A-4587587.
Decided by Board September 20, 1955. Decided by Attorney General December 7, 1955.
Discretionary relief — Suspension of deportation, section 244 (a) (5) of Immigration and Nationality Act — Termination of proceedings to permit filing petition for naturalization — Membership in Communist Party after entry.
(1) Where deportability is established by reason of voluntary membership in the Communist Party of the United States after entry and the many favorable factors in the case justify the grant of discretionary relief, respondent's application for suspension of deportation under section 244 (a) (5) of the Immigration and Nationality Act will be granted so that the action may be reviewed by Congress, in preference to terminating the proceedings for the limited and sole purpose of permitting respondent to file a petition for naturalization.
(2) An alien who claims he joined the Communist Party of the United States by reason of pressure exerted by the editor of the Daily Worker by whom he was employed as a cartoonist has not established that his membership was involuntary, since it is evident that respondent was persuaded that taking out an application for membership in the Communist Party would enhance his opportunity to further his career as an artist while in Russia and that it would also make other conveniences more readily available to him.
CHARGES:
Warrant: Act of 1918, as amended — Prior to entry, alien who was a member of the Communist Party of the United States.
Act of 1918, as amended — Prior to entry, alien who was a member of the Young Communist League of the United States, a section, subsidiary, branch, affiliate or subdivision of the Communist Party of the United States.
Lodged: Act of 1918, as amended — At time of entry, alien who was a member of the Young Communist League of the United States, a section, subsidiary, branch, affiliate or subdivision of the Communist Party of the United States.
Act of 1918, as amended — After entry, alien who was a member of the Young Communist League of the United States, a section, subsidiary, branch, affiliate or subdivision of the Communist Party of the United States.
Act of 1918, as amended — After entry, alien who was a member of the Communist Party of the United States.
Act of 1918, as amended — At time of entry, alien who was a member of the Communist Party of the United States.
BEFORE THE BOARD
(September 20, 1955)
Discussion: Warrant of arrest was served in the instant case on March 19, 1952. On July 6, 1953, the special inquiry officer entered an order finding the respondent subject to deportation on the charge lodged during the course of the hearing under the Act of October 16, 1918, as amended, in that he has been, after entry, a member of the following class, set forth in section 1 of said act: An alien who was a member of the Communist Party of the United States and ordered his deportation pursuant to law. Thereafter proceedings were reopened and on April 8, 1954, the special inquiry officer reaffirmed the finding of deportability but withdrew the outstanding order of deportation and ordered that deportation of the respondent be suspended under the provisions of section 244 (a) (5) of the Immigration and Nationality Act. The case comes forward to this Board for review upon certification.
The record relates to a native and last a citizen of Poland, 51 years old, male, who first entered the United States at the port of Baltimore, Maryland, on May 15, 1914, and was admitted for permanent residence. He departed to Russia September 1935 and reentered the United States at the port of New York on October 13, 1936, as a returning resident. These entries have been verified.
Th respondent is an artist and cartoonist. He testified that prior to 1930 he was self-employed as a free-lance artist and that from 1930 until he departed for Russia in 1935 he was employed as a cartoonist by the Daily Worker, the recognized organ of the Communist Party. The respondent admits that he became a member of the Young Workers League, Harlem Branch, in New York in 1927; had a membership card; paid dues to the branch secretary; and attended meetings with a friend who was a branch organizer.
The main contention in the case is whether certain acts of the respondent, occurring from the period during late 1934 or early 1935 and lasting until 1936, constitute membership in the Communist Party of the United States, and support the finding of deportability. The respondent has admitted he signed an application for membership in the Communist Party during late 1934 or early 1935 and that several weeks later he went to the branch headquarters of the party, received a membership book and paid the cost of the first stamp. He testified that he believed he paid dues another time at a second meeting which was more or less a social affair where he was billed as a cartoonist and did chalk drawings on a large piece of paper for the entertainment of the persons who attended. The nature of this second meeting is uncertain, possibly the first part being a regular membership meeting and the latter part or major part being devoted to dancing and entertainment.
