MATTER OF V 

In DEPORTATION Proceedings 

A-10659043 

Decided by Board February 8, 1960 

Deportation proceedings—Membership in subversive organization—Authority 

of B.I.A. and SW to determine admissibility at time of entry and to apply 

exemptions in section 212(a)(2S)(I). 

(1) Authority of the Board and special inquiry officer in deportation proceedings to adjudicate ).-.)hether an alien was admissible or inadmissible at 

time of entry includes the authority to determine whether an alien subject 

to the provisions of section 212(a) (28) of the 1952 act was within any of 

the exemptions contained in subparagraph (1) of that section. 

(2) Exercise of the authority under subparagraph (I) is not dependent upon 

whether the alien ever appeared before an American consular officer or 

whether that officer made a finding of involuntary membership or defector 

status. 

CHARGES : 

Order: Act of 1052 Section 211(a) (1) [5 U.S.C. 1231(a) (1)] —ETeludable 

at entry under 8 U.S.C. 1182(a) (20)—No immigrant visa. 

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

at entry under 8 U.S.C. 1182(a) (28)—Member of or affiliated with 

Communist Party of foreign state. 

BEFORE THE BOARD 

Discussion: Following a decision of a special inquiry officer 

that the respondent was deportable on the two grounds stated above, 

counsel filed a motion for reconsideration. This was denied by the 

special inquiry officer and the respondent appealed. On July 17, 

1959, we sustained the appeal insofar as it related to the second 

charge and dismissed the appeal as to the first charge. The Service 

filed a motion for reconsideration on September 16, 1959. On November 20, 1959, we found it necessary to request the Service to 

clarify its position and the Service filed a supplementary statement 

on December 28, 1959. Our order of November 20, 1959, and the 

Service statement of December 28, 1959, are made a part hereof as 

appendices "A" and "B," respectively. 

The respondent is a 28-year-old unmarried male, native and 

citizen of Yugoslavia, whose only entry into the United States oc554 
curred on May 11., 1956, at which time he was admitted temporarily 

as a crewman. He intended to remain in this country permanently 

but was not in possession of an immigrant visa. The second charge 

is predicated on the respondent's former membership in Savez 

Komunista Jugoslavije (the Communist Party of Yugoslavia), and 

the issue to be determined is whether that charge is sustained. 

Taking into consideration our orders of July 17 and November 20, 

1959, and the Service motions of September 16 and December 28, 

1959, the following is applicable generally to deportation cases in 

which one of the charges is that the alien was excludable at the 

lime of entry under section 212(a) (28) of the Immigration and 

Nationality Act [8 U.S.C. 1182(a) (28)]. The Service and this 

Board are in agreement that, in deportation proceedings, special 

inquiry officers and this Board have jurisdiction to determine 

whether an alien was admissible or excludable at the time of entry 

under B U.S.C. 1182(a) (28) where the alien did not appeal before 

an American consular officer or where the alien did appear but no 

finding was made by the American consular officer that the alien's 

membership was involuntary or that he was a defector. 

The prooedopal, provisions of subparagraph (I) of 8 U.S.C. 1182 

(a) (28) are not applicable to deportation cases. In other words, 

an American consular officer's finding of involuntary membership is 

not a prerequisite to a determination in deportation proceedings that 

the alien was, in fact, admissible at the time of entry notwithstanding former membership in a proscribed organization. However, the substantive provisions of that subparagraph set forth 

the criteria for determining whether membership was voluntary or 

involuntary, that is, the alien can be found to have been admissible 

at the time of entry if "(i) such membership or affiliation is or 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 when necessary for such 

purposes, or (ii) (a) since the termination of such membership or 

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

the date of the application for admission actively opposed to the 

doctrine, program, principles, and ideology of such party * * *, and 

(b) the admission of such alien into the United States would be in 

the public interest." 

With respect, to cases in which the alien is charged with having 

been excludable under 8 U.S.C. 1182(a) (28) and also with having 

been excludable on the ground that the visa was obtained fraudulently by concealment of former membership in a proscribed organization, the Service States that. a. c7aMPrate concealment from 

the consul of Communist Party membership must be regarded as a 

material misrepresentation within 8 U.S.C. 1182(a) (13) even though 

555 
there was a finding of involuntary membership or defector status 

made by a special inquiry officer or the Board after the alien's arrival in the United States. Hence, it appears that the Service agrees 

with the Board that, even in such cases, the charge that the alien was 

inadmissible at the time of entry under 8 U.S.C. 1182 (a) (28) 

may be found not sustained. We will reserve for consideration in 

specific cases the question of whether excludability under 8 U.S.C. 

