A-5385180
Decided by the Board May 27, 1953
Nazi Party of Germany — Deportability under section 241 (a) (6) of the Immigration and Nationality Act — Savings Clause, section 405 (a) of the Immigration and Nationality Act.
(1) The Nazi Party of Germany is not a totalitarian party within the meaning in section 101 (a) (37) of the Immigration and Nationality Act, is no longer bership in that party after entry (from 1934 to 1939 or 1940) does not render an alien deportable under section 241 (a) (6) of the act.
(2) There is nothing in the savings clause contained in section 405 (a) of the Immigration and Nationality Act which requires a holding that an individual is deportable under the act of October 16, 1918, as amended, when the ground for deportation is a charge lodged prior to December 24, 1952, based on membership in a totalitarian party which, by reason of the definition of that term in section 101 (a) (37) of the Immigration and Nationality Act, is no longer regarded as a totalitarian party within the meaning of the immigration laws.
CHARGES:
Warrant: Act of 1924 — Remained longer — seaman.
Lodged: Act of 1924 — No immigration visa.
Act of October 16, 1918, as amended — After entry, alien who was member of totalitarian party of a foreign state (Nazi Party of Germany).
BEFORE THE BOARD
Discussion: This case is before us on appeal from the hearing officer's decision of October 3, 1952, which denied the applications for discretionary relief and directed the respondent's deportation on the two lodged charges.
The respondent is a 50-year-old married male, a native and citizen of Germany, who last entered the United States on September 24, 1926, as a seaman. Counsel does not contest the finding that the respondent is deportable on the first lodged charge and he tacitly concedes that, were it not for the fact that the Immigration and Nationality Act became effective on December 24, 1952, the respondent would be deportable on the second lodged charge because of his membership in the Nazi Party from 1934 until 1939 or 1940. He argues that, in view of the manner in which the term "totalitarian party" is defined in the Immigration and Nationality Act, the respondent would not be deportable under that act and that it would be inequitable to order his deportation under a charge which is no longer a ground for deportation.
The second lodged charge is based on the act of October 16, 1918, as amended by section 22 of the Internal Security Act of 1950, which provided, in part, for the deportation of aliens who, after entry, were members of a totalitarian party of any foreign state. Section 3 (15) of the Internal Security Act is as follows:
(15) The terms "totalitarian dictatorship" and "totalitarianism" mean and refer to systems of government not representative in fact, characterized by (A) the existence of a single political party, organized on a dictatorial basis, with so close an identity between such party and its policies and the governmental policies of the country in which it exists, that the party and the government constitute an indistinguishable unit, and (B) the forcible suppression of opposition to such party.
Section 212 (a) (28) of the Immigration and Nationality Act provides, in part, for the exclusion of aliens who are or have been members of a totalitarian party of any foreign state and section 241 (a) (6) of that act contains provisions relating to the deportation of such persons. The language contained in these two sections is almost identical with that contained in the act of 1918 as amended by section 22 of the Internal Security Act. The language quoted above from section 3 (15) of the Internal Security Act was repeated in identical form in section 101 (a) (37) of the Immigration and Nationality Act. However, in the latter, there was inserted, immediately prior to the quoted statement, the following sentence: "The term `totalitarian party' means an organization which advocates the establishment in the United States of a totalitarian dictatorship or totalitarianism."
We entertain no doubt that, from the passage of the Internal Security Act and until the enactment of the Immigration and Nationality Act, the reference in the act of October 16, 1918, as amended, to membership in a totalitarian party of a foreign state, included membership in the Nazi Party of Germany. In our consideration of the statutory provisions referred to above, we have observed that, while section 3 (15) defines the terms "totalitarian dictatorship" and "totalitarianism," it does not specifically define the phrase "totalitarian party" which is the term used in section 1 (2) (C) of the act of 1918, as amended. When Congress, for the first time, supplied a definition of totalitarian party in the Immigration and Nationality Act, it did so in language which makes it unmistakably clear that, unless the organization advocates the establishment in the United States of a totalitarian dictatorship, it is not a totalitarian party within the meaning of the Immigration and Nationality Act. It follows that the respondent would not be deportable under any provision of the Immigration and Nationality Act because of his membership, after entry, in the Nazi Party, nor would he be excludable by reason thereof under that act. Hence, the question involved is whether the respondent, who is not deportable under the present provisions of law because of former membership in the Nazi Party, is nevertheless deportable under the provisions of a repealed statute.
