Interim Decision #3123 

MATTER OF RUSIN 

In Deportation Proceedings 

A-21530204 

Decided by Board October 31, 1989 

A respondent in deportation proceedings who seeks to adjust her status to that of a 

lawful permanent resident is not statutorily precluded from doing so by virtue of her 

former membership in a Communist organization where she can establish that her 

association in that organization was not meaningful or that her membership was 

involuntary or that she otherwise comes within one of the specified exceptions set forth 

in section 212(a)(28)(1)(i) of the Immigration and Nationality Act, 8 U.S.C. 

§ 1182(a)(28)(I)(i) (1982). 

CHARGE: 

Order: Act of 1952—Sec. 241(a)(2) [8 U.S.0 § 1251(a)(2)]—Nonimmigrant—remained 

longer than permitted 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

William E. Lasko, Esquire James M. Kuhn 

79 West Monroe, Suite 1312 General Attorney 

Chicago, Illinois 60602 

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members 

In a decision dated February 13, 1984, an immigration judge found 

the respondent deportable based on her own admissions and granted 

her application for adjustment of status. The Immigration and 

Naturalization Service appealed.' The appeal will be dismissed. 

The respondent is a 38-year-old native and citizen of Poland. She 

was admitted into the United States on December 1, 1974, as a 

1 We note that on July 6, 1988, the Service filed a motion asking that the appeal be 

held in abeyance as the respondent had applied for legalization under the applicable 

provisions of the Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 

Stat. 3359. The respondent opposed the motion. On July 28, 1988, and again on 

December 29, 1988, the Service filed motions seeking 6 additional months to file its 

brief, because the record of proceedings was at that time at a legalization Regional 

Processing Center, and the =Lord was needed to prepare the appeal. The respondent 

also opposed this motion. This request was denied by correspondence dated January 19, 

1989. No brief on the merits of this case has ever been filed by the Service. 

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Interim Decision #3123 

nonimmigrant visitor for pleasure authorized to rernair in the United 

States until July 1, 1975. She remained beyond that tin e and on June 

23, 1981, an Order to Show Cause and Notice of Hearin.; (Form 1-221) 

was issued against her, charging her with deportability as an overstay 

under section 241(a)(2) of the Immigration and Nat: onality Act, 8 

U.S.C. § 1251(a)(2) (1982). At deportation hearings h Id on January 

24, 1984, and February 13, 1984, the respondent conce ,ed deportability. She applied for adjustment of status based on a vis petition filed 

on her behalf by her United States citizen father, which was approved 

on April 23, 1976. 

A question arose at the hearing whether the respor dent might be 

ineligible for adjustment of status due to possible nadmissibility 

under section 212(a)(28)(C) of the Act, 8 U.S.C. § 1182(a)(28)(C) 

(1982).2Section 212(a)(28)(C) makes excludable frc -n the United 

States 

[aliens who are members of or affiliated with (i) the Comm artist Party of the 

United States, (ii) any other totalitarian party of the Unite I States, (iii) the 

Communist Political Association, (iv) the Communist or any Min totalitarian party 

of any State of the United States, of any foreign state or c - any political or 

geographical subdivision of any foreign state, (v) any section, z absidiary, branch, 

affiliate, or subdivision of any such association or party, r (vi) the direct 

predecessors or successors of any such association or party, regar less of what name 

such group or organization may have used, may now bear, or mr , hereafter adopt. 3 

Admitted into evidence to establish the respondent's inadmissibility 

on this ground was an uncertified copy of a Septe 'nber 6, 1974, 

statement apparently prepared by the American consu ate in Poznan, 

Poland. This document recommended that the respondent be granted 

a section 2 I2(d)(3)(A) nonimmigrant waiver to visit th United States 

and indicated that she was inadmissible as a volunt ry member of 

"ZSL-United Peasants' Party (Communist)." Also dmitted as an 

exhibit was the district director's April 2, 1980, denial of an 

adjustment application filed by the respondent prior to the issuance of 

2Under section 245 of the Act, 8 U.S.C. § 1255 (1982), an applicar t for adjustment of 

status must he admissible to the United States. 

