A-5668628
Decided by the Board June 24, 1952.
Act of 1918, as amended — Subversive proscribed organization, member or affiliate of — Communist Party of United States — Public Law 14 (March 28, 1951) — Voluntary membership or affiliation — Section 20 of the Immigration Act of 1917, as amended — Place of deportation — Discretionary relief, past membership in Communist Party of United States.
(1) Deportability because of voluntary membership in Communist Party of United States not dependent on knowledge of or belief in principles of Party. (Cf. 4 IN Decs. 341 and 504.)
(2) Membership in Communist Party of United States from 1935 to 1937 allegedly for purpose of retaining employment is held to be a voluntary nature when the record discloses such employment was neither necessary for survival nor under the compulsion of maintaining a competitive equality in obtaining employment or other essentials of living with the majority or even a large number of persons engaged in similar occupations. (See also 4 IN Dec. 314.)
(3) Discretionary relief not available to aliens deportable under act of October 16, 1918, as amended because of former membership in Communist Party of United States.
CHARGES:
Warrant: Act of October 16, 1918, as amended — After entry, alien member of organization that advocates or teaches overthrow, by force or violence, of Government of United States.
Act of October 16, 1918, as amended — After entry, alien member of organization that distributes, etc., printed matter advocating overthrow, by force or violence, of Government of United States.
Lodged: Act of October 16, 1918, as amended — After entry alien who was member of Communist Party of the United States.
BEFORE THE BOARD
Discussion: This is an appeal from an order dated November 27, 1951, of the Assistant Commissioner Adjudications Division finding the respondent deportable solely on the lodged charge; directing his application for suspension of deportation be denied; and providing for his deportation from the United States.
Counsel has appeared in oral argument and has submitted a brief. Counsel contends that the testimony of the respondent has been accepted insofar as it establishes membership in the Community Party but rejected insofar as it establishes that the respondent became a member of the Communist Party for the sole purpose of obtaining employment or other essentials of living. It is urged that suspension of deportation may be granted to the respondent even though he may be found deportable under the act of October 16, 1918, as amended. Representation is made that the respondent would be subject to physical persecution if deported to Czechoslovakia, the country whence he came and it would be inhuman to direct his deportation to any Communist-dominated country and the contention is also made, that the respondent is being deported under an ex post facto law.
Respondent is a 56-year-old married male, a native and citizen of Czechoslovakia. He has resided in the United States continuously since his entry for permanent residence on March 25, 1910, with the exception of a short visit abroad from which he returned on January 24, 1927. He has admitted that he was a dues-paying member of the Communist Party of the United States from 1935 to 1937. The first question presented is whether the membership was a voluntary one.
Briefly, respondent's story is as follows: He was self-supporting as a trunkmaker until about 1930. Thereafter, he had no steady employment, but was engaged as a trunkmaker; worked for the General Electric Corp.; did odd jobs; and peddled fruits and vegetables from a pushcart. His income was meager and he found it difficult to provide adequate housing for his wife and two minor children. In 1935, it appears that he found it necessary to move from place to place because of his inability to pay rent. In the same year, he and his wife answered an advertisement offering rent-free quarters plus the use of gas and electricity without charge in exchange for services as janitors of a building which as far as the respondent and his wife knew, was then being used as a school for instruction of children in Jewish reading and writing. The building was in fact the headquarters of the local Communist Party. About a month after the respondent and his wife had been employed as janitors, he was approached by an officer of the Communist Party who informed him that to retain his employment and the apartment, he would have to join the Communist Party. Solely to retain his employment and the apartment, the respondent joined. For about 22 months, the respondent continued his membership. At the request of officials of the Communist Party, he attended meetings. He was given circulars to distribute; but did not distribute them; he burned them in the basement of the house. He denied belief in the revolutionary principles of the Communist Party. At one of the meetings, the respondent defended private ownership. Shortly thereafter, an official of the Communist Party took his membership card away; informed the respondent he was no longer a member of the Communist Party; and ordered him to vacate the premises. A month later, the respondent moved. During the time he was employed as a janitor, respondent continued peddling and did odd jobs. It does not appear that he received any cash for his services as a janitor.
For the moment, we dismiss facts in the record which would diffuse the silhouette set forth above. As a member of the Communist Party, whether or not he had knowledge of its principles, whether a believer or nonbeliever in its principles, the respondent would be deportable, if his membership were voluntary as that term is defined by Public Law 14, 82d Congress; chapter 23, 1st session, H.R. 2339; ( Harisiades v. Shaughnessy, 187 F. (2d) 137 (C.A. 2, 1951) affd. 342 U.S. 580 (1952).
