MATTER OF V
In DEPORTATION Proceedings
A-10659043
Decided by Board February 8, 1960
Deportation proceedings—Membership in subversive organization—Authority
of B.I.A. and SW to determine admissibility at time of entry and to apply
exemptions in section 212(a)(2S)(I).
(1) Authority of the Board and special inquiry officer in deportation proceedings to adjudicate ) .-.)hether an alien was admissible or inadmissible at
time of entry includes the authority to determine whether an alien subject
to the provisions of section 212(a) (28) of the 1952 act was within any of
the exemptions contained in subparagraph (1) of that section.
(2) Exercise of the authority under subparagraph (I) is not dependent upon
whether the alien ever appeared before an American consular officer or
whether that officer made a finding of involuntary membership or defector
status.
CHARGES :
Order: Act of 1052 Section 211(a) (1) [5 U.S.C. 1231(a) (1)] — ETeludable
at entry under 8 U.S.C. 1182(a) (20)—No immigrant visa.
Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)1—Excludable
at entry under 8 U.S.C. 1182(a) (28)—Member of or affiliated with
Communist Party of foreign state.
BEFORE THE BOARD
Discussion: Following a decision of a special inquiry officer
that the respondent was deportable on the two grounds stated above,
counsel filed a motion for reconsideration. This was denied by the
special inquiry officer and the respondent appealed. On July 17,
1959, we sustained the appeal insofar as it related to the second
charge and dismissed the appeal as to the first charge. The Service
filed a motion for reconsideration on September 16, 1959. On November 20, 1959, we found it necessary to request the Service to
clarify its position and the Service filed a supplementary statement
on December 28, 1959. Our order of November 20, 1959, and the
Service statement of December 28, 1959, are made a part hereof as
appendices "A" and "B," respectively.
The respondent is a 28-year-old unmarried male, native and
citizen of Yugoslavia, whose only entry into the United States oc-
554
curred on May 11., 1956, at which time he was admitted temporarily
as a crewman. He intended to remain in this country permanently
but was not in possession of an immigrant visa. The second charge
is predicated on the respondent's former membership in Savez
Komunista Jugoslavije (the Communist Party of Yugoslavia), and
the issue to be determined is whether that charge is sustained.
Taking into consideration our orders of July 17 and November 20,
1959, and the Service motions of September 16 and December 28,
1959, the following is applicable generally to deportation cases in
which one of the charges is that the alien was excludable at the
lime of entry under section 212(a) (28) of the Immigration and
Nationality Act [8 U.S.C. 1182(a) (28)]. The Service and this
Board are in agreement that, in deportation proceedings, special
inquiry officers and this Board have jurisdiction to determine
whether an alien was admissible or excludable at the time of entry
under B U.S.C. 1182(a) (28) where the alien did not appeal before
an American consular officer or where the alien did appear but no
finding was made by the American consular officer that the alien's
membership was involuntary or that he was a defector.
The prooedopal, provisions of subparagraph (I) of 8 U.S.C. 1182
(a) (28) are not applicable to deportation cases. In other words,
an American consular officer's finding of involuntary membership is
not a prerequisite to a determination in deportation proceedings that
the alien was, in fact, admissible at the time of entry notwithstanding former membership in a proscribed organization. However, the substantive provisions of that subparagraph set forth
the criteria for determining whether membership was voluntary or
involuntary, that is, the alien can be found to have been admissible
at the time of entry 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 when necessary for such
purposes, or (ii) (a) since the termination of such membership or
affiliation, such alien is and has been, for at least five years prior to
the date of the application for admission actively opposed to the
doctrine, program, principles, and ideology of such party …, and
(b) the admission of such alien into the United States would be in
the public interest."
With respect, to cases in which the alien is charged with having
been excludable under 8 U.S.C. 1182(a) (28) and also with having
been excludable on the ground that the visa was obtained fraudulently by concealment of former membership in a proscribed organization, the Service States that. a. c7aMPrate concealment from
the consul of Communist Party membership must be regarded as a
material misrepresentation within 8 U.S.C. 1182(a) (13) even though
555
there was a finding of involuntary membership or defector status
made by a special inquiry officer or the Board after the alien's arrival in the United States. Hence, it appears that the Service agrees
with the Board that, even in such cases, the charge that the alien was
inadmissible at the time of entry under 8 U.S.C. 1182 (a) (28)
may be found not sustained. We will reserve for consideration in
specific cases the question of whether excludability under 8 U.S.C.
