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Chapter 3 - Immigrant Membership in Totalitarian Party

A. Purpose and Background

1. Purpose

The inadmissibility ground for immigrant membership in or affiliation with the Communist or any other totalitarian party is part of a broader set of laws passed by Congress to address threats to the safety and security of the United States. Its original purpose was to protect the United States against un-American and subversive activities that were considered threats to national security.

In general, any immigrant who is or has been a member of or affiliated with the Communist or any other totalitarian party (or subdivision or affiliate), domestic or foreign, is inadmissible.[1] There are two exceptions to this ground of inadmissibility and a limited waiver available to certain aliens depending on the immigration benefit they are seeking.[2]

2. Background

During and after World War I, the U.S. government was concerned with the external threats of anarchism and communism. In response, Congress passed the Immigration Act of 1918 that authorized the detention and deportation of alien anarchists under an extremely broad definition of anarchism irrespective of the alien’s date of entry into the United States.[3] Furthermore, Congress also criminalized the reentry of any alien who was previously deported under provisions of this Act.[4]

In 1938, Congress sought to protect the internal security, national defense, and foreign relations of the United States by requiring that foreigners disseminating propaganda and alien ideologies be registered and identified.[5]

Near the onset of World War II, concern about the possibility of hostile foreign enemies living in the United States was on the rise. In response, Congress passed the Alien Registration Act of 1940.[6] With this Act, Congress made it a crime for any person to advocate for the overthrow or destruction of the U.S. government by force or violence, print or distribute materials advocating such activities, or organize any groups that advocate such activities. Congress also made it a crime for any person to attempt or conspire to commit such acts. The Act also established a removal ground for aliens convicted of these new offenses within 5 years of entry or convicted more than once at any time after entry.[7]

In the aftermath of World War II and in response to the rise of communism in the global arena, Congress passed a succession of laws, including the Internal Security Act of 1950.[8] Through the Internal Security Act of 1950, Congress aimed to combat the world communism movement and prosecute those who knowingly and willfully participated.[9]

The Internal Security Act of 1950 created criminal penalties for conspiring to create a totalitarian dictatorship in the United States and to unlawfully communicate or receive classified information. It did not create criminal penalties for membership or the holding of office in a communist organization, but required communist organizations to register, submit annual reports, and prohibited the members of communist organizations from applying for, renewing, or using a U.S. passport.[10]

The Internal Security Act of 1950 also amended the Immigration Act of 1918 by adding new grounds of exclusion specific to members of communist or totalitarian parties, affiliates of such groups, or to aliens who advocate the doctrines of world communism or any other form of totalitarianism.[11] It likewise expanded the deportation provisions to cover such aliens.

The Act also created new restrictions on naturalization by making aliens who were members or affiliates of a communist organization or who advocated certain communist or totalitarian positions (or were members or affiliates of organizations that advocated such positions) ineligible for naturalization.[12] Naturalized citizens who engaged in such activities within 5 years following their naturalization would be subject to revocation of their naturalization orders.

A year later, Congress amended the Internal Security Act of 1950 to include some of the exceptions to the grounds of exclusion specific to the members and affiliates of communist organizations to better align the actual language of the statute with the intent of Congress. The amendment stated that only membership or affiliation which was voluntary would be considered for exclusion and would not include membership or affiliation which is or was solely when the alien was under 16 years of age, by operation of law, or for purposes of obtaining employment, food rations, or other essentials of living and where necessary for such purposes.[13]

Subsequently, Congress passed the Immigration and Nationality Act (INA) of 1952 which, for the first time, authorized the exclusion of all aliens, immigrants or nonimmigrants, on the basis of membership in or affiliation with the Communist or any other totalitarian party.[14] As with previous acts, the INA of 1952 also declared that aliens were excludable based on a wide variety of other activities linked to the Communist Party or other totalitarian parties even if the aliens were not members or affiliates.

