A-1258853
Decided by Central Office March 26, 1951 Decided by Board October 8, 1951 Decided by Board December 10, 1952
Subversive, proscribed organization, member or affiliate of — Communist Party of United States of America — Expulsion ground — Act of 1918, as amended — "Voluntary" membership or affiliation — Public Law 14 (H.R. 2339, 82d Cong., approved March 28, 1951) — "Duress" defense — Evidence — Section 4 (b) of the Internal Security Act of 1950.
An alien, who admitted he was a member of the Communist Party of the United States of America for about a year (1936-37), who had a membership book, and who held the position of financial secretary of the unit of that party to which he belonged (his only duty as such being to collect monthly dues), cannot be said to have been a person who did not know or have reason to believe that at the time he affiliated with that party that it was a Communist organization (sec. 4 (b) of the Internal Security Act of 1950) under the circumstances of this case; nor that his was merely an unknowing or nominal membership; and notwithstanding the pleas, that the circumstances under which he joined amounted to duress (so that he was not to be considered a "member of" or "affiliated with" the Communist Party as provided in Public Law 14 ( supra), and the contention that such membership was not voluntary and was for the purposes of obtaining employment and shelter, he was found deportable under the act of 1918, as amended, as a member of the Communist Party in this country. (See 4 IN Decs. 341 and 504.)
CHARGES:
Warrant: Act of 1918, as amended — After entry was a member of an organization which advocated overthrow of the Government of the United States by force and violence.
Act of 1918, as amended — After entry was a member of an organization which distributed printed matter advocating overthrow of Government of the United States by force and violence.
Act of 1924 — No immigration visa.
Lodged: Act of 1918, as amended — After entry was a member of the Communist Party of the United States.
BEFORE THE CENTRAL OFFICE
(March 26, 1951)
Discussion: Upon consideration of the entire record, including the exceptions taken, the recommended order of the officer conducting the hearing is hereby adopted.
Counsel has filed brief wherein he sets forth that respondent, being unemployed and dispossessed from his apartment, obtained employment as a porter, and few days thereafter was compelled by his employer to join the Communist Party; that respondent was faced with the alternative of discharge from his employment; and that respondent's membership in the Communist Party of the United States was therefore the result of duress.
It has been held in the State of New York, where the facts in the instant case occurred, that "duress" is not established merely by proof that consent was procured on account of the pressure of financial circumstances. Criterion Holding Company v. Cerussi, 140 Misc. 855 (1931); 250 N.Y.S. 735. There is no proof that respondent could not have been discharged at any time, with or without cause. The threat to exercise or enforce a legal right does not constitute duress. Daly v. Sperry Gyroscope Company, Inc., 195 Misc. 169 (1949); 89 N.Y.S. 2d 566. We therefore find that the respondent has failed to establish duress.
It is further argued that the Communist Party of the United States was a recognized political party during the period of respondent's membership therein. However, the language of the act of October 16, 1918, as amended, is clear. That act renders deportable any alien who was, at any time after entry, a member of the Communist Party of the United States.
Counsel raises the question of the constitutionality of the act of October 16, 1918, as amended. It is well settled that it is not within the province of this Service to pass upon the constitutionality of a statute enacted by the Congress. That is strictly a judicial function. ( Panitz v. District of Columbia, 112 F. (2d) 39, 42 (C.A.D.C., 1940), Todd v. Securities and Exchange Commission, 137 F. (2d) 475, 478 (C.C.A. 6, 1943)). Courts have held that the fact that an immigration law may be retrospective in its application to an alien does not make it unconstitutional. ( Mahler v. Eby, 264 U.S. 32, 39 (1924); 68 L. Ed. 549, 554; 44 S. Ct. 283, 266, U.S. ex rel. Lubbera v. Reimer, 22 F. Supp. 573 (D.C., S.D.N.Y., 1938). See also Lauria v. U.S., 271 Fed. 261 (C.C.A. 2, 1921); cert. den., 257 U.S. 635; 66 L. Ed. 408; 42 S. Ct. 48 (1921)).
The record shows that respondent last entered the United States on July 22, 1925, as a seaman. That entry has been verified. He admitted that at the time of that entry he intended to remain permanently in the United States, and that he was not then in possession of a valid immigration visa. He is therefore deportable under the Immigration Act of 1924.
Counsel requests that consideration be given to respondent's application for suspension of deportation. However, by virtue of his deportability under the act of October 16, 1918, as amended, respondent is barred from such relief by the provisions of section 19 (d) of the Immigration Act of February 5, 1917.
Order: It is ordered that the application for suspension of deportation be denied.
It is further ordered that the alien be deported from the United States pursuant to law, on the following charges:
The Immigration Act of May 26, 1924, in that, at the time of entry, he was an immigrant not in possession of a valid immigration visa and not exempted from the presentation thereof by said act or regulations made thereunder;
The act of October 16, 1918, as amended, in that he is found to have been, after entry, a member of the following class set forth in section 1 of said act: an alien who was a member of the Communist Party of the United States.