1182(a) (19) has been established. 

The decisions of Gabian v. Press, 347 U.S. ,522 (1954), and 

Rowoldt v. Perfetto, 355 U.S. 115 (1957), apparently have no 

direct application in this respondent's case. The question of their 

applicability in future deportation or exclusion cases will be consid,red as such cases arise. 

In view of the foregoing, it follows that there is no controversy 

as to any legal problem connected with the respondent's case and 

the issue has resolved itself solely into the question of whether the 

respondent's membership was or was not voluntary, in accordance 

with the criteria stated in 8 U.S.C. 1182(a) (28) (I). 

We have carefully considered the Service view as to the factual 

situation in this respondent's case which was set forth on pages 1, 

2, 9 and 10 of the motion of September 16, 1959. Our own appraisal of the evidence is as follows. The respondent's admission to 

the United States occurred on May 11, 1956, but it was not until 

May 29, 1956, that he deserted his vessel and remained in this 

country. On June 7, 1956, he made a statement before an immigration officer at the St. Louis office of the Service and admitted that 

he had deserted his ship. When asked if he had been a member 

of any organization, he freely admitted his membership in the 

Communist Party of Yugoslavia. The record does not show whether 

the Service had previously become aware of the respondent's unlawful presence in the United States or whether he may have appeared 

voluntarily at the St. Louis office of the Service. He expressed his 

opposition to Communism and offered to assist the United States 

Government. He stated that, although a person was not compelled 

to join the Communist Party of Yugoslavia, it was almost a necessity in order to obtain sufficient food and clothing and in order to 

hold a position. 

The respondent became a member of the Communist Party of 

Yugoslavia in 1950, and had previously been a member of the Communist Party youth organization commencing in 1948 when he was 

about 17 years old. 'When first questioned on June 7, 1956, the 

respondent stated that he supposed he was still being carried as a 

member of the Communist Party of Yugoslavia. He testified that he 

had never been an officer of the organization; that no "special jobs" 

were assigned to him by the Party; and that he attended meetings556 
;ometimes weekly and sometimes monthly. During the 13 months 

)receding his arrival in the United States, he had been employed 

is a seaman and stated that the only Communist meetings he attended were those on board his ship and that the meetings were 

poorly attended. 

With the exception of a period of service in the Yugoslavian 

army from 1951 to 1953, the respondent had been employed as a 

grocery clerk in a government store from 1946 until May 15, 1955, 

when he commenced his employment as a seaman. Before he became a member of the Communist Party he had been earning about 

$10 monthly, which was a starvation salary, but after becoming a 

member of the Party he earned about $14 monthly upon which he 

could subsist. He also stated that the ration stamps furnished to 

non-members bordered on the starvation level; that it was only 

because of these economic factors that he joined the Communist 

Party; and that he has always been opposed to the present government of Yugoslavia. 

When the respondent was first interviewed, nine days after he 

deserted his ship, he voluntarily admitted his membership in the 

Communist. Party of Yugoslavia and expressed his opposition to 

Communism. There is no evidence of his membership other than 

his own testimony. For that reason, his explanation as to why he 

joined the organization is entitled to considerable weight. We are 

impressed with his candor at the time of the first interview. We 

have no reason to doubt the respondent's statement that joining 

the Communist Party of Yugoslavia represented the difference between trying to exist on a starvation salary or receiving a few 

more dollars which removed the threat of starvation. 

In the Acting Regional Commissioner's order of October 20, 

1958, relating to this respondent, appears the following statement: 

The Service pointed out in the Matter of K—, A-9555532, on April 23, 195S, 

that from various sources, including the personal observations of officers of 

this Service in that country, it has been established that: The Government of 

Yugoslavia is completely under the domination and control of the Communist 

Party of Yugoslavia and the economic and political philosophy of the country 

differo only in degree from that followed in the USSR and its satellite countries. Advancement in almost any line of activity is, with few exceptions, 

limited to Party members. The basic freedom to criticise, as we know and 

enjoy it does not exist in Yugoslavia. 

The respondent was an employee, of the Government, of Yugoslavia and the economic compulsion upon him was greater than 

would have been the case with respect to one who did not hold such 

employment. After careful review of the record, it is our considered opinion that the respondent's membership in the Communist 

Party of Yugoslavia was involuntary and that it falls within the 

criteria of 8 U.S.C. 1182(a) (28) (I) relating to membership in a 

557 
proscribed organization which was necessary for the purposes of 

obtaining employment, food rations or other essentials of living. 