The INA of 1952 included exceptions and waivers similar to those available today. There were two classes of exceptions available to immigrants and nonimmigrants alike. The first, which was based solely on the alien’s personal history (and tracked the Internal Security Act amendments of 1951), excepted aliens if their 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 where necessary for such purposes.”[15]

The second exception was available to aliens whose admission “would be in the public interest” if their membership or affiliation had terminated at least 5 years before the date of the application and the alien had been “actively opposed to the doctrine, program, principles, and ideology” of the Communist or totalitarian organization during those 5 years.[16]

The INA of 1952 also contained an exception for nonimmigrant diplomats (A) and nonimmigrant representatives of international organizations (G) as well as a general waiver for temporary admission as a nonimmigrant.[17] The general waiver for aliens seeking nonimmigrant visas was only to be granted in the discretion of the Attorney General based on the recommendation of the Secretary of State or a consular officer.

Subsequent amendments provided for additional exceptions. In 1977, Congress passed the Foreign Relations Authorization Act of Fiscal Year 1978, which contained a provision popularly referred to as the “McGovern Amendment.”[18] This provision slightly modified the operation of the nonimmigrant waiver established in INA 212(d)(3). While the INA stated that an excludable alien applying for a nonimmigrant visa would only receive the visa and be admitted in the discretion of the Attorney General based on a recommendation by the Secretary of State or a consular officer, the McGovern Amendment required the Secretary of State to make a favorable recommendation to the Attorney General within 30 days of receiving the nonimmigrant visa application unless “the admission of such alien would be contrary to the security interests of the United States.”[19]

Congress limited the scope of the McGovern Amendment in 1979 with a provision in the Department of State Authorization Act, Fiscal Years 1980 and 1981, by eliminating eligibility for the McGovern Amendment for three groups: representatives of “purported labor organizations” that were actually instruments of totalitarian states; members, officers, officials, representatives, and spokesmen of the Palestine Liberation Organization; and aliens from countries that signed the Helsinki Final Act but which were not in substantial compliance with its provisions.[20]

The Immigration Act of 1990 (IMMACT 90) completely reorganized the exclusion grounds, amending some and deleting others.[21] While Congress retained the exclusion ground in the INA relating to membership or affiliation, with IMMACT 90, Congress eliminated the various other related exclusion grounds such as those that penalized the advocacy or publication of communist or other subversive views or materials.

The IMMACT 90 exclusion provision related to membership in the Communist or other totalitarian party is nearly identical to the current inadmissibility ground at INA 212(a)(3)(D), with two minor differences.[22] Through IMMACT 90, Congress limited the exclusion ground to “immigrants” rather than applying this provision on its own terms to “aliens” more generally.[23] While nonimmigrant alien members of communist or totalitarian parties cannot be found inadmissible based on INA 212(a)(3)(D), they may be found inadmissible based on other grounds, if applicable.

The naturalization provisions contain a separate but related ineligibility ground for an alien who has been a member of (or affiliated with) the Communist or any other totalitarian party within 10 years of filing and until the applicant takes the Oath of Allegiance.[24] As in the inadmissibility context, there are statutory exceptions to the naturalization bar based on past membership and past involuntary membership.[25] The regulations related to naturalization contain definitions and concepts concerning the Communist Party or other totalitarian parties that USCIS also applies to its interpretation of the inadmissibility ground found at INA 212(a)(3)(D).[26]

3. Legal Authorities

B. Overview of Inadmissibility Ground

In general, any immigrant who is or has been a member of or affiliated with the Communist or any other totalitarian party (or subdivision or affiliate thereof), domestic or foreign, is inadmissible.[27]

1. Applicability

This ground of inadmissibility applies to an alien seeking immigrant status, such as an alien inside the United States applying for adjustment of status to that of a lawful permanent resident (LPR), an alien applying for an immigrant visa with the U.S. Department of State (DOS) at a U.S. embassy or consulate outside of the United States, or an alien applying for admission as an immigrant at a U.S. port of entry.[28]

The inadmissibility ground applies to membership (past or present) and those with an affiliation with such parties. There are certain exceptions to this ground of inadmissibility as well as a waiver.[29] 

2. Overview of Inadmissibility Determination

The following table provides officers with an overview of how to determine whether an alien is inadmissible under INA 212(a)(3)(D).