Discussion: These proceedings arose out of respondent's efforts which began in 1940 to adjust his status in this country and to acquire American citizenship. Respondent entered the United States on July 22, 1925, as a seaman. He had probably remained in the United States at all times since that date. He is 48 years old, a native and citizen of Germany. The Assistant Commissioner ordered that he be deported from the United States as an immigrant not in possession of a valid immigration visa, and on the lodged charge, that after entry he was a member of the Communist Party of the United States.
There is no doubt that respondent is deportable on documentary grounds. The questions are whether or not he is deportable on the lodged charge and whether he can and should be granted discretionary relief. Respondent admits his membership in the Communist Party from 1936 to the early part of 1937, approximately a year, during which he was a member of a unit of the Communist Party of the United States of America and held the position of financial secretary in that unit. He requests the exercise of discretionary relief in his behalf, in spite of the membership in the proscribed organization. His request for discretionary relief is based upon the facts that he has lived in the United States for 26 years and that his deportation unquestionably would result in serious economic detriment to his American citizen wife. In 1937 respondent married a divorced women with three small children. He cared for her and for her children until the boys were grown and became independent. She does not work, and is entirely dependent upon him. The boys all served in the Armed Forces of this country. One is permanently an invalid from that service and lives with respondent. The hearing officer found that respondent's deportation unquestionably would result in serious economic detriment to his wife. We concur in that finding.
Counsel objects to the application of the Internal Security Act to respondent as an unconstitutional ex post facto application. The constitutionality of this statute, as it affects immigration proceedings, has been adequately established in the courts ( U.S. ex rel. Harisiades v. Shaughnessy, 187 F. (2d) 137 (C.A. 2, 1951)).
Most important, respondent and counsel plead that the circumstances under which respondent joined the Communist Party in 1936 amount to duress, and, therefore, he is not to be considered as having been a "member of" or "affiliated with" the Communist Party, as provided in Public Law 14, 82d Congress (H.R. 2339), approved March 28, 1951. This statute, an amendment to the Internal Security Act of 1950, provides as follows:
That the Attorney General is hereby authorized and directed to provide by regulations that the term "member of" and "affiliated with" where used in the act of October 16, 1918, as amended, shall include only membership or affiliation which is or was voluntary, and shall not include membership or affiliation which is or was solely (a) when under 16 years of age, (b) by operation of law, or (c) for purposes of obtaining employment, food rations, or other essentials of living, and where necessary for such purposes.
It is the contention of counsel that respondent's membership in the party was not voluntary and was for the purposes of obtaining employment and shelter, another essential of living. The facts with regard to his membership are as follows. In 1936, respondent was an apartment house superintendant. His union called him out on strike, and the union lost the strike. Respondent was evicted from his apartment, and his household possessions were placed on the sidewalk where they remained for 3 days. He then secured a position as porter in a cooperative apartment house. This job gave him an apartment for his wife and three children and paid him $25 a week. After a week of employment, he was advised that in order to retain this job he must join the Communist Party. He has testified that all members of the staff in that cooperative apartment house, about 15 in number, were members of the Communist Party. He states that at that time it was not against the law to be a member of the Communist Party, and he did not hesitate to join in order to retain his position. After a year, he quarreled with the other members of his unit of the party on matters of policy. As he said, "I disagreed with their viewpoints." He resigned from the party, and he lost his job and his apartment. This confirms his belief that it was necessary to belong to the Communist Party to work in that apartment house. After that he purchased a parking lot on the installment plan, which he has operated ever since. He testified that he nets about $2,000 to $2,300 a year operating the parking lot, that this is not enough to allow him to hire a manager. His wife cannot drive; she has never been able to secure a license, and therefore will be unable to operate the lot alone, in case he is deported.
It is our opinion that this is a hardship case, that respondent is a worthy person entitled to discretionary relief, if it were in the power of this Board to give it to him. Since the passage of the Internal Security Act of 1950, we no longer have the power to exercise the 7th proviso of the 1917 act in favor of an alien in the position in which respondent now finds himself. There can be no doubt from the language of the statute that Congress intended to withdraw and has withdrawn from the Attorney General and this Board the power to grant 7th proviso relief in any case of this kind, no matter how deserving the alien may be.
Internal Security Act of 1950, Public Law 831, 81st Cong., amending sec. 6 (a) of the 1918 Act. The provisions of the seventh proviso to section 3 of the Immigration Act of February 5, 1917, as amended ( 39 Stat. 875; 8 U.S.C. 136), relating to the admission of aliens to the United States, shall have no application to cases falling within the purview of section 1 of this Act.
