Interim Decision #2311
MATTER OF MOSS
In Exclusion Proceedings
A-19265092
Decided by Board August 16, 1974
Request, on appeal in exclusion proceedings, for remand of case to the immigration judge
for further proceedings to give applicant an opportunity to further develop the evidence of his `active opposition" to Communism for the purpose of defector classification
under section 212(a)(28)(1)(ii) of the Immigration and Nationality Act, as amended, is
granted where applicant made a full and voluntary disclosure to the American consul of
his voluntary membership in the Communist Party of Great Britain from 1948 to 1952;
he testified candidly and extensively at the exclusion hearing as to such membership;
and he was not represented at the hearing by counsel, mistakenly thinking he could
handle his hearing by himself.
EXCLUDABLE: Act of 1952—Section 212(a)(28) [8 U.S.C. 1182(a)(28)]—Prior membership in Communist Party of Great Britain.
ON BEHALF OF APPLICANT: Francis Hoague, Esquire
1500 Hoge Building
Seattle, Washington 98104
In a decision dated May 6, 1974, the immigration judge found the
applicant inadmissible under section 212(a)(28) of the Immigration and
Nationality Act because of his membership in the Communist Party of
Great Britain, denied his application for a waiver of inadmissibility
under section 212(a)(28)(I)(ii), and ordered his exclusion and deportation
from the United States. The applicant has appealed from that decision.
The record will be recommended to the immigration judge.
The applicant, a 58-year-old alien who is a native of England and a
critizen of Canada, seeks to enter the United States so that he may
reside in a retirement home that he and his wife are building at Point
Roberts, Washington. He applied for an immigrant visa at the American Consulate in Vancouver, British Columbia. After voluntarily informing the Consul of his former membership in the Communist Party,
the applicant was refused a visa because of that membership. He then
applied at the border for admission to the United States and was
referred for an exclusion hearing.
At the hearing, the applicant stated that he joined the Communist
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Interim Decision #2311
Party in Liverpool, England in 1948. His reason for joining was that he
desired social reform in certain areas such as education, aid to the
elderly, health care, and insurance. He stated that the Communist
Party was more interested in reforms in these areas than were the other
political parties in England, and that the Communist Party "offered
what appeared to be ready made answers" (Tr. p. 16).
He testified that he joined the Party at the urging of one of his
neighbors. The "cell" to which he belonged had six members; the membership remained constant during the four years he belonged.
The applicant stated that he became disillusioned with the Communist Party because it focused most of its attention on the Soviet
Union's international aims, with which he disagreed, and it did not
devote sufficient attention to reform in England. The applicant's opposition to the international aims of communism caused him to break with
the Party in 1952. He thereupon moved from thd Liverpool area to
North Wales in order to get away from the Party. The move involved
terminating his business, selling his home, and moving his family to an
area where it "was harder to scrape up a business" (Tr. p. 27). He
immigrated to Canada in 1968.
The applicant was not represented by counsel at the hearing. The
immigration judge informed him of the terms of section 212(a)(28)(I)(ii)
of the Act. This section provides for a waiver of inadmissibility for an
alien who has defected from the Communist Party and who since that
defection "is and has been, for at least five years prior to the date of
application for admission actively opposed to the doctrine, program,
'principles, and ideology of such party or organization," and whose
admission into the United States would be in the public interest.
The applicant testified that he has had nothing to do with communism
since he quit the Party in 1952, and that he has actively opposed
communism in statements made to friends since that time. The applicant submitted letters from four individuals attesting to his strong
anti-communist point of view (Exhs. 6, 7, 8, 9). He also produced one of
these individuals who testified as to several specific examples of the
applicant's anti-communist position. In one instance the applicant had
expressed opposition to Soviet intervention in Czechoslovakia, and in
another instance he had expressed the opinion that communists from
Chile were "troublemakers" who would' not be assets to Canada. In
addition, the applicant submitted to the immigration judge ten letters
attesting to his good moral character.
The immigration judge found that the applicant did not appear to
have been involved with communism since 1952, but that he also did not
appear to have actively opposed communism, and that he had not
established that his admission into the United States would be in the
public interest. He concluded, therefore, that the applicant was exclud-
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Interim Decision #2911
able and that he could not qualify for a waiver under section
212(a)(28)(I)(ii).
On appeal, counsel has moved that we remand the record for the
taking of further evidence concerning the applicant's active opposition
to communism. In an affidavit, the applicant stated that he made a
mistake in thinking that he could handle his exclusion hearing by himself. He stated that he did not understand the type of proof which he
should have submitted to establish his claim that he has actively opposed communism.
Counsel has submitted letters from two individuals who will testify as
to specific anti-communist statements made by the applicant on various
public and private occasions. In addition, the applicant has stated that
he wishes to have an opportunity to testify further as to his specific
anti-communist acts and to the large financial loss which he voluntarily
underwent in order to get away from the Party by moving from Liverpool to North Wales.
In Matter of Galtieri, 12 I. & N. Dec. 778 (BIA 1968), we stated that
the fact that an ex-communist alien was not politically active, and did
not write books or make public statements opposing communism did not
preclude his classification as a defector under section 212(a)(28)(I)(ii) of
the Act. In Galtieri we held that, among other things, factors such as
full disclosure to the American counsul, anti-communist statements
made privately to friends, and the alien's testimony at the hearing as to
his anti-communism could be considered as evidence of active opposition
to communism:
The applicant made a full and voluntary disclosure of his Communist
Party membership to the American consul. He testified candidly and
extensively as to this membership at his exclusion hearing. The applicant's candor and voluntary divulgence of his Party membership gives
considerable weight to his testimony that he has subsequently actively
opposed communism.
It appears that the applicant's membership, although voluntary, was
predicated on his desire to improve living conditions in Great Britain.
He evidently never favored the international aims of communism, and
he broke with the Party because of his disapproval of these goals.
The applicant seems to have voluntarily -undergone considerable
financial hards:uip to get away from the Party. He has apparently been
consistent in his opposition to communism in statements made to friends
over the years since he left the Party. The record indicates that the
applicant is a person of good moral character, and that his admission to
the United States would be in the public interest.
We believe that the applicant should be %given an opportunity to
further develop the evidence of his active opposition to communism. If
the truth of the information set forth -in the motion to remand and
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Interim Decision #23I1
supporting documents can be established, the evidence would apparently fall within the scope of Matter of Galtieri, supra, and the applicant's classification as a defector under section 212(a)(28)(I)(ii) would be
possible.
The applicant's motion to remand will be granted, and the record will
be returned to the immigration judge for further proceedings.
ORDER: The motion is granted, and the record is remanded to the
immigration judge for further proceedings in accordance with this opinion.
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