A-7421321.
A-7421322, and A-7421323
Decided by Central Office August 16, 1950
Government official, killing of — When "political offense" within the meaning of the 2d proviso to section 3 of the Immigration Act of February 5, 1917 — Crime involving moral turpitude — Premeditated manslaughter (Poland, 1927) — Applicability of exclusion ground under act of October 16, 1918, as amended, relating to killing of government official.
(1) For an offense to constitute an "offense purely political," within the meaning of the second proviso to Sec. 3 of the Imm. Act of Feb. 5, 1917, it must be committed in connection with some action in concert with others (or a common movement) for a political purpose; so that the benefits of this proviso are not deemed available to one who commits the act individually, independently without being connected with anyone else.
(2) Premeditated manslaughter (in Poland in 1927) is an offense which involves moral turpitude.
(3) To sustain an exclusion-charge under the Act of Oct. 16, 1918, as amended, on the ground of the alien's belief in the necessity of assaulting or killing an official of an organized government, it must be found that the assassin was motivated because of the victim's official capacity (the character of his office rather than the personal character of the victim).
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917 — Convicted of and admits crime — homicide (husband).
Act of October 16, 1918, as amended — Believed in the duty, necessity. and propriety of the unlawful assaulting and killing of officers of an organized government (husband).
Discussion: The record relates to a 38-year-old married female and her 42-year-old husband and 7-year-old daughter, all of whom are natives of Poland, who allegedly never acquired citizenship in Poland or any other country and are stateless. The record discloses that the husband entered Germany in 1944 from Poland and departed therefrom in 1945. He remained outside of Germany until March 1949. During the interim he resided in Lichtenstein until July 1946 and then in France until March 1949. He testified that he departed from Germany to avoid falling into the hands of the Russians.
The wife and daughter entered Germany in 1945 and have since resided in that country. Upon their application for classification as displaced persons, the wife was given the characterization of the principal applicant because she qualified under the Act of June 25, 1948, and the husband and child were classified as the accompanying spouse and minor child.
The appellants are in possession of quota immigration visas issued on December 8, 1949, by the American consul at Munich, Germany, under the Displaced Persons Act of June 25, 1948. The passport requirements have been waived by the Department of State.
The husband testified that he was arrested on June 7, 1927, in Warsaw, Poland, and was convicted by a duly constituted court in Poland of the crime of premeditated manslaughter. No record of conviction was introduced into evidence and apparently is unavailable. However two publications were introduced into evidence they being "The Case of Boris Kowerda" published July 15, 1927, and a copy of "Tchasowoj La Sentinelle" of June 15, 1937. The husband stated that he was familiar with the contents of these publications, that they related to him and the incidents which resulted in his arrest and conviction. He further stated that the author had access to the official court records.
The record discloses that on June 7, 1927, the husband in a railroad station at Warsaw, Poland, fired six shots at the officially accredited Ambassador of the Union of Soviet Socialist Republics. One of the shots fired by the husband took fatal effect and resulted in the death of the Ambassador. What purports to be a copy of the official indictment, states that the act was committed with the intention of taking the life of the Ambassador. The husband was convicted of premeditated manslaughter and sentenced to life imprisonment, which was commuted in 1928 to 10 years of hard labor. He testified that he was released from imprisonment on June 15, 1937.
The record discloses that the husband has testified that he took the life of the Ambassador with premeditation and malice aforethought and that he assumed that the section of law under which he was convicted included the premeditated taking of a life. He testified that his act of assassination was committed in furtherance of his desire to overthrow the existing regime and also because his victim was a close associate of Lenin and one of the chief administrators of the Ural District, infamous for his acts of persecution against the Russian people and a direct participant in the execution of the Czar and his family and a member of the Comintern. He further testified as follows:
Q. Did you take the life of W---- solely because he was a member or official representative of the Soviet Government?
A. Yes; but the other facts I have stated helped me make the decision.
Q. At the time you took the life of W----, did you believe in, advise, advocate or teach the unlawful assaulting or killing of any officer or officers, either of specific individuals, or officers generally, of any organized government, because of their official character?
