56107/933
Decided by the Board May 19, 1943.
Membership in anarchistic or subversive organizations — International Workers' Order — Admission of crime — Penalty.
1. Membership in the International Workers' Order is not membership in an organization, society, or group that believes, advances, or teaches the overthrow by force or violence of the Government of the United States.
2. When an alien has made an unqualified admission that he committed perjury, a subsequent attempt to qualify the admission does not obliterate the earlier admission.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of October 16, 1918, as amended — Member of or affiliated with an organization believing in overthrow, by force or violence, of the Government of the United States.
Act of 1917 — Admits commission of a crime involving moral turpitude — Perjury.
Mr. George E. Tolman, of Washington, D.C., for the appellant.
Mr. Anthony L. Montaquila, Board attorney-examiner.
STATEMENT OF THE CASE: The appellant is a native and citizen of Poland, age 35, married, occupation teacher, who first entered the United States about January 1928 illegally. He was permitted departure under a warrant of deportation. He was granted permission to reapply for admission after deportation. However, at the time of his last entry at the port of New York, May 28, 1929, he was not in possession of an immigration visa; he, in fact, having entered as a stowaway.
Thereafter, specifically on March 20, 1941, his application for pre-examination was granted. Accordingly, he appeared before a board of special inquiry on April 24, 1941, for that purpose. The board found that he would be inadmissible on the grounds stated above. From that action he has appealed.
DISCUSSION: The appellant testified that he first joined the International Workers' Order, by which organization he had been employed up to the time of his appearance before the board of special inquiry, and presumably is still employed, as a teacher of reading, writing, and historical facts about the Jewish race during 1930 and 1931; that he made a few payments to the organization as membership fees and then discontinued membership. He rejoined during 1934 and remained a member for a few months. He again joined that organization during 1935 or 1936 and discontinued his association in 1937. He joined the organization for the last time during 1939 and is still a member thereof. He pays the usual dues but states that he is not an active member. When asked whether the organization was affiliated with the Communist Party he disclaimed knowledge thereof. However, he denied that he is a Communist or that he has ever been a member of the Communist Party or that he ever attended meetings held by that party. He also stated that he has never held office in the International Workers' Order, and that he only attended meetings for the purpose of paying dues.
The appellant further testified that when he first joined the International Workers' Order he made inquiries as to its purposes and aims and was advised by the secretary thereof that they had nothing to do with the Communist Party; and he made similar inquiries each time he joined. On page 17, General Information Form I-55 he describes the order as a "fraternal benefit society."
In no instance does the record establish that the appellant has participated in any activity of the order that might be identified with the Communist Party. The pertinent ground of exclusion is based on copy of reports of investigation conducted by the Special Inspections Unit of the Immigration and Naturalization Service, in conjunction with excerpts from publications of the Communist Party of the United States. These data were introduced into the record, the purpose being to establish that the Communist Party of America is an organization proscribed by the act of 1918, as amended. There was also introduced into evidence by reference a report of the Special Inspections Division of the Immigration and Naturalization Service tending to establish that the International Workers' Order is affiliated with the Communist Party.
We will not pass upon the question of whether the reports covering the investigation of the International Workers' Order are competent evidence, but for the purpose of our decision we will assume that they are sufficient. Excerpts from those reports are set forth in the record.
The reports in question were read to the appellant, and on the basis thereof there was obtained from him a concession to the effect that it appeared the International Workers' Order is an affiliate of the Communist Party. However, he disclaimed that he was in any way connected with any activities the order carried on with the Communist Party. In the case of C---- Z---- (56106/708), involving the identical issue, we said:
Accepting as established the statements contained in these three synopses, we can concede that the International Workers' Order was "organized, controlled, and officered by Communists," that in 1932 the order openly advocated the election of Communist candidates, that the Fish Committee, in 1931, and the Dies Committee have identified the order as communistic, that the order is used as a proselyting medium or hunting ground for Communist members, and that the order has made advances of substantial sums of money to various Communist publications and has adopted some Communist publications as official publications of branches of the order.
On the other hand, Henry B. Hazard, Assistant Commissioner, Immigration and Naturalization Service, in March of 1938 advised Miss Carol King that the Immigration and Naturalization Service has concluded that membership in the International Workers' Order would not warrant opposition to naturalization. The Solicitor of the Department of Labor, on May 3, 1940, in a memorandum to the Commissioner, reached the following conclusions:
"(1) that the International Workers' Order is not affiliated with the Communist Party, imposes no political test of membership, and, in its latest declaration of principles, professes no subversive aims; and,
"(2) that mere membership in any organization, especially one primarily devoted to the payment of insurance benefits, is not of and by itself a ground for denying naturalization."
