Report of the President's Commission on the Assassination of President John F. Kennedy

by United States. Warren Commission

AUTHORIZATION FOR MARINA OSWALD TO ENTER THE UNITED STATES

Negotiations Between Oswald and the Embassy

On July 11, 1961, Oswald and his wife appeared at the Embassy in Moscow before John A. McVickar.[A15-145] Together they executed papers to set in motion the procedures for her admittance to the United States as a nonquota immigrant under the provisions applicable to the wife of an American citizen.[A15-146] The interview was routine. McVickar asked Marina whether she was a member of any Communist organization and she replied that she was a member of the Trade Union of Medical Workers[A15-147] but she denied she was or ever had been a member of the Komsomol,[A15-148] the Communist youth organization, or any other Communist organization.[A15-149] Marina Oswald has since admitted to the Commission that at one time she was a member of The Komsomol, but was expelled, according to her testimony, when it was learned that she intended to accompany her husband to the United States.[A15-150] The Embassy forwarded the papers pertaining to her application to the State Department on August 28, 1961.[A15-151]

Marina Oswald’s ability to obtain a nonquota immigrant visa depended on the favorable resolution of 3 questions. First, it had to be determined that she was the wife of an American citizen,[A15-152] which depended on whether her husband had expatriated himself. Second, it was necessary to determine that she was not and had not been affiliated with a Communist organization on other than an involuntary basis.[A15-153] Third, it had to be determined that she was not likely to become a public charge after she was admitted to the United States.[A15-154] Section 243(g) of the Immigration and Nationality Act[A15-155] presented a fourth issue. This section of the act prohibits the issuance of immigrant visas by American Consuls stationed in countries which have refused to accept or have unduly delayed accepting the return of persons sought to be deported from the United States. The Soviet Union had been designated as such a country in 1953. However, the sanctions of section 243(g) are often waived; and even if they were not waived in Marina’s case, she could obtain her visa at an American Embassy in some other country on her way from the Soviet Union to the United States, if she were otherwise entitled to the visa.[A15-156]

In a despatch dated August 28, 1961, the Embassy requested from the Department a security advisory opinion on Marina Oswald’s application to enter the United States. The Embassy wrote:

A favorable advisory opinion and approval of * * * [Mrs. Oswald’s] petition is recommended together with a waiver of the sanctions imposed by section 243(g) of the Act. * * *

In connection with her employment and her professional training, she has been a member of the Soviet Trade Union for Medical Workers since 1957. Such membership is routinely considered to be involuntary. * * *[A15-157]

The Department initiated a check on Marina Oswald with the CIA, the FBI, the Department’s own Office of Security, and Passport Office.[A15-158] The security check turned up no derogatory information on her, so that in early October 1961 the Department cabled Moscow that the available information concerning the applicant established her eligibility to enter the country as a nonquota immigrant.[A15-159]

The Department’s decision assumed that prior to obtaining her visa to enter the United States, Marina Oswald would provide some reasonable assurance that she was not likely to become a public charge after she had arrived there. The Department later encountered some difficulty in deciding that she had met this requirement. She knew no one in the United States other than the members of her husband’s family, and they lacked the means to furnish any substantial financial guarantees. After considerable correspondence on the matter with Oswald[A15-160] and with the Department,[A15-161] the Embassy decided to accept Oswald’s own affidavit to support his wife as sufficient assurance that she would not become a public charge. The Embassy’s reasons were set forth in a memorandum dated March 16, 1962:

It appears that * * * [Oswald] can find no one in the United States who is able and willing to execute an affidavit of support for his wife. Furthermore, Oswald has been able to obtain no concrete offer of employment in the United States. On the other hand, he is trained in a trade which should make him readily employable and he and his family will be able to live with his mother in Texas until he has found work and become otherwise settled. Taking into consideration the latter factors, Oswald’s legal obligation to support his wife, and the unusual circumstances of the case which make it difficult for Oswald to provide the usual financial evidence, the responsible consular officer * * * [is] willing to accept Oswald’s unsubstantiated affidavit as sufficient to overcome the public charge provisions of the law.[A15-162]

