The opinion
MATTER or P-
In SECTION 245 Proceedings
A-6819635
Decided by Assistant Commissioner April 19, 1959
Adjustment of status—Section 245 of the 1952 act, as amended--None pro tune
exercise of section 212(d)(3) of act to legalize nonimmigrant entry—Grant
of "defector" status to cure present inadmissibility.
Alien who was inadmissible to the United States at time of nonimmigrant
entry in 1947 by reason of prior membership in Communist Party of Czecho-
slovakia is qualified for adjustment of status under section 245 of the act,
as amended, upon discretionary exercise none pro tune of waiver under
ocction 212(4) (3) or the act and finding of present eligibility for "defector"
status under section 212(a) (28) (I) (ii) of the act.
Airmanknot: For the benefits of section 212(a) (28) (I) (11) of the Immigra-
tion cola Nation...1;4y ,so, ;MU waiver miner section 212( d) (3)
of the Immigration and Nationality Act, in connection with
adjustment of status under section 245, as amended, of the
Immigration and Nationality Act.
BEFORE TILE ASSISTANT COMMISSIONER
Discussion: The applicant is a single male, aged 58, a native of
Czechoslovakia, now stateless, whose only entry into the United.
States was at the port of New York on December 10, 1947, as a,
passenger on the SS. Queen Al (Try. He was then admitted tempo-
rarily until October 30, 1948, as a student under section 4(e) of the
immigration Act of 1924. He entered under the auspices of the
Rockefeller Foundation as a -research fellow and intended to return
to Czechoslovakia, where he owned and maintained his residence,
upon the completion of his studies. He did research work in eco-
nomics at the Institute for Advanced Study, Princeton, and at
Harvard University. In February 1948, he heard of the "coup
d'emt" by the Communist, Party hi his native country, and then
decided not to return to that country.
The alien has been the subject of various proceedings before this
Service, records of which are incorporated in the current proceeding.
On October 19, 1948, he filed an application for adjustment of status
under section 4 of the Displaced Persons Act of 1948 which was
denied February 13, 1952, for the reason that he was inadmissible
under section 1(2) (C) of the Act of October 16, 1918, because of
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prior membership in the Communist Party of Czechoslovakia. On
December 13, 1954, a warrant of arrest in deportation proceedings
was issued on the charge that at the time of entry he was excludable
we an HEAT who had been a member of the Communist Party of
Czechoslovakia. The special inquiry officer in this order of April 11,
1955, found the charge sustained, granted voluntary departure with
an alternative order of deportation in the event respondent failed
to comply with the voluntary departure provision. The decision
became final when an appeal was dismissed by the Board of Immi-
gration Appeals on August 4, 1955. A warrant of deportation was
issued on March 19, 1931, and the respondent phreed on nutlet, of
intended deportation to Czechoslovakia. Subject filed on October 14,
1957, an application for a stay of deportation under section 243(h)
of the Immigration end Nationality Act, alleging he world he sub-
ject to physical persecution because of his anti-Communist activity.
After interrogation, the special inquiry officer on December 27, 1957,
recommended that deportation to Czechoslovakia be withheld indefi-
nitely, and this recommendation was approved by the Acting Re-
gional Commissioner on March 4, 1958.
The applicant is an associate professor of economics at Ricker
College, Houlton, Maine. That institution filed a visa petition in
his behalf under section 203(a) (1) of the Immigration and Nation-
ality Act which was approved on May 20, 1958.
Subsequent to the amendment. of section 215 of the 1052 act by tho
Act of August 21, 1958 (72 Stat. 699), the current application was
filed. An immigrant visa appears to be immediately available to
the applicant and he has established that he is a person of good
moral character. It remains to be established whether he may be
considered to have been lawfully admitted to the United States as
a bona fide nonimmigrant and whether he is presently admissible to
the United States for permanent residence.
. His admission as a nonquota immigrant under section 4(e) of the
Immigration Act of 1924 can properly be considered an admission
as a nonimmigrant (Hatter of H , 6 I. & N. Dec. 458). He has
clearly established that, at time of entry, it was his intention to
return to Czechoslovakia. Consequently, he was a bona fide non-
immigrant at time of entry. However, he was inadmissible at that
time under the provisions of section 1(2) (C) of the Act of October
16, 1918, as amended by the Act of June 28, 1940, by reason of his
prior membership in the Communist Party of Czechoslovakia. There
is no indication that the applicant's failure to disclose his prior
Membership when applying for a visa was willful. The ground of
inadmissibility then existing may be waived by the exercise, nuns
pro tune, of the discretionary authority contained in section 212(d)
(3) of the Immigration and Nationality Act (Matter of Al—,
303
A-10296535, Interim Decision No. 990). In view of the meritorious
factors in this case, this relief will be granted. Therefore, his admis-
sion on December 10, 1947, is found to be a lawful admission as a
bona fide nonimmigrant.
