Inadmissible as Totalitarian or Communist Member


Those applying for a U.S. green card may be affected by their past party membership in other countries. An applicant can be denied permanent residence through a number of grounds of inadmissibility. One that many applicants struggle with is membership in a totalitarian party, which by statute includes the Communist party.

Membership in a Communist or totalitarian party renders an applicant inadmissible, pursuant to Section 212(a)(3)(D) of the Immigration and Nationality Act. This can be a problem for applicants such as Chinese nationals. Some of them joined the Chinese Communist Party (CCP) voluntarily while others were pressured to join to secure employment opportunities or other government benefits. It is common for these members to then pay a monthly membership due for the party but otherwise continue their lives as normal. Should these people be prevented from applying for a green card?

The immigration law recognizes that membership does not necessarily mean belief in the party's values. There are several exceptions to this ground of inadmissibility due to totalitarian membership.

One exception is involuntary membership, which can occur when an applicant is added to the party without his/her permission or knowledge. For example, membership that began before the age 16 is ignored by the statute. Similarly, membership that was required in order to attain living necessities (i.e. food rations) are exceptions.

Sometimes a person may be under immense pressure and threat of consequences to join a political party. If so, one may also argue that his/her membership in a totalitarian party is not voluntary.

The law also exempts past membership that ended at least 2 years before the date of filing one's green card application. If a person's membership is with a totalitarian party that also controls the government (e.g., the CCP), membership will need to have terminated at least 5 years before application in order for the exemption to apply.

The U.S. Supreme Court has also held that a person is not inadmissible if his membership in a totalitarian party is not "meaningful". See Rowoldt v. Perfetto, 355 U.S. 115 (1957) (Communist Party membership devoid of any political implications are not meaningful enough to render the petitioner inadmissible). It means that if a person does not understand or truly believe in the political and ideological convictions of the party, his membership is only in form rather than substance. As such, the person should not be punished for merely joining the party.

Some applicants wish to join their family in America but are unable to due to their past membership. Exceptions (called waivers) are made for those who are the parent, spouse, son/daughter, or sibling of a U.S. citizen. Similarly, the spouse or son/daughter of a legal permanent resident can have their inadmissibility waived. The U.S. government may agree to waive these applicant's inadmissibility grounds for humanitarian reasons, to ensure family unity, or if doing so is in the public interest. Further, to be eligible for a waiver, an applicant must also not be a threat to national security.

In connection with these waiver applications, some USCIS field offices also request for proof that the applicant no longer has ties with the totalitarian or communist state. These may include family ties and property ties. Although such proof is not a statutory requirement, it is a discretionary factor that USCIS may consider in adjudicating the waiver application.

Cases involving inadmissibility grounds are complex, requiring in-depth factual and legal analysis. A person with past totalitarian or communist party membership should consult with an experienced attorney before filing their green card applications.

Reprinted with permission.

About The Author

Paul Szeto served as a Trial Attorney and Assistant District Counsel for the New York District of the former Immigration and Naturalization Service (INS, whose functions have since been transferred to DHS) from 1994 to 1999. As an INS attorney, Mr. Szeto personally handled hundreds of immigration cases. In addition to handling immigration and nationality cases inside and outside of the courtroom, he also offered legal advice to immigration inspectors and adjudicators. Towards the end of his tenure, Mr. Szeto was assigned to investigate naturalization fraud cases, prosecute employment violations, and handle the stipulated judicial removal cases with U.S. Attorney's Offices. Paul started his legal career by volunteering for legal clinics and clerking for an immigration law firm in the San Francisco Bay Area. Mr. Szeto also served as a student extern for the Chief Administrative Justice of the California Court of Appeal. Mr. Szeto graduated magna cum laude from San Francisco State University in 1989 and earned his Juris Doctor from University of California, Hastings College of the Law in 1994. Mr. Szeto was granted the American Immigration Law Foundation's Edward L. Dubroff Memorial Award for outstanding writing in the field of Immigration and Nationality Law in 1994. Mr. Szeto is Co-Chairman of the N.J. Middlesex County Bar Association's Immigration Law and Practice Committee, frequently speaking on various immigration issues.

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