Friday, March 16, 2012

Have you been a member of the Communist or any Other Totalitarian party?

A question of a membership in the Communist party or Other Totalitarian party appears in various immigration applications,such as Form DS-230,Form I-485 and Form N-400; however for the purpose of this article we will only concentrate on application for an immigrant visa and on application for adjustment of status.  
Typically, an immigrant from country controlled by Communist Party or other totalitarian party finds this question challenging. Will an answer “yes” immediately make an applicant inadmissible? According to Immigration and Nationality Act Section 212 (a)(3)(D)(i), in general.-Any immigrant who is or has been a member of or affiliated with the Communist or any other totalitarian party (or subdivision or affiliate thereof), domestic or foreign, is inadmissible, unless qualifying for an exception. The applicant immigrant has a burden of proof to establish that he falls under one of enumerated exceptions. Nevertheless, section 212 (a)(3)(D) provides a few generous exceptions such as for involuntary membership, when the membership or affiliation is or was involuntary, or is or was solely when under 16 years of age, by operation of law, or for purposes of obtaining employment, food rations, or other essentials of living and whether necessary for such purposes, see INA section 212(a)(3)(D)(ii); an exception for past membership, provided that the membership or affiliation terminated at least 2 years before the date of such visa application or 5 years before the date of such application, in the case of an alien whose membership or affiliation was with the party controlling the government of a foreign state that is a totalitarian dictatorship as of such date, and  the alien is not a threat to the security of the United States INA section 212(a)(3)(D)(iii).

In addition, judicially-created rule provides: an exception to inadmissibility in cases where the applicant lacks “commitment to the political and ideological convictions of communism.”  9 FAM 40.34 N5 (March 21, 2008) 

The leading Supreme Court Case on the point is Rowoldt v. Perfetto, 355 U.S. 115 (U.S. 1957). In that case a man fell within the exception, he paid dues to the U.S. Communist Party, attended meetings, petitioned the government related to unemployment laws and the government budget, worked at a party bookstore, and stated that his purpose in joining the party was to get jobs, food, clothes, and shelter for the people. He denied opposing democratic principles, denied any commitment to violence and denied that violence was discussed at  any meetings he attended. His party membership ended only when he was arrested. The Court held that he qualified for the non-meaningful association exception because of his "unilluminating understanding of" party's principles and the "dominating impulse" of his affiliation with the party was "wholly devoid of any political implications".
Thus the Court in Rowoldt held that an alien's connection to Communist party must constitute a meaningful association and that Communist Party membership is not present when the dominating impulse to the affiliation is "wholly devoid of any political implications". See Rowoldt v. Perfetto, 355 U.S. 115 (U.S. 1957) and Matter of Rusin, 20 I&N Dec.128 (BIA) 1989.

In the alternative, if an applicant is not falling under provided exceptions or judicially created rule of “non meaningful association”, an applicant may be eligible for an exception available for close family members, such as parent, spouse, son, daughter, brother, or sister of a citizen of the United States or a spouse, son, or daughter of an alien lawfully admitted for permanent residence, in form of a waiver for humanitarian purposes, family unity and when it is otherwise in the public interest and if the immigrant is not a threat to the security of the United States INA section 212(a)(3)(D)(iv).

The conclusion is when facing a matter of an immigrant applicant who was or is a member or affiliated with Communist party or other totalitarian party, it is crucially important to present all facts of the case to an experienced immigration attorney for detailed case evaluation in order to find if an applicant is qualified for one of exceptions.  

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