The next issue to be considered is whether the applicant can qual-
ify for status as a defector under the provisions of section 212(a)
(28) (I) (ii) of the 1952 act, thereby removing the present ground
of inadmissibility under section 212(a) (28) (C) of the act. To be
eligible for such status the applicant must establish that he is, and
has been for at least the past five years, actively opposed to the
doctrines, programs, principles, and ideology of the Communist
Party, and it must be found that his admission into the United States
would be in the public., interest.
Throughout the proceedings before this Service, aubsequent, to
entry, the applicant has freely admitted that he voluntarily joined
the Communist Party of Czechoslovakia about February 1946; that
he paid dues and held a Party card; and that he terminated his
membership about December 1946. He has maintained, however,
that he has never believed in Communism. His testimony is to the
effect that he was a member of the Central Planning Commission in
Prague; that in 1943 President Benes had signed a pact with Rus-
sia; that following World War H Czechoslovakia was left in the
sphere of Russia ; that in 1946 the Communist Party was one of a
number of parties represented in the coalition government; that the
Communist Party of Czechoslovakia was then a nationalist party;
that the people were led to believe that this Communist Party was a
democratic party and would accomplish reforms by peaceful meth-
ods; that he believed Czechoslovakia, a highly developed country,
could proceed towards socialism in a peaceful way; and that he
further believed that by joining the Party, he could best influence
the future of the country. There was included in the deportation
record "Special Report No. 8 of the Select Committee on Commu-
nist Aggression, House of Representatives, Communist Takeover and
Occupation of Czechoslovakia," which tends to lend credence to sub-
ject's testimony.
The applicant has testified that even before he left the Communist
Party in December 1946, he was openly critical of the program of
the Party; that he wrote critical articles for which he was termed a
traitor by the Secretariat of the Party; and that his divergent views
led to his break with the Party. He states that immediately follow-
ing the Communist coup in his home country, he gave intelligence
information to officials of the United States. In March 1948, he
placed himself at the disposal of the former Czechoslovakian Am-
bassador to the United States, a representative of "true democratic
Czechoslovakia." With his present application he presents, among
other supporting documents:
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1. Copy of series of lectures he delivered at Wichita University entitled
"Method of Social Service which concluded with his statements that Chris-
tian culture is at stake, that America is the last stronghold of Western civili-
zation and that time is running short.
2. Copy of a speech he delivered to a religious council at Wichita university
on January 17, 1950, on the subject, "How Can Christianity Combat Commu-
nism?"
3. Copy of the Summer 1955 issue of "Faith and Freedom, A Journal of
Progressive Religion," published at Manchester College, Oxford, England, con-
taining his article on "Ethics in a Business Society."
4. Notes of a commencement speech he delivered at Lenox School, Lenox,
Massachusetts, in June 1957, in which he warned of the conflict between the
East and the West, and the possibility of a knockout blow to civilization.
The applicant has stated that he lias not been successful in having
articles published in the United States. He testified, however, that
whenever the opportunity arises, in his daily contacts, classrooms,
lectures and speeches, he speaks against Communism. In January
1959, he spoke to a group at the local Methodist church, comparing
Christmas in the West with the "no-Christ" Christmas in present-
day Russia. He has appeared recently on WAGM—TV, Presque Isle,
Maine, on a panel discussion of the "International Look at Com-
parative Educational. Systems" and this panel discussion was re-
peated in four nearby communities.
The records of the various immigration proceedings present a
comprehensive record of the subject's activities in the United States
since his arrival in 1947. Police reports from all places in which
he has lived, and current national agency checks are negative. In-
dependent character investigations conducted in 1949 and 1951 indi-
cated he was definitely anti-Communist and developed no derogatory
information.
The applicant completed a four-year course in law at Charles
University in Prague in 1921 and continued hie studies in philosophy
at that university, except for one year at the University of Sorbonne,
completing the academic work for his Ph. D. degree in 1927. The
Service, in approving the visa petition, determined that his services
were urgently needed in the United States because of his high edu-
cation and experience and would "be substantially beneficial pros-
pectively to the national economy, cultural interests, or welfare of
the United States." Clearly, his admission would be in the public
interest.
It is concluded that the applicant has satisfactorily established
his present eligibility for status as a defector under section 212(a)
(28) (I) (ii) of the act.
Order: It is ordered that the ground of exclusion under section
1(2)(C) of the Act of October 16, 1918, as amended by the Act of
June 28, 1940, existing at the time of the applicant's admission at
the port of New York on December 10, 1947, be waived nuns pro
305
twee under section 212(d) (3) of the Immigration and Nationality
Act.
15 io further ordered that the application for status as a defector
pursuant to section 212(a) (28)(I)(11) of tho Immigration and Na-
tionality Act be granted.
It is further ordered that the application for status as a perma-
nent resident be granted.
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