Interim Decision *1446

Interim Decision *1446

MILITER OF LILO

In Deportation Proceedings

A-11828875

Decided by Board March 96,1965

(1) Respondent, a 39-year-old unmarried native of China, with advanced

training as a pilot, with skill as a contact lens technician, with the education, including a college degree, acquired during residence In the United

States since his entry in 1954, and with no relatives here who would be

adversely affected by his departure, has not established that his deportation

to Formosa would, within the meaning of section 244(a) (1), Immigration

and Nationality Act, as amended, result in "extreme hardship" because he

refused to return to that country after completing the program of- military

training for which he entered the United States and expressed political

views which are not looked upon with favor by the Nationalist Government

of China on Formosa.

(2) In adjudicating an application for withholding of deportation pursuant

to section 243(h) of the Act, a special inquiry officer may consider factors

other than those directly related to the alien's claim of physical persecution

and may deny such application as a matter of administrative discretion

without 'first making a formal finding of the alien's statutory eligibility

therefor.

(3) The possibility that respondent, if deported to Formosa, may be prosecuted by a military court martial for offenses committed while a member

of the military forces of that country does not constitute "physical proseLion" within the contemplation of section 243(h) of the Act. • [Wang v.

Mier; 285 F.2d 517 (C.A. 7, 1960)]

Omura:

U.S.C. 1261(a) (9)]—NotOmmiOrder: Act of 1952—Section 241(0(9)

grant, failed to maintain nonimmigrant stable, or

to comply with the conditions thereof.

The respondent, a native of the Mainland of China, a citizen of the

Aepublio of China on Formosa -appeals from an order entered by the

special inquiry officer on October 30, 1964 directing his deportation to

the Republic of China on Formosa on the charge that after entry as

a nonimmigrant alien he has failed to maintain his nonimmigrant

status or to comply with the conditions thereof. Applications for

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Interim Decision #1446

relief under sections 244(a) (1) and 243(h) of the Immigration and

Nationality Act were denied. Exceptions have been taken to the

denial of discretionary relief which would permit the respondent's

continued residence in the United States.

The respondent, 39 years of age, =married, last entered the

United States through the port of Agana, Guam, on October 11,

1954. He was admitted as a non-immigrant government employee

of a foreign goverment, to wit, a captain in the Chinese Nationalist

Air Force coming to the United States for advanced military training (section 101(a) (15), Immigration and Nationality Act; 8

U.S.C. 1101(6)(15)). The respondent testified that he resigned his

commission in the Chinese Air Force on February 14, 1955, shortly

before the scheduled return of his military unit to Formosa. He

has remained in the United States without authority. The respondent concedes deportability. He alleges that he is politicilly opposed

to the organization and methods of the Nationalist government in

China. He also alleges that lie would be physically persecuted if

returned to Formosa.

The- respondent's application for withholding deportation under

section 243(h) of the Immigration and Nationality Act was denied

in an order entered by the Acting Regional Commissioner for the

Southwest Region on August 4, 1959. The respondent sought review

of the Acting Regional Commissioner's denial in the United States

District Court for the District of Columbia. The District Court

granted the government's motion for summary judgment and the

respondent appealed to the Court of Appeals for the District of

Columbia. The Court of Appeals on September 10, 1962, following the amendment of S CFlt 242 and 248, remanded the case to

the District Court with instructions to vacate its judgment. and remand the proceedings to the Immigration Service fora reopening to

afford the respondent an opportunity to seek relief under section

243(h) according to the procedure established by the amended regulations. This Board on motion of the District Director at San

Francisco ordered the hearing reopened to afford the respondent an

opportunity to seek relief under section 243(h) pursuant to the

procedure established by the amended regulations and for consideration of such other applications for discretionary relief that

-

way- be Bled. Our order of December 19, 1982 also provided that

:the outstanding order of deportation be withdrawn if discretionary

relief other than under section 213(h) be granted.

The respondent was granted hearing de novo on February 20,

1963, January 22, 1964, and May 18, 1964. During the course of the

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Interim Decision #1446

hearings the respondent applied for suspension of deportation, under

section 244(a) (1) of the Immigration and Nationality Act as amend- .

ed by the Act of October 24,,1962, and in the event that his deportation"be not suspended, he applied for a temporary withhold/4

of deportation under section 243(h) of the Immigration and Nationality Act (8 U.S.C. 1251(a) (1) and 1253 (h)).

The respondent seeks a suspension of his deportation on the

ground that his expulsion from the United States will cause him

extreme hardship. He testified that if he is forced to leave the

'United States he would be unable to adjust to a new environment

and would be unable to obtain employment as a contact lens technician, a position for which he has been trained. The respondent

also testified that his criticism of the Chiang Kai Shek regime on

Formosa has been reported by his superior officer to the foreign

office and that there is no question but that he would be sentenced

to death if returned to Formosa. His fear of physical persecution

because of his criticism of the Chiang Kai Shek regime and his resignation from the Chinese Air Force is the basis for his application

for withholding deportation under section 243 (h) of the Immigration and Nationality Act.

