0300-440163
Decided by the Board May 27, 1953
Excludability under section 212 (a) (27), Immigration and Nationality Act of 1952.
An individual who actively professes pacifism and who advocates all opposition "legally" possible to conscription laws who desires to enter the United States for a temporary period of 2 months to lecture and take part in discussion groups on the subject of pacifism is not inadmissible to the United States under section 212 (a) (27) of the Immigration and Nationality Act.
EXCLUDED:
Act of 1952 — Entry would be prejudicial to the public interest or endanger the welfare or safety or security of the United States.
BEFORE THE BOARD
Discussion: Section 212 (a) (27) of the Immigration and Nationality Act makes ineligible for the issuance of a visa and inadmissible to the United States the following classes of aliens:
Aliens who the consular officer or the Attorney General knows or has reason to believe seek to enter the United States solely, principally, or incidentally, to engage in activities which would be prejudicial to the public interest, or endanger the welfare, safety, or security of the United States.
S---- D---- M---- was granted a visa and found eligible for entry into the United States by our consular official in England. M----'s activities in England and his purpose in coming to the United States were made known to the consular official before the visa was issued. Upon arrival at New York, M---- was examined by a special inquiry officer who, in accordance with the authority delegated to special inquiry officers by the Attorney General (8 C.F.R. 236.1), found on the basis of M----'s activities in England and his purpose in coming to the United States, that there was reason to believe that he sought to enter the United States incidentally to engage in the prohibited activities mentioned in the section. M---- was excluded. An appeal was taken to this Board; brief has been submitted; and counsel has been heard at oral argument.
The applicant, a male, a native of England and subject of Great Britain, desires to enter the United States as a visitor for 2 months to fulfill a schedule which requires him to deliver a series of talks and to be a participant in discussion groups. His appearances and the subject matter of his talks and discussions have been arranged by the American Friends Service Committee and the War Resisters League.
The American Friends Service Committee is an organization founded in 1917 by Quakers. Its main interest lies in the field of relief or rehabilitation. Since 1936, it has conducted a "peace education program" designed to stimulate thought and discussion about important international problems which could be a cause of war if peaceful solutions were not found. This quest for peaceful solutions is explored by the group discussion method in which various and conflicting views are expressed. The committee has made arrangements to have an able presentation of the views of those who believe in the principles of military force and who support the principal foreign policy of the United States Government in every detail. The applicant's presence at these discussions is desired so that there may be an equally able presentation of the pacifist viewpoint.
The War Resisters League was established in 1923 and is composed of about 1,000 active members. Its members have withdrawn their support of war and those who are of draft age are conscientious objectors. The league carries on educational programs and gives its members of draft age assistance and legal advice. It seeks to secure persons to sign a pledge against war. It has arranged about 20 speaking dates for the applicant on topics concerning the rearmament of Germany; England's views of the Korean war; nonviolent resistance to apartheid in South Africa; and talks on Yugoslavia. The lectures are to be given before members of local groups of the organization throughout the United States; to Quaker organizations; and general public meetings.
There is no suggestion that either organization is subversive. The latest listing of subversive organizations by the Attorney General does not mention them (5 C.F.R. 210, 1952 Supp.). There is no indication that either organization has any ties or association with subversive groups.
The applicant is an extreme pacifist whose beliefs are based on Christian principles. He is a former canon of the Church of England who voluntarily resigned from the church because he felt that it was not right as a pacifist to draw a salary from an organization in which the majority did not teach the principles of pacifism. He does not believe in the maintenance of an armed force of any kind and is of the belief that there is no justifiable war. He would resist invasion of his native land by nonviolent resistance only. He is opposed to any law which requires the drafting of persons into the armed forces as a fundamental denial of liberty and freedom. He stated generally that the principles of pacifism are superior to the law of the land. However, when applied to specific situations, it appears that any opposition to a law obnoxious to pacifistic principles would be taken in a manner sanctioned by the law of the land. Thus, for example, neither he nor the organization to which he belongs urges resistance to conscription or illegal avoidance of conscription. He and the organization have confined their efforts to getting "the law altered"; to "any constitutional steps to try to have the law rescinded"; and to advising conscientious objectors of the provisions made by law for them and to having them submit and prove their cases before government tribunals. He has not and does not intend making a proposal to any one that they refuse military duty except in terms of a conscientious belief that military duty should not be performed. He does not attempt to seduce troops from their allegiance as he recognizes the right of any one to serve in the armed forces just as he respects the rights of those who, on conscientious grounds, do not wish to serve.
