A-6983112
Decided by the Board January 23, 1953 Commissioner's Motion February 10, 1953 Motion denied by the Board April 16, 1953 Attorney General's approval of Board's order August 19, 1953
Communist Party of England — Membership prior to entry by reason of infatuation held not to be voluntary — Eligibility for suspension of deportation under section 19(c) of the Immigration Act of 1917, as amended.
A person who joined the Communist Party of England in 1942 by accepting a Communist Party card and paying dues of a shilling for 2 or 3 years without any participation in the activities of the Communist Party or any realization of the nature of that organization was not a voluntary member of such organization where it appears that the membership was accepted solely for the purpose of pleasing a fiance with whom she was infatuated and was terminated upon the termination of the infatuation. She is, therefore, not deportable under the Act of October 16, 1918, as amended, and is eligible for suspension of deportation pursuant to section 19(c) of the Act of 1917, as amended. The holding in this case is confined to its own facts which would arise only in rare instances and is not to be regarded as laying down broad rules or generalizations.
CHARGES:
Warrant: Act of 1924 — Remained longer — visitor.
Lodged: Act of October 16, 1918, as amended — Before entry, alien was member of Communist Party of England.
BEFORE THE BOARD
(January 23, 1953)
Discussion: The case comes forward on appeal from an order dated September 26, 1952, of the hearing officer directing that the alien be deported on the warrant and lodged charges stated above.
Discussion as to Deportability: The record relates to a native and citizen of England, 35 years old, female, who last entered the United States at the port of Niagara Falls, N.Y., on November 28, 1947, by bus, and was admitted as a temporary visitor returning from a brief absence to Canada of 2 or 3 hours' duration. This entry could not be verified. She had first entered the United States at the port of New York on August 19, 1947, ex SS. Marine Jumper, as a nonimmigrant visitor for business until August 19, 1948. She has never been granted an extension of the time for which she was admitted and has remained longer than permitted without authorization. She has never been previously admitted to the United States for lawful residence. It is concluded that the record sustains the ground of deportability set forth in the warrant of arrest. The alien testified that she was evacuated to Ely, England, about 70 miles from London, during the Second World War. While there, she became infatuated with a young British soldier. She testified that he reproved her for leading a "butterfly" existence and under his domination and instigation joined an organization known as the "Russia Today Society," which was sympathetic with the plight of the Russian people who at that time were allies in the war against Nazi Germany. While attending a meeting of the Russia Today Society in 1942, she was given a card by one J---- W---- with the request that she give a shilling. Respondent stated that she complied with this without paying much attention to the card. The woman who gave her this card told her that it was at the request of the respondent's soldier boy friend and rather than make an issue of the matter she accepted and kept the card in order to please him. She later paid additional amounts of a shilling during the period of 1942 to 1943 or 1944 and came to realize that this card apparently was a membership card in the Communist Party. Respondent testified that she herself had actually never attended any Communist Party meetings to her knowledge; that she never heard any discussion of Communist ideology or philosophy; that she was ignorant of the nature of the Communist Party; that she never distributed any subversive or Communist literature or books; that she had never read any Communist Party literature; and that she herself never believed in the Communist philosophy or ideology and believes in the democratic form of government which exists in England and in the United States.
The question to be resolved is whether this casual acceptance of a Communist Party card and paying dues of a shilling for a comparatively short period without any participation in the activities of the Communist Party or any realization of the nature of that organization constitutes voluntary membership under the peculiar circumstances of this case, where it appears that the acts upon which is predicated the charge of membership in the Communist Party were done solely for the purpose of pleasing a fiance and at his instigation. The act of March 28, 1951 (Public Law 14, 82d Cong., 1st sess.) was passed for the express purpose of clarifying certain terms used in the act of October 16, 1918, as amended by the Internal Security Act of 1950, and provides as follows:
That the Attorney General is hereby authorized and directed to provide by regulations that the terms "members of" and "affiliated with" where used in the Act of October 16, 1918, as amended, shall include only membership or affiliation which is or was voluntary, and shall not include membership or affiliation which is or was solely, ( a) when under 16 years of age, ( b) by operation of law, or ( c) for purposes of obtaining employment, food rations, or other essentials of living, and where necessary for such purposes. [Emphasis supplied.]
