A-7957735
Decided by Board, October 16, 1951
Subversive proscribed organization, member or affiliate of — Exclusion ground — Act of 1918, as amended — "Voluntary" membership or affiliation — Public Law 14 (March 28, 1951) — Evidence.
While it is essential that the member be cognizant of the kind of organization he has joined, in order for membership in the organization to be considered "voluntary," the evidence in this case does not support the assertion that she was "never consciously a member of any group that had for its object the overthrow of the Government by force," but rather justifies a finding that her membership or affiliation (which she admits) was knowingly created by her act of joining or affiliating upon her own volition and that she was necessarily aware of the objectives of the Young Communist League (Canada) during her 7 months' membership. (4, I N. Dec. 341, was distinguished as to certain factors, and the difference as to burden of proof in that expulsion case was noted also.)
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1918, as amended — Member of a section, subsidiary, branch, affiliate, or subdivision of the Communist Party of a foreign state.
BEFORE THE BOARD
Discussion: This is an appeal from an order entered by the Assistant Commissioner on June 11, 1951, affirming the appellant's exclusion on the above-stated grounds. Counsel excepts to the order, urging (1) that as a matter of law actual membership in a prescribed organization is not established by the evidence of record; and (2) assuming an affirmative finding of membership, then the evidence establishes that it was involuntary and therefore within the exceptions provided under the act of March 28, 1951 (Public Law 14 (S. 728), amending the act of 1918, as amended).
The facts of the case are fully stated in the opinions below. Briefly they relate to a native and citizen of Canada, 32 years of age, who applied for admission into the United States as a temporary visitor at the port of Detroit, Mich., on October 16, 1949. If found admissible, the appellant may at some later date apply for admission for permanent residence. She is married to a citizen of the United States, an employee of the Post Office Department, who resides at Detroit, Mich. They have been married since November 25, 1944. The Assistant Commissioner finds that the appellant has not proved by clear and convincing evidence that her membership in the Young Communist League was involuntary and, therefore, notwithstanding the provisions of the act of March 28, 1951 (Public Law 14, supra), she is inadmissible to the United States under the act of October 16, 1918, as amended by the Internal Security Act of 1950. This appeal follows.
Counsel in support of the points referred to above inter alia cites recent opinions both by this Board and the Federal courts. We have carefully reviewed the authorities relied upon by counsel. We find the Reimer case ( supra), not applicable because it was decided prior to the amendment of the 1918 act by the act of June 28, 1940 ( 54 Stat. 673), and the Internal Security Act of 1950. Further, the action arose in a deportation proceeding and the burden was upon the Government to prove affiliation. Here the appellant seeks to enter the United States. The burden is upon her to prove admissibility.
Matter of N----, A-1406381 (B.I.A. April 13, 1951) (4, I. N. Dec. 341); Kettunen v. Reimer, 79 F. (2d) 315, (C.C.A. 2, August 5, 1935); Garner v. Board of Public Works, City of Los Angeles, 95 L. Ed. 854, 841 U.S. 716 (June 4, 1951).
The Supreme Court, in the Garner case ( supra), reviewed a judgment by the District Court of Appeals for California affirming an order of the Superior Court of Los Angeles County which denied relief to municipal employees discharged from service for failure to take a loyalty oath and/or execute a loyalty affidavit. Constitutional objections were raised by the discharged plaintiffs. The Supreme Court in a 5 to 2 opinion by Justice Clark held that neither the affidavit nor the loyalty oath requirements violated the provisions of article I, section 10 of the Federal Constitution against bill of attainders and ex post facto laws. A due process objection derived from the fact that the oath was not limited to affiliations known to the employee to be in the prescribed class was rejected. None of the issues there presented is involved in the proceeding before us.
We agree with counsel that the N---- case ( supra), is factually similar in some respects to the case now before us. However, that case also arose in deportation proceedings and the burden was upon the Government to prove voluntary membership or affiliation. We are of the opinion, nevertheless, that certain factors prevalent in the N---- case readily distinguish it from the case before us regardless of the fact that the burden of proof lay with the Government. These distinguishing factors will be considered hereinafter.
The appellant herein has the burden of proving that she is admissible to the United States. She admits that she was refused a visa for permanent residence in the United States by the consul at Montreal on or about November 1, 1944, for the reason that she had been a member of a proscribed organization. Exhibit 1 is an affidavit executed under oath by the appellant at Montreal, Canada, on December 12, 1944. That portion of the affidavit pertinent to the issue here involved reads as follows:
(7) That it is true that about 5 years ago, when I was about 20 years of age, I was introduced into a society in Montreal called the Young Communist League.
