A-4512777
Decided by Board October 29, 1952
Subversive organization: Communist Party U.S.A.: Membership after entry in ignorance of nature of the party — Voluntary membership.
(1) An alien who, after entry, freely and intentionally joins the Communist Party is deportable under the act of October 16, 1918, as amended, notwithstanding the limited duration of his membership for a period of 2 or 3 months and notwithstanding his claim that he was ignorant of the principles of the organization at the time of joining, and that he terminated his membership as soon as he became aware of the nature of the Communist Party.
(2) This situation, however, is to be distinguished from that of an alien who joined an organization which existed under another name without knowing that such an organization was the Communist Party. Cf. Matter of N----, 4 IN Dec. 341. The crucial test is whether the alien knew that the organization he was joining was the Communist Party.
(3) Membership in the Communist Party can be characterized as voluntary, although the individual may neither know nor advocate the principles of the organization.
CHARGE:
Warrant: Act of 1918 — Member of Communist Party after entry.
BEFORE THE BOARD
Discussion: The case comes forward upon certification pursuant to 8 C.F.R. 90.3 (b).
The record relates to a native and citizen of Canada, 50 years old, male, who last entered the United States at the port of Portal, N. Dak., on October 14, 1928, and was admitted for permanent residence.
The ground of deportability is predicated upon the respondent's testimony to the effect that in 1937, while employed by the WPA (Works Progress Administration) in San Francisco, he was solicited for membership in the Communist Party, signed an application, became a member of the Fillmore District branch of the party in that city and was issued a membership book. He paid dues twice amounting to approximately $1 a month and was a member of the organization for a period of about 2 or 3 months. He alleges that after attending several meetings and after reading their literature he became aware of the nature of the Communist Party and discontinued payment of dues and ceased attending further meetings, thereby dropping from the party. It is asserted by the respondent that he was not aware of the nature of the Communist Party at the time he joined but that as soon as he discovered the true nature of the party he terminated his membership. He stated that he was solicited for membership by a fellow employee in the WPA who also was a fellow member in the Worker's Alliance which was the recognized bargaining agency for WPA employees. The respondent first disclosed his membership in the Communist Party voluntarily when he filed a petition for naturalization in the United States District Court in San Francisco on May 14, 1940, and admitted his Communist Party membership in connection with an examination as to his eligibility for naturalization.
The respondent's testimony makes it clear that he was in point of fact an actual member of the Communist Party in 1937. The question presented, however, is whether his membership may be regarded as voluntary membership in view of the provisions of section 1 of the act of March 28, 1951 (Public Law 14, 82d Cong.), which specified:
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 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 purpose of obtaining employment, food rations, or other essentials of living, and where necessary for such purposes.
An examination of the legislative history of the amendment corroborates the conclusion that the legislation was intended to reaffirm and ratify principles of voluntary conduct which were alleged to have been previously followed by the courts. Thus, in explaining his proposed amendment, Senator Ferguson stated (1907 Cong. Rec., vol. 97, No. 46, p. 2441, 82d Cong., 1st sess.):
The amendment would exclude all those who were Communist by conviction, what we might call mentally Communist. But it would not exclude those who really in effect, never have been what I call mentally Communist — those whose Communist affiliation was nominal or involuntary.
The amendment offered by Senator Ferguson insofar as it dealt with involuntary membership or affiliation was accepted by Senator McCarran, the sponsor of the bill, who declared (1907 Cong. Rec., vol. 97, No. 46, p. 2444, 82d Cong., 1st sess.):
I am including groups which may have been affiliates of communism or may have been pressed into organizations under Communist domination, but which did not willingly, willfully, and intentionally become members of the Communist Party. * * * If he willingly and intentionally became a Communist he would be excluded. [Italics supplied.]
Also illuminating is Senator Nixon's comment (1907 Cong. Rec., vol. 97, No. 46, p. 2441, 82d Cong., 1st sess.):
Certainly in those instances there are cases of individuals who, for the purpose of obtaining food rations, or by reason of youth or immaturity, or for other reasons involuntarily or unknowingly became members without recognizing the fact of Communist control and the character of the organization.
In a case in which the alien joined the Workers Party without any knowledge that this party was communistic or was affiliated with the Communist Party, and who, as soon as he discovered that it was such an organization terminated his relationship with the Workers Party, we held that 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, ( Matter of N---- (B.I.A., 1951) 4 IN Dec. 341). In this case, however, the facts are different because here the respondent admittedly knew that the organization he was joining was the Communist Party and that it was not a different organization which he subsequently discovered was in fact the Communist Party.
The aim of the Internal Security Act of 1950, amending the act of October 16, 1918, as amended was to avoid "the difficult and uncertain task of distinguishing between those members of a subversive group who individually advocate the forbidden course and those who do not." It seeks to express "the public interest in a workable rule which has voiced the administrative difficulties of making a separation between those who do and those who do not favor the illegal objectives of the group," ( Harisiades v. Shaughnessy, 187 F.(2d) 137 (C.A. 2, 1951), aff'd. 342 U.S. 580.) Membership in the Communist Party, present or past, is a matter of law ground for deportation, ( Martinez v. Neelly, 197 F. (2d) 462 (C.A. 7, May 21, 1952)).
The facts in the case of Latva v. Nicolls, 106 F. Supp. 658 (D. Mass., August 6, 1952), are analogous to those of the instant case. There the alien voluntarily stated that he joined the Communist Party about 1934 or 1935, received a membership card, paid an original fee of about 50 cents and 10 cents a month for about 4 months. He never took any interest in the activity or organization of the Communist Party and understood the aims and purposes of the Communist Party were organizing unions, helping raise funds to assist strikers, and also believed the Communist Party was a political party but never took part in politics. To his knowledge the Communist Party did not advocate the violent overthrow of organized government. Judge Wyzanski discharged the application for a writ of habeas corpus, and with reference to the provision as to voluntary membership in the act of March 28, 1951, stated that "when Congress exempted from deportation the alien who joined the Communist Party under 16, by operation of law, or for purposes of obtaining employment, food rations, or other essentials of living, the legislature plainly marked the limits of its grace." With reference to the plea on behalf of the alien of the excuse of justifiable ignorance and moral innocence, the court noted that in such catch-all legislation as the McCarran Act, there was no factual warrant for assuming there was congressional attention to Latva's class at any stage of the hearing, committee deliberations, or legislative voting.
It accordingly appears that the proscription of the act of October 16, 1918, as amended by the Internal Security Act of 1950 includes all those persons whose membership or affiliation is or was voluntary, not including membership or affiliation which is or was when under 16 years of age, by operation of law, or for purposes of obtaining employment, food rations, or other essentials of living and where necessary for such purpose as provided by the act of March 28, 1951. We have also excluded from the proscription of the Anarchist Act, as amended, the case of a person who joins an organization which exists under another name not knowing it to be in fact the Communist Party, the reason being that such membership or affiliation was based upon fraud or mistake as to the organization itself. Conceivably there may be other cases falling without the proscription of the act. However, we do not include in this latter category the cases of persons who voluntarily and intentionally join the Communist Party and then raise an alleged defense of ignorance of the principles of that organization, ( Matter of S----, (B.I.A., 1951) 4 IN Dec. 504); Matter of S----, (B.I.A., 1951) 4 IN Dec. 314)). It is, therefore, found that this respondent who admittedly joined the Communist Party voluntarily is subject to deportation upon the charge stated in the warrant of arrest.
Order: It is ordered that the decision of the hearing officer be reversed and that the alien be deported pursuant to law on the charge stated in the warrant or arrest.