You were granted the privilege upon your request of voluntarily departing from the United States, such departure to have been within 3 weeks of the opening of this hearing. You have failed to depart from this country.

This statement of the hearing examiner is incorrect. According to exhibit 3 which has been quoted, the aliens were granted 12 days within which to present evidence of possession of travel documents and transportation. Nothing whatever was stated with regard to the actual date upon which departure should take place.

The state of the record with regard to what was required of the alien is so confusing as to make impossible a definite conclusion. Certainly it would be far more confusing to the respondents, aliens of no background in the immigration laws and regulations and even though they speak English it is not their native tongue. We have first the hearing examiner's statement in the hearing that the aliens would be granted 2 weeks in which to present evidence that arrangements had been made for their departure but at the same time a further statement that the hearing was adjourned until October 8. We have second, a statement in exhibit 3 that the aliens would be granted 12 days within which to present evidence of possession of transportation and travel documents, and we have third, the statement in the hearing officer's summary to the effect that the aliens had been granted 3 weeks within which to depart from the United States.

We do not have here the case of aliens who have played fast and loose with the immigration laws, we have the cases of two aliens who entered the United States lawfully as temporary visitors under section 3 (2) of the 1924 act. They were art students and came here for the purpose of studying art, particularly in the commercial field. The only violation of the law consists of overstaying the time of their admission. They have never worked, having been supported exclusively by funds sent them by their parents. In the utmost of good faith they appeared to the immigration office in Newark, N. J., for the purpose of making inquiry concerning their status. Interim Decision No. 352 (supra), contemplates that an alien may be granted at least 30 days within which to leave the United States. This is granted even in flagrant cases provided the respondent did not intend to remain permanently in the United States at the time of arrival. This case is not a flagrant one, nor were the respondents granted 30 days within which to depart. In fact they were granted no specific time within which to depart. The record shows that in one instance the hearing examiner said 2 weeks and at another time, 12 days within which to present documents and transportation. At the time of the hearing he stated they had been granted 3 weeks in which to depart but in no place in the record is this statement otherwise supported. The case is not controlled by Interim Decision No. 352 and the action of the majority

is directly contrary in both the spirit and the letter of that decision. Of interest is the Board's decision in Matter of E, A-8190438, June 3, 1952, where the respondent, a Greek seaman entered the United States on February 5, 1950. He alleges that he attempted to reship from the United States, but that evidence to say the least is weak. He purchased an automobile in May 1951 and has been employed continuously since his arrival. The hearing examiner granted the respondent 10 days within which to leave the United States. Due to his failure to comply with that therewith a further grant of time within which to depart was denied and he was ordered deported. The Board in its decision has held that a grant of 10 days was insufficient, reversed the decision and directed that respondent be given a full period of 30 days within which to depart. This was done notwithstanding the fact that the alien flagrantly violated the terms of his admission not only by overstaying his time but by immediately accepting employment. It is presumed that had he not been apprehended his illegal status would still be undiscovered.

In the instant case, in view of the technical matter of the violation of the immigration law on the part of these respondents, the indefinitness and confusion involved in the time they were allegedly granted within which to present evidence of intention to depart and continued desire to leave at once and at their own expense, it is my opinion that the request of counsel that they be permitted to leave immediately should be granted.

Attention is also called to the fact that their departure at their own expense would save the Government in appropriation the cost of their deportation, which according to current rates would amount to at least $500.

IN THE MATTER OF D

In DEPORTATION Proceedings

A-5668628

Decided by the Board June 24, 1952

Act of 1918, as amended-Subversive proscribed organization, member or affiliate of Communist Party of United States-Public Law 14 (March 28, 1951)Voluntary membership or affiliation-Section 20 of the Immigration Act of 1917, as amended-Place of deportation-Discretionary relief, past membership in Communist Party of United States.

(1) Deportability because of voluntary membership in Communist Party of United States not dependent on knowledge of or belief in principles of Party. (Cf. 4, I. & N. Decs. 341 and 504.)

(2) Membership in Communist Party of United States from 1935 to 1937 allegedly for purpose of retaining employment is held to be a voluntary nature when the record discloses such employment was neither necessary for survival nor 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. (See also 4, I. & N. Dec. 314.)

(3) Discretionary relief not available to aliens deportable under act of October 16, 1918, as amended because of former membership in Communist Party of United States.

CHARGES:

Warrant: Act of October 16, 1918, as amended-After entry, alien member of organization that advocates or teaches overthrow, by force or violence, of Government of United States.

Act of October 16, 1918, as amended-After entry, alien member of organization that distributes, etc., printed matter advocating overthrow, by force or violence, of Government of United States. Lodged: Act of October 16, 1918, as amended-After entry alien who was member of Communist Party of the United States.