3The respondent has argued that membership in the Communist arty is no longer a 

ground of exclusion, and the appeal is therefore moot, citing section 901 of the Foreign 

Relations Authorization Act, Fiscal Years 1988 and 1989, Pub. L No. 100-204, 101 

Stat. 1331, 1399-1400 (1987). Section 901 prohibited the Govermr ..,nt from excluding 

or deporting aliens based on their political beliefs. However, this prc -fibition was only a 

temporary, not a permanent, bar to such exclusions and deportati ns. On October 1, 

1988, this provision was extended for 2 years, but, critically for tl a present case, the 

provision now only extends to nonimmigrant% Thus, aliens seeking immigrant visas or 

adjustment of status to that of permanent resident are no longer r -otected by section 

901. See Foreign Operations, Export Financing, and Related Progrz ms Appropriations 

Act, 1989, Pub. L. No. 100-461, § 555, 102 Stat. 2268, 2268-36 -37 (1988). 

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Interim Decision #3123 

the Order to Show Cause. This application was denied by the district 

director based on inadmissibility under section 212(a)(28)(C) of the 

Act. 

At her deportation hearing, the respondent denied being a member 

of the Communist Party or any Communist organization. She referred 

to the ZSL as a "union" and testified that she was required to> join this 

organization in order to gain and keep employment in her field. She 

stated that she "would be fired" if she did not join. The respondent 

further stated that her wages were necessary to help support her family. 

She claimed that she did not know the ZSL was a Communist 

organization, that she always knew it to be a union and not a political 

party. She testified that she never attended meetings of the ZSL and 

that her only involvement was joining in order to keep her employment. 

Following the respondent's testimony, the immigration judge issued 

his oral decision granting the respondent's application for adjustment 

of status. He concluded that the respondent's membership in the ZSL 

was involuntary in that it was required for her employment, and that 

she joined only for that reason. He further found that, even if her 

membership were to be considered voluntary, she had no "meaningful 

association" with the Communist Party, citing for this holding the 

Supreme Court's decision in Rowo/dt v. Perfetto, 355 U.S. 115 (1957). 

In its Notice of Appeal, the Service argues that the immigration 

judge's decision was arbitrary, capricious, an abuse of discretion, and 

"against the manifest weight of the evidence." More specifically, the 

Service contended that the immigration judge failed to give adequate 

weight to the September 6, 1974, decision of the American consulate. 

Under section 212(a)(28)(I)(i) of the Act, an alien who is excludable 

under section 212(a)(28)(C) of the Act may nevertheless be issued a 

visa if she can establish that her membership or affiliation with a 

proscribed organization was "involuntary, or is or was solely when 

under sixteen 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 purposes." In Matter of Hajdu, 16 I&N Dec. 

497 (BIA 1978), we applied this section to a case involving adjustment 

of status. Thus, an applicant for adjustment is not barred from that 

relief by virtue of membership in a proscribed organization if the 

membership was involuntary or otherwise comes within the exceptions 

set forth in section 212(a)(28)(I)(i) of the Act. 

In Rowoldt v. Perfetto, supra, the Supreme Court, in a deportation 

case not involving adjustment of status, held that an alien could not be 

deported under section 22 of the Intetual Security Act of 1950, 64 Stet. 

987, 1006, for past voluntary membership in the Communist Party 

unless the alien had a "meaningful association" with the party. In 

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Rowoldt, the alien joined the Communist Party while living in the 

United States, paid dues, and attended meetings. His membership 

continued for approximately a year, until he was arrested and placed 

in deportation proceedings. The Court reversed the finding of 

deportability, concluding that the record did not support a finding of a 

meaningful association with the Party. Quoting from Galvan v. Press, 

347 U.S. 522, 528 (1954), the Court held, "There must be a substantial 

basis for finding that an alien committed himself to the Communist 

Party in consciousness that he was 'joining an organization known as 

the Communist Party which operates as a distinct and active political 

organization?" Rowoldt v. Perfetto, supra, at 120. 

