the Government. The Board of Immigration Appeals heard oral argument on the motion and, on August 1,1961, denied it.

Petitioner then brought the present action in the District Court, praying that the Board be ordered to reopen the deportation hearing and that the Attorney General and his agents be enjoined from enforcing the outstanding deportation order. A preliminary injunction to the latter effect was also requested. The court denied the motion for preliminary injunction on August 14, 1961, and the Court of Appeals summarily affirmed this denial on September 13. Petitioner filed a petition for certiorari in this Court to review the denial of preliminary injunctive relief, and The Chief Justice ordered deportation stayed until the petition should be disposed of. Meanwhile, summary judgment was granted the Government on the merits of petitioner’s complaint, which was thereupon dismissed, a disposition which was summarily affirmed by the Court of Appeals on February 23, 1962. Petitioner filed an additional petition for certiorari to review this judgment. We granted both petitions. 371 U. S. 860. No. 39 involves the preliminary injunction, and No. 293 relates to the ultimate dismissal of petitioner’s complaint on the merits.

In determining whether, on the record before us, the Government has fulfilled its burden of proving that petitioner was a “member” of the Communist Party of the United States within the meaning of § 241 (a) (6) (C), we. must recognize at the outset what the history of the times amply demonstrates, that some Americans have joined the Communist Party without understanding its nature as a distinct political entity. The Bowoldt decision, as well as other decisions of this Court, reflects that there is a great practical and legal difference between those who firmly attach themselves to the Communist Party being aware of all of the aims and purposes attributed to it, and those who temporarily join the Party, knowing nothing of its international relationships and believing it to be a group solely trying to remedy unsatisfactory social or economic conditions, carry out trade-union objectives, eliminate racial discrimination, combat unemployment, or alleviate distress and poverty. Although the Court specifically recognized in Galvan, supra, at 528, that “support, or even demonstrated knowledge, of the Communist Party’s advocacy of violence was not intended to be a prerequisite to deportation;” it did condition deportability on the alien’s awareness of the “distinct and active political” nature of the Communist Party,ibid. This, together with the requirement % “meaningful association” enunciated in Bowoldt, supra, at 120, led the Court to declare later that in Galvan and Bowoldt it had “had no difficulty in interpreting ‘membership’ . . . as meaning more than the mere voluntary listing of a person’s name on Party rolls.” Scales v. United States, 367 U. S. 203, 222.

The operation in practice of this wise distinction is illustrated by Rowoldt, to which .we think the present case is analogous on its facts. In Rowoldt, the sole evidence in the record was Rowoldt’s statement to an inspector of the Immigration and Naturalization Service, in the course of which he admitted voluntary membership but said nothing which indicated that he had been aware while a member that the Communist Party was a “distinct' and active political organization.” Mr. Justice Frankfurter, speaking for the Court, concluded that “[f]rom his own testimony in 1947, which is all there is, the dominating impulse to his ‘affiliation’ with the Communist Party may well have been wholly devoid of any‘political’ implications.” 355 U. S., at 120. The Court therefore decided that the record was too insubstantial to support the order of deportation. The same is true here. The testimony of the two government witnesses establishes only that between either late 1948 or early 1949 and the end of 1950 or early 1951 petitioner was a dues-paying member of a club of the Communist Party in Los Angeles, and that he attended about 15 meetings of his Party club, one executive meeting of the group, apd one area Party convention.

One witness, Scarletto, testified to having joined the Communist Party in Los Angeles in 1947 “under the supervision of the- F. B. I.” At a date which he did not recall, but which he thought was in late 1948 or early 1949, Scarletto was assigned to the El Sereno Club, which “was one of the large divisions [of the Communist Party] which was split up later.” There were “approximately 32 members in the El Sereno Club at that time,” and Scarletto was the press director of the club. Scarletto was only in the El Sereno Club for “a few months” when it “was split up into smaller units for security reasons.” During these few months, Scarletto testified, he was introduced to petitioner at an El Sereno Club meeting and saw him there one other time. Since attendance at club meetings was restricted to Communist Party members, Scarletto inferred that petitioner was a member of the Party.

Scarletto was next assigned, some time in early 1949, to the Mexican Concentration Club, which, he testified, was also a unit of the Communist Party of the United States. Petitioner, he said, was put into the same new group. Scarletto shortly became organization secretary of this group, a job which, among other things, gave him the duty of collecting dues, and he testified that he collected dues from petitioner. Scarletto left the Concentration Club in early 1951, when he was transferred by the Party “to the underground.”

Concentration Club meetings were held weekly. Petitioner, Scarletto testified, “just went once in awhile^ but he was a regular member.” Over the approximately two-year period of Scarletto’s membership in the Concentration Club, during which he attended “most” of its meetings, he testified that he saw petitioner at “about 15” meetings. All but “a couple” of these, he said, were restricted to Communist Party members. Although meetings were held in members’ homes, Scarletto did not recall any at petitioner’s home and said that he himself had never been in petitioner’s home. Scarletto did not remember whether petitioner ever held “an official position” in either the El Sereno Club or the Mexican Concentration Club. Finally, Scarletto, who attended Communist Party conventions in the Los Angeles area with some regularity, recalled seeing petitioner at one such convention. He said he himself attended these conventions in an official capacity, but did not know in what capacity petitioner attended, except that membership in the Party was a prerequisite to attendance.

The-other witness, one Elorriaga, testified that he, too, joined the Communist Party in Los Angeles in 1947. He, too; was a member of the El Sereno Club, but did not meet petitioner until he was assigned to a smaller unit “known as the Forty-Fifth Concentration,” which apparently was the same entity as the “Mexican Concentration Club” discussed by Scarletto. Elorriaga did not recall petitioner as being a member of the El Sereno Club. Elorriaga’s testimony as to the frequency of petitioner’s attendance at Concentration Club meetings was contradictory. After having testified on direct examination that he saw petitioner at three or four meetings a month, Elorriaga radically revised his estimate the next day on redirect examination to say that he saw petitioner at “about two or three meetings” in total, adding that “I was present at one meeting in 1951 and another- in -1949 with . . . [petitioner].” The over-all lack of precision of Elorriaga’s answers to questions concerning petitioner' is also suggested by a comparison of his assertion that petitioner must have been an official of the club “because he attended a few [of its] executive meetings,” with his immediately following admission that he himself remembered being present at only one executive meeting with petitioner.

