USCIS has adopted a policy that will make it easier to find aliens inadmissible on the grounds of Communist Party membership, but the policy ignores existing case law requiring that membership be meaningful and defining what that means.
On Oct. 2, 2020, US Citizenship & Immigration Services (USCIS) issued a Policy Alert addressing the question of when membership in the Communist Party (or affiliates) in any country would constitute grounds for inadmissibility to the United States. The Policy Alert in turn points to the full policy set forth in the USCIS’s Policy Manual. Obviously, this is a matter of concern to people in China.
Membership in the Communist Party has long been a red flag under US immigration law, but there have been various circumstances under which it isn’t an absolute bar to admission — for example, you joined as a minor when you didn’t know what you were doing, or joining was a requirement of employment and you were never a believer. Here’s an informative blog post on the issue as things stood prior to the Policy Alert. The question is, what if anything has changed after this Policy Alert?
I’ve been unable to track down whatever the Policy Manual said before Oct. 2 (the Internet Archive doesn’t have anything), so I can’t do a before-and-after text comparison. But here is a blog post from immigration lawyer Gary Chodorow that explains what’s going on.
I can summarize the post as follows:
- Membership in the Communist Party must be “meaningful” to be problematic.
- There are court decisions about what “meaningful” means.
- What is new in the Policy Manual is that it ignores one of those important decisions, and effectively reads the “meaningful” requirement out of existence. Therefore, the USCIS will much more readily find that membership was “meaningful” than under previous policy.
- There will therefore be more findings of inadmissibility than before by the USCIS on the grounds that Party membership was meaningful.
- Those who are deemed inadmissible by USCIS under the new interpretation, but would not have been so deemed under the previous interpretation and have the resources to challenge the USCIS decision in further proceedings in court, may well win provided courts adhere to previous case law or at least give some meaning to the concept of “meaningful”.
None of this, of course, should be construed as actual legal advice. If you have important immigration-related questions, you must consult a qualified attorney.
Given the fact that USCIS decisions and EOIR immigration judges’ decisions are exceedingly discretionary to a degree not seen in civil and criminal courts, denials of admissibility (and, in the case of asylum petitions, denial of “refugee” classification) may require more determinations of “meaningfulness” at the EOIR’s BIA and the federal circuit levels. In the immigration courts, a disclosure of prior CCP “membership” may constitute an insurmountable obstacle.
Thanks – very sound points.