Interim Decision #3123
MATTER OF RUSIN
In Deportation Proceedings
A-21530204
Decided by Board October 31, 1989
A respondent in deportation proceedings who seeks to adjust her status to that of a
lawful permanent resident is not statutorily precluded from doing so by virtue of her
former membership in a Communist organization where she can establish that her
association in that organization was not meaningful or that her membership was
involuntary or that she otherwise comes within one of the specified exceptions set forth
in section 212(a)(28)(1)(i) of the Immigration and Nationality Act, 8 U.S.C.
§ 1182(a)(28)(I)(i) (1982).
CHARGE:
Order: Act of 1952—Sec. 241(a)(2) [8 U.S.0 § 1251(a)(2)]—Nonimmigrant—remained
longer than permitted
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
William E. Lasko, Esquire James M. Kuhn
79 West Monroe, Suite 1312 General Attorney
Chicago, Illinois 60602
BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members
In a decision dated February 13, 1984, an immigration judge found
the respondent deportable based on her own admissions and granted
her application for adjustment of status. The Immigration and
Naturalization Service appealed.' The appeal will be dismissed.
The respondent is a 38-year-old native and citizen of Poland. She
was admitted into the United States on December 1, 1974, as a
1 We note that on July 6, 1988, the Service filed a motion asking that the appeal be
held in abeyance as the respondent had applied for legalization under the applicable
provisions of the Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100
Stat. 3359. The respondent opposed the motion. On July 28, 1988, and again on
December 29, 1988, the Service filed motions seeking 6 additional months to file its
brief, because the record of proceedings was at that time at a legalization Regional
Processing Center, and the =Lord was needed to prepare the appeal. The respondent
also opposed this motion. This request was denied by correspondence dated January 19,
1989. No brief on the merits of this case has ever been filed by the Service.
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Interim Decision #3123
nonimmigrant visitor for pleasure authorized to rernair in the United
States until July 1, 1975. She remained beyond that tin e and on June
23, 1981, an Order to Show Cause and Notice of Hearin.; (Form 1-221)
was issued against her, charging her with deportability as an overstay
under section 241(a)(2) of the Immigration and Nat: onality Act, 8
U.S.C. § 1251(a)(2) (1982). At deportation hearings h Id on January
24, 1984, and February 13, 1984, the respondent conce , ed deportability. She applied for adjustment of status based on a vis petition filed
on her behalf by her United States citizen father, which was approved
on April 23, 1976.
A question arose at the hearing whether the respor dent might be
ineligible for adjustment of status due to possible nadmissibility
under section 212(a)(28)(C) of the Act,
8 U.S.C. § 1182(a)(28)(C)
(1982).2 Section 212(a)(28)(C) makes excludable frc -n the United
States
[aliens who are members of or affiliated with (i) the Comm artist Party of the
United States, (ii) any other totalitarian party of the Unite I States, (iii) the
Communist Political Association, (iv) the Communist or any Min totalitarian party
of any State of the United States, of any foreign state or c - any political or
geographical subdivision of any foreign state, (v) any section, z absidiary, branch,
affiliate, or subdivision of any such association or party, r (vi) the direct
predecessors or successors of any such association or party, regar less of what name
such group or organization may have used, may now bear, or mr , hereafter adopt. 3
Admitted into evidence to establish the respondent's inadmissibility
on this ground was an uncertified copy of a Septe 'nber 6, 1974,
statement apparently prepared by the American consu ate in Poznan,
Poland. This document recommended that the respondent be granted
a section 2 I2(d)(3)(A) nonimmigrant waiver to visit th United States
and indicated that she was inadmissible as a volunt ry member of
"ZSL-United Peasants' Party (Communist)." Also dmitted as an
exhibit was the district director's April 2, 1980, denial of an
adjustment application filed by the respondent prior to the issuance of
2 Under section 245 of the Act, 8 U.S.C. § 1255 (1982), an applicar t for adjustment of
status must he admissible to the United States.
3 The respondent has argued that membership in the Communist arty is no longer a
ground of exclusion, and the appeal is therefore moot, citing section 901 of the Foreign
Relations Authorization Act, Fiscal Years 1988 and 1989, Pub. L No. 100 204, 101 -
Stat. 1331, 1399-1400 (1987). Section 901 prohibited the Govermr ..,nt from excluding
or deporting aliens based on their political beliefs. However, this prc -fibition was only a
temporary, not a permanent, bar to such exclusions and deportati ns. On October 1,
1988, this provision was extended for 2 years, but, critically for tl a present case, the
provision now only extends to nonimmigrant% Thus, aliens seeking immigrant visas or
adjustment of status to that of permanent resident are no longer r - otected by section
901. See Foreign Operations, Export Financing, and Related Progrz ms Appropriations
Act, 1989,
Pub. L. No. 100-461, § 555,
102 Stat. 2268, 2268-36 -37 (1988).
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Interim Decision #3123
the Order to Show Cause. This application was denied by the district
director based on inadmissibility under section 212(a)(28)(C) of the
Act.
At her deportation hearing, the respondent denied being a member
of the Communist Party or any Communist organization. She referred
to the ZSL as a "union" and testified that she was required to> join this
organization in order to gain and keep employment in her field. She
stated that she "would be fired" if she did not join. The respondent
further stated that her wages were necessary to help support her family.
She claimed that she did not know the ZSL was a Communist
organization, that she always knew it to be a union and not a political
party. She testified that she never attended meetings of the ZSL and
that her only involvement was joining in order to keep her employment.