A. I committed this act independently, individually without being connected with anyone else.
On the bases of the foregoing, the board of special inquiry found the husband inadmissible under the act of 1917 as one who has been convicted of and admits the commission of a crime involving moral turpitude, to wit: the taking of the life of another with premeditation and malice aforethought and under the Act of October 16, 1918, as one who believed in the necessity of the unlawful assaulting or killing of a specific individual, official of an organized government because of his official character.
In reference to the ground that he was convicted of and admits the commission before entry of a crime involving moral turpitude, it is noted that the 2d proviso to section 3 of the Immigration Act of February 5, 1917, provides:
That nothing in this act shall exclude, if otherwise admissible, persons convicted, or who admit the commission, or who teach or advocate the commission of an offense purely political.
In order to determine whether or not the husband is entitled to the benefits of this proviso, it must first be ascertained whether he committed an "offense purely political." The 1917 act does not define the clause and the proviso itself gives no indication of what circumstances are necessary to bring an offense within the terms of the clause. There was considerable comment on the floor of the House and on the floor of the Senate concerning the proviso, but the remarks give no clear indication of the legislative intent or the basis upon which a few of the legislators predicated their conclusions that several offenses discussed were or were not political offenses. No court cases have been found interpreting the meaning of the clause.
It appears to be proper, therefore, to consider the construction that has been put upon the meaning of the term "political offenses" appearing in extradition treaties, for which extradition will not be granted. These treaties do not define the term and, except for making provision in some of them that acts against the life of the sovereign or head of a state, or members of his family, shall not be regarded as political offenses, give no indication of its meaning. Black's Law Dictionary, p. 1376, citing 2 Stephen's Criminal Law 70, states that, "as a designation of a class of crimes usually excepted from extradition treaties," the term political offenses "denotes crimes which are incidental to and form a part of political disturbances; but it might also be understood to include offenses consisting in an attack upon the political order of things established in the country where committed, and even to include offenses committed to obtain any political object."
The Stephen's definition was considered in the Castioni case (1 Q.B. 149, 1891), in which extradition was sought on a charge of murder and was refused. The deceased was a member of the State Council of a canton in Switzerland. He was shot to death by the accused, who was one of an armed crowd that broke into the municipal palace. The crowd occupied the palace and a provisional government was set up, which was dispersed by the armed intervention of the Federal government. During the habeas corpus proceedings, one of the witnesses stated that the death was a misfortune, not necessary to the uprising, and some question was raised regarding whether Castioni was motivated by revenge. It had been suggested by Mr. J.S. Mill that "political offense" might be defined as any offense committed in the course of or furthering of civil war, insurrection, or political commotion. Reference had also been made to the Stephen's definition, which is quoted in the Court's comments below, suggesting that criminals were not to be surrendered up for extradition crimes if those crimes were incidental to and formed a part of a political disturbance.
Judge Denman stated:
I do not think it necessary or desirable that we should attempt to put into language in the shape of an exhaustive definition exactly the whole state of things, or every state of things which might bring a particular case within the description of an offense of a political character. I wish, however, to express an opinion as to one matter upon which I entertain a very strong opinion. That is, that if the description given by Mr. John Stuart Mill were to be construed in the sense that it really means any act which takes place in the course of a political rising without reference to the object and intention of it, and other circumstances connected with it, I should say that it was a wrong definition and one which could not be legally applied to the words used in the acts of Parliament.