The specifications referred to in Public Law 14 under ( a), ( b), and ( c), above, indicate what shall not be included in the term "voluntary membership" but is not necessarily exclusive of other forms or types of membership which also do not amount to voluntary membership. Thus, in explaining this amendment, Senator Ferguson stated, 97th Cong.Rec. 2441:
The amendment would exclude all those who were Communists by conviction, what we might call mentally Communists. But it would not exclude those who really, in effect, never have been what I call mentally Communists — those whose Communist affiliation was nominal or involuntary.
Along the same line we find illuminating the comment of Senator Nixon, 97 Cong.Rec. 2441:
Certainly in those instances there are cases of individuals who, for the purpose of obtaining food rations, or by reason of youth or immaturity, or for other reasons involuntarily or unknowingly became members without recognizing the fact of Communist control and the character of the organization.
Throughout the legislative history it was emphasized that this legislation was intended to reaffirm and ratify principles of voluntary conduct which were alleged to have been previously followed by the courts. See House Report 118, Senate Report 111, 82d Cong., 1st sess. Senator McCarran inserted in the record a memorandum discussing the earlier judicial and administrative interpretations of membership and affiliation. He quoted with approval the following language which appeared in Colyer v. Skeffington, 265 Fed. 17, 72 (Mass., 1920):
I accord with what I understand now to be the view of the Department of Labor: that such membership must be a real membership in or an actual affiliation with the proscribed organization * * *. Congress could not have intended to authorize the wholesale deportation of aliens who, accidentally, artificially, or unconsciously, in appearance only, are found to be members of or affiliated with an organization of whose platform or purposes they have no real knowledge.
In view of the language of the statute and the legislative pronouncements it seems unmistakably clear that in Public Law 14 Congress postulated that all conduct which was not, in contemplation of law, voluntary would escape the impact of the Anarchist Act. In this clarifying legislation Congress evidently sought to announce that the severe penalties exacted by the Anarchist Act were to be incurred only as a consequence of free volition and free choice.
Where the elements of fraud, duress, coercion, and incapacity enter into a case, such factors have universally been held to have impaired or negated the effect of voluntary action. Courts have been reluctant to enforce consequences resulting from mistaken action. Cf., Moser v. United States, 341 U.S. 41 (1951). When a plea of fraud, duress, coercion, incapacity, or mistake is raised in order to exculpate a person from the consequences of an act on the ground that such acts were not voluntary, particularly in view of the provisions of Public Law 14 ( supra), the burden of establishing that the acts were not voluntary or that they were deceived is clearly upon the persons raising such defenses and such defenses should be accepted with great caution and only if solidly substantiated. The credibility of such a plea is increased and enhanced in cases where the "membership" was ephemeral and inconclusive without any actual participation in the affairs of the proscribed organization.
Coming back once more to the facts of the instant case, it appears to us that the action of the respondent in this case was so dominated, instigated and influenced by her infatuation for her British soldier boy friend that her actions were not those of her own free volition. This is corroborated by the entire absence of any active participation in the affairs of the proscribed organization, the absence of any attendance of any meetings, and her declared lack of knowledge and ignorance of any of the principles or purposes of the organization. The result we reach in this case that the respondent's membership in the proscribed organization was not voluntary rests upon the unusual circumstances of the case and the conviction that the respondent in this case has borne the burden of establishing that she was so much under the domination and influence of her boy friend that her act was not the consequence of her own free volition but was based upon a vitiating mistake, particularly in view of the fact that her association with the proscribed organization was cursory and casual and expired upon the termination of her infatuation. It is therefore concluded that the lodged charge is not sustained and that the alien is subject to deportation solely upon the charge stated in the warrant of arrest.