1182(a) (19) has been established.
The decisions of Gabian v. Press, 347 U.S. 522 (1954), and
,
Rowoldt v. Perfetto, 355 U.S. 115 (1957), apparently have no
direct application in this respondent's case. The question of their
applicability in future deportation or exclusion cases will be consid,red as such cases arise.
In view of the foregoing, it follows that there is no controversy
as to any legal problem connected with the respondent's case and
the issue has resolved itself solely into the question of whether the
respondent's membership was or was not voluntary, in accordance
with the criteria stated in 8 U.S.C. 1182(a) (28) (I).
We have carefully considered the Service view as to the factual
situation in this respondent's case which was set forth on pages 1,
2, 9 and 10 of the motion of September 16, 1959. Our own appraisal of the evidence is as follows. The respondent's admission to
the United States occurred on May 11, 1956, but it was not until
May 29, 1956, that he deserted his vessel and remained in this
country. On June 7, 1956, he made a statement before an immigration officer at the St. Louis office of the Service and admitted that
he had deserted his ship. When asked if he had been a member
of any organization, he freely admitted his membership in the
Communist Party of Yugoslavia. The record does not show whether
the Service had previously become aware of the respondent's unlawful presence in the United States or whether he may have appeared
voluntarily at the St. Louis office of the Service. He expressed his
opposition to Communism and offered to assist the United States
Government. He stated that, although a person was not compelled
to join the Communist Party of Yugoslavia, it was almost a necessity in order to obtain sufficient food and clothing and in order to
hold a position.
The respondent became a member of the Communist Party of
Yugoslavia in 1950, and had previously been a member of the Communist Party youth organization commencing in 1948 when he was
about 17 years old. 'When first questioned on June 7, 1956, the
respondent stated that he supposed he was still being carried as a
member of the Communist Party of Yugoslavia. He testified that he
had never been an officer of the organization; that no "special jobs"
were assigned to him by the Party; and that he attended meetings-
556
;ometimes weekly and sometimes monthly. During the 13 months
)receding his arrival in the United States, he had been employed
is a seaman and stated that the only Communist meetings he attended were those on board his ship and that the meetings were
poorly attended.
With the exception of a period of service in the Yugoslavian
army from 1951 to 1953, the respondent had been employed as a
grocery clerk in a government store from 1946 until May 15, 1955,
when he commenced his employment as a seaman. Before he became a member of the Communist Party he had been earning about
$10 monthly, which was a starvation salary, but after becoming a
member of the Party he earned about $14 monthly upon which he
could subsist. He also stated that the ration stamps furnished to
non-members bordered on the starvation level; that it was only
because of these economic factors that he joined the Communist
Party; and that he has always been opposed to the present government of Yugoslavia.
When the respondent was first interviewed, nine days after he
deserted his ship, he voluntarily admitted his membership in the
Communist. Party of Yugoslavia and expressed his opposition to
Communism. There is no evidence of his membership other than
his own testimony. For that reason, his explanation as to why he
joined the organization is entitled to considerable weight. We are
impressed with his candor at the time of the first interview. We
have no reason to doubt the respondent's statement that joining
the Communist Party of Yugoslavia represented the difference between trying to exist on a starvation salary or receiving a few
more dollars which removed the threat of starvation.
In the Acting Regional Commissioner's order of October 20,
1958, relating to this respondent, appears the following statement:
The Service pointed out in the Matter of K—, A-9555532, on April 23, 195S,
that from various sources, including the personal observations of officers of
this Service in that country, it has been established that: The Government of
Yugoslavia is completely under the domination and control of the Communist
Party of Yugoslavia and the economic and political philosophy of the country
differo only in degree from that followed in the USSR and its satellite countries. Advancement in almost any line of activity is, with few exceptions,
limited to Party members. The basic freedom to criticise, as we know and
enjoy it does not exist in Yugoslavia.
The respondent was an employee, of the Government, of Yugoslavia and the economic compulsion upon him was greater than
would have been the case with respect to one who did not hold such
employment. After careful review of the record, it is our considered opinion that the respondent's membership in the Communist
Party of Yugoslavia was involuntary and that it falls within the
criteria of 8 U.S.C. 1182(a) (28) (I) relating to membership in a
557
proscribed organization which was necessary for the purposes of
obtaining employment, food rations or other essentials of living.
