Interim Decision #1286

Interim Decision #1286

MATTER OF STOJKOV1C

In DEPORTATION Proceedings

A-12885583

Decided by Board June 4, 1963

Respondent, a 30-year-old native of Yugoslavia and national of the Dominican

Republic, has not established that because he was an officer in the Anti-Communist Foreign Legion organized in the Dominican Republic under Trujillo's

dictatorship he would be subject to physical persecution within the meaning of

section 243(h), Immigration and Nationality Act, if deported to that country.

CHARGE:

Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2)1—Entry

as

nonimmigrant, remained longer.

Respondent -was an officer in. the Anti-Commuraist Foreign Legion

organized in the Dominican Republic under Trujillo's dictatorship.

He maintains that this former connection with the Trujillo regime

would subject him to physical persecution in the Dominican Republic.

On this ground he applies for withholding of his deportation to that

country:

The special inquiry officer denied respondent's application and ordered deportation to the Dominican Republic_ Respondent appeals

from that denial. We must determine whether respondent's connection with Trujillo would subject him in the Dominican Republic to

hardship which would amount to the physical persecution the statute

contemplates.

Respondent raises several points meriting close consideration. The

nebulous elements in the overall factual situation render difficult an

objective assessment of the likelihood of physical persecution. Respondent's counsel points out that the special inquiry officer referred

in his opinion to a valid principle of law but applied it erroneously to

respondent's case. Technically, at least, respondent is correct on this

point. Nevertheless, upon close analysis of the whole record, we

reach the opinion that respondent would not now face physical persecu'

Section 243(h), Immigration and Nationality Act, 8 U.S.C. 1253(h).

281

Interim Decision #1286

tion if deported to the Dominican Republic. Our decision, therefore,

coincides with that of the special inquiry officer.

Respondent is a native of Yugoslavia, 30 years old, and single. The

Trujillo regime granted him Dominican nationality. Respondent left

the Dominican Republic on March 7, 1962 and arrived at Miami,

Florida that same day, entering the United States as a nonimmigrant

purportedly in transit to France. His authorized stay in this country

expired on March 9, 1962. Respondent admits that he entered this

country intending not to continue his journey to France. The order to

show cause, however, charged him only with overstaying his authorized time. He concedes deportability on that charge. Respondent

declined to apply for voluntary departure or to designate a country to

which his deportation should be directed.

Respondent states that he left Yugoslavia in 1956 because he did not

want to live under the Communists. He resided in France until 1959.

In that_year he signed a contract with the Dominican Republic's representatives in France for employment in the Dominican Republic.

Upon his arrival there, instead of employment pursuant to the agreement, he was ordered into military service. Respondent testified that

he objected to military service but accepted the offer after notification

the alternative to serving in the military forces was imprisonment.

He subsequently attained the rank of first lieutenant.

Tn 1960 when Trujillo disbanded the Anti-Communist Legion, respondent transferred to a. mountain regiment under the command of

Vladimir Secen, then a lieutenant colonel. Respondent remained in

military, service until June 1, 1961, just after Trujillo's death. Colonel Secen, who had also been respondent's commanding officer in the

Anti-Communist Legion, appeared as a witness for respondent.

This record suggests three possible sources for respondent's physical persecution in. the Dominican Republic imprisonment, deportation, or mob violence. We shall discuss in the order given each of

these sources from two points of view—respondent's actual experiences while in the Dominican Republic and his probable experiences

if returned to that country.

—

L Respondent's actual experiences in the Dominican Republic

I. Imprisonment

Respondent's activities immediately following termination of his

military service are not clear. He testified he was arrested twice,

once in November 1961 and again on December 26, 1961. He was

imprisoned the first time for about eight days and the second until

February 7, 1962. Respondent said he was arrested because he was

considered a good friend of Trujillo. He also said the charges were

282

Interim Decision #1286

using arms without a permit, although he was then an army officer

required to wear arms, and being a Trujillo mercenary. Respondent

alleges that he was mistreated in jail but does not describe any abuse.

Even if respondent's arrests had a purely political basis, his imprisonments—in view of their relatively short duration and the lack of

evidence of actual mistreatment—cannot be held to have constituted

physical persecution for purposes of the statute.

2. Deportation

The record does not show whether respondent was actually deported

from the Dominican Republic. He testified that shortly after his

release from prison in February 1962 he was taken one night to army

intelligence headquarters. The authorities picked up his passport at

that time and returned it to him the day before he left the Dominican

Republic. When respondent was about to depart, the authorities told

him he would be able to travel to France and gave him a ticket for air

transportation to that country. Sueh facts are as consistent with an

intention to make some restitution under the breached contract of employment by returning respondent to France, the country in which the

contract was executed, as they are with an intention to deport re-

spondent. We shall assume respondent's deportation from the Dominica.n Republic, however, in order to consider for our purposes its

possible effect.

