MATTER OF H
In DEPORTATION Proceedings
A-4743741
Decided by Board August 88, 1958
floportability— Communist Party membership Meaningful association established where respondent declines to testify—Charge based on membership
after entry may be predicated upon original admission for permanent residence although membership had terminated prior to last entry as returning
resident—Suspension of deportation—Physical presence required under section 244(a)(5) most be for continuous ten-year-period preceding application.
(1) "Meaningful association" test in Romoldr v. Perfetto, 355 U.S. 115, is met
where record establishes respondent's membership in the Communist Party
and she declines to testify as to nature of her membership.
(2) Respondent is deportable on charge of membership "after entry" when
she was lawfully admitted for permanent residence in 1929, was a member
of the Communist Party in and rinitari Stator
1947 with a reentry permit after a six-month-trip abroad. Bouetti v. Rogers,
356 U.S. 691, distinguished.
(3) Section 244-(a) (5) application filed In 1956 did not qualify respondent for
suspension of deportation since her departure from the United States in
1947 prevented her from completing a period of continuous physical presence in the United States of ten years prior to 1957. (Cf. Metter of
A-2669541,
5 I. & N. Dec. 261.)
CHARGES'
Warrant: Act of 1952—Section 241(a) (1) [3 U.S.C. 1251(a) (1)l—Rxcludable at entry as one who was member of the Communist Party
of the United States.
Lodged: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)[—Excludable at entry as. one who prior to entry was a member of the
Communist Party of the United States.
Act of 1952—Section 241(a) (6) [S U.S.C. 1251(a) (6)1—Alien
who was a member of the Communist Party of the United
States subsequent to entry.
BEFORE THE BOARD
Discussion: This respondent, a 54-year-old married female, native and citizen of Great Britain, was admitted to the United States
for permanent residence in 1929: She last entered in 1947. She
has been found to have been a voluntary member of the Communist
Party of the United States during part of 1938 and 1939.
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By order dated November 9, 1953, the special inquiry officer
ordered that the respondent be deported on the first lodged charge.
On June 25, 1954, the respondent's appeal from the order of the
special inquiry officer was dismissed. On August 27, 1954, we dismissed the motion for reconsideration. On March 10, 1955, the
Commissioner moved that proceedings be reopened to enable lodging
of the charge that the respondent had been a member of the Communist Party after her original entry in 1929. On April 20, 1955,
this motion was granted on the condition that the court considering
the respondent's request for review of administrative proceedings
would have no objection to such action. Reopened hearing was held
and on December 15, 1955, the second lodged charge was placed.
It states that the respondent is deportable under the Immigration
and Nationality Act as one who had been a member of the Communist Party of the United States after entry (in 1929). On
March 30, 1956, the respondent was found deportable on the new
charge and on August 24, 1956, her appeal to this Board was dismissed. This motion for reconsideration is dated May 22, 1958.
Oral argument was granted and the respondent was heard on
June 24, 1258
Counsel seeks termination of proceedings for three reasons. He
argues that the record fails to establish that the respondent was a
member after her last entry in June 1947 and that under the rule in
Bonetti v. Rogers, 356 U.S. 691, the charge is not sustained. He
argues that the evidence of record is insufficient to sustain the
finding of deportability. And, lastly, he urges that if the respondent is found deportable, she should be declared statutorily eligible
for suspension of deportation.
We shall first discuss the sufficiency of the evidence. The reapendont refused to testify on the issue of Communist Party membership other than to state she was not a member of the Communist
Party at the time of the hearing. Membership in the Communist
Party was established by the testimony of Government witness
K—, a police officer who in 1928 had infiltrated the ranks of the
Communist Party to report on their activities for the police. He
remained a member until the fall of 1939. From 1936 to 1939 he
was an Assistant County Membership Director of the Communist
Party with the duty of keeping track of the units to which members belonged; and he assisted in the semi-annual dues check-up
and annual membership registration. He testified that in 1938 an
application card in the name of R M H had passed
through his hands; that it showed the person involved to be a seamstress who was working in Hollywood in a hotel; and that she was
English-Irish and foreign born. Because the last name on the
application was similar to that of his superior in the police depart-
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ment the witness made an effort to obtain additional information
about R II . He stated that about 6 weeks after he had
seen the card, R M II was pointed out to him at a mass
meeting of the. Communist Party He identified the respondent as
the person who had been pointed out as R---II . He also saw
her at "open" affairs. He stated that he saw her 1939 registration
and 1938 membership book in connection with the performance of
his Communist. Party duties. He testified that his Communist
Party records did not contain information concerning persons other
than members of the Communist Party. He also testified that it
was his job to ascertain the number of dues stamps which should
be purchased by each particular unit; that he accompanied the
Communist Party official who sold the stamps to the unit clues secretary when the sale of the Stamps was made, and that a sale of
stamps was made for the respondent.
K was put through an extensive cross-examination and displayed a good memory. He answered with care and deliberation
and impressed one as being a responsible, reliable witness. The
special inquiry officer relied upon his testimony. In view of the
fact that it was the witness' duty as a Communist Party member
to take care of Communist Party membership records, and it was
his duty as a policeman to learn about the members of the Communist Party, we believe that his contradicted testimony must be
given great weight.
Counsel believes that even if membership is proven, the record
fails to establish that it was a meaningful association required by
Rawoldt v. Perfetto, 355 U.S. 115. The respondent does not allege
that the membership was not meaningful. She has chosen not to
testify on the subject of membership in the Communist Party. There
is no explanation from her as to the nature of her membership.
