Section 2913, Internal Revenue Code of 1939-Penalty for unlawful removal or concealment of spirits. Whenever any person removes, or aids or abets in the removal of, any distilled spirits on which the tax has not been paid, to a place other than the Internal Revenue bonded warehouse provided by law, or conceals or aids in the concealment of any spirits so removed, or removes, or aids or abets in the removal of, any distilled spirits from any such warehouse authorized by law, in any manner other than is provided by law, or conceals or aids in the concealment of any spirits so removed, he shall be liable to a penalty of double the tax imposed on such distilled spirits so removed or concealed, and shall be fined not less than $200 nor more than $5,000, and imprisoned not less than three months nor more than three years. Section 3320(a), Internal Revenue Code of 1939-Possession with intent to sell in fraud of law or to evade tax. Every person who shall have in his custody or possession any goods, wares, merchandise, articles, or objects on which taxes are imposed by law, for the purpose of selling the same in fraud of the Internal Revnue laws, or with design to avoid payment of the taxes imposed thereon, shall be liable to a penalty of $500 or not less than double the amount of taxes fraudulently attempted to be evaded. Section 2803(a), Internal Revenue Code of 1939-Stamps for containers of distilled spirits. No person shall transport, possess, buy, sell, or transfer any distilled spirits, unless the immediate container thereof has affixed thereto a stamp denoting the quantity of distilled spirits contained therein and evidencing payment of all Internal Revenue taxes imposed on such spirits. * * * Section 2809(a), Internal Revenue Code of 1939-Definitions. Every person who produces distilled spirits, or who brews or makes mash, wort, or wash, fit for distillation or for the production of spirits, or who, by any process of evaporation, separates alcoholic spirit from any fermented substance, or who, making or keeping mash, wort, or wash, has also in his possession or use a still, shall be regarded as a distiller. Section 2810, Internal Revenue Code of 1939–Registry of stills. Every person having in his possession or custody, or under his control, any still or distilling apparatus set up, shall register the same with the collector of the district in which it is, by subscribing and filing with him duplicate statements, in writing, setting forth the particular place where such still or distilling apparatus is set up, the kind of still and its cubic contents, the owner thereof, his place of residence, and the purpose for which said still or distilling apparatus has been or is intended to be used; one of which statements shall be retained and preserved by the collector, and the other transmitted by him to the Commissioner. Stills and distilling apparatus shall be registered immediately upon their being set up. * And every person having in his possession or custody, or under his control, any still or distilling apparatus set up which is not so registered, shall pay a penalty of $500, and shall be fined not less than $100, nor more than $1,000, and imprisoned for not less than one month, nor more than two years. APPENDIX “B” *** Section 88, Title 18, U.S.C. (now section 371 of Title 18)—Conspiracy to commit offense against United States. If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined not more than $10,000, or imprisoned not more than two years, or both. MATTER OF C— In DEPORTATION Proceedings A-4268536 Decided by Board February 4, and May 24, 1960 Deportability-Section 241(a)(6), 1952 act, member of Communist Party after entry-Charge properly based on earlier entry where residence not subsequently abandoned. Respondent was admitted for permanent residence in 1926; abandoned United States residence in 1931; reentered unlawfully a year later in 1932; was again admitted for permanent residence in November 1940 with a quota immigrant visa after an overnight's absence in Canada. Respondent is charged with being deportable under section 241 (a) (6) of the Immigration and Nationality Act based upon membership in the Communist Party of the United States after his 1932 entry. Evidence showed that respondent was a member of the Communist Party from 1927 to 1938 within holdings of Rowoldt and Galvan. Supreme Court's ruling in Bonetti v. Rogers, 356 U.S. 691, does not require dismissal of charge because based on respondent's 1932 entry. Bonetti is based on novel facts and circumstances, particularly abandonment of prior lawful residence and an administratively adjudicated lawful admission when he made a new entry in 1938. Here, there was no abandonment of prior (1932) residence but a mere technical adjustment of status following an overnight's absence. Unlike Bonetti, the ground of deportation here is assigned under the Immigration and Nationality Act, which defines "entry" as any coming of an alien from a foreign port or place. CHARGES: Warrant: Act of 1952-Section 241 (a) (1) [8 U.S.C. 1251 (a) (1)]—Excludable at time of entry by Act of October 16, 1918, as amended, to wit, member of Communist Party prior to entry (8 U.S.C. 137). Act of 1952-Section 241 (a) (6) [8 U.S.C. 1251(a) (6) ]—Member of Communist Party of the United States after entry. Lodged: BEFORE THE BOARD Discussion: The case comes forward on appeal from the order of the special inquiry officer dated September 28, 1959, denying the respondent's application for suspension of deportation and directing that he be deported solely on the lodged charge. The record relates to a native of England, subject of Great Britain, 60 years