sent to Canada in 1945.3 Even if we felt inclined to consider the application for suspension of deportation, despite the factors in the case of respondent's long residence in this country and family ties of a permanent resident wife and an adult citizen son, it is to be noted that at prior hearings he failed to cooperate and chose to remain mute on the question regarding Communist Party membership and declined at that time to apply for any relief. Such failure to cooperate justifies a refusal of discretionary relief. Order: It is ordered that the appeal be and the same is hereby dismissed. BEFORE THE BOARD Discussion: The case is before us on motion of counsel requesting reconsideration of our prior order of February 4, 1960, dismissing the appeal from the order of the special inquiry officer dated September 28, 1959, ordering deportation on the lodged charge stated above. The facts, briefly stated, relate to a native of England, subject of Great Britain, 60 years old, male, who first entered the United States on February 23, 1926, and was admitted for permanent residence upon presentation of an immigration visa. He abandoned his residence in this country in June 1931 and returned to England, where he remained for a period of approximately a year. He entered Canada in 1932 as a visitor. He obtained entry into the United States by posing as a returning resident, concealing his abandonment of residence and return to England, and was admitted as a nonquota returning resident under the provisions of section 4(b) of the Immigration Act of 1924 (8 U.S.C. 204(b)). Aware that this entry into the United States was illegal, he sought to adjust his entry by obtaining a passport from the British Consul in Detroit, staying overnight in Canada, obtaining a quota immigrant visa from the American Consulate on November 20, 1940, and reentering the United States as a quota immigrant after an overnight absence in Canada. His only other absence has been for a visit of a few hours to Canada in 1945, from which he returned upon presentation of a resident alien's border-crossing card. We have already found the evidence establishes the respondent's membership in the Communist Party of the United States at various times between 1927 and 1938. Counsel in his present motion again argues the applicability of Bonetti v. Rogers, 356 U.S. 691. It is contended that under the 3 Matter of C- -L 7 I. & N. Dec. 137; Matter of 0, 7 I. & N. Dec. 457. 4 Jimenez v. Barber, 252 F.2d 550, cert. den. 355 U.S. 903. holding of the Supreme Court in the Bonetti case the proceedings should be terminated. The Bonetti case was carefully considered by us previously. To review, Bonetti was a lawful permanent resident of the United States from November 1, 1923, to June 28, 1937, when he departed voluntarily to go to Spain and fight in the Spanish Republican Army, abandoning all rights of residence in the United States. His Communist Party membership existed from 1932 to 1936. Thereafter, he came to the United States on September 19, 1938, as a new "quota immigrant," was excluded by a board of special inquiry, but the order was reversed on administrative appeal and on October 8, 1938, he was admitted for permanent residence as a quota immigrant. Based upon the novel factual situation and circumstances of the case, particularly the elements of abandonment of the prior lawful residence in the United States and the subsequent administratively adjudicated lawful entry, the Supreme Court held that the latter entry constituted "the time of entry into the United States" within the meaning of section 4(a) of the Act of October 16, 1918, as amended by section 22 of the Internal Security Act of 1950, and since the alien there was not a member of the Communist Party "at the time of entry into the United States" on October 8, 1938, and had not been a member "at any time thereafter," he was not deportable under section 4(a) of the Act of October 16, 1918, as amended by section 22 of the Internal Security Act of 1950. In the present case, the "novel circumstances" which were decisive in the decision of the majority opinion of the Supreme Court are not present. The respondent's membership in the Communist Party herein existed during a period of his illegal residence in the United States; there is not present the abandonment of former lawful residence but merely an attempted adjustment after one night's absence to Canada; and no administratively adjudicated lawful entry. The ground of deportability herein is predicated upon a different section, to wit, section 241 (a) (6) of the Immigration and Nationality Act (8 U.S.C. 1251(a)(6)), and the entry of November 20, 1940, occurred subsequent to the enactment of the Alien Registration Act of 1940 (54 Stat. 670), approved June 28, 1940. In view of these differences, it is believed that the "novel circumstances" of the Bonetti case are not herein present and the principles applied to those "novel circumstances" are not apposite here. The motion I will be denied. Order: It is ordered that the motion to reconsider our prior order of February 4, 1960, dismissing the appeal from the order of the special inquiry officer dated September 28, 1959, directing deportation on the lodged charge be and the same is hereby denied. 562713-61- -37 MATTER OF V— In DEPORTATION Proceedings A-10659043 Decided by Board February 8, 1960 Deportation proceedings-Membership in subversive organization-Authority of B.I.A. and SIO to determine admissibility at time of entry and to apply exemptions in section 212(a)(28)(I). (1) Authority of the Board and special inquiry officer in deportation proceedings to adjudicate whether an alien was admissible or inadmissible at time of entry includes the authority to determine whether an alien subject to the provisions of section 212 (a) (28) of the 1952 act was within any of the exemptions contained in subparagraph (I) of that section. (2) Exercise of the authority under subparagraph (I) is not dependent upon whether the alien ever appeared before an American consular officer or whether that officer made a finding of involuntary membership or defector status. CHARGES: Order: Act of 1952-Section 241 (a) (1) [8 U.S.C. 1251(a) (1)]-Excludable at entry under 8 U.S.C. 1182 (a) (20)-No immigrant visa. Act of 1952-Section 241 (a) (1) [8 U.S.C. 1251(a) (1)]-Excludable at entry under 8 U.S.C. 1182 (a) (28)—Member of or affiliated with Communist Party of foreign state. BEFORE THE BOARD Discussion: Following a decision of a special inquiry