Under such circumstances, we believe it proper to conclude that she
understood that the organization she had joined was the political
organization known as the Communist Party (Matter of Z----,
A-4472847,
7 I. & N. Dec. 728).
We pass on now to the issue raised by counsel concerning the
fact that the respondent last entered in 1947 and the record does
not show that she was a member of the Communist Party after
that entry, yet her deportation has been ordered on the ground
that she had been a Communist Party member after entry. The
issue is whether the Service may use the respondent's 1929 miry
or must use only the 1947 entry. Regarding her entries, the respondent testified she first entered the United States for permanent
residence in 1929 and that she has resided continuously in the
United States except for about 6 one-day "temporary trips" to
Mexico made in 1945 and a trip of about 6 months to Australia in
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1917. She stated that at the time of leaving the United States,
whether it was to go across the border to Mexico or to go to
Australia, it had been her intention to maintain her domicile in the
United States.
Bonetti v. Ropers, 356 U.S. 691, cited by counsel, involved an
alien who was admitted to the United States for permanent residence in 1923. He had been a member of the Communist Party
of the United States from 1933 to 1936. In June 1937 he departed
from the United States for Spain "abandoning all rights of residence here." On September 19, 1938, he returned to the United
States as a "new" immigrant and was admitted for permanent residence upon surrender of a quota immigrant visa. He remained
continuously in the United States except for a one-day visit to
Mexico in September 1939. His deportation was ordered under
the Art of 1511R, as amended by the Internal Security Act of 1950,
on the ground that he was an alien who had been a Communist Party
member after entering the United States. The issue was whether
the entry he had made in 1923 could be used as a basis of deportation or whether the Service was required to use only the last entry.
The court held that the entry referred to in the deportation statute
was the one which the alien was "lawfully permitted to make" and
"under which he claims the status and right of lawful presence that
is sought to be annulled by his deportation." The court held that
since the respondent claimed no right of lawful presence because of
his entry in 1923 and the Service aid nnt by the deportation order
seek to annul any right of presence acquired under the 1923 entry,
it must be held that the entry in 1938 constituted the entry which
must serve the basis of the deportation proceedings. (The effect
of the reentry from Mexico in 1939 was not explored).
At oral argument counsel maintained that respondent fell within
the rule of the Bonetti case because she lost the right to reenter
after her departure, since upon her return she could have been
excluded if she were excludable under the immigration laws. This
fact, although true, is not relevant to the issue. Bonetti too could
have been excluded if he had been inadmissible. That did not
prevent him from acquiring the right to lawful residence. The fact
that aliens attempting to enter must satisfy all the requirements of
the immigration laws is, therefore, not controlling. The issue is
what entry gave the alien the right of presence which the Service
seeks to annul. In Bonetti the right of presence arose out of the
entry with a vice in 1938. There was no other entry which gave
him this right. Therefore, only the 1938 entry could be used.
In the respondent's case, her right of presence arises out of the
fact that she was lawfully admitted to the United States in 1929.
She did not have a visa when she returned in 1947. She was ex-
125
cused from the visa requirement because she had her home in the
United States; was departing from it temporarily; and was going
to return to it. She was given a reentry permit excusing her
from the necessity of obtaining a visa; the permit was evidence that
respondent had been lawfully admitted for permanent residence and
had never given up her right to such residence (8 CFR 164, 176.201-
2(c), Book 1, 1946 Supp. to Code of Fed. Reg., G.P.O., Wash.,
1947). Bonetti had given up all his rights based upon his first
entry by relinquishing his domicile. He could not return with a
reentry permit,. He needed a new entry based on a new quota visa,
to give him the right to lawful residence. Respondent never gave
up her rights based on her first entry. She took pains to safeguard
these rights. Her right to lawful presence is based on the 1929
entry. The Service seeks to annul the right of presence acquired
under the 1929 entry and never abandoned. Therefore, the entry
in 1929 may serve as the basis for these proceedings. Respondent
was a member of the Communist Party after her entry in 1929. and
under such circumstances, she is deportable as charged in the second
lodged charge.
Respondent eeeks suspension of deportation under section 241(a)
(5), 8 U.S.C. 1254(a) (5), under which she was required to show a
period of ten years' physical presence in the United States immediately preceding the filing of her application (Matter of M ,
A-2669541, 5 I. & N. Dec. '261). Informal application for suspension was made at the hearing on January 26, 1956, and it was
formally presented at the hearing on March 16, 1956. Counsel
maintains that respondent was required to show only a period of
ten years' presence following the ending of the condition which
caused deportability. One difficulty with this contention is that the
respondent has not shown when the status which caused deportahility
did end. It is established that she had been a member in 1938 and
1939. She does not state when her membership ended. Conceivably it could have continued for many years after 1939 when the
Government witness left the Communist Party. In any event, we
have decided that it is the ten-year-period immediately preceding the
application during which the respondent must show physical presence in the United States (Matter of .11 , supra). We see no
reason to change this ruling. The respondent's application was
filed in 1956. It is clear that her departure in 1947 prevented her
from completing a period of continuous physical presence in the
United States of ten years prior to 1957. The fact that she has
such residence at the present cannot he of benefit to her because
when the order of deportation under the Immigration and Nationality Act became final on August 24, 1956, upon dismissal of
the appeal, respondent was not eligible for suspension of deporta-
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tion. In such case, the grant of suspension of deportation is precluded (Matter of 0—, A-4188325, 7 I. 84 N Dec. 457). The
motion must be denied.
Order: It is ordered that the motion be and the same is hereby
denied.
Editor's Note: Upon consideration of a motion of the Service dated June 6,
1960, in the subject case, the Board of Immigration Appeals in an order dated
June 21, 1960, granted the motion, withdrew the outstanding order of deportation, and remanded the subject case to the Service for further consideration
and action.
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