Overview of Inadmissibility Determination

Step

If yes, then…

If no, then…

Step 1: Determine whether the organization is the Communist or any other totalitarian party

Go to Step 2

Alien is not inadmissible under INA 212(a)(3)(D)

Step 2: Determine whether alien’s connection to the organization rises to the level of membership in or affiliation with such organization

Go to Step 3

Alien is not inadmissible under INA 212(a)(3)(D)

Step 3: Determine whether membership or affiliation was “meaningful”

Go to Step 4

Alien is not inadmissible under INA 212(a)(3)(D)

Step 4: Determine whether one of the exceptions applies

Alien is not inadmissible under INA 212(a)(3)(D)

Alien is inadmissible under INA 212(a)(3)(D)

3. Communist or Any Other Totalitarian Party

An alien who is or has been a member of or affiliated with the Communist or any other totalitarian party is inadmissible under INA 212(a)(3)(D), unless an exception applies.

Under INA 212(a)(3)(D), an officer must first determine whether the organization in question meets the definition of Communist or any other totalitarian party.

The regulations define the Communist Party as:

  • The Communist Party of the United States;

  • The Communist Political Association;

  • The Communist Party of any state of the United States, of any foreign state, or of any political or geographical subdivision of any foreign state;

  • Any section, subsidiary, branch, affiliate, or subdivision of any such association or party;

  • The direct predecessors or successors of any such association or party, regardless of what name such group or organization may have used, may now bear, or may hereafter adopt; and

  • Any communist-action or communist-front organization that was required to register under former Section 786 of Title 50 of the U.S. Code, provided that the applicant knew or had reason to believe, while he or she was a member, that such organization was a communist-front organization.[30]

“Any other totalitarian party” is defined as “an organization which advocates the establishment in the United States of a totalitarian dictatorship or totalitarianism.”[31]

“Totalitarian dictatorship” or “totalitarianism” refer to systems of government not representative in fact, characterized by:

  • The existence of a single political party, organized on a dictatorial basis, with so close an identity between such party and its policies and the governmental policies of the country in which it exists, that the party and the government constitute an indistinguishable unit; and

  • The forcible suppression of opposition to such party.[32]

After determining that the group in question meets the definition of the Communist or any other totalitarian party, the officer must determine if the alien is or has been a member of or affiliated with that group. If the group does not meet the definition, then the alien is not inadmissible under this ground.

4. Extent of Alien’s Involvement

Membership

Membership may be established by the alien’s testimony alone, where that testimony shows a sufficiently viable and purposeful relationship.[33] Membership is not defined in the INA or in the regulations, and is dependent on a person satisfying the requirements for membership as specified by the membership organization in question.

Membership may be established by evidence that the alien was issued a membership card, paid dues to the organization,[34] or even based on witness testimony regarding an alien’s membership in the organization (including seeing an alien’s name on membership records, dues records, and testimony regarding meeting attendance).[35]

Affiliation

Even if an alien is not a member of the Communist or any other totalitarian party, he or she may still be inadmissible if found to be an affiliate of such an organization. The INA states that while “the giving, loaning, or promising of support or of money or any other thing of value for any other purpose to any organization shall be presumed to constitute affiliation . . . nothing in this paragraph shall be construed as an exclusive definition of affiliation.”[36]

Affiliation implies less than membership but more than sympathy.[37] Affiliation includes more than mere interest or sympathy for an organization but may also be accompanied by some positive and voluntary action that provides support, money, or another thing of value.[38] The regulations state that “[a]ffiliation with an organization includes, but is not limited to, the giving, lending, or promising of support or of money or anything of value, to that organization to be used for any purpose.”[39]

“Affiliate” is also used in the context of this inadmissibility ground to describe links between organizations, in addition to ties between an alien and an organization. An affiliate organization of a totalitarian party is one that is related to, or identified with, a proscribed association or party[40] in such close association as to evidence an adherence to or a furtherance of the purposes and objectives of such association or party, or as to indicate a working alliance to bring to fruition the purposes and objectives of the proscribed association or party.[41]

Special Considerations for Military and Government Service

Service in the armed forces of a communist or totalitarian-controlled country, whether voluntary or not, does not in itself constitute or establish an alien’s membership in or affiliation with a communist or totalitarian party.[42] Notwithstanding, if the alien’s service in the armed forces is inherently political, the alien is inadmissible as a member or affiliate of a communist or totalitarian party. In such cases, the officer should determine if the evidence supports a finding that the alien was aware of the political nature of his or her military service. For example, an alien may occupy a sufficiently high rank in the armed forces of his or her country that is inherently political or perform a specific mission that is inherently political.