Despite these admissions the respondent contends that he was not a voluntary member of the Communist Party. He explained that his action in signing an application for membership in the Communist Party during 1934 or 1935, receiving a membership book and paying the cost of the first dues stamps were all actions done under pressure imposed by the editor of the Daily Worker and were done as a result of a feeling of annoyance at the importunings and pressure exerted by the editor of the Daily Worker. He has acknowledged, however, that membership in the Communist Party was not necessary to employment on the Daily Worker.
There is a further explanation of the respondent's actions in making application to join the Communist Party. At the suggestion of the manager of the Russian travel agency, Intourist, Inc., a client of his as a free-lance artist, the respondent agreed to paint five murals which were to be placed on the walls of that organization in New York for which he was to receive $500 per painting. Original sketches were submitted in 1933 but before the murals could be completed the project was abandoned because of a change in managers. The former manager suggested to the respondent that he attempt to dispose of the murals in Russia in order to realize some profit on his work and a trip to Russia in 1935 was proposed to accomplish this objective. About the same time the respondent received an offer from Youth Pravda to do cartoons for that newspaper in Russia in return for an apartment in Moscow, 500 rubles per month and defrayal of transportation expenses.
The explanation has been offered that membership in the Communist Party would constitute an "Open sesame" for the respondent while he was in Russia and that this advantage was pointed out by the editor of the Daily Worker when pressing upon the respondent an application for membership in the Communist Party. Respondent terminated his connection with the Daily Worker when he went to Russia and stated he left behind his membership card in the Communist Party while in Russia. Although his murals were exhibited while in Russia, respondent stated he was disgusted with the general atmosphere, the restrictions placed upon the artist and the constant censorship as well as the feeling of fear engendered by the Soviet regime. The purge trials in Russia also made a deep impression upon respondent and he experienced a profound revulsion with the Communist idiom. While subsequent to his return to the United States respondent no longer worked for the Daily Worker he did some cartoons for that publication at the urgent requests of the editors and also for the publication New Masses.
The defense as to voluntary membership is predicated upon the provisions of the Act of March 28, 1951 (Public Law 14, 82nd Congress) which provide that the terms "members of" and "affiliated with" contained in the Act of October 16, 1918, as amended, shall include only membership or affiliation which is or was voluntary, and shall not include membership or affiliation which is or was for the purposes of obtaining employment, food rations, or other essentials of living, and where necessary for such purposes. However, there is no suggestion that respondent could not have continued with his work as a cartoonist for the Daily Worker if he had not joined the Communist Party, nor has it been shown that such membership in the Communist Party was necessary in order to obtain employment, food rations or other essentials of living in this country. It does not appear that the insistence of the editor of the Daily Worker or the pressure exerted by him, characterized by the respondent as annoying, amounted to such duress or coercion so as to make respondent's act involuntary.
It would appear evident that the respondent was satisfied that taking out an application for membership in the Communist Party would enhance his chances of success in furthering his career as an artist while in Russia, that it would also make other conveniences more readily available, although he has disclaimed that he paid up his back dues prior to sailing, and asserts this action was undertaken by someone else. It is concluded that the respondent did not bring himself within the provisions of the Act of March 28, 1951, and that his membership was voluntary.
The respondent contends that he is essentially an artist and that the fact of his contribution as a cartoonist for the purpose of making a livelihood through the Communist publication, the Daily Worker and the New Masses or the fact that his cartoons appeared in the Young Worker and other publications of a Communist nature with or without his knowledge does not impute to him approval of the political ideology of the Communist Party. He has pointed out that his work also appeared in a number of non-Communist publications during the years 1933 to 1937. Respondent insists that his cartoons are merely an expression of an art form in accordance with the desire of the editor as he conceives such desires and that the captioning and labeling of the cartoons was edited by others. It is not believed necessary for the purpose of this decision to draw a conclusion regarding the respondent's political beliefs on the basis of his cartoons.