The evidence contained in the record is thus extremely insubstantial in demonstrating the “meaningful.” character of petitioner’s association with the Party, either directly, by showing that he was, during the time of his membership, sensible to the Party’s nature as a political organization, or indirectly, by showing that he engaged in Party activities to a degree substantially supporting an inference of his awareness of the Party’s political aspect. In one sense, indeed, this record is even less substantial in support of the deportation order than was the record in Rowoldt, because, although Rowoldt stated that he joined thinking the Party’s aim was “to get something to eat for the people,” 355 U. S., at 117, it was also-true that he had worked as a salesman in a bookstore which was “an official outlet for communist literature,” id., at 118, and that he showed some awareness of Communist philosophy and tactics in response to questioning by the immigration inspector. Bearing in mind that the ultimate burden in deportation cases such as this is on the Government, it is apparent that- here, as in Rowoldt, there is insufficient evidence to support the deportation order.

As against the slimness of the evidence that it introduced, the Government seeks the. benefit of an inference, based upon petitioner’s failure' to produce or elicit evidence in response to the Government’s proof that he paid dues to the Party and attended some meetings, that his association with the Party was “more than the mere voluntary listing of . . . [his] name on Party rolls.” Scales, supra, at 222. It is a sufficient answer to the Government’s argument to point out that, as recognized in Galvan, supra, at 530, and Rowoldt, supra, at 120, deportation is a drastic sanction,' one which can destroy lives and disrupt families, and that a holding of deportability must therefore be premised upon evidence of “meaningful association” more directly probative than a mere inference based upon the alien’s silence. Moreover, the fact is that the Government might well have asked its two witnesses about petitioner’s knowledge of the Party as a political entity and about the qualitative nature of petitioner’s activities in the Party. If it were the fact that petitioner was more aware of the Party’s nature than this.record shows, the Government’s witnesses could likely have given testimony, either about petitioner’s knowledge or about his Party activities, which would have tended- to prove that awareness. With the facts concerning the nature of petitioner’s association perhaps near at hand, and in light of both the possibility that those facts would not be consistent with a finding of “meaningful association” and the harshness of the deportation sanction, we cannot sustain petitioner’s deportation upon a bare inference which the Government would have us derive from petitioner’s failure to introduce evidence in response to the Government’s proof of his dues-paying membership and sometime attendance at Party meetings.

We are hence confronted with a case in which the Government did not sustain its burden of establishing that petitioner was a meaningful member of the Party as contemplated by § 241 (a)(6)(C). To paraphrase the holding of Rowoldt, supra, at 120: from the testimony of the two government witnesses, which is all there is, the dominating impulse to petitioner’s affiliation with the Communist Party may well have been wholly devoid of any “political” implications. We hold that, on the record before us, the deportation order against petitioner is not supported by substantial evidence, Universal Camera Corp. v. Labor Board, 340 U. S. 474, and therefore cannot stand.

Judgment reversed.

Mr. Justice White,

whom Mr. Justice Clark, Mr. Justice Harlan and Mr. Justice Stewart join,

dissenting.

Petitioner is charged with being an alien who after entry had become a member of the Communist Party, and thus subject to deportation under § 241 (a)(6)(C) of the Immigration and Nationality Act of 1952. Hearings were held from April through July 1956, at which the. United States introduced testimony of two witnesses as to petitioner’s affiliation with Communist Party units in Los Angeles from 1949 to 1951, but petitioner refused to answer any question concerning his membership in the Communist Party. The special inquiry officer found petitioner deportable under § 241 (a)(6)(C) and . the .Board of Immigration Appeals dismissed the petitioner’s appeal on November 14, 1957, holding that the evidence established a prima facie case of membership which petitioner made no attempt to rebut. On January 13, 1958, after this Court’s decision in Rowoldt v. Perfetto, 355 U. S. 115, the Board of Immigration Appeals reconsidered petitioner’s case in light of Rowoldt. Noting that, unlike the petitioner in Rowoldt, petitioner here had offered no evidence which would upset the normal inference of political awareness flowing from his' two-year association with the Communist Party at a time when the purposes and activities of the Party were a matter of public record, the Board granted petitioner’s request to reopen the proceedings in order that he might present testimony which would bring him within Rowoldt. At the reopened hearings, however, petitioner offered no evidence but merely introduced a statement asserting that the existing record did not establish meaningful membership and suggesting that the Government present additional evidence. The special inquiry officer, after reexamining the record, adhered to his original conclusion that the evidence showed voluntary, meaningful membership in the Communist Party. On appeal to the Board of Immigration Appeals, that body, after examining the record again, reaffirmed its decision that the testimony established meaningful membership within the Rowoldt case. Petitioner filed a petition for declaratory and injunctive relief in the District Court to review the deportation order and, after still another examination of the order and the supporting record, the court granted the Board’s motion for summary judgment. The Court of Appeals held that “the findings of the Board that [petitioner’s] Party membership was meaningful is established by the record,” 109 U. S. App. D. C. 267, 271, 286 F. 2d 824, 828, and affirmed. In a petition for certiorari to this Court, petitioner argued that the evidence was insufficient to support the deportation order, but certiorari was denied, 365 U. S. 871.

Petitioner thereupon commenced the proceedings which bring the case before us today. He filed a motion to reopen the proceedings before the Board of Immigration Appeals on the ground that he should be permitted to testify that he never personally advocated the overthrow of the Government by force and violence. While not disputing that an inquiry into whether an alien personally advocated violent overthrow is immaterial in deportation proceedings, Galvan v. Press, 347 U. S. 522, petitioner nonetheless insisted upon introducing the testimony because, as he read the opinion of the Court of Appeals, 109 U. S. App. D. C. 267, 286 F. 2d 824, proof that an alien did not personally espouse the cause of violent overthrow of the Government would save him from deportation under § 241 (a)(6)(C). The Board of Immigration Appeals declined to reopen the proceedings again, because in its view the Court of Appeals did not announce the rule on which petitioner relied and because Galvan v. Press and Rowoldt v. Perfetto so clearly held that proof of such a personal commitment to the tenet of violent overthrow was not required for deportation proceedings. After reviewing the record for the third time, the Board concluded that “there is uncontradicted testimony to show that a voluntary meaningful membership existed.” Petitioner filed his second action for judicial review, contending that the refusal to reopen the hearings so that he could submit his testimony was “erroneous, unconstitutional and illegal.” The District Court, finding no abuse of discretion in the Board’s refusal to reopen the proceedings, declined to disturb the. deportation order: The Court of Appeals affirmed, the case was brought here and the Court now reverses. I respectfully dissent.

