Interim Decision #254ti
MATTER OF HAJDU
In Deportation Proceedings
A-20202102
Decided by Board April 11, 1978
(1)In determining whether respondent's membership in the Communist Party of Hungary
falls within the proviso contained in section 212(a)(2)(1) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(28)(I), concerning "involuntary" membership, the fact
that respondent was already employed at the time he joined the Party would not
necessarily render him inadmissible for permanent residence and ineligible for adjustment of status. (Case remanded for fuller development of record below.)
(2) In adjustment of status proceedings, the burden is upon the respondent, as an
admitted member of the Communist Party of Hungary, to establish that he is eligible
for permanent residence under the proviso in section 212(4(28)(1) concellibig Involuntary" membership. The "meaningful association" test of Communist Party membership
enunciated by the Supreme Court of the United States in Galscen v. Press, 347 U.S. 522
(1954) and subsequent cases arose in the context of deportation proceedings (where the
Government bears the burden of proof) and it has no direct application in an adjustment
or status case.
CHARGE:
Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]--Nonimmigrant visitor—
remained longer
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
}Tarry F. Anestos, Esquire Jay D. Steinberg
7315 Wisconsin Avenue, N.W. Acting Appellate Trial Attorney
Suite 323-E
Washington, D.C. 20014
Attorney of record:
Deidre Magnetic), Esquire
Robinson, Robinson & Cole
799 Main Street
Hartford, Connecticut 06103
BY: Milhollan, Chairman; Appleman, Maguire, and Farb, Board Members
In a decision dated September 28, 1976, an immigration judge found
the responded deportable as charged and granted his application for
the privilege of voluntary departure in lieu of deportation on or before
October 28, 1976. He also denied his application for adjustment of
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Interim Decision # 4. f546
status. The respondent has appealed from that part of the immigration
judge's decision finding him ineligible for adjustment. Oral argument
was held on October 27, 1977. The record will be remanded.
The respondent is a 45-year-old male, native of Greece and citizen of
Hungary, who was admitted to the United States on July 9, 1974, as a
nonimmigrant visitor for pleasure. His spouse and three children are
residing in Budapest, Hungary. The respondent is the beneficiary of a
fifth-preference visa petition filed by his sister, a United States citizen,
which was approved on January 22, 1975.
The only issue raised on appeal is the immigration judge's finding that
the respondent is not admissible for permanent residence due to his
membership in the Hungarian Communist Party.
The following details concerning the respondent's background were
supplied by his hearing testimony and sworn statements on two different occasions: in an affidavit executed on July 12, 1976 (Ex. 4), and in an
affidavit before a Service official (Ex. 8) executed on January 22, 1975.
The respondent came to Hungary as a refugee from Yugosla -via in
1950. From 1950 until 1952 he attended a trade school while working in a
refugee camp. In 1953 he obtained employment in a dynamo factory
'with the help of another Greek refugee. He stated that this pprsnil and
three other Greek refugees exerted continuous pressure on him to join
the Communist Party so that he would be able to move into better jobs
with increased job benefits. His employer also joined in these efforts. In
late 1956, at the age of 24, the respondent joined the Communist Party.
He testified that his job would have been taken away from him if he had
not joined (Tr. p. 16). According to the respondent, at that time he and
his family i lived in a small room and had "absolutely nothing" (Tr. p.
15).
A few months after joining the Communist Party, the respondent was
transferred to a newer factory with better working conditions and
increased pay. From 1972 until 1974, when he left to come to the United
states, the respondent worked at a refrigerator repair factory at twice
the salary he had received at his former job.
The respondent testified that his participation as a member consisted
of attending compulsory meetings two or three times a year and paying
dues, also compulsory, which were deducted from his salary (Tr. P. 16).
When he applied for a nonimmigrant visa, he disclosed the feet ®f his
Communist Party membership and was granted a temporary waiver of
inadmissibility. At the hearing the respondent introduced the original
and translation of a letter from his brother-in-law in Hungary informing
the respondent that he had been told by his boss in October of 1974 that
The respondent was married in 1952, divorced in 1966, and remarried in 1969. His
(children were born in 1954, 1957, and 1961.
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Interim Decision #2646
the respondent had been expelled from the Communist Party. The
writer stated that a Communist Party official had confirmed this action
(Ex. 5).
Under section 212(a)(28)(I) of the Act, 8 U.S.C. 1182(a)(28)(I), membership in, or affiliation with, a Communist or other subversive organization will not be a bar to admissibility if "(i) such membership or affiliation is or was involuntary, or is or was solely when under sixteen years
of age, by operation of law, or for purposes of obtaining employment,
food rations, or other essentials of living and where necessary for such
purposes . . . ."
The immigration judge concluded that the respondent already had the
"necessities of life" when he joined the Communist Party and that the
prospect of gaining a better job and higher wages did not make his
membership involuntary, within the meaning of section 212(a)(28)(I)(i)
of the Act, 8 U.S.C. 1182(a)(28)(I)(i). Although he recognized that
Communist Party members in a Communist-controlled country enjoy
"greater privileges" than nonmembers, the immigration judge noted
that the respondent's reason for joining "might be applied in the case of
every alien who joins the Communist Party."
