Opinion · United States Board of Immigration Appeals
IN THE MATTER OF M----, 3 IN Dec. 777 (BIA 1949)
IN THE MATTER OF M----. In EXCLUSION Proceedings., 3 I. & N. Dec. 777 (Board of Immigration AppealsExecutive Office for Immigration ReviewU.S. Department of Justice 1949)
- Type
- Opinion
- Court
- United States Board of Immigration Appeals
- Jurisdiction
- Federal
- Date
- 1949-12-14
- Topic
- general
IN THE MATTER OF M----, 3 IN Dec. 777 (BIA 1949) IN THE MATTER OF M----. In EXCLUSION Proceedings. A-7243168Board of Immigration AppealsExecutive Office for Immigration ReviewU.S. Department of Justice Decided by Central Office November 8, 1949Appeal Dismissed by Board December 14, 1949 Excludability — Ground of past membership in proscribed organization — Section 1 (c) and section 1 (e) of the act of October 16, 1918, as amended — Temporary exclusion under 8 C.F.R. 175.57 — Later hearing before a Board of Special Inquiry (8 C.F.R. 175.57 (b)) — Evidence re the Labor Progressive Party of Canada (from at least November 1943 to November 1945) — Burden of proof in exclusion proceedings. 1. Where an officer of this Service has temporarily excluded an alien under the provisions of 8 C.F.R. 175.57 because the alien's entry was deemed prejudicial to the public interest (within one of the categories set forth in 8 C.F.R. 175.53), a hearing before a Board of Special Inquiry may be directed under 8 C.F.R. 175.57 (b) to determine the alien's admissibility to the United States. 2.
Citator
UpLaw has not yet analyzed IN THE MATTER OF M----, 3 IN Dec. 777 (BIA 1949). The absence of a flag is not a finding that it is good law.
IN THE MATTER OF M----,3 IN Dec. 777(BIA 1949)
IN THE MATTER OF M----. In EXCLUSION Proceedings.
A-7243168
Board of Immigration Appeals
Executive Office for Immigration Review
U.S. Department of Justice
Decided by Central Office November 8, 1949
Appeal Dismissed by Board December 14, 1949
1. Where an officer of this Service has temporarily excluded an alien under the provisions of 8 C.F.R. 175.57 because the alien's entry was deemed prejudicial to the public interest (within one of the categories set forth in 8 C.F.R. 175.53), a hearing before a Board of Special Inquiry may be directed under 8 C.F.R. 175.57 (b) to determine the alien's admissibility to the United States.
2. Where the alien admitted membership in the Labor Progressive Party of Canada from 1943 to date, and this organization was the "Communist Party of Canada," the documents introduced by the Government and the testimony of a Government witness regarding this party during the witness's membership from November 1943 to November 1945, may constitute a proper basis for finding that this party, from at least November 1943 to November 1945, advocated the overthrow by force and violence of the Government of the United States, where the alien has failed to introduce any affirmative evidence into the record on this point, such as to outweigh the evidence adduced by the Government.
3. The uncontroverted evidence of distribution of literature by this party from at least November 1943 to November 1945, which literature has been held to advocate the overthrow by force and violence of the Government of the United States, sufficiently establishes the proscribed nature of this organization for the period stated (act of 1918, as amended) as a distributor and possessor for distributing such literature.
4. In exclusion proceedings, the burden of proof is upon the alien to establish admissibility under section 23 of the Immigration Act of 1924.
EXCLUDED:
Act of 1918, as amended — Member of organization that advocates the overthrow by force or violence of the Government of the United States.
Act of 1918, as amended — Member of an organization that distributes or has in its possession for the purpose of distribution, any written or printed matter advocating the overthrow by force or violence of the Government of the United States.Page 778
BEFORE THE CENTRAL OFFICE
The appellant admits membership in the Labor Progressive Party of Canada from November 1943 to the present time. The sole issue in this case is whether the Labor Progressive Party is an organization of the kind described by the act of October 16, 1918, as amended. If the Labor Progressive Party is held to be an organization proscribed by that act, the appellant, an admitted member thereof, must be found inadmissible to the United States; if not, the appeal must be sustained and her admission authorized.
The appellant, when asked whether she had ever belonged to the Communist Party of Canada, replied without equivocation, "The Labor Progressive Party is the Communist Party of Canada." She further stated that the Labor Progressive Party is headed by the same persons and officers who formerly headed the Communist Party of Canada; and that it continues to carry out the aims, principles, and objectives of the former Communist Party of Canada.