Accordingly, we hold that the second charge (that the respondent
is deportable because he was excludable at entry due to his membership in the Communist Party of a foreign state) is not sustained.
The first charge, relating to his lack of a visa, is sustained. In
connection with the request, in counsel's motion, for reconsideration
of the application for a stay of deportation under section 213(h)
of the Immigration and Nationality Act, that is a matter within
the jurisdiction of the Service. Counsel indicated that the respondent desired to take steps with a view of adjusting his status to
that of a lawful permanent resident. The following order will be
en tered.
Order: It is ordered that the motion of the Service for reconsideration, except as reconsidered herein, be denied.
It is further ordered that the respondent's appeal he sustained
insofar as it relates to the second charge, that is, the Communist
Party charge.
It is further ordered that the respondent's appeal be dismissed as
to the first charge (lack of an immigrant visa) without prejudice
to further application by the alien for any discretionary relief
which may be available.
APPENDIX "A"
BEFORE THE BOARD
(Nov. 20, 1959)
In re: A V
A-10659043
Discussion: On July 17, 1959, we dismissed the alien's appeal
as to the first charge and sustained his appeal as to the second
charge. The Service requested reconsideration of this order in its
motion dated September 16, 1959.
It was stated in the motion that we had not correctly understood the position of the Service and there was a particular reference to a statement on page 3 of our previous order, reading as
follows: "The Service takes the position that a former member of
the Communist Party of a foreign state is excludable under subparagraph (C) of 8 U.S.C. 1182(a) (28) regardless of whether his
membership was voluntary or in/voluntary; that subparagraph (I)
Gets forth a epecifie procedure which ouch aliens must follow; and
that, if this procedure is not followed, the alien must leave the
United States, follow the procedure in subparagraph (I), and obtain
a visa or a new visa before again applying for admission to this
country."
558
With the exception of such statements as may have appeared in
decisions of special inquiry officers or in briefs of examining officers, the Service has not, heretofore filed any written memorandum
outlining its position concerning S 1182(a) (28) (C) and
(I). However, we believe, that statements which were made by
the Service representatives during oral arguments were along the
lines summarized in the sentence quoted above.
In Matter of G l B , A-10935264, the Service representative stated on February 26, 1959, that the Attorney General,
this Board, and the special inquiry officers have no jurisdiction to
pass upon voluntary or involuntary membership or defector status
"unless and until it has been passed upon first by the consul" and
that in that particular case the Board did not have jurisdiction
because the American consular officer had not considered the. case
under subparagraph (I) of 8 U.S.C. 1182(a) (28).
In Matter of 0 ii , A-10930148, the Service representative
on May 12, 1959, agreed that a correct statement. of his position
was that, even if it should be perfectly clear in a given case that
membership in a foreign Communist Party was involuntary but the
American consul had not considered that issue, the alien must be
denied admission because of such membership, must return to his
country, start all over again, and submit his case to the American
consul. It was also stated that the ground of exclusion under 8
U.S.C. 1182(a) (28) is sustained merely on a showing of membership and that the type of membership or the degree of affiliation is
absolutely immaterial in a deportation proceeding, and that the
remedy under subparagraph (I) is the sole and exclusive remedy.
Upon careful consideration of the motion of the Service dated
September 16, 1959, and in view of the apparent conflict, between
statements therein and the statements which had been made by the
Service representatives, we find it. necessary to return the case to the.
Service so that it may clarify its position by answering the following questions:
(1) Does the Service now concede that this Board and special
inquiry officers have jurisdiction to determine whether an alien was
admissible. or inadmissible at the time of entry because of former
membership in the Communist Party of a foreign state. where there
had been no finding by the American consular officer that the alien's
membership was involuntary or that he was a. defector within the
meaning of section 212 (a) (28) (I)
(2) Does the Service claim that there is such jurisdiction only
where the alien has never appeared before an American consular
officer, and, if so, what. is the statutory basis for this distinction?
(3) In cases where two deportation charges are involved, that is,
(a) excludable at entry because of former membership in a foreign
559
Communist Party, and (b) excludable at entry because the visa
was obtained by fraud, does the Service contend that this Board
and special inquiry officers are precluded from finding that the alien
was an involuntary member of the Communist Party of a foreign
state or that he was a defector merely because an American consular officer had not previously made such a finding?
