MATTES OP C—••-

In DEPORTATION Proceedings 

A-4268536 

Decided by Board February 4, and May 2$, i960 

DeportabMity—Section 241(a)(6), 1952 act, member of Communist Party after 

entry—Charge properly based on earlier entry where residence not subsequently abandoned. 

Respondent was admitted for permanent: residence in 1926; abandoned United 

States residence in 1981; reentered unlawfully a year later in 1833; was 

again admitted for permanent residence In November 1940 with a quota 

Immigrant visa after an overnight's absence In Canada. 

Bespondent Is charged with being deportable under section 241(a)(6) of the 

Immigration and Nationality Act baaed upon membership in the Communist 

Party of the United States after bis 1883 entry. Evidence showed that 

respondent was a member of the Communist Party from 1927 to 10SS within 

holdings of Rowolit and Oalvan. 

Supreme Court's ruling In Bonettt r. Ropers, S56 U.S. 691, does not require 

dismissal of charge because based on respondent's 1932 entry. Sonettt is 

based on novel facts and circumstances, particularly abandonment of prior 

lawful residence and an administratively adjudicated lawful admission when 

he made a new entry in 1938. Here, there was no abandonment of prior 

(1932) residence but a mere technical adjustment of status following an 

overnight's absence. Unlike Bonetti, the ground of deportation here Is assigned under the Immigration and Nationality Act, which defines "entry" 

as any coming of an alien from a foreign port or place. 

CHARGES : 

Warrant: Act of 1052—Section 241 (a) (1) [S JJ.S.C. 1251(a) (1)J—Excludable at time of entry by Act of October 16, 1918, as amended, to 

wit, member of Communist Party prior to entry (S U.S.O. 1ST). 

Lodged: Act of 1952—Section 341(a)(6) {8 U.S.O. 1251(a) (6)]—Member 

of Communist Party of the United States after entry. 

BEFORE THE BOARD 

(February 4, I860) 

Discussion: The case comes forward on. appeal from the order of 

the special inquiry officer dated September 28, 1969, denying the 

respondent's application for suspension of deportation and directing 

that he be deported solely on the lodged charge. 

The record relates to a native of England, subject of Great 

Britain, 60 years old, male, who first entered the United States on 
February 23, 1926, at Detroit, Michigan, and was admitted for 

permanent residence upon presentation of an immigration visa. In 

June 1981 he abandoned his residence in this country and went back 

to England, where he remained for a period of • about 11 or 12 

months'. He left England in 1932 as a visitor to Canada, and reentered this country in 1933. However, at the time of his inspection by an immigration officer the respondent did not reveal his 

absence to England and indicated to the inspecting officer that he 

was returning after'a one-day visit to Canada. He presented the 

birth certificate, of his son and gas. and electric bills which he had 

paid in Detroit, and was thereupon admitted as a returning resident. 

He was not at that time in possession of any documents required 

for admission as an immigrant. The respondent acknowledged that 

he -was aware that bis entry into the United States at that time 

was illegal and he thereafter adjusted his entry, by obtaining a 

passport from the British Consul in Detroit, staying overnight in 

Canada and obtaining a quota immigrant visa .from the American 

Consulate: on November 20,1940. He- reentered the United States for 

permanent residence on the -same day at the port odf Detroit, Michigan, and wag admitted as a' quota immigrant.' He has since re-r 

mained in tne United States except fdr a visit of a few hours to 

Canada on i945 from which lie returned upon presentation of his 

resident alien's border-crossing card. 

The proceedings in this ease were instituted in 1953, and on 

December 18, 1958, wo jammed the finding of depbrtability on the 

charge stated in the warrant of arrest Thereafter, the matter was 

in court, was subsequently reopened pursuant to stipulation, and 

on January 28, 1958, we dismissed the appeal from the decision of 

the special inquiry officer dated October 14,1957, finding the respondent deportable on thejlodged charge. On June 18,1958, we granted 

a motion to reopen .in view of the Supreme Court decision in 

Bonetti v. Rogers, 356 U.S. 691, and to permit the respondent to 

apply for. suspension of deportation. 