The "meaningful association" requirement was reaffirmed in 

Gastelum-Quinones v. Kennedy, 374 U.S. 469 (1963). There it was held 

that an alien could not be deported for membership in the Communist 

Party where he had merely been listed on the party rolls and the 

membership had been "devoid of any 'political' implications." See 

also Galvan v. Press, supra; Matter of Paul, 10 I&N Dec. 431 (BIA 

1963). 

Subsequently, in Berdo v. INS, 432 F.2d 824 (6th Cir. 1970), the 

Rowoldt "meaningful association" test was applied to a case involving 

an application for adjustment of status. In Matter of Hajdu, supra, 

however, we rejected the notion that Rowoldt should he applied to an 

adjustment of status case_ We noted that with an adjustment application, the burden is on the applicant for relief to establish that he is not 

inadmissible under section 212(a)(28) of the Act. In a footnote, we 

specifically, declined to follow the holding in Berdo v. INS, stating that 

no other court had followed the reasoning of that decision. 

Since our decision in Matter of Hajdu, supra, another court has 

considered whether the "meaningful association" test should apply in 

determining an alien's admissibility for adjustment purposes and has 

concluded that it should. In Firestone v. Howerton, 671 F.2d 317 (9th 

Cir. 1982), the court concluded that Congress, in enacting the 

ameliorative provisions of section 212(a)(28)(I) of the Act, intended 

that only persons whose association with the Communist Party was 

meaningful were to be excluded under section 212(a)(28) of the Act. 

The court noted that the Supreme Court in Galvan v. Press, supra, and 

Rowoldt v. Perfetto, supra, had considered the exemption categories, in 

the deportation context, not as narrow exceptions but rather as 

indicative of the generous spirit in which the exemptions were to be 

applied. The court of appeals emphasized that the section 212(a)(28)(I) 

exemptions, which before 1952 had a counterpart in the deportation 

provisions, apply now only to exclusion and held that they should be 

applied, in assessing admissibility, in the benign manner suggested by 

the Supreme Court in Rowoldt v. Perfetto, supra. 

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We have now concluded that the "meaningful association" test set 

forth by the Supreme Court in its cases should be applied in 

adjustment of status proceedings. Our decision in Matter of Hajdu, 

supra, is accordingly reversed insofar as it holds the opposite.' The 

only two courts of appeals which have addressed this issue have 

disagreed with our holding in Matter of Hajdu, and we are now 

persuaded that those decisions are reasonable, are consistent with 

legislative intent and Supreme Court precedent, and should be 

followed. 

In the present case, the respondent has testified that she joined the 

ZSL because it was necessary for her continued employment, and that 

she believed it to be a union and did not know it to be a Communist 

political organization. She was not active in any of the organization's 

activities. It cannot be said that she in any way consciously committed 

herself to a Communist organization. It is clear to us that the 

respondent did not have a meaningful association with the Communist 

Party or one of its affiliates while she was living in Poland.' 

We also find that the respondent's membership in the ZSL was not 

voluntary in any event. The respondent testified that she was required 

to join that organization in order to keep her employment. She further 

testified that her wages were necessary in order for her family to meet 

its basic living expenses. Under these circumstances, we agree with the 

immigration judge that the respondent's membership in the ZSL was 

involuntary within the meaning of section 212(a)(28)(I) of the Act, and 

that she therefore is not ineligible for adjustment of status. 

Inasmuch as we find the immigration judge's decision in this case to 

have been correct, the Service's appeal from that decision will be 

dismissed. 

ORDER: The appeal is dismissed. 

'aiter of Hajdu remains good law insofar as it holds that the actual exemptions set 

forth in section 212(a)(28)(I) apply to cases involving adjustment of status. 

5We note that the record before us does not in fact clearly establish that the ZSL is a 

Communist organization or affiliate. However, on appeal the respondent does not 

contest the Government's characterization in this regard. 

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