Discussion as to Eligibility for Suspension of Deportation:
The alien's husband, whom she married on July 5, 1948, is a native-born citizen of the United States. They have two minor children, both native-born citizens of the United States. The alien and her children are wholly dependent upon the husband for support. He is vice president and assistant treasurer of a tire company and has an average salary of $115 a week. In addition, he receives a portion of the unused profits or surplus amounting to about $5,000 as a result of his ownership of 25 percent of stock in the tire company. He is officer of another corporation and holds 50 percent in real estate owned by the corporation and possesses considerable assets. In the event the alien were deported her husband would be compelled to maintain separate establishments both in the United States and abroad and would be compelled to hire someone to take care of the minor citizens who would be deprived of their mother. It is concluded that deportation of the alien would result in serious economic detriment to the citizen husband and two citizen minor children.
A check of the appropriate local and Federal records reveals no arrest or criminal record. Inquiry has disclosed that the alien has no connection with subversive groups, and has conducted herself as a person of good moral character for more than 5 years past. Witnesses have testified as to her loyalty and attachment to the United States and to her belief in democratic principles of government. On the record, it is concluded that the alien has established eligibility for suspension of deportation.
Order: It is ordered that deportation of the alien be suspended under the provisions of section 19(c)(2) of the Immigration Act of 1917, as amended.
It is further ordered that the order entered by the hearing officer on September 26, 1952, be and the same is hereby withdrawn.
It is further ordered that if during the session of the Congress at which this case is reported, or prior to the close of the session of the Congress next following the session at which this case is reported, the Congress passes a concurrent resolution, stating in substance that it favors the suspension of such deportation the proceedings be canceled upon the payment of the required fee and that the alien be charged to the quota of Great Britain and Northern Ireland.
(February 10, 1953)
Discussion: On January 23, 1953, the Board of Immigration Appeals entered an order granting respondent the privilege of suspension of deportation after finding her deportable solely on the charge stated in the warrant of arrest. In respect to the lodged charge, the Board concluded that respondent's membership in the Communist Party of England was of an involuntary nature, so as to bring her within the exemption contained in the act of March 28, 1951 (Public Law 14, 82d Cong., 1st sess.).
This Service takes the view that the respondent has not established that her membership in the Communist Party of England was involuntary; that she is not entitled to the benefits of the act of March 28, 1951; that she is deportable under the act of October 16, 1918, as amended; and that she is therefore not eligible for suspension of deportation under section 19(c)(2) of the Immigration Act of 1917, as amended. The Service seeks a reversal of the Board's decision on this issue. In the discussion which follows, we shall cover the pertinent facts in the case and set forth the law as we understand it to be.
Respondent is a 35-year-old married female, native of England and subject of Great Britain, who last entered the United States on November 28, 1947, after a temporary visit to Canada for several hours. She had first entered the United States on August 19, 1947, as an exchange teacher and was admitted under section 3(2) of the Immigration Act of 1924 for a period of 1 year. During the period of the Second World War, she was evacuated to Ely, England, about 70 miles from her home in London. While there sometime in the latter part of 1941, she met a young British soldier, A---- B----, with whom she allegedly became infatuated. He remained in Ely for several months and thereafter was stationed elsewhere in England, until sometime in June 1944 when he was moved to the continent, returning to England in the spring of 1945. After his departure from Ely, respondent corresponded with him and saw him on occasions in London when he had leave. This relationship was entirely severed in 1945.
Respondent testified that A---- B---- reproved her for leading an isolated existence, that at his request she joined an organization known as the "Russia Today Society," and she became secretary of this organization which was devoted to aiding the Russian people by raising funds and other means. While attending a meeting of this organization in 1942, respondent was given a card by one J---- W---- who requested payment of 1 or 2 shillings and who informed her that this was being done at the request of respondent's soldier friend A---- B----. Respondent accepted the card in order to please the latter, although realizing that it was a Communist Party card. She is not certain but believes that she affixed her signature to this document. She could not recall whether she signed an application blank for membership in the Communist Party of England. She later paid dues of a shilling or two to J---- W---- on a number of occasions during 1942 until sometime in 1943 or 1944. Other than B----'s remarks concerning her "butterfly existence" and his requests to the respondent from time to time that she join the Communist Party, these two persons did not discuss communism and the topic was not mentioned in their correspondence. Respondent never attended any Communist Party meetings to her knowledge, although she did attend a party with B----, where Communists were present, according to the information supplied by B----. She testified that she was ignorant of the nature of the Communist Party, never listened to any discussion of Communist ideology or philosophy, never distributed any subversive or Communist literature or books, never believed in the Communist philosophy, and never read any Communist Party literature.
