MATTER OF H 

In DEPORTATION Proceedings 

A-4743741 

Decided by Board August 88, 1958 

floportability—Communist Party membership Meaningful association established where respondent declines to testify—Charge based on membership 

after entry may be predicated upon original admission for permanent residence although membership had terminated prior to last entry as returning 

resident—Suspension of deportation—Physical presence required under section 244(a)(5) most be for continuous ten-year-period preceding application. 

(1) "Meaningful association" test in Romoldr v. Perfetto, 355 U.S. 115, is met 

where record establishes respondent's membership in the Communist Party 

and she declines to testify as to nature of her membership. 

(2) Respondent is deportable on charge of membership "after entry" when 

she was lawfully admitted for permanent residence in 1929, was a member 

of the Communist Party in and rinitari Stator 

1947 with a reentry permit after a six-month-trip abroad. Bouetti v. Rogers, 

356 U.S. 691, distinguished. 

(3) Section 244-(a) (5) application filed In 1956 did not qualify respondent for 

suspension of deportation since her departure from the United States in 

1947 prevented her from completing a period of continuous physical presence in the United States of ten years prior to 1957. (Cf. Metter of 

A-2669541, 5 I. & N. Dec. 261.) 

CHARGES' 

Warrant: Act of 1952—Section 241(a) (1) [3 U.S.C. 1251(a) (1)l—Rxcludable at entry as one who was member of the Communist Party 

of the United States. 

Lodged: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)[—Excludable at entry as. one who prior to entry was a member of the 

Communist Party of the United States. 

Act of 1952—Section 241(a) (6) [S U.S.C. 1251(a) (6)1—Alien 

who was a member of the Communist Party of the United 

States subsequent to entry. 

BEFORE THE BOARD 

Discussion: This respondent, a 54-year-old married female, native and citizen of Great Britain, was admitted to the United States 

for permanent residence in 1929: She last entered in 1947. She 

has been found to have been a voluntary member of the Communist 

Party of the United States during part of 1938 and 1939. 

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By order dated November 9, 1953, the special inquiry officer 

ordered that the respondent be deported on the first lodged charge. 

On June 25, 1954, the respondent's appeal from the order of the 

special inquiry officer was dismissed. On August 27, 1954, we dismissed the motion for reconsideration. On March 10, 1955, the 

Commissioner moved that proceedings be reopened to enable lodging 

of the charge that the respondent had been a member of the Communist Party after her original entry in 1929. On April 20, 1955, 

this motion was granted on the condition that the court considering 

the respondent's request for review of administrative proceedings 

would have no objection to such action. Reopened hearing was held 

and on December 15, 1955, the second lodged charge was placed. 

It states that the respondent is deportable under the Immigration 

and Nationality Act as one who had been a member of the Communist Party of the United States after entry (in 1929). On 

March 30, 1956, the respondent was found deportable on the new 

charge and on August 24, 1956, her appeal to this Board was dismissed. This motion for reconsideration is dated May 22, 1958. 

Oral argument was granted and the respondent was heard on 

June 24, 1258 

Counsel seeks termination of proceedings for three reasons. He 

argues that the record fails to establish that the respondent was a 

member after her last entry in June 1947 and that under the rule in 

Bonetti v. Rogers, 356 U.S. 691, the charge is not sustained. He 

argues that the evidence of record is insufficient to sustain the 

finding of deportability. And, lastly, he urges that if the respondent is found deportable, she should be declared statutorily eligible 

for suspension of deportation. 