The special inquiry officer in the exercise of his discretion denied

the respondent's applications for suspension of deportation and for

withholding deportation. The special inquiry officer reasoned that

it would. not only be incongruous but would be an abuse of the discretion delegated to him by the Attorney General to permit the

respondent's continued residence in the United States in view of the

demand by the Nationalist Chinese Government that he be returned

to Formosa. The special inquiry officer is of the opinion that since

the respondent entered the United States as a - member of the Armed

Forces of one of our allies, pursuait to a mutual defense effort,

solely to receive training for the purpose' of strengthening that ally

and the defenses of the United States he should not be granted relief which would defeat that purpose.

Counsel for the respondent .maintains that the special inquiry

officer committed error in predicating his denial of relief on the

conclusion that the respondent does not merit' discretionary relief

because he deserted the Chinese Air Force. He argues that regardless of whether the respondent "resigned" or "deserted" the important

factor bearing upon the proper exercise of discretion, is that the

respondent's actions were justified in the light of his criticism of the

present regime governing Nationalist China. Counsel maintains

that the respondent is faced with the probability of death. if. re115

Interim Decision #1446

turned to Formosa. Counsel argues that the proper exercise of discretion vested in the special inquhy.offieer under section 244 of the

Immigration and Nationality Act 'calls for •an assessment of the

alien's worth rather than a matter of foreign relations between the

United States and Nationalist China.

There was no finding by the special inquiry officer as to whether

the respondent is statutorily eligible for relief under section 244

(&) (1) of the Immigration and Nationality Act (8 U.S.C. 1251'

(a) (1)). The respondent is deportable under a provision of section 241(a) other than one mentioned in paragraph 2 of subsection

244(a). He has been physically present in the United States for a

continuous period since October of 1954. 'We do not believe that his

refusal to return to Formosa under the circumstances which prevail

here can be said to reflect upon his moral character.

The question presented insofar as statutory eligibility for suspension of deportation is concerned is whether the respondent can

support a claim of "extreme hardship" by relying upon factori

which are concerned with his conduct as an officer in the Chinese

Air Force and the fact that he expressed political views which are

not looked upon with favor by the Nationalist Government of China.

We are of the opinion that the political aspect of this case has no relation to a determination of "extreme hardship" •under section

244 (a) (1).

The respondent has a degree from the City College of San Fran

cisco. He now attends the 'evening division of the University of

San Francisco. He is gainfully employed as a contact lens technician_ He testified that if he were deported to an area other than

Formosa he would have language difficulties which would in all

probability limit his opportunity for gainful employment. He also

testified that he would be forced to abandon attending school in

the evening. He has no relatives in the United States. A brother •

resides on Formosa. The respondent concedes that there would be a

need in almost every country for one in his profession of preparing

contact lenses (pp. 11-14).

The personal privation contemplated in a situation characterized

by "extreme hardship" within the meaning of the statute is not a

definable term of fined and inflexible content or meaning. It neces-

sarily depends upon the facts and circumstances peculiar to each

case. We are concerned with. an alien who was permitted to enter

the United States in 1954 for military training as a member of the

Armed Forces of a Nation allied with the United States. His ad-

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Interim Decision 4P 1446 .

mission for this purpose contemplated hill departure from the

*United States upon the completion of the training program.

It is our opinion that the evidence concerned with respondent's

economic 'well being does not support a. claim that his return toFormosa would result in extreme hardship to him within the meaning of the statute. The- respondent with his advanced training as

a pilot; with his skill as a contact lens technician and with this)

education he has acquired during his 10 years residence, is in a

better competitive position for employment than when . he entered

the 'United States in 1954. The respondent has no relatives in the

'United States who would be adversely affected by his departure.

There are no substantial equities in the respondent's case other

than those arising from- the fact that he refused to return to the

country of his nationality after completing the program of military

training for which he entered the United States. This factor alone

is insufficient to support a finding of "extreme hardship", within

the meaning of section 244(a) (1). We find the respondent statutorily ineligible for suspension of deportation_

The respondent, in the alternative, applied for a temporary withholding of his deportation pursuant to the provisions of section

243(h) of the Immigration and Nationality Act. He maintains that

he will be subjected to physical persecution if deported to Formosa -.

The evidence on this issue consists of the respondent's testimony,

magazine articles concerning political conditions in Formosa and

the testimony of Doctor Ku Cheung Wu, a former private secretary

to Generalissimo Chiang Kai Shek and last a Governor of Formosa

from 1949 to 1953. The consensus of the magazine articles and the

testimony of Mr. Wu is that the Nationalist Government on Formosa is a dictatorial police state; that secret police arrest people" on

trumped-up charges and that justice both civil and military is a

farce. It is alleged that the respondent would be treated as a political opponent of Chiang Kai Shek and that he would be persecuted

for his criticism of the Nationalist Government.

