A-7948072 and A-7948073
Decided by Central Office May 3, 1951
Subversive, proscribed organization — Member of an organization affiliated with the Communist Party of Russia — Act of 1918, as amended — Member of trade union of laborers in Russia, while working there as a mechanic.
While a trade union of laborers in Russia is found to be an organization affiliated with the Communist Party of Russia, a member of such trade union while working as a mechanic in Russia is not inadmissible under the act of 1918, as amended, because membership in such trade union was found to be involuntary.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1918, as amended — Membership in an organization affiliated with the Communist Party of Russia (male appellant).
Act of 1917 — Convicted of crime involving moral turpitude: Violation of section 259, German Criminal Code — Receiving stolen goods (female appellant).
Act of June 25, 1948, as amended — Not an eligible displaced person (female appellant).
BEFORE THE CENTRAL OFFICE
Discussion: This record relates to a 35-year-old male (principal applicant) and his 26-year-old wife, natives and citizens of Russia, who applied for admission into the United States at Schweinfurt, Germany, on December 2, 1950. On December 21, 1950, they were examined by a Board of Special Inquiry for determination of their admissibility under the Displaced Persons Act of 1948, as amended. They were excluded on the above-mentioned grounds. This matter is now before us on appeal.
The female alien was convicted at Nuremberg, Germany, on July 14, 1947, for violation of section 259, German Criminal Code on a charge of receiving stolen goods. Under this German law a person who receives stolen property without knowledge that it is stolen, but under circumstances which should lead him to make inquiry, is nevertheless guilty of the crime. Where property is acquired without knowledge that it is stolen or without intent to deprive the rightful owner of his possession, the offense does not involve moral turpitude. ( Matter of K----, 2 IN Dec. 90 (B.I.A. 1944)).
The female alien admits that she was convicted of receiving stolen goods but does not admit any facts which indicate that she acquired the property with wrongful intent. We therefore conclude that the evidence is not sufficient to sustain the charge that the crime for which she was convicted involves moral turpitude.
According to their testimony, the applicants lived in their native country until 1943, when the male alien was deported to Germany by German authority. The female applicant accompanied him. The male alien testified that the property of his family was confiscated in 1930, and his father and brother deported. The male applicant stated that he was never a Communist, or Communist Party member. The female alien stated that she was never a Communist and never belonged to any organizations. The male applicant was employed in Russia as a mechanic from 1930 to 1947. He testified that while so employed, he was required to be and was, a member of a trade union of laborers. Dues for this orgnization were deducted from the salaries of its members.
The male applicant admitted that this organization was dominated by the Communist Party of Russia. He asserted, however, that he did not attend union meetings other than those occurring on important holidays, when attendance was compulsory.
The male alien was found inadmissible to the United States under section 1 (2) (C) (v) of the act of October 16, 1918, as amended by section 22 of the Internal Security Act of 1950, on the ground that he was a member of an organization which is an affiliate of the Communist Party of Russia.
The male applicant admits that he belonged to a trade union of laborers in Russia. Because it was controlled by the Communist Party of Russia, we hold that this trade union falls within the purview of the act of October 16, 1918, as amended, as an organization affiliated with the Communist Party of Russia.
An amendment to the Internal Security Act of 1950, approved March 28, 1951 (Public Law 14, 82d Cong., H.R. 2339) authorized and directed the Attorney General to provide by regulations that the terms "members of" and "affiliated with," where used in the act of October 16, 1918, as amended, shall include only membership which is or was voluntary. Part 174.1 (i) of title 8, Code of Federal Regulations was promulgated in conformity therewith.
The practice in totalitarian countries of forcing workers to join organizations such as trade unions is recognized by us. The record in this case contains uncontradicted testimony by the alien that his membership was not of his own volition, and that he did not, in whole or in part, join or remain a member because of ideological conviction or belief in the doctrines of Communism. The record shows that he has never intentionally been active in the promotion of such doctrines by active membership, as evidenced by word or act. After appropriate security clearances; there is no evidence or reliable information refuting any part of the foregoing. Accordingly, we find that in the instant case the record establishes that the former membership of the male applicant in a trade union was not voluntary, and therefore is not a basis for exclusion.
The female applicant has been found inadmissible under the act of June 25, 1948, as amended, because of the inadmissibility of her husband. That ground for exclusion disappears in the face of our finding that the male applicant is admissible.
Order: It is ordered that the appeal be sustained and the applicants be found admissible to the United States upon securing valid replacement visas.