A-8031634 and A-8031639
Decided by Board October 19, 1951
Subversive — Excludability as participant in movement hostile to United States — Italian Fascist Party — Section 13, act of June 25, 1948, as amended — "Voluntary" participation — 8 C.F.R., appendix, section 702.8 (g) — Excludability as member of totalitarian party of foreign state — Italian Fascist Party — Section 1 (2) (C), act of October 16, 1918, as amended — Burden of proof — Evidence.
A member of the Fascist Party in Italy from 1927 to 1943 who testified that (1) he was a member thereof as a result of automatic (not volitional) enrollment in connection with his employment as a city hall clerk; (2) he could not have retained such employment unless he were a member of such party; and (3), he was never active in the affairs of such party, was found to have established his admissibility to the United States, in the absence of contrary evidence in the record, because his membership therein was "involuntary" within the meaning of the act of 1918, as amended and pertinent regulations thereunder, and section 13 of the act of June 25, 1948, as amended and 8 C.F.R. appendix, section 702.8 (g).
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Section 13 — Act of June 25, 1948, as amended — Participated in a movement which has been hostile to the United States (male alien).
Section 10 — Act of June 25, 1948, as amended — Not an eligible displaced person (both aliens).
Lodged: Section 1 (2) (C), act of October 16, 1918, as amended — As a former member of a totalitarian party of a foreign state (male alien).
BEFORE THE BOARD
Discussion: This appeal concerns two aliens, man and wife, 50 and 43 years of age respectively, both stateless, natives of the region known as Venezia Giulia, formerly under Italian sovereignty, now part of Yugoslavia. They applied for admission to the United States for permanent residence in accordance with the Displaced Persons Act of 1948, as amended. A hearing was had before a board of special inquiry of the Immigration and Naturalization Service at Bagnoli, Italy, on April 28, 1951, and were found to be inadmissible to the United States by said board on the respective grounds set forth above (except as to the male alien the charge under sec. 1 (2) (C), act of October 16, 1918, as amended, which was lodged later when the matter was on appeal before the Acting Assistant Commissioner, Adjudications Division, Immigration and Naturalization Service). On appeal, the Acting Assistant Commissioner, Adjudications Division, Immigration and Naturalization Service, affirmed the exclusion decision of said board of special inquiry on the grounds set forth above. The Acting Assistant Commissioner lodged an additional ground of inadmissibility against the male alien, the charge as set forth above.
The Acting Assistant Commissioner sums up the evidence adduced before the board of special inquiry in this language:
Inasmuch as the male appellant has testified that he was enrolled with the Fascist Party, that he paid annual dues to the organization, and that he was issued a card showing that he belonged to the Fascist Party, the conclusion is reached that he was, in fact, a member of the Fascist Party from 1927 to 1943.
The male appellant gave this further testimony. He was enrolled with the Fascist Party commencing in 1927 when he was employed as a clerk in the municipal hall of his home town in Venezia Giulia. His membership was automatic. "As soon as you received employment you were enscribed with the Fascist Party." From 1930 until 1946 he was employed by the Society of Trezza, a private company which collected taxes for the Commune on a percentage basis. As to his employment with the Society of Trezza, he stated, "Before hiring the people, they had to have a Fascist card. Otherwise, they would not get a job." Also, "If you were not enscribed with the party, they fired you right away." However, he did not believe in the principles of the Fascist Party and during the years only attended a few party meetings, which were obligatory.
and concludes as follows:
Section 702.8, appendix 8 C.F.R., which interprets section 13 of the Displaced Persons Act of 1948, as amended, provides in pertinent detail:
No person shall be eligible to receive the benefits of the act, who
(a) Is or has ever been a member of the Communist, Nazi or Fascist Parties, or of a political or subversive group of an ideological character similar to that of the aforementioned Parties;
(g) The terms "member of" or "participated in" where used in paragraphs (a) and (d) of this section shall include only membership or participation which is or was voluntary, and shall not include membership or participation which is or was solely (1) when under 16 years of age, (2) by operation of law, or (3) for purposes of obtaining employment, food rations, or other essentials of living, and where necessary for such purposes * * *.
It is the view of the Service that membership in an organization such as the Fascist Party should be regarded prima facie to have been voluntary and that the burden, in such cases, should be upon the alien to prove by clear and convincing evidence that his membership in such party is or was involuntary. In the instant case, we have only the male alien's testimony to the effect that his membership in the Fascist Party during a period of 16 years was not of his volition. He has made the claim that he was automatically enrolled in the Fascist Party in 1927 in connection with his employment as a clerk for the town hall. He has also claimed that he could not have been employed by the Society of Trezza unless he were a member of the party. There is no substantiation of these statements. He has not shown, other than by his own word, that membership in the Fascist Party was necessary for the purposes of his employment during the period commencing in 1927 and ending in 1943. It is believed that the appellant's testimony, by itself, does not meet the test of "clear and convincing evidence" upon which it would be permissible to base a finding that his membership in the Fascist Party was involuntary within the meaning of section 702.8 (g), 8 C.F.R. appendix. Accordingly, the ground of excludability urged by the board of special inquiry under section 13 of the Displaced Persons Act of 1948, as amended, is sustained.
We agree that the burden of establishing admissibility to the United States is upon the aliens. The male alien's testimony is to the effect that any membership or affiliation with the Fascist Party, or a branch thereof, arose as a matter of course in connection with his employment, and necessary to retain such employment. He was a clerk in the city hall of his town in Venezia Giulia, and his duties were to record marriages, births, and deaths; that a year later in 1928, and for 15 years thereafter he was engaged in the collection of taxes for the Italian Government. He testified that he was "enscribed" in the Fascist Party, and that this was a requirement to retain his employment. His testimony is further to the effect that he was never active in the affairs of the party.
The record presents no contrary evidence. It is now more or less accepted that involuntary membership or affiliation in an organization such as the Fascist Party, without more, falls within the exception to the pertinent class of cases covered by the act of October 16, 1918, as amended by the Internal Security Act of 1950 and regulations promulgated pursuant thereto.
The record appears to establish clearly that the charges against the male alien; namely, that he participated in a movement which has been hostile to the United States and as a former member of a totalitarian party of a foreign state, are unsupported. Hence, the remaining charge against both aliens; namely, not eligible displaced persons, automatically falls.
Order: It is ordered that the appeal as to both aliens be sustained and that they be admitted to the United States for permanent residence upon presentation of proper documents. an order was issued for all members thereof to join the party; that he became a member only because it was necessary to retain his job; that dues were deducted from his wages each month; that he did not attend meetings for members of the party; and that he was not interested in the principles of the organization. The B.I.A. cited its decision in the above Int. Dec. # 315 and said, "Therein we held that the evidence established that membership in the Fascist Party was involuntary and that such membership and affiliation was passive and compulsory for the purpose of retaining employment * * *."