To establish the aims and principles and the nature of the organization known as the Labor Progressive Party of Canada, the Government presented a witness who was previously a member of both the Communist Party and the Labor Progressive Party of Canada and, in addition, introduced into evidence the documents numbered exhibits 1 to 5 inclusive.1
A---- W---- W----, Jr., testified that he joined the Communist Party of Canada in 1934; and that from 1937 until August 1943 hePage 779was a member of the National Committee of the Communist Party.2He further testified that in 1940 the Communist Party in Canada was declared to be illegal and went underground; that the party leadership thereupon reached a decision to form a new organization which would operate under another name as a front for the Communist Party; that meetings were called by Tim Buck, the general secretary of the Communist Party of Canada, for the purpose of planning the mechanics of creating the new organization; that in August 1943, the Labor Progressive Party emerged as a front for the Communist Party. The witness also stated that he joined the Labor Progressive Party about the beginning of 1944, upon instructions from an official of the Communist Party, and he remained a member of the Labor Progressive Party until the middle of November 1945.
The testimony, as given both by the appellant and by the witness, clearly establishes the fact that since 1943 the Communist Party in Canada has operated under the name of the Labor Progressive Party. The witness also stated that the Communist Party of Canada had been affiliated with the Communist International; that the Communist International was dissolved during the war; that a world-wide organization of Communist parties thereafter came into being under a disguised form; and that the Labor Progressive Party was affiliated with the Communist Party in other countries.3The witness further testified that the aims and objectives of the Labor Progressive Party were directed toward the forcible overthrow of the constituted government of Canada and the replacement of the present Canadian Government with a Soviet form; but that these objectives were directed generally toward all capitalist States, including the United States, which is regarded by all Communist parties as one of the most powerful capitalist countries.
The witness identified exhibits 1 to 4 inclusive, as documents which were circulated and distributed by the Labor Progressive Party from November 1943 to November 1945, and which reflected the aims and principles of the Labor Progressive Party during that same period of time. These documents were entered into evidence without objection by the appellant, who testified that she had herself read a great deal of Communist literature, including the Communist Manifesto,Page 780Foundations of Leninism, and Left Wing Communism, and further, that she believed in Marxist — Leninist principles as advocated by the Communist Party of Canada.
The teachings of Marx, Engels, Lenin, and Stalin, as contained in exhibits 1 to 4 inclusive, have as a basic premise the doctrine of forceful and violent overthrow of capitalist governments throughout the world (Matter of H----,A-5300756 (B.I.A. May 13, 1949);Matter of O----,A-4690122 (B.I.A. Sept. 13, 1949)). An organization which is shown to have circulated and distributed literature embodying Marxist — Leninist teachings and whose aims and principles are identified therewith4must necessarily be held to fall within the purview of the act of October 16, 1918, as amended.
InMatter of D----,56068/819 (A.G., Mar. 18, 1948) andMatter of P----,55977/103 (B.I.A., May 25, 1948), the fact that the Labor Progressive Party of Canada distributed the Communist Manifesto was held sufficient to justify the finding that it was an organization which distributed literature advocating the violent overthrow of the Government of the United States. In the cited cases, orders of exclusion, based on membership in the Labor Progressive Party, were sustained on 1918 act grounds. The evidence of record in the instant case is stronger on the distribution charge and goes further in that the Labor Progressive Party is shown to be an organization which not only distributed proscribed literature but advocated and taught the principles contained therein. While it is recognized that the Labor Progressive Party has been concerned primarily with the situation in Canada, its ties with other Communist parties and its espousal of Marxist — Leninist principles necessarily invested it with the duty and obligation of advocating the violent overthrow of all anti — Communist or capitalist States, as part of a world-wide revolutionary movement.
No discussion has yet been had of exhibit 5, Program of the Labor Progressive Party. This document criticizes capitalist rule and urges the establishment of socialism in Canada, but "categorically denounces force and violence as a means of imposing any form of government or economic system upon the Canadian people." If this statement were to be accepted on its face, it would be necessary to consider or explain its apparent inconsistency with the doctrine of force and violence as contained in exhibits 1 to 4, inclusive. However, when it is recalled that the Labor Progressive Party emerged on the political scene onlyPage 781after the Communist Party had been declared to be an illegal organization, it is not surprising that the new party assumed a cloak of legality. On this point, the witness offered the following explanation:
Q. How were you taught that this change was to be accomplished with regard to the Labor Progressive Party?
A. The only way that it could be accomplished we were taught was by violent overthrow of the government. That does not mean to say in some of its public declarations that the Communist Party of Canada and the Labor Progressive Party make * * * they intend to do this by the ballot but that is not what they teach the party members. As a matter of fact the Communist Party is particularly vigilant in its own respect to make sure that its members and adherents don't fall for that propaganda (p. 18).
The circumstances under which the Labor Progressive Party was organized as a successor to the outlawed Communist Party and the fact that it circulated and distributed literature advocating violent revolution support the conclusion that its disavowal of force and violence, as expressed in exhibit 5, was only for the purpose of permitting it to operate on the surface as a legal political party.