If the alien was or is a government worker in a communist or communist-controlled country, then the officer should give special attention and scrutinize such employment since voluntary service in a political capacity constitutes affiliation with a political party or the organization in power at the time of service.[43]

5. Whether Involvement was Meaningful

Even if the officer has determined that an alien is or has been a member of or affiliate of a proscribed group, the evidence must show that the alien’s membership or affiliation was meaningful when finding the alien inadmissible.

“Meaningful” membership or affiliation versus “non-meaningful” membership or affiliation has never been codified in the INA but is rather a judicially created concept. In general, membership in a communist or totalitarian party must be intentional in order to be meaningful. Most notably, the Supreme Court of the United States has held that “[t]here must be a substantial basis for finding that an alien committed himself to the Communist Party in consciousness that he was ‘joining an organization known as the Communist Party which operates as a distinct and active political organization[.]’”[44]

An alien’s membership or affiliation is meaningful if the evidence shows that the alien is aware of the political aspects of the proscribed organization during the time of their membership or if the evidence shows that the alien engaged in party activities to a degree that substantially supports an inference of his or her awareness of the party’s political aspect.[45] Accordingly, an alien’s knowledge or awareness of a communist or totalitarian party’s political nature is sufficient to establish that an alien’s membership is meaningful.[46]

C. Adjudication

1. Evidence

A finding of inadmissibility under INA 212(a)(3)(D) must be based on evidence, such as oral testimony, written testimony, or any other documentation containing information about the applicant’s current or prior membership in or affiliation with the Communist or any other totalitarian party. Some USCIS forms, including the Application to Register Permanent Residence or Adjust Status (Form I-485), require applicants to list their memberships in organizations and parties.

Membership or affiliation is a question of fact for the officer to determine. If the facts and evidence available would allow a reasonable person to conclude that the alien is a member or an affiliate of the Communist or any other totalitarian party, then the applicant must establish that he or she qualifies for one of the exceptions or the waiver.

If an applicant misrepresents information regarding membership or affiliation in answering questions on Form I-485, the alien could also be found inadmissible under INA 212(a)(6)(C)(i).[47]

2. Burden of Proof

The burden of proof to establish admissibility when seeking an immigration benefit is always on the applicant.[48] The burden never shifts to the Government at any time during adjudication.[49]

To determine whether an alien is inadmissible based on his or her membership in or affiliation with the Communist or any other totalitarian party, there must be sufficient evidence that would lead a reasonable person to find that he or she is or was a member of or affiliated with a proscribed group.[50] If there is evidence that would permit a reasonable person to conclude that the applicant is inadmissible under this ground, then the officer should find that the applicant has not successfully met the burden of proof. If there is any adverse, third-party information in the record, then the officer conducting an interview is generally expected to confront the applicant with the information and resolve the issue at the time of the interview.

If an officer is basing a decision in whole or in part on information of which the applicant is unaware or could not reasonably be expected to be aware, and the applicant was not confronted with that information and given an opportunity to respond during an interview, the officer must issue a Notice of Intent to Deny (NOID).[51] The NOID provides the applicant an opportunity to review and respond to the information, unless the information is classified.[52] An applicant who fails to meet the burden of proof is inadmissible for being a member or affiliate of the Communist or any other totalitarian party, unless the applicant is able to successfully rebut the officer’s inadmissibility finding.[53]

If the applicant is successful in rebutting the inadmissibility finding, the officer should find that the alien is not inadmissible for being a member or affiliate of the Communist or any other totalitarian party.

D. Exceptions and Waivers

1. Exceptions

Congress provided two statutory exceptions for aliens who might otherwise be found inadmissible for their membership in or affiliation with the Communist or any other totalitarian party. There are two categories of exceptions: involuntary membership and past membership.

