Interim Decision #1246 

MATTER OF MAZAR 

In DEPORTATION Proceedings 

A-10425815 

Decided by Board August 17,190 

Respondent, a native and citizen of Yugoslavia, who obtained her visa by fraud 

and misrepresentation in willfully concealing her membership in the Communist 

Party of Yugoslavia from 1944 to 1954, is not deportable under section 241(f) 

of the Immigration and Nationality Act, as amended, since, apart from her 

misrepresentation, she was otherwise admissible at the time of entry, her 

Communist Party membership having been involuntary within the meaning 

of section 212(a) (28) (I) (I) of that Act because in order to safeguard her 

life she joined the Communist Party in response to demands made on her to 

join in view of her officer rank in the Yugoslav military forces and her continued service in the Yugoslav army after her marriage and the birth of her 

children was because of financial needs; there is an absence of any expression 

on her:part of ideological sympathy with the Communist Party, and there is a 

lack of any indication that she ever occupied a position of political responsibility in the Communist Party itself. 

CHARGES - 

Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)1—Excludable 

at time of entry under section 212(a) (19)—Visa obtained by fraud 

or by willfully misrepresenting a material fact. 

Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)1—Excludable 

at time of entry under section 212(a) (28)—Member or affiliated 

with the Communist Party of a foreign state, to wit, the Communist 

Party of Yugoslavia. 

The case comes forward upon certification by the special inquiry 

officer of his order dated May 31, 1962, terminating the proceedings. 

The record relates to a native and citizen of Yugoslavia, 39 years 

old, female, married, who was admitted to the United States for permanent residence on August 9, 1955, upon surrender of a nonquota 

immigrant visa issued to her on June 29, 1955. Deportation proceedings were thereafter instituted charging that she was deportable because excludable at time of her entry in that her visa was obtained 

by fraud and or misrepresentation in concealing that she had been a 

member of the Communist Party of Yugoslavia from January 1944 to 

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Interim Decision #1246 

about September 1, 1954, and also on the ground that she was excludable by reason of prior membership in the Communist Party of Yugoslavia. After hearing, the special inquiry officer on April 6, 1961, 

terminated the deportation proceedings upon a finding that the respondent's membership in the Communist Party of Yugoslavia was 

involuntary and, since she was otherwise admissible at the time of 

her entry, she was not subject to deportation on the visa fraud charge 

because of the provisions of the first portion of section 7 of the Act 

of September 11, 1957. Upon appeal by the examining officer the 

Board of Immigration Appeals by order dated October 19, 1961, reopened the proceedings for consideration of the case in the light of 

the new standard concerning misrepresentation laid down 'by the Attorney -General in Matter of 8— am; B—(7—, Int. Dee. No. 1168 

(October 2, 1961). It was further directed that the decision of the 

special inquiry officer be certified to the Board. 

The respondent has admitted that she was a member of the Communist Party of Yugoslavia from January 1944 to about September 1, 

1954, and that in applying for her immigrant visa she knowingly 

and wilfully concealed her previous membership in the Communist 

Party of Yugoslavia because she believed the disclosure of that fact 

would result in the refusal of an immigrant visa by the American 

Consul. She also testified that she concealed such membership in her 

application for naturalization because she was afraid of being 

deported. 

The situation herein is similar to that of the alien S— in Matter 

of R— and B—C—, Int. Dec. No. 1168, who likewise concealed Communist Party membership, albeit in Hungary, and who likewise defended such membership on the ground that it was involuntary within 

the meaning of section 212(a).(28).(I) (i) of the Immigration and 

Nationality Act. The Attorney General held that it was obvious that 

disclosure of the alien's Communist Party membership in connection 

with his visa application would have raised a serious question as to 

the alien's admissibility and would have been likely to lead to further 

investigation of the questionof whether his membership was voluntary 

or involuntary. The Attorney General stated that he was not required 

to decide the question of whether the alien's Communist Party membership was necessary to enable him to obtain employment, food 

rations or other essentials of living, or merely convenient in the 

sense that it facilitated his obtaining education and bettering his 

status in life, since it was obvious that had the alien stated the true 

facts in the application for his visa, it would inevitably have lead 

to investigation which might have lead to a proper denial of the 

visa. The Attorney General found that the alien's failure to disclose 

his Communist Party membership was a material misrepresentation 

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Interim Decision #1246 

which rendered him excludable under section 212(a) (19). However, the charge under section 212(a) (19) is rendered moot in the 