The special inquiry officer is of the opinion that the record of this

case and the records created in the cases of Matters of Chong Fu

Meng and Lin Fu Mei,' contained considerable evidence which supports respondent's claim that he would be subjected to physical persecution -if returned to Formosa (Ex. 6). The special inquiry officer

also stated that the government "offered nothing substantial in re'

lit was stipulated that all evidence on the issue of physical persecution in

the three cases covered by illes A-10491882, A-11828875 and A-8922827-would

be considered by the special inquiry ()Meer in staving at his decision.

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Interim Decision #1446

futation" of the evidence submitted by the respondent (p. 7, special

inquiry officer's opinion). The special inquiry officer denied withholding of deportation as a matter of administrative discretion without a formal finding on. the issue of whether the respondent would

be subjected to "physical persecution."

Counsel for the respondent takes the position that an application

for relief under section 243(h) cannot be denied as a matter of administrative discretion without a formal finding of statutory eligibility. He maintains that the applicant (respondent) has satisfied

the burden of establishing that he would. be subjected to physical

persecution if returned to the country to which he has been ordered

deported. It is argued that neither the statute nor the pertinent

regulations suggest that any factor other than those concerned with

physical persecution may be considered in arriving at a decision on

an application under section 243(h).

We find nothing in the statute or the regulations that limits the

special inquiry officer in the exercise of his discretion. Section 23

of the Internal Security Act of 1950,2 the predecessor of section

243(h) required a finding by the Attorney General that the alien

would or would not be subjected to "physical persecution" if such a

claim is made. U.S. ere rel. Ching Ping Zee et o2 v Shaughnessy,

107 F. Supp. 607 (U.S.D.C., S.D.N.Y., 1952). According to a de

cision by the United States District Court for the Northern District

of California, the withholding of deportation under section 23

(supra) was mandatory after a finding that the alien "would be

subjected to physical persecution" Sang Byv.p Park v. Barber, 107 F.

Supp. 605 (August 19, 1952).

• Congress, in enacting section 243(h) of the Immigration and

Nationality Act, drastically changed the language of section 28 of

the Internal Security Act of 1950. Section 243(h) reads: •

The Attorney General is authorized to withhold deportation of any alien

within the United States to any country in which in Ma opinion the alien

would be subject to physical persecution and for such period of time as he

deems to be necessary for such reason. (Emphasis supplied.)

The permissive word "authorized" has a far different meaning

than the mandatory word "shall" used in section 28 (supra, footnote

2). The Attorney General under section 243(h) "is authorized to

"Section 23, Internal Security Act of 1950, reads as follows:

"No alien shall be deported under any provisions of this Act to any

country in which the Attorney General shall End that such alien would

be subjected to physical persecution."

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withhold deportation of any alien within the United States (when)

in his opinion the alien would be subjected to physical persecution"

(Emphasis supplied.). This permissive language means that the

Attorney 'General or his delegate may consider factors other than

those directly related to an alien's claim of physical persecution In

forming his opinion as to whether discretion would be. exercised

either in favor of, or contrary to, the-alien's request for relief. The

Attorney General is not required, as was the case under section 23 . of

the Internal Security Act (supra), to make a formal finding with

regard to whether the alien will or will not be phyically persecuted.

We find no error on the part of the special inquiry officer in reach/TIE,

a conclusion in this , case that a withholai a of the - respondent's

deportation is not warranted without first making a formal findi

as to the respondent's statutory eligibility for such relief (Cf. Silvia

v. Carter, 326 F.2d 315 (C.A. 9, 1963), cert. den. 377 U.S. 917).

We do not believe, after a careful review of this record, that the

respondent will be subjected to "physical persecution" within the

meaning of section. 243 (h) if he returns to Formosa,. There is a possibility that he may be prosecuted by a military court martial. It

is alleged'that if convicted he will be subject to punishment under

article 93 of the Armed Forces Criminal Code for a maximum sentence of not more than three years. It is also alleged that in a similar case a Chinese Army Captain who refused to return with his

military unit after completing his training in the United States was

deported to Formosa, found guilty by a court martial and sentenced

to imprisonment for a term of only six months (see Ex. 17 and 18).

A procecution before a:military tribunal convened pursuant to the

laws of a foreign state to try offenses committed by a member of the

military forces of that country, cannot be construed to be physical

persecution within the meaning of section 243 (h) of the Immigration

and Nationality Act. Chao-Ling Wang v. Pilliod, 285 F.2d 517,

520 (C.A. 7, 1960).

Under section 243 (h) it is not a question of whether substantial

evidence supports the exercise of the discretion granted the Attorney

General or his delegate. The Attorney General of his delegate has

wide latitude and the primary consideration is whether the alien

has had a fair opportunity to present his case; whether the Attorney

General or his delegate has exercised his discretion and -Whether

there has been an error of law in the proceeding. We find no error

as a matter of law that the special inquiry officer's decision rests to

some degree on a political consideration, nameI., „the foreign policy

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Interim Decision #1446

of the United. States. The special inquiry officer exercised his discretion after affording the respondent a fair opportunity to present

his case. Cf, U.S. ex rel. Dolens v. Shaughnessy, 206 F.2d 392, 394,

395 (CA. 2, 1953.) The appeal will be dismissed.

ORDER: It is .directed that the appeal be and the same is hereby

dismissed.

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