First. The issue tendered to the District Court was whether the Board of Immigration Appeals should have reopened the record to allow petitioner to present evidence of the kind stated in the affidavit attached^ to the complaint. Both the District Court and the Court of Appeals upheld the Board’s' refusal to reopen- the proceedings. The Court here does not disagree, nor does it suggest that the evidence which petitioner sought to add to the record was in any way material to the question of deport-ability under the statute. Instead, it decides that the record does not show meaningful or voluntary membership, thus resurrecting an issue supposedly settled in previous proceedings in this case, an issue which the courts below time after time decided contrary to the view now taken by this.Court and an issue which the Court itself previously declined to review by certiorari. A wise use of the Court’s powers would confine decision here to the issue presented to the District Court, rather than afford repeated review of previously decided matters and so call into question the integrity of the administrative and judicial process.

Second. Shaughnessy v. Pedreiro, 349 U. S. 48, held that an alien could, by bringing an action for declaratory judgment and injunction, secure judicial review of a “final” order of deportation under § 10 of the Administrative Procedure Act. This is such an action, as the complaint expressly states, and affirmance of the order of deportation is required in this case unless the administrative findings are not supported by substantial evidence. Although the order must “be set aside when the record before a Court . . . clearly precludes the Board’s decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or both,” review under § 10 does not “mean that even as to matters not requiring expertise a court may displace the Board’s choice between, two fairly conflicting views, even though the court would justifiably have.made a different choice had the matter been before it de novo.” Universal Camera Corp. v. Labor Board, 340 U. S. 474, 488, 490. “It is . . . immaterial that the facts permit the drawing of diverse inferences. The- [agency] alone is charged with the duty of initially selecting the inference which seems most reasonable and [its] choice, if otherwise sustainable, may not be disturbed by a reviewing court.” Cardillo v. Liberty Mutual Co., 330 U. S. 469, 478.

If Galvan v. Press and Rowoldt v. Perfetto are not to be overruled, or substantially modified, neither of which petitioner has requested here, and if the substantial evidence rule is not tó be abandoned, there is ample basis on this record to sustain the finding of voluntary, meaningful membership. Petitioner was a regular dues-paying member of the Party, at least from 1949 to 1951, and there is no evidence that his membership terminated at the latter date. When the Party was reorganized into smaller units, petitioner was transferred to a flew group and he was seen 15 times (“it could be 15, it could be more”) at meetings of the unit which were restricted to Party members. “He was an official of the club because he attended a few executive meetings of the Forty-Fifth,” at one of which he was seen by the government witness. This meeting was “either organizational or to- form an agenda for the regular meeting.” Attendance at executive meetings was restricted “to Party members and probably officials of the club.” At one time petitioner was transferred out of the Mexican Concentration Club “for some other job.” Petitioner was also known to have attended at least one Party convention, attendance at which was restricted to Party members — “you had to face the panel and give your club, your position of that club, and be identified by members that were on the, on this panel, before you were admitted.” At the conventions, “they would have discussions on what was going on in the Party, and what drives were coming up.”

These facts are sufficient basis for the Board’s finding of voluntary, meaningful membership. After regular attendance at Party meetings and functions, and regular financial support for its activities, it is rather fanciful to believe petitioner was still unaware of the political nature of the Communist Party. It is doubtful that the meetings were so ineptly run or structured.

To be sure, facts purporting to show voluntary membership can be explained away and rendered meaningless by further facts as in Rowoldt. But here petitioner did not testify and did not attempt to characterize or to limit the significance of his association with the Party. In the circumstances “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. A fair reading of the legislation requires that this scope be given to what Congress enacted . . . .” Galvan v. Press, 347 U. S., at 528.

I would therefore affirm the repeated holdings of the courts below, made after several thorough examinations of the record. “This is not the place to review a conflict of evidence nor to reverse a Court of Appeals because were we in its place we would find the record tilting one way rather than the other, though fair-minded judges could find it tilting either way.” Labor Board v. Pittsburgh S. S. Co., 340 U. S. 498, 503. “We do no more on the issue of insubstantiality than decide that the Court of Appeals has made a ‘fair assessment’ of the record.” Federal Trade Comm’n v. Standard Oil Co., 355 U. S. 396,401 ; Peurifoy v. Commissioner, 358 U. S. 59, 61; Labor Board v. Pittsburgh S. S. Co., 340 U. S. 498, 502. “This Court will intervene only in what ought to be the rare instance when the standard appears to have been misapprehended or grossly misapplied.” Universal Camera Corp. v. Labor Board, 340 U. S. 474, 491.

       “(a) Any alien in the United States . . . shall, upon the order of the Attorney General, be deported who—
      . . . . .
      “(6) is or at any time has been after entry, a member of any of the following classes of aliens:
      . . . . .
      “(C) Aliens who are members of or affiliated with (i) the Com-' munist Party of the United States . . . .”

       There is no dispute'before this Court, nor .could there be, that under Galvan, supra, at 528, the absence of personal advocacy of violent Overthrow is not by itself a bar to deportability under § 241 (a)(6) (C). See pp. 473-474, infra.

       See, e. g., Aaron, Writers on the Left (1961), 149-160; Decter, The Profile of Communism (1961), 50-51; Ernst and Loth, Report on the American Communist (1952), passim; Glazer, The Social Basis of American Communism (1961), 115 and passim.

       Compare Yates v. United. States, 354 U. S. 298, 327-333; Scales v. United States, 367 U. S. 203, 222-223, 230-255; Noto v. United States, 367 U. S. 290.

       Elorriaga’s testimony on direct examination was as follows:
      “Q. Now you say you met him in meetings of that club, how often would you say you saw the respondent in meetings of that club?
      “A. How often, about maybe three or four meetings a month.” One possible explanation of the apparent contradiction. is that Elorriaga understood the question on direct examination as merely an inquiry into how often club meetings were held, and answered accordingly. This is borne out to some extent by the fact that the witness gave his “revised” answer to the question on two separate occasions, some minutes apart, during the redirect examination.