Although he is of the hope that his talks will influence people in the United States to view pacifism as he does, it is not his purpose to deal with the matter of conscientious objection to armed service and no lectures on this topic have been arranged for him. However, if as a part of a question and answer period he is questioned concerning his viewpoint toward the Selective Training and Service Act of the United States, he would state that he was not acquainted with its provisions; that in England if a person is opposed to war, he has the right to register as a conscientious objector; that whether such right is available in the United States or not, he does not know; that the person asking the question should consult someone who does; and that he believes the important thing to be that the person make up his mind as to what he believes as to whether it is right to go to war or not.
The primary purpose of his visit is to speak on current events from the pacifist viewpoint. In his talks on these controversial subjects he will discuss critically the United States, Great Britain, and the Soviet Union. He holds views some of which may be unpopular in the United States, and some of his opinions may be in conflict with policies of this Government. As to the United States, he is critical of the policy of rearming Germany. He will discuss the different views which exist in Britain concerning the recognition of Red China. He will present the official British Government point of view which on this point he favors and will be critical of the United States policy. He is of the belief that Red China must be recognized because such an act is merely a recognition of the fact that certain people are in control of China and such recognition does not mean approval of its policies.
Concerning Korea, he is critical of the United Nations' use of armed force before negotiations were undertaken. While he does not approve of China's participation in the Korean conflict, he believes the crossing of the 38th parallel was justification in their eyes for their entry into the conflict. He believes the Indian proposal concerning prisoners was a reasonable basis for solving the deadlock.
He stated he had never participated in conjunction with any Soviet movement during the period of his association with the Peace Pledge Union. He testified that he had attended a conference on the German problem on November 1, 1952, only after he had been assured it was not in any way communistic inspired; that attempts to hold a conference at some neutral country had been made but finally they were compelled to hold the conference in East Berlin; that it then appeared that the group was overweighted with East Germans and when an attempt was made to sponsor a resolution which was in effect the Soviet proposal for the German problem, he protested and abstained from voting in favor of the resolution and immediately resigned from the group.
He testified that he was originally asked to go to Yugoslavia as one of an investigating committee to investigate charges of aggression the Soviet Union made against Yugoslavia; that the committee examined all the charges made and found them completely groundless and published a report to this effect.
In 1943, the applicant was arrested, convicted, and sentenced to 9 months' imprisonment for violation of the Official Secrets Act of Great Britain for having in his possession secret Government documents to which he was not entitled. He served 6 months. The incident occurred as follows. He had spoken in England at an open air meeting on the subject of India. At the conclusion of the meeting, he was informed by a person he had never seen before that he had made statements which were inaccurate. The person stated that he worked in the India Office and would supply the applicant with papers which he would find useful. He did not state that they were secret papers. Two days later, the person came to the applicant's office and supplied him with papers marked secret which contained information concerning the suggested ways of dealing with Gandhi. The applicant felt concerned because he thought that some of the suggested ways of dealing with the problem would endanger Gandhi's life. He thereupon consulted a member of Parliament without informing him of the contents of the secret papers that he had reason to believe certain solutions were under discussion and requested that the Secretary of State be questioned in the House of Commons to bring the matter out into the open. The member of Parliament agreed to do this. The Secretary of State refused to answer the questions. It became apparent that there had been a leakage of information; watch was set; and the person who supplied the applicant with the papers was determined to be the offender. He was traced to the applicant and both were arrested. Respondent freely admitted the facts and pleaded guilty. He stated he did not solicit the documents and did not reveal their contents to a single person. He stated it was against his principles to steal secret Government documents even though he believed the documents would help advance his cause, but that the extent to which his conscience would permit him to pursue the principles of pacifism in violation of law would depend upon the facts of the particular case. The arrest mentioned is his only one.
The unpopularity in the United States of the views advocated by a person seeking admission would apparently not be a test as to whether admission of that person would be prejudicial to public interest, for persons who advocate totalitarianism (as long as they do not advocate establishment of a dictatorship in the United States) are admissible under the Immigration and Nationality Act.
There is little in the history of the section under consideration which will throw light upon its meaning. The Senate and House Committees which recommended the passage of the bill incorporating its provisions considered the section as one relating to subversives (p. 10, S. Rept. No. 1137, 82d Cong., 2d sess.; p. 49, H. Rept. No. 1365, 82d Cong., 2d sess.). However, it is clear that the language of the section is broad enough to include others than subversives.