We shall first discuss the sufficiency of the evidence. The reapendont refused to testify on the issue of Communist Party membership other than to state she was not a member of the Communist 

Party at the time of the hearing. Membership in the Communist 

Party was established by the testimony of Government witness 

K—, a police officer who in 1928 had infiltrated the ranks of the 

Communist Party to report on their activities for the police. He 

remained a member until the fall of 1939. From 1936 to 1939 he 

was an Assistant County Membership Director of the Communist 

Party with the duty of keeping track of the units to which members belonged; and he assisted in the semi-annual dues check-up 

and annual membership registration. He testified that in 1938 an 

application card in the name of R M H had passed 

through his hands; that it showed the person involved to be a seamstress who was working in Hollywood in a hotel; and that she was 

English-Irish and foreign born. Because the last name on the 

application was similar to that of his superior in the police depart123 
ment the witness made an effort to obtain additional information 

about R II . He stated that about 6 weeks after he had 

seen the card, R M II was pointed out to him at a mass 

meeting of the. Communist Party He identified the respondent as 

the person who had been pointed out as R---II . He also saw 

her at "open" affairs. He stated that he saw her 1939 registration 

and 1938 membership book in connection with the performance of 

his Communist. Party duties. He testified that his Communist 

Party records did not contain information concerning persons other 

than members of the Communist Party. He also testified that it 

was his job to ascertain the number of dues stamps which should 

be purchased by each particular unit; that he accompanied the 

Communist Party official who sold the stamps to the unit clues secretary when the sale of the Stamps was made, and that a sale of 

stamps was made for the respondent. 

K was put through an extensive cross-examination and displayed a good memory. He answered with care and deliberation 

and impressed one as being a responsible, reliable witness. The 

special inquiry officer relied upon his testimony. In view of the 

fact that it was the witness' duty as a Communist Party member 

to take care of Communist Party membership records, and it was 

his duty as a policeman to learn about the members of the Communist Party, we believe that his contradicted testimony must be 

given great weight. 

Counsel believes that even if membership is proven, the record 

fails to establish that it was a meaningful association required by 

Rawoldt v. Perfetto, 355 U.S. 115. The respondent does not allege 

that the membership was not meaningful. She has chosen not to 

testify on the subject of membership in the Communist Party. There 

is no explanation from her as to the nature of her membership. 

Under such circumstances, we believe it proper to conclude that she 

understood that the organization she had joined was the political 

organization known as the Communist Party (Matter of Z----, 

A-4472847, 7 I. & N. Dec. 728). 

We pass on now to the issue raised by counsel concerning the 

fact that the respondent last entered in 1947 and the record does 

not show that she was a member of the Communist Party after 

that entry, yet her deportation has been ordered on the ground 

that she had been a Communist Party member after entry. The 

issue is whether the Service may use the respondent's 1929 miry 

or must use only the 1947 entry. Regarding her entries, the respondent testified she first entered the United States for permanent 

residence in 1929 and that she has resided continuously in the 

United States except for about 6 one-day "temporary trips" to 

Mexico made in 1945 and a trip of about 6 months to Australia in 

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1917. She stated that at the time of leaving the United States, 

whether it was to go across the border to Mexico or to go to 

Australia, it had been her intention to maintain her domicile in the 

United States. 

Bonetti v. Ropers, 356 U.S. 691, cited by counsel, involved an 

alien who was admitted to the United States for permanent residence in 1923. He had been a member of the Communist Party 

of the United States from 1933 to 1936. In June 1937 he departed 

from the United States for Spain "abandoning all rights of residence here." On September 19, 1938, he returned to the United 

States as a "new" immigrant and was admitted for permanent residence upon surrender of a quota immigrant visa. He remained 

continuously in the United States except for a one-day visit to 

Mexico in September 1939. His deportation was ordered under 

the Art of 1511R, as amended by the Internal Security Act of 1950, 

on the ground that he was an alien who had been a Communist Party 

member after entering the United States. The issue was whether 

the entry he had made in 1923 could be used as a basis of deportation or whether the Service was required to use only the last entry. 

The court held that the entry referred to in the deportation statute 

was the one which the alien was "lawfully permitted to make" and 

"under which he claims the status and right of lawful presence that 

is sought to be annulled by his deportation." The court held that 

since the respondent claimed no right of lawful presence because of 

his entry in 1923 and the Service aid nnt by the deportation order 

seek to annul any right of presence acquired under the 1923 entry, 

it must be held that the entry in 1938 constituted the entry which 

must serve the basis of the deportation proceedings. (The effect 

of the reentry from Mexico in 1939 was not explored). 

