BERENYI v. IMMIGRATION DIRECTOR

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Argument of Robert S. Rifkind

Chief Justice Earl Warren: Number 66, Kalman J. Berenyi, petitioner versus District Director, Immigration and Naturalization Service.

Mr. Rifkind, you may continue your argument.

Mr. Robert S. Rifkind: Mr. Chief Justice, may it please the Court.

I'd like to begin if I may by trying to answer two questions, which I did an inadequate job with yesterday.

Mr. Justice Fortas asked, first of all concerning the review provided like it within the service and within the Justice Department of hearing examiner determinations in these matters.

Limiting myself to naturalization proceedings, I understand that there is a procedure for review within the immigration service.

In this case for example, the hearing examiner's determination was reviewed in that District Office and then by a Regional Commissioner.

There is no provision for -- and more general review outside the service except as to peculiar or particular rulings of law which might come from the Office of Legal Counsel.

I did point out that Section 335 (d) of the Act provide that in all events even if disapproved by a superiors, the hearing examiner's report was go to the District Judge.

On the other hand, it is not binding on the District Judge in any sense and as the District Judge here said, he disregarded both the findings and these -- and the conclusions of law completely.

Justice John M. Harlan: If the Government's position is sustained in this case, is this man said -- the deportation?

Mr. Robert S. Rifkind: I think not Your Honor.

It seems to me that only two conceivable grounds for deportation.

One is that he was at some time a member of the Communist Party.

The other is that he gave false testimonies.

As to the former, it seems to me clear that the Government's own evidence showed that his membership was not of the meaningful variety that would serve as a basis for deportation and probably wasn't even of this sort of the voluntary variety that would serve as a basis for exclusion.

As to the misrepresentation, he would of course have the benefit of Section 241 (f) which forgives that sort of thing, you have that before you in the Erika case.

So I think there is no basis for deportation here.

Justice John M. Harlan: Is he foreclosed from another application for natural -- for citizenship?

Mr. Robert S. Rifkind: Certainly not.

Indeed, he is now entitled to apply as the spouse of an American citizen since his wife was admitted to citizenship.

The period involved there is a three-year period after her admission.

They need only show good moral character for that three-year period and his time in that regard would be up in about 15 months from now.

So it's a very short-term proposition.

One other thing I might mention also bearing on this general problem of review within the Justice Department and the Immigration Service is that about a hundred thousand persons are naturalized each year, at least that was the figure in the last report of the attorney general for 60 -- 1965.

Of those petitions were withdrawn and some 1800 cases and there was a litigated question and some 150 questions -- cases.

So that there's quite a substantial problem as far as reviewing the details of each cases in administrative manner.

I also think that those figures tend to stress the importance of the system of self-disclosure of self-reporting that the Immigration Law depends on.

It's rather like the Internal Revenue Law in many senses.

It is largely the initial application that the petitioner files in which he answers a variety of questions which were designed by regulations, the Attorney General was authorized to issue --

Justice Abe Fortas: Mr. Rifkind, this man as denied naturalization as I understand that because he's supposed to have made false statement with respect to membership in the Communist Party.

Is that right?

Mr. Robert S. Rifkind: That's right sir.

Justice Abe Fortas: Now, on this record, the first and second as a matter of general principle, what constitutes membership in the Communist Party for this purpose?

I think that may be the issue here.

Mr. Robert S. Rifkind: Well, petitioner had certainly urged that -- your decisions in Rowoldt and in the Gastelum cases concerning a meaningful association -- meaningfulness of association I should say are controlling here.

Justice Abe Fortas: And you've just told us that their -- was not meaningful association in this case in that sense --

Mr. Robert S. Rifkind: I think that's right.

Justice Abe Fortas: -- so that if that's the standard then you have no case.

Mr. Robert S. Rifkind: If that is the standard, I think we should (Voice Overlap).

Justice Abe Fortas: Now what are the alternatives on -- what does a Government relied up here defending this order?

Mr. Robert S. Rifkind: I think that what we're saying is that the degree of his membership, the intensity of his fidelity or his loyalty to that cause is quite decide the point here.

Justice Abe Fortas: No, I'm not asking you that.

I'm asking you, what is membership in the Communist Party?

As I see this record, nobody said that he had -- that he saw the inscribed role of the Communist Party with this fellow's name on it.

Mr. Robert S. Rifkind: That is true.

Justice Abe Fortas: Now, what he is -- membership in the Communist Party?

Suppose a fellow gets up at a study group for this purpose.

Supposed a fellow gets up at a study group or in a classroom and says that the doctrines of Marx and Lennin are the last word and whatever, (Inaudible) whoever happens to be in command and says is a -- the religion from now on.

Is that kind of thing make him a Communist or what just -- what is it that the Government says.

