Berenyi v. District Director, Immigration and Naturalization Service/Dissent Douglas

Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE and Mr. Justice BRENNAN concur, dissenting.

In this case we are confronted with the spectacle of a person admittedly loyal to the United States, and concededly opposed to communism being denied naturalization because the District Court found that he was not a 'person of good moral character.' This finding was in turn based upon a subsidiary finding that petitioner had, in the remote past, been a member of the Hungarian Communist Party, and had therefore lied when he stated that he had never been a member of that Party. The 'evidence' upon which the crucial finding of Communist membership was based was slim, ambiguous, and equivocal; and when compared with the overwhelming evidence adduced by petitioner, it is apparent that the finding was clearly erroneous.

The Government's case was dependent upon the testimony of two witnesses. Dr. Pal Halasz testified that he had attended medical school in Hungary with petitioner. He did not attend classes with petitioner since he was a number of years behind. The total enrollment of the school was between 1,800 and 2,000. He did not know petitioner socially, but did talk to petitioner and 'several times' petitioner helped Halasz with his studies. Halasz was a member of the Communist Party, he 'believed' between 1948 and 1956. He could not say how often he attended meetings. According to Halasz, he saw petitioner at some Communist Party meetings, but he did not know how often. He 'thought' it was more than once. He did not know what transpired at the meetings, nor did he know whether the particular meetings were open to nonparty members or were open to all. Most of the meetings were open to nonparty members and nonmembers were encouraged to attend. If they did not, they took the risk of retribution. When nonmembers attended the meetings, they were not identified as nonmembers. Halasz had never seen petitioner display a membership card, although he had been the doorkeeper at several meetings. He admitted that petitioner was not a 'Communist in heart,' and that if he said something with respect to communism 'it wasn't for the favor of the Communists.' He assumed that petitioner was a party member because he had seen him at some meetings.

The second government witness was Dr. Gyorgy Kury who had been in the same medical class with petitioner for one year. The most that this witness could come up with was that he had attended an ideological indoctrination session required to be attended by all students, members and nonmembers alike. At that session, he heard petitioner state that he was the session leader and that he had joined the party after the Soviet occupation of Hungary in 1945. He did not remember who had attended the meeting or exactly what petitioner had said. That was his only contact with petitioner. Except for this one occasion, Kury had never heard petitioner say that he was or had been a Communist.

This was the only evidence the Government adduced to show that petitioner had been a member of the Communist Party. The abundance of evidence produced by petitioner can only be briefly summarized. Petitioner unequivocally testified under oath that he had never been a member of the Communist Party and had never attended a closed meeting. He did attend open meetings to which he had been invited and at which other non-Communists were present. The invitation was tantamount to an order, and nonattendance would result in serious consequences. Attendance of Berenyi at an open meeting is the most that is shown. Plainly that is not sufficient to show that he ever had 'been a member of or in any other way connected with, or associated with the Communist Party'-unless as a part of the cold war technique words are to be turned into traps to catch the innocent. And Kury's vague memory that petitioner had joined the Communist Party is belied by every facet of petitioner's character as revealed by a reading of this record.

During the Hungarian uprising in October and November of 1956, petitioner was a member of the Hungarian Army, which he had joined in order to obtain finances to complete his medical education. Communist membership was not a condition for serving in the army. His unit fought the Russians, and petitioner was on duty treating people who were wounded in fighting.

He married a woman whose family's property had been confiscated by the Communist Government; his wife's family left Hungary to escape the Communist regime. His wife testified that she hated communism and the Communist Government of Hungary.

In 1956, petitioner and his wife fled the Communist regime, making their escape at great personal risk. Petitioner testified without equivocation to his opposition to communism, his loyalty and attachment to the United States and his willingness to fight and bear arms in the defense of this country. He absolutely denied making the statement attributed to him by Kury. After his escape, petitioner resumed his medical career in this country, is associated with a number of hospitals and has been a senior instructor on the staff of the Tufts Medical School.

Petitioner's wife testified that both she and petitioner hated communism and the Hungarian Communist Government, and while in Hungary constantly wanted to leave the country for freedom. Lorand De Bickish, a former Hungarian national who is now a naturalized United States citizen, also testified on petitioner's behalf. De Bickish was an avowed anti-Communist who had been arrested twice and imprisoned once for attempting to escape from the Hungarian Communist Government. He testified that he had been exiled to a small town in Hungary because his brother was a broadcaster for Radio Free Europe. During his exile, petitioner and his wife were the only people to visit him. Petitioner often voiced his opposition to communism and the Hungarian Government. He and petitioner often secretly listened to Radio Free Europe and the Voice of America, and talked of leaving Hungary and escaping to freedom.

Two other witnesses testified that while in Hungary petitioner had often expressed his opposition to communism and the Hungarian Government and his desire to escape to a free country. They testified that, while in the United States, petitioner frequently expressed his gratitude at being here, and his love for the United States and the freedom it offered. It was stipulated that yet another witness would testify that petitioner opposed communism and was attached to the principles of the Constitution.

