MATTER or PIn SECTION 245 Proceedings 

A-6819635 

Decided by Assistant Commissioner April 19, 1959 

Adjustment of status—Section 245 of the 1952 act, as amended--None pro tune 

exercise of section 212(d)(3) of act to legalize nonimmigrant entry—Grant 

of "defector" status to cure present inadmissibility. 

Alien who was inadmissible to the United States at time of nonimmigrant 

entry in 1947 by reason of prior membership in Communist Party of Czechoslovakia is qualified for adjustment of status under section 245 of the act, 

as amended, upon discretionary exercise none pro tune of waiver under 

ocction 212(4) (3) or the act and finding of present eligibility for "defector" 

status under section 212(a) (28) (I) (ii) of the act. 

Airmanknot: For the benefits of section 212(a) (28) (I) (11) of the Immigration cola Nation...1;4y ,so, ;MU waiver miner section 212( d) (3) 

of the Immigration and Nationality Act, in connection with 

adjustment of status under section 245, as amended, of the 

Immigration and Nationality Act. 

BEFORE TILE ASSISTANT COMMISSIONER 

Discussion: The applicant is a single male, aged 58, a native of 

Czechoslovakia, now stateless, whose only entry into the United. 

States was at the port of New York on December 10, 1947, as a, 

passenger on the SS. Queen Al (Try. He was then admitted temporarily until October 30, 1948, as a student under section 4(e) of the 

immigration Act of 1924. He entered under the auspices of the 

Rockefeller Foundation as a -research fellow and intended to return 

to Czechoslovakia, where he owned and maintained his residence, 

upon the completion of his studies. He did research work in economics at the Institute for Advanced Study, Princeton, and at 

Harvard University. In February 1948, he heard of the "coup 

d'emt" by the Communist, Party hi his native country, and then 

decided not to return to that country. 

The alien has been the subject of various proceedings before this 

Service, records of which are incorporated in the current proceeding. 

On October 19, 1948, he filed an application for adjustment of status 

under section 4 of the Displaced Persons Act of 1948 which was 

denied February 13, 1952, for the reason that he was inadmissible 

under section 1(2) (C) of the Act of October 16, 1918, because of 

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prior membership in the Communist Party of Czechoslovakia. On 

December 13, 1954, a warrant of arrest in deportation proceedings 

was issued on the charge that at the time of entry he was excludable 

we an HEAT who had been a member of the Communist Party of 

Czechoslovakia. The special inquiry officer in this order of April 11, 

1955, found the charge sustained, granted voluntary departure with 

an alternative order of deportation in the event respondent failed 

to comply with the voluntary departure provision. The decision 

became final when an appeal was dismissed by the Board of Immigration Appeals on August 4, 1955. A warrant of deportation was 

issued on March 19, 1931, and the respondent phreed on nutlet, of 

intended deportation to Czechoslovakia. Subject filed on October 14, 

1957, an application for a stay of deportation under section 243(h) 

of the Immigration end Nationality Act, alleging he world he subject to physical persecution because of his anti-Communist activity. 

After interrogation, the special inquiry officer on December 27, 1957, 

recommended that deportation to Czechoslovakia be withheld indefinitely, and this recommendation was approved by the Acting Regional Commissioner on March 4, 1958. 

The applicant is an associate professor of economics at Ricker 

College, Houlton, Maine. That institution filed a visa petition in 

his behalf under section 203(a) (1) of the Immigration and Nationality Act which was approved on May 20, 1958. 

Subsequent to the amendment. of section 215 of the 1052 act by tho 

Act of August 21, 1958 (72 Stat. 699), the current application was 

filed. An immigrant visa appears to be immediately available to 

the applicant and he has established that he is a person of good 

moral character. It remains to be established whether he may be 

considered to have been lawfully admitted to the United States as 

a bona fide nonimmigrant and whether he is presently admissible to 

the United States for permanent residence. 

. His admission as a nonquota immigrant under section 4(e) of the 

Immigration Act of 1924 can properly be considered an admission 

as a nonimmigrant (Hatter of H , 6 I. & N. Dec. 458). He has 

clearly established that, at time of entry, it was his intention to 

return to Czechoslovakia. Consequently, he was a bona fide nonimmigrant at time of entry. However, he was inadmissible at that 

time under the provisions of section 1(2) (C) of the Act of October 

16, 1918, as amended by the Act of June 28, 1940, by reason of his 

prior membership in the Communist Party of Czechoslovakia. There 

is no indication that the applicant's failure to disclose his prior 

Membership when applying for a visa was willful. The ground of 

inadmissibility then existing may be waived by the exercise, nuns 

pro tune, of the discretionary authority contained in section 212(d) 

(3) of the Immigration and Nationality Act (Matter of Al—, 

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A-10296535, Interim Decision No. 990). In view of the meritorious 

factors in this case, this relief will be granted. Therefore, his admission on December 10, 1947, is found to be a lawful admission as a 

bona fide nonimmigrant. 