We do not believe it necessary to attempt to define the language under consideration for we think it clear that Congress did not intend to include a pacifist within its confines. The act which contains the section requiring the exclusion of persons whose entry would be prejudicial to the public interest, expressly provides that pacifists by reason of religious training and belief who swear to perform noncombat service in the armed forces of the United States when required by law or to perform work of national importance under civilian direction when required by law, are eligible for naturalization. Such persons are considered capable of satisfactorily complying with portions of an oath of allegiance which require them to swear to support the Constitution of the United States, to support and defend the Constitution and all the laws of the United States against all enemies, foreign and domestic; and to bear true faith and allegiance to the Constitution of the United States (sec. 337 (a)).
A person who is a pacifist on religious grounds would not be disqualified from becoming a member of Congress or holding other public office ( Girouard v. United States, 328 U.S. 61 (1946)). In that case the court stated per Justice Douglas (p. 64):
Refusal to bear arms is not necessarily a sign of disloyalty or a lack of attachment to our institutions. One may serve his country faithfully and devotedly, though his religious scruples make it impossible for him to shoulder a rifle. Devotion to one's country can be as real and as enduring among noncombatants as among combatants. One may adhere to what he deems to be his obligation to God and yet assume all military risks to secure victory. The effort of war is indivisible; and those whose religious scruples prevent them from killing are no less patriots than those whose special traits or handicaps result in their assignment to duties far behind the fighting front. Each is making the utmost contribution according to his capacity. The fact that his role may be limited by religious convictions rather than by physical characteristics has no necessary bearing on his attachment to his country or on his willingness to support and defend it to his utmost.
Religious scruples against bearing arms have been recognized by Congress in the various draft laws which have permitted assignment of qualified conscientious objectors to noncombat service or work of national importance under civilian direction. We conclude that it could not have been congressional intent to exclude a pacifist merely because of his belief in or advocacy of the principles of pacifism.
It appears that the special inquiry officer would not have barred the respondent solely by reason of his belief in pacifism. It is his fear that a person who places his conscience above the law and who has once received secret documents in defiance of the law may engage in activities prejudicial to the best interest of the United States if permitted to enter, and to this is added the thought that his remarks will be critical of United States policies and the consequence of his visit may result in enlarging the group which object to service in the armed forces.
We have shown that Congress does not consider a pacifist to be subversive or a threat to the Constitution and laws of the United States by reason of his belief in pacifism. Certainly his advocacy of pacifism and his criticism of policies in conflict with the principles of pacifism should not make him a subversive or a threat to the Constitution and laws of the United States. The applicant's general statement that conscience is above laws is one that is not unfamiliar in the philosophies of our heritage. Thus, Mr. Justice Douglas, in the Girouard case, stated (p. 68):
The struggle for religious liberty has through the centuries been an effort to accommodate the demands of the State to the conscience of the individual. The victory for freedom of thought recorded in our Bill of Rights recognizes that in the domain of conscience there is a moral power higher than the State. Throughout the ages men have suffered death rather than subordinate their allegiance to God to the authority of the State. Freedom of religion guaranteed by the first amendment is the product of that struggle.
Furthermore, the applicant's general statement of principle must be viewed in light of his replies to specific inquiries as to his opposition to conscription laws. These replies clearly reveal that he advocates all opposition "legally" possible. He advocates changes only within constitutional limitations. Moreover, we find it difficult to conceive that he, as a visitor for 2 months on a schedule arranged for him by responsible organizations in the United States, will be faced with situations where he will be required to place conscience above laws not too dissimilar to the laws of the land from which he comes and where he has but once been arrested in a lifetime and that over 10 years ago.
Ten years have passed since his conviction and during this time, he has not been in conflict with the law. Counsel at oral argument pointed out that the applicant was given the minimum possible sentence under the law and that he served only 6 months. He stated that at the trial, high officials of the Church of England appeared and testified in his behalf. Considering all the circumstances of the conviction; the fact that he did not reveal the contents of the documents he received; that there has been no repetition of the offense; that he himself did not steal the documents; that stealing is against his principles; and that he received a minimum sentence, we do not feel that there is revealed a person whose admission offers a threat to the national interest. We find no reason to believe that the applicant will engage even incidentally in activities prejudicial to the public interest. The appeal must be sustained.
Order: It is ordered that the appeal be and the same is hereby sustained and that the applicant be admitted for a period of 60 days from the date this order is served upon him.