Order: It is ordered that this ease be returned to the Service
for the purpose stated above in accordance with 8 CFR 3.1 (d) (2).
APPENDIX "B"
BEFORE THE CENTRAL OFFICE
(December 28, 1959)
SCPPLEMENTARY STATEMENT OF POSITION IN SUPPORT OF MOTION
TO RECONSIDER
In re: A—V
A-10659043
Discussion: On September 16, 1959, the Service filed a motion
to reconsider the Board's decision of July 17, 1959, in the subject
case. By order dated November 20, 1959, the Board has requested
clarification of the Service position with respect to the following
questions:
1. Does the Service now concede that this Board and special inquiry officers
have jurisdiction to determine whether an alien was admissible or inadmissible at the time of entry because of former membership in the Communist
Party of a foreign state where there had been no finding by the American
consular officer that the alien's membership was involuntary or that he was a
defector within the meaning of section 212(a) (28) (I)?
2. Does the Service claim that there is such jurisdiction only where the
alien has never appeared before an American consular officer, and, if so, what
is the statutory basis for this distinction?
3. In cases where two deportation charges are involved, that is, (a) excludable at entry because of former membership in a foreign Communist Party,
and (b) excludable at entry because the visa was obtained by fraud, does the
Service contend that this Board and special inquiry officers are precluded from
finding that the alien was an involuntary member of the Communist Party of
a foreign state or that he was a defector merely because an American consular
officer had not previously made such a finding?
The respondent entered as a crewman on May 11, 1956, and has
remained here illegally since. The only charges are (1) excludable
at time of entry because not in possession of an immigrant visa, and
(2) excludable at time of entry under the provisions of section 212
(a) (28) (C) in that he had been a member of or affiliated with the
Communist. Party of a. foreign state_ insofar as appears from the
record, the respondent never appeared before a United States consul in connection with an application for a visa to enter this country.
In the light of the foregoing, the Service motion to the Board
560
was confined to the facts of the case. Thus, at page 9 of the Service
motion, it was stated:
(4) That for the reasons set forth in pp. of the Board decision there is
authority under section 212(a) f`28 (I) for the special inquiry officer and the
Board to consider the issue of involuntariness or otherwise find an alien
within the exemptions of that subsection, in a case where the alien has never
appeared before a 'United States consul ….
It was not deemed necessary to enlarge upon the Service position
with respect to the situation where the alien had appeared before a
United States consul, and had deliberately concealed Communist
Party membership since those were not the facts of the ease. However, since the request for clarification indicates that the Board regards a statement of the Service position in this additional area
pertinent to its consideration of this case, the Service position with
respect to all three of the above questions is as follows:
For the reasons set forth in pp. 4-6 of the Board order of July 17, 1959,
the Service accepts the ruling - of the Board that authority exists with a special inquiry officer and with the Board to find involuntary membership or
defector status under the provisions of section 212(a) (28) (I) both in a situation where the alien never appeared before a United States consular officer,
and where the alien did appear before an American consular officer but no
finding was made by that officer that the alien's membership was involuntary
or that he was a defector.
With respect to the cases pending before the Board involving an
issue of fraud, the Service still maintains, for the reasons advanced
in the arguments in those cases, that a deliberate concealment of
'Communist Party membership by the alien, from the consul, must
be regarded as a material misrepresentation within cection 9.12(a)
(19), in that it was directly relevant to issuance of a visa, and that
this is true regardless of any' subsequent finding of involuntary membership or defector status made by a special inquiry officer or the
Board after the alien's arrival in the United States.
With respect to the instant case, the Service continues to maintain
that an alien who has been a member of the Communist Party of a
foreign country and, hence, was excludable under section 212(a)
(28) (C) at time of entry, can only be removed from the class of
aliens defined in that section under the provisions of section 212
(a) (28) (I), which is the exclusive statutory remedy, and that the
decisions in Rowoldt v. Perfetto (355 U.S. 115), and Gatvam v. Press
(
347 U.S. 522), have no application in such a case.
On the basis of the foregoing, motion is again made that the Board
reconsider and withdraw its order dated July 17, 1959, and enter
an order that the respondent be deported on both of the charges set
forth in the order to show cause.
561
