Niukkanen v. McAlexander/Opinion of the Court

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 member 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 hering, denied the petition, Niukkanen v. Boyd, 148 F.Supp. 106, and the Court of Appeals affirmed. 9 Cir., 241 F.2d 938. Invoking Rowoldt v. Perfetto, 355 U.S. 115, 78 S.Ct. 180, 2 L.Ed.2d 140, 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. 9 Cir., 265 F.2d 825. The ultimate question is whether petitioner is subject to deportation under Galvan v. Press, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911, 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 pages 116-117, 78 S.Ct. at page 181, 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.

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