Interim Decision #1877 

MATTER OF GALTIERI 

In Deportation Proceedings 

A-12281135 

Decided by Board itune RS, .1968 

Notwithstanding a complete lack of books written or public speeches made 

against communism by respondent who in 1953 ceased to be a member of the 

Italian Communist Youth Federation which he voluntarily joined in 1951 at 

age 18, respondent's full disclosure to the American consul of his former 

membership in that organization, his offer of his services to the U.S. Government to combat communism, and his frequent expressions of anti-communist 

sentiments to his Mends constitutes being "actively opposed" to communism 

for the purpose of defector classification under section 212(a) (28) (I) (II) 

of the Immigration and Nationality Act, as amended, and, being otherwise 

eligible, respondent Is properly accorded adjustment of status under section 

245 of the Act (Matter of B—, 6 I. & N. Dec. 713, distinguished). 

CiTeam: 

Order: Act of 1952—Section 241(a) (2) (8 U.S.C. 1251(a) (2) )—Nonimmigrant—student—remained longer. 

ON BANAL? OY Ibeasownetnr 

Joseph S. Hertogs, Esquire 

580 Washington Street 

San Francisco, California 94111 

Off Bicamar or Bravics : 

Irving A. Appleman 

Appellate Trial Attorney 

Stephen M. Stalin 

Trial Attorney 

(Brief filed) 

The proceedings have been certified to us by the special inquiry 

officer for review and final decision. On April 2, 1968 the special inquiry officer ordered that the proceedings be terminated, that respondent be granted defector status under section 212(a) (28) (I) (ii) 

of the Immigration and Nationality Act and that respondent be accorded permanent residence under section 245, Immigration and Nationality Act. 

Two questions are presented for our consideration. The first is 

whether the record justified granting respondent defector status under 

section 212(a) (28) (I) (ii) of the Act, and the second is whether 

suspension of deportation under section 244(a) (1) of the Act should 

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Interim IfeCIS10D. *Flo l I 

have been considered rather than granting respondent permanent 

residence under section 245 of the Act. 

The respondent is a 35-year-old married male alien, a native and 

citizen of Italy who was admitted into the United States as a student 

on September 27, 1960 and who was authorized to remain until February 18, 1967. He remained beyond that date and thus became deportable as charged, a fact which respondent concedes and which 

is amply sustained by the record. 

The respondent is married to a lawful permanent resident of the 

United States, and they have one child who is a citizen of the United 

States by reason of birth in the United States. The record shows quite 

clearly that respondent is a highly educated man, having a doctorate 

degree in engineering science and who is doing advanced computer 

programming for the International Business Machine Company in 

California. Respondent is well thought of in the community and an 

independent investigation indicates that he is a person of good. moral 

character and is not now a member of any subversive organizations. 

The fact is also not in dispute that from October 1951 to the spring 

of 1953 respondent, in Italy, was a voluntary member of the Italian 

Communist Youth Federation (F.G.C.I.), an affiliate of the Communist Party of Italy. When respondent joined he was 18 years old, 

and in the spring of 1953, becoming disillusioned with this group he 

handed in his resignation. The resignation was refused and instead he 

was expelled from this Youth Federation, which appears to be the 

usual procedure when a person attempts to resign from such an organization. He testified that he never did believe in the communist teachings but that he was very young at the time he joined the organization 

and did not know what he was getting into, but that he got out when 

he fully understood the aims and methods of the group. He testified 

that since that time in 1953 he has been very much opposed to anything 

communistic and on many occasions he has spoken out to his friends 

and acquaintances concerning his anticommunist feelings and beliefs. 

This latter fact was corroborated by two witnesses who testified at the 

hearing on respondent's behalf. 

We think that the special inquiry officer was correct in holding that 

respondent was entitled to the status of a defector under section 212 

(a) (28) (I) (ii) of the Immigration and Nationality Act. Such section 

provides as follows: 

Any alien who is within any of the classes described in subparagraphs (B), 

(C), (T)), (E), (p). (G), and (H) of this paragraph because of membership 

in or affiliation with a party or organization or a section, subsidiary, branch, 

affiliate, or subdivision thereof, may, if not otherwise ineligible be issued a visa 

if such alien establishes that . . . (11) (a) since the termination of such member321-654-69-51 779 
Interim Decision #1877 

ship or affiliation, such alien is and has been, for at least five years prior to the 

date of the application for a visa, actively opposed to the doctrine. program. principles, and ideology of such party or organization ... and (b) the admission of 

such alien into the United States would be in the public interest. 

To begin with, when respondent applied for his visa at the American 

Consulate in Italy in 1960 he told the truth about his prior party 

affiliation and he made a detailed statement concerning this entire 

matter (Ex. 6). Also he testified that he offered his services to an 

agency of the United States Federal Government to engage in any 

overt or covert activities against communism, but his services were 

not utilized. It is true that respondent during the five years prior to 

the time he applied for defector status (November 24, 1966), did not 

write any books or make public speeches against communism, which 

is the usual thing done by prominent political figures who defect. 

But respondent was never engaged in politics and was not prominent. 

However, we hold that his making a full disclosure to the American 

Consul concerning his former membership in the youth group, his 

offering his services to the United States Government to combat communism, his frequent statements to his circle of friends as to his 

anti-communist sentiments, and finally his lengthy testimony at the 

hearing, amounts, under the circumstances to being "actively opposed" 

to communism as required by the statute. We hold that he is entitled 

to be classified as a defector under section 212(a) (28) (I) (ii) of the 

Act and therefore may be issued a visa. His admission to the United 

States is clearly in the public interest. 

The second question for determination concerns the decision of the 

special inquiry officer to grant permanent resident status under section 245 rather than considering the granting of suspension of deportation under section 244(a) .(1) of the Act. The Service cites Matter of 

B—, 6 L & N. Dec. 713, in support of the contention that suspension 

of deportation -would have been the proper remedy. In Matter of B—

respondent was deportable by reason of voluntary membership in the 

Communist Party of the United States after entry. The choice was 

between granting him suspension of deportation or terminating the 

proceedings to enable him to file a petition for naturalization. The 

Attorney General stated: "After carefully considering the matter, I 

have concluded that it would be more appropriate in this ease (emphasis added) to grant the alien's application for suspension of deportation pursuant to the provisions of section 244(a) (5) of the Act in 

order that the Congress will have an opportunity to review my action 

as contemplated by that section." This was ordered in lieu of terminating the proceedings for the limited and sole purpose of permitting 

respondent to file a petition for naturalization. 

780 
111w1 111a J./W101UL. Av I I 

We do not believe that Matter of B— constrains us to hold in the 

case before us that suspension of deportation would be the proper 

discretionary remedy rather than adjustment of status under section 

245 of the Act. The facts of the two cases are different, the alternative 

remedy sought is different, and it appears quite clear from a careful 

reading of Matter of B— that the holding in that case was meant to 

apply to that particular case rather than laying down a broad principle of law to be followed in all similar cases. In the instant case 

respondent is entitled to have his status adjusted to that of a permanent resident under section 245 of the Act and we do not see any error 

in his being granted such relief by the special inquiry officer. 

For these reasons we will affirm the order of the special inquiry 

officer terminating the proceedings and granting respondent's application for adjustment of status wider section 245, Immigration and 

Nationality Act. 

ORDER: It is directed that the order of the special inquiry officer 

of April 2, 1968 terminating the proceedings and granting respondent 

permanent residence under section 245, Immigration and Nationality 

Act, be approved. 

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