old, male, who first entered the United States on February 23, 1926, at Detroit, Michigan, and was admitted for permanent residence upon presentation of an immigration visa. In June 1931 he abandoned his residence in this country and went back to England, where he remained for a period of about 11 or 12 months. He left England in 1932 as a visitor to Canada, and reentered this country in 1932. However, at the time of his inspection by an immigration officer the respondent did not reveal his absence to England and indicated to the inspecting officer that he was returning after a one-day visit to Canada. He presented the birth certificate of his son and gas and electric bills which he had paid in Detroit, and was thereupon admitted as a returning resident. He was not at that time in possession of any documents required for admission as an immigrant. The respondent acknowledged that he was aware that his entry into the United States at that time was illegal and he thereafter adjusted his entry by obtaining a passport from the British Consul in Detroit, staying overnight in Canada and obtaining a quota immigrant visa from the American Consulate on November 20, 1940. He reentered the United States for permanent residence on the same day at the port of Detroit, Michigan, and was admitted as a quota immigrant. He has since remained in the United States except for a visit of a few hours to Canada in 1945 from which he returned upon presentation of his resident alien's border-crossing card. The proceedings in this case were instituted in 1953, and on December 18, 1953, we affirmed the finding of deportability on the charge stated in the warrant of arrest. Thereafter, the matter was in court, was subsequently reopened pursuant to stipulation, and on January 28, 1958, we dismissed the appeal from the decision of the special inquiry officer dated October 14, 1957, finding the respondent deportable on the lodged charge. On June 13, 1958, we granted a motion to reopen in view of the Supreme Court decision in Bonetti v. Rogers, 356 U.S. 691, and to permit the respondent to apply for suspension of deportation. The evidence regarding the respondent's membership in the Communist Party has been reviewed in our previous orders and there would be no point in again reviewing this material. It is sufficient to say that on the basis of the testimony of witnesses and the respondent's own testimony, we find that there was "meaningful association" with the Communist Party within the holding of Rowoldt v. Perfetto, 355 U.S. 115, and voluntary membership within the meaning of Galvan v. Press, 347 U.S. 522. The case of Bonetti v. Rogers, supra, involved an alien who was admitted for permanent residence in 1923, joined the Communist Party and was a member until 1936, In 1937 he departed from the United States abandoning all rights of residence under his entry in 1923, and was subsequently admitted to the United States as a quota immigrant in 1938. In October 1951, proceedings were instituted to deport him under sections 1 and 4(a) of the Anarchist Act of 1918, as amended by section 22 of the Internal Security Act of 1950, as an "alien who has been, after entry into the United States, a member of the Communist Party." In construing that charge, the court held that where an alien after his entry into the United States leaves the United States with the intention of abandoning his rights of residence in this country, and later is again admitted to the United States as an immigrant, he could be deported under this statutory provision only if he was a member of a deportable class at the time of his second entry or at any time thereafter; in other words, an entry for permanent residence is no longer an entry within the meaning of the statutory provision after the alien has left the United States with the intention of abandoning his residence therein.1 In the present case there is involved another charge, to wit, section 241(a)(6) of the Immigration and Nationality Act, which charges deportability of an alien who is, or at any time has been, after entry, a member of the Communist Party. The same statute now defines the term "entry" in pertinent part as any coming of an alien to the United States from a foreign port or place. A further distinction may be noted in the instant case, in that, after the respondent's return to this country in 1932 there was no subsequent abandonment of residence as existed in the Bonetti case, even though there was an adjustment of immigrant status by means of an absence of a few hours in Canada and a return to the United States with an immigrant visa. The record, however, makes it apparent that no abandonment of the former residence was intended at that time, nor is any claimed. The case, therefore, is distinguishable from the Bonetti case and from the case of Berrebi v. Crossman, 208 F.2d 498, which involved membership from 1937 to 1939 in the Communist Party of Tunisia, a stipulation as to lawful admission to the United States for permanent residence in 1948, and likewise involved section 4(a) of the Act of October 16, 1918, as amended by the Internal Security Act of 1950. The respondent at the reopened hearing made application for suspension of deportation. It is doubtful if he is eligible for suspension of deportation in view of the fact that at the time a final order of deportation was entered by this Board on December 18, 1953, the respondent did not possess the requisite 10 years' continuous physical presence in the United States, since he had been ab 1 See, Annotation: Subversive Aliens, 2 L. Ed. 2d 1619. 2 Section 101(a)(13), Immigration and Nationality Act; 8 U.S.C. 1101(a) (13). |