The necessity of relying solely upon Oswald’s own affidavit, however, was eliminated somewhat later when the Department received an affidavit of support from the employer of Oswald’s mother in Vernon, Tex.[A15-163]

By law the Attorney General must also pass upon an applicant’s eligibility, and this responsibility has been delegated to the District Directors of the Immigration and Naturalization Service.[A15-164] The machinery to get approval of the Immigration and Naturalization Service for Marina Oswald’s admission to the United States was set in motion on October 6, 1961. On that date the Visa Office of the Department of State sent a letter to the District Director of the Immigration and Naturalization Service in Dallas, Tex., requesting the Service to take action on her immigrant visa.[A15-165] The letter transmitted her marriage certificate, a check for $10 from Lee Harvey Oswald, and a “Petition to Classify Status of Alien For Issuance of Immigrant Visa.” The petition was signed by Oswald and was on behalf of Marina, asking that she be classified in “the status of the alien beneficiary for issuance of an immigrant visa as * * * the spouse of a United States citizen.”[A15-166] The letter from the Visa Office stated:

Mrs. Oswald has been the object of an investigation by the Department and has been found, in the Department’s opinion, not ineligible to secure a visa.[A15-167]

On the basis of this communication, the Immigration and Naturalization Service at its Dallas, Tex., office instituted a field investigation on Lee Harvey Oswald.[A15-168] Routine checks with the Federal Security agencies and with local law enforcement authorities turned up no new derogatory information, and no evidence was uncovered that Oswald was ever a member of the Communist Party or other subversive groups.[A15-169] A record check was made in New Orleans, La., and a birth certificate was found for Lee Harvey Oswald, proving that he was an American citizen by birth.[A15-170] On October 17, 1961, an investigator from the Dallas office interviewed Oswald’s brother, Robert, who expressed the view that Lee was just a “mixed up kid” who had emigrated to Russia because he had become embittered, possibly over something that had happened while he was in the Marine Corps.[A15-171]

On January 25, 1962, the results of the field investigation in Dallas were consolidated in a report[A15-172] which, with a covering memorandum,[A15-173] was sent to the District Director of the Service in San Antonio the next day. The accompanying memorandum noted that the immigrant inspector who processed the case had endorsed it “approved,” but the author of the memorandum overruled the decision of the inspector on the grounds that the sanctions under section 243(g) should not be waived.[A15-174] The reasons for denying the waiver were stated as follows:

OI [Operations Instructions] 205.3, as you know, provides that the District Director may waive sanctions in an individual meritorious case for a beneficiary of a petition filed by a reputable relative where no substantial derogatory security information is developed. I am of the opinion that both of these restrictions are present in this case.[A15-175]

On January 30, 1962, the District Director at San Antonio affirmed the decision of the Dallas office, including the decision that the sanctions imposed under section 243(g) not be waived.[A15-176] He concluded that Oswald’s recent statements to the American Embassy in Moscow to the effect that he had learned from his experiences in Russia were not sufficient to relieve the doubts which were raised regarding his loyalty to the United States by the arrogant, anti-American statements he made when he entered Russia in 1959.[A15-177]

San Antonio forwarded its decision to Washington in a letter dated January 31, 1962, in which Marina Oswald’s petition and all the aforementioned memoranda and reports were included.[A15-178] However, because Washington had previously indicated its impatience at not yet having received anything on the Oswald case, the San Antonio office also telegraphed its decision to Washington about a week later,[A15-179] the telegram, presumably being received by Washington before the letter of January 31. The Washington copy of this telegram has a handwritten note on the lower portion which indicates that on February 12 an officer in the Visa Office of the State Department informed the Immigration and Naturalization Service by telephone: “Political desk of opinion, we’re better off with subject in U.S. than in Russia.”[A15-180]