Sir Charles Russell suggested that "in the course of" was to be read with the following words, "or in furtherance of," and that "in furtherance of" is equivalent to "in the course of." I cannot quite think that this was the intention of the speaker, or is the natural meaning of the expression; but I entirely concur with the observation of the Solicitor General that in the other sense of the words, if they are not to be construed as merely equivalent expressions, it would be a wrong definition. I think that in order to bring the case within the words of the act and to exclude extradition for such an act as murder, which is one of the extradition offenses, it must at least be shown that the act is done in furtherance of, done with the intention of assistance, as a sort of overt act in the course of acting in a political matter, a political rising, or a disturbance between two parties in the state as to which is to have the government in its hands, before it can be brought within the meaning of the words used in the act * * *. Then it is reduced to the question of whether, upon the depositions sent over and upon the depositions before the magistrate and upon the fresh facts, if there be any, which are brought before us on the affidavits, we think that this was an act done, not only in the course of a political rising, but as part of a political rising. Here I must say at once that I assent entirely to the observation that we cannot decide that question merely by considering whether the act done at the moment at which it was done was a wise act in the sense of being an act which the man who did it would have been wise in doing with the view of promoting the cause in which he was engaged. I do not think it would be at all consistent with the real meaning of the words of the statute if we were to attempt so to limit it * * *. The question really is, whether, upon the facts, it is clear that the man was acting as one of a number of persons engaged in acts of violence of a political character with a political object, and as part of the political movement and rising in which he was taking part * * *. I have carefully followed the discussion as to the facts of the case, and if it were necessary I could go through them all one by one, and point out, I think, that, looking at the way in which the evidence was given, and at the evidence itself, there is nothing in my judgment to displace the view which I take of the case, that at the moment at which Castioni fired the shot the reasonable presumption is, not that it is a matter of absolute certainty (we cannot be absolutely certain about anything as to men's motives, but the reasonable assumption is that he, at the moment knowing nothing about Rossi, as far as we know, fired that shot — that he fired it thinking it would advance, and that it was an act which was in furtherance of, and then intended it to be in furtherance of, the very object which the rising had taken place in order to promote, and to get rid of the Government, who, he might, until he had absolutely got into the place, have supposed were resisting the entrance of the people to take that place.
In the same case, Judge Hawkins also took occasion to point out that he would not regard as a political offense a murder committed during a political rising by a person who was motivated by a desire for private revenge or for the purpose of doing injury to another. As to what constitutes a political offense he stated:
I have thought over this matter very much indeed and I have thought whether any definition can be given of the political character of the crime — I mean to say, in language which is satisfactory. I have found none at all and I can imagine for myself, none so satisfactory and, to my mind, so complete as that which I find in a work which I now have before me and the language of which, for the purpose of my present judgment, I entirely adopt, and that is the expression of my brother Stephen in his History of the Criminal Law of England * * *. "The expression in the Extradition Act ought (unless some better interpretation of it can be suggested) to be interpreted to mean that fugitive criminals are not to be surrendered for extradition crimes, if those crimes were incidental to and formed a part of political disturbances."
Judge Stephen also sitting in the same case cautioned against giving too wide a meaning to his definition and stated that, having given his view upon the interpretation to be placed on the act, he had nothing to add to it.
According to the Castioni case ( supra), therefore, a political offense is an offense incidental to and forming a part of a political disturbance. "Accepting the court's definition [in the Castioni case] as embodying the general view entertained on the subject as to what constituted political crime, we find that two conditions must concur to bring the act, otherwise criminal, within the exemption. These conditions are: ( a) The existence of political revolt or disturbance; ( b) the fact that the act in question was incident to and formed a part of such disturbance." (Coudert, Proceedings American Society of International Law, 1909 p. 134).
In a later case ( In re Meunier, 2 Q.B. 415 (1894)), extradition was granted of an anarchist who had blown up a barracks. The court in that case stated:
It appears to me that, in order to constitute an offense of a political character, there must be two or more parties in the state, each seeking to impose the government of their own choice on the other, and that, if the offense is committed by one side or the other in pursuance of that object, it is a political offense, otherwise not. In the present case there are not two parties in the state, each seeking to impose the government of their own choice on the other; for the party with whom the accused is identified by the evidence, and by his own voluntary statement, namely, the party of anarchy, is the enemy of all governments. Their efforts are directed primarily against the general body of citizens. They may, secondarily and incidentally, commit offenses against some particular government; but anarchist offenses are mainly directed against private citizens * * *. I am of the opinion that the crime charged was not a political offense within the meaning of the Extradition Act.