Public Law 14 (incorporated in 8 C.F.R. 174.1 (i)) provides in its pertinent portion that membership in a proscribed organization is not voluntary which was "for purposes of obtaining employment, food rations, or other essentials of living, and where necessary for such purposes." [Italics added.] May it be held that respondent's membership in the Communist Party of the United States between 1935 and 1937 was necessary for him to obtain employment, food rations, or other essentials of living? We think not.
A careful review of the language of Public Law 14, its legislative history (U.S. Code Cong. and Adm. Service, vol. 2, 82d Cong., 1st sess., p. 1374) and the record of proceedings before Congress involving its passage (97 Cong. Rec., pp. 1369-1375; 2368-2384; 2386-2388) reveals congressional concern with two classes of persons; one, persons who were either automatically placed in totalitarian organizations; i.e., armed forces, labor unions or soviets cooperatives; and two, persons who by failure to join the organizations in question would have incurred the displeasure of their totalitarian governments or would have been denied opportunities for education, employment, food and other necessities which were open to the majority of the population. Under such circumstances, joining without more than the required minimum participation could be considered involuntary.
Careful consideration of the material mentioned fails to reveal an indication of an intent on the part of Congress to include within Public Law 14 a person who joined an organization to secure certain benefits where such membership was not at the direction of a governing totalitarian body nor under the compulsion of maintaining a competitive equality for the necessities of life with the majority of the population.
Respondent joined to get a certain benefit from the organization. This did not make the membership involuntary in the absence of a showing that the joining was either to comply with the requirements of a state; was necessary for his survival; or was under the compulsion of maintaining a competitive equality in obtaining employment or other essentials of living with the majority (or even a large number of persons engaged in similar occupations).
It may have been necessary for respondent to join the Communist Party to retain the particular employment in which he was then engaged, but opportunities for employment and availability of essentials of living, difficult as they may have been to secure under the conditions existing in 1935 were as accessible to the respondent as a nonmember of the Communist Party as to the millions of employable and nonemployable Americans who constituted the overwhelming majority of the population. In fact, we may take notice that in general competition with nonparty members his membership in the Communist Party of the United States would have hindered, not aided his efforts in obtaining the essentials outlined above. We also note that while a janitor, respondent continued in his regular employment as a peddler and odd job man, occupations in which he had engaged for about 5 years prior to his joining the Communist Party. We concluded that whatever compulsion, if any, may have induced respondent to join, it did not make the joining an involuntary one under Public Law 14, (See Matter of S----, A-1258853, B.I.A. 1951 (Int. Dec. 313), 4 IN Dec. 314).
Since in arriving at a conclusion that the respondent was a voluntary member of the Communist Party of the United States, we have used the facts most favorable to him; we need not dwell upon the effect of his membership in the International Workers' Order for a period of about 6 months prior to his joining the Communist Party; and his signing of Communist Party nominating petitions between 1935 and 1937 and one on March 4, 1940. Nor, need we pass judgment as to the affect upon his credibility arising out of his failure to disclose an arrest resulting in a 10-day jail sentence and a court martial resulting in a 2-year sentence, until after direct questioning concerning both events.
We shall now deal with counsel's contention concerning discretionary relief. The alien is deportable who has been found after entry to have been a member of the Communist Party of the United States (8 U.S.C. 137 (c)). Such a person is not eligible for discretionary relief (8 U.S.C. 155 (c) (d)). It is apparently counsel's contention that the prohibition contained in 8 U.S.C. 155 (c) (d) does not apply to former members of the proscribed organizations mentioned in the act. Counsel cites no authority for his position. We have carefully examined his contention and conclude no reason is shown why the statute should not be construed to mean what it appears to say and what we have previously held it to say, Matter of S---- ( supra). Counsel's objection that the respondent is subject to physical persecution if deported to Czechoslovakia, is premature. The order of deportation provides for respondent's deportation pursuant to law. The law provides that no alien shall be deported to any country in which the Attorney General shall find that such alien would be subjected to physical persecution (sec. 20 of the Immigration Act of February 5, 1917, as amended). Considerations concerning persecution must therefore necessarily enter into any decision made as to the country of deportation by the authorized officer of the Immigration and Naturalization Service, who will designate at whose expense and to which country the respondent shall be deported (8 C.F.R. 152.3).
Counsel's contention that the charge under which respondent has been found deportable constitutes the application of an ex post facto law must be dismissed on the basis of the decision in Harisiades v. Shaughnessy, 342 U.S. 580 (1952).
The appeal will therefore be dismissed.
Order: It is ordered that the appeal be and the same is hereby dismissed.