IN THE MATTER OF K

In EXPULSION Proceedings

A-4547198

Decided by the Board April 13, 1951

Warrant of deportation-Contention such warrant became "functus officio" because not executed within a reasonable time.

A warrant of arrest was issued on May 28, 1934, deportation was ordered on October 9, 1934, and a warrant of deportation was entered on November 26, 1934; passport facilities were not available and on April 3, 1939, it was directed that further action be deferred. The warrant of deportation in this case is not functus officio.

CHARGES:

Warrant: Act of 1918-Member of proscribed organization.

Act of 1918-Advocates overthrow by force and violence of the Government of the United States.

BEFORE THE BOARD

Discussion: This matter is before us by reason of a motion filed by counsel requesting that the warrant of deportation be vacated and the deportation proceeding dismissed.

The subject of this proceeding testified that he was born in Rostovon-Don, on January 18, 1897, and that he is a citizen of the country of his nativity (now Union of Soviet Socialist Republics). The petitioner stated he first arrived in the United States at New York during the month of December 1913 on the S. S. Cameronia or Calendonia. He last arrived at Tacoma, Wash. on September 14, 1919, as a member of the crew of the S. S. Lake Sanford. Following his arrival in 1919 he was excluded by a Board of Special Inquiry as a person likely to become a public charge. An order of deportation was entered on April 27, 1920, and a warrant of deportation was issued on May 28, 1920. On August 12, 1920, the warrant of arrest was canceled by the Assistant Secretary of Labor. The record reveals that a warrant of arrest was issued on November 12, 1919, on the ground that the alien advocated the unlawful destruction of property; that he taught the assassination of public officials; and that he was a person likely to become a public charge.

Another warrant of arrest was issued on May 28, 1934, on the ground that the alien was a member of or affiliated with an organization, association, society, or group, that believes in, advises, advocates, or teaches the overthrow by force or violence of the Government of the United States; and that he believes in, advises, advocates, or teaches the overthrow by force or violence of the Government of the United States.

On the hearing under the warrant of arrest the alien testified that he became a member of the Communist Party about 1931 or 1932 and that he was a member of the said organization at the time of the hearing. He further testified that he believed in the principles and policies of the organization. He further stated that he was arrested in 1918 or 1919 for distributing literature pertaining to the International Workers Order.

On October 9, 1934, an order of deportation to the Union of Soviet Socialist Republics was entered. The charges in the warrant of arrest having been sustained, warrant of deportation directing the alien's return to the Union of Soviet Socialist Republics was entered on November 26, 1934. Passport facilities were not available and on April 3, 1939, it was directed that further action be deferred.

The principal contention of counsel in connection with the present motion is that because of the lapse of time since entry of the order of deportation that the said order has become functus officio and of no force, validity or effect.

It is pointed out that the alien applied for naturalization in New York State in 1936. It appears that he served in the United States Army in 1942 and on August 22, 1944, he again applied for naturalization.

We have carefully reviewed the points and authorities cited by counsel and at best while counsel contends that the warrant of deportation was not executed within a reasonable time and therefore became functus officio, the cases cited seem to indicate principally that the alien cannot be held in custody for an unlawful period of time.

The Internal Security Act of 1950 (Public Law 831, ch. 1024) section 23 (a) amending section 20 of the act of February 5, 1917, provides:

Pending final determination of the deportability of any alien taken into custody under warrant of the Attorney General such alien may, in the discretion of the Attorney General (1) be continued in custody; or (2) be released under bond in the amount of not less than $500, with security approved by the Attorney General; or (3) be released on conditional parole. ***

In the matter of In re Hanoff, 39 F. Supp. 169, the facts are somewhat similar. The court's attention was directed to the fact that the petitioner had been available for deportation for a period in ex

cess of ten years. It was urged that the old warrant had become functus officio because it was not executed within a reasonable time. The alien was taken into custody but theretofore he had not been restrained of his liberty. There was nothing in the case to show that the delay in deporting the petitioner worked a disadvantage to him. When he was taken into custody there was a reason to believe that deportation could be effected. In this case the court said:

Under the circumstances I think that petitioner is not entitled to an immediate discharge. A broad discretion is allowed the Attorney General to find ways or means to execute the original deportation warrant. "The utmost the courts can or will do is to discharge the (petitioner) from further imprisonment if the government fails to execute the order of deportation within a reasonable time." A later case is that of the U. S. ex rel. Doukas v. Wiley et al., 160 F. (2d) 92 (C. A. 7, February 7, 1947). In that case the court said:

