A-7595493
Decided by the Board April 14, 1953
Communist Party of Germany — Membership prior to entry as a ground of deportation under the act of October 16, 1918, as amended — Ineligibility for suspension of deportation, section 244 (a) of the Immigration and Nationality Act of 1952 — Eligibility for voluntary departure under Section 244 (e) of the same act.
(1) Membership in the Communist Party of Germany prior to entry is a ground of deportation under the 1918 act, the facts in this case with respect to membership being analagous to the facts in Matter of D----, A-7808001, 4 IN Dec. 745 and Matter of K----, A-5277515, Int. Dec. No. 407.
(2) An alien who is deportable under the act of October 16, 1918, as amended because of membership in the Communist Party of Germany prior to entry is not eligible for suspension of deportation under section 244 (a) (1) because he is within the classes whose deportation could not have been suspended under section 19 (d) of the Immigration Act of 1917. Likewise, he is not eligible under paragraphs (2), (3), and (4) of section 244 (a) because his entry occurred prior to June 27, 1950, nor under paragraph (5) of that subsection since he is not deportable for an act committed or a status acquired subsequent to his last entry.
(3) An alien is eligible for voluntary departure under section 244 (e) of the Immigration and Nationality Act of 1952 when membership occurred prior to entry; deportation proceedings under the new act would have to be instituted under section 241 (a) (1) which is not one of the paragraphs mentioned in section 244 (e) in which voluntary departure cannot be granted; and the evidence shows that he has been a person of good moral character and opposed to communism for many years.
CHARGES:
Warrant: Act of 1924 — Remained longer — visitor.
Lodged: Act of October 16, 1918, as amended — Prior to entry, alien member of Communist Party of Germany.
BEFORE THE BOARD
Discussion: This case is before us on the basis of the Acting Assistant Commissioner's decision of August 26, 1952, which directed that the respondent be deported and certified the case to this Board for final decision.
The respondent is a 49-year-old male, native and last a citizen of Germany, who last entered the United States on May 29, 1941, as a visitor. The record indicates that he joined the Communist Youth League about 1922 or 1923; that he later became a member of the Communist Party of Germany; and that he was expelled from the party in 1926. Counsel does not question the fact that the respondent is deportable on the charge stated in the warrant of arrest, and he concedes that the respondent was formerly a member of the Communist Party of Germany.
In addition to counsel's contentions at the oral argument, we have also considered the matters set forth in his letter of March 11, 1953. Insofar as the respondent's membership in the Communist Party of a foreign state is concerned, the facts in his case are entirely analogous to the facts in Matter of D----, A-7808001, 4 IN Dec. 745 (1952) and Matter of K----, A-5277515, Int. Dec. No. 407, decided January 2, 1953. At the oral argument, counsel referred to the latter decision and contended that it was incorrectly decided. The precise question involved was carefully considered when the two cases above-mentioned were decided. Counsel has not advanced any cogent reason why we should overrule these decisions. Accordingly, we adhere to the view stated therein, and we conclude that the respondent is deportable because of his former membership in the Communist Party of Germany on the charge lodged at the hearing under the Act of October 16, 1918, as amended by the Internal Security Act of 1950.
Counsel has referred to the fact that the decision of the Acting Assistant Commissioner does not direct deportation under the Act of October 16, 1918, as amended, but that his deportation was directed only on the charge stated in the warrant of arrest. We think that the failure to include the 1918 Act charge in the order of deportation was an inadvertence since the Acting Assistant Commissioner's decision contains the statement that the findings of fact, conclusions of law and order of the hearing officer were being adopted, and the hearing officer had found the respondent deportable on the lodged charge. In any event, the fact that this ground of deportation was not included in the Acting Assistant Commissioner's order is not particularly important, since the charge was lodged at the hearing in accordance with the applicable regulation, the case was certified to us for final decision, and we have concluded that the respondent is deportable under the Act of 1918, as amended. The matter will be rectified in the conditional order of deportation, which will be entered in this case, and it will provide for deportation on both grounds.