Nonetheless, the Washington office of the Service concurred in the field decision that the provisions of section 243(g) should not be waived.[A15-181] However, the Washington office pointed out that the correct disposition should be not to deny the visa petition as the field offices had proposed, but to grant the petition and indorse it to read, “Waiver of sanctions imposed under section 243(g) of the Act is not authorized.”[A15-182]

On February 28, 1962, the Dallas office of the Immigration and Naturalization Service notified the Department of State in Washington and the American Embassy in Moscow of this disposition. The communication from the Dallas office noted that Oswald “has been notified at his Minsk, Russia, address of the approval of the petition in his wife’s behalf.”[A15-183] Oswald later told the Embassy that he had received the notice on March 15.[A15-184] On March 9, 1962, the Department of State also notified the Embassy in Moscow that Oswald’s wife was entitled to nonquota status but that the Immigration and Naturalization Service would not waive section 243(g) of the Act. The Embassy was told to inform Oswald of this fact if he asked about it. The memorandum indicated that the Embassy might suggest that Marina could proceed to some other country to file her visa application and thus avoid the sanction.[A15-185]

The Moscow Embassy on March 16, 1962, asked the Embassy at Brussels if Mrs. Oswald could obtain her visa in Brussels.[A15-186] The Brussels Embassy replied affirmatively and said a visa could be issued to Marina within 2 or 3 days of her arrival.[A15-187] The Marina Oswald file accordingly was sent to the Embassy at Brussels.[A15-188]

The plan to obtain the visa in Belgium was rendered unnecessary, however, when the Immigration and Naturalization Service reversed its position regarding the waiver of section 243(g). On March 16, the Soviet desk at the Department of State took initial action to attempt to secure such a change by sending a memorandum to the Visa Office within the Department, urging that the Immigration and Naturalization Service be asked to reconsider its decision.[A15-189] According to this memorandum:

SOV believes it is in the interest of the U.S. to get Lee Harvey Oswald and his family out of the Soviet Union and on their way to this country as soon as possible. An unstable character, whose actions are entirely unpredictable, Oswald may well refuse to leave the USSR or subsequently attempt to return there if we should make it impossible for him to be accompanied from Moscow by his wife and child.

Such action on our part also would permit the Soviet Government to argue that, although it had issued an exit visa to Mrs. Oswald to prevent the separation of a family, the United States Government had imposed a forced separation by refusing to issue her a visa. Obviously, this would weaken our Embassy’s position in encouraging positive Soviet action in other cases involving Soviet citizen relatives of U.S. citizens.[A15-190]

Soon thereafter, however, the Department of State notified its Moscow Embassy that the decision was under review and instructed it to withhold action pending the outcome of the reconsideration.[A15-191]

The Visa Office first contacted the Washington office of the Immigration and Naturalization Service informally, and was advised, according to a contemporaneous notation:

* * * that case had been carefully considered and decision made at Assistant or Deputy Associate Commissioner level. Therefore, although not wishing to comment on likelihood of reversal, [INS officer] felt that any letter requesting a review of the case should come from the Director or Acting Administrator.[A15-192]

On March 27, 1962, such a letter was written from an acting administrator in the Department of State to the Commissioner of Immigration and Naturalization. The letter read in part:

I appreciate the difficulty this case presents for your Service, because of Mr. Oswald’s background, and the fact that granting a waiver of the sanction makes it appear that this Government is assisting a person who is not altogether entitled to such assistance. However, if the Embassy at Moscow is unable to issue Mrs. Oswald a visa, it would appear that she and indirectly the Oswalds’ newborn child are being punished for Mr. Oswald’s earlier indiscretions. I might also point out that this Government has advanced Mr. Oswald a loan of $500.00 for repatriation.

More important, however, is the possibility that if Mrs. Oswald is not issued a visa by the Embassy, the Soviet Government will be in a position to claim that it has done all it can to prevent the separation of the family by issuing Mrs. Oswald the required exit permission, but that this Government has refused to issue her a visa, thus preventing her from accompanying her husband and child. This would weaken the Embassy’s attempts to encourage positive action by the Soviet authorities in other cases involving Soviet relatives of United States citizens.