The next issue to be considered is whether the applicant can qualify for status as a defector under the provisions of section 212(a) 

(28) (I) (ii) of the 1952 act, thereby removing the present ground 

of inadmissibility under section 212(a) (28) (C) of the act. To be 

eligible for such status the applicant must establish that he is, and 

has been for at least the past five years, actively opposed to the 

doctrines, programs, principles, and ideology of the Communist 

Party, and it must be found that his admission into the United States 

would be in the public., interest. 

Throughout the proceedings before this Service, aubsequent, to 

entry, the applicant has freely admitted that he voluntarily joined 

the Communist Party of Czechoslovakia about February 1946; that 

he paid dues and held a Party card; and that he terminated his 

membership about December 1946. He has maintained, however, 

that he has never believed in Communism. His testimony is to the 

effect that he was a member of the Central Planning Commission in 

Prague; that in 1943 President Benes had signed a pact with Russia; that following World War H Czechoslovakia was left in the 

sphere of Russia ;that in 1946 the Communist Party was one of a 

number of parties represented in the coalition government; that the 

Communist Party of Czechoslovakia was then a nationalist party; 

that the people were led to believe that this Communist Party was a 

democratic party and would accomplish reforms by peaceful methods; that he believed Czechoslovakia, a highly developed country, 

could proceed towards socialism in a peaceful way; and that he 

further believed that by joining the Party, he could best influence 

the future of the country. There was included in the deportation 

record "Special Report No. 8 of the Select Committee on Communist Aggression, House of Representatives, Communist Takeover and 

Occupation of Czechoslovakia," which tends to lend credence to subject's testimony. 

The applicant has testified that even before he left the Communist 

Party in December 1946, he was openly critical of the program of 

the Party; that he wrote critical articles for which he was termed a 

traitor by the Secretariat of the Party; and that his divergent views 

led to his break with the Party. He states that immediately following the Communist coup in his home country, he gave intelligence 

information to officials of the United States. In March 1948, he 

placed himself at the disposal of the former Czechoslovakian Ambassador to the United States, a representative of "true democratic 

Czechoslovakia." With his present application he presents, among 

other supporting documents: 

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1. Copy of series of lectures he delivered at Wichita University entitled 

"Method of Social Service which concluded with his statements that Christian culture is at stake, that America is the last stronghold of Western civilization and that time is running short. 

2. Copy of a speech he delivered to a religious council at Wichita university 

on January 17, 1950, on the subject, "How Can Christianity Combat Communism?" 

3. Copy of the Summer 1955 issue of "Faith and Freedom, A Journal of 

Progressive Religion," published at Manchester College, Oxford, England, containing his article on "Ethics in a Business Society." 

4. Notes of a commencement speech he delivered at Lenox School, Lenox, 

Massachusetts, in June 1957, in which he warned of the conflict between the 

East and the West, and the possibility of a knockout blow to civilization. 

The applicant has stated that he lias not been successful in having 

articles published in the United States. He testified, however, that 

whenever the opportunity arises, in his daily contacts, classrooms, 

lectures and speeches, he speaks against Communism. In January 

1959, he spoke to a group at the local Methodist church, comparing 

Christmas in the West with the "no-Christ" Christmas in presentday Russia. He has appeared recently on WAGM—TV, Presque Isle, 

Maine, on a panel discussion of the "International Look at Comparative Educational. Systems" and this panel discussion was repeated in four nearby communities. 

The records of the various immigration proceedings present a 

comprehensive record of the subject's activities in the United States 

since his arrival in 1947. Police reports from all places in which 

he has lived, and current national agency checks are negative. Independent character investigations conducted in 1949 and 1951 indicated he was definitely anti-Communist and developed no derogatory 

information. 

The applicant completed a four-year course in law at Charles 

University in Prague in 1921 and continued hie studies in philosophy 

at that university, except for one year at the University of Sorbonne, 

completing the academic work for his Ph. D. degree in 1927. The 

Service, in approving the visa petition, determined that his services 

were urgently needed in the United States because of his high education and experience and would "be substantially beneficial prospectively to the national economy, cultural interests, or welfare of 

the United States." Clearly, his admission would be in the public 

interest. 

It is concluded that the applicant has satisfactorily established 

his present eligibility for status as a defector under section 212(a) 

(28) (I) (ii) of the act. 

Order: It is ordered that the ground of exclusion under section 

1(2)(C) of the Act of October 16, 1918, as amended by the Act of 

June 28, 1940, existing at the time of the applicant's admission at 

the port of New York on December 10, 1947, be waived nuns pro 

305 
twee under section 212(d) (3) of the Immigration and Nationality 

Act. 

15 io further ordered that the application for status as a defector 

pursuant to section 212(a) (28)(I)(11) of tho Immigration and Nationality Act be granted. 

It is further ordered that the application for status as a permanent resident be granted. 

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