(8) That I was a member of this league for less than a year, having been introduced into it by a young man I was keeping company with at the time.
(9) That I was first taken by this young man to the socials given by this group, and at the time did not even know what its objects were.
(10) That my entry into this group was of so little importance to me that when I was examined by the American immigration authorities I declared what I believed to be true, to wit: That I was never consciously a member of any group that had for its object the overthrow of the government by force.
(11) That I have never believed in such theory, nor do I now.
* * * * * * *
The gist of appellant's recent testimony before a board of special inquiry is that she never applied for membership; never received a membership card; was never "consciously" a member of the Young Communist League; and that she thought the organization was purely social. We find it difficult to reconcile appellant's recent testimony with that given before a board of special inquiry on March 23, 1945, when she was an applicant on a prior occasion. For example, she testified that she attended meetings of the group for "about 7 months or so"; that the meetings were held in secret; that when she went to the meetings "I must have paid dues if they asked me to," that at their meetings they did preach that the Government of Canada was not the proper government and that they should form a new government; and that the reason why she stopped attending the meetings was "I could not see eye to eye to some of their ideas, they were against the war and I being a Canadian felt I should support the war."
Here we are asked to believe that a young woman 20 years of age was not consciously a member of a proscribed organization; yet we have before us an affidavit in which she admits she was a member of the Young Communist League though "never consciously a member of any group that had for its object the overthrow of the government by force." On the other hand, within 4 months of executing the affidavit she testified that she attended secret meetings of the Young Communist League for 7 months; that she must have paid dues; and that she withdrew when it became apparent to her that she was not in accord with the ideology expressed at the meetings. She testified on November 7, 1949, that in all she attended "about 5 or 6" gatherings or meetings.
The N---- case ( supra), contains a stipulation between that respondent, his counsel, and the examining officer. It reads in part as follows:
(9) That the respondent joined an organization known as the Workers Party on or about March 1933 and was a member thereof for approximately 7 weeks until about May 1933.
(10) That at the time of the joining of the said Workers Party the respondent had no knowledge that said organization was communistic or was affiliated with or identified with the Communist Party.
(11) That upon discovery of such facts as led respondent to believe that said organization was affiliated with the Communist Party, respondent immediately ceased his relationship with said Workers Party.
(12) That respondent never attended any meeting of the organization known as the Workers Party nor ever took part in any of its activities.
(13) That the Workers Party herein referred to as having been joined by the respondent is admitted to have been the Communist Party.
Supporting the stipulation referred to above, N---- and a witness, N---- B----, testified that they entered the said Workers Party during a strike, thinking that it was a labor union, that there were three meetings during the strike; that they were meetings which were attempts to organize a union; and that an independent union did come out of the strike and is still in existence in the plant in question. N---- further testified that he never received any membership card, dues book, or Communist literature. We found that the facts in the case supported N----'s stipulation. It is apparent that the facts in the case before us do not support the appellant's affidavit executed on December 12, 1944. Following the hearings before the Board of Special Inquiry on January 10, 1951, the Congress amended the Internal Security Act of 1950 by the act of March 28, 1951 (Public Law 14). Section 1 of the act of March 28, 1951, provides "that the Attorney General is hereby authorized and directed to provide by regulations that the terms `members of' and `affiliated with' where used in the amended act of October 16, 1918, shall include only membership or affiliation which is or was voluntary."
Instructions governing the application of the amended act were prepared jointly by the Immigration and Naturalization Service, the Department of State and the Displaced Persons Commission. These instructions were issued on March 28, 1951. In part they provide as follows:
The term "voluntary" when used in relation to membership in, or affiliation with, a proscribed party or organization, shall be construed to mean membership or affiliation which is or was knowingly created by the alien's act of joining or affiliating, upon his own volition, with such proscribed party or organization.
In order for membership in any organization to be considered voluntary, it is essential that the member be cognizant of the kind of organization he has joined. The appellant's testimony on March 23, 1945, in our opinion, does not support that portion of her affidavit in which she attests that she was "never consciously a member of any group that had for its object the overthrow of the government by force." We find that her membership or affiliation, which she admits, was knowingly created by her act of joining or affiliating upon her own volition and that she was necessarily aware of the objective of the Young Communist League during her 7 months' membership. The appeal will be dismissed.
Order: It is ordered that the appeal be and the same is hereby dismissed.