Because of these considerations and because I believe it is in the best interests of the United States to have Mr. Oswald depart from the Soviet Union as soon as possible, I request that the section 243(g) sanction be waived in Mrs. Oswald’s case.[A15-193]

The Immigration and Naturalization Service ultimately reversed its original position and granted the waiver on May 9, 1962. The letter reversing its initial decision states that the matter has been “carefully reviewed in this office” and that “in view of the strong representations” made in the letter of March 27, the sanctions imposed pursuant to section 243(g) were thereby waived in behalf of Mrs. Oswald.[A15-194]

Actually, the Office of Soviet Affairs had informally learned on May 8 that the May 9 letter would be signed by the Immigration and Naturalization Service.[A15-195] On the strength of the assurance that a written reversal would be forthcoming immediately, the State Department quickly telegraphed the Moscow Embassy reporting that the waiver had been granted.[A15-196] Marina Oswald completed her processing when she, her husband, and daughter came to Moscow in May 1962 on their way from Minsk to the United States.[A15-197]

Legal Justification for the Decisions Affecting Marina Oswald

Wife of a citizen of the United States.—Section 205 of the Immigration and Nationality Act of 1952 provides for the admission into the United States of persons married to American citizens.[A15-198] Once it was determined that Lee Harvey Oswald was born in the United States[A15-199] and had not expatriated himself, his American citizenship was established. Marina Oswald submitted a marriage certificate to show that she was his wife.[A15-200] This requirement was, therefore, satisfied.

Assurance that Marina Oswald would not become a public charge.—Section 212(a)(15) of the act provides that aliens will not be admitted to the United States if, in the opinion of the responsible Government official, they “are likely at any time to become public charges.”[A15-201] The pertinent Department of State regulations provide that a determination to exclude an alien for this reason must be “predicated upon circumstances which indicate that the alien will probably become a charge upon the public after entry into the United States.”[A15-202]

In 1962, Oswald was 22 years old and in good health. He had lived in the United States for 17 years before joining the Marine Corps and was, therefore, familiar with its language and customs. He had gained job experience by working 2½ years in a factory which produced electronic equipment. Under these circumstances the Department was not unreasonable in concluding that Oswald’s own affidavit that he would support his wife was sufficient assurance that she was not likely to become a charge upon the public after her entry into the United States. The receipt of the affidavit from Marguerite Oswald’s employer provided a possible alternative basis for reaching this decision, but since a favorable ruling had already been made on the basis of Oswald’s affidavit, the Embassy had no reason to consider the sufficiency of the second affidavit.

Membership in a Communist organization.—Under section 212(a) (28) of the Immigration and Nationality Act, an alien will not be admitted to the United States if he is or was a member of, or affiliated with, a Communist organization unless:

* * * such an alien establishes to the satisfaction of the consular officer when applying for a visa and the consular officer finds that (i) such membership or application is or was involuntary, or is or was solely when under sixteen years of age, by operation of law, or for purposes of obtaining employment, food rations, or other essentials of living and where necessary for such purposes * * *[A15-203]

At the time Marina Oswald applied for a visa she was a member of the Soviet Trade Union for Medical Workers.[A15-204] According to the Department of State, the

* * * long-standing interpretation [of the statute] concurred in by the State and Justice Departments [is] that membership in a professional organization or trade union behind the Iron Curtain is considered involuntary unless the membership is accompanied by some indication of voluntariness, such as active participation in the organization’s activities or holding an office in the organization.[A15-205]

Since there was no evidence that Marina Oswald actively participated in the union’s activities or held an office in the organization, her union membership was properly held not to bar her admission to this country.