Involuntary Membership

The first category of exceptions applies to aliens whose membership or affiliation is or was:

  • Involuntary;

  • Solely when under 16 years of age;

  • By operation of law; or

  • For purposes of obtaining employment, food rations, or other essentials of living and where necessary for such purposes.[54]

Membership or affiliation is considered involuntary when it is the result of factors such as coercion, fraud, duress, incapacity, or some other error which may impair or negate the capacity for affirmative and intentional actions.[55] The burden remains on the alien to establish that the association is involuntary.[56]

An exception also applies when such membership or affiliation occurred solely when the alien was under the age of 16.[57] However, political activities and continuing commitments after the age of 16 are not protected under this exception.[58]

The statute also excepts membership or affiliation occurring solely by operation of law. This includes any case where “the alien automatically, and without personal acquiescence, became a member of or affiliated with a proscribed party or organization by official act, proclamation, order, edict, or decree.”[59]

Joining a proscribed organization in order to obtain the essentials of living is also excepted, absent an ideological commitment to the cause.[60] Examples of the essentials of living refer to “food, shelter, clothing, employment and an education which were routinely available to the rest of the population.”[61]

Under the INA, an alien is not inadmissible when his membership in or affiliation with a communist or totalitarian party is necessary in order to obtain food or employment. Inadmissibility “shall not apply to an alien because of membership or affiliation if the alien establishes . . . that the membership or affiliation is or was . . . for purposes of obtaining employment, food rations, or other essentials of living and whether necessary for such purposes.”[62] If an alien’s membership or affiliation with a communist or totalitarian party was not actually necessary for purposes of such essentials of living, then the alien is inadmissible unless another exception applies.

Past Membership

If an officer has determined that the alien has been a member of or affiliated with a proscribed organization and one of the involuntary membership exceptions does not apply, the officer should evaluate whether the past membership exception applies to the alien.

An alien may be excepted from inadmissibility under INA 212(a)(3)(D) if the alien can establish that:

  • His or her membership in or affiliation with a proscribed organization terminated at least 2[63] or 5 years before the date of receipt of the application (if the alien’s membership or affiliation was with the party controlling the government of a foreign state that is a totalitarian dictatorship as of such date, the alien must establish that his or her membership or affiliation terminated at least 5 years before the date of receipt); and

  • He or she is not a threat to the security of the United States.[64]

In cases that involve past membership, mere termination for the requisite time period is sufficient; active opposition is not required.[65] It is also the applicant’s burden to prove that he or she is not a threat to the security of United States.

Furthermore, where the evidence shows that the alien is a threat to the security of the United States, the alien may also be inadmissible under security and related grounds[66] or terrorist activities.[67] An alien may be found to be a threat to the security of the United States and ineligible for the exception even if not inadmissible under a separate security or terrorist inadmissibility ground.[68]

If the officer finds that a meaningful membership or affiliation in a proscribed organization exists, and the alien does not qualify for either of the two exceptions, then the officer should find the alien inadmissible under INA 212(a)(3)(D) for being or having been a member of the Communist or any other totalitarian party.

2. Waiver

A discretionary waiver is available for certain family members of U.S. citizens or LPRs.

The INA provides that the Secretary of Homeland Security may waive this ground of inadmissibility for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest if: 

  • The alien is a parent, spouse, son, daughter, brother, or sister of a U.S. citizen, or is a spouse, son, or daughter of an LPR;

  • The alien is not a threat to the security of the United States; and

  • The alien warrants a favorable exercise of discretion.[69]

When considering whether or not an alien is a threat to the security of the United States, USCIS considers the following non-exhaustive list of factors:

  • Espionage;

  • Terrorism;

  • Subversion;

  • Public safety, including criminal history and gang activity;

  • Risks to intellectual property;

  • Risks to information security, including disinformation campaigns;

  • Risks to election security; and

  • Risks to public health.

To apply for the waiver, the alien must file an Application for Waiver of Grounds of Inadmissibility (Form I-601).[70]

Footnotes


[^ 1] See INA 212(a)(3)(D)(i).

[^ 2] See INA 212(a)(3)(D)(ii)-(iv). For more information, see Section D, Exceptions and Waivers [8 USCIS-PM F.3(D)].

[^ 3] See Sections 1 and 2 of the Immigration Act of 1918, Pub. L. 65-221 (PDF), 40 Stat. 1012, 1012 (October 16, 1918). This Act expanded upon the brief definition of anarchy found in prior law to cover all forms of activities related to its advocacy, including membership in and affiliation with any organization or group that advocated opposition to all forms of organized government.

