Berdo v. Immigration and Naturalization Service, 18898.

• Decision Date: 05 June 1970
• Docket Number: No. 18898.,18898.
• Citation: 432 F.2d 824
• Parties: Laszlo BERDO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

432 F.2d 824 (1970)

Laszlo BERDO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 18898.

United States Court of Appeals, Sixth Circuit.

June 5, 1970.

G. Vernon Leopold, Detroit, Mich., on brief for petitioner.

George W. Masterton, Jr., Dept. of Justice, Washington, D. C., for respondent; Robert M. Draper, U. S. Atty., Southern District of Ohio, Cincinnati, Ohio, Thomas R. Smith, Asst. U. S.. Atty., on the brief; Paul C. Summit, Atty., Dept. of Justice, Washington, D. C., of counsel.

Before McCREE and COMBS, Circuit Judges, and McALLISTER, Senior Circuit Judge.

McALLISTER, Senior Circuit Judge.

This case arises out of the Hungarian Uprising against the Russian Military Occupation Forces in 1956.

Laszlo Berdo, petitioner herein, was twenty years old at the time. He joined thousands of other students and citizens as a street fighter against the Russian troops and tanks, in Budapest; and he now seeks asylum in the United States as a defector from the Hungarian Communist government.

Berdo's petition, more specifically described hereafter, can be designated as one for asylum and is opposed by the Immigration and Naturalization Service on the ground that Berdo is a former member of the Communist Party of Hungary, inadmissible to the United States and is, therefore, ineligible to adjust his status from a non-immigrant visitor to that of a permanent resident; that he has not sustained the burden of proving his claim that he would be subject to persecution on account of his political opinions if deported to Hungary, and that the order of the Board of Immigration Appeals in arriving at that conclusion is not arbitrary, capricious, or an abuse of discretion.

In his petition for review of the order of deportation and denial of adjustment of status, petitioner Berdo contends that the Board of Immigration Appeals erred in affirming a determination by the Service that his affiliation with the Hungarian Communist Party prior to his entry into the United States amounted to membership within the meaning of the pertinent statute, since such affiliation was not meaningful, and was devoid of political implication; and that the Board erred in holding that his deportation and prosecution and punishment in Hungary would not constitute persecution by reason of political opinion within the meaning of the Immigration and Nationality Act.

The background, the facts of the case, and the legal proceedings involved may be stated in more detail as follows:

Petitioner Berdo was born March 21, 1936, in Budapest, the son of Peter and Anna Berdo. He attended the public school in Budapest, completing the eighth grade in 1951, shortly after he was fifteen years old. After leaving school, he acquired a mechanic's rating through participation in an on-the-job training course. In 1954, he was employed by the Duclos Mine Machinery Works, a state-owned enterprise with headquarters in Budapest. The Duclos company assigned him from time to time to work in field installations in various localities in Hungary assisting in site assembly and in the construction of mine shafts.

During October 1956, he was shifted back to his employer's Budapest plant in order to await his then imminent induction into the Hungarian military service. Before he was drafted, however, the Hungarian Uprising of 1956 intervened. In the latter part of October of that year, he witnessed a blood bath inflicted by a Soviet tank which fired point blank into a crowd of Hungarian citizens in Budapest. On the same day, he and a number of his co-workers, after arming themselves with rifles and pistols taken from the Hungarian Army's Rifle Patrol Post in Budapest, gathered on the roof of the Budapest Railroad Station and fired upon Soviet tanks and military personnel. Toward the end of the day he returned to his parents' apartment and told his sister, Klara, about his activities. He then returned to a rendezvous with his resistant-group companions and during the day which followed continued to take part in the street fighting in Budapest.

The Uprising failed because of subsequent overwhelming armed intervention of the Soviet army; and the details of this action and its results, which are pertinent and of importance in the determination of this case, will hereafter be described. However, here, we note that sometime after the Hungarian revolt had been crushed by the Russian military forces, means of exit from Hungary were closed and sealed.

During the fighting, approximately 30,000 Hungarians were killed, while 200,000 others escaped over the border to Austria, among whom were Berdo's sister, Klara, and her family — while Berdo was battling with the Russians. Klara Berdo thereafter emigrated to the United States, married Tibor Absalon, and has since been naturalized as an American citizen.