With reference to the Meunier case ( supra), Deere commented:
The rise of terroristic crimes in recent years, however, has met the disapproval of the United States as well as of Great Britain, but there is no United States case corresponding to the Meunier case in Great Britain * * *. In denying a political character to the offense, Justice Gave said: "In order to constitute an offense of a political character, there must be two or more parties in the state, each seeking to impose the government of their own choice on the other, and * * * if the offense is committed by one side or the other in pursuance of that object, it is a political offense, otherwise not." Obviously, this definition was directed against anarchists and although it has been criticized as unduly restrictive, there was apparently no intention to supplant or modify the Castioni case, in which the formula was certainly broad enough to cover any relative political offense.
The definitions appearing in the Castioni case were considered in the case of the Salvadoran refugees, 62 Fed. 964 (D.C.N.D. Calif., 1894) and 62 Fed. 972. See also 29 American Law Review 1). Extradition was sought in these cases ( a) for the hanging of four persons, who allegedly had not given their assistance in defending the government against a revolt; ( b) for the particularly brutal killing of a fifth person, alleged to be a spy; ( c) for the robbery of a bank, the proceeds of which were allegedly to be used to pay soldiers of the defending forces; ( d) for the shooting of a sixth person, a military officer of the defending forces, who had allegedly gone over to the attacking forces. The offenses were committed during the existence of a state of siege in the country and the progress of actual hostilities between the contending forces, wherein the persons sought to be extradited were seeking to maintain the authority of the then existing government against a revolutionary uprising. They were held to be political offenses, and not extraditable.
Judge Morrow, in deciding the case, cited with approval the Castioni case, stating that the array of distinguished counsel appearing in connection with it and the character of the court commended the case as one of the highest authority. He did not attempt to define a political offense, nor did he specifically adopt any of the definitions proposed. He relied apparently merely upon the similarity of the facts in the two cases:
The opinions of the judges as to the political character of the crime charged against Castioni, upon the facts stated, is exceedingly interesting, but I need only refer to the following passage. Judge Denman says: "The question really is whether, upon the facts, it is clear that the man was acting as one of a number of persons engaged in acts of violence of a political character with a political object, and as part of the political movement and rising in which he was taking part." * * * Applying, by analogy, the action of the English Court in that case to the four cases now before me, under consideration, the conclusion follows that the crimes charged here, associated as they are with the actual conflict of armed forces, are of a political character.
In U.S. ex rel. Giletti v. Commissioner ( 35 F. (2d) 687 (C.C.A. 2, November 4, 1929)), where deportation to Italy was sought for conviction of a crime in the United States and was resisted as an abuse of discretion for failure to permit Giletti to leave for some country other than Italy, the court, in upholding his deportability, stated during the course of its discussion that the offense was "apparently political, for which he could not be extradited." Giletti had killed another Italian in New York, apparently in a brawl between Fascists and anti-Fascists.
The Attorney General of the United States in an opinion (39 Op. A.G. 215), quoted Lord Denman's definition of a political offense in the Castioni case and also the Stephen's definition. He also quoted a proposed definition in a draft Convention on Extradition, prepared by the Harvard Research in International Law. He did not adopt any of these definitions, however, and stated that it was generally agreed that no satisfactory and acceptable definition of the term had as yet been found.
In the Cazo case ( Case of Cazo, I Moore, Extradition 324-325), extradition was sought and refused for murder, assault with intent to commit murder, and robbery, committed by revolutionists during a raid on a town. In the Guerra case ( Case of Guerra, IV Moore, Digest of International Law, 335, 336), extradition was sought and refused for murder, arson, robbery, and kidnapping in connection with an attack by revolutionary forces upon 40 Mexican soldiers in the town of San Ignacio, during the course of which private citizens were also assaulted and robbed and their houses burned and three persons kidnapped. The Ruiz case ( Case of Ruiz, IV Hackworth, Digest of International Law, 50-52), arose out of the same attack.