The respondent maintains' that his sole motivation for joining the
Communist Party was economic compulsion and that his membership
was devoid of any political implication. He asserts that his Communist
Party membership should not preclude -him from being granted adjustment of status.
Our review of the record convinces us that further exploration of this
issue is warranted. Although the respondent did testify that he was
encouraged to join the Party to improve his job opportunities and
working conditions, he also stated that he would have lost his job if he
had not joined (Tr. p. 15). This claim was also made during his interview
by a Service official on January 22, 1975 (Ex. 8).
By qualifying the type of Communist Party membership that will
preclude an alien from being admitted to the United States, Congress
indicated that an alien's motivation for joining the Communist Party is a
critical factor. Communist Party membership may not be a bar to
admission if it was necessary in order to obtain employment, food, or
other "essentials of living." This latter phrase has been construed to
excuse membership when it was required in order to retain a present
position (as an officer in the Yugoslavian Army), Matter of Mazar, 10 I.
& N. Dec. 79 (BIA 1962), or to enable an alien to move -from a
starvation-level salary to a subsistence-level salary. See Matter of V—,
8 I. & N. Dee. 554 (BIA 1960). Cf. Berdo v. INS,
432 F.2d 824, 832 (6
Cir. 1970). And where Communist Party membership entitled an alien
to a tuition free high school education (which he could not otherwise
have afforded), it was also found to be within the proviso to section
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Interim Decision #2646
212(a)(28) of the Act, 8 U.S.C. 1182(a)(28). See Matter of Pust, 11 I. &
N. Dec. 228 (BIA. 1965). Thus, in a Communist country or one that is
dominated by the Communist Party, an alien who joins the Communist
Party to obtain employment, retain employment, or even advance in
employment commensurate with his background may be within the
exception to the bar.
The assumption by the immigration judge that the respondent already had the necessities of life because he had a job before he became a
Communist Party- member is untenable, in our opinion. Since the immigration judge did_ not make a finding of credibility with regard to the
respondent's testimony concerning his Communist Party membership, 2
itsnoclearwhyfdtknoehrspdt'claimhe
would have lost his job if he had not become a Communist Party
member.
At the same time, we do not believe that the respondent has presented sufficient evidence to justify his claim that he joined the Communist Party in order to obtain the necessities of life. In the memorandum of law furnished by the respondent there is a reference to the type
of housing situation in which the respondent and his family lived prior to
hie joining the Communist Party. This type of detailed evidence was not
presented at the hearing, however. Moreover, in previous cases involving the same issue, considerable background material has been supplied
concerning the role of the Communist Party in a particular country and
the hardships experienced by non-Party members. See, e.g., Berdo v.
INS, supra; Matter of Janus and Jana, 12 I. & N. Dec. 866 (BIA 1968);
Matter of Mazar, supra.
As a final matter, we must express our disagreement with the respondent's argument that the appeal should be sustained because the
Government has failed to establish that his Communist Party membership met the "meaningful association" test applied by the Supreme
Court of the United States in Galvan v. Press,
347 U.S. 522 (1954) and
subsequent cases, Rowo/dt v. Perfetto,
355 U.S. 115 (1957) and
Gastelum-Quinones v. Kennedy,
374 U.S. 496 (1963).
In Galvan v.
Press, supra, the issue was whether an alien could be
deported due to "membership" in the Communist Party of the United
States. The Court recognized that an alien's participation in the Communist Party might be so nominal that it would be unfair to attribute the
consequences of "membership" to him.
2 The immigration judge did suggest that he disbelieved the respondent's claim that he
decided to remain in this country only after he had been here for several weeks. The
existence of a "preconceived intent to remain" is an adverse factor in determining whether
adjustment of status is warranted. However, the immigration judge's decision to deny
adjustment in this case appears to be based solely on his finding that the respondent is
inadmissible for permanent residence.
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Interim Decision #2646
The "meaningful association" test originated in the context of deportation proceedings where the Government has the burden of proof. In an
application for adjustment of status, the burden is squarely upon the
respondent to show that he is not inadmissible under section 232(a)(28)
of the Act, and, further, that he merits a favorable exercise of discretion.' As an admitted member of the Communist Party, the respondent
must establish that his membership was involuntary or to obtain the
"essentials of living."
Of course, the degree and extent of an alien's participation in Communist Party activities are relevant to determining whether or not his
membership falls within the proviso to section 212(a)(28)(I)(i). Evidence
of nominal or quiescent participation would strengthen an alien's claim
that economic compulsion rather than ideological sympathy caused him
to join the Communist Party. See, e.g., Matter of Pust, supra. However, the issue in this case is not whether the respondent's membership
was nominal or meaningful but whether it was for the purpose of
obtaining the necessities of life. See Grzymala-Siedlecki v. United
States, 285 P.2d 836, 840 (5 Cir. 1961).
Based on the foregoing, the case will be remanded for further proceedings and the entry of a new decision.
ORDER: The record is remanded.
Board Member Louis P. Maniatis abstained from consideration of this
case.
3 In Berdo v. INS, supra, at 848, the court expressed the view urged by the respondent
that in an adjustment of status case, the Government must show that an alien's membership in the Communist Party was "meaningful" if it is to render him inadmissible under
section 212(a)(28). No other court has followed this line of reasoning and we suecificailV
decline to do so here.
501