Thus we are confronted with the curious proposition that the speculations of one witness, and the hazy memory of another witness as to a statement made in the distant past, can outweigh the overwhelming evidence adduced by petitioner, and thereby prevent his naturalization. To me this is tantamount to saying that the Government can merely throw a very slim doubt into the case, and deny naturalization when the applicant fails to disprove the ephemeral doubt. It is no answer to say that the applicant in a naturalization proceeding bears the burden of showing his eligibility for citizenship. The crucial question is what the applicant must do successfully to bear his burden of persuasion. Nor is it an answer to say that doubts should be resolved in favor of the United States and against the applicant. The question is whether a 'doubt' is present to be resolved. Must the applicant tilt with every windmill thrown in his path by the Government? In this case there was no 'doubt' to be resolved in the Government's favor. If the Government's sketchy evidence did raise a doubt, the doubt was clearly dispelled by the overwhelming evidence adduced by petitioner. The petitioner did carry his burden of proof and his burden of persuasion. The concurrent findings of two lower courts are not sacrosanct; the 'two court finding' rule is no talisman preventing this Court from exercising the duties with which it is charged. This Court can review concurrent findings where there is 'a very obvious and exceptional showing of error.' Graver Tank & Mfg. Co. v. Linde Air Products Co., 336 U.S. 271, 275, 69 S.Ct. 535, 538, 93 L.Ed. 672. This is such a case.

APPENDIX TO OPINION OF MR. JUSTICE DOUGLAS, DISSENTING.

Pal Halasz, the chief witness against petitioner in the District Court, testified as follows:

'Q. Did you ever see a card showing that Dr. Kalman Berenyi was a member of the Communist Party?

'A. No. I never have seen a card.

'Q. Did he ever tell you or admit to you that he was a member of the Communist Party?

'A. No.

'Q. Did he in any way participate in these so-called meetings of any kind?

'A. Yes.

'Q. In what way?

'A. Well, he had to be there.

'Q. Well, other than put his body into a chair and to sit down at that meeting did he do anything else?

'A. I can't recall.

'Q. Now isn't it a fact that there were many noncommunists who were called to these meetings?

'A. Yes.

'Q. And would you say out of a class or group of 40 people, how many would be noncommunists? 'A. I don't know. It depends. Well, from 40 people could be 23 or 24, maybe, not Communists. * *  *

'Q. * *  * But in this group that you referred to where you claim you saw Dr. Kalman Berenyi how many people would be present?

'A. Well, I would say about 120-150 people.

'Q. Do you know for a fact, sir, that Kalman Berenyi knew it to be a Communist Party meeting on the occasions when he did attend it, according to your testimony?

'A. You ask me if he knew that was a Communist Party meeting going on. Well, I don't know if he was told or not.

'Q. Now isn't it a fact also that at these so-called meetings indoctrination took place, trying to convert and induce non-communists to join?

'A. Certainly.

'Q. Did you ever see a Communist Party book in the possession of Dr. Kalman Berenyi?

'A. No, I did not.

'Q. And did you know from your Party records, if you know of any, that he was listed as a Communist Party member?

'A. I never have seen such a Party record.

'Q. Now, Dr. Halasz, on direct examination you testified that he attended these meetings which you called Communist Party meetings?

'A. Yes.

'Q. Can you tell us with some degree of certainty as to how many meetings you saw Dr. Berenyi at?

'A. No, I can't tell that. Possible I see him maybe two or three times.

'Q. Possibly?

'A. That is all.

'Q. And it could have been once?

'A. It could be more or it could be once?

'Q. You kept no records on it?

'A. No.

'Q. And he was not active in anything? He just sat there?

'A. Oh, he was active, helping the rest of the students to study his medical science.

'Q. But at the so-called meetings once, twice or three times he never said a word, is that right?

'A. No. Unless he was straight asked because it can happen that somebody was asked straight about certain things.

'Q. Do you know now whether Dr. Berenyi attended open or closed meetings?

'A. I can't recall.

'Q. Did you ever have any discussions with Dr. Berenyi concerning his beliefs in Communism or the principles of Communism?

'A. Oh, sometimes certain things came up, certain questions. He didn't say too much; and if he said something, it wasn't for the favor of the Communists.

'Q. And as a result of your talk with Kalman Berenyi, could you tell this Court what his feelings were towards Communism?

'A. I don't believe he was a Communist, even if he was a member of the Communist Party. I don't believe he was Communist in heart.

'Q. Do you assert that he is a member-do you assert that he was a member of the Communist Party?

'A. I thought he was a member of the Communist Party because I have seen him on those certain meetings.

'Q. And that was all you had to base it on?

'A. That is right.'

And it appears that even at the so-called 'closed party meetings,' noncommunists were admitted. For a 'closed party meeting' was explained by Halasz to mean 'that only the Party members can say anything or vote on any subject:'

'The Court. But it was possible that non-Communists-when I say 'noncommunists,' they who were not members of the Party were present, but if they were present, they were not allowed to speak and they were not allowed to vote, is that right?

'The Witness. That is right, yes.'