NIUKKANEN, alias MACKIE, v. McALEXANDER, ACTING DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE.
No. 130.
Argued March 21, 1960.
Decided April 18, 1960.
Joseph Foret and Neis Peterson argued the cause for petitioner. With Mr. Peterson on the brief was Reuben Lenske.
Oscar H. Davis argued the cause for respondent. On the brief were Solicitor General Rankin, Assistant Attorney General Wilkey, Beatrice Rosenberg and Julia Cooper.
Blanch Freedman filed a brief for the American Committee for Protection of Foreign Born, as amicus curiae, urging reversal.
Per Curiam.
The petitioner sought relief from an order directing his deportation on the ground that as an alien he had become, after entering the United States, a ihember of the Communist Party within the meaning of the Act of October 16, 1918, as amended by § 22 of the Internal Security Act of 1950, 64 Stat. 987, 1006. The District Court, after hearing, denied the petition, 148 F. Supp. 106, and the Court of Appeals affirmed. 241 F. 2d 938. Invoking Rowoldt v. Perfetto, 355 U. S. 115, decided after the order for his deportation, petitioner sought an administrative reconsideration of his status. Upon its denial by the Board of Immigration Appeals he began the judicial proceeding immediately before us for review. After a hearing, the District Court again denied his petition for relief and the Court of Appeals affirmed the order of the District Court. 265 F. 2d .825. The ultimate question is whether petitioner is subject to deportation under Galvan v. Press, 347 U. S. 522, or is saved from it under Rowoldt v. Perfetto, supra. The determination of this issue turns on evaluation of the testimony before the District Court, in light of Galvan v. Press, supra, and Rowoldt v. Perfetto, supra. Such assessment largely depends on the credibility of the testimony on which the district judge based his judgment, particularly that of the petitioner himself, whom the judge saw and heard. An able judge found that petitioner in denying membership in the Communist Party, unlike Rowoldt who admitted membership, see 355 U. S., at 116-117, but accounted for its innocence, “perjured himself before, and I believe that he perjured himself today.” We cannot say that his findings, affirmed by the Court of Appeals, were clearly erroneous and do not support the conclusion of both the lower courts.
Judgment affirmed.
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