join a trade union, or Profesoruse, known as the Profesoruse of the Workers of Higher Skills. Dues for this organization were deducted from the salary of the members.

It is because of his membership in this organization that the male applicant has been found inadmissible to the United States by the Immigration and Naturalization Service under section 1 (2) (C) (v) of the act of October 16, 1918, as amended by section 22 of the Internal Security Act of 1950, as a member of an organization which is an affiliate of the Communist Party of Russia.

This case is directly affected by an amendment to the Internal Security Act, approved March 28, 1951. Under this amendment the terms "members of" and "affiliated with," as used in the act of October 16, 1918, as amended, shall include only membership or affiliation which is or was voluntary. According to the uncontradicted testimony of the male applicant, he was required to join the Profesoruse of the Workers of Higher Skills. There is no evidence to the contrary. We feel his testimony in this particular should be accepted without corroboration, since the practice in totalitarian countries of requiring workers to join organizations of this character is well known. We, therefore, accept the testimony of the male applicant that his membership in the Profesoruse of the Workers of Higher Skills was involuntary and, hence, under the act of March 28, 1951, his past membership in this organization is not a basis for exclusion.

The wife has been found inadmissible solely because her husband was considered inadmissible.

Order: It is ordered that the appeal be sustained, and the applicants be found admissible to the United States upon securing valid replacement visas.

Editor's note.-On April 27, 1951, the B. I. A. entered a decision in the Matter of N————, A-7927146, unreported, citing the above cases and finding the alien not inadmissible as a member of an organization affiliated with the Communist Party of Russia, to wit: "The Trade Union of Workers of Education" in Russia. The alien was a teacher of mathematics and physics in the U. S. S. R. and admitted membership from 1925 to 1941 in the above trade union. Membership in this trade union was found to be compulsory for all teachers and the entire personnel of the school. Dues were paid by compulsory deductions from salaries. The alien discontinued teaching in September 1941 because of induction into the Soviet Army (wherein he served as a private until captured by the Germans in October 1941).

260397-54- -23

IN THE MATTER OF M

In EXCLUSION Proceedings

A-7945007

Decided by Board April 12, 1951

Subversive, membership in a subsidiary or affiliate of the Communist PartyExclusion ground, service in the Soviet Army-Act of October 16, 1918, as amended by section 22 of the Internal Security Act of 1950-Public Law 14 (March 28, 1951).

Service in the armed forces of any country (Russia in this case) whether voluntary or not, is not to be regarded, of itself, as membership or affiliation with, any proscribed party or organization, and does not, of itself, constitute a ground for exclusion. (Public Law 14, act of March 28, 1951 (H. R. 2339, S. 728) and instructions governing its application).

EXCLUDED BY BOARD OF SPECIAL INQUIRY:

Act of October 16, 1918, as amended-Service in the armed forces of a totalitarian government.

BEFORE THE BOARD

Discussion: This is an appeal from an order entered by the Acting Assistant Commissioner on March 15, 1951, affirming the appellant's exclusion on the above-stated ground at the port of New York by a board of special inquiry. Counsel in her exceptions to the order contends that the appellant's service in the armed forces of a totalitarian government was compulsory, leaving him no alternative with regard to membership in a branch of a totalitarian party as contemplated under the Internal Security Act of 1950.

The appellant, a native and citizen of Russia, male, 26 years of age, unmarried, last arrived in the United States ex-U. S. N. S. General Harry Taylor at the port of New York on December 28, 1950. He sought to enter for permanent residence and presented a nonpreference-quota immigration visa issued under Public Law 774 as a displaced person. He testified that he was drafted into the Army of the U. S. S. R. and saw service therein from 1941 until his capture by the Germans during February of 1943. Under a ruling of the Attorney General that service in the Soviet army, both present and former, shall be regarded as membership in a subsidiary or affiliate

of the Communist Party, the appellant's exclusion by the board of special inquiry was mandatory under section 1 (2) (C) of the act of October 16, 1918, as amended by section 22 of the Internal Security Act of 1950 (files 56307/191, 56305/252).

The act of October 16, 1918, as amended by the Internal Security Act of 1950, now excepts from its provisions an alien whose membership in or affiliation with a branch of a totalitarian party of a foreign state was compulsory (H. R. 2339, 82d Cong., approved March 28, 1951). Instructions which have been promulgated to govern the application of H. R. 2339 (supra), state in part:

Service, whether voluntary or not, in the armed forces of any country shall not be regarded, of itself, as membership or affiliation with, any proscribed party er organization, and shall not, of itself, constitute a ground for exclusion.

Accordingly, we find the appellant admissible as a nonquota immigrant under section 6 (a) (3) of the Immigration Act of 1924, as amended, and under section 2 (c) of Public Law 774, as amended, as a displaced person.

Order: It is directed that the appeal be and the same is hereby sustained, the appellant to be admitted in accordance with the foregoing opinion if otherwise admissible.

Editor's note. Similar conclusion by B. I. A. in unreported Matter of A—, A-7283185, April 13, 1951, which involved Service in the Soviet Army from October 1918 until his capture at Stalingrad during July or August 1942 by an alien applying for admission as a displaced person.

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