Interim Decision #1246

Interim Decision #1246

MATTER OF MAZAR

In DEPORTATION Proceedings

A-10425815

Decided by Board August 17,190

Respondent, a native and citizen of Yugoslavia, who obtained her visa by fraud

and misrepresentation in willfully concealing her membership in the Communist

Party of Yugoslavia from 1944 to 1954, is not deportable under section 241(f)

of the Immigration and Nationality Act, as amended, since, apart from her

misrepresentation, she was otherwise admissible at the time of entry, her

Communist Party membership having been involuntary within the meaning

of section 212(a) (28) (I) (I) of that Act because in order to safeguard her

life she joined the Communist Party in response to demands made on her to

join in view of her officer rank in the Yugoslav military forces and her continued service in the Yugoslav army after her marriage and the birth of her

children was because of financial needs; there is an absence of any expression

on her:part of ideological sympathy with the Communist Party, and there is a

lack of any indication that she ever occupied a position of political responsibility in the Communist Party itself.

CHARGES Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)1—Excludable

at time of entry under section 212(a) (19)—Visa obtained by fraud

or by willfully misrepresenting a material fact.

Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)1—Excludable

at time of entry under section 212(a) (28)—Member or affiliated

with the Communist Party of a foreign state, to wit, the Communist

Party of Yugoslavia.

The case comes forward upon certification by the special inquiry

officer of his order dated May 31, 1962, terminating the proceedings.

The record relates to a native and citizen of Yugoslavia, 39 years

old, female, married, who was admitted to the United States for permanent residence on August 9, 1955, upon surrender of a nonquota

immigrant visa issued to her on June 29, 1955. Deportation proceedings were thereafter instituted charging that she was deportable because excludable at time of her entry in that her visa was obtained

by fraud and or misrepresentation in concealing that she had been a

member of the Communist Party of Yugoslavia from January 1944 to

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Interim Decision #1246

about September 1, 1954, and also on the ground that she was excludable by reason of prior membership in the Communist Party of Yugoslavia. After hearing, the special inquiry officer on April 6, 1961,

terminated the deportation proceedings upon a finding that the respondent's membership in the Communist Party of Yugoslavia was

involuntary and, since she was otherwise admissible at the time of

her entry, she was not subject to deportation on the visa fraud charge

because of the provisions of the first portion of section 7 of the Act

of September 11, 1957. Upon appeal by the examining officer the

Board of Immigration Appeals by order dated October 19, 1961, reopened the proceedings for consideration of the case in the light of

the new standard concerning misrepresentation laid down 'by the Attorney General in Matter of 8 am; B (7 , Int. Dee. No. 1168

(October 2, 1961). It was further directed that the decision of the

special inquiry officer be certified to the Board.

The respondent has admitted that she was a member of the Communist Party of Yugoslavia from January 1944 to about September 1,

1954, and that in applying for her immigrant visa she knowingly

and wilfully concealed her previous membership in the Communist

Party of Yugoslavia because she believed the disclosure of that fact

would result in the refusal of an immigrant visa by the American

Consul. She also testified that she concealed such membership in her

application for naturalization because she was afraid of being

deported.

The situation herein is similar to that of the alien S— in Matter

of R and B C , Int. Dec. No. 1168, who likewise concealed Communist Party membership, albeit in Hungary, and who likewise defended such membership on the ground that it was involuntary within

the meaning of section 212(a).(28).(I) (i) of the Immigration and

Nationality Act. The Attorney General held that it was obvious that

disclosure of the alien's Communist Party membership in connection

with his visa application would have raised a serious question as to

the alien's admissibility and would have been likely to lead to further

investigation of the questionof whether his membership was voluntary

or involuntary. The Attorney General stated that he was not required

to decide the question of whether the alien's Communist Party membership was necessary to enable him to obtain employment, food

rations or other essentials of living, or merely convenient in the

sense that it facilitated his obtaining education and bettering his

status in life, since it was obvious that had the alien stated the true

facts in the application for his visa, it would inevitably have lead

to investigation which might have lead to a proper denial of the

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visa. The Attorney General found that the alien's failure to disclose