In order to show that the respondent's participation in Communist Party affairs was greater than he has admitted, the Service has used as witnesses two former high functionaries of the Communist Party covering the period of the respondent's connection with the Communist Party. The witness M---- has testified that he attended closed meetings of the Communist Party where respondent was present, the Party convention during the latter part of 1927 and at meetings in 1928 at Manhattan Lyceum and at Union Square, New York. He testified that he saw the respondent's membership card in either the Young Communist League or the Communist Party at these meetings because he was a member of the Control Commission and took care of the membership books at the door and stated that he knew respondent belonged to Section 2 of the Party in downtown New York. M---- identified the respondent at the hearing.
A second Government witness, C----, testified that during the period of his membership in the Party he knew the respondent over a period of ten years on the staff as staff cartoonist on the Daily Worker, of which he, C----, was an editor, a contributing editor for the New Pioneer, New Masses, and Labor Defender, and that he first met respondent in 1927 or 1928. He stated that from 1928 to 1930 he attended closed meetings of the Communist Party and the Young Workers League and saw respondent at two or three closed meetings of the Daily Worker which were also Communist meetings. He also testified that during the period 1930 to 1935 he saw the respondent at several meetings of the Communist Party in New York City. He also testified that the J---- B---- he knew went to Russia in 1935 or 1936 and that he met him after the latter's return from Russia at the offices of the Daily Worker and at plenums or large closed meetings of the national committee of the Communist Party.
Although unable to identify B---- at the hearing, C---- did identify an admitted photograph of the respondent in 1935 as the person he knew during the period of the witnesses' membership in the Communist Party. The special inquiry officer has observed that the person at the hearing erroneously identified by C---- as B----, resembled B----'s photograph.
The respondent has denied that he ever saw the witness C---- or had ever spoken to him at any time in his life, that he never attended a plenum of the Communist Party; had never attended a closed meeting which he was aware was a closed meeting of the Communist Party and has denied that he ever knew a person by the name of P---- C----. Respondent does not deny that he has known M---- but does deny that he ever saw him within the doors of a building. Counsel vigorously urges that M----'s testimony is not worthy of belief because of the fact that he is a professional witness, his legal activities as a member of the Communist Party, his conviction in 1927 for felonious assault and sentence to imprisonment, his action in obtaining naturalization at a time when he was a member of the Communist Party, his illegal registering and voting in New York in violation of the state laws and his testimony before a Congressional committee in 1952 in which he erred in making identification. C----'s testimony is weakened by his inability to recognize the respondent at the hearing.
However, the testimony of M---- and C---- need not be relied upon to establish the finding of deportability inasmuch as we conclude that deportability has been established by the respondent's own testimony regarding his application for membership in the Communist Party and his payment of dues. We have already concluded that such membership was voluntary and was not under duress for the purpose of obtaining employment, food rations or other essentials of living, nor was the pressure exerted by the editor of the Daily Worker sufficient to make the act other than voluntary. It is not necessary for the purpose of voluntary membership that the respondent know or advocate the principles.
Matter of Y----, A-4512777, 4 IN Dec. 752; Matter of D----, A-5668628, 4 IN Dec. 675; United States ex rel. Harisiades v. Shaughnessy, 187 F. (2d) 137, aff'd. 342 U.S. 580.
It does not appear that respondent was under any misapprehension that the organization in which he made application for membership was the Communist Party of the United States and that he joined this organization voluntarily as a means of facilitating or enhancing his future career as an artist. Such action constitutes voluntary membership.
Matter of S----, A-9635850, 5 IN Dec. 95; Matter of P----, A-4446802, 5 IN Dec. 141.
Support or even demonstrated knowledge of the Communist Party advocacy of violence was not intended to be a prerequisite to deportation. It is enough that the alien joined the Party, aware that he was joining an organization known as the Communist Party which operated as a distinct and active political organization, and that he did so of his own free will. It is concluded that the finding of deportability is sustained upon the basis of reasonable, substantial and probative evidence.