Under section 23 of the Immigration Act of 1924 the applicant in an exclusion proceeding has the burden of proof of establishing his admissibility to the United States; the burden never shifts and is always on the applicant; and where the evidence is of equal probative weight, the party having the burden of proof cannot prevail.Matter of H----,A-9682749 (B.I.A., 1947)). In the instant case, it must be noted that not only has the appellant failed to introduce any affirmative evidence into the record but that the Government, on the other hand, has presented uncontroverted affirmative evidence to show that the Labor Progressive Party is a proscribed organization. It is manifest, therefore, as required by law. She is properly excludable under the act of October 16, 1918. as amended.
The testimony by the witness relating to the Labor Progressive Party has been directed specifically toward the period beginning November 1943 (when the appellant joined the party) and ending November 1945 (when the witness terminated his membership therein). Our findings with respect to said organization must, therefore, be confined to the same period, although it might be permissible to indulge in the presumption that an organization continues to teach and advocate the same principles. (SeeKjarv.Doak,61 F. (2d) 566, (C.C.A. 7, 1932).) However, it is pointed out that an alien's inadmissibility into the United States under the act of 1918, as amended, is not necessarily determined by present membership in or affiliation with a proscribed organization but that evidence of alien's membership at any time in the past in a proscribed organization is sufficient under the statute to bar that person from the United States.Page 782
"Affiliation," as it appears in the first ground of exclusion, should be deleted, since "membership" is specifically established. The second ground of exclusion is sustained with reference to the circulation and distribution of proscribed literature, the evidence of record being insufficient to sustain so much of the charge as relates to the writing, publishing, printing, and display of proscribed literature. It would be incorrect to hold that the Labor Progressive Party is an organization which teaches opposition to all organized government or which advocates the violent overthrow of all forms of law, or that it distributes literature of this content, since no evidence has been presented to show that it favors disturbing thestatusquoin the Soviet Union.Findings of Fact:Upon the basis of the evidence presented, it is found:
(1) That the appellant is an alien, a native of New Zealand and a citizen of Canada;
(2) That the appellant seeks admission to the United States as a temporary visitor for pleasure for a period not to exceed 2 weeks;
(3) That the appellant has been a member of the Labor Progressive Party of Canada from November 1943 to the present time;
(4) That the Labor Progressive Party, from at least November 1943 to November 1945, was an organization that believed in, avised, advocated, and taught the overthrow by force and violence of the Government of the United States;
(5) That the Labor Progressive Party, from at least November 1943 to November 1945, was an organization that circulated and distributed, and caused to be circulated and distributed, and had in its possession for the purpose of circulation and distribution printed matter advising, advocating, and teaching the overthrow by force and violence of the Government of the United States.Conclusions of Law:Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 1 (c) of the act approved October 16, 1918, as amended, the appellant is inadmissible to the United States, in that she has been a member of an organization, to wit: The Labor Progressive Party of Canada, that believes in, advises, advocates, and teaches the overthrow by force and violence of the Government of the United States;
(2) That under section 1 (e) of the act approved October 16, 1918, as amended, the appellant is inadmissible to the United States, in that she has been a member of an organization, to wit: The Labor Progressive Party of Canada, that circulates and distributes, and that causes to circulate and distribute and thatPage 783has in its possession for the purpose of circulation and distribution, printed matter advising, advocating, and teaching the overthrow by force and violence of the Government of the United States.Other Factors:There are no factors in the case which would justify any action other than affirming the order of exclusion.Recommendation:It is recommended that the excluding decision of the Board of Special Inquiry be affirmed.So ordered.
- Exhibit 1, The Communist Manifesto, by Karl Marx and Friedrich Engels; exhibit 2, State and Revolution, by V.I. Lenin; exhibit 3, Left Wing Communism: An Infantile Disorder, by V.I. Lenin; exhibit 4, Foundations of Leninism; by Joseph Stalin; exhibit 5, Program of the Labor Progressive Party. ↩
- The witness was also trade union director for ward 5, section committee of the Communist Party in Toronto from 1937 until the party went underground in 1940. He held no official position in the Labor Progressive Party other than administering a night school operated by that organization. In June 1945, he contested the Federal constituency of West York in the name of the Labor Progressive Party. ↩
- "It is common knowledge that the Communist Party, in whatever country it exists is under the authority and control of the party heads in the Soviet Union."Eislerv.U.S.,(C.A., D. of C. Apr. 18, 1949). ↩
- Thus the doctrines of Marx, Engles, Lenin, and Stalin have constituted the very basis upon which the Communist movement was founded throughout the world, the very basis upon which it operates at the present time * * * advocacy of overthrow of government by force and violence is an organic and inescapable part of these doctrines." House Report No. 1920, Committee on Un — American Activities, House of Representatives, 80th Cong., 2d sess. ↩