his Communist Party membership was a material misrepresentation

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which rendered him excludable under section 212(a) (19). However, the charge under section 212(a) (19) is rendered moot in the

instant case because the alien herein, as the spouse and parent of a

United. States citizen husband and minor child, is automatically entitled to the benefits of section 241(f) of the Immigration and Nationality Act, as amended, which provides that the provisions of that

section relating to the deportation of aliens within the United States

on the ground they are excludable at the time of entry as aliens who

sought to procure, or have procured visas or other documentation, or

entry into the United States by fraud or misrepresentation, shall not

apply to an otherwise admissible alien with the family ties that the

respondent possesses.

It therefore becomes necessary to decide whether the respondent is

otherwise admissible. Membership in the Communist Party of Yugoslavia has been admitted. The respondent seeks to excuse such membership on the ground it was involuntary within the meaning of section

212(a) (28), which provides that the alien must establish to the satisfaction of the Attorney General that she falls within this exception 1

The evidence concerning the respondent's membership in the Communist Party of Yugoslavia is predicated upon her own testimony and

the testimony of her husband. The special inquiry officer, as the

trier of the facts, had an opportunity to observe the demeanor of the

respondent and of her husband and to form a proper belief as to their

credibility, and the weight to be attached to their testimony. Even

though the testimony may be said to be in a sense, self-serving, in

view of the finding of credibility, it cannot be lightly ignored. The

respondent has explained the circumstances under which she joined

the Yugoslavian Partisan Army in 1941. At that time, when between

18 and 19 years old, she set forth to look for her younger brother whom

she found with an armed group composed of those who were fleeing

from the UStashi. (Croation Fascists). This was not a regular army

organization because at this period there was no regular national army

existing in Yugoslavia. Her brother urged her to remain with him

and join the group in order to avoid capture by the Ustashi. No political affiliation was necessary in order to become a part of this group.

She testified that she and her brother were the only Slovenians in the

organization, the rest of the group being composed of Serbians.

Thereafter splits developed in the group and she and her brother were

viewed with suspicion by some of the Chetniks in the group and defended by others. She and her brother joined a, group of Chetniks

who broke away from the organization and formed a Partisan force

known as the Crnovrska Ceta. Later larger groups were formed and

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Natter of V—, 8 I. & N. Dec. 554.

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at the end of 1941 all of the groups were incorporated in the National

Army of Liberation under the supreme command of Tito. After

the groups were unified, a chain of command was established and all

those serving in the National Army of Liberation were subject to

military discipline. The respondent was originally a nurse in the

Crnovrska Oda and later became chief of the sanitary or medical unit

of her battalion but held no grade until the beginning of 1944, when

she became a 2nd lieutenant. She was not yet a member of the Communist Party of Yugoslavia at that time.

The respondent testified that while serving in the Partisan forces

she had raised objections to the Communist ideology during lectures

given by the commissar and the commander of her company. In 1943

a critical situation in the Communist Party movement resulted in

liquidation of those not considered trustworthy. She herself was

regarded with suspicion because of the criticism she had voiced. She

had been warned by the youth organization leader to stop' er criticism

lest she be killed and was advised to join the Communist Party to

save her life. Early in 1944 her commanding officer told her that her

position required Communist Party membership. The respondent

testified that she felt she had no choice other than to join the Communist Party in order to safeguard her life. In view of the evidence that

others had beep. dealt with harshly, it is not believed that the respondent should have been required to enact the role of a martyr in defying

those in authority. She has testified that she never embraced Communist ideology, and that her acceptance into the Communist Party

VMS without a probationary period because of her service in the Partisans. She was not assigned any special duties on the basis of her

Communist Party membership nor was she active in the political

segment of the Communist Party. She was required to read certain

material. The respondent testified that her continued service in the

Yugoslavian Army after her marriage and the birth of her children

was because of financial needs because her husband was still studying

medicine and they could not live on his salary alone; that because of

their positions in. the military forces they were able to obtain a little

more food than civilians and pay less for it. The respondent testified

that in 1944 she received the Partisan badge of 1941, known as

"Spomenica," which was awarded to those who took part in the National Liberation Army in 1941 and carried with it certain benefits,

such as a month's vacation with pay, reduction in train fares, and

scholarships in schools available for children. She testified that this

award was not limited to those who were Communists and this statement was confirmed by the government -witness Charles Petkovie.