Say, at first is a -- in this record, and second is a matter of theory shows that this man lied.

Mr. Robert S. Rifkind: Well, I think there are two things.

One is -- in this particular case, he said he was a member of the Communist Party.

Justice Abe Fortas: You mean there is testimony to that effect?

Mr. Robert S. Rifkind: There is testimony in the record that he said to other people in Hungary that he was a member of the Communist Party.

Justice Abe Fortas: And you would consider that that is adequate.

That is to say a person's own statement is sufficient to make a subsequent declaration that he was not a member of Communist Party make that perjury or a false statement rather.

Mr. Robert S. Rifkind: I think that in lessons -- there are some substantial doubt cast on that sort of admission.

Justice Abe Fortas: Well, he tried the cast down on it here by saying, “What to my mind is the most impressive thing in this record.”

Now, it says that he was on a regiment that his testimony is to be believed that as a doctor that support the Communist at the time of the Hungarian uprising and then the second and to me most important that he left the country I think “fled” is the word used in the record after the Communist crushed the uprising.

Mr. Robert S. Rifkind: Right.

And I -- it seems to me also, just to add to that in a way and to try and refine what our position is, it is not contended by any means that he was a believer in any of the principles of the Party.

I think that --

Justice Abe Fortas: No contentment.

Mr. Robert S. Rifkind: I think we could not because as Dr.Halasz testified against him kept saying, “I think he was a member on paper.

I don't think he was a believer.

I don't think he was a member in his heart, but I think he was a member of the Party.”

Justice Abe Fortas: But what you say -- what makes you say that he lied because he was a member of the Party and you say he was a member of the Party because in Hungary -- according to the testimony of a witness, he said he is a member of the Party.

He said he was a member of the Party.

And in addition, there's testimony that he did those things principally attend meetings which were open only to members of the Party which nonmembers would not be free to do.

Justice John M. Harlan: You've got a finding (Inaudible)

Justice Abe Fortas: But the question --

Justice John M. Harlan: -- the man said that he was a member of the Communist Party and that he is an instructor in Marxism (Inaudible) -- membership with being indoctrinated with the principles of the Party.

Now, is that finding of statute seperately (Inaudible) doesn't satisfy your (Inaudible)

Mr. Robert S. Rifkind: Well I supposed that under proper -- under -- I don't want to resist you.

But -- that on this coercive circumstances, I could be an instructor and practically anything I could bone up on and still not have my heart in it.

Our position is as I see it and I think it emerges with some strength --

Justice John M. Harlan: That doesn't say anything about belief and subversions of subversive aspects of the (Inaudible) -- whether he is a member, (Inaudible)

Mr. Robert S. Rifkind: That's true.

Justice John M. Harlan: In a meaningful sense (Inaudible)

Mr. Robert S. Rifkind: Well, perhaps we do satisfy the Rowoldt test but my -- I think it's important for the administration of this law for me to suggest that we needn't satisfy the Rowoldt test.

Because in Rowoldt after all and in the Gastelum case, you were construing statutory language of Section 241 of the Act, you were trying to determine what sort of membership Congress had intended should bear certain consequences.

Here, we're not concerned with statutory language, we're concerned with a search for information whereas the -- concerned with an examiner's questions.

Questions which I have no doubt the examiner had a right to put and ought to have put under the circumstances of qualifications for citizenship.

It was information that the petitioner was obliged to supply.

And therefore, I don't think you have to go into the question of what Congress intended in using the word membership.

After all, petitioner was asked some seven times over a period of several years, whether under any circumstances at any place he had in any way been affiliated with or a member of, directly or indirectly -- any Communist Party.

And he said, “No.”

He didn't say, “No, but,” or “No, except,” or “Yes, except.”

He didn't say, “Yes, but I wasn't an active member,” or “Yes, but I was not a nominal member.”

He said, “No.”

And I think -- although he was advised by counsel at that time and he was told that there was evidence the contrary for him to now come and say, if he does and I admit it but arguendo in the hypothetical for him to now come and say, “Yes, I was a member but I was not a meaningful member or an active member.”

Is -- it seems to me to admit that he's been engaging in a deception all these years.

Justice Abe Fortas: Well, what -- he says that arguendo, doesn't he?

Mr. Robert S. Rifkind: Arguendo then on the pieces of --

Justice Abe Fortas: Yes, but you can't say that he says in arguendo and he's not taking a -- change his position, each one or the other.

Mr. Robert S. Rifkind: Insofar as his alternate argument is -- well, even if I was a member of the Communist Party, I wasn't a meaningful member.

I don't think that squares with the sort of answers he's been given to searching questions over a period of years.