At oral argument counsel maintained that respondent fell within 

the rule of the Bonetti case because she lost the right to reenter 

after her departure, since upon her return she could have been 

excluded if she were excludable under the immigration laws. This 

fact, although true, is not relevant to the issue. Bonetti too could 

have been excluded if he had been inadmissible. That did not 

prevent him from acquiring the right to lawful residence. The fact 

that aliens attempting to enter must satisfy all the requirements of 

the immigration laws is, therefore, not controlling. The issue is 

what entry gave the alien the right of presence which the Service 

seeks to annul. In Bonetti the right of presence arose out of the 

entry with a vice in 1938. There was no other entry which gave 

him this right. Therefore, only the 1938 entry could be used. 

In the respondent's case, her right of presence arises out of the 

fact that she was lawfully admitted to the United States in 1929. 

She did not have a visa when she returned in 1947. She was ex125 
cused from the visa requirement because she had her home in the 

United States; was departing from it temporarily; and was going 

to return to it. She was given a reentry permit excusing her 

from the necessity of obtaining a visa; the permit was evidence that 

respondent had been lawfully admitted for permanent residence and 

had never given up her right to such residence (8 CFR 164, 176.201-

2(c), Book 1, 1946 Supp. to Code of Fed. Reg., G.P.O., Wash., 

1947). Bonetti had given up all his rights based upon his first 

entry by relinquishing his domicile. He could not return with a 

reentry permit,. He needed a new entry based on a new quota visa, 

to give him the right to lawful residence. Respondent never gave 

up her rights based on her first entry. She took pains to safeguard 

these rights. Her right to lawful presence is based on the 1929 

entry. The Service seeks to annul the right of presence acquired 

under the 1929 entry and never abandoned. Therefore, the entry 

in 1929 may serve as the basis for these proceedings. Respondent 

was a member of the Communist Party after her entry in 1929. and 

under such circumstances, she is deportable as charged in the second 

lodged charge. 

Respondent eeeks suspension of deportation under section 241(a) 

(5), 8 U.S.C. 1254(a) (5), under which she was required to show a 

period of ten years' physical presence in the United States immediately preceding the filing of her application (Matter of M , 

A-2669541, 5 I. & N. Dec. '261). Informal application for suspension was made at the hearing on January 26, 1956, and it was 

formally presented at the hearing on March 16, 1956. Counsel 

maintains that respondent was required to show only a period of 

ten years' presence following the ending of the condition which 

caused deportability. One difficulty with this contention is that the 

respondent has not shown when the status which caused deportahility 

did end. It is established that she had been a member in 1938 and 

1939. She does not state when her membership ended. Conceivably it could have continued for many years after 1939 when the 

Government witness left the Communist Party. In any event, we 

have decided that it is the ten-year-period immediately preceding the 

application during which the respondent must show physical presence in the United States (Matter of .11 , supra). We see no 

reason to change this ruling. The respondent's application was 

filed in 1956. It is clear that her departure in 1947 prevented her 

from completing a period of continuous physical presence in the 

United States of ten years prior to 1957. The fact that she has 

such residence at the present cannot he of benefit to her because 

when the order of deportation under the Immigration and Nationality Act became final on August 24, 1956, upon dismissal of 

the appeal, respondent was not eligible for suspension of deporta126 
tion. In such case, the grant of suspension of deportation is precluded (Matter of 0—, A-4188325, 7 I. 84 N Dec. 457). The 

motion must be denied. 

Order: It is ordered that the motion be and the same is hereby 

denied. 

Editor's Note: Upon consideration of a motion of the Service dated June 6, 

1960, in the subject case, the Board of Immigration Appeals in an order dated 

June 21, 1960, granted the motion, withdrew the outstanding order of deportation, and remanded the subject case to the Service for further consideration 

and action. 

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