instant case because the alien herein, as the spouse and parent of a 

United. States citizen husband and minor child, is automatically entitled to the benefits of section 241(f) of the Immigration and Nationality Act, as amended, which provides that the provisions of that 

section relating to the deportation of aliens within the United States 

on the ground they are excludable at the time of entry as aliens who 

sought to procure, or have procured visas or other documentation, or 

entry into the United States by fraud or misrepresentation, shall not 

apply to an otherwise admissible alien with the family ties that the 

respondent possesses. 

It therefore becomes necessary to decide whether the respondent is 

otherwise admissible. Membership in the Communist Party of Yugoslavia has been admitted. The respondent seeks to excuse such membership on the ground it was involuntary within the meaning of section 

212(a) (28), which provides that the alien must establish to the satisfaction of the Attorney General that she falls within this exception 1 

The evidence concerning the respondent's membership in the Communist Party of Yugoslavia is predicated upon her own testimony and 

the testimony of her husband. The special inquiry officer, as the 

trier of the facts, had an opportunity to observe the demeanor of the 

respondent and of her husband and to form a proper belief as to their 

credibility, and the weight to be attached to their testimony. Even 

though the testimony may be said to be in a sense, self-serving, in 

view of the finding of credibility, it cannot be lightly ignored. The 

respondent has explained the circumstances under which she joined 

the Yugoslavian Partisan Army in 1941. At that time, when between 

18 and 19 years old, she set forth to look for her younger brother whom 

she found with an armed group composed of those who were fleeing 

from the UStashi. (Croation Fascists). This was not a regular army 

organization because at this period there was no regular national army 

existing in Yugoslavia. Her brother urged her to remain with him 

and join the group in order to avoid capture by the Ustashi. No political affiliation was necessary in order to become a part of this group. 

She testified that she and her brother were the only Slovenians in the 

organization, the rest of the group being composed of Serbians. 

Thereafter splits developed in the group and she and her brother were 

viewed with suspicion by some of the Chetniks in the group and defended by others. She and her brother joined a, group of Chetniks 

who broke away from the organization and formed a Partisan force 

known as the Crnovrska Ceta. Later larger groups were formed and 

1Natter of V—, 8 I. & N. Dec. 554. 

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Interim Decision #1246 

at the end of 1941 all of the groups were incorporated in the National 

Army of Liberation under the supreme command of Tito. After 

the groups were unified, a chain of command was established and all 

those serving in the National Army of Liberation were subject to 

military discipline. The respondent was originally a nurse in the 

Crnovrska Oda and later became chief of the sanitary or medical unit 

of her battalion but held no grade until the beginning of 1944, when 

she became a 2nd lieutenant. She was not yet a member of the Communist Party of Yugoslavia at that time. 

The respondent testified that while serving in the Partisan forces 

she had raised objections to the Communist ideology during lectures 

given by the commissar and the commander of her company. In 1943 

a critical situation in the Communist Party movement resulted in 

liquidation of those not considered trustworthy. She herself was 

regarded with suspicion because of the criticism she had voiced. She 

had been warned by the youth organization leader to stop'er criticism 

lest she be killed and was advised to join the Communist Party to 

save her life. Early in 1944 her commanding officer told her that her 

position required Communist Party membership. The respondent 

testified that she felt she had no choice other than to join the Communist Party in order to safeguard her life. In view of the evidence that 

others had beep. dealt with harshly, it is not believed that the respondent should have been required to enact the role of a martyr in defying 

those in authority. She has testified that she never embraced Communist ideology, and that her acceptance into the Communist Party . 

VMS without a probationary period because of her service in the Partisans. She was not assigned any special duties on the basis of her 

Communist Party membership nor was she active in the political 

segment of the Communist Party. She was required to read certain 

material. The respondent testified that her continued service in the 

Yugoslavian Army after her marriage and the birth of her children 

was because of financial needs because her husband was still studying 

medicine and they could not live on his salary alone; that because of 

their positions in. the military forces they were able to obtain a little 

more food than civilians and pay less for it. The respondent testified 

that in 1944 she received the Partisan badge of 1941, known as 

"Spomenica," which was awarded to those who took part in the National Liberation Army in 1941 and carried with it certain benefits, 

such as a month's vacation with pay, reduction in train fares, and 

scholarships in schools available for children. She testified that this 

award was not limited to those who were Communists and this statement was confirmed by the government -witness

' 

 Charles Petkovie. 