We certainly agree or we agree arguendo at least with the petitioner that if his naturalization had been barred under Section 313 because of his Party membership, that the Rowoldt test and the Gastelum test of meaningfulness might be appropriate.

But it wasn't denied for that reason.

It couldn't have been denied for that reason if the District Judge found.

It was denied purely because he was found that he wasn't telling the truth.

And it is the truthfulness of his testimony or the untruthfulness of his testimony that is critical here, not the meaningfulness of his membership.

Justice John M. Harlan: You say (Inaudible)

Mr. Robert S. Rifkind: That's right.

Justice John M. Harlan: (Inaudible)

Mr. Robert S. Rifkind: Well, as far as I know he did go to a lawyer and he did have counsel, and I don't know.

Perhaps he feared or perhaps he knew that the facts were other than those that the District Judge finally came down on.

That is perhaps he had been a member within the last ten years.

And feared that we would prove more than -- we succeeded in proving or perhaps his membership -- he feared would be have shown to be more active.

I don't think we have to show that he -- that the -- I don't think we have to show that it was immaterial -- that there was a bar to his naturalization in his membership in order to show that he testified falsely in concealing that matter and this Court has said that on many occasions.

The trial courts have too before 101 was -- Section 101 was passed, this Court said in Federal Communications at WOKO.

It's the fact of concealment that is more significant that the facts concealed.

It's the willingness to deceive a government agency that in this case bears on good moral character.

Chief Justice Earl Warren: Mr. Rifkind, was he asked in detail about his participation in the seminars that are under discussion?

Mr. Robert S. Rifkind: Yes, he was.

Chief Justice Earl Warren: Well, what was he'd -- what were his answers?

Mr. Robert S. Rifkind: They varied from time to time.

And I don't mean to say there was a substantial contradictional or there was some minor contradictions.

He said he participated in -- in general, in group discussion that all students were required to participate in.

That is that the study of Lenninism became a required subject at the university under communist rule and that he engaged in that sort of discussion.

But he denied participation in the sorts of discussions that either Dr. Halasz or Dr. Kury placed in it.

Justice William O. Douglas: But he's -- the people who testified against him professional witnesses?

Mr. Robert S. Rifkind: Not to my knowledge.

Both of them I should say where naturalized citizens at the time that all this took place.

Justice William O. Douglas: I mean, they still could be professional witnesses.

Mr. Robert S. Rifkind: They could be, I don't -- I have no reason to suppose that they have.

Justice William O. Douglas: That the only government payroll or --

Mr. Robert S. Rifkind: I've seen nothing in either the record here or any place else to suggest that.

One had been a communist admittedly and the other had not.

Justice William O. Douglas: Reason I ask is as you know, we had been -- from the federal courts quite a few cases involving these professional witnesses who turned out to be perjurers.

Mr. Robert S. Rifkind: I -- all I can say is I have looked beyond this record to the administrative record, I've seen nothing to suggest that.

To go back to the clearly erroneous argument in the minute remaining, I tried to show yesterday that there was a sharp conflict of testimony but the judge was faced with the task of weighing the evidence one way or the other, an inescapable task, I submit it was.

This Court has said that at trial court's choice between two permissible views of the weight of the evidence cannot be clearly erroneous.

I think that's through a fortiori when the burden of persuasion is conceitedly on the petitioner.

He had to resolve a long line of decisions in this Court, indeed the Act say, he had to resolve doubts that he may have had against the petitioner.

I also think it's important that particularly with witnesses who's -- were relative newcomers to the English language that the trial judge had a very superior opportunity to see all the witnesses in this case.

We're dealing with a very cold record and I think the mandate of Rule 52 of the deference due to the opportunity of the trial judge to assess the credibility of the witnesses is particularly important where credibility is the ultimate issue in this case.

And finally --

Chief Justice Earl Warren: Mr. Rifkind do you -- even though he does have the obligation of proving that he has good moral character when he is accused by a witness such as Dr. Kury or whatever his name was, of being as a communist, does he had the duty of proving the negative of that?

Mr. Robert S. Rifkind: Well I understood the petitioner to say yesterday and I certainly agree with him that the ultimate issue of course is good moral character.

Chief Justice Earl Warren: Good moral character, yes.

Mr. Robert S. Rifkind: In this -- this -- the question immediately under that is whether he's been telling the truth, we as bearing on good moral character.

The Government -- he made out a prima facie case of truthfulness and good moral character and submitting his petition through affidavits.

The Government then supplied some evidence when forward with the evidence calling that into question.

It was then his burden as I understand it, to still show that he was of truthful character, good moral character.

And he had to overcome the evidence that the Government presented and persuade the court that he wasn't back a truthful witness.

Chief Justice Earl Warren: But does it go to the extent of requiring him to prove that -- disprove the testimony of Dr. Kury?