Accordingly, we hold that the second charge (that the respondent 

is deportable because he was excludable at entry due to his membership in the Communist Party of a foreign state) is not sustained. 

The first charge, relating to his lack of a visa, is sustained. In 

connection with the request, in counsel's motion, for reconsideration 

of the application for a stay of deportation under section 213(h) 

of the Immigration and Nationality Act, that is a matter within 

the jurisdiction of the Service. Counsel indicated that the respondent desired to take steps with a view of adjusting his status to 

that of a lawful permanent resident. The following order will be 

en tered. 

Order: It is ordered that the motion of the Service for reconsideration, except as reconsidered herein, be denied. 

It is further ordered that the respondent's appeal he sustained 

insofar as it relates to the second charge, that is, the Communist 

Party charge. 

It is further ordered that the respondent's appeal be dismissed as 

to the first charge (lack of an immigrant visa) without prejudice 

to further application by the alien for any discretionary relief 

which may be available. 

APPENDIX "A" 

BEFORE THE BOARD 

(Nov. 20, 1959) 

In re: A V 

A-10659043 

Discussion: On July 17, 1959, we dismissed the alien's appeal 

as to the first charge and sustained his appeal as to the second 

charge. The Service requested reconsideration of this order in its 

motion dated September 16, 1959. 

It was stated in the motion that we had not correctly understood the position of the Service and there was a particular reference to a statement on page 3 of our previous order, reading as 

follows: "The Service takes the position that a former member of 

the Communist Party of a foreign state is excludable under subparagraph (C) of 8 U.S.C. 1182(a) (28) regardless of whether his 

membership was voluntary or in/voluntary; that subparagraph (I) 

Gets forth a epecifie procedure which ouch aliens must follow; and 

that, if this procedure is not followed, the alien must leave the 

United States, follow the procedure in subparagraph (I), and obtain 

a visa or a new visa before again applying for admission to this 

country." 

558 
With the exception of such statements as may have appeared in 

decisions of special inquiry officers or in briefs of examining officers, the Service has not, heretofore filed any written memorandum 

outlining its position concerning S 1182(a) (28) (C) and 

(I). However, we believe, that statements which were made by 

the Service representatives during oral arguments were along the 

lines summarized in the sentence quoted above. 

In Matter of G l B , A-10935264, the Service representative stated on February 26, 1959, that the Attorney General, 

this Board, and the special inquiry officers have no jurisdiction to 

pass upon voluntary or involuntary membership or defector status 

"unless and until it has been passed upon first by the consul" and 

that in that particular case the Board did not have jurisdiction 

because the American consular officer had not considered the. case 

under subparagraph (I) of 8 U.S.C. 1182(a) (28). 

In Matter of 0 ii , A-10930148, the Service representative 

on May 12, 1959, agreed that a correct statement. of his position 

was that, even if it should be perfectly clear in a given case that 

membership in a foreign Communist Party was involuntary but the 

American consul had not considered that issue, the alien must be 

denied admission because of such membership, must return to his 

country, start all over again, and submit his case to the American 

consul. It was also stated that the ground of exclusion under 8 

U.S.C. 1182(a) (28) is sustained merely on a showing of membership and that the type of membership or the degree of affiliation is 

absolutely immaterial in a deportation proceeding, and that the 

remedy under subparagraph (I) is the sole and exclusive remedy. 

Upon careful consideration of the motion of the Service dated 

September 16, 1959, and in view of the apparent conflict, between 

statements therein and the statements which had been made by the 

Service representatives, we find it. necessary to return the case to the. 

Service so that it may clarify its position by answering the following questions: 

(1) Does the Service now concede that this Board and special 

inquiry officers have jurisdiction to determine whether an alien was 

admissible. or inadmissible at the time of entry because of former 

membership in the Communist Party of a foreign state. where there 

had been no finding by the American consular officer that the alien's 

membership was involuntary or that he was a. defector within the 

meaning of section 212 (a) (28) (I) 

(2) Does the Service claim that there is such jurisdiction only 

where the alien has never appeared before an American consular 

officer, and, if so, what. is the statutory basis for this distinction? 

(3) In cases where two deportation charges are involved, that is, 

(a) excludable at entry because of former membership in a foreign 

559 
Communist Party, and (b) excludable at entry because the visa 

was obtained by fraud, does the Service contend that this Board 

and special inquiry officers are precluded from finding that the alien 

was an involuntary member of the Communist Party of a foreign 

state or that he was a defector merely because an American consular officer had not previously made such a finding? 