The respondent testified that she was found to be unsuited for nursing work and in 1947 took a training course in the administrative 

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Interim Decision #1246 

department of a hospital and became personnel officer or counselor and 

was assigned as a personnel counselor in connection with civil division 

of a hospital. Her duties consisted of hiring civilians for various 

minor hospital tasks such as cleaning people, nurses aides, etc. In 1950 

she took a leave of absence for one year because she was suffering from 

tuberculosis and thereafter was transferred to Zagreb where she was 

employed in the cultural division of the army in connection with the 

disbursement of books to the armed forces. During this period she 

obtained the rank of captain. In 1952 she was assigned to a job of 

eliminating books with Russian titles and ideas to avoid the distribution of those books to army personnel and was a member of a commission consisting of, five members. From January 1953 until she left the 

army in 1051 she was head of the clerical department of a. quartermaster distribution center and during this period was promoted to captain, 

first class, an automatic promotion based upon three years of service 

in the lower category. 

The respondent produced evidence that her sons were baptized in 

April 1947 and July of 1957 in Bihac, Yugoslavia, and that she was 

present at their baptism although the Yugoslavian government and 

particularly the Communist Party of Yugoslavia, opposed any religious observance. In addition she attended Catholic church services 

out of uniform because of the opposition of the government to such attendance by army officers. She was able to secure her release from the 

Yugoslav army in 1954 by presenting a medical certificate indicating 

she was not in good health due to a more lenient attitude toward 

women but that she experienced considerable difficulty in obtaining 

a passport for the purpose of leaving Yugoslavia to the extent that she 

was asked to leave one of her children in that country. After considerable delay she was able to secure an exit permit limited to a oneyear period through the help of a friend of her husband who guaranteed she -would return to Yugoslavia. 

The continued membership of the respondent in the Yugoslavian 

army and in the Communist Party of Yugoslavia cannot be assessed 

apart from the role played by her husband. Her husband, although 

born in the United States in 1918, was taken to Yugoslavia in 1932. 

They met in 1942 when he was serving as the head of a medical department of a brigade of Partisan forces. They reported their marriage in 1943 or 1944 to the unit commander and went through a 

marriage ceremony in June 1946. Her husband testified he was asked 

to join the Communist. Party in February 1944 and sines he was aware 

that people holding similar positions to his who had refused to join 

had disappeared, he felt compelled to join the Communist Party. In 

further explanation of his joining the Communist Party, the husband 

testified that the commissar of his army unit told him in December of 

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Interim Decision #1246 

1943 that it was time he became a member of the Communist Party 

and in January or February 1944 was again approached and told 

that the position he was taking over required that he be a, member 

of the Communist Party. Since he knew what would happen if he 

declined he consented. Her husband. testified that both he and the 

respondent discussed the Communist Party in 1945 and expressed concern over the developments in their country and their disagreement 

with the principles of the Communist Party. He applied for discharge hi 1945, 1947, and 1952 but was refused because of the shortage of physicians. He was required to turn in his Communist Party 

membership documents when he claimed foreign citizenship at the 

time of his discharge from the Yugoslav army but was required to 

obtain an exit permit to leave Yugoslavia because he was regaraoli 

by them as a dual national. He was told he would be contacted in 

this country for favors by the Yugoslav government but testified that 

no one has ever contacted him. 

After coming to the United States in 1954 he applied for an extension of his Yugoslav passport for the purpose of aiding his wife 

in leaving that country. Both parties have testified that they unsuccessfully applied for discharges from the Yugoslav army in 1940. 

Although a United States passport was approved for issuance to the 

respondent's husband on April 7, 1947, it was not used by him because 

he could not obtain his release from the Yugoslav army. Before leaving Yugoslavia the husband had been trying to help his wife obtain 

a permit to leave Yugoslavia and had made arrangements with a friend 

of his to intervene in her behalf with the Department of External 

Affairs which controlled the issuance of passports in Yugoslavia. 