[^ 4] See Section 3 of the Immigration Act of 1918, Pub. L. 65-221 (PDF), 40 Stat. 1012, 1012-13 (October 16, 1918).

[^ 5] See Section 2 of the Foreign Agents Registration Act of 1938, Pub. L. 75-583, 52 Stat. 631, 632 (June 8, 1938) (codified at 22 U.S.C. 611-621).

[^ 6] Also known as the Smith Act, see Pub. L. 76-670 (June 28, 1940).

[^ 7] In the Alien Registration Act of 1940, Congress also expanded the exclusion grounds from the Immigration Act of 1918 relating to “aliens who are members of the anarchistic and similar classes.” Previously, only aliens who were members of such classes at the time of entry were excludable. In 1940, Congress expanded the ground to include aliens who “at any time” were members of these classes.

[^ 8] See Pub. L. 81-831 (September 23, 1950).

[^ 9] See Sections 2 and 4 of the Internal Security Act of 1950, Pub. L. 81-831, 64 Stat. 987, 987-89, 991-92 (September 23, 1950).

[^ 10] See Sections 6 and 7 of the Internal Security Act of 1950, Pub. L. 81-831, 64 Stat. 987, 993, 993-95 (September 23, 1950).

[^ 11] This exclusion ground did not apply to certain nonimmigrants. See Section 22 of the Internal Security Act of 1950, Pub. L. 81-831, 64 Stat. 987, 1006-10 (September 23, 1950).

[^ 12] See Section 25 of the Internal Security Act of 1950, Pub. L. 81-831, 64 Stat. 987, 1013-15 (September 23, 1950).

[^ 13] See Pub. L. 82-14 (March 28, 1951).

[^ 14] See former Section 212(a)(28) of the INA of 1952, also referred to as the McCarran-Walter Act, Pub. L. 82-414 (PDF), 66 Stat. 163, 184 (June 27, 1952).

[^ 15] See former INA 212(a)(28)(I)(i).

[^ 16] See former INA 212(a)(28)(I)(ii).

[^ 17] See Section 212(d)(2) and (3) of the INA of 1952, Pub. L. 82-414 (PDF), 66 Stat. 163, 187 (June 27, 1952).

[^ 18] See Section 112 of the Foreign Relations Authorization Act of Fiscal Year 1978, Pub. L. 95-105 (PDF), 91 Stat. 844, 848 (August 17, 1977).

[^ 19] See Section 112 of the Foreign Relations Authorization Act of Fiscal Year 1978, Pub. L. 95-105 (PDF), 91 Stat. 844, 848 (August 17, 1977).

[^ 20] See Section 109 of the Department of State Authorization Act, Fiscal Years 1980 and 1981, Pub. L. 96-60 (PDF), 93 Stat. 395, 397 (August 15, 1979).

[^ 21] See Pub. L. 101-649 (PDF) (November 29, 1990).

[^ 22] In 1991, Congress amended the term “alien” to “immigrant” in INA 212(a)(3)(D)(iv). See Section 307(a)(4) of the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, Pub. L. 102-232 (PDF), 105 Stat. 1733, 1753 (December 12, 1991). A few years later, Congress made further amendments to the INA by replacing the term “excludable” with “inadmissible.” See Section 301 of the Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L 104-208 (PDF), 110 Stat. 3009, 3009-575-79 (September 30, 1996).

[^ 23] See Section 601 of IMMACT 90, Pub. L. 101-649 (PDF), 104 Stat. 4978, 5067-77 (November 29, 1990).

[^ 24] See INA 313 and 8 CFR 313.

[^ 25] See INA 313 and 8 CFR 313.

[^ 26] See 8 CFR 313.1. For more information on the corresponding naturalization provision, see Volume 12, Citizenship and Naturalization, Part D, General Naturalization Requirements, Chapter 7, Attachment to the Constitution [12 USCIS-PM D.7].

[^ 27] See INA 212(a)(3)(D)(i).

[^ 28] For more information on adjustment of status, see Volume 7, Adjustment of Status [7 USCIS-PM].

[^ 29] For more information, see Section D, Exceptions and Waivers [8 USCIS-PM F.3(D)].

[^ 30] See 8 CFR 313.1 (definitions).

