MATTER OF F—
In DEPORTATION Proceedings
A-10529296
Derided by Board May 9, 1962
Misrepresentation—.Section 212(a)(19)—Materiality.
WI iliul concealment from consul of membership in Communist Party of Hungary held material. Claimed involuntariness of membership is no defense
where respondent joined in 1945 when the Party was not yet in control of
the government, belonged until 1956, was selected for officer training and
entrustec wttn collection of dues. Respondent nas tanea to meet burden of
establishing that under the true facts be was admissible or that had consul
known the truth a proper refusal of the visa could not have been made.
(Compare kla tter of S.— and B—C--, 9 436.
-
CHAIIGE:
Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)1 Excludable
—
at entry—procured visa by fraud or willfully misrepresenting matpriai fact (section 212(a) (39)).
BEFORE THE BOARD
DISCUSSION: The case is before us by certification. The special
inquiry officer found the respondent deportable upon the ground
stated above but granted voluntary departure. The appeal will be
dismissed.
Respondent, a 38-year-old divorced male, a native and national of
Hungary, now allegedly stateless, was admitted to the United States
for permanent residence on December 8, 1956, upon presentation of
it nouquota immigrant visa issued to him as a refugee. The Service
charges that his visa was obtained by fraud because the respondent
failed to reveal that lie had been a member of the Communist Party
from May 1945 until October 1956. The respondent admits that he
did riot furnish the information concerning his Communist Party
membership but, claiming that membership was not voluntary, denies that the omission concerned a material matter.
The case must be decided under the principles set forth by the
Attorney General in Matter of S— and B—C—, 4-436 (Oct. 2, 1961).
The Attorney General stated that a misrepresentation must be material to sustain the charge that a visa had been obtained by fraud. He
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held that a misrepresentation is material which concealed either a
ground of inadmissibility or prevented an inquiry which might have
resulted in a determination that a ground of inadmissibility existed,
and that in arriving at a determination of the matter any uncertainty
resulting from the alien's obstruction of the inquiry may be resolved
against him.
The factual situation is based upon the testimony of the respondent. In February 1945, the respondent returned to Hungary from a
labor camp where he had been held. He sought employment and was
told by two individuals that everything was run by the Communist
Party and if he wanted to get a job he had to join the Party. In
May 1945, he joined the Party. Two months later he obtained employment; thereafter he did not bother with the Party or pay dues
or two years. Then he was called before a Communist Party screening board which he told that he was not interested in Communist
Party membership. The board threatened him; he thereupon continued his membership until 1056 when, the revolution having broken
out, he left Hungary. In 1950, respondent entered the Hungarian
Army for nine weeks of military training and then returned to his
employment. Three months later he was called back to service as an
officer candidate. Although the normal period of probation was six
months, he was not made an officer for two years. As an officer, he
handled a paymaster's functions. While an officer, he attempted to
leave the Party but was unsuccessful. Upon discharge in 1953, he
obtained employment as foreman of a group of leather engravers.
At this time he tried to leave the Party because of the difficulties he
had in obtaining wage benefits for the employees, but was advised
that he would be harmed if his request for termination of membership were forwarded. A short while later he obtained employment in
a state jewelry factory where he was told that because he had a bad
record with the Party he would have to show that he was doing
something for the Party; he was thereupon given the job of collecting
Party dues. During the two-month period thereafter, he collected
dues on two occasions. Between 1945 and 1956, he attended meetings
of the Communist Party only when he could not escape attending;
this happened 5 to 10 times. He did not read Communist Party
literature although given such literature to read.
Respondent stated that when he applied for a visa he was asked to
declare that he was never a member of the Communist Party, and
that he failed to give the correct information. His failure is put on
the grounds that he had become a member under duress, that he was
not a Communist by ideology, and that he moreover was no longer a
member when asked. Respondent admitted he had heard that persons
who revealed to the consul that they were Communist Party members
were given a special investigation which might have jeopardized the
possibility of coming to the United States.