BEFORE THE BOARD

Discussion: This is an appeal from an order dated November 27, 1951, of the Assistant Commissioner Adjudications Division finding the respondent deportable solely on the lodged charge; directing his application for suspension of deportation be denied; and providing for his deportation from the United States.

Counsel has appeared in oral argument and has submitted a brief. Counsel contends that the testimony of the respondent has been ac

cepted insofar as it establishes membership in the Community Party but rejected insofar as it establishes that the respondent became a member of the Communist Party for the sole purpose of obtaining employment or other essentials of living. It is urged that suspension of deportation may be granted to the respondent even though he may be found deportable under the act of October 16, 1918, as amended. Representation is made that the respondent would be subject to physical persecution if deported to Czechoslovakia, the country whence he came and it would be inhuman to direct his deportation to any Communist-dominated country and the contention is also made, that the respondent is being deported under an ex post facto law.

Respondent is a 56-year-old married male, a native and citizen of Czechoslovakia. He has resided in the United States continuously since his entry for permanent residence on March 25, 1910, with the exception of a short visit abroad from which he returned on January 24, 1927. He has admitted that he was a dues-paying member of the Communist Party of the United States from 1935 to 1937. The first question presented is whether the membership was a voluntary one. Briefly, respondent's story is as follows: He was self-supporting as a trunkmaker until about 1930. Thereafter, he had no steady employment, but was engaged as a trunkmaker; worked for the General Electric Corp.; did odd jobs; and peddled fruits and vegetables from a pushcart. His income was meager and he found it difficult to provide adequate housing for his wife and two minor children. In 1935, it appears that he found it necessary to move from place to place because of his inability to pay rent. In the same year, he and his wife answered an advertisement offering rent-free quarters plus the use of gas and electricity without charge in exchange for services as janitors of a building which as far as the respondent and his wife knew, was then being used as a school for instruction of children in Jewish reading and writing. The building was in fact the headquarters of the local Communist Party. About a month after the respondent and his wife had been employed as janitors, he was approached by an officer of the Communist Party who informed him that to retain his employment and the apartment, he would have to join the Communist Party. Solely to retain his employment and the apartment, the respondent joined. For about 22 months, the respondent continued his membership. At the request of officials of the Communist Party, he attended meetings. He was given circulars to distribute; but did not distribute them; he burned them in the basement of the house. He denied belief in the revolutionary principles of the Communist Party. At one of the meetings, the respondent defended private ownership. Shortly thereafter, an official of the Communist Party took his membership card away; informed the respondent he was no longer a member of the Communist Party; and ordered him to

vacate the premises. A month later, the respondent moved. During the time he was employed as a janitor, respondent continued peddling and did odd jobs. It does not appear that he received any cash for his services as a janitor.

For the moment, we dismiss facts in the record which would diffuse the silhouette set forth above. As a member of the Communist Party, whether or not he had knowledge of its principles, whether a believer or nonbeliever in its principles, the respondent would be deportable, if his membership were voluntary as that term is defined by Public Law 14, 82d Congress; chapter 23, 1st session, H. R. 2339; (Harisiades v. Shaughnessy, 187 F. (2d) 137 (C. A. 2, 1951) affd. 342 U. S. 580 (1952).

Public Law 14 (incorporated in 8 C. F. R. 174.1 (i)) provides in its pertinent portion that membership in a proscribed organization is not voluntary which was "for purposes of obtaining employment, food rations, or other essentials of living, and where necessary for such purposes." [Italics added.] May it be held that respondent's membership in the Communist Party of the United States between 1935 and 1937 was necessary for him to obtain employment, food rations, or other essentials of living? We think not.

A careful review of the language of Public Law 14, its legislative history (U. S. Code Cong. and Adm. Service, vol. 2, 82d Cong., 1st sess., p. 1374) and the record of proceedings before Congress involving its passage (97 Cong. Rec., pp. 1369-1375; 2368-2384; 2386-2388) reveals congressional concern with two classes of persons; one, persons who were either automatically placed in totalitarian organizations; i. e., armed forces, labor unions or soviets cooperatives; and two, persons who by failure to join the organizations in question would have incurred the displeasure of their totalitarian governments or would have been denied opportunities for education, employment, food and other necessities which were open to the majority of the population. Under such circumstances, joining without more than the required minimum participation could be considered involuntary.

Careful consideration of the material mentioned fails to reveal an indication of an intent on the part of Congress to include within Public Law 14 a person who joined an organization to secure certain benefits where such membership was not at the direction of a governing totalitarian body nor under the compulsion of maintaining a competitive equality for the necessities of life with the majority of the population.

Respondent joined to get a certain benefit from the organization. This did not make the membership involuntary in the absence of a showing that the joining was either to comply with the requirements of a state; was necessary for his survival; or was under the compulsion