The evidence regarding the respondent's membership in the 

Communist Party has been reviewed in our previous orders and 

there would be no point in again reviewing this material. It is sufficient to say that on the basis of the testimony of witnesses and the 

respondent's own testimony, we find -that there was "meaningful 

association" with the Communist Party within the holding of Bowoldt v, Perfetto, 355 U.S. 115, and voluntary membership within 

the meaning of Galvan v. Press, 347 U.S. 522. 

The case, of Bonetti v. fiogers, supray involved an alien who was 

admitted for permanent residence an., 1923, joined the Communist 

Party and was a member until 1936. In 1987 be departed from 

the United State? abandoning all rights of resideneeunder his entry 
in 1923, and was subsequently admitted to the-United States as a 

quota immigrant in 1938. In October 1951, proceedings were instil 

tuted to deport him under sections 1 and 4(a) of the Anarchist Act 

of 1018, as amended by section 22 of the Internal Security Act of 

1950, as an "alien who has been, after entry into the United States, 

a member of the Communist Party." In construing that charge, 

the court held that where an alien after bis entry into the United, 

States leaves the United States with the intention of abandoning his 

rights of residence in this county, and later is again admitted to 

the United States as an immigrant, he could be deported under 

this statutory provision-pmly if;he was * member of a deportable 

class at the time of his second entry or at any time thereafter; 

in other words, an entry for permanent residence is no longer an 

entry within the meaning of the statutory provision after the alien 

has left the United States with tne intention of abandoning his 

residence therein.1 

In the present case there is involved another charge, to wit, 

section 241(a)(6) of the Immigration and Nationality Act, which 

charges deportability of ah alien who is, or at any time has been, 

after entry, a member of the Communist Party. The same statute 

how defines the term "entry" in pertinent part as any coming of an 

alien to the United States from a foreign port or place.8 A. further 

distinction may be noted in the instant case, in that, after the 

respondent's return to this country in 1932 there was no subsequent 

abandonment of residence as existed in the Bonetti case, even 

though there was an adjustment of immigrant status by means of 

an absence of a few hours in Canada and a. return to the United 

States with an immigrant visa. The record, however, makes it 

apparent that no abandonment of the former residence was intended 

at that time, nor is any claimed. The case, therefore, is distinguishable from the Bonetti case and from the case of BerreH v. Grossman, 208 F-2d 498, which involved membership from 1937 to 1939 

in the Communist Party of Tunisia, a stipulation as to lawful admission to the United States for permanent residence in 1948, and 

likewise involved section 4(a) of the Act of October 16, 1918, as 

amended by the Internal Security Act of 1960. 

The respondent at the reopened hearing made application for suspension of deportation. It is doubtful if he is eligible for suspension of deportation in view oi the fact that at the time a final 

order of deportation was entered by this Board on December 18, 

1953, the respondent did not possess the requisite 10 years' continuous physical presence in the United States, since he had been ab1

See. Annotation: Subversive Aliens, 2 L. Eld. 2d 1619. 

'Section 101(a)(13), Immigration and Nationality Act; 8 U.3.O. 1101(a) 

(18). 

551 
sent to Canada in 1945.3

 Even if we felt inclined to consider thu 

application for suspension of deportation, despite the factors in 

the case of respondent's long residence in this country and family 

ties of a permanent resident wife and an adult citizen son, it is to be 

noted that at prior hearings he failed to cooperate and chose to 

remain mute on the question regarding Communist Party membership and declined at that time to apply for any relief.4

 Such failure 

to cooperate justifies a refusal of discretionary relief. 

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

dismissed. 

BEFORE THE BOARD 

(May 24, I960) 

Discussion: The case is before us on motion of counsel requesting 

reconsideration of our prior order of February 4, 1960, dismissing 

the appeal from the order of the special inquiry officer dated September 28, 1959, ordering deportation on the lodged charge stated 

above. 