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Two witnesses appeared on respondent's behalf. F— did not know
the respondent in Hungary. He expressed the opinion that Communist Party membership was necessary if one were to remain in an
advantageous employment position, and he related episodes, occurring
in about 1952, in which persons who expressed the desire to leave the
Party were, punished severely. The witness was not tl Inetribr of the
Communist. Party. Witness V— testified that he had known the
respondent in Hungary, and that in 1945 there was a certain duress
existing which caused individuals to join the Communist Party. The
duress was occasioned by the fact that the Russian Army was deporting persons without documents to forced labor camps; many such
persons joined the Party to save themselves from this fate. The
witness testified that the respondent had discussed resignation from
the Party with him on several occasions. He gave examples of the
punishment suffered by persons who failed to join the Party or who
opposed it, and he revealed that his own refusal to join the Party
in 1952 resulted in the nationalization of his business. V— testified
that in 1945 (when respondent joined) the Communioto were not
in control and that the country was run by a coalition government
of several political parties.
The special inquiry officer held that respondent had not borne the
burden of establishing that membership was involuntary since the
Communists were not in control when respondent had joined and his
testimony as to why he had joined was not indicative of compulsion.
The special inquiry officer found that the respondent's actions concerning retention of membership did not indicate existence of duress
and that his credibility was impaired by his admitted concealment of
membership when he applied for a visa.'
Counsel submitted a brief, a supplemental brief, and he has been
heard At oral argument. Counsel contends that membership in the
Communist Party was solely for the purpose of obtaining employ-
1 Deportation hearing was originally conducted by Special Inquiry Officer 8—
(June 30, and August 13, 1958) who ordered deportation on the ground stated
above. Respondent appealed to the Board. Decision on the appeal was withheld .pending the Attorney General's statement of the rule to be followed in
misrepresentation cases. The rule was announced on October 2, 1961, in Matter of 5— and B—C---, 9-436. The case was then ordered reopened for conoicieviV- ion under the Attorney Genoral'g ruling HonpPriPri hearing was held
on November 21, 1961, before Special Inquiry Officer F.—. Respondent was
represented by the same two attorneys who had previously represented him.
No objection to the substitution of special inquiry officers was made. The
erviee offered no non- molter and asked no questions of the respon(
Counsel questioned respondent to bring the record up to date. Hearing ,.as
continued at counsel's request so that he could give further study to the Attorney General's decision. On December 5, 1961, counsel consented to the closing
of the record and the entry of a decision on the basis of the existing record
(unnumbered exhibit following last page of the hearing of November 21, 1961).
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ment and that such a membership would not have made the alien
ineligible for the issuance of a visa. He contends that since the alien
was not ineligible for the issuance of a visa had the true facts been
known, the visa was not one obtained by fraud. Counsel contends
that the Service has not sustained the burden of establishing that the
visa was one obtained by fraud. He points out that 'the Service,
having become aware of the facts of the respondent's membership in
the Communist Party before the order to show cause was issued on
June 17, 1958, had ample opportunity to conduct whatever investigation it desired, and despite this opportunity failed to produce evidence establishing that membership was voluntary. He asks that the
evidence be weighed according to the proof which it was in the power
of one side to produce and the other to have contradicted. Counsel
(nails attention to the testimony of witness IT— indicating that in
1945 persons were afraid of the Russians, although they were not the
strongest political force in the country at that time. contends
there is much of a historical nature revealing that membership In
the Communist Party in Hungary in 1948 could have been caused
by fear for life or loss of property. Counsel contends that respondent's membership in the Communist Party was devoid of political
implications and was, therefore, not "a meaningful" association
which is required by Rowoldt v. Perfetto, 355 U.S. 115. He contends
that since Special Inquiry Officer E— was unable to personally
observe the conduct and demeanor of the witness on the stand, the
Board is in as good a position as was the special inquiry officer of
making a determination as to credibility of respondent on the basis
of the bare record. Counsel asks that the Board therefore accept the
respondent's testimony concerning the involuntary nature of his
membership. Finally, counsel requests that proceedings be terminated under section 212(a) (28) (I) of the Act which concerns
involuntary membership in the Communist Party or membership of
one who has defected.