The act of March 28, 1951 (Public Law 14, 82d Cong., 1st sess.) provides that the terms "members of" and "affiliated with" were used in the act of October 16, 1918, as amended, shall include only membership or affiliation which is or was voluntary, and shall not include membership or affiliation which is or was solely, ( a) when under 16 years of age, ( b) by operation of law, or ( c) for purposes of obtaining employment, food rations, or other essentials of living, and where necessary for such purposes.
At the beginning of respondent's membership in the Communist Party of England, she was 24 or 25 years of age. She concedes that her membership did not result from operation of law and was not necessary for the purposes of obtaining employment, food rations, or other essentials of living. The Board finds that respondent's membership in the Communist Party was nevertheless involuntary, since it stemmed from her infatuation with and her alleged domination by her "boy friend," A---- B----. Assuming that there was infatuation and domination in this relationship, the issue presented is whether there is justification for concluding that under these circumstances the membership was involuntary within the meaning of the act of March 28, 1951.
The Board of Immigration Appeals refers to various statements made by Congress in connection with the enactment of the act of March 28, 1951. It is true that this legislation was intended to reaffirm and ratify principles of voluntary conduct which were alleged to have been previously followed by the courts. However, a careful review of the language of Public Law 14, its legislative history and the record of proceedings before Congress shows that Congress was motivated in enacting such law by a desire to overcome the strict construction given by the Attorney General to the exclusion and deportation provisions of the Internal Security Act, to the effect that membership of any nature in a proscribed organization was within the contemplation of the act. The amendatory legislation of March 28, 1951, was intended primarily to cover three types of cases, namely, (1) those who belonged to subversive organizations while still very young, (2) those who became members by operation of law and, (3) those who joined to obtain the essentials of living. (See remarks of Senator McCarran, 97 Congressional Record 2370-2371 (82d Cong., 2d Sess.) in explaining the purpose of the bill.) Furthermore, it might be pointed out that in addition to the comments of Senator McCarran which are quoted in the decision of the Board, the Senator also stated (97 Cong. Record 2371):
It would depend on the circumstances in each individual case. If he willingly and intentionally became a Communist, he would be excluded.
In the recent case of Latva v. Nicolls, 106 F.Supp. 658, involving a question of membership in the Communist Party of the United States, Judge Wyzanski had occasion to discuss the statutes which are here under consideration. He stated:
* * * did Congress intend that its legislation should reach those aliens who for a short period, years ago, became technical members of the party without understanding its conspiratorial character, or knowing of its subordination to a foreign power, or subscribing to its doctrines, of violence, defensive or otherwise? The words of the McCarran Act are broad enough to support an affirmative argument * * *.
Referring here to the Internal Security Act of 1950 (Public Law 831, 81st Cong.), amending the act of October 16, 1918.
The inference unfavorable to the alien is strengthened by the limited exception to the wide sweep of the McCarran Act subsequently carved out by the clarifying provisions of the act of March 28, 1951, 8 U.S.C.A., section 137.9. When Congress exempted from deportation the alien who joined the Communist Party under 16, by operation of law, or for purposes of obtaining employment, food rations, or other essentials of living, the legislature plainly marked the limits of its grace.
Similar conclusions were reached by the Board of Immigration Appeals in the Matter of S----, A-1258853, B.I.A. 1951, 1952, 4 IN Dec. 314 and Matter of D----, A-5668628, B.I.A., 1952, 4 IN Dec. 675. In the latter case the Board stated:
Respondent joined to get a certain benefit from the organization. This does not make the membership involuntary in the absence of a showing that the joining was either to comply with the requirements of the State; was necessary for his survival; or was under the compulsion of maintaining a competitive equality in obtaining employment or other essentials of living with the majority (or even a large number of persons engaged in similar occupations).