In the Peuren case, the accused had been a member of a revolutionary party. Extradition was sought for murder and robbery. The United States Commissioner held Peuren to be extraditable. The Secretary of State ordered a new hearing on the ground of new evidence tending to establish that the offenses were political, and extradition eventually was refused (Deere, Political Offenses in the Law and Practice of Extradition, 27 American Journal of International Law, p. 267. See also Foreign Relations of the United States, 1909).
In the Rudewitz case (IV Hackforth Digest of International Law, 49-50), extradition was sought for the murder of three persons and the robbery and burning of their premises. The United States Commissioner for the Northern District of Illinois found against the accused. Extradition was refused by the Secretary of State. The accused was a member of a revolutionary group that had voted the killings and the burning. The Secretary stated:
In view of these facts and circumstances, the Department, after a mature and careful consideration of the evidence so adduced in this case, finds it is forced to the conclusion that the offenses of killing and burning with which the accused is charged are clearly political in their nature, and that the robbery committed on the same occasion was a natural incident to executing the resolutions of the revolutionary group and cannot be treated as a separate offense, certainly not as a separate offense by this man without some specific identification of him with that particular act, and of this there is no evidence * * *. However much the Government of the United States may deplore or condemn acts of violence done in the commission of acts having political purpose, however necessary or unjustified they may be considered, if those acts were in fact done in the execution of such a purpose, there is no right to issue a warrant of extradition therefor.
The Government of the United States finds itself impelled to these conclusions not only by the generally accepted rules of international law which forbid the surrender of political fugitives, by the principles of internal jurisprudence, which, proclaimed and acted upon by the courts of this and other countries, declared that "a person acting as one of a number of persons engaged in acts of violence of a political character, with a political object, and as part of the political movement and rising in which he is taking part" is a political offender and so entitled to an asylum in this country; and by the long and consistent course of rulings in which the executive branch of this Government has expressly adopted and carried out such laws and principles — but also by the express provision of article III of the Extradition Treaty between this Government and Russia, which, in precise terms, prohibits the surrender of political offenders.
In volume II of his work on International Law, Charles Cheney Hyde, formerly the Solicitor for the Department of State, analyzed the circumstances present when a fugitive within the United States whose surrender had been sought by a foreign government had been regarded by the executive or by the judicial department of the United States as a political offender within the meaning of a treaty provision and therefore, had been discharged from custody. He concluded that in every case the following elements had been present:
(1) There had been an uprising of revolutionary origin and purpose, of vast or insignificant proportions, against the demanding government.
(2) The accused had been connected with the movement.
(3) Either the acts charged against the accused had been deemed to be incidental to the movement or the evidence had failed to show that acts committed in the course of the uprising which possibly might not be justly regarded as incidental thereto, had in fact been committed by the accused.
It was his conclusion that, in the absence of an uprising, acts of violence, whether for the purpose of inciting revolution or spreading anarchy, would not be regarded as political offenses under the treaties of the United States.
As far as it has been possible to ascertain, the question of what constitutes a political offense within the meaning of the immigration laws has been considered on very few occasions, both under the 1907 act and under the 1917 act. In the C---- case (53166/24), the former President of Venezuela sought admission into the United States in December 1912, and was excluded in January 1913. The point at issue in the case, which was eventually decided in favor of the alien, was whether C----'s refusal to answer might be construed by the board of special inquiry as an admission of complicity in a killing. It was charged that C----, while President of Venezuela and in full possession of the authority of that country, directed the killing of P----, without trial or hearing of any kind, P---- at that time having been made a prisoner while engaged in a revolt against C----. In a memorandum dated January 30, 1919, Secretary of Commerce and Labor Nagle stated as follows:
Insofar as this phase of the case is to be considered, a further question arises; namely, whether the killing of P---- meets the exception of the statute and is to be regarded as an offense purely political not involving moral turpitude. In extradition cases the decisions seem to hold that the act here in question would be a political offense, although this view has been questioned by high authority. The question is, whether these decisions, rendered under the extradition law then in force, are controlling in this case. Two things must be borne in mind. First, the offense was not committed by a person engaged in revolution against constituted authority. It was committed by the President of the republic in full control of the authority of the State who denied the benefit of the very law which he was charged to preserve. Second, the immigration law was substantially amended in 1903. Up to that time it read, " Provided, That nothing in this act shall be construed to apply to, or exclude, persons convicted of a political offense, notwithstanding said political offense may be designated as a felony, crime, infamous crime, or misdemeanor, involving moral turpitude by the laws of the land whence he came or by the court convicting." The law now reads, " Provided, That nothing in this act shall exclude if otherwise admissible persons convicted of an offense purely political not involving moral turpitude."
