5156681
Decided by Board November 17, 1949 Decided by Attorney General December 2, 1949
Seventh proviso relief — Section 3, Immigration Act of 1917 — Advance discretionary relief in deportation proceedings — Where such relief granted to one formerly a member of one of the excludable classes enumerated in the act of October 16, 1918, as amended. (See 3 IN Dec. 784.)
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 deportation and) the ground of inadmissibility to be waived upon his return is that he was a member of the Communist Party of the U.S.A. in the past and thus a member of 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.
CHARGES:
Warrant: Act of 1924 — No immigration visa.
Lodged: Act of 1918, as amended — After entry into the United States became a member of an organization which advocated the overthrow of the Government of the United States by force and violence.
Act of 1918, as amended — After entry into the United States became a member of an organization which distributed printed matter which advocated the overthrow of the Government of the United States by force and violence.
BEFORE THE BOARD
Discussion: On June 10, 1949, the Assistant Commissioner found that the respondent was subject to deportation and ordered that he be deported. The record is before us on appeal from that order.
The respondent was born in Cologne, Germany, on February 6, 1904. He came to the United States as a seaman at the port of New York on the S.S. New York on July 4, 1927, and deserted. It was his intention at the time of his arrival to remain in the United States permanently and he has since remained in this country. As he was not in possession of an unexpired immigration visa at the time of this entry and was not exempted from the presentation thereof, the Assistant Commissioner properly found that he was subject to deportation on the above-stated documentary ground.
The Assistant Commissioner also found that the respondent was subject to deportation under the act of October 16, 1918, as amended by the acts of June 5, 1920, and June 28, 1940, as an alien who after entry into the United States became a member of an organization which advocated the overthrow of the Government of the United States by force and violence and which distributed printed matter which so advocated.
The respondent admitted that for a period of 1 year between 1929 and 1931, he had been a member of the Communist Party of the United States at Stamford, Conn. The Assistant Commissioner found that during this period the Communist Party advocated the forcible overthrow of the Government of the United States. We have carefully considered the documentary evidence and the oral testimony. We have reviewed the analyses of the evidence by the presiding inspector and the Assistant Commissioner. We find on the basis of the evidence adduced and prior court decisions that during the period of the respondent's membership in the Communist Party of the United States, it advocated the overthrow of the Government of the United States by force and violence and that it distributed printed matter which so advocated ( Matter of H----, 5300756, May 13, 1949; Matter of F----, 3430058, July 1, 1949; Matter of M----, 3407165, Aug. 12, 1949; Matter of O----, 4690122, Sept. 13, 1949).
It is, therefore, our conclusion that the respondent is subject to deportation on all of the above-stated grounds.
We are confronted with the question, however, of whether in this case we should exercise the discretion granted to the Attorney General under the seventh proviso to section 3 of the Immigration Act of February 5, 1917, and section 19 (c) of that act, and enable the respondent to adjust his immigration status and become a legal resident of this country.
The record shows that the respondent was a member of the Communist Party for 1 year about 20 years ago. The period of his membership occurred very shortly after his arrival in this country, at a time when he was unfamiliar with the English language or the customs of this country. There is no evidence that he was ever an active member of the Communist Party. The sole evidence is that he attended several meetings of the organization. Since 1930 or 1931 he has not been connected with the Communist Party nor has he been associated in any way with any other organization advocating Communism or Communist principles. The respondent testified that he left the Communist Party in 1930 and 1931 because it gave him no "spiritual uplift." He has been actively engaged for the past several years in a religious movement known as Buddhism. He has recently published a book on Buddhism called "The Eternal Fountain." He has been steadily employed as a compositor since 1934 and now earns about $100 a week. He supports a former wife and child by contributing $29 each week toward their maintenance; and he lives with and supports his present wife and child. He has no criminal record whatsoever.
In view of the foregoing, we believe that the discretion granted by the Congress of the United States to the Attorney General under the seventh proviso to section 3 of the Immigration Act of 1917 and section 19 (c) of the act should be exercised in this case so that the respondent might adjust his immigration status and become a legal resident of the United States.
Order: It is ordered that an order of deportation be not entered at this time, but that the alien be required to depart from the United States, without expense to the Government, to any country of his choice, within 90 days after notification of decision, conditioned upon arrangements being made with the local immigration office for verification of departure.
It is further ordered, That if the alien applies for admission to the United States within 60 days after his authorized departure, he be admitted under the seventh proviso to section 3 of the Immigration Act of 1917, if otherwise admissible than as one who has been a member of one of the excludable classes enumerated in the act of October 16, 1918, as amended.
As a question of policy is involved in the grant of seventh proviso relief to an alien who has been a member of the Communist Party, 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 17, 1949 are hereby approved.