In the Matter of Y----, A-4512777, B.I.A. 1952, 4 IN Dec. 752, the Board of Immigration Appeals concluded that membership in the Communist Party could be characterized as voluntary, although the individual might neither know nor advocate the principles of the organization. The Board stated that the crucial test was whether the alien knew the identity of the organization he was joining.
In this case, it is indisputable that the respondent was aware that she was joining the Communist Party and that she was paying dues to the same organization. Indeed, it should be emphasized that the subject alien is a well educated person, being a teacher by profession. It appears to us, that the only basis upon which the respondent can be held to have been an involuntary member of the Communist Party is upon a showing that her membership was the result of duress or coercion in the legal sense, of a quality to vitiate the consequences of her actions. Infatuation and domination by a "boy friend" as set forth in the record of this case, seems to us to fall short of duress or coercion. It has been stated that "any amount of persuasion to influence one to exercise his own will to some particular end does not constitute duress." Batavian Bank v. North, 114 Wis. 637, 90 N.W. 1016, 1019 (1902).
In the Matter of V----, VP-372844, 3 IN Dec. 671, 675 (1949) it was necessary for the Board to consider the consequences of membership in the Fascist Party of Italy in 1932. V---- joined the Fascist Party upon the advice of relatives and friends in order to insure his success while he was residing in Italy. He contended that his act in joining the Fascist Party was committed involuntarily under duress. The Board in respect to this contention stated:
Petitioner's situation was purely one of attempting to secure personal advantage and he is now seeking to explain away the consequences, by interposing the defense of duress as the cause of the act of expatriation; but, in the light of the various court cases touching on this question, petitioner's act of joining the Fascist Party cannot be considered as an involuntary act.
The Board furthermore stated:
The responsibility for showing affirmatively facts amounting to excuse rests with the petitioner * * *. A mere statement of the existence of duress will not be deemed as sufficient proof of the allegation, although it will have a certain persuasive value, especially if made contemporaneous with the act of expatriation. In situations of this type, the statement of the party and his actions over a period of years are generally in conflict; and while both actions and words must be considered, actions are more persuasive, since unequivocal acts serve to reveal more accurately the real attitude and intentions of the persons involved.
The evidence of record here does not establish duress. At most, it indicates that respondent in joining the Communist Party, was motivated by her desire to please her soldier friend, A---- B----. Motive must be distinguished from intent. Thus, in dealing with a question involving expatriation, the court of appeals stated in Savorgnan v. United States, 171 F.(2d) 155, 159 (affirmed 338 U.S. 491):
The motive for her conduct is distinguishable from her intent to act as she did. Such motive has no bearing on the determination of this question. Nor is the fact that she was misinformed or mistaken as to the legal consequences of her conduct of any significance here. One cannot avoid the force of a statute by asserting a mistaken conclusion as to its sanctions or effects. If these factors were permitted consideration, the operation of the statute would depend not upon the voluntarily performed act of becoming naturalized in a foreign state, but upon the extent of the legal knowledge and the subjective intention or motivation of the person involved. Such tests cannot be used to determine the operation of the statute.
In summary, the record discloses that respondent willingly and intentionally joined the Communist Party, knowing its identity and paying dues with knowledge of such fact. She was motivated by her desire to please her soldier friend. There is no evidence of duress or coercion. Under the circumstances present in this case, her joining the Communist Party and her continuance therein, were of a voluntary nature within the meaning of the act. Consequently, she is deportable on the lodged charge, as well as on the charge stated in the warrant of arrest and is not eligible for discretionary relief. There is no alternative but to order her deportation from the United States.
Reconsideration of the case is requested together with the withdrawal of the order of the Board of Immigration Appeals dated January 23, 1953, and the entry of an order affirming the decision of the hearing officer for the deportation of respondent on the grounds shown above.