We are fully cognizant that section 405 (a) of the Immigration and Nationality Act provides, in part, that "Nothing contained in this act, unless otherwise specifically provided therein, shall be construed to affect the validity of * * * any warrant of arrest, order or warrant of deportation, * * * which shall be valid at the time this act shall take effect; or to affect any * * * proceedings * * * brought * * *; but as to all such * * * proceedings * * * the statutes or parts of statutes repealed by this act are, unless otherwise specifically provided therein, hereby continued in force and effect."
With respect to the first portion of section 405 (a), preserving the validity of certain documents, the charge under the act of 1918 was not contained in the warrant of arrest and, if we hold that that charge is not sustained, it will not affect the validity of the hearing officer's order of deportation since that order would still be valid because of the respondent's deportability on the first lodged charge. With respect to the latter portion of section 405 (a), which provides that certain statutes repealed by the Immigration and Nationality Act shall be continued in force and effect, this would mean that the act of October 16, 1918, as amended by the Internal Security Act, continues in force and effect in the respondent's case. As previously indicated, its provisions are no different from the provisions of section 241 (a) (6) of the Immigration and Nationality Act. Prior to the Immigration and Nationality Act, there was no statutory definition of the specific term "totalitarian party" which could have been preserved by the latter portion of section 405 (a), and it was only by reason of the absence of the definition now contained in section 101 (a) (37) of the Immigration and Nationality Act that the respondent was apparently amenable to deportation under the Act of October 16, 1918, as amended. Hence, we do not consider that there is anything contained in the provisions of section 405 (a) of the Immigration and Nationality Act which requires a holding that the respondent is deportable under the Act of October 16, 1918, as amended.
Whether we consider that the definition of the term "totalitarian party" was inserted in the Immigration and Nationality Act to correct an omission from the previous legislation or whether we consider that it represents a change in the intention of Congress as to what shall be considered a totalitarian party, we do not believe that we should ignore the plain mandate of Congress that a member or former member of a totalitarian party is not to be deported if such totalitarian party did not advocate the establishment of a totalitarian dictatorship in the United States. In view of the foregoing, we conclude that the charge based on the act of October 16, 1918, as amended, should not be sustained.
This conclusion is consistent with the practice which was followed in cases where an alien, at the time of entry into the United States, was excludable because he was racially ineligible to citizenship but in deportation proceedings, following the removal of the racial bar to naturalization, the charge based on his original excludability on racial grounds was not sustained. It is also consonant with court decisions to the effect that appellate courts will dispose of orders in habeas corpus proceedings in accordance with the law as it exists when the appeal is decided.
Matter of L----, 56121/238, A-9799488, decided April 1, 1944; Matter of C----, 56150/280, decided May 4, 1944; Matter of R----, A-9836929, decided September 17, 1946.
Vandenbark v. Owens-Illinois Glass Co., 311 U.S. 538, 541 (1941); U.S. ex rel. Pizzuto v. Shaughnessy, 184 F. (2d) 666 (C.A. 2, 1950); U.S. ex rel. Wiczynski v. Shaughnessy, 185 F. (2d) 347 (C.A. 2, 1950); U.S. ex rel. Harisiades v. Shaughnessy, 187 F. (2d) 137, 142, affirmed, 342 U.S. 580.
Since we will not sustain the 1918 act charge, it follows that the provisions of section 19 (d) of the Immigration Act of 1917, as amended. do not preclude the granting of suspension of deportation or voluntary departure. The hearing officer drew certain adverse inferences from the fact that the respondent had previously been a member of the Nazi Party in 1921 for about seven months; the fact that, after the German consulate had suggested that he destroy his Nazi Party membership book, he retained it until 1943 when he told his wife to deliver it to the Federal Bureau of Investigation. We do not agree that any of the factors mentioned by the hearing officer warrant adverse inferences. From our review of the record, we are inclined to believe the respondent's explanation for joining the Nazi Party, namely, that he thought he would have to return to Germany to secure an immigration visa to legalize his residence in this country and that he believed that the matter of entering Germany and departing therefrom would be simplified if he were a member of the Nazi Party. In any event, other than the payment of dues, it does not appear that he took any active part in the organization. On the basis of the record, a finding is warranted that the respondent has been a person of good moral character for over 5 years. Since his wife is a citizen, it appears that he is entitled to nonquota status. We do not believe that this case warrants the discretionary relief of suspension of deportation. However, voluntary departure and preexamination will be authorized.
