MATTER ow L
To DEPORTATION Proceedings
A 1138390
Decided by Board March 4. 1959
Deportation charge—Member of proscribed organization—Charge based on section 4(a) of amended 1918 act does not authorize deportation when membership terminated prior to controlling entry date.
(1) Where respondent's membership in a proscribed organization in the United
States terminated prior to his entry with an immigration visa In 1947, which
entry was stipulated as being a lawful admission for permanent residence,
he is cot deportable sinner the -act of October 16, 1315, a5 ameialeil by the
Internal Security Act of 1950 (Bonetti v, Rogers, 356 U.S. 691; Berra( v.
Grossman,
208 F.2d 498).
(2) Section 4(a) of the amended 1918 act requires deportation of an alien
who was at the time of entering the United States or any time thereafter a
member of a proscribed organization but does not authorize deportation
when membership terminated prior to entry.
(3) In accordance with Bonetti v.
Rogers, supra, respondent's entry on July
14, 1947, which is the only occasion when he was admitted for permanent
residence, controls the disposition of the deportation charge; respondent's
prior illegal entry in 1929 must be disregarded.
CHARGE:
Warrant : Act of October 16, 1918, as amended September 23, 1950 (Section
22, Internal Security Act of 1950; 64 Stat. 1006; 5 C.S.C. 137-3,
1946 ed., Sapp. V)—Member of affiliate of Communist Party of
United States prior to, at the time of, and after entry.
BEFORE THE BOARD
Discussion: This ease is before us pursuant to the special inquiry officer's order of November 17, 1958, terminating the proceedings and certifying the (=ago to this Board for final rirri,inn
The respondent is a 52-year-old married male, a native and
citizen of Poland, who last entered the United States on July 11,
1947, when he was admitted for permanent residence. IIe has resided in the United States since 1929 at which time he had entered
as a stowaway. The respondent was a member of the International
Workers Order at intervals from 1931 to 1938 and continuously from
1939 to 1944 when a Jewish section of the Order was established.
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This section was known as Jewish Peoples Fraternal Order, and
the respondent was a member thereof from 1944 until January 1946.
He was employed from 1934 to June 1948 as a teacher in Jewish
children',3.choola connected with these two organivationg The cola
issue to be determined is whether the special inquiry officer's order
should be approved.
We previously held that the International Workers Order was
an affiliate of the Communist Party (Matter of C , 6 I. & N.
Dec. 20 (1953)), and we have no doubt that the Jewish Peoples
Fraternal Order was also an affiliate or subsidiary of the Communist Party. The charge stated in the warrant of arrest is that
the respondent was a member of a subsidiary or affiliate of the
Communist Party of the United States "prior to, at the time of, and
after entry." He was not charged with having been off iliuted with
the Communist Party or a subsidiary. Hence, his membership in
the organization until January 1946 is material but not the fact that
until June 1948 he continued as a teacher in the Jewish children's
schools connected with the organizations.
The decision in Bonetti v. Rogers,
356 U.S. 691 (1958), is controlling and requires termination of the proceedings. It is clear
from that decision that section 4(a) of the Act of October 16, 1918
as amended by section 22 of the Internal Security Act of 1950 requires deportation of any "alien who was at the time of entering
the United States, or has been at any time thereafter," a member of
an affiliate of the Communist Party of the United States, but that
deportation is not authorized where the membership terminated prior
to entry.
In connection with the question concerning the "time of entering
the United States," the warrant of arrest specifically refers to the
repondent'e entry on July 14, 1947, which was the sole occasion
when he was admitted for permanent residence. In accordance
with Bonetti, it is only this date which is pertinent to our consideration, and the respondent's illegal entry in 1929 must be disregarded.
There is one respect in which the facts in the respondent's case
differ from those in Bonetti v.
Rogers, supra. The Act of October
16, 1918 was amended on June 28, 1940 by the Alien Registration
Act so that thereafter aliens were excludable if they had at any
time been members of or affiliated with any organization advocating
the overthrow of the Government of the United States by farce end
violence. The respondent's entry in 1947 was subsequent to the
amendment whereas Bonetti's last entry had occurred in 1939 prior
to the amendment. However, the respondent was not charged with
being deportable under section 19(a) of the Immigration Act of
1917 (8 U.S.C. 155(a)) as an alien who, at the time of entry, was
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a member of a class excluded by law, and it was specifically stated
in paragraph 17 of the stipulation entered into between counsel and
the examining officer that the respondent was lawfully admitted for
permanent residence on July 14, 1947.
In Berrebi v. Grossman, 208 P.201 498 (C.A. 5, 1953), which involved membership in the Communist Party of a foreign country
prior to the alien's entry into the United States in 1948, the court
held that he was not deportable and referred to the fact that there
was a stipulation that he was lawfully admitted for permanent residence in 1948. Under the circumstances and in view of the fact that
the respondent's last entry in 1947 occurred prior to the enactment
of the Internal Srrurity Art, his rase, is not distinguishable from
Bonetti even though the entry took place subsequent to the amendatory Act of June 28, 1940. Since the respondent was no longer a
member of the proscribed organizations at the time of entering the
United States and has not been a member at any time thereafter,
the case falls squarely within the Bonetti decision and the proceedings must be terminated.
Counsel's letter dated January 8, 1909, submitted in lieu of vial
argument, contains a request for a determination of the respondent's
contention that he was not aware of the affiliation between the
Communist Party and the two organizations of which he was a
member. The special inquiry officer stated in his decision that it
was unnecessary to consider this question. Since we have held that
the Bmzetti decision requires termination of this deportation proceeding, the question of whether the respondent was aware of the
affiliation between the Communist Party and the two organizations
is moot, and we decline to make any determination of that question.
Order: It is ordered that the special inquiry officer's order of
November 17, 1958, terminating the proceedings, be and the same
is hereby approved.
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