       Since some activities may be engaged in without-the requisite awareness, satisfaction of the Government’s burden as to the ultimate fact of “meaningful association” by evidence of activities instead of by direct evidence of awareness of the Party’s “distinct and active political” nature must be based upon evidence of activities sufficient to give substantial support to an inference of the alien’s awareness of the Party’s political aspect. The sole aspect of the witness Scarletto’s testimony which might have implied that petitioner’s association with the Party was “meaningful” was his reference to having seen petitioner at one Los Angeles area convention of the Party. However, in contrast to the testimony in Niukkanen v. McAlexander, 362 U. S. 390, note 7, infra, Scarletto neither described what petitioner would have heard at the convention nor suggested that there was any prerequisite such as officership or executive responsibility to petitioner’s attendance at the convention. Scarletto said that the nature of such conventions generally was that “they would have discussions on what was going on in the Party, and what drives were coining up,” but did not elaborate this statement with reference to the convention that petitioner attended or to what petitioner did there. Scarletto could only be sure that petitioner had to be a member to be present. The only facet of Elorriaga’s testimony which touched upon the qualitative aspect of petitioner’s membership was his statement that he had seen petitioner at one executive board meeting of the Party unit. However, in contrast to the testimony in Galvan, supra, at 524, 529, he only supposed petitioner to have been an “official of the club” because of petitioner’s presence at an executive meeting which Elorriaga thought was “probably” limited to “officials of the club,” and he did not elaborate specifically upon the significance of petitioner’s presence at the one meeting, making only the general statement that “[a]t this time I cannot say definitely the purpose [of that meeting] but it was either organizational or to form an agenda for the regular meeting.” Thus, none of the testimony of either Scarletto or Elorriaga was significantly probative of petitioner’s “meaningful association” with the Party.

       This Court’s later per curiam decision in Niukkanen v. McAlexander, 362 U. S. 390, in no way qualified the meaning of Rowoldt, since the evidence in the record in Niukkanen clearly showed “meaningful association.” See Niukkanen v. McAlexander, 265 F. 2d 825 (C. A. 9th Cir. 1959). Two witnesses testified for the Government. Both confirmed Niukkanen’s Party membership and his regular attendance at meetings In addition, one witness testified that Niukkanen helped in the distribution of a Communist-controlled trade-union newspaper edited by the witness, and actively participated in discussions at the newspaper office and elsewhere pertaining to policies of the Communist Party and circulation of the newspaper as a Communist organ. This, witness also testified that Niukkanen had attended a regional “plenum” of the Party — a meeting wherein all aspects of regional Party activities were reported on. Such a meeting, said the witness, was only for the “anointed people,” the “top fraction” in the Party, to' which, the witness added, Niukkanen belonged. The other witness, who had been a member of the same unit of the Party as Niukkanen, added that Niukkanen, although never an officer of the unit, was a member of its executive board.
      Nor is Galvan, supra, which was decided before Rowoldt, inconsistent with either that case or the present one. Mr. Justice Frankfurter, who wrote the Court’s opinions in both Galvan and Rowoldt, stated in Rowoldt that “[t]he differences on the facts between Galvan v. Press, supra, and this case are too obvious to be detailed.” 355 Ú. S., at 121.

       In the present case, for example, deportation would remove a man who has resided in this country since 1920 when he came from Mexico as a 10-year-old boy, and has raised and supported a family who are all American citizens.

       Our disposition of the case makes it unnecessary to consider petitioner’s contention that “at least the spirit” of 28 U. S-. C. § 46 was violated when the panel of'the Court of Appeals assigned to hear petitioner’s appeal in the current series of proceedings transferred the appeal instead to the same panel which had heard his first appeal, 109 U. S. App. D. C. 267, 286 F. 2d 824, it being clearly predictable thht one of the three judges on that panel would not participate, since he had been unable to participate in the disposition of the first appeal.

       The Court is concerned about the insufficiency of the “direct” and “indirect” evidence of awareness and participation. The record, though, contains “direct" evidence from Scarletto, who saw petitioner at Party meetings and at a convention, and who testified that at such conventions “they would have discussions on what was going on in the Party.” Elorriaga stated that he saw petitioner at an executive meeting “either organizational or to form an agenda for the regular meeting.” Both witnesses testified “directly” that petitioner was a dues-paying member and attended Party meetings. To me this uncontradicted testimony /plainly is “direct” evidence that petitioner was aware of the distinct and active political nature of the Communist Party or at the very least sufficient “indirect” evidence from which an inference of meaningful membership could be drawn.


author: Per Curiam.

text:
    CHAMBERLIN et al. v. DADE COUNTY BOARD OF PUBLIC INSTRUCTION et al.
    No. 520.
    Decided June 17, 1963.

      Leo Pjeffer and Howard W. Dixon for appellants.

      George C. Bolles for appellees.
   Per Curiam.

The judgment is vacated and the case is remanded to the. Supreme Court of Florida for further consideration in light of Murray v. Curlett and School District of Abington Township v. Schempp, ante, p. 203, both decided this day.


text:
    JAMIESON v. CELEBREZZE, SECRETARY OF HEALTH, EDUCATION AND WELFARE.
    No. 1016.
    Decided June 17, 1963.

      Charles W. Jamieson, appellant, pro se.

      Solicitor General Cox, Assistant Attorney General Douglas and Sherman L. Cohn for appellee.
   Per Curiam.

The appeal is dismissed. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari is denied.


text:
    ROBINSON et al. v. HUNTER et al.
    No. 5, Misc.
    Decided June 17, 1963.

      L. W. Holt, Henry Halvor Jones and Simon Lawrence Cain for appellants.

      Robert Y. Button, Attorney General of Virginia, and R. D. McIlwaine III, Assistant Attorney General, for appellees.
   Per Curiam.

The motion to affirm is granted and the judgment is affirmed.


text:
    WALKER v. WALKER, WARDEN, et al.
    No. 180, Misc.
    Decided June 17, 1963.
    Petitioner pro se.

      Jack P. F. Gremillion, Attorney General of Louisiana, and Scallan E. Walsh, Assistant Attorney General, for respondents.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment is vacated and the case is remanded for further consideration in light of Gideon v. Wainwright, 372 U. S. 335.


text:
    DAVIS v. BANMILLER, WARDEN.
    No. 3, Misc.
    Decided June 17, 1963.
    Petitioner pro se.

      John A. F. Hall for respondent.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment is vacated and the case is remanded for further consideration in light of Gideon v. Wainwright, 372 U. S. 335.


text:
    LAUGHNER v. WAINWRIGHT, CORRECTIONS DIRECTOR.
    No. 712, Misc.
    Decided June 17, 1963.
    Petitioner pro se.