Following the respondent's testimony, the immigration judge issued
his oral decision granting the respondent's application for adjustment
of status. He concluded that the respondent's membership in the ZSL
was involuntary in that it was required for her employment, and that
she joined only for that reason. He further found that, even if her
membership were to be considered voluntary, she had no "meaningful
association" with the Communist Party, citing for this holding the
Supreme Court's decision in Rowo/dt v. Perfetto, 355 U.S. 115 (1957).
In its Notice of Appeal, the Service argues that the immigration
judge's decision was arbitrary, capricious, an abuse of discretion, and
"against the manifest weight of the evidence." More specifically, the
Service contended that the immigration judge failed to give adequate
weight to the September 6, 1974, decision of the American consulate.
Under section 212(a)(28)(I)(i) of the Act, an alien who is excludable
under section 212(a)(28)(C) of the Act may nevertheless be issued a
visa if she can establish that her membership or affiliation with a
proscribed organization 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." In Matter of Hajdu,
16 I&N Dec.
497 (BIA 1978), we applied this section to a case involving adjustment
of status. Thus, an applicant for adjustment is not barred from that
relief by virtue of membership in a proscribed organization if the
membership was involuntary or otherwise comes within the exceptions
set forth in section 212(a)(28)(I)(i) of the Act.
In Rowoldt v.
Perfetto, supra, the Supreme Court, in a deportation
case not involving adjustment of status, held that an alien could not be
deported under section 22 of the Intetual Security Act of 1950, 64 Stet.
987, 1006, for past voluntary membership in the Communist Party
unless the alien had a "meaningful association" with the party. In
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Rowoldt, the alien joined the Communist Party while living in the
United States, paid dues, and attended meetings. His membership
continued for approximately a year, until he was arrested and placed
in deportation proceedings. The Court reversed the finding of
deportability, concluding that the record did not support a finding of a
meaningful association with the Party. Quoting from Galvan v. Press,
347 U.S. 522, 528 (1954), the Court held, "There must be a substantial
basis for finding that an alien committed himself to the Communist
Party in consciousness that he was 'joining an organization known as
the Communist Party which operates as a distinct and active political
organization?" Rowoldt v.
Perfetto, supra, at 120.
The "meaningful association" requirement was reaffirmed in
Gastelum-Quinones v. Kennedy,
374 U.S. 469 (1963). There it was held
that an alien could not be deported for membership in the Communist
Party where he had merely been listed on the party rolls and the
membership had been "devoid of any 'political' implications." See
also Galvan v.
Press, supra; Matter of Paul,
10 I&N Dec. 431 (BIA
1963).
Subsequently, in Berdo v. INS,
432 F.2d 824 (6th Cir. 1970), the
Rowoldt "meaningful association" test was applied to a case involving
an application for adjustment of status. In Matter of Hajdu, supra,
however, we rejected the notion that Rowoldt should he applied to an
adjustment of status case_ We noted that with an adjustment application, the burden is on the applicant for relief to establish that he is not
inadmissible under section 212(a)(28) of the Act. In a footnote, we
specifically , declined to follow the holding in Berdo v. INS, stating that
no other court had followed the reasoning of that decision.
Since our decision in Matter of Hajdu, supra, another court has
considered whether the "meaningful association" test should apply in
determining an alien's admissibility for adjustment purposes and has
concluded that it should. In Firestone v. Howerton,
671 F.2d 317 (9th
Cir. 1982), the court concluded that Congress, in enacting the
ameliorative provisions of section 212(a)(28)(I) of the Act, intended
that only persons whose association with the Communist Party was
meaningful were to be excluded under section 212(a)(28) of the Act.
The court noted that the Supreme Court in Galvan v.
Press, supra, and
Rowoldt v.
Perfetto, supra, had considered the exemption categories, in
the deportation context, not as narrow exceptions but rather as
indicative of the generous spirit in which the exemptions were to be
applied. The court of appeals emphasized that the section 212(a)(28)(I)
exemptions, which before 1952 had a counterpart in the deportation
provisions, apply now only to exclusion and held that they should be
applied, in assessing admissibility, in the benign manner suggested by
the Supreme Court in Rowoldt v.
Perfetto, supra.
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Interim Decision #3123
We have now concluded that the "meaningful association" test set
forth by the Supreme Court in its cases should be applied in
adjustment of status proceedings. Our decision in Matter of Hajdu,
supra, is accordingly reversed insofar as it holds the opposite.' The
only two courts of appeals which have addressed this issue have
disagreed with our holding in Matter of Hajdu, and we are now
persuaded that those decisions are reasonable, are consistent with
legislative intent and Supreme Court precedent, and should be
followed.
In the present case, the respondent has testified that she joined the
ZSL because it was necessary for her continued employment, and that
she believed it to be a union and did not know it to be a Communist
political organization. She was not active in any of the organization's
activities. It cannot be said that she in any way consciously committed
herself to a Communist organization. It is clear to us that the
respondent did not have a meaningful association with the Communist
Party or one of its affiliates while she was living in Poland.'
We also find that the respondent's membership in the ZSL was not
voluntary in any event. The respondent testified that she was required
to join that organization in order to keep her employment. She further
testified that her wages were necessary in order for her family to meet
its basic living expenses. Under these circumstances, we agree with the
immigration judge that the respondent's membership in the ZSL was
involuntary within the meaning of section 212(a)(28)(I) of the Act, and
that she therefore is not ineligible for adjustment of status.
Inasmuch as we find the immigration judge's decision in this case to
have been correct, the Service's appeal from that decision will be
dismissed.
ORDER: The appeal is dismissed.
'aiter of Hajdu remains good law insofar as it holds that the actual exemptions set
forth in section 212(a)(28)(I) apply to cases involving adjustment of status.
5 We note that the record before us does not in fact clearly establish that the ZSL is a
Communist organization or affiliate. However, on appeal the respondent does not
contest the Government's characterization in this regard.
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