The respondent testified that she was found to be

' unsuited for nursing work and in 1947 took a training course in the administrative

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department of a hospital and became personnel officer or counselor and

was assigned as a personnel counselor in connection with civil division

of a hospital. Her duties consisted of hiring civilians for various

minor hospital tasks such as cleaning people, nurses aides, etc. In 1950

she took a leave of absence for one year because she was suffering from

tuberculosis and thereafter was transferred to Zagreb where she was

employed in the cultural division of the army in connection with the

disbursement of books to the armed forces. During this period she

obtained the rank of captain. In 1952 she was assigned to a job of

eliminating books with Russian titles and ideas to avoid the distribution of those books to army personnel and was a member of a commission consisting of, five members. From January 1953 until she left the

army in 1051 she was head of the clerical department of a. quartermaster distribution center and during this period was promoted to captain,

first class, an automatic promotion based upon three years of service

in the lower category.

The respondent produced evidence that her sons were baptized in

April 1947 and July of 1957 in Bihac, Yugoslavia, and that she was

present at their baptism although the Yugoslavian government and

particularly the Communist Party of Yugoslavia, opposed any religious observance. In addition she attended Catholic church services

out of uniform because of the opposition of the government to such attendance by army officers. She was able to secure her release from the

Yugoslav army in 1954 by presenting a medical certificate indicating

she was not in good health due to a more lenient attitude toward

women but that she experienced considerable difficulty in obtaining

a passport for the purpose of leaving Yugoslavia to the extent that she

was asked to leave one of her children in that country. After considerable delay she was able to secure an exit permit limited to a oneyear period through the help of a friend of her husband who guaranteed she -would return to Yugoslavia.

The continued membership of the respondent in the Yugoslavian

army and in the Communist Party of Yugoslavia cannot be assessed

apart from the role played by her husband. Her husband, although

born in the United States in 1918, was taken to Yugoslavia in 1932.

They met in 1942 when he was serving as the head of a medical department of a brigade of Partisan forces. They reported their marriage in 1943 or 1944 to the unit commander and went through a

marriage ceremony in June 1946. Her husband testified he was asked

to join the Communist. Party in February 1944 and sines he was aware

that people holding similar positions to his who had refused to join

had disappeared, he felt compelled to join the Communist Party. In

further explanation of his joining the Communist Party, the husband

testified that the commissar of his army unit told him in December of

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1943 that it was time he became a member of the Communist Party

and in January or February 1944 was again approached and told

that the position he was taking over required that he be a, member

of the Communist Party. Since he knew what would happen if he

declined he consented. Her husband. testified that both he and the

respondent discussed the Communist Party in 1945 and expressed concern over the developments in their country and their disagreement

with the principles of the Communist Party. He applied for discharge hi 1945, 1947, and 1952 but was refused because of the shortage of physicians. He was required to turn in his Communist Party

membership documents when he claimed foreign citizenship at the

time of his discharge from the Yugoslav army but was required to

obtain an exit permit to leave Yugoslavia because he was regaraoli

by them as a dual national. He was told he would be contacted in

this country for favors by the Yugoslav government but testified that

no one has ever contacted him.

After coming to the United States in 1954 he applied for an extension of his Yugoslav passport for the purpose of aiding his wife

in leaving that country. Both parties have testified that they unsuccessfully applied for discharges from the Yugoslav army in 1940.

Although a United States passport was approved for issuance to the

respondent's husband on April 7, 1947, it was not used by him because

he could not obtain his release from the Yugoslav army. Before leaving Yugoslavia the husband had been trying to help his wife obtain

a permit to leave Yugoslavia and had made arrangements with a friend

of his to intervene in her behalf with the Department of External

Affairs which controlled the issuance of passports in Yugoslavia.