Necessarily, force must be given to this amendment, and I cannot assume that any act of violence, committed by the highest authority of the State during a disturbance in disregard of constituted authority, must under all circumstances be regarded as purely political and not involving moral turpitude. If such a conclusion were to be accepted, then burning at the stake, or subjecting a victim to torture, or indeed any offense committed by an official in charge would satisfy the exception, provided the act is committed during political excitement, and against a participant.
In the M---- case (53550/650), the alien who had been convicted of a libel against the King of England sought admission into the United States in December 1912 and was excluded as a person who had been convicted of a crime involving moral turpitude. It was eventually judicially determined that the offense was not one involving moral turpitude, but during the consideration of the question of whether the offense was a political one, Secretary Nagle stated, in part, in a memorandum dated January 16, 1913:
The only question left for discussion is, whether the offense should be regarded as "purely political not involving moral turpitude," and therefore meets the exception in the statute * * *.
I have not found a clear definition of "political offense." The accepted rule seems to be that, to constitute a political offense, it is necessary to show something in the nature of concerted action. Mr. Moore says, "The theory that any offense inspired by a political motive is to be considered as a political offense is now discarded." There must be parties to a political controversy, an uprising or a common movement, as a part of which the offense is committed. When this is true, even a common crime may be regarded as a mere incident to the promotion of a political cause * * *.
In the P---- case the alien had been a leader in the Militant Suffragette movement in England and sought admission to the United States. She had been convicted in England in 1913 of conspiracy to destroy property and incitement to such destruction in connection with her activities in such movement. Her admission was approved with the comment that the offense of which she was convicted was undoubtedly political.
In the S---- case (53956/88 and 2304 C-2223932), the subject entered the United States in 1914 under an assumed name. He subsequently surrendered to the Service in October 1915 and admitted that in 1908 he had shot and killed the Governor of the Province of Galicia. S---- had been a member of a secret revolutionary society that had determined upon the assassination of the Governor for the purpose of improving political conditions affecting the Ukrainians, and he had been selected to carry out, and had carried out, the decision of the group. He was convicted abroad and was sentenced to death. The death sentence was later commuted to imprisonment and he eventually escaped. Assistant Secretary Post, in a memorandum dated December 11, 1915, to the Commissioner General, stated as follows:
Before it becomes mandatorily the duty of the Secretary of Labor to issue a warrant of deportation in this case, he must be satisfied that the case does not fall within that proviso of section 2 of the immigration laws, which reads as follows:
" Provided, That nothing in this act shall exclude, if otherwise admissible, persons convicted of an offense purely political, not involving moral turpitude."
An extremely literal interpretation of this proviso might require the Secretary to expel political refugees who had taken or assisted in the taking of human life as an incident to their pursuit of a revolutionary cause, unless they had done so as recognized belligerents. For upon such an interpretation unlawful homicide, even though clearly political in character, might be considered as being a crime involving moral turpitude. But in the face of our historic policy, which has made this country a refuge for the oppressed of all nations, such an interpretation of the legislative intent would be unreasonable. It would, at any rate, be too doubtful an interpretation at the best to reasonably satisfy the Secretary of Labor that this refugee is not within the political proviso quoted above. The warrant is, therefore, issued and canceled.