The memorandum of the Solicitor does not contain all of the facts which appear in the reports of investigations of the Special Inspections Division now before us, but we take into account that the facts disclosed in these reports of investigations are not of a clandestine or secret nature for the most part, but are facts of open notoriety.
We may conclude for the purposes of this decision the fact of Communist domination of the International Workers' Order and that such domination makes the order subservient to the dictates of Communist policy. There is, however, no proof before us that the International Workers' Order writes, circulates, distributes, or displays, or causes to be written, circulated, distributed, printed, published, or displayed, or has in its possession, for the purpose of circulation, distribution, publication, issue, or display, written or printed matter advising, advocating, or teaching the overthrow by force or violence of the Government of the United States, or of all forms of law, or the duty, necessity, or propriety of the unlawful assaulting or killing of any officer or officers of the Government of the United States or of any other organized government, or the unlawful damage, injury, or destruction of property, or sabotage, or that it ever has done any of those things.
The International Workers' Order is a legal entity, organized and chartered in 1930 under the New York Fraternal Insurance laws. The report of February 18, 1942, the synopsis of which is quoted above, sets forth excerpts from an article which appeared in the Daily Worker of February 3, 1933, and written by Max Bedacht, who was then president of the International Workers' Order and an admitted Communist. It is there stated: "The International Workers' Order remains what it set out to be, an active proletarian Mutual Benefit Society. The development of its members into militant trade unionists or into Communists thus becomes a natural result of a correct functioning of the I.W.O."
The comment of the report based upon the excerpts from Mr. Bedacht's article is as follows:
"This, then, would seem to clearly disclose the purpose of the I.W.O. to revolutionize the backward workers after bringing them into the I.W.O. for its low insurance benefits. It is, in other words, an admonition to the I.W.O. not to try to make a copy of the Communist Party out of the I.W.O. because then it will drive the backward workers or those who are not class conscious from the I.W.O., but rather to educate the backward workers, after they join the I.W.O. for its low insurance rates, so that they may become class conscious and join the Communist Party."
It thus appears that the Communist Party, though dominating the International Workers' Order, has consciously insisted that the order retain its separate identity and that it should not become a duplicate of the Communist Party, or practice or advocate the violently revolutionary program.
The record thus not only fails to establish that the International Workers' Order is an organization which does the things proscribed by act of 1918, as amended, but affirmatively establishes that it is not such an organization.
This determination, however, does not necessarily dispose of the case, but narrows the issue to whether membership in the International Workers' Order can be considered affiliation with the Communist Party. There are definitions of affiliation found in the act of 1918, as amended, but they refer to acts of a conscious and purposeful character. Therefore, although the act states that the definitions of affiliation are not conclusive, at least the act does indicate that a conscious and purposeful type of act is required before one is to be considered affiliated with the Communist Party or other proscribed organizations. We can concede that one might employ membership in the International Workers' Order as a means of achieving affiliation with the Communist Party. Therefore, each case wherein membership in the International Workers' Order is found as a fact should receive extra scrutiny from the Immigration and Naturalization officers, in order to determine whether that membership exists in the individual case for the purpose of achieving affiliation with the Communist Party.
One more argument is possible: It might be contended that where an organization of a nonproscribed nature is completely dominated by a proscribed organization, membership in the former, although innocently taken, should be considered to subject one to the penalties which follow from membership in proscribed organizations, for the reason that the innocent membership in such a case extends the scope of the proscribed dominating organization. Such an argument would require an alien to determine whether the innocent organization he joins is or is not dominated by a proscribed organization. It is a fact of common knowledge that some labor unions are to a greater or lesser extent dominated by the Communist Party, and it is a fact of common knowledge that a program of the Communist Party is to acquire domination of labor unions. This argument, however, if adopted, would impose tremendous difficulties in determining degrees of domination and in many other respects, which are obvious upon the slightest thought, such an argument must depend upon what we consider to be an unjustified extension of the term "affiliation."
The act of 1918, as amended, is, of course, to some extent aimed at the proscribed organizations, but it is aimed principally at membership in the proscribed organizations. We do not consider that it is the purpose of the act of 1918 to subject an alien to exclusion or deportation because he has innocently joined a legitimate organization and thereby subjected himself to Communist infiltration.
We may state at this point that on December 2, 1942, the Immigration and Naturalization Service issued Instruction No. 108, relative to procedure in naturalization cases involving members of the International Workers' Order, Inc., directing its personnel that no objection shall be made by any officer of that Service to the granting of any petition for naturalization solely on the ground that the petitioner is or was a member of, or affiliated with the International Workers' Order, Inc.