      Richard W. Ervin, Attorney General of Florida, and A. G. Spicola, Jr.; Assistant Attorney General, for respondent.
   Per Curiam.

The motion for leave to proceed in forma, pauperis and the petition for writ of certiorari are granted. The judgment is vacated and the case is remanded for further consideration in light of Gideon v. Wainwright, 372 U. S. 335.


text:
    MAYS v. CALIFORNIA.
    No. 871, Misc.
    Decided June 17, 1963.
    Petitioner pro se.

      Stanley Mosk, Attorney General of California, and William E. James, Assistant Attorney General, for respondent.
   Per Curiam.

The motion for leave to proceed in forma potuperis and the petition for writ of certiorari are granted. The judgment is vacated and the case is remanded for further consideration in light of Douglas v. California, 372 U. S. 353.

Mr. Justice Clark and Mr. Justice Harlan dissent for the reasons stated in their dissenting opinions in Douglas v. California, 372 U. S., at 358, 360.


text:
    BRADLEY v. IOWA.
    No. 934, Misc.
    Decided June 17, 1963.
   Per Curiam.

The appeal is dismissed. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari is denied.


text:
    PAIGE v. NORTH CAROLINA.
    No. 884, Misc.
    Decided June 17, 1963.
    Petitioner pro se.

      Thomas Wade Bruton, Attorney General of North Carolina, and Ralph Moody, Assistant Attorney General, for respondent.
   Per Curiam.

The motion for leaveto proceed in forma pauperis and the petition for writ, of qertiorari are granted. The judgment is vacated and the case is remanded for further consideration in light of Gideon v. Wainwright, 372 U. S. 335:


text:
    ACUFF v. TEXAS.
    No. 1348, Misc.
    Decided June 17, 1963.
    Appellant pro se.

      Waggoner Carr, Attorney General of Texas, and Sam R. Wilson, Linward Shivers, Alio B. Crow, Jr. and Gilbert J. Pena, Assistant Attorneys General, for appellee.
   Per Curiam.

The appeal is dismissed for want of a substantial federal question.


text:
    BRYANT v. WAINWRIGHT, CORRECTIONS DIRECTOR.
    No. 901, Misc.
    Decided June 17, 1963.
    Petitioner pro se.

      Richard W.- Ervin, Attorney General of Florida, and George R. Geórgieff, Assistant Attorney General, for respondent.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment is vacated and the case is remanded for further consideration in light of Gidieon v. Wainwright, 372 U. S. 335.


text:
    KOVNER v. WAINWRIGHT, CORRECTIONS DIRECTOR.
    No. 1136, Misc.
    Decided June 17, 1963.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment is vacated and the case is remanded for further consideration in light of Gideon v. Wainwright, 372 U. S. 335.


text:
    CHAVEZ v. CALIFORNIA.
    No. 1113, Misc.
    Decided June 17, 1963.
   Per Curiam.

The appeal is dismissed. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari is denied.


text:
    TRAUB v. CONNECTICUT.
    No. 1285, Misc.
    Decided June 17, 1963.
    Petitioner pro se.

      John D. LaBelle and Harry W. Hultgren, Jr. for respondent.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment is vacated and the case is remanded for further consideration in light of Wong Sun v. United States, 371 U. S. 471, and Ker v. California, ante, p. 23.


text:
    AUFLICK v. WAINWRIGHT, CORRECTIONS DIRECTOR.
    No. 979, Misc.
    Decided June 17, 1963.
    Petitioner pro se.

      Richard W. Ervin, Attorney General of Florida, and A. G. Spicola, Jr., Assistant Attorney General, for respondent.
   Per Curiam.

The motion for leave to proceed in forma pauperis is granted. The motion for leave to file petition for writ of habeas corpus is denied. Treating the papers submitted as a petition for writ of certiorari, certiorari is granted. The judgment is vacated and the case is remanded for further consideration in light of Gideon v. Wainwright, 372 U. S. 335.


text:
    SIDENER v. CALIFORNIA.
    No. 1372, Misc.
    Decided June 17, 1963.
   Per Curiam.

The appeal is dismissed. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari is denied.


text:
    DAVIS, TRUSTEE, v. SOJA, INTERNAL REVENUE AGENT.
    No. 271.
    Decided June 17, 1963.

      Walter J. Rockier for petitioner.

      Solicitor General Cox for respondent.
   Per Curiam.

It appearing from the joint suggestion of mootness that this ease is moot, the judgment of the United States Court of Appeals for the Seventh Circuit is vacated and the case is remanded to the United States District Court for the Northern District of Illinois with directions to dismiss the complaint as moot.


text:
    CARDINAL SPORTING GOODS CO., INC., et al. v. EAGLETON, ATTORNEY GENERAL OF MISSOURI, et al.
    No. 904.
    Decided June 17, 1963.

      Norman Diamond for appellants.

      Samuel H. Liberman for appellees.
   Per Curiam.

It appearing from .the motion to dismiss that this case is moot, the judgment of the United States District Court for the Eastern District of Missouri is vacated and the case is remanded with directions to dismiss the complaint as moot.


text:
    REGALADO v. CALIFORNIA et al.
    No. 10, Misc.
    Decided June 17, 1963.
    Petitioner pro se.

      Stanley Mosk, Attorney General of California,.William E. James, Assistant Attorney General, and S. Clark Moore, Deputy Attorney General, for respondents.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment of the Supreme Court of California is vacated and the case is remanded for further consideration in light of Ker v. California, ante, p. 23, and McDonald v. United States, 335 U. S. 451.

Mr. Justice Harlan concurs in the result.


text:
    DEARHART v. VIRGINIA.
    No. 48, Misc.
    Decided June 17, 1963.
    Petitioner pro se.

      Reno S. Harp III, Assistant Attorney General of Virginia, for respondent.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted.- The judgment is, vacated and the case is remanded for further consideration in light of Douglas v. California, 372 U. S. 353.

Mr. Justice Clark and Mr. Justice Harlan dissent for the reasons stated in their dissenting opinions in Douglas v. California, 372 U. S., at 358,.360.


text:
    HARRIS v. CALIFORNIA et al.
    No. 135, Misc.
    Decided June 17, 1963.
    Petitioner pro se.

      Stanley Mosk, Attorney General of California, and William E. James, Assistant Attorney General, for' respondents.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment is vacated and the case is remanded for further consideration in light of Douglas v. California, 372 U. S. 353.