Viewed against the background of the husband's attempts since 1945 to 

obtain permission for his wife and family to leave Yugoslavia, and 

ultimately, to loin him in the United States, it is not surprising that 

the respondent took no steps in regard to her Communist Party membership which would jeopardize her chances of leaving Yugoslavia. 

The respondent has presented witnesses who have testified favorably with respect to her conduct in the United States and her opposition to the Communist regime now in control in Yugoslavia. Although 

the respondent has acknowledged that Communist Party membership 

was required of an officer in the Yugoslav army, there is no evidence 

that she ever expressed any ideological sympathy with the principles 

of Communism and the record is devoid of any indication that she 

ever occupied a position of political responsibility in the Communist 

Party itself. 

The government has presented two witnesses in an attempt to rebut 

the testimony of the respondent that her membership in the Communist Party of Yugoslavia was involuntary. The first witness, 

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Interim Decision #1216 

Charles Petkovic, was not a member of the armed forces of Yugoslavia 

during World War II nor a member of the Communist Party of Yugoslavia during that period, and his opinions with respect to the compulsion exercise upon an officer of the army by the Communist Party 

is, as the special inquiry officer observed, of little value. He did 

however corroborate in a good deal of the testimony of the respondent 

and her husband as to the mixed and irregular character of the Yugoslavian army in 1941 or 1942 and admitted that some Partisans were 

not Communists and that the "Spomenica," award was not limited to 

Communists but was given to all those who took part in the Partisan 

movement in 1941. The witness expressed the opinion that a person 

could not occupy a personnel position from 1950 to 1951 if under suspicion by the Communist ' s. However, the respondent's personnel hospital work appeared to involve only civilian help of the lowest types, 

such as cleaning people and nurses aides. While testifying generally 

that persons who joined the Communist Party in Yugoslavia during 

World War II believed in Communism, he acknowledged that within 

military groups the discipline was greater than among the civilian 

population. 

A second government witness, Boris Miletich, who was employed in 

Yugoslavia variously as a legal referee, law counselor, and a county 

judge from 1945 to 1956, stated that he had never been a member of 

the Communist Party and had not served in the Yugoslav army. His 

information therefore regarding the situation in the Yugoslav army 

is admittedly hearsay. While testifying that many persons were discharged from the Yugoslav army after 1946 and that females especially were released, he admitted not knowing whether a female officer 

could have been discharged during that period of time and also conceded that not all persons who fought in the Partisan groups in 1941 

and thereafter were Communist. The respondent's husband has testified that the criterion in obtaining release from military service was 

whether the person's service was essential. 

A witness on behalf of the respondent, Fedor Hegenauer, served 

in the Yugoslavian army in 1945 and again in 1947 but not as an officer. 

When asked to join the Communist Party in 1947 he temporized 

although indicating that he could not have refused. He was of the 

opinion that an officer in the Yugoslavian army would have no choice 

and could not possibly refuse when asked to join the Communist Party 

by his battalion commander in January 1944. 

The service has contended • that the respondent's admission of 

membership in the Communist Party of Yugoslavia should be accepted at full value but that her testimony as to the involuntary nature 

of her membership is to be discounted. Inasmuch as no documentary 

evidence has been submitted, the decision turns largely upon a finding 

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Interim Decision #1246 

of credibility of the witnesses, and the weight to be attached to their 

testimony. Viewing the circumstances surrounding the respondent's 

:joining the Yugoslav military forces, the Partisans, the subsequent 

•demand that she join the Communist Party because of her officer 

:rank, the absence of ideological sympathy with the Communist Party 

and the lack of any political position in the Communist Party, and 

the corroboration by witnesses, we do not believe that her story has 

been materially weakened or overcome by the government witnesses. 

It is concluded that the respondent has established that her membership in the Communist Party, upon the evidence of record, was involuntary within the meaning of section 212(a) (28) (I) (i) of the 

Immigration and Nationality Act. She was therefore not excludable 

at the time of entry because of membership in the Communist Party 

of Yugoslavia and was otherwise admissible. She is therefore automatically the beneficiary of the provisions of section 241(f) of the 

Act in regard to her misrepresentation regarding her Communist 

Party membership. 

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

dated May 31, 1962, terminating the proceedings be and the same is 

'hereby approved. 

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