What constitutes a reasonable time for detention for deportation depends upon the facts. Moraitis v. Delany, D. C. 46 F. Supp. 425; Consola v. Karnuth, D. C. 63 F. Supp. 727; and Seif v. Nagle, 9 Cir., 14 F. (2d) 416. In our case appellant was released on bond and from 1922 to 1931, at his request execution of the warrant was delayed. Thereafter he filed a petition for writ of habeas corpus and when his case was affirmed (56 F. (2d) 518) he breached his bond. From 1932 to 1939 it was impossible to effect his deportation because he failed to advise the Immigration Service of his whereabouts. In 1939, after he had been apprehended, he was again released on bond, but because of the war, deportation was not practical. In this state of the record we are of the opinion that the warrant is not without force; on the contrary, it is valid.

After careful consideration of the present motion, it is our conclusion that the warrant of deportation in this case is not functus officio and the motion must therefore be denied.

Order: It is ordered that the motion be and the same is hereby denied.

IN THE MATTER OF N

In DEPORTATION Proceedings

A-1406381

Decided by Board April 13, 1951

Subversive, proscribed organization, member or affiliate of-Expulsion ground— Act of 1918, as amended-"Voluntary" membership or affiliation-Public Law 14, March 28, 1951-Term "voluntary" construed-Evidence.

In order for membership in any organization to be considered voluntary, it is essential that the member be cognizant of the kind of organization he has joined. The facts in this case support the stipulation in this case to the effect that at the time of joining in 1933 during a strike (if he actually joined for the 7-week period involved, there being no receipt of a membership card, dues book, or pertinent literature, etc.) the respondent had no knowledge that the Workers Party (United States) was communistic or was affiliated with the Communist Party (of the United States of America), and that as soon as he discovered that it was such an organization he ceased his relationship with such Workers Party. The alien is no longer deportable under the Internal Security Act of 1950 or the 1918 act, as amended, on the basis of the evidence in this case (act of March 28, 1951), Public Law 14 (S. 728, H. R. 2239), and instructions governing its application). CHARGES:

Warrant: Act of 1918-After entry was a member of the following class set

forth in section 1 of said act: An alien who is a member of an organization, association, society, and group that advises, advocates, and teaches the overthrow, by force and violence, of the Government of the United States.

Act of 1918-After entry was a member of the following class set forth in section 1 of said act: An alien who is a member of an organization, association, society, and group that writes, circulates, distributes, prints, publishes, and displays any written and printed matter advising, advocating and teaching the overthrow, by force and violence, of the Government of the United States.

BEFORE THE BOARD

Discussion: The respondent is a native and was a citizen of Sweden, who entered the United States without inspection on March 22, 1924. He has lived in the United States at all times since his entry, is

married to a United States citizen, and is the father of two citizen children.

In 1940 respondent desired to acquire United States citizenship. During an investigation he stated that he had been a member of the Communist Party over a period of several weeks in 1933. That statement gave rise to the present proceedings.

The record contains a stipulation between respondent, his attorney, and the examining officer, representing the Immigration and Naturalization Service. This stipulation reads in part as follows:

(9) That the respondent joined an organization known as the Workers Party on or about March 1933 and was a member thereof for approximately seven weeks until about May 1933. (10) That at the time of the joining of the said Workers Party the respondent had no knowledge that said organization was Communistic or was affiliated with or identified with the Communist Party.

(11) That upon discovery of such facts as led respondent to believe that said organization was affiliated with the Communist Party, respondent immediately ceased his relationship with said Workers Party.

(12) That respondent never attended any meeting of the organization known as the Workers Party nor ever took part in any of its activities.

(13) That the Workers Party herein referred to as having been joined by the respondent, is admitted to have been the Communist Party.

(14) That the Communist Party, during the period from about March 1933 to about May 1933, advised, advocated, and taught the overthrow by force and violence of the Government of the United States.

(15) That the Communist Party, during the period from about March 1933 to about May 1933, was an organization, association, society, and group that wrote, circulated, distributed, printed, published, and displayed written and printed matter advising, advocating, and teaching the overthrow by force and violence of the Government of the United States. Counsel informed this Board during oral argument that the reason he signed the above stipulation was because he was informed by representatives of the Immigration and Naturalization Service that if he failed to stipulate it would be necessary for the Government to introduce evidence designed to prove that the Workers Party and the Communist Party were one, and that the Communist Party in 1933 was an organization which advocated the overthrow of the Government by force and violance. Counsel claims that in order to shorten