Motion is hereby made that the Board of Immigration Appeals reconsider and withdraw its order of January 23, 1953, and enter an order affirming the decision of the hearing officer for the deportation of the alien on the charges shown above.
(April 16, 1953)
Discussion: The matter comes before us on motion of the Assistant Commissioner dated February 10, 1953, requesting that we reconsider and withdraw our order of January 23, 1953, and enter an order affirming the decision of the hearing officer for deportation of the alien on the charges stated above.
There is no dispute as to the facts which have been fully set forth in our previous order of January 23, 1953, and in the present motion of the Assistant Commissioner. Briefly, the record relates to a native and citizen of England, 35 years old, female, who came to the United States in August 1947 and was lawfully admitted as an exchange teacher. During her authorized temporary stay in the United States she met and fell in love with her present husband. According to counsel, before getting married they decided to make inquiry at the local field office of the Immigration and Naturalization Service at Springfield, Mass., and were assured that it would be entirely proper if they did get married in view of certain procedures which must be followed in order to have the respondent's status adjusted for permanent residence. The couple were married and now have two native-born citizen children. The respondent has now remained in the United States for a longer time than permitted by the terms of her original admission into the United States and is of course deportable on the charge stated in the warrant of arrest.
The main issue is whether the respondent is also deportable on the charge lodged at the hearing that she was before entry a member of the Communist Party of England. This is of particular importance, since if she is found to be deportable on this charge, she will be precluded from adjusting her status either by means of suspension of deportation or voluntary departure and preexamination. The facts upon which the lodged charge is sought to be sustained are fully set forth in our previous order of January 23, 1953, and there appears to be little or no dispute as to the facts. It appears that during the war the respondent was evacuated to Ely, England, near London where she became infatuated with a British soldier who, it turned out, was a Communist. Reproved by him for leading a "butterfly" existence and in order to please her sweetheart, she joined an organization known as the "Russia Today Society" which was sympathetic with the plight of the Russians who it is to be noted were at that time allied in the war against Nazi Germany. While attending a meeting of the "Russia Today Society" in 1942, she was given a card by a girl who indicated that it was done at the behest of her British sweetheart. The respondent accepted the card and also paid a requested shilling. This card was apparently a membership card in the Communist Party of England and the respondent testified that she later paid additional amounts of a shilling during the period of 1942 to 1943 or 1944. She stated that she paid little heed to the card, and made no issue of the matter and that she did this for the purpose of keeping on good terms with her sweetheart. The respondent testified that she never attended any Communist Party meetings to her knowledge; that she never had any discussion of Communist ideology or philosophy; that she was ignorant of the nature of the Communist Party; never distributed any subversive or Communist literature or books, or read any; and that she never believed any Communist philosophy or ideology. This then constitutes the entire case upon which the Assistant Commissioner urges that a finding be made that the respondent was prior to entry a member of the Communist Party of England.
Impressed by the unusual circumstances of this case in which it appeared that the acts of respondent were not conscious, deliberate, purposeful or voluntary because of the domination, instigation, and influence of her British Communist sweetheart and in the light of the legislative history of the act of March 28, 1951 (Public Law 14, 82d Cong.) we arrived at the conclusion that the respondent's membership, if so it could be termed, was the result of a mistake which vitiated the consequences of such conduct and did not come within the purview of voluntary membership as prescribed in the Act of March 28, 1951. The Assistant Commissioner nonetheless urges that respondent willingly and intentionally joined the Communist Party knowing its identity and paying dues with knowledge of such fact, claiming that there is no evidence of duress or coercion and concluding that the membership in the Communist Party was voluntary within the meaning of the act of March 28, 1951. In his memorandum the Assistant Commissioner cites a number of cases which upon examination bear no factual resemblance or similarity to the peculiar facts of this case.