The Service representative argues that respondent's membership
would have made him excludable had the true facts been stated;
that in any event, a failure to disclose Communist Party membership cut off a line of inquiry which was material to the issue,.
placing upon the respondent the burden of establishing that had
he told the truth a proper refusal of the visa would not have been
made. He contends that the conduct of an adequate investigation
involves not merely the tivalla.hility of time in which to investigate
but the existence of circumstances unchanged as much as possible
from those existing at the time investigation could have been made.
He points out that under the same conditions which existed when
respondent joined, neither of the respondent's two witnesses found
it necessary to join the Communist Party which in 1945 was not a
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large organization. rie pcinta out that the law relating to the exclusion of aliens does not involve the issue of nominal membership
and that, in any event, membership which existed for ten and a half
years was a meaningful one, for not only was it of lasting duration
but during its continuation respondent secured the benefits of membership nut available to those who were not members of the Communist Party. The Service representative is of the belief that
respondent is ineligible for whatever waiver is contained in section
212(a) (218) (I) of the Act, because the willful failure to reveal the
information deprived consul of an opportunity to make a finding in
his favor.
Once the Government has established that a misrepresentation
was made in the securing of a visa, the burden is upon the person
malting the misrepresentation to establish that under the true facts
he is admissible or that had consul known the truth a proper refusal of the visa could not have been made. Considering the fact
that the respondent joined the Communist Party when it was merely
one of the parties struggling for power and was not yet in control
of the government, considering the length of his membership, the
fact that he was selected for officer training and was entrusted
with re: ponsibility of the collection of dues, we believe, despite
his expli nation as to all these events, consul could well have found
that membership was voluntary, or at the minimum have found that
such a grave doubt existed as to the involuntary nature of the membership that it was proper to refuse the issuance of a visa. Moreover, respondent's credibility must suffer from the fact that he
concealed his membership when called upon to reveal it. If Rowoldt
applies to membership in the Communist Party of a foreign country,
we believe the test is met here. There was full knowledge that the
group the respondent joined was the political organization known
as the Communist Party (Matter of Z , 7 28; Matter of H
8--122).
We take cognizance of the fact that some persons may have joined
the Communist Party as early as 1945 because of fear of deportation;
however, this does not help the respondent whose testimony indicates
that the joining was for the purpose of securing employment. Others
found it possible to obtain employment without being members of
the Communist Party. The Communist Party was a small organization at the time. It was not in control of the country. There were -
active political organizations in opposition to it whose members
were in important political posts in the country.
The fact that the Government has had an opportunity to conduct
an investigation does not mean that it must make the investigation
under all circumstances. Obviously, when the application for the
visa was made, only a most limited investigation was possible. Under
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such circumstances, consul would well have been justified in refusing
a visa even if the limited investigation disclosed nothing to contradict the _testimony of the applicant or even if no investigation
were made. As of the time application for a visa was made, refusal
of a visa was indicated. We must, therefore, conclude the respondent
obtained his visa by fraud. The opportunity for maldng an in-
-
vestigation at the present is no better considering the length of time
which has elapsed and the limited nature of an investigation which
is presumably possible in a Communist-ruled country. The respondent should not be given the benefit of doubts created by his own
willful, blameworthy actions.
Counsel's request for termination of proceedings under section
212(a) (28) (I) of t11.°, Act requires the finding that the respondent
joined the Communist Party involuntarily or that he•was a defector
when he applied for the visa. We cannot make such finding on the
record before us. The request must be denied.
ORDER: It is ordered that the appeal he and the seine is hereby
dismissed.
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