In the A---- case (A-4944576), without any discussion, the assassination of the Austrian Prime Minister was held to be a purely political offense within the meaning of the 2d proviso to section 3 of the act of February 5, 1917 (C.O. order March 13, 1943). A---- stated that he had shot and killed the Minister on October 21, 1916, for political reasons, because he had totally suppressed the legal democratic institutions of the country and had illegally set aside the Parliament for 3 years, violating and destroying the constitutional rights and institutions of the Austrian citizens. He further stated that he was sentenced to death for the offense but was later pardoned by the Emperor; that subsequently the Austrian Republican Government revoked all legal consequences of the sentence; and that he was eventually elected to Parliament. There is no indication in the file that the assassination was a part of any concerted movement or uprising.
In the R---- case et al. (A-5326956), the Board of Immigration Appeals held that the offenses of conspiracy to tamper with the motive power of a vessel of foreign registry and damaging the motive power of a vessel of foreign registry were not purely political offenses. The aliens were Italian seamen, who on March 29, 1941, on instructions from their government had damaged a vessel of Italian registry while it was in a port in the United States. The Board rejected the theory that the offenses were political offenses, stating that it was doubtful that political aspects should be attributed to an offense committed against the laws of this country by subjects of a nation with which we were then at peace, and found that the offenses committed were not purely political offenses within the meaning of the Immigration laws.
Thus it appears from the cases cited that in order for an offense to constitute a political one, there must be concerted action for a political purpose. In all the cases cited, with the exception of the A---- case, there appeared to have been such concerted action. The A---- case was decided without any discussion as to the conclusion reached that the act performed by such person was a political offense. In the present case, the husband has testified that he "committed this act, independently, individually without being connected with anyone else." In view of such statement, it cannot be held that the offense committed by the husband was a political offense within the meaning of the 2d proviso to section 3 of the Immigration Act of February 5, 1917. Consequently the husband is not entitled to the benefits of such proviso. The evidence of record establishes that he admitted and was convicted of the commission before entry of a crime involving moral turpitude. The first ground of exclusion urged against the husband is therefore sustained.
In reference to the second ground of exclusion, the applicable provisions of the act of October 16, 1918, are as follows:
SECTION 1. That any alien who at any time, shall be or shall have been a member of any one of the following classes shall be excluded from admission into the United States.
(c) Aliens who believe in, advise, advocate or teach, * * * (2) the duty, necessity or propriety of the unlawful assaulting or killing of any officer or officers (either of specific individuals or of officers generally) of the Government of the United States or of any other organized government, because of his or their official character, * * *.
It is fundamental that to sustain the second ground of exclusion we must find that the husband's belief in the necessity of assaulting and killing the Soviet Ambassador arose because of his official character. The phrase "because of their official character" has been employed to exclude cases where the personal character of the officer in any way motivated the assassin. In other words the office of the individual must be the sole animation ( Matter of de E----, A-6808388 (April 1, 1948)).
In the instant proceeding, the husband was motivated to commit the act as much because of the personal character of his victim as his official capacity. The victim's acts as chief administrator of the Ural District in persecuting the people therein and his participation in the execution of the Czar and his family marked him in the eyes of the husband as one deserving extinction. Moreover the record discloses that the husband is not or was not opposed to all organized government and forms of law but rather his opposition was directed to the particular regime in Russia because of its persecution of his fellow countrymen. It is therefore concluded that the second ground of exclusion urged against the husband is not sustained.
The wife has stated that she did not wish to emigrate to the United States at this time, in the event that a decision is made adverse to the admission of the husband and that she wished her case and that of her child held in abeyance pending final decision in the husband's case. In view thereof, no determination is made in respect to the admission of the wife and child at this time.
Order: It is ordered that the excluding decision of the Board of Special Inquiry be affirmed solely on the ground that the alien is inadmissible as one who has admitted and been convicted of a crime involving moral turpitude, to wit: Homicide.