The remaining issue has to deal with the supposed admission by the appellant of the commission of perjury. It appears that on December 3, 1930, the appellant executed a declaration of intention in which he falsely claimed lawful entry at the port of New York on November 1, 1922, ex-S.S. King Alexander. He, in fact, of course first entered the United States illegally during 1928. This is conceded. However, counsel argues that the appellant has not made an explicit admission of the commission of perjury. His admission to the direct question on that point is, "Now I realize it, but then I didn't know." Counsel points out that although the appellant has admitted swearing falsely to the declaration of intention with respect to the date upon which he entered the United States, his answer to the direct question is a qualified one and, further, that the facts adduced precluded any admission on the appellant's part of a criminal intent.
We may preliminarily dispose of the question of materiality. In asserting as he did in the declaration of intention that he entered the United States on November 1, 1922, the appellant succeeded in defeating apprehension, in that had he divulged the true date and manner of his entry he would have been amenable to deportation. Obviously, therefore, his misstatement was material. As we said in the case of V---- R---- (56043/929) [ see page 359, this volume]:
For a person to have committed perjury it is not necessary that he be aware at the time that his false statements constitute a crime of perjury. Nor is it necessary that he know that his false statements are on a material matter. It is sufficient that the statements are, in fact, material. In other words, the test of materiality is objective rather than subjective. It is necessary, however, that the person making a false statement have known at the time that his statement was untrue.
Two points raised by counsel require discussion:
(1) Whether the evidence precludes any admission on the part of the appellant of a criminal intent;
(2) Whether appellant's answer, "Now I realize it, but then I didn't know," constitutes an unqualified admission of the commission of the offense of perjury within the meaning of the statute.
Section 125 of the Criminal Code provides:
Whoever, having taken an oath before a competent tribunal, officer, or person in any case in which a law of the United States authorizes an oath to be administered that he will testify, declare, dispose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed as true, shall wilfully and contrary to such oath state or subscribe any material matter which he does not believe to be true, is guilty of perjury, and shall be fined not more than $2,000 and imprisoned not more than 5 years.
To constitute the crime the act must, except in the case of certain statutory crimes, be accompanied by a criminal intent or by such negligence or indifference to duty or to consequences as is regarded by law as equivalent to a criminal intent, the maximum being actus non facit reum, nisi mens sit rea — a crime is not committed if the mind of the person doing the act is innocent (16 C.J. p. 74, sec. 41). In other words, the falsehood must be asserted with deliberation and a consciousness of the statement made, for if it has arisen in consequence of inadvertency, surprise, or mistake of the import of the question, there would be no corrupt motive. The existence of the intention is usually matter of inference and proof of external and visible acts, and conduct serves to indicate the particular intention, but often the inference of intention necessarily arises from the facts. It may arise from proof of the commission of an unlawful act. The general rule is, except in cases involving certain crimes not here applicable, that if it is proved that the accused committed the unlawful act charged, it will be presumed that the act was done with a criminal intention, and it is for the accused to rebut this presumption. The act of itself is evidence of intent (C.J. 16).
The appellant's testimony clearly establishes that he intentionally and purposefully made the material false statement in the declaration of intention, and that he was aware of the falsity of the statement and the purpose that it was to serve. He admitted that he did not enter the United States in 1922, as asserted, but that he first entered during 1928, said entry being illegal, and that he was deported and thereafter reentered the United States, again illegally. The appellant's testimony clearly establishes corrupt motive on his part from which a criminal intent on his part is clearly inferred. We must, therefore, reject counsel's argument that the facts adduced precluded any admission on the appellant's part of criminal intent.
Nor are we able to hold, as asserted by counsel, that the appellant's admission of the commission of perjury was qualified. We find that his answer to the direct question, "Now I realize it," is tantamount to an explicit and direct admission, and requires no inference to establish its intended meaning. The fact that the appellant coupled his admission of the commission of perjury with the phrase, "but then I didn't know," makes his admission none the less effective. Because he did not realize his acts constituted a particular offense is no excuse as a matter of law. He has not shown that the statement was made through inadvertence or because of a mistake or error on his part. The contrary is clearly shown and admitted by the appellant. Therefore, the rule that a person is responsible for the consequences of his acts applies. We find, therefore, that the appellant's admission of the commission of perjury was explicit and direct as required by the statute.
We, therefore, conclude that the appellant would not be inadmissible to the United States under the provisions of the Act of October 16, 1918, as amended. We further find that the remaining ground of exclusion is supported by the evidence.