Mr. Robert S. Rifkind: I think it does in this case or to -- yes, I think it does.

Chief Justice Earl Warren: Burden is on him to prove that he was not a communist?

Mr. Robert S. Rifkind: That's right.

And that would be true under any of the provisions of Section 101.

It also provides that a person who's been a habitual drunkard cannot be found to be a person of good moral character.

As far as I can understand it, the Government supply some evidence raising a question as to whether a person is a -- or tending to show that a person is a habitual drunkard.

He would have a burden of showing that he wasn't.

Because the ultimate issue is good moral character and on that issue, there's no question, he must establish his case.

Chief Justice Earl Warren: Leaves a man on the -- in a rather delicate situation doesn't it where someone comes in and says, 16 years before at a meeting where the witness can identify, no other person who attended the meeting except him that he admitted at that time, being almost a boy at the time too that he was a communist.

Mr. Robert S. Rifkind: I agree.

I agree it's hard.

I -- all I can say is that I think it's difficult to --

Chief Justice Earl Warren: And in a foreign country too where he can't bring any witnesses or anything of that kind, pretty heavy burden on a man, isn't it?

Mr. Robert S. Rifkind: It is a heavy burden, proving that you're attached to the principles of the constitution maybe difficult.

I mean, I don't know how one would really go about doing that but it's required, proving that one as well disposed to the happiness of the United States maybe difficult.

I don't know how --

Chief Justice Earl Warren: But if somebody is -- somebody said, “I don't believe this man is attached to the principles of the constitution with that -- they cast of burden on him to disprove that and affirmatively established that he was.”

Mr. Robert S. Rifkind: I think that if the Government brought forward evidence to -- supplied evidence to seriously call that into question, that is right.

At least so, all the cases I've read suggest, and as long as we are going to have a very strict rule, a very limited rule for denaturalization.

That is as long as our doubts are going to be resolved very strictly against the Government and only in various extraordinary cases you're going to allow denaturalization, which I think is the -- clearly, healthy situation.

It seems to me that the traditional view and the statutory view the doubts are to be resolved against the petitioner on the naturalization side is a desirable logical relationship.

I agree it's difficult.

I would only whined up by saying as this Board has said, acquisition of American citizenship is a solemn affair.

Full and truthful response to all relevant questions required by naturalization procedures of course to be exacted and temporizing with the truth must be vigorously discouraged.

Justice Abe Fortas: Mr. Rifkind, the Government presented two witnesses here.

Their testimonies summarized at the Government's brief.

One of them was Dr. Kury, the other is Dr. Halasz.

Does the Government rely on the testimony of Dr.Halasz?

Mr. Robert S. Rifkind: Yes, sir.

Justice Abe Fortas: Despite the substance of that testimony as set out on pages 68 of your own briefing?

Mr. Robert S. Rifkind: I think that's right.

Justice Abe Fortas: What is there in Dr. Halasz's testimony that supports this finding at all?

Mr. Robert S. Rifkind: I think the real -- the essence of the impression that a reasonable trier of fact could draw from Dr. Halasz in which I do is that granted and admitting quite readily that he didn't see the petitioner take the party membership oath that there is such or (Inaudible), didn't see his Party card.

He nevertheless saw him under circumstance --

Justice Abe Fortas: No, no, not -- I think we don't have it a little straighter than that it would be -- if I may ask your indulgence because your own brief says that Dr. Halasz had been assigned to check that those attending a meeting were carrying their private cards.

Mr. Robert S. Rifkind: That's right.

Justice Abe Fortas: But he had never seen a membership card for petitioner.

From having seen petitioner at meetings, Dr. Halasz had thought that petitioner was a Party member.

And as I read your summary, that's the only thing that's in here from Dr. Halasz.

Then he goes on the say that he did not in fact know where the petitioner was a member or whether he was a nonmember who had been invited to attend.

And he says, he didn't -- they did not believed -- he stated, Halasz stated, that he did not believe petitioner was a Communist that hardly even if he was a member, petitioner had and I am quoting from your brief.

Petitioner had occasionally helped Dr. Halasz with his medical studies in the course of which petitioner had made statements against the Party and the regime.

But you're telling me that you're relying not only that the Government of the United States, that relying not only on the testimony of Dr. Kury but also on the testimony of Dr. Halasz which I assumed is correctly summarized in your brief.

Mr. Robert S. Rifkind: That's right.

I think frankly that all of the things that you've just read from tend to support the credibility of that witness, tends to support the thesis that that petitioner was a member of the Party as a matter of opportunistic convenience without any other form of attachment.

But that those around him and those who knew him believed him to be -- from the reasonable surrounding circumstances in fact a member of the Party.