Viewed against the background of the husband's attempts since 1945 to

obtain permission for his wife and family to leave Yugoslavia, and

ultimately, to loin him in the United States, it is not surprising that

the respondent took no steps in regard to her Communist Party membership which would jeopardize her chances of leaving Yugoslavia.

The respondent has presented witnesses who have testified favorably with respect to her conduct in the United States and her opposition to the Communist regime now in control in Yugoslavia. Although

the respondent has acknowledged that Communist Party membership

was required of an officer in the Yugoslav army, there is no evidence

that she ever expressed any ideological sympathy with the principles

of Communism and the record is devoid of any indication that she

ever occupied a position of political responsibility in the Communist

Party itself.

The government has presented two witnesses in an attempt to rebut

the testimony of the respondent that her membership in the Communist Party of Yugoslavia was involuntary. The first witness,

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Charles Petkovic, was not a member of the armed forces of Yugoslavia

during World War II nor a member of the Communist Party of Yugoslavia during that period, and his opinions with respect to the compulsion exercise upon an officer of the army by the Communist Party

is, as the special inquiry officer observed, of little value. He did

however corroborate in a good deal of the testimony of the respondent

and her husband as to the mixed and irregular character of the Yugoslavian army in 1941 or 1942 and admitted that some Partisans were

not Communists and that the "Spomenica," award was not limited to

Communists but was given to all those who took part in the Partisan

movement in 1941. The witness expressed the opinion that a person

could not occupy a personnel position from 1950 to 1951 if under sus' s. However, the respondent's personnel hospicion by the Communist

pital work appeared to involve only civilian help of the lowest types,

such as cleaning people and nurses aides. While testifying generally

that persons who joined the Communist Party in Yugoslavia during

World War II believed in Communism, he acknowledged that within

military groups the discipline was greater than among the civilian

population.

A second government witness, Boris Miletich, who was employed in

Yugoslavia variously as a legal referee, law counselor, and a county

judge from 1945 to 1956, stated that he had never been a member of

the Communist Party and had not served in the Yugoslav army. His

information therefore regarding the situation in the Yugoslav army

is admittedly hearsay. While testifying that many persons were discharged from the Yugoslav army after 1946 and that females especially were released, he admitted not knowing whether a female officer

could have been discharged during that period of time and also conceded that not all persons who fought in the Partisan groups in 1941

and thereafter were Communist. The respondent's husband has testified that the criterion in obtaining release from military service was

whether the person's service was essential.

A witness on behalf of the respondent, Fedor Hegenauer, served

in the Yugoslavian army in 1945 and again in 1947 but not as an officer.

When asked to join the Communist Party in 1947 he temporized

although indicating that he could not have refused. He was of the

opinion that an officer in the Yugoslavian army would have no choice

and could not possibly refuse when asked to join the Communist Party

by his battalion commander in January 1944.

The service has contended • that the respondent's admission of

membership in the Communist Party of Yugoslavia should be accepted at full value but that her testimony as to the involuntary nature

of her membership is to be discounted. Inasmuch as no documentary

evidence has been submitted, the decision turns largely upon a finding

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of credibility of the witnesses, and the weight to be attached to their

testimony. Viewing the circumstances surrounding the respondent's

:joining the Yugoslav military forces, the Partisans, the subsequent

•demand that she join the Communist Party because of her officer

:rank, the absence of ideological sympathy with the Communist Party

and the lack of any political position in the Communist Party, and

the corroboration by witnesses, we do not believe that her story has

been materially weakened or overcome by the government witnesses.

It is concluded that the respondent has established that her membership in the Communist Party, upon the evidence of record, was involuntary within the meaning of section 212(a) (28) (I) (i) of the

Immigration and Nationality Act. She was therefore not excludable

at the time of entry because of membership in the Communist Party

of Yugoslavia and was otherwise admissible. She is therefore automatically the beneficiary of the provisions of section 241(f) of the

Act in regard to her misrepresentation regarding her Communist

Party membership.

ORDER: It is ordered that the order of the special inquiry officer

dated May 31, 1962, terminating the proceedings be and the same is

'hereby approved.

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