There is one remaining question relating to whether the respondent, when he applies for readmission to the United States, will be excludable, that is, whether moral turpitude is involved in the crime of which he was convicted. Counsel stated that application was being made for the exercise of the 7th proviso to section 3 of the Immigration Act of 1917 in order to waive, if necessary, the respondent's conviction on January 29, 1945 for a violation of 18 U.S.C. 80. The record does not contain a copy of the indictment or judgment of conviction and exhibit 28 (photostatic copy of application for certificate of identification executed by the respondent on February 24, 1942) is missing. However, it is indicated that the facts involved were that question 14 in the respondent's application for certificate of identification, reading: "Name the clubs, organizations and societies of which you have been a member or with which you have been affiliated at any time during the past 5 years" was answered "None," although, as previously indicated, the respondent had been a member of the Nazi Party from 1934 until 1939 or 1940. The respondent did not plead guilty to the charge but was found guilty by a jury. He still maintains his innocence. He claims that, prior to the preparation of the formal application, he had informed the clerk who interviewed him that he had been a member of the Nazi Party and that he did not observe the negative answer after the formal application had been typed.
18 U.S.C. 80 (act of March 4, 1909, as amended) provided, in part, as follows:
* * * or whoever shall knowingly and willfully falsify or conceal or cover up by any trick, scheme, or device a material fact, or make or cause to be made any false or fraudulent statements or representations, * * * in any matter within the jurisdiction of any department or agency of the United States * * * shall be fined not more than $10,000 or imprisoned not more than ten years, or both.
In Matter of S----, 56152/593, 2 IN Dec. 225, decided December 9, 1944, we held that a conspiracy to violate 18 U.S.C. 80 involved moral turpitude. That section includes several crimes and it is possible that some do not involve moral turpitude. Without the record of conviction and without information as to the precise clause of 18 U.S.C. 80 the respondent was convicted of violating, we cannot determine definitely whether the crime, of which he was convicted, involved moral turpitude. However, at the oral argument, the respondent's counsel was of the opinion that exercise of the 7th proviso would be necessary to waive the crime and in view of our previous ruling in Matter of S----, supra, we will assume that the respondent's crime involved moral turpitude.
The respondent has lived continuously in the United States since 1926. He was married in 1930 and his wife was naturalized in 1947. He has no criminal record with the exception of the conviction for violation of 18 U.S.C. 80 for which he was sentenced in 1945 to 18 months' imprisonment. The offense itself was committed in 1942. An independent investigation was entirely favorable to the respondent. After careful consideration of the record, we conclude that this case merits the exercise of the 7th proviso. Accordingly, the following order will be entered.
Order: It is ordered that the outstanding order of deportation be withdrawn and the alien be permitted to depart from the United States voluntarily without expense to the Government, to any country of his choice, within such period of time, in any event not less than 6 months, and under such conditions as the officer in charge of the district deems appropriate.
It is further ordered that preexamination be authorized.
It is further ordered that if the alien applies for admission to the United States within 90 days after his authorized departure, he be admitted under the 7th proviso to section 3 of the Immigration Act of 1917, if otherwise admissible than as one who has been convicted of or admits the commission of a crime involving moral turpitude, to wit: Violation of 18 U.S.C. 80 in 1942, subject to revocation in the discretion of the Attorney General, after hearing, if the alien hereafter commits any crime.
It is further ordered that if the alien does not depart from the United States in accordance with the foregoing, he be deported pursuant to law on the following charge:
The Immigration Act of May 26, 1924, in that, at the time of entry, he was an immigrant not in possession of a valid immigration visa and not exempted from the presentation thereof by said act or regulations made thereunder.