During the Trump administration, immigration lawyers have become accustomed to “shock by memo,” meaning backdoor rules announced by government memo with no prior notice, typically on a Friday afternoon, which leave us scrambling to help clients understand how the new rules may apply to applications filed months or years ago under a different memo.[1]
On October 2, USCIS issued a Policy Alert stating that the agency has updated the chapter of its Policy Manual related to immigrant membership in the Communist Party.[2] The Policy Manual is intended to summarize statutes, regulations, and case law in order to facilitate officers’ adjudication of immigration benefit applications.[3] However, this update, related to immigrant membership in the Communist Party, provides an inaccurate summary of hte law and conflicts with State Department rules.
As background, under the Immigration and Nationality Act (INA), certain persons who have been members of or affiliated with the Communist Party or affiliated organization are ineligible for U.S. permanent resident status. There have long been ideological bases for exclusion from the United States. But the Internal Security Act of 1950[4] was the first to explicitly list Communist Party membership as grounds for inadmissibility.[5] For a brief summary of the current rules, see Communist Party Membership Makes Some Ineligible for U.S. Green Card and Citizenship,
The Policy Manual update misconstrues a series of Supreme Court cases interpreting what it means to be a “member” of the Communist Party as that term is used in provisions now found at INA § 212(a)(3)(D).
How the Supreme Court Has Defined Membership
- Galvan v. Press, 347 U.S. 522 (1954): In this case, the Court recognized that a person listed as a member on Party rolls may have a relationship with the Party “so nominal as not to make him a ‘member’ within the meaning of the Act.” In particular, a person does not count as a member if they were not aware the organization they were joining is the Communist Party or that the organization operates as a “distinct and active political organization.”
- Rowoldt v. Perfetto, 355 U.S. 115 (1957): In this case, the Court recognized that a person is not a member unless they have a meaningful association with the Party. If the “dominating impulse” of their association with the Party is “wholly devoid of any political implications,” they do not count as a member. The State Department explains it this way: there is no membership without “commitment to the political and ideological convictions of communism.”[6]
- Gastelum-Quinones v. Kennedy, 374 U.S. 469 (1963): Here, the Court reaffirmed that to count as a member, a person must have both the awareness required by Galvan and the meaningful association required by Rowoldt.
How the Policy Manual Misconstrues the Supreme Court’s Decisions
The most important way that the Policy Manual goes off the rails is that it conflates the holdings of Galvan and Rowoldt, reading Rowoldt’s reference to “meaningful association” as simply requiring awareness that the organization is a Communist political organization. The Policy Manual omits any reference to Rowoldt’s holding that membership requires commitment to communism’s political and ideological goals. It reads:
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. 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.[7]
Since 1963 when Gastelum reaffirmed Rowoldt’s holding, there does not appear to be a single administrative or court decision consistent with the Policy Manual’s logic.
Who Is Harmed by the Policy Manual’s Interpretation?
Beginning in the 1920s, the U.S. Government rounded up many noncitizens who were members of the U.S. Communist Party, deporting them for activities that would be protected under the First Amendment if they were U.S. citizens. Still, the Court’s limitation on the definition of membership saved some whose connection with the Party was nonmeaningful. The Court explained:[8]
there is a great practical and legal difference between those who firmly attach themselves to the Communist Party being aware of all of the aims and purposes attributed to it, and those who temporarily join the Party, knowing nothing of its international relationships and believing it to be a group solely trying to remedy unsatisfactory social or economic conditions, carry out trade-union objectives, eliminate racial discrimination, combat unemployment, or alleviate distress and poverty.
Today, the limitations on the definition of membership remain important. The Chinese Communist Party (CCP) maintains its grip on power by “permeat[ing] every corner of every citizen’s life…. The CCP permeates every level of society, pulling strings that control every activity.”[9] The CCP has branches inside every state administrative organ, as well as mass organizations at all levels. The CCP branches also exist inside of companies, both private and state-owned. Regular people with no political ambitions may be involved in nonmeaningful ways with the Party or affiliated organizations. For example:
- Church members: The United Front Work Department of the CCP has direct responsibility for managing religious affairs in China. Religious organizations must be registered and operate under the direction of that CCP department.[10] As a result, a person who belongs to a Protestant or Catholic church is inadmissible as a “member” of an organization affiliated with the CCP, unless they have the opportunity to demonstrate that they have no commitment to communist political and ideological goals.
- Students: The Party seeks to find people with talent and technical and educational qualifications that will aid the Party in pursuit of its technocratic economic growth policy. The Party also seeks to coopt future leaders of the middle class so as to hold sway over this growing sector of society. For these reasons, the Party has increased recruitment among university students[11] Students join the Party because it is a resume booster that can get one hired and promoted more rapidly. In urban China, every significant position of authority, not only in the government but in state-owned enterprises, schools, hospitals, think-tanks, the media, you name it, is filled by a decision of the party and for a significant number of those positions, membership is a requirement.[12] So joining the Party is seen by students as good for their careers. But such students are inadmissible to the U.S. as members of the CCP, unless they have the opportunity to demonstrate that they have no commitment to communist political and ideological goals.
Next Steps
Now that USCIS and the State Department policies interpret “meaningful association” differently, persons planning to apply for permanent resident status should consult with their attorneys about whether to file a Form I-485, Application to Adjust Status, with USCIS or an immigrant visa application with a U.S. Embassy or Consulate overseas. If you already have a pending application, discuss with your attorney whether a course correction is needed.
[1] See Jill E. Family, Easing the Guidance Document Dilemma Agency by Agency: Immigration Law and Not Really Binding Rules, 47 U. Mich. J. L. Reform 1, 17 (2013) (discussing immigration agencies’ reliance on guidance documents even before the Trump administration).
[2] USICS, Policy Alert: Inadmissibility Abased on Membership in a Totalitarian Party (Oct. 2, 2020), https://www.uscis.gov/news/alerts/uscis-issues-policy-guidance-regarding-inadmissibility-based-on-membership-in-a-totalitarian-party, amending 8 USCIS-PM F.3.
[3] USCIS, About the Policy Manual (Oct. 6 , 2020), https://www.uscis.gov/policy-manual.
[4] Pub. L. No. 81-831, 64 Stat. 987 (1950).
[5]Id., at § 22.
[6] 9 FAM 302.5-6(B)(6) (May 16, 2019).
[7] 8 USCIS-PM F.3(B)(5).
[8] Gastelum, 374 U.S. at 473.
[9] Peter Ford, The Party, Christian Science Monitor (Aug. 2, 2010), https://www.csmonitor.com/Books/Book-Reviews/2010/0802/The-Party.
[10] U.S. Dep’t of State, Report on International Religious Freedom: China (2019), https://www.state.gov/reports/2019-report-on-international-religious-freedom/china/.
[11] Gang Guo, Party Recruitment of College Students in China, 14 Journal of Contemporary China 371, 374 (2005).
[12] Jamil Anderlini, et al., Welcome to the Party!, FT Magazine (Sept. 28, 2012).
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