Mr. Justice Clark and Mr. Justice Harlan dissent for the reasons stated in their dissenting opinions in Douglas v. California, 372 U. S., at 358, 360.


text:
    DANIELS et al. v. VIRGINIA.
    No. 485, Misc.
    Decided June 17, 1963.

      Theodore J. St. Antoine for petitioners.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment is vacated and the case is remanded for further consideration in light of Peterson v. City of Greenville, 373 U. S. 244.

. Mr. Justice Harlan concurs in the result on the premises stated in his separate opinion in Peterson v. City of Greenville and Avent v. North Carolina, 373 U. S., at 248.


text:
    JONES v. CALIFORNIA.
    No. 649, Misc.
    Decided June 17, 1963.
    Petitioner pro se.

      Stanley Mosk, Attorney General of California, and William E. James, Assistant Attorney General, for respondent.
   Per Curiam.

The motion for .leave to proceed in forma'pauperis and the petition for writ of certiorari are granted. The judgment is vacated and the case is remanded for further consideration in light of Douglas v. California, 372 U. S. 353.

Mr. Justice Clark and Mr. Justice Harlan dissent for the reasons stated in their dissenting opinions in Douglas v. California, 372 U. S., at 358, 360.


text:
    SCOTT v. UNITED STATES.
    No. 694, Misc.
    Decided June 17, 1963.
    Petitioner pro se.

      Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and Julia P. Cooper for the United States.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. In light of the suggestion of the Solicitor General the judgment is vacated and the case is remanded for reconsideration of the request for a transcript of record.


text:
    BONE v. UNITED STATES.
    No. 716, Misc.
    Decided June 17, 1963.
    Petitioner pro se.

      Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and Richard W. Schmude for the United States.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment is vacated and the case is remanded for further consideration in light of Sanders v. United States, 373 U. S. 1.

Mr. Justice Clark and Mr. Justice Harlan would deny certiorari on the basis of their dissent in Sanders v. United States, 373 U. S., at 23.


text:
    DEARHART v. VIRGINIA.
    No. 745, Misc.
    Decided June 17, 1963.
    Petitioner pro se.

      Reno S. Harp III, Assistant Attorney General of Virginia, for respondent.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment is vacated and the case is remanded for further consideration in light of Douglas v. California, 372 U. S. 353, and Burns v. Ohio, 360 U. S. 252.

Mr. Justice Clark and Mr. Justice Harlan concur in the result.


text:
    HERB v. WAINWRIGHT, CORRECTIONS DIRECTOR.
    No. 751, Misc.
    Decided June 17, 1963.
    Petitioner pro. se.

      Richard W. Ervin, Attorney General of Florida, and George. R. Georgieff, Assistant Attorney General, for respondent.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment is vacated and the case is remanded for further consideration in light of Gideon v. Wainwright, 372 U. S. 335.


text:
    HOLMES v. WAINWRIGHT, CORRECTIONS DIRECTOR.
    No. 780, Misc.
    Decided June 17, 1963.
    Petitioner pro se.

      Richard W. Ervin, Attorney General of Florida, and James G. Mahomer, Assistant Attorney General, for respondent.
   Per Curiam.

The motion for- leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment is vacated and the case is remanded for further consideration in light of Gideon v. Wainwright, 372 U. S. 335.


text:
    PALMER v. WAINWRIGHT, CORRECTIONS DIRECTOR.
    No. 788, Misc.
    Decided June 17, 1963.
    Petitioner pro se.

      Richard W. Ervin, Attorney General of Florida, and James G. Mahorner,. Assistant Attorney General, for. respondent.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment is vacated and the case is remanded for further consideration in light of Gideon v. Wainwright, 372 U. S. 335.


text:
    BAXLEY v. WAINWRIGHT, CORRECTIONS DIRECTOR.
    No. 810, Misc.
    Decided June 17, 1963.
    Petitioner pro se.

      Richard W. Ervin, Attorney General of Florida, and George R. Georgieff, Assistant Attorney General, for respondent.
   Per Curiam.

The motion for leave to proceed in forma pauperis is granted. The motion for leave to file pétition for writ of habeas corpus is denied. Treating the papers submitted as a petition for writ of certiorari, certiorari is granted. The judgment is vacated and the case is remanded for further consideration in light of Gideon v. Wainwright, 372 U. S. 335.


text:
    HEAD v. CALIFORNIA.
    No. 872, Misc.
    Decided June 17, 1963.
    Petitioner pro se.

      Stanley Mosk, Attorney General of California, William, E. James, Assistant Attorney General, and A. Wallace Tashima, Deputy Attorney General, for respondent.
   Per Curiam.

The motion for leave to proceed in forma pauperis' is granted but. the motion for leave to file petition for writ of certiorari is denied. Treating the papers submitted as a petition for writ of certiorari, certiorari is granted. The judgment is vacated and the case is remanded for further consideration in light of Douglas v. California, 372 U. S. 353.

Mr. Justice Clark and Mr. Justice Harlan dissent for the reasons stated in their dissenting opinions in Douglas v. California, 372 U. S., at 358, 360.


text:
    June 10, 1963.
    No. 1170, Misc.
    Dandy v. Myers, Correctional Superintendent.
   Motion for leave to file petition for writ of. certiorari denied.


text:
    No. 984, Misc.
    Petitioner pro se. Richmond M. Flowers, Attorney General of Alabama, and John C. Tyson III, Assistant Attorney General, for respondent.
    Anderson v. Holman, Warden.
   Motion for leave to file petition for writ of habeas corpus denied.


text:
    No. 766, Misc.
    No. 1007, Misc.
    No. 1175, Misc.
    No. 1439, Misc.
    Leamer v. Russell, Correctional Superintendent; Hamlin v. California; Terry v. Dickson, Warden; and Thomas v. Heritage, Warden.
   Motions for leave to file petitions for writs of habeas corpus denied.


text:
    No. 1028, Misc.
    Barnackie v. Warden, Maryland Penitentiary, et al.
   Motion for leave to file petition for writ of habeas corpus denied. Treating the papers submitted as a petition for writ of certiorari, certiorari is denied.


text:
    Nos. 1442, Misc., and 1448, Misc.
    In re Wilson.
   Motions for leave to file petitions for writs of mandamus denied.


text:
    No. 460.