We do not believe that respondent comes within section 4 (b) of the Internal Security Act of 1950, as a person who did not know or have reason to believe that at the time he affiliated with the party that it was a Communist organization. He testified that he had a membership book, that he was financial secretary of the group, his only duty, however, being to collect monthly dues. In describing the incident which terminated his relations with the party he said, "I had the big argument to which they called me that I am a Trotskyite and they discharged me." It cannot be said that his was merely an unknowing or nominal membership.
Section 4 (b) act of 1918, as amended. The Attorney General shall, in like manner as provided in subsection (a) of this section, take into custody and deport from the United States any alien who at any time, whether before or after the effective date of this act, has engaged, or has had a purpose to engage, in any of the activities described in paragraph (1) or in any of the subparagraphs of paragraph (3) of section 1, unless the Attorney General is satisfied, in the case of any alien who engaged in any activity within category (C) of paragraph (3) of section 1 that such alien did not know or have reason to believe at the time such alien became a member of or affiliated with the organization referred to in category (C) of paragraph (3) of section 1 (and did not thereafter and prior to the date upon which such organization was registered or required to be registered under section 7 of the Subversive Activities Control Act of 1950 acquire such knowledge or belief) that such organization was a Communist organization.
Since respondent has admitted past membership in the Communist Party, under the statutes as they now exist, we have no authority to grant any form of discretionary relief in this case.
Order: It is ordered that the request for preexamination or suspension of deportation be denied.
It is further ordered that the appeal be and the same is hereby dismissed.
Discussion: This case is before us on a motion for reconsideration of the respondent's counsel dated November 21, 1952.
The facts in this case are set forth in our decision of October 8, 1951, dismissing the respondent's appeal from the order directing his deportation. Briefly, the respondent entered the United States in 1925 as a seaman and we found him deportable on the ground that at the time of entry he was an immigrant who was not in possession of a valid immigration visa and on the ground that after entry he had been a member of the Communist Party of the United States for a period of approximately 1 year; that is, during 1936 or 1937. As to the circumstances under which the respondent became a member of that party, he testified that in 1936 he was evicted from his apartment; that his household possessions remained on the sidewalk for 3 days; that he then secured a position as a porter in a cooperative apartment house; that all members of the staff of this apartment house were members of the Communist Party; and that he joined the Communist Party because he was informed that it would be necessary for him to do so in order to retain that employment.
Following our decision of October 8, 1951, a suit was filed in the United States District Court for the Southern District of New York for the purpose of testing the legality of the order directing the respondent's deportation. On September 23, 1952, the court directed that the writ be sustained unless this Board clarified the basis of its decision that it lacked power to afford the respondent discretionary relief. U.S. ex rel. Strauber v. Shaughnessy, 107 F. Supp. 399. Subsequently, the application for writ of habeas corpus was withdrawn by stipulation. The question, which the court indicated in its opinion should be clarified, was whether the respondent's membership in the Communist Party of the United States was or was not voluntary within the meaning of the act of March 28, 1951 (8 U.S.C. 137-9). This point is also raised in the motion for reconsideration, counsel contending that the respondent was not a "member" of the Communist Party because he joined that party solely for the purposes of obtaining employment or other essentials of living.
We recently considered a case in which the facts were entirely analogous to those in the respondent's case. Matter of D----, 4 IN Dec. 675, decided June 24, 1952. In that case, we reviewed the legislative history of the act of March 28, 1951, and concluded that the alien was a voluntary member of the Communist Party notwithstanding the provisions of the act mentioned.
The reasoning in Matter of D---- ( supra), is equally applicable here. In the respondent's case, it may have been necessary for him to join the Communist Party to obtain a certain benefit; namely, to retain the particular employment in which he was then engaged. However, his opportunities for other employment and availability of the essentials of living were as accessible to him as a nonmember of the Communist Party as they were to the overwhelming majority of the population of this country. He would have been under no general disadvantage by reason of nonmembership in the Communist Party. Accordingly, we conclude that whatever compulsion, if any, may have induced the respondent to join the Communist Party, was not of such a nature as to render his membership involuntary under 8 U.S.C. 137-9. It follows, therefore, that the respondent is not eligible for suspension of deportation under section 19 (c) of the Immigration Act of 1917, as amended. Counsel also contends that the respondent will be eligible for suspension of deportation under section 244 (a) of the Immigration and Nationality Act of 1952. We express no opinion on that point at this time, However, we will reopen the proceedings in order that the respondent may make whatever application he desires for discretionary relief. In view of the action which is being taken, we deem it unnecessary to grant counsel's request for oral argument.
Order: It is ordered that the order of deportation dated March 26, 1951, be withdrawn.
It is further ordered that the hearing be reopened for further proceedings in accordance with the foregoing.
It is further ordered that counsel's request for oral argument on the motion for reconsideration be denied.