In our order of January 23, 1953, we adverted to the legislative history which accompanied the passage of Public Law 14, and quoted excerpts from Senator Ferguson and Senator Nixon for the purpose of showing the true intent of Public Law 14. The Assistant Commissioner also acknowledges that the legislative history and the record of proceedings before Congress shows that the Congress was motivated in enacting this law by a desire to overcome the strict construction given by the then Attorney General to the exclusion and deportation provisions of the Internal Security Act holding that membership of any nature in a proscribed organization was within the contemplation of the act. It is therefore apparent that Public Law 14 was designed to overcome the evil which had arisen because of the literal application of the words of the Internal Security Act of 1950 assigned by the then Attorney General. In this case, we believe that the Assistant Commissioner has again misguidedly attempted an application of the words of Public Law 14 not consistent with the purpose of this clarifying legislation. In order to illustrate the enlightened purpose behind Public Law 14, we feel that it would be appropriate at this point to quote more fully from the Congressional Record.
Thus, Senator McCarran, the author of Public Law 14, stated that the sole reason for this bill is to be found in the interpretations which were placed on the Internal Security Act of 1950 by the Attorney General, which interpretations were contrary to the great body of law, both court decisions and departmental regulations, between 1918 and 1950. The following colloquy is illuminating on this point:
Idem, pp. 2369-70.
Mr. NIXON. I think so far as the term "membership" is concerned, that when that term was written into the Internal Security Act of 1950, the Congress intended that membership by its very nature should be voluntary.
Mr. McCARRAN. That is correct.
Mr. NIXON. Prior to 1950, "membership" had been interpreted by the Justice Department and by the State Department in exactly that way. Unless membership is voluntary, it was not presumed that a person was a member of a certain organization. After the passage of the act, however, a new interpretation was given, and any membership, even nominal membership, and even though it was the result of duress or various circumstances covered by the amendment which the Senator from Nevada has offered, was held to be membership, was it not?
Mr. McCARRAN. It was so held.
Mr. NIXON. All we are doing by this amendment is to instruct the Department of Justice, in effect, to interpret the word "membership" as it had previously been interpreted prior to 1950, and as the Congress intended and expected it would be interpreted when the law was passed. Is that not correct?
Mr. McCARRAN. It was so considered and was so written into the law by the committee which handled the bill, and by the conference committee as well.
In like vein, Senator McCarran again and again adverted to the purpose of this legislation in the following words:
The Congress did not intend to modify that great body of law [interpretations and court decisions between 1918 and 1950] and the pending bill is framed so as to require the Attorney General, if I may use the word "require," to modify his regulations in order to carry out the spirit of the Congress.
* * * * * * *
* * * let me stress the fact that the phrases "members of" and "affiliated with" had been the subject of administrative and judicial interpretation for many years before they were reenacted by section 22 of the Internal Security Act of 1950.
* * * * * * *
The purpose of the bill, S. 728, is to require the Attorney General to construe this language in conformity with the established judicial and administrative constructions which the Congress relied on when it reenacted, in the Internal Security Act, language identical with that which appeared in the old law.
* * * * * * *
In other words, by this bill we go back to the old, tried, and true construction of the language in question. We say it shall mean what the courts and the Department of Justice construed it to mean, for many years, and what the Congress thought it meant, and intended it to mean, when it was reenacted.
Senator McCarran then proceeded to insert into the Congressional Record a memorandum entitled "Typical Judicial and Administrative Constructions of `Membership' and `Affiliation'". In regard to membership the Senator quoted with approval that passage from the case of Colyer v. Skeffington, 265 Fed. 17 (D.C.Mass., 1920) to which we previously adverted in our original order, in which it was indicated that membership must be a real membership or an actual affiliation with a proscribed organization and that Congress could not have intended to authorize the wholesale deportation of aliens who accidentally, artificially, or unconsciously in appearance only, are found to be members of or affiliated with an organization whose platform or purposes they have no real knowledge. At this point it may be appropriate to remark that certainly the "membership" of the instant respondent, under the peculiar circumstances herein, was artificial or unconscious. In this memorandum Senator McCarran also included the judicial interpretation of affiliation as set forth in Bridges v. Wixon, which contains the following language:
97 Congressional Record, p. 2373 (82d Cong., 2d sess.).
Whether intermittent or repeated, the act or acts tending to prove "affiliation" must be of that quality which indicates an adherence to or a furtherance of the purposes or objectives of the proscribed organization as distinguished from mere cooperation with it in its lawful activities. The act or acts must evidence a working alliance to bring the proscribed program to fruition.
