A-5277515
Decided by Board January 2, 1953
Communist Party of Canada: Membership prior to entry as ground for deportation under the act of October 16, 1918, as amended.
An alien who entered the United States in 1941 and 1945 is deportable under the act of October 16, 1918, as amended by the Internal Security Act of 1950, because of his past membership in the Communist Party of Canada from 1929 to July 1932. (See 4 INDec. 745.)
CHARGES:
Warrant: Act of October 16, 1918, as amended — Prior to entry, alien affiliated with organization that believes in the unlawful damage, injury or destruction of property.
Lodged: Act of October 16, 1918, as amended — Prior to entry, alien who was member of Communist Party of Canada.
BEFORE THE BOARD
Discussion: This case is before us on appeal from a decision of the Assistant Commissioner dated August 1, 1951, directing the respondent's deportation.
The respondent is a 48-year-old male, native of Russia and last a citizen of Canada, who was admitted to the United States for permanent residence on April 2, 1941. He was last admitted to the United States on December 18, 1945, as a returning resident upon presentation of a resident alien's border crossing identification card. It was stipulated by counsel for the respondent and the examining officer that the respondent was a member of the Communist Party of Canada between 1929 and about July 1932. The Assistant Commissioner, in his decision, found it unnecessary to discuss the charge stated in the warrant of arrest and ordered the respondent's deportation on the charge lodged at the hearing.
Counsel concedes that the facts in the respondent's case are entirely analogous to those in Matter of D----, A-7808001, 4 IN Dec. 745; decided September 22, 1952. We there found the alien deportable on the same charge which was lodged against this respondent. However, counsel contends that Matter of D---- was incorrectly decided.
In the brief submitted by counsel and in the oral argument, it was contended that the act of October 16, 1918, as amended by section 22 of the Internal Security Act of 1950 does not authorize deportation of an alien whose membership in the Communist Party had terminated prior to entry and whose entry occurred prior to September 23, 1950. They refer to section 4(a) which provides for the deportation of "any alien who was at the time of entering the United States, or has been at any time thereafter, * * * a member of any one of the classes of aliens enumerated in section 1(2) of this act," and rely on the italicized portion.
Counsel argues that while section 1(2) of the act of 1918, as amended bars from admission an alien who was at any time a member of one of the classes enumerated in paragraphs A to H, the word "classes" in the deportation section (section 4(a)) refers only to the classes mentioned in paragraphs A to H and does not include the opening clause of section 1(2) which reads "aliens who, at any time, shall be or shall have been members of any of the following classes." In other words, the argument is that, under the amendment made by the Internal Security Act, a person who was a member of the Communist Party of Canada and whose membership had terminated prior to his application for admission to this country can be excluded, but that the same person, if he succeeds in illegally entering the United States, is immune to deportation under section 4(a). It seems inconceivable that Congress should have intended such a result and we must reject the interpretation of the statute which is proposed by counsel.
We hold that the reference in section 4(a) to section 1(2) includes the following language of the last mentioned section:
(2) Aliens who, at any time, shall be or shall have been members of any of the following classes: * * * (C) Aliens who are members of * * * (iv) the Communist * * * party * * * of any foreign state, or of any political or geographical subdivision of any foreign state; * * *.
Hence, under section 4(a) the respondent is deportable since he is an alien who was at the time of entering the United States or thereafter a member of the aforementioned class. Support for our conclusion is found in the last sentence of section 4(a) which provides as follows: "The provisions of this section shall be applicable to the classes of aliens mentioned in this act, irrespective of the time of their entry into the United States." We believe that this can only mean that deportation is authorized whether the alien entered the United States before or after the passage of the amendatory act of September 23, 1950.
Prior to the amendment of the act of 1918 by the act of June 28, 1940, it was held that the statute authorized deportation only in the case of contemporaneous membership. By the amendment of June 28, 1940, deportation was made mandatory for all aliens who at any time in the past had been members of the proscribed organizations. The respondent's first entry in 1941 and his last entry in 1945 occurred after the passage of the 1940 amendment. As we indicated in Matter of D---- ( supra) the subsequent amendment of the act of 1918 by the Internal Security Act makes no material or significant change in the prior act except specifically to provide that membership or former membership in the Communist Party of the United States or of any foreign state should constitute a ground of exclusion or expulsion without the necessity of proving that such organization advocated the overthrow of the Government of the United States by force and violence.
We adhere to the view stated in Matter of D----. When the respondent entered the United States in 1941 and 1945 he was excludable because of his past membership in a proscribed organization. The amendment of September 23, 1950, makes it unnecessary in this deportation proceeding to present evidence that the Communist Party of Canada was an organization proscribed by the 1940 amendment. For the foregoing reasons, we conclude that the respondent is deportable on the charge lodged at the hearing, and his appeal will, therefore, be dismissed.
Order: It is ordered that the appeal be and the same is hereby dismissed.