FINDINGS OF FACT: Upon the basis of all the evidence presented, it is found:
(1) That the appellant is an alien, a native and citizen of Poland;
(2) That the appellant first entered the United States illegally during 1928 and was permitted departure under a warrant of deportation;
(3) That on November 19, 1940, the appellant was granted permission to reapply for admission to the United States after deportation;
(4) That on May 28, 1929, the appellant again entered the United States illegally;
(5) That on December 3, 1930, the appellant executed a declaration of intention in which he claimed he was lawfully admitted to the United States on November 1, 1922, ex-S.S. King Alexander;
(6) That the appellant has been a member of the International Workers' Order intermittently since 1931 and continuously since 1939;
(7) That the International Workers' Order, Inc., is a fraternal, beneficial organization, organized under the laws of the State of New York;
(8) That the appellant joined the International Workers' Order because of its fraternal, beneficial features;
(9) That the appellant has been engaged as a teacher of the International Workers' Order, Inc., teaching reading, writing, and historical facts about the Jewish race;
(10) That the International Workers' Order, Inc., does not write, circulate, distribute, or display, or cause to be written, circulated, distributed, printed, published, or displayed, or have in its possession, for the purpose of circulation, distribution, publication, issue, or display, written or printed matter advising, advocating, or teaching opposition to all organized government, or advising, advocating, or teaching the overthrow by force or violence of the Government of the United States, or of all forms of law, or the duty, necessity, or propriety of the unlawful assaulting or killing of any officer or officers of the Government of the United States or of any other organized government, or the unlawful damage, injury, or destruction of property, or sabotage, or that it ever has done any of those things.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That the International Workers' Order is not an organization proscribed by sections (d) and (e) of the act of 1918, as amended;
(2) That under the Act of October 16, 1918, as amended, the appellant would not be inadmissible as one who is or has been a member of or affiliated with any organization which believes in, advises, or teaches the overthrow by force or violence of the Government of the United States;
(3) That under section 3, Immigration Act of February 5, 1917, as amended, the appellant would be inadmissible to the United States as one who admits the commission of an offense involving moral turpitude, to wit: perjury.
DISCRETIONARY ACTION: It will be observed that the subject would be barred from entering the United States to reside unless the discretionary power to admit, contained in the seventh proviso to section 3, Act of February 5, 1917, as amended, may be exercised in his behalf. The propriety of permitting voluntary departure in a case of this character with a view to the application of the seventh proviso was upheld in the case of J---- P---- B---- (V-292720) [ see page 204, this volume].
We are of the opinion that the facts of this case justify the exercise of the discretion in the subject's behalf. We do not feel that his membership in the International Workers' Order should prejudice his receiving the benefits of that discretion, in view of the fact that we have concluded that membership in that organization does not subject an alien to exclusion or expulsion solely on that ground. As indicated, in Instruction No. 108, membership in the order is not of itself to be made the cause for objecting to a petition for naturalization. In the present case, of course, there is no evidence that the subject believes in, advocates, or otherwise countenances the aims, purposes, and tenets of the Communist Party or any organization affiliated therewith. In answer to the question as to whether he had anything to say in respect to his application for legal admission to the United States, he replied: "I want to prove that I am innocent of any political things. First thing, since I am married, at New York I opened a store and I tried to work up that store to make a living. That would prove that I haven't had anything to do with all the political of the order of the communists. I can prove that, that some of the air-raid wardens come up and they asked us to sell stamp, defense stamp, and in case we should need we should give the head-quarters to them and we agreed on that. I can prove that I have given entertainments to the children — movies, ice creams. That I have nothing to do with all this that is written to me. Last, I want to make an appeal in the name of myself, and wife and child, that only this office can give me permission to apply for a visa, and if this office will give me permission to legalize myself and I will do everything in my power to be a good citizen."
The appellant was married on January 16, 1939, to a naturalized citizen of the United States. He has disclaimed any arrests, either in this country or abroad. He presented several documents tending to establish that he is a person of good moral character, as well as proof of his financial standing. He also presented a letter addressed to his attorney by the American consul, Montreal, Quebec, Canada, dated March 15, 1941, advising that the subject had been classified as a preference Polish prospective quota immigrant on the basis of approved petition and, further, that a number under the quota to which he is chargeable is available.
ORDER: It is ordered that the appeal be sustained solely with respect to the finding of the board of special inquiry that the alien would be inadmissible to the United States under the Act of October 16, 1918, as amended by the Act approved June 5, 1920, and section 23 (a) of the Alien Registration Act of 1940, as a person who was and is a member of or affiliated with an organization, society, or group that believes in, advises, or teaches the overthrow by force or violence of the Government of the United States.
It is further ordered, That if the alien applies for admission to the United States within 6 months from the date hereof that he be admitted under the seventh proviso to section 3, Immigration Act of 1917, solely with respect to the ground of exclusion arising from his admission of the commission of perjury on December 3, 1930, in connection with a declaration of intention filed in the United States District Court, Southern District of New York.