Petitioner Berdo was still in the country. Nevertheless, he escaped detection as one of the Street Fighters by leaving Budapest. He persuaded the Duclos company, for which he had been working as above stated, to assign him to a field project in Tatabanya, approximately forty-two miles from Budapest. When he finally received his notice of induction into the Hungarian Army on April 18, 1957, he returned to Budapest and reported for military service. After induction he was stationed at the same post in Budapest where, during the Uprising, he had participated in removing arms for street fighting, and he remained fearful of recognition by members of the post. During the course of his training, the political commissar of his unit called him in for interviews at different hours of the day and evening and persisted in urging him to join the Communist Party, emphasizing that Berdo's father had been a member of the Party. Although Berdo procrastinated with various excuses and evasions, the Colonel-Commissar continued his recruitment efforts, and kept badgering him to join the Party. Berdo, however, avoided joining during his military training, and after completion of his service in January 1959, returned to his employment with Duclos. Shortly thereafter the Party Commissar at the Duclos Works received a recommendation from the Political Commissariat of Berdo's former military unit to the effect that prior efforts to recruit him for Communist Party membership should be continued and, subsequently, Berdo was subjected to the same persuasion to join the Party. He thereupon exercised his privilege as an ex-serviceman to change jobs and, in June 1959, entered the employ of the Gorgyiu-Dej Shipbuilding Works in Budapest. However, the Communist Party's dossier followed him and, within a few weeks, he again became subjected to Party recruitment. When he further delayed, he was suddenly demoted in February 1960, reduced in pay and assigned to perform menial tasks inconsistent with his skill as a mechanic.

Berdo protested his new job assignment and instituted a complaint before a Work Grievance Committee. This Committee conducted extensive hearings over a period of two and a half months and subsequently granted him a release from employment at Gorgyiu-Dej. He had not been informed that his demotion and reduction in pay had a disciplinary purpose for failure to join the Communist Party, but he claims that the connection between the two events was conveyed to him in many subtle ways, such as sanctimonious persuasion and offers of incentives and opportunities for improvement. In February 1960, Berdo obtained employment as a mechanic with Tungsram Electric Works in Budapest and was assigned to perform work in a vacuum tube research laboratory. During his new job with Tungsram, he was again called into the Party Commissar's office; extensive discussions and repeated reviews of his past employment career by Party officials followed, and it was pointed out to him that Party membership would furnish him with an endorsement enabling him to gain admission to a four-year night highschool-level training course, which would qualify him for a job as an electronic technician. He was informed that after completion of such highschool education, he would become eligible to participate in a four-year course with the university which would qualify him as an electronic engineer capable of assuming charge of an electronic laboratory; and he was told that Party membership would prove most helpful to him in the future in obtaining good housing.

At this time, Berdo's needs for economic betterment and adequate housing had become crucial. In June 1959, he married and after the wedding he and his wife had moved into the one-room, one-kitchen apartment of his parents in Budapest, already occupied by Berdo's mother, his brother and sister-in-law and son, Istan. After three months of overcrowding, it was necessary for him and his wife to move to some other place but, as a childless couple, they had no priority toward obtaining an apartment. They finally obtained quarters in a 6 x 12 stable. They had no cooking or heating facilities, but ate in the factory cafeteria. During the winter, they moved in with the parents of Berdo's wife. Because of these desperate conditions, Berdo finally agreed to become a member of the Communist Party; he enrolled in the night high school, and continued his schooling there until 1964.

We now come to the legal proceedings giving rise to the controversy before us.

In the Fall of 1964, petitioner Berdo made application to the Legation of the United States in Budapest for issuance of a non-immigrant visa for himself, his wife, and their daughter, who was born in 1963. His sister Klara had invited them to spend the year-end holidays with her and her family in Grand Rapids, Michigan. In his application for a visa to the United States, Berdo, among other matters, fully disclosed his Party membership. A security check initiated by the Legation of the United States in Budapest disclosed: "No additional derogatory information" and on recommendation of the responsible Consular officer at the...