7596142
Decided by Board November 8, 1949 Decided by Acting Attorney General November 16, 1949
Seventh proviso relief — Section 3, Immigration Act of 1917 — Advance grant of this discretionary relief in preexamination proceedings — Where such relief granted to one formerly affiliated with one of the excludable classes enumerated in the act of October 16, 1918, as amended. (See 3 IN Dec. 787.)
An alien with an otherwise favorable record, who is eligible for seventh proviso relief under section 3 of the Immigration Act of 1917, is not barred from such relief merely because the ground of inadmissibility to be waived upon his return is that he was affiliated with the Communist International in the past through his membership in the German Communist Party and thus affiliated with one of the excludable classes enumerated in the act of October 16, 1918, as amended. Such relief may be granted where the circumstances are held to justify such discretionary action. (See Interim Decision No. 338.)
INADMISSIBLE:
Act of 1918, as amended — Affiliated with an organization that advocated the overthrow of the Government of the United States by force and violence.
BEFORE THE BOARD
Discussion: On February 11, 1947, and October 20, 1948, the appellant appeared before a Board of Special Inquiry in preexamination proceedings at Philadelphia, Pa., for the purpose of having his admissibility determined were he to depart from the United States and reapply for admission in possession of an appropriate immigration visa. The Board of Special Inquiry found that the appellant would be inadmissible to the United States although in possession of an immigration visa, under the act of October 16, 1918, as amended by the acts of June 5, 1920 and June 28, 1940, because between 1921 and 1928 he had been affiliated with an organization that advocated the overthrow of the Government of the United States by force and violence.
The Assistant Commissioner affirmed the finding of the Board of Special Inquiry. The record is before us on appeal.
Counsel for the appellant has pretermitted the inadmissibility of the appellant on the foregoing ground, and has requested that we grant the appellant the discretionary relief set forth in the seventh proviso to section 3 of the Immigration Act of 1917.
The appellant was born in Muskau, Silesia, Germany, on February 9, 1900. In 1919 he joined the Independent Social Democratic Party of Germany and was a member of that organization when it merged into the Communist Party of Germany in 1921. He remained a member of the last-mentioned organization until December 1928, when he was expelled.
The Board of Special Inquiry and the Assistant Commissioner have found that during the period of the respondent's membership in the Communist Party of Germany it was affiliated with the Communist International; that the Communist International advocated the overthrow of the Government of the United States by force and violence; and that hence the appellant was affiliated with an organization that advocated the overthrow of the Government of the United States by force and violence.
There is no evidence that the appellant has, at any time since 1928, been a member of or affiliated with any Communist organizations or any organizations espousing Communist doctrines. The sole evidence of activity by the appellant during the period of his membership in the Communist Party of Germany, other than attendance at meetings, consists of his own testimony that he wrote several articles for a Communist Party newspaper in the Province of Silesia, and that he was once a delegate to a conference of the Communist Party of Germany.
Copies of the appellant's articles are not in evidence. The appellant, however, testified that they concerned "social laws and social security." That the appellant was expelled from the Communist Party of Germany is corroborated in the record by an item which appeared in a German newspaper on December 22, 1928.
The appellant testified before the Board of Special Inquiry that he never personally believed in or advocated the overthrow of any government by force or violence. He asserted that during the period of his membership in the Communist Party of Germany, he was primarily interested in advancing the interests of labor unionism.
The appellant came to the United States on April 16, 1941, and was admitted as a temporary visitor. Pursuant to several extensions granted to him he has continued to make his home in this country. He lives in Pennsylvania with his wife (who is likewise attempting to adjust her status in this country, but whose case presents no unusual problem) and is self-employed as an electrician. He has been investigated on several occasions by the Immigration and Naturalization Service and by the Federal Bureau of Investigation and no evidence of communism or subversive activities has come to light. He is favorably regarded in the community in which he lives and several of his neighbors have taken an active interest in assisting him to adjust his immigration status. He has no criminal record whatsoever.
Upon a review of the foregoing evidence it appears that the appellant was a member of the Communist Party of Germany for 7 years commencing when he was 21 years of age and ending when he was 28 years old. Since then, for more than 20 years, he has been disassociated from the Communist movement. Under the circumstances, it is our opinion that this defect in his otherwise good record should not bar him from becoming a permanent legal resident of the United States.
Order: It is ordered that the decision of the Assistant Commissioner be affirmed insofar as he finds the appellant inadmissible as one who has been affiliated with one of the excludable classes enumerated in the act of October 16, 1918, as amended; but that if the appellant applies for admission to the United States within 6 months from the date of this order, in possession of an appropriate immigration visa, he be admitted under the seventh proviso to section 3 of the Immigration Act of February 5, 1917, if then in all respects admissible, except for his affiliation with one of the afore-mentioned excludable classes from 1921 to 1928.
As a question of policy is involved in the grant of seventh proviso relief to an alien who has been affiliated with a proscribed organization, in accordance with the provisions of title 8, section 90.12, Code of Federal Regulations, the Board refers the case to the Attorney General for review of its decision.
The decision and order of the Board of Immigration Appeals dated November 8, 1949, are hereby approved.