* * * But close cooperation is not sufficient to establish an affiliation within the meaning of the statute. It must evidence a working alliance to bring the proscribed program to fruition.
Along the same line with regard to affiliation the Senator referred to United States v. Reimer, to further demonstrate what was meant:
79 E. (2d) 315 (C.C.A. 2, 1935).
It is enough for present purposes to hold that it [affiliation] is not proved unless the alien is shown to have so conducted himself that he has brought about a status of mutual recognition that he may be relied upon to cooperate with the Communist Party on a fairly permanent basis. He must be more than merely in sympathy with its aims or even willing to aid it in a casual intermittent way. Affiliation includes an element of dependability upon which the organization can rely which, though not equivalent to membership duty, does not rest upon a course of conduct that could not be abruptly ended without giving at least a reasonable cause for the charge of a breach of good faith.
The memorandum also included an administrative interpretation which contains very significant language:
There are definitions of affiliation found in the act of 1918, as amended, but they refer to acts of a conscious and purposeful character. Therefore, although the act states that the definitions of affiliation are not conclusive, at least the act does indicate that a conscious and purposeful type of act is required before one is to be considered affiliated with the Communist Party or other proscribed organization.
Subsequent to the enactment of the act of March 28, 1951, the regulations of the Displaced Persons Commission relating to subversives and undesirables were changed to conform to the concept of voluntary membership, participation, adherence, and advocacy as set forth in Public Law 14. Coming back once more to the facts of the instant case, can it be said that these acts of a young girl in love, performed out of an eagerness to please her sweetheart, and so peripheral in character constituted voluntary membership in the sense of the court decisions and administrative interpretations adverted to by Senator McCarran in the Congressional Record as set forth above! Do the acts of this girl come within the comment of Senators Ferguson and Nixon that the amendment would exclude all those who are Communists by convictions but would not exclude those who never have been mentally Communists, or those who for other reasons (in this case, infatuation) unknowingly became members without recognizing the fact of Communist control and the character of the organization!
8 C.F.R. appendix 702.8(g), (h), (effective April 7, 1951).
97 Congressional Record, pp. 2368, 2369. (82d Cong., 2d sess).
The facts of this case are not even comparable to the facts in Latva v. Nicolls, where the court held that a literal application of the Internal Security Act of 1950 included Latva within the proscribed class despite the favorable factors in the case. It may be pointed out, by way of an aside, that Latva stubbornly declined to testify in the deportation proceedings, whereas this alien has made a full disclosure and a full explanation of all the facts and circumstances surrounding her particular case.
Not by the widest stretch of the imagination can we see in the presence of this alien, married to an American citizen and the mother of two native-born citizen children, a threat to the internal security of this country. The holding in this case is confined to its own facts which would arise only in rare instances, and is not to be regarded as laying down broad rules or generalizations. We reiterate our conclusion that the peculiar facts in this case fail to establish "voluntary" membership as that term has been defined in the act of March 28, 1951, which, as clearly demonstrated by the reports of the legislative history of that act, was intended to overcome the mischief caused by the literal interpretation previously used to administratively construe that term in the Act of October 16, 1918, as amended by the Internal Security Act of 1950 which were intended to be used in the same sense already established by court and administrative decisions. We conclude that the lodged charge has not been sustained and that the case is one worthy of discretionary relief of suspension of deportation.
Order: It is ordered that the motion for reconsideration be and the same is hereby denied.
In accordance with the provisions of section 6.1(h)(iii) of title 8, Code of Federal Regulations, the case is certified to the Attorney General for review of the Board's decision.
(August 10, 1953)
The decision and order of the Board of Immigration Appeals dated April 16, 1953, are hereby approved.