      Leonard B. Sand and Max Gross for appellants. Louis J. Lefkowitz. Attorney General of New York, Irving Galt, Assistant Solicitor General, and Sheldon Raab, Deputy Assistant Attorney General, for Simon et al.; Leo A. Larkin and Benjamin Offner for Screvane et al.; Bertram Harnett for Nickerson; and Francis J. Morgan for Berman, appellees.
    WMCA, Inc., et al. v. Simon, Secretary of State of New York, et al.
   Appeal from the United States District Court for the Southern District of New York. Probable jurisdiction noted.


text:
    No. 507.

      DeJongh Franklin for appellants.

      Eugene Cook, Attorney General of Georgia, and Paul Rodgers and Dpnald E. Payton, Assistant Attorneys General, for appellees.
    Wesberry et al. v. Sanders, Governor of Georgia, et al.
   Appeal from the United States District Court for the Northern District of Georgia. Probable jurisdiction noted.


text:
    No. 508.
    No. 540.
    No. 610.

      Thomas G. Gayle, Joseph E. Wilkinson, Jr. and McLean Pitts for appellants in No. 508. David J. Vann and Robert S. Vance, appellants, pro se, in No. 540. John W. McConnell, Jr. for appellants in No. 610. Charles Morgan, Jr., George Peach Taylor and Jerome A. Cooper for appellees.
    Reynolds, Judge, et al. v. Sims et al.; Vann et al. v. Frink, Secretary of State of Alabama, et al.; and McConnell et al. v. Frink, Secretary of State of Alabama, et al.
   Appeals from the United States District Court for the Middle District of Alabama. Probable jurisdiction noted. The cases are consolidated and a total of two hours is allowed for oral argument.


text:
    No. 797.

      Robert Y. Button, Attorney General of Virginia, R. D. Mcllwaine III, Assistant Attorney General, David J. Mays and Henry T. Wickham for appellants. Edmund D. Campbell and E. A. Prichard for Mann et al., and Henry E. Howell, Jr. and Sidney H. Kelsey for Glanville et al., appellees.
    Davis, Secretary, State Board of Elections, et al. v. Mann et al.
   Appeal from the United States District Court for the Eastern District of Virginia. Probable jurisdiction noted.


text:
    No. 950.

      Justin ' N. Feldman and Jerome T. Orans for appellants. Louis J. Lefkowitz, Attorney General of New York, Irving Galt, Assistant Solicitor General, and Sheldon Raab, Deputy Assistant Attorney General, for Rockefeller et al., and Jaum A. Sandifer for Powell, appellees.
    Wright et al. v. Rockefeller, Governor of New York, et al.
   Appeal from the United States District Court for the Southern District of New York. Probable jurisdiction noted.


text:
    No. 748.

      Tobias Simon and Howard W. Dixon for appellants.- Richard W. Ervin, Attorney General of Florida, and George R. Georgieff, Assistant Attorney General, for appellee.
    Robinson et al. v. Florida.
   Appeal from the Supreme Court of Florida. Probable jurisdiction noted.


text:
    No. 993.

      Solicitor General Cox, Assistants Attorney General Loevinger and Lionel Kestenbaum for the United States. John B. Miller and Charles L. Gowen for appellees.
    Reported below: — F. Supp. —.
    United States v. Ward Baking Co. et al.
   Appeal from the United States District Court for the Middle District of Florida. Probable jurisdiction noted.


text:
    No. 554.

      Alfred L. Scanlan, John B. Wright and Johnson Bowie for appellants. Thomas B. Finan, Attorney General of Maryland, and Joseph S. Kaufman, Deputy Attorney General, for appellees. Alfred H. Carter, Douglas H. Moore, Jr. and Richard J. Sincoff for Montgomery County, Maryland, as amicus curiae, in support of appellants.
    Maryland Committee for Fair Representation et al. v. Tawes, Governor of Maryland, et al.
   Appeal from the Court of Appeals of Maryland. Probable jurisdiction noted.


text:
    No. 90.

      Jack Greenberg, JamesM. Nabrit III, Matthew J. Perry and Lincoln C. Jenkins, Jr. for petitioners. Daniel R. McLeod, Attorney General of South Carolina, for respondent.
    Barr et al. v. City of Columbia.
   Supreme Court of South Carolina. Certiorari granted.


text:
    No. 921.

      Solicitor General Cox, Stuart Rothman, Dominick L. Manoli and Norton J. Come for petitioner. David Previant, Hugh Hafer and Richard P. Donaldson for respondents. Alfred J. Schweppe and Mary Ellen Krug for charging party in support of the petition.
    National Labor Relations Board v. Fruit & Vegetable Packers & Warehousemen, Local 760, et al.
   United States Court of Appeals for the District of Columbia Circuit. Certiorari granted.


text:
    No. 159.

      Jack Greenberg, Constance Baker Motley, Jame's M. Nabrit III, Matthew J. Perry and Lincoln C. Jenkins, Jr. for petitioners. Daniel R. McLeod, Attorney General of South Carolina, for respondent.
    Bouie et al. v. City of Columbia.
   Supreme Court of South Carolina. Certiorari granted.


text:
    No. 167.

      Jack Greenberg, Constance Baker Motley, Defrick A. Bell, Jr. and Juanita Jackson Mitchell for petitioners. Thomas B. Finan, Attorney General of Maryland, and Loring E. Hawes, Assistant Attorney General, for respondent.
    Bell et al. v. Maryland.
   Court of Appeals of Maryland. Certiorari granted.


text:
    No. 1053.

      Solicitor General Cox, Stuart Rothman, I ominick L. Manoli and Norton J. Come for petitioner
    National Labor Relations Board v. Servette, Inc.
   C. A. 9th Cir. Certiorari granted.


text:
    No. 583, Misc.
    Petitioners pro se. Solicitor General Cox,’ Assistant Attorney General Miller, Beatrice Rosenberg and Kirby W. Patterson for the United States.
    Ferguson et al. v. United States.
   Motion for leave to proceed in forma pauperis and peti-. tion for writ of certiorari to the United States Court of Appeals for the Tenth Circuit granted. Case transferred to the appellate docket.


text:
    No. 775, Misc.
    Massiah v. United States.
   Motion for leave to proceed in forma pauperis and pétition for writ of certiorari to the United States Court of Appeals for the Second Circuit granted. Case transferred to the appellate docket.