The principal issue in this case is whether discretionary relief can be granted. Under the specific provisions of section 19 (d) of the Immigration act of 1917, as amended, voluntary departure and suspension of deportation could not have been granted to the respondent since he was deportable under the act of October 16, 1918, as amended. Counsel requested a reopening of the hearing to permit the respondent to apply for suspension of deportation under the provisions of paragraph (1) of section 244 (a) of the Immigration and Nationality Act. We hold that the respondent is not eligible for suspension of deportation under that paragraph since it contains a specific provision excluding aliens whose deportation could not have been suspended by reason of section 19 (d) of the Immigration Act of 1917, as amended. Likewise, the respondent is not eligible under any of the other paragraphs of section 244 (a). Paragraphs (2), (3), and (4) are limited to aliens who last entered the United States subsequent to June 27, 1950, and paragraph (5) is not applicable to the respondent since he is not deportable for an act committed or status acquired subsequent to his entry. We conclude, therefore, that the respondent is not eligible for suspension of deportation under the Immigration and Nationality Act of June 27, 1952.
Counsel stated, at the oral argument, that the respondent's wife is a legally resident alien and that it is anticipated that she will be naturalized as a citizen of the United States within a few weeks. We note that under section 212 (a) (28) (C) the respondent would be ineligible to receive a visa and would be inadmissible to the United States because of his former membership in the Communist Party of Germany. However, section 212 (a) (28) (I) contains a provision that a visa may be issued and that such an alien may be admitted to the United States if he establishes to the satisfaction of the American consular officer and the Attorney General that, since the termination of such membership and for at least the last 5 years, the alien has been actively opposed to the doctrine, etc., of such organization and that the admission of the alien would be in the public interest. There is a possibility that this respondent might be able to establish the requisite matters in connection with the foregoing provisions. The question of whether a visa should be issued is one for determination by the American consular officer, and we express no opinion at this time regarding the matter of the respondent's ultimate admissibility to the United States.
We come now to counsel's request that the hearing be reopened in order that the respondent may apply for voluntary departure under section 244 (e) of the Immigration and Nationality Act. With the exception stated in that section, we are precluded from granting voluntary departure if the alien is within the provisions of certain enumerated paragraphs of section 241 (a). The only such paragraph, which at first glance might seem applicable, is paragraph (6) which relates, inter alia, to members or former members of the Communist Party of any foreign state. The respondent is not within paragraph (6) because of the opening phrase which refers to membership in certain classes "after entry," and if deportation proceedings were being instituted against the respondent under the new Act, it would be necessary to proceed under section 241 (a) (1). Paragraph (1) is not one of the paragraphs, mentioned in section 244 (e), in which voluntary departure cannot be granted. Under these circumstances, we are not precluded from granting voluntary departure to the respondent under section 244 (e).
The respondent has been continuously employed as an assistant professor at the same college since September 1947 and the president of the college recommends him highly. He has presented evidence of good moral character and evidence that he has been opposed to communism for many years. We, therefore, consider that this case is one which merits the discretionary relief of voluntary departure.
As we have previously indicated, suspension of deportation cannot be granted to the respondent and the maximum relief available is voluntary departure. No useful purpose would be served in reopening the proceedings to permit the respondent to apply for suspension of deportation which cannot be granted under the express terms of the statute, or to apply for voluntary departure which we are prepared to grant at this time. In view of the foregoing, we will enter the following order.
Order: It is ordered that the outstanding order of deportation be withdrawn and the alien be permitted to depart from the United States voluntarily without expense to the Government, to any country of his choice, within such period of time, in any event not less than 90 days, and under such conditions as the officer in charge of the district deems appropriate, conditioned upon consent of surety.
It is further ordered that if the alien does not depart from the United States in accordance with the foregoing, he be deported from the United States in the manner provided by law on the charge stated in the warrant of arrest and on the lodged charge.