A-4446802
Decided by the Board February 19, 1953
Communist Party of the United States — Deportability of nominal member under act of October 16, 1918, as amended — Eligibility for suspension of deportation under section 244(a)(5) of the Immigration and Nationality Act of 1952.
(1) A person who is a nominal member of the Communist Party of the United States merely as a means of facilitating the organization of bituminous coal miners is deportable under the act of 1918 since the provisions of that act make no distinction between nominal and active membership in the Communist Party.
(2) Section 244(a)(5) of the Immigration and Nationality Act of 1952 provides a means for the exercise of discretion in such a case.
(3) A motion to reopen the case for consideration of an application for relief under said section 244(a)(5) may be filed in accordance with applicable regulations (8 C.F.R. 6.2 and 6.21).
CHARGE:
Warrant: Act of October 16, 1918, as amended — after entry, member of an organization that advocates or teaches the overthrow by force or violence of Government of the United States
BEFORE THE BOARD
Discussion: This case comes forward on appeal from an order entered by the Assistant Commissioner on April 24, 1952, denying the respondent's motion to terminate the proceedings under the warrant of arrest and directing his deportation from the United States pursuant to law on the charge state above. Exceptions to the order are directed to respondent's deportability on the stated charge as a matter of law.
The respondent, a native and citizen of Poland, male, married, 46 years of age, the father of three native born minor children, last entered the United States at the port of New York ex SS. Kroonland on June 8, 1909, for permanent residence. He has resided continuously in the United States since 1909.
The Assistant Commissioner in sustaining the charge set forth above finds inter alia that the evidence of record affirmatively esablishes:
(1) That the respondent was a voluntary member of the Communist Party of the United States from 1929 to sometime in 1932:
(2) That during the period of respondent's voluntary membership in the Communist Party of the United States, such party was an organization that advocated or taught the overthrow by force or violence of the Government of the United States.
This Board considered an appeal of the respondent in these proceedings on June 19, 1951. On that occasion respondent moved for a reopening of the proceeding for the reception of additional evidence. After carefully considering all the evidence then of record, we found that the evidence relied upon by the Government to support the finding that respondent was an active member of the Communist Party from 1929 to 1932, was extremely equivocal and contradictory. We were unable to reconcile that portion of respondent's 1932 to 1933 testimony wherein he admitted membership in the Communist Party on the one hand yet testified that he paid no dues and was merely "looked upon as a member" but "had no position in the Communist Party." We also noted that the respondent did not take the witness stand in the prior proceedings and he informed this Board that he "wanted to take the stand" but that his counsel objected to it for reasons "never made clear" to him. This Board after careful consideration of respondent's plea to reopen, granted his motion and a reopened hearing was accorded the respondent on July 13, 1951.
The substance of respondent's testimony at the reopened hearing is that during the period between 1929 and 1932 when the United Mine Workers had more or less gone out of operation, he associated himself with members of the Communist Party in organizing a new union known as the National Miners Union. The respondent further testified that from this association he understood the principles of the Communist Party to be "to organizing unions and to obtain pensions and raise wages and for bargaining with the employers and for is sues of that sort". When questioned as to the place he joined the Communist Party, the respondent testified, "I never did join in a formal way. They give me a card and said, `There's a card there for you if you want to be a member.' Since they were talking, I said, `Sure, I will join it if you fellows are going to get this union organized — Sure, I will joint it.' There never was a day I had a formal entry blank into the Communist Party." The record also shows that the respondent never attended any "closed" meetings and never paid dues.
The hearing officer in his opinion of October 3, 1951, states, "I am satisfied that he (respondent) is basically a trade-unionist and that he was merely a nominal Communist Party member as a means of furthering his effort to organize the coal miners who at that time, in that bituminous section of Pennsylvania, were disorganized and had not yet been unionized to the degree accomplished in the following years." The hearing officer found that the respondent had not been an active member of the Communist Party of the United States since his entry and concluded that he was not deportable on the charge stated in the warrant of arrest.
We have carefully considered all of the evidence of record both in the prior hearings and that developed during the reopened hearing. A preponderance of the evidence in our opinion supports the conclusion of the hearing officer that respondent during the period in question was basically a trade-unionist and was merely a nominal member of the Communist Party as a means of facilitating the organization of the bituminous coal miners. Unfortunately, the provisions of the act of 1918 with which we are here concerned make no distinction between nominal and active membership in the Communist Party. Under the circumstances we will affirm the findings of fact and conclusion of law set forth in the Assistant Commissioner's opinion of April 24, 1952.
Prior to the effective date of the Immigration and Nationality Act of 1952 respondent was not eligible for discretionary relief under section 19 of the Immigration Act of 1917, as amended. Relief under the seventh proviso to section 3 of the 1917 act was also barred by the Internal Security Act of 1950. We note, however, that section 244(a)(5) of the 1952 act, effective December 24, 1952, does provide a means for the exercise of discretion in respondent's behalf. Respondent may file a motion to reopen this case for consideration of such an application in accordance with applicable regulations.
Order: It is directed that the appeal be and the same is hereby dismissed.