Although Marina Oswald declared that she was not a member of the Komsomol or any other Communist organization, she was in fact a member of the Komsomol, the Communist youth organization.[A15-206] If this fact had been known to the State Department, Marina Oswald would not necessarily have been denied a visa, although a careful investigation into the nature of the membership would have been required.[A15-207] However, had her membership in the Komsomol become known to the Department after her denial of such membership, it is possible that she would have been excluded from the United States on the ground of having willfully misrepresented a material fact.[A15-208]

Judicial decisions are not in agreement as to what constitutes a “material fact” such that its intentional misrepresentation warrants exclusion of the alien.[A15-209] Some cases indicate that a misrepresentation in an application for a visa involves a material fact even if the alien would not definitely have been excluded on the true facts;[A15-210] others hold that a misstatement is material only if it referred to such facts as would have justified refusing the visa had they been disclosed.[A15-211] The Visa Office of the Department of State has announced that it applies a “rule of probability” under which a misstatement will be deemed material only if it concealed facts which probably would have resulted in a denial of a visa.[A15-212]

Waiver of the provisions of section 243(g).—Section 243(g) of the Immigration and Nationality Act of 1952, by its terms, prevented issuance of a visa to Marina Oswald by the Moscow Embassy. The section provides that upon notification of the Secretary of State by the Attorney General that a country has refused or unduly delayed the acceptance of a deportable alien from the United States who is a subject or was a resident of that country, consular officers in such country are not to issue visas to citizens of the country. The section had been invoked against Russia on May 26, 1953. Nonetheless, although section 243(g) does not contain an express provision for waiver, the Justice Department has concluded that the Attorney General possesses such waiver powers.[A15-213] Pursuant to this decision, the Department has granted waivers in over 600 cases from the Soviet Union since 1953.[A15-214] The waiver procedures followed in 1962 were prescribed by the Immigration and Naturalization Service. The relevant provision reads:

Before adjudicating a petition for an eligible beneficiary residing in the USSR, Czechoslovakia or Hungary, against which sanctions have been imposed, the district director shall obtain a report of investigation regarding the petitioner which shall include an affiliation of a subversive nature disclosed by a neighborhood investigation, local agency records and responses to Form G-135a. * * * If no substantial derogatory security information is developed, the district director may waive the sanctions in an individual meritorious case for a beneficiary of a petition filed by a reputable relative to accord status under Section 101(a)(27) (A) or Section 203(a) (2), (3) or (4). * * * If substantial adverse security information relating to the petitioner is developed, the visa petition shall be processed on its merits and certified to the regional commissioner for determination whether the sanctions should be waived. The assistant commissioner shall endorse the petition to show whether the Waiver is granted or denied, and forward it and notify the appropriate field office of the action taken. * * *[A15-215]

State Department regulations are much less explicit.[A15-216] The State Department’s visa instructions for the guidance of consular officers provide, “The sanctions will be waived only in individual meritorious cases in behalf of a beneficiary of a petition filed by a reputable relative pursuant to [sections] of the act.”[A15-217]

Because Lee Harvey Oswald signed the petition on Marina’s behalf, his character was relevant to whether the sanctions of section 243(g) could be waived for her. The file on Lee Harvey Oswald which was maintained by the Department of State and made available to the Department of Justice for purposes of passing on his wife’s application contained the facts relating to Oswald’s attempted expatriation. However, despite the derogatory material in the Oswald file, the Immigration and Naturalization Service regulations did not require automatic denial of the waiver; they provided only that if adverse security information were developed, “the visa petition shall be processed on its merits and certified to the regional commissioner for determination whether the sanctions should be waived.” This procedure was followed in Marina’s case and the factors considered in reaching the decision do not appear to be inappropriate. The State Department successfully urged that the original decision of the Immigration and Naturalization Service be reversed because this would be in the best interests of future United States dealings with the Soviet Union on behalf of American citizens, and because it seemed unfair to punish Lee Harvey Oswald’s wife and baby for his own earlier errors.[A15-218] Prevention of the separation of families is among the most common reasons underlying the frequent waivers of section 243(g).[A15-219]