Order: It is ordered that this ease be returned to the Service 

for the purpose stated above in accordance with 8 CFR 3.1 (d) (2). 

APPENDIX "B" 

BEFORE THE CENTRAL OFFICE 

(December 28, 1959) 

SCPPLEMENTARY STATEMENT OF POSITION IN SUPPORT OF MOTION 

TO RECONSIDER 

In re: A—V 

A-10659043 

Discussion: On September 16, 1959, the Service filed a motion 

to reconsider the Board's decision of July 17, 1959, in the subject 

case. By order dated November 20, 1959, the Board has requested 

clarification of the Service position with respect to the following 

questions: 

1. Does the Service now concede that this Board and special inquiry officers 

have jurisdiction to determine whether an alien was admissible or inadmissible at the time of entry because of former membership in the Communist 

Party of a foreign state where there had been no finding by the American 

consular officer that the alien's membership was involuntary or that he was a 

defector within the meaning of section 212(a) (28) (I)? 

2. Does the Service claim that there is such jurisdiction only where the 

alien has never appeared before an American consular officer, and, if so, what 

is the statutory basis for this distinction? 

3. In cases where two deportation charges are involved, that is, (a) excludable at entry because of former membership in a foreign Communist Party, 

and (b) excludable at entry because the visa was obtained by fraud, does the 

Service contend that this Board and special inquiry officers are precluded from 

finding that the alien was an involuntary member of the Communist Party of 

a foreign state or that he was a defector merely because an American consular 

officer had not previously made such a finding? 

The respondent entered as a crewman on May 11, 1956, and has 

remained here illegally since. The only charges are (1) excludable 

at time of entry because not in possession of an immigrant visa, and 

(2) excludable at time of entry under the provisions of section 212 

(a) (28) (C) in that he had been a member of or affiliated with the 

Communist. Party of a. foreign state_ insofar as appears from the 

record, the respondent never appeared before a United States consul in connection with an application for a visa to enter this country. 

In the light of the foregoing, the Service motion to the Board 

560 
was confined to the facts of the case. Thus, at page 9 of the Service 

motion, it was stated: 

(4) That for the reasons set forth in pp. of the Board decision there is 

authority under section 212(a) f`28 (I) for the special inquiry officer and the 

Board to consider the issue of involuntariness or otherwise find an alien 

within the exemptions of that subsection, in a case where the alien has never 

appeared before a 'United States consul * * *. 

It was not deemed necessary to enlarge upon the Service position 

with respect to the situation where the alien had appeared before a 

United States consul, and had deliberately concealed Communist 

Party membership since those were not the facts of the ease. However, since the request for clarification indicates that the Board regards a statement of the Service position in this additional area 

pertinent to its consideration of this case, the Service position with 

respect to all three of the above questions is as follows: 

For the reasons set forth in pp. 4-6 of the Board order of July 17, 1959, 

the Service accepts the ruling-of the Board that authority exists with a special inquiry officer and with the Board to find involuntary membership or 

defector status under the provisions of section 212(a) (28) (I) both in a situation where the alien never appeared before a United States consular officer, 

and where the alien did appear before an American consular officer but no 

finding was made by that officer that the alien's membership was involuntary 

or that he was a defector. 

With respect to the cases pending before the Board involving an 

issue of fraud, the Service still maintains, for the reasons advanced 

in the arguments in those cases, that a deliberate concealment of 

'Communist Party membership by the alien, from the consul, must 

be regarded as a material misrepresentation within cection 9.12(a) 

(19), in that it was directly relevant to issuance of a visa, and that 

this is true regardless of any' subsequent finding of involuntary membership or defector status made by a special inquiry officer or the 

Board after the alien's arrival in the United States. 

With respect to the instant case, the Service continues to maintain 

that an alien who has been a member of the Communist Party of a 

foreign country and, hence, was excludable under section 212(a) 

(28) (C) at time of entry, can only be removed from the class of 

aliens defined in that section under the provisions of section 212 

(a) (28) (I), which is the exclusive statutory remedy, and that the 

decisions in Rowoldt v. Perfetto (355 U.S. 115), and Gatvam v. Press 

(347 U.S. 522), have no application in such a case. 

On the basis of the foregoing, motion is again made that the Board 

reconsider and withdraw its order dated July 17, 1959, and enter 

an order that the respondent be deported on both of the charges set 

forth in the order to show cause. 

561