MATTES OP C—••-
In DEPORTATION Proceedings
A-4268536
Decided by Board February 4, and May 2$, i960
DeportabMity—Section 241(a)(6), 1952 act, member of Communist Party after
entry—Charge properly based on earlier entry where residence not subsequently abandoned.
Respondent was admitted for permanent: residence in 1926; abandoned United
States residence in 1981; reentered unlawfully a year later in 1833; was
again admitted for permanent residence In November 1940 with a quota
Immigrant visa after an overnight's absence In Canada.
Bespondent Is charged with being deportable under section 241(a)(6) of the
Immigration and Nationality Act baaed upon membership in the Communist
Party of the United States after bis 1883 entry. Evidence showed that
respondent was a member of the Communist Party from 1927 to 10SS within
holdings of Rowolit and Oalvan.
Supreme Court's ruling In Bonettt r. Ropers, S56 U.S. 691, does not require
dismissal of charge because based on respondent's 1932 entry. Sonettt is
based on novel facts and circumstances, particularly abandonment of prior
lawful residence and an administratively adjudicated lawful admission when
he made a new entry in 1938. Here, there was no abandonment of prior
(1932) residence but a mere technical adjustment of status following an
overnight's absence. Unlike Bonetti, the ground of deportation here Is assigned under the Immigration and Nationality Act, which defines "entry"
as any coming of an alien from a foreign port or place.
CHARGES :
Warrant: Act of 1052—Section 241 (a) (1) [S JJ.S.C. 1251(a) (1)J—Excludable at time of entry by Act of October 16, 1918, as amended, to
wit, member of Communist Party prior to entry (S U.S.O. 1ST).
Lodged: Act of 1952—Section 341(a)(6) {8 U.S.O. 1251(a) (6)]—Member
of Communist Party of the United States after entry.
BEFORE THE BOARD
(February 4, I860)
D i s c u s s i o n : T h e case comes forward on. appeal from the order of
the special inquiry officer dated September 28, 1969, denying the
respondent's application for suspension of deportation and directing
that he be deported solely on the lodged charge.
The record relates to a native of England, subject of Great
Britain, 60 years old, male, who first entered the United States on
February 23, 1926, at Detroit, Michigan, and was admitted for
permanent residence upon presentation of an immigration visa. In
June 1981 he abandoned his residence in this country and went back
to England, where he remained for a period of • about 11 or 12
months'. He left England in 1932 as a visitor to Canada, and reentered this country in 1933. However, at the time of his inspection by an immigration officer the respondent did not reveal his
absence to England and indicated to the inspecting officer that he
was returning after'a one-day visit to Canada. He presented the
birth certificate, of his son and gas. and electric bills which he had
paid in Detroit, and was thereupon admitted as a returning resident.
He was not at that time in possession of any documents required
for admission as an immigrant. The respondent acknowledged that
he -was aware that bis entry into the United States at that time
was illegal and he thereafter adjusted his entry, by obtaining a
passport from the British Consul in Detroit, staying overnight in
Canada and obtaining a quota immigrant visa .from the American
Consulate: on November 20,1940. He- reentered the United States for
permanent residence on the -same day at the port odf Detroit, Michigan, and wag admitted as a' quota immigrant.' He has since re-r
mained in tne United States except fdr a visit of a few hours to
Canada on i945 from which lie returned upon presentation of his
resident alien's border-crossing card.
The proceedings in this ease were instituted in 1953, and on
December 18, 1958, wo jammed the finding of depbrtability on the
charge stated in the warrant of arrest Thereafter, the matter was
in court, was subsequently reopened pursuant to stipulation, and
on January 28, 1958, we dismissed the appeal from the decision of
the special inquiry officer dated October 14,1957,findingthe respondent deportable on thejlodged charge. On June 18,1958, we granted
a motion to reopen .in view of the Supreme Court decision in
Bonetti v. Rogers, 356 U.S. 691, and to permit the respondent to
apply for. suspension of deportation.
The evidence regarding the respondent's membership in the
Communist Party has been reviewed in our previous orders and
there would be no point in again reviewing this material. It is sufficient to say that on the basis of the testimony of witnesses and the
respondent's own testimony, we find -that there was "meaningful
association" with the Communist Party within the holding of Bowoldt v, Perfetto,
355 U.S. 115, and voluntary membership within
the meaning of Galvan v. Press,
347 U.S. 522.
The case, of Bonetti v. fiogers, supray involved an alien who was
admitted for permanent residence an., 1923, joined the Communist
Party and was a member until 1936. In 1987 be departed from
the United State? abandoning all rights of resideneeunder his entry
in 1923, and was subsequently admitted to the-United States as a
quota immigrant in 1938. In October 1951, proceedings were instil
tuted to deport him under sections 1 and 4(a) of the Anarchist Act
of 1018, as amended by section 22 of the Internal Security Act of
1950, as an "alien who has been, after entry into the United States,
a member of the Communist Party." In construing that charge,
the court held that where an alien after bis entry into the United,
States leaves the United States with the intention of abandoning his
rights of residence in this county, and later is again admitted to
the United States as an immigrant, he could be deported under
this statutory provision-pmly if;he was * member of a deportable
class at the time of his second entry or at any time thereafter;
in other words, an entry for permanent residence is no longer an
entry within the meaning of the statutory provision after the alien
has left the United States with tne intention of abandoning his
residence therein.1
In the present case there is involved another charge, to wit,
section 241(a)(6) of the Immigration and Nationality Act, which
charges deportability of ah alien who is, or at any time has been,
after entry, a member of the Communist Party. The same statute
how defines the term "entry" in pertinent part as any coming of an
alien to the United States from a foreign port or place.8 A. further
distinction may be noted in the instant case, in that, after the
respondent's return to this country in 1932 there was no subsequent
abandonment of residence as existed in the Bonetti case, even
though there was an adjustment of immigrant status by means of
an absence of a few hours in Canada and a. return to the United
States with an immigrant visa. The record, however, makes it
apparent that no abandonment of the former residence was intended
at that time, nor is any claimed. The case, therefore, is distinguishable from the Bonetti case and from the case of BerreH v. Grossman, 208 F-2d 498, which involved membership from 1937 to 1939
in the Communist Party of Tunisia, a stipulation as to lawful admission to the United States for permanent residence in 1948, and
likewise involved section 4(a) of the Act of October 16, 1918, as
amended by the Internal Security Act of 1960.