[^ 31] See INA 101(a)(37). See 22 CFR 40.34(f).

[^ 32] See INA 101(a)(37). See 22 CFR 40.34(f), which indicates that any former or present voluntary member of, or an alien who was, or is, voluntarily affiliated with a noncommunist party, organization, or group, or any section, subsidiary, branch, affiliate or subdivision thereof, which during the time of its existence in which the totalitarian party did not or does not advocate for the establishment of a totalitarian dictatorship in the United States, is not considered ineligible under INA 212(a)(3)(D) to receive a visa.

[^ 33] See Langhammer v. Hamilton, 295 F.2d 642, 645 (1st Cir. 1961) (holding that the alien was deportable for being a member of the Communist Party, an excludable class of aliens, based exclusively on the alien’s own testimony). 

[^ 34] See Langhammer v. Hamilton, 295 F.2d 642, 647 (1st Cir. 1961) (where the alien was found to be a member of three Communist-controlled organizations in addition to the Party itself. In that case, the evidence showed that he not only carried a membership card and paid dues, but also served as an officer of two different Party units, organized meetings, arranged for speakers, collected dues from others, and maintained Party records).

[^ 35] See Matter of A---, 6 I&N Dec. 524 (BIA 1955) (where the alien was found to be a member of the Communist Party based on a witness testifying that he had seen the alien’s name on official Communist Party records, received a Communist Party membership book issued to the alien, and another witness testifying to seeing the alien at a Communist Party meeting). See Wellman v. Butterfield, 235 F.2d 932 (7th Cir. 1958) (finding that a witness testifying to attending over a hundred closed Communist Party meetings with the alien and that the witness had issued the alien a membership card and collect dues from the alien was sufficient to prove membership in the Communist Party).

[^ 36] See INA 101(e)(2). See 8 CFR 313.1.

[^ 37] See Bridges v. Wixon, 326 U.S. 135 (1945).

[^ 38] See Matter of G---, 5 I&N Dec. 112 (BIA 1953) (holding that an alien, who was not a member of the Communist Party, but was a sympathizer with its principles, who subscribed to and sold a Communist newspaper, distributed Communist literature, and made speeches on behalf of the Party was deemed to have been affiliated with the Communist Party). See Bridges v. Wixon, 326 U.S. 135 (1945) (where the Supreme Court states that affiliation implies something less than membership but more than sympathy).

[^ 39] See 8 CFR 313.1.

[^ 40] Including any section, subsidiary, branch, or subdivision of the association or party.

[^ 41] See 22 CFR 40.34(a).

[^ 42] See 22 CFR 40.34(b).

[^ 43] See 22 CFR 40.34(c).

[^ 44] See Rowoldt v. Perfetto, 355 U.S. 115, 120 (1957) (quoting Galvan v. Press, 347 U.S. 522, 528 (1954)).

[^ 45] See Gastelum-Quinones v. Kennedy, 374 U.S. 469, 476-77 (1963) (holding that the evidence was insubstantial to demonstrate that the alien was “sensible to the Party’s nature as a political organization” or that he engaged in “Party activities to a degree substantially supporting an inference of his awareness of the Party’s political aspect”).

[^ 46] See Wellman v. Butterfield, 253 F.2d 932, 933 (6th Cir. 1958) (“[T]he foregoing evidence was sufficient to . . . establish that the appellant joined the party, aware that she was ‘joining an organization known as the Communist Party which operates as a distinct and active political organization[.]’” (quoting Galvan)). See Matter of Rusin (PDF), 20 I&N Dec. 128 (BIA 1989) (holding that the alien did not have a meaningful association with the Communist Party since she did not commit herself to a Communist organization).

[^ 47] For more information, see Part J, Fraud and Willful Misrepresentation [8 USCIS-PM J].

[^ 48] See INA 291. See Matter of Bett (PDF), 26 I&N Dec. 437 (BIA 2014). For more information, see Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 4, Burden and Standards of Proof [1 USCIS-PM E.4].

[^ 49] See INA 291.

[^ 50] The reasonable person standard derives from INS v. Elias-Zacarias, 502 U.S. 478 (1992) (agency factfinding must be accepted unless a reasonable factfinder would necessarily conclude otherwise).

[^ 51] For example, investigative reports, reports from informants, school record, or employment records not provided by the applicant.