Robert J. Carluccio for petitioner. Solicitor General Cox, Assistant Attorney General Miller, Robert S. Erdahl and Kirby W. Patterson for the United States.


text:
    No. 686.
    Petitioner pro se. Stanley Mosk, Attorney General of California, William E. James, Assistant Attorney General, and William B. McKesson for respondent.
    Benson v. California.
   District Court of Appeal of California, Second Appellate District. Certiorari denied.


text:
    No. 908.

      Bernard H. Sokol for petitioner. Howard Ellis, Don H. Reuben and John E, Angle for respondents.
    Rosee v. Board of Trade of the City of Chicago et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 924.
    No. 1033.

      Daniel Mungall, Jr. for petitioners in No. 924 and respondents in No. 1033. Edwin P. Rome, Morris L. Weisberg and Floyd H. Crews for petitioners in No. 1033 and respondents in No. 924.
    Wellington Equity Fund et al. v. Taussig et ux.; and Taussig et ux. v. Wellington Equity Fund, Inc., et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 1032.

      Omer Griffin for petitioner. Bernard L. Trott for respondent.
    Lee v. Western Wool Processors, Inc.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 1043.

      William J. Dammarell for petitioner. Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and Kirby W. Patterson for the United States.
    Walker v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 1047.

      Richard W. Barrett, Jack G. Evans and Guy Farmer for petitioner. Archibald Marison Mull, Jr. and Patrick J. McCarthy for respondent.
    Procter & Gamble Manufacturing Co. v. Independent Soap Workers of Sacramento, California.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 1048.

      Boris Kostelanetz and Raymond Rubin for petitioner. Solicitor General Cox, Assistant Attorney General Oberdorfer, Joseph M. Howard and Burton Berkley for the United States.
    Silverstein v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 1049.

      Frank B. Cahn II and Paul A. Dorf for petitioner.
    Seidman v. Maryland.
   Court of Appeals of Maryland. Certiorari denied.


text:
    No. 1051.

      Charles A. Bellows for petitioner. Daniel P. Ward and Elmer C. Kissane for respondent.
    Ritholz v. Ogilvie, Sheriff.
   Supreme Court of Illinois. Certiorari denied.


text:
    No. 1052.

      Walter L. Gerash for petitioner. Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and Jerome Nelson for the United States.
    Sirimarco v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 1054.

      Pearse O’Connor for petitioner.
    LaCamera. v. Pennsylvania.
   Supreme Court of Pennsylvania. Certiorari denied.


text:
    No. 1055.

      Julius Schein for petitioner. Harmon Duncombe for respondent Heyden Newport Chemical Corp.
    Schwartz v. Heyden Newport Chemical Corp. et al.
   Court of Appeals of New York. Certiorari denied.


text:
    No. 1056.

      Harold T. Halfpenny and Mary M. Shaw for petitioner. Solicitor General Cox, Dominick L. Manoli and Norton J. Come for respondent.
    Trumbull Asphalt Co. of Delaware v. National Labor Relations Board.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 1057.

      Charles I. Calisoff for petitioner. Irving S. Abrams for respondent.
    Appleton Electric Co. v. Janecko.
   Supreme Court of Illinois. Certiorari denied.


text:
    No. 1063.

      Laurence D. Regal for petitioner. James E. Kennedy for respondent.
    Simmons v. Washington ex rel. Carroll.
   Supreme Court of Washington. Certiorari denied.


text:
    No. 1014.

      John R. Vintilla for petitioners. Ralph Montgomery Arkush and Charles H. Tuttle for respondents.
    Burdikoff et al. v. Russian Orthodox Greek Catholic St. Peter and St. Paul's Church of Lorain, Ohio, et al.
   Court of Appeals of Ohio, Lorain County. Certiorari denied.

Mr. Justice Douglas is of the opinion that certiorari should be granted.


text:
    No. 909.

      Thomas B. Finían, Attorney General of Maryland, and Robert F. Sweeney, Assistant Attorney General, for petitioner. William F. Mosner for respondent.
    Pepersack, Warden, v. Hall.
   Motion of respondent for leave to proceed in forma pauperis granted. Petition for writ of certiorari to the United States Court of Appeals for the Fourth Circuit denied.


text:
    No. 978.

      Paul T. Smith for petitioner. Solicitor General Cox, Assistant Attorney General Miller and Beatrice Rosenberg for the United States.
    Sylvia v. United States.
   C. A. 1st Cir. Certiorari denied.

Mr. Justice Douglas is of the opinion that certiorari should be granted.


text:
    No. 1041.

      John F. Shafroth, Winston S. Howard, James T. Paulantis, William A. Sloan, Benjamin F, Stapleton, Luis D. Rovira, Josiah G. Holland, William C. McClearn, Joseph G. Hodges, Richard M. Davis, Ross L. Malone and Richard T. Conway for petitioners.
    General Electric Co. et al. v. Public Service Co. of New Mexico et al.
   C. A. 10th Cir. Certiorari denied.

Mr. Justice White took no part in the consideration or decision of this petition.


text:
    No. 1046.

      Robert J. Downing for petitioner. Solicitor General Cox, Assistant Attorney General Oberdorfer, Joseph M. Howard and Norman Sepenuk for the United States.
    Holovachka v. United States.
   C. A. 7th Cir. Certiorari denied.

Mr. Justice White took no part in the consideration or decision of this petition.


text:
    No. 929, Misc.
    Phillips v. Nash.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 660, Misc.
    McKee v. Illinois.
   Supreme Court of Illinois. Certiorari denied.


text:
    No. 852, Misc.
    Petitioner pro se. William I. Siegel for respondent.
    Hyde v. New York.
   Court of Appeals of New York. Certiorari denied.


text:
    No. 922, Misc.
    Draper v. Washington et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 926, Misc.
    Petitioner pro se. Solicitor General Cox for respondents.
    Jurkiewicz v. Jordan, District Director, Immigration and Naturalization Service, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 930, Misc.
    Doty v. Presiding Judge of District Court of Wright County, Iowa.
   Supreme Court of Iowa. Certiorari denied.


text:
    No. 939, Misc.
    Petitioner pro se. Solicitor General Cox, Assistant Attorney General Marshall, Harold-H. Greene and Isabel L. Blair for respondent.
    Jackson v. Anderson, Jail Superintendent.
   United States Court of Appeals for the District of Columbia Circuit. Certiorari denied.


text:
    No. 1030, Misc.
    Petitioner pro se. Solicitor General Cox for the United States.
    Lipscomb v. United States.
   C. A. 8th Cir. Certiorari denied.