Galvan v. Press, 347 U.S. 522, 528 (1954).
There are present in the case many favorable factors upon which to predicate consideration of discretionary relief from deportation. Except for his brief absence to Russia respondent has resided in the United States since he was ten years of age, a period in excess of 41 years. He is considered an outstanding artist and cartoonist and is presently the editorial cartoonist for the Chicago Sun-Times where he has been employed since 1938. His income varies from $250 to $350 a week and assets total approximately $21,750. The respondent has been married since 1931 to a native-born citizen of the United States and has two native-born children, one attending college and the other high school. Respondent's wife has been in ill health for several years. The record is replete with examples of respondent's anti-Communist activities since 1938, citations and letters of appreciation for the public service rendered by the respondent through his artistic endeavors and convincing evidence establishing the respondent's complete divorcement from his former Communist associations. Testimony has been given as to the excellence of the respondent's moral character and loyalty since 1938. It is concluded that the record establishes that respondent's case is worthy of discretionary relief.
The special inquiry officer has ordered that the respondent's deportation be suspended in accordance with the provisions of section 244 (a) (5) of the Immigration and Nationality Act. This favorable exercise of discretionary relief is predicated upon respondent's long residence in the United States since 1914, his family ties of citizen wife and two children and the fact that his deportation would result in extreme and unusual hardship to him and to his wife and children. On the basis of the testimony of a number of persons having personal knowledge of respondent and the many citations and letters written in appreciation of the public service rendered by respondent during and after World War II together with other evidence establishing disassociation from Communist influences since 1936, it is concluded that respondent has established for more than ten years past, or since 1938 that he has been a person of good moral character, attached to the principles of the Constitution of the United States and disposed to the good order and happiness of this country.
A petition has been filed requesting that the deportation proceedings be terminated to enable respondent to have a hearing before the United States District Court for the Northern District of Illinois to determine his eligibility for naturalization under the provisions of section 313 (c) of the Immigration and Nationality Act on the ground that respondent has not been connected in any manner with Communism for more than ten years past.
Section 313 (c) of the Immigration and Nationality Act prohibits the naturalization of persons who are members of the Communist Party of the United States, but section 313 (c) limits this prohibition to applicants for naturalization who within a period of ten years immediately preceding the filing of petition for naturalization or before taking the final oath of citizenship were within any of the enumerated prohibited classes. The obstacle to naturalization under section 313 (c) lies in section 318 of the Immigration and Nationality Act, which provides that no person shall be naturalized against whom there is outstanding a final finding of deportability pursuant to a warrant of arrest issued under the provisions of said act or any other act, and no petition for naturalization shall be finally heard by the naturalization court if there is pending against the petitioner a deportation proceeding pursuant to a warrant of arrest issued under the provisions of that or any other act. Despite this provision there exists inherent authority in the Attorney General to terminate deportation proceedings for the limited purpose of permitting the alien to file a petition for naturalization and to be heard thereon by a naturalization court and such authority has been delegated to this Board by section 6.1 (d) (1) of Chapter 1 of Title 8 of the Code of Federal Regulations.
We shall first consider the other forms of discretionary relief requested by counsel. Counsel urges that assuming respondent was a member of the Communist Party of the United States, the ground of deportability predicated thereon may be eradicated through the nunc pro tunc exercise of the discretion contained in section 212 (a) (28) (I) of the Immigration and Nationality Act. It is not believed, however, that this discretionary relief is available in the instant case. The respondent's membership was voluntary and at the time of his last entry on October 13, 1936, he had not been a defector from the Communist Party for a period of five years.