[^ 52] See 8 CFR 103.2(b)(16)(iv).

[^ 53] If USCIS has made a decision on the application, the applicant may provide new facts for consideration by seeking a motion to reopen. To do so, the applicant must file a Notice of Appeal or Motion (Form I-290B).

[^ 54] See INA 212(a)(3)(D)(ii).

[^ 55] See Matter of B---, 5 I&N Dec. 72 (BIA 1953).

[^ 56] See Matter of B---, 5 I&N Dec. 72 (BIA 1953). For more information on burden of proof, see Section C, Adjudication, Subsection 2, Burden of Proof [8 USCIS-PM F.3(C)(2)].

[^ 57] See INA 212(a)(3)(D)(ii).

[^ 58] See Matter of Pust (PDF), 11 I&N Dec. 228 (BIA 1965) (where the BIA acknowledged that the alien’s participation of youth organizations commenced when he was under 16 years of age and continued throughout high school but his membership was found to be of a passive nature for the purposes of obtaining a grade school and high school education).

[^ 59] See 22 CFR 40.34(e). See Grzymala-Siedlecki v. U.S., 285 F.2d 836 (5th Cir. 1961) (where the alien automatically became a member of the Communist Party even though “[h]e signed no application for membership, received no membership card and was never sworn in.”).

[^ 60] See INA 212(a)(3)(D)(ii).

[^ 61] See, for example, 8 CFR 313.3(d)(1)(i).

[^ 62] See INA 212(a)(3)(D)(ii).

[^ 63] Aliens who were members of or affiliated with a communist or other totalitarian party that was not controlling the government of a foreign state that was a totalitarian dictatorship only need to show that their membership or affiliation terminated 2 years before the date of receipt of the application.

[^ 64] See INA 212(a)(3)(D)(iii).

[^ 65] See Section 601 of IMMACT 90, Pub. L. 101-649 (PDF), 104 Stat. 4978, 5067-5077 (November 29, 1990) which eliminated the requirement of active opposition to the doctrine, program, principles, and ideology of the Communist or totalitarian organization.

[^ 66] See INA 212(a)(3)(A).

[^ 67] See INA 212(a)(3)(B).

[^ 68] See Volume 7, Adjustment of Status, Part A, Adjustment of Status Policies and Procedures, Chapter 6, Adjudicative Review, Section E, Security Checks and National Security Concerns [7 USCIS-PM A.6(E)] for more information regarding national security concerns.

[^ 69] See INA 212(a)(3)(D)(iv). For more information on discretion, see Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 8, Discretionary Analysis [1 USCIS-PM E.8] and Volume 9, Waivers, Part A, Waiver Policies and Procedures, Chapter 5, Discretion [9 USCIS-PM A.5].

[^ 70] For more general information on waivers, see Volume 9, Waivers, Part A, Waiver Policies and Procedures [9 USCIS-PM A].

Resources

Legal Authorities

INA 101(a)(37) - Definition of totalitarian party

INA 212(a)(3)(D) - Immigrant membership in totalitarian party

Appendices

No appendices available at this time.

Updates

POLICY ALERT - Inadmissibility Based on Membership in a Totalitarian Party

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to address inadmissibility based on membership in or affiliation with the Communist or any other totalitarian party.

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Technical Update - Moving the Adjudicator’s Field Manual Content into the USCIS Policy Manual

U.S. Citizenship and Immigration Services (USCIS) is updating and incorporating relevant Adjudicator’s Field Manual (AFM) content into the USCIS Policy Manual. As that process is ongoing, USCIS has moved any remaining AFM content to its corresponding USCIS Policy Manual Part, in PDF format, until relevant AFM content has been properly incorporated into the USCIS Policy Manual. To the extent that a provision in the USCIS Policy Manual conflicts with remaining AFM content or Policy Memoranda, the updated information in the USCIS Policy Manual prevails. To find remaining AFM content, see the crosswalk (PDF) between the AFM and the Policy Manual.

Technical Update - Replacing the Term “Foreign National”

This technical update replaces all instances of the term “foreign national” with “alien” throughout the Policy Manual as used to refer to a person who meets the definition provided in INA 101(a)(3) [“any person not a citizen or national of the United States”].