The respondent at the reopened hearing made application for suspension of deportation. It is doubtful if he is eligible for suspension of deportation in view oi the fact that at the time a final
order of deportation was entered by this Board on December 18,
1953, the respondent did not possess the requisite 10 years' continuous physical presence in the United States, since he had been ab-
1
See. Annotation: Subversive Aliens, 2 L. Eld. 2d 1619.
'Section 101(a)(13), Immigration and Nationality Act; 8 U.3.O. 1101(a)
(18).
551
sent to Canada in 1945.3 Even if we felt inclined to consider thu
application for suspension of deportation, despite the factors in
the case of respondent's long residence in this country and family
ties of a permanent resident wife and an adult citizen son, it is to be
noted that at prior hearings he failed to cooperate and chose to
remain mute on the question regarding Communist Party membership and declined at that time to apply for any relief.4 Such failure
to cooperate justifies a refusal of discretionary relief.
Order: It is ordered that the appeal be and the same is hereby
dismissed.
BEFORE THE BOARD
(May 24, I960)
Discussion: The case is before us on motion of counsel requesting
reconsideration of our prior order of February 4, 1960, dismissing
the appeal from the order of the special inquiry officer dated September 28, 1959, ordering deportation on the lodged charge stated
above.
The facts, briefly stated, relate to a native of England, subject
of Great Britain, 60 years old, male, who first entered the United
States on February 23, 1926, and was admitted for permanent
residence upon presentation of an immigration visa. He abandoned
his residence in this country in June 1931 and returned to England,
where he remained for a period of approximately a year. He entered Canada in 1932 as a visitor. He obtained entry into the
United States by posing as a returning resident, concealing his
abandonment of residence and return to England, and was admitted
as a nonquota returning resident under the provisions of section
4(b) of the Immigration Act of 1924 (8 U.S.C. 204(b)). Aware
that this entry into the United States was illegal, he sought to adjust his entry by obtaining a passport from the British Consul
in Detroit, staying overnight in Canada, obtaining a quota immigrant visa from the American Consulate on November 20, 1940, and
reentering the United States as a quota immigrant after an overnight absence in Canada. His only other absence has been for a
visit of a few hours to Canada in 1945, from which he returned
upon presentation of a resident alien's border-crossing card. We
have already found the evidence establishes the respondent's membership in the Communist Party of the United States at various
times between 1927 and 1938.
Counsel in his present motion again argues the applicability of
Bonetti v. Rogers, 356 U.S. 691. It is 'contended that under the
» H a t t e r of C i — , 7 I . ft N. Dee. 1 8 ^ ; Matter of O , 7 I. A N, Dee.
457.
* Jimenez v. Barber,
252 F.2d 550, cert. den. SOS U.3, 908.
552
holding of the Supreme Court in the Bonetti case the proceedings
should be terminated.
The Bonetti case was carefully considered by us previously. To
review, Bonetti was a lawful permanent resident of the United
States from November 1, 1923, to June 28, 1937, when he departed
voluntarily to go to Spain and fight in the Spanish Republican
Army, abandoning QU rights of residence, m the United States. His
Communist Party membership existed from 1932 to 1936. Thereafter, he came to the United States on September 19, 1938, as a
new "quota immigrant," was excluded by a board of special inquiry,
but the order was reversed on administrative appeal and on October 8, 1938, he was admitted for permanent residence as a quota
immigrant. Based upon the novel factual situation and circumstances of the case, particularly the elements of abandonment of the
prior lawful residence in the United States and the subsequent
administratively adjudicated lawful entry, the Supreme Court held
that the latter entry constituted "the time of entry into the United
States" within the meaning of section 4(a) of the Act of October 16,
1918, as amended by section 22 of the Internal Security Act of
1950, and since the alien there was not a member of the Communist
Party "at the time of entry into the United States" on October 8,
1938, and had not been~ a member "at any time thereafter," he was
not deportable under section 4(a) of the Act of October 16j 1918,
as amended by section 22 of the Internal Security Act of 1950.
I n the present case, the "novel circumstances" which were decisive in the decision of the majority opinion of the Supreme Court
are not present. The respondent's membership in the Communist
Party herein existed during a period of his illegal residence in the
United States; there is not present the abandonment of former lawful residence but merely an attempted adjustment after one night's
absence to Canada; and no administratively adjudicated lawful'
entry. The ground of deportability herein is predicated upon a
different section, to wit, section 241(a) (6) of the Immigration and
Nationality Act (8 U.S.C. 1251(a) (6)), and the entry of November
20,1940, occurred subsequent to the enactment of the Alien Registration Act of 1940 (54 Stat. 670), approved June 28, 1940. In view
of these differences, it is believed that the "novel circumstances"
of the Bonetti case are not herein present and the principles applied
to those "novel circumstances" are not apposite here. The motion
will be denied.
Order: I t is ordered that the motion to reconsider our prior
order of February 4, 1960, dismissing the appeal from the order of
the special inquiry officer dated September 28, 1959, directing de^
portation on the lodged charge be and the same is hereby denied.
553