Section 212 (a) (28) (I) provides that notwithstanding membership in the Communist Party any alien may, if not otherwise ineligible, be issued a visa if such alien establishes to the satisfaction of the consular officer when applying for a visa and the consular officer finds that (i) such membership or affiliation is or was for the purpose of obtaining employment, food rations, or other essentials of living and was necessary for such purpose, 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 application for a visa, actively opposed to the doctrine, program and principles and ideology of such party or organization, and (b) the admission of such alien to the United States would be in the public interest. This section further provides that any such alien to whom a visa has been issued under the provisions of that subparagraph may, if not otherwise inadmissible, be admitted into the United States if he shall establish to the satisfaction of the Attorney General when applying for admission to the United States and the Attorney General shall find (i) such membership or affiliation is or was for the purposes of obtaining employment, food rations, or other essentials of living and was 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 or organization and (b) the admission of such alien into the United States would be in the public interest.
Counsel has also requested consideration under the discretion contained in the 7th proviso to section 3 of the Immigration Act of 1917 although no formal application for this form of relief was made during the course of the deportation proceedings. In the absence of an application for such relief the savings clause, section 405 of the Immigration and Nationality Act, would appear to have no application and this form of relief is no longer available because it was specifically abolished by the Immigration and Nationality Act. The similar form of discretionary relief contained in section 212 (c) of the Immigration and Nationality Act is not available because subparagraph (c) is not made applicable to waive grounds of inadmissibility arising out of membership in a subversive organization.
The instant case presents the anomalous situation where, on the one hand, the respondent is subject to deportation because of past membership in a subversive organization and, on the other hand, is eligible to apply for naturalization under the provisions of section 313 (c) of the Immigration and Nationality Act for the reason that his membership in the Communist Party terminated more than ten years ago, except for the prohibition contained in section 318 of the Immigration and Nationality Act because of the institution of deportation proceedings. In view of the favorable factors present in the case of residence in the United States for approximately 41 years, family ties of citizen wife and two children who would be caused exceptional and extremely unusual hardship, together with the evidence of record establishing the respondent's complete disassociation from things Communist and a noteworthy aggresively active record of anti-Communist endeavor since 1938, it is believed that respondent should be afforded an opportunity to file an application for naturalization and be granted a hearing thereon before a court. It has been stipulated that if the proceedings are terminated solely for the purpose of permitting the respondent to apply for naturalization, and if naturalization is denied, the existing record will constitute the record for deportation purposes.
Order: It is ordered that the deportation proceedings be terminated for the limited and sole purpose of permitting the alien to proceed with a petition for naturalization under the applicable provisions of the Immigration and Nationality Act.
It is further ordered that if naturalization be denied, the existing record will constitute the record for deportation purposes.
At the request of the Attorney General and in accordance with the provisions of Title 8, Code of Federal Regulations, section 6.1 (h) (1) (i) the Board refers to the Attorney General for review its decision in this case.
(December 7, 1955)
The alien, in the above-entitled deportation proceeding, applied for termination of the proceeding or, in the alternative, for various other forms of relief including suspension of deportation. The special inquiry officer found the alien deportable but ordered that deportation be suspended under the provisions of section 244 (a) (5) of the Immigration and Nationality Act. The Board of Immigration Appeals to which the case was certified ordered that the deportation proceedings be terminated for the limited and sole purpose of permitting the alien to proceed with a petition for naturalization under the applicable provisions of the Immigration and Nationality Act and, at my request, referred the matter to me for review in accordance with the provisions of section 6.1 (h) (1) (i) of Title 8, Code of Federal Regulations.
After carefully considering the matter, I have concluded that it would be more appropriate in this case to grant the alien's application for suspension of deportation pursuant to the provisions of section 244 (a) (5) of the act in order that the Congress will have an opportunity to review my action as contemplated by that section. It is accordingly
Ordered, that the order terminating the proceedings entered by the Board of Immigration Appeals on September 20, 1955, be and it is hereby vacated, and
It is further ordered that deportation of the above-named alien be suspended pursuant to the provisions of section 244 (a) (5) of the Immigration and Nationality Act.