Did you think the Cold War was over? The U.S. Immigration and Nationality Act still makes inadmissible (i.e., ineligible) for permanent residence and citizenship certain persons who have been members of or affiliated with the Communist Party. The Chinese Communist Party (CCP) has some 80 million members, so this ground of ineligibility is a key issue for immigration lawyers representing Chinese clients.
Ineligibility for Permanent Residence
Generally speaking, “membership” in “the Communist or any other totalitarian party” makes a person may be ineligible for a green card. INA § 212(a)(3)(D)(i). See INA § 101(a)(37) (defining “totalitarian party”).
So does membership in any organization “affiliate[d]” with such a Party. INA § 212(a)(3)(D)(i). In China, such organizations include minor political parties and mass organizations (e.g., Communist Youth League, All-China Federation of Industry and Commerce, All-China Federation of Trade Unions, All-China Women’s Federation). Such organizations are led by the Party, which uses them to penetrate the society at large and encourage popular support for Party policies. Robert L. Worden, et al, China: A Country Study (GPO 1987), http://countrystudies.us/china/107.htm.
For example, the Communist Youth League (中国共产主义青年团) is an organization for youth between ages 14 and 28. The CYL is organized on the Party model. Its goal is to train youth to practice socialism and communism “with Chinese characteristics. Although CYL membership is not required for full Party membership, it does facilitate the path. CYL has over 70 million members. Almost all high school graduates are CYL members.
Further, a person who is not a member of the Party or any other proscribed organization ineligible for a green card if he or she has been “affiliated with” the Party or one of these other organizations. Id. “Voluntary service” in a “political capacity” does constitute “affiliation with” the Party. 22 C.F.R. § 40.34(c). And “employment in a responsible position in the government,” including the military, of a communist-controlled country” is presumed to be “voluntary service.” 9 FAM 302.5-6(B)(4). A “rank-and-file” government workers doesn’t count as a person in a “responsible position.” Id.
Distinguishing whether a particular applicant is in a “responsible” or “rank-and-file” position may not always be easy, but it likely turns on the applicant’s position in the government hierarchy and the extent of their political responsibilities as opposed to professional responsibilities. For example, “continuing service and/or promotion to a higher rank, e.g., the officer corps, could result in the alien’s serving in a political capacity.” Id.
Possession of a diplomatic, special, or service passport issued by a communist country may be an indication of “affiliation.” with a proscribed organization.
But there are three important exceptions to ineligibility.
First, a person is admissible if the membership or affiliation terminated at least five years before the date of application. INA § 212(a)(3)(D)(iii) (or 2 years in the case of a country where the Communist Party doesn’t control the government). At least in theory, a member is free to withdraw. CCP Const., art. 9. Also, inactivity can lead to termination of membership. A Party member who fails to take part in regular Party activities, pay membership dues or do work assigned by the Party for six successive months without good reason may be regarded as having given up membership. Id.
Second, a person is admissible if membership or affiliation is involuntary, including but not limited to “solely when the alien is under 16 years of age” or where necessary for purposes of obtaining employment, food rations, or other essentials of living. INA § 212(a)(3)(D)(ii). In China, it may be difficult to prove that CCP membership is “necessary” to obtain the essentials of life because alternatives to CCP membership are clearly better today than they were in the 1970s. In particular, private entrepreneurship has become an increasingly viable alternative to party membership. In China, many non-CCP members succeed in business, have security of person, benefit from the country’s economic growth, and so on.
Third, a person is admissible if his or her association with the Party is “not meaningful,” meaning that he or she lacks “commitment to the political and ideological convictions of communism.” 9 FAM 302.5-6(B)(6). This is a judicially-created rule, and it is difficult to neatly synthesize the cases. The leading case, Rowoldt v. Perfetto, was about a man who for about a year paid dues to the U.S. Communist Party, attended meetings, petitioned the government related to unemployment laws and the government budget, worked at a Party bookstore, and stated that his purpose in joining the party was to get jobs, food, clothes, and shelter for the people. 355 U.S. 115 (1957). He denied opposing democratic principles. He denied any commitment to violence and denied that violence was discussed at any meetings he attended. His Party membership ended only when he was arrested and charged with being deportable due to his membership. The Supreme Court held that he qualified for the non-meaningful association exception because his understanding of party’s principles as “unilluminating” and the “dominating impulse” of his affiliation with the party was “wholly devoid” of any “political implications.”
Today, CCP membership isn’t necessarily ideologically meaningful. Since the 1980s, when reform policies brought great improvements to China’s standard of living, traditional Communist ideology has been overturned by contrary slogans such as “To get rich is glorious,” a saying attributed to former paramount leader Deng Xiaoping. The CCP continues to pay lip service to Marxist-Leninist ideology, but ideology has become a post hoc rationalization device. Deng also said, “It doesn’t matter if a cat is black or white so long as it catches the mouse.”
Instead, Party membership is often sought because the CCP is “a sort of Rotary Club of 70 million people who joined in because it’s good for their careers.” See David L. Shambaugh, China’s Communist Party: Atrophy and Adaptation 25 (2008), quoting Harvard Professor Rod MacFarquhar. The Party is a mutually advantageous social network that distributes favors and privileges (guanxi) to its members. Mere membership in the party also signals elite status to potential government or private employers. It’s “shorthand for being an excellent person.” See Jamil Anderlini, et al., Welcome to the Party!, FT Magazine (Sept. 28, 2012). Membership is also a hedge against political risk, not unlike emigration. So it’s not uncommon for a person to write up a party membership application with one hand and fill in a U.S. immigration application with the other.
Finally, in addition to these exceptions to ineligibility, there is also a waiver available in the case of the parent, spouse, son, daughter, brother, or sister of a U.S. citizen; or the spouse, son, or daughter of a lawful permanent resident. The applicant must be seeking admission for humanitarian purposes, to assure family unity, or for other reasons serving the public interest. The applicant must not be a threat to U.S. security and must merit a positive discretionary finding. INA § 212(a)(3)(D)(iv).
Procedurally speaking, the government asks about communist party membership in the immigrant visa application form (DS-260) and the adjustment application form (I-485). The applicant and counsel should be prepared for related questions during the interview and should document eligibility for a waiver or the applicability of an exception to the ground of inadmissibility. A legal brief may be helpful.
Immigrant visa applicants also need to be prepared for possible delays while the consular officer seeks a security advisory opinion from the Department of State in Washington, DC. Former 9 FAM 40.34 N3.3-1, N4.3, N4.4.
Ineligibility for Citizenship
To apply for naturalization, an applicant must prove he or she is loyal to the principles of the U.S. Constitution and the basic form of government of the United States. INA § 316(a); 8 C.F.R. § 316.11(a).
A person is ineligible for naturalization if he or she
- has been a member or affiliate of the communist party or of any affiliate of the party;
- advocates the doctrines of world communism or the establishment of a totalitarian dictatorship in the United States; or
- writes, publishes, or circulates printed matter advocating the doctrine of world communism of the establishment of a totalitarian dictatorship in the United States.
There are exceptions for persons whose membership terminated more than 10 years before applying for naturalization and for involuntary membership or affiliation. INA § 313(c), (d). There is also an exception for non-meaningful membership or association. Legacy INS Interpretations 313.2(c).
The author, Gary Chodorow, represents businesses, families, and others in U.S. visa, permanent residence, and nationality matters. He also writes the Law and Border Blog at LawAndBorder.com.