The facts, briefly stated, relate to a native of England, subject 

of Great Britain, 60 years old, male, who first entered the United 

States on February 23, 1926, and was admitted for permanent 

residence upon presentation of an immigration visa. He abandoned 

his residence in this country in June 1931 and returned to England, 

where he remained for a period of approximately a year. He entered Canada in 1932 as a visitor. He obtained entry into the 

United States by posing as a returning resident, concealing his 

abandonment of residence and return to England, and was admitted 

as a nonquota returning resident under the provisions of section 

4(b) of the Immigration Act of 1924 (8 U.S.C. 204(b)). Aware 

that this entry into the United States was illegal, he sought to adjust his entry by obtaining a passport from the British Consul 

in Detroit, staying overnight in Canada, obtaining a quota immigrant visa from the American Consulate on November 20, 1940, and 

reentering the United States as a quota immigrant after an overnight absence in Canada. His only other absence has been for a 

visit of a few hours to Canada in 1945, from which he returned 

upon presentation of a resident alien's border-crossing card. We 

have already found the evidence establishes the respondent's membership in the Communist Party of the United States at various 

times between 1927 and 1938. 

Counsel in his present motion again argues the applicability of 

Bonetti v. Rogers, 356 U.S. 691. It is 'contended that under the 

»Hatter of C i— , 7 I. ft N. Dee. 18^; Matter of O , 7 I. A N, Dee. 

457. 

* Jimenez v. Barber, 252 F.2d 550, cert. den. SOS U.3, 908. 

552 
holding of the Supreme Court in the Bonetti case the proceedings 

should be terminated. 

The Bonetti case was carefully considered by us previously. To 

review, Bonetti was a lawful permanent resident of the United 

States from November 1, 1923, to June 28, 1937, when he departed 

voluntarily to go to Spain and fight in the Spanish Republican 

Army, abandoning QU rights of residence, m the United States. His 

Communist Party membership existed from 1932 to 1936. Thereafter, he came to the United States on September 19, 1938, as a 

new "quota immigrant," was excluded by a board of special inquiry, 

but the order was reversed on administrative appeal and on October 8, 1938, he was admitted for permanent residence as a quota 

immigrant. Based upon the novel factual situation and circumstances of the case, particularly the elements of abandonment of the 

prior lawful residence in the United States and the subsequent 

administratively adjudicated lawful entry, the Supreme Court held 

that the latter entry constituted "the time of entry into the United 

States" within the meaning of section 4(a) of the Act of October 16, 

1918, as amended by section 22 of the Internal Security Act of 

1950, and since the alien there was not a member of the Communist 

Party "at the time of entry into the United States" on October 8, 

1938, and had not been~ a member "at any time thereafter," he was 

not deportable under section 4(a) of the Act of October 16j 1918, 

as amended by section 22 of the Internal Security Act of 1950. 

In the present case, the "novel circumstances" which were decisive in the decision of the majority opinion of the Supreme Court 

are not present. The respondent's membership in the Communist 

Party herein existed during a period of his illegal residence in the 

United States; there is not present the abandonment of former lawful residence but merely an attempted adjustment after one night's 

absence to Canada; and no administratively adjudicated lawful' 

entry. The ground of deportability herein is predicated upon a 

different section, to wit, section 241(a) (6) of the Immigration and 

Nationality Act (8 U.S.C. 1251(a) (6)), and the entry of November 

20,1940, occurred subsequent to the enactment of the Alien Registration Act of 1940 (54 Stat. 670), approved June 28, 1940. In view 

of these differences, it is believed that the "novel circumstances" 

of the Bonetti case are not herein present and the principles applied 

to those "novel circumstances" are not apposite here. The motion 

will be denied. 

Order: It is ordered that the motion to reconsider our prior 

order of February 4, 1960, dismissing the appeal from the order of 

the special inquiry officer dated September 28, 1959, directing de^ 

portation on the lodged charge be and the same is hereby denied. 

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