officer that the respondent was deportable on the two grounds stated above, counsel filed a motion for reconsideration. This was denied by the special inquiry officer and the respondent appealed. On July 17, 1959, we sustained the appeal insofar as it related to the second charge and dismissed the appeal as to the first charge. The Service filed a motion for reconsideration on September 16, 1959. On November 20, 1959, we found it necessary to request the Service to clarify its position and the Service filed a supplementary statement on December 28, 1959. Our order of November 20, 1959, and the Service statement of December 28, 1959, are made a part hereof as appendices "A" and "B," respectively. The respondent is a 28-year-old unmarried male, native and citizen of Yugoslavia, whose only entry into the United States oc curred on May 11, 1956, at which time he was admitted temporarily as a crewman. He intended to remain in this country permanently but was not in possession of an immigrant visa. The second charge is predicated on the respondent's former membership in Savez Komunista Jugoslavije (the Communist Party of Yugoslavia), and the issue to be determined is whether that charge is sustained. Taking into consideration our orders of July 17 and November 20, 1959, and the Service motions of September 16 and December 28, 1959, the following is applicable generally to deportation cases in which one of the charges is that the alien was excludable at the time of entry under section 212(a) (28) of the Immigration and Nationality Act [8 U.S.C. 1182 (a) (28)]. The Service and this Board are in agreement that, in deportation proceedings, special inquiry officers and this Board have jurisdiction to determine whether an alien was admissible or excludable at the time of entry under 8 U.S.C. 1182(a) (28) where the alien did not appeal before an American consular officer or where the alien did appear but no finding was made by the American consular officer that the alien's membership was involuntary or that he was a defector. The procedural provisions of subparagraph (I) of 8 U.S.C. 1182 (a) (28) are not applicable to deportation cases. In other words, an American consular officer's finding of involuntary membership is not a prerequisite to a determination in deportation proceedings that the alien was, in fact, admissible at the time of entry notwithstanding former membership in a proscribed organization. However, the substantive provisions of that subparagraph set forth the criteria for determining whether membership was voluntary or involuntary, that is, the alien can be found to have been admissible at the time of entry if "(i) such membership or affiliation is or was involuntary, or is or was solely when under sixteen years of age, by operation of law, or for purposes of obtaining employment, food rations, or other essentials of living and when necessary for such purposes, or (ii) (a) since the termination of such membership or affiliation, such alien is and has been, for at least five years prior to the date of the application for admission actively opposed to the doctrine, program, principles, and ideology of such party * * *, and (b) the admission of such alien into the United States would be in the public interest." With respect to cases in which the alien is charged with having been excludable under 8 U.S.C. 1182 (a) (28) and also with having been excludable on the ground that the visa was obtained fraudulently by concealment of former membership in a proscribed organization, the Service states that a deliberate concealment from the consul of Communist Party membership must be regarded as a material misrepresentation within 8 U.S.C. 1182 (a) (19) even though there was a finding of involuntary membership or defector status made by a special inquiry officer or the Board after the alien's arrival in the United States. Hence, it appears that the Service agrees with the Board that, even in such cases, the charge that the alien was inadmissible at the time of entry under 8 U.S.C. 1182 (a) (28) may be found not sustained. We will reserve for consideration in specific cases the question of whether excludability under 8 U.S.C. 1182(a) (19) has been established. The decisions of Galvan v. Press, 347 U.S. 522 (1954), and Rowoldt v. Perfetto, 355 U.S. 115 (1957), apparently have no direct application in this respondent's case. The question of their applicability in future deportation or exclusion cases will be considered as such cases arise. In view of the foregoing, it follows that there is no controversy as to any legal problem connected with the respondent's case and the issue has resolved itself solely into the question of whether the respondent's membership was or was not voluntary, in accordance with the criteria stated in 8 U.S.C. 1182 (a) (28) (I). We have carefully considered the Service view as to the factual situation in this respondent's case which was set forth on pages 1, 2, 9 and 10 of the motion of September 16, 1959. Our own appraisal of the evidence is as follows. The respondent's admission to the United States occurred on May 11, 1956, but it was not until May 29, 1956, that he deserted his vessel and remained in this country. On June 7, 1956, he made a statement before an immigra tion officer at the St. Louis office of the Service and admitted that he had deserted his ship. When asked if he had been a member of any organization, he freely admitted his membership in the Communist Party of Yugoslavia. The record does not show whether the Service had previously become aware of the respondent's unlawful presence in the United States or whether he may have appeared voluntarily at the St. Louis office of the Service. He expressed his opposition to Communism and offered to assist the United States Government. He stated that, although a person was not compelled to join the Communist Party of Yugoslavia, it was almost a necessity in order to obtain sufficient food and clothing and in order to hold a position. The respondent became a member of the Communist Party of Yugoslavia in 1950, and had previously been a member of the Communist Party youth organization commencing in 1948 when he was about 17 years old. When first questioned on June 7, 1956, the respondent stated that he supposed he was still being carried as a member of the Communist Party of Yugoslavia. He testified that he had never been an officer of the organization; that no "special jobs" were assigned to him by the Party; and that he attended meetings— |