A-7945007
Decided by Board April 12, 1951
Subversive, membership in a subsidiary or affiliate of the Communist Party — Exclusion ground, service in the Soviet Army — Act of October 16, 1918, as amended by section 22 of the Internal Security Act of 1950 — Public Law 14 (March 28, 1951).
Service in the armed forces of any country. (Russia in this case) whether voluntary or not, is not to be regarded, of itself, as membership or affiliation with, any proscribed party or organization, and does not, of itself, constitute a ground for exclusion. (Public Law 14, act of March 28, 1951 (H.R. 2339, S. 728) and instructions governing its application).
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of October 16, 1918, as amended — Service in the armed forces of a totalitarian government.
BEFORE THE BOARD
Discussion: This is an appeal from an order entered by the Acting Assistant Commissioner on March 15, 1951, affirming the appellant's exclusion on the above-stated ground at the port of New York by a board of special inquiry. Counsel in her exceptions to the order contends that the appellant's service in the armed forces of a totalitarian government was compulsory, leaving him no alternative with regard to membership in a branch of a totalitarian party as contemplated under the Internal Security Act of 1950.
The appellant, a native and citizen of Russia, male, 26 years of age, unmarried, last arrived in the United States ex-U.S.N.S. General Harry Taylor at the port of New York on December 28, 1950. He sought to enter for permanent residence and presented a nonpreference-quota immigration visa issued under Public Law 774 as a displaced person. He testified that he was drafted into the Army of the U.S.S.R. and saw service therein from 1941 until his capture by the Germans during February of 1943. Under a ruling of the Attorney General that service in the Soviet army, both present and former, shall be regarded as membership in a subsidiary or affiliate of the Communist Party, the appellant's exclusion by the board of special inquiry was mandatory under section 1 (2) (C) of the act of October 16, 1918, as amended by section 22 of the Internal Security Act of 1950 (files 56307/191, 56305/252).
The act of October 16, 1918, as amended by the Internal Security Act of 1950, now excepts from its provisions an alien whose membership in or affiliation with a branch of a totalitarian party of a foreign state was compulsory (H.R. 2339, 82d Cong., approved March 28, 1951). Instructions which have been promulgated to govern the application of H.R. 2339 ( supra), state in part:
Service, whether voluntary or not, in the armed forces of any country shall not be regarded, of itself, as membership or affiliation with, any proscribed party or organization, and shall not, of itself, constitute a ground for exclusion.
Accordingly, we find the appellant admissible as a nonquota immigrant under section 6 (a) (3) of the Immigration Act of 1924, as amended, and under section 2 (c) of Public Law 774, as amended, as a displaced person.
Order: It is directed that the appeal be and the same is hereby sustained, the appellant to be admitted in accordance with the foregoing opinion if otherwise admissible.