The special inquiry officer refers to the legal principle that a sovereign state has a right to deport undesirable persons. Counsel for

respondent points out that that principle refers to aliens and does not

apply to a national of the country. 2 He asserts that deportation of a

national from his own country is a most insidious form of physical

persecution cutting him of from friends, family, economic resources,

language, and culture.

Deportation of a national is akin to banishment or exile. Historically banishment has been recognized at times as a punishment and at

other times as a conditional pardon. The latter concept prevailed in

England where banishment was first known as "abjuration." The

accused party took an oath to leave the realm and to return only with

permission. This was a. conditional pardon rather than punishments

2 The special inquiry officer refers to Lopez v. Howe, 259 F. 401 (C.A. 2, 1919),

a case of an alien. In D.S. v. Ai Toy, 198 U.S. 253 (1905) the appellee claimed

United States nationality. The Court, however, three justices dissenting, accepted the administrative officials' finding of alienage and considered the writ of

habeas corpus on that basis' 8 0.1.S. p. 593 (1962).

283

Interim Decision #1286

Whether imposed as punishment or a condition for a pardon banishment has usually been attended with loss of civil rights. 4

Respondent has retained his Dominican nationality and the right to

travel on a Dominican passport. In the absence of any evidence to

the contrary, we assume that he has also retained any other civil rights

which attach to Dominican nationality. There is no evidence indicating respondent is likely to be denaturalized. His case, therefore,

is more akin to "relegation" in old English law, or relegatio of the

Roman civil law, a modified type of banishment (temporary in England) in. which the person retained his rights of citizenship . 4

Moreover, respondent testified that he requested permission to leave

the Dominican Republic in lieu of remaining there in military service.

He was being returned to France, the country from which he had

entered the Dominican Republic and in which he had sought refuge

after leaving Yugoslavia. Under his theory that his deportation

from the Dominican Republic—if he was deported—constituted physical persecution, his present sojourn in this country must be a form

of physical persecution. His efforts to remain here in lieu of going to

any other country, including the Dominican Republic or France,

militate against such a view of his case.

Respondent's ties in the Dominican Republic are slight. The record

does not ditclose that respondent has friends, family, or economic

-

resources in the Dominican Republic. Respondent himself testified

that the Dominican officers serving in the Army under Trujillo looked

upon him as a foreigner, an alien. Therefore, the special inquiry

officer's position although technically inaccurate, is not so far wrong

in substance. Only if respondent's ties in the Dominican Republic

were so strong as to make enforced absence from that country severe

and unusual hardship might his deportation, or banishment, from

the Dominican Republic constitute physical persecution. For the

foregoing reasons we conclude that even. assuming respondent's departure from the Dominican Republic was equivalent to deportation,

he has not suffered physical persecution thereby.

3. Mob Violence

Information in the record (Ex. 8) indicates the Anti-Communist

Legion was used to oppose the attempted invasion of the Dominican

Republic in 1959 by Dominicans seeking to overturn the Trujillo

regime. Such activity, even though coerced, no doubt adds to any

Black L.D., Rapalje and L.L.D. For a discussion of some modern instances

of banishment with historical references see Armstrong, Banishment: Cruel and

Unusua3 Punishmen*,111 U. Pa. L. Rev. 758 (April 1068).

` Black L.D., Rapalje and L.L.D.

284

Interim Decision #1286

unpopularity in the Dominican Republic of former members of the

Anti-Communist Legion resulting from their association in general

with the Trujillo regime. Respondent has referred vaguely to an

inability to move freely about the streets in the Dominican Republic.

We believe these allegations reflect fear of mob action. His witness,

Seem, also referred to danger from the mobs. Respondent cites no

occurrence, however, in which he had any particular difficulty with

a mob in the streets of the Dominican Republic. We find in this record

no evidence that he has suffered physical persecution in the Dominican

Republic from that source assuming, without deciding, that the statute

contemplates physical persecution can arise from such a source .°

We conclude from the discussion thus far of respondent's suggested

sources of physical persecution. imprisonment for a political offense,

deportation or banishment, and mob violence—that respondent did not

undergo any physical persecution while residing in the Dominican

Republic. But what if respondent were now to be returned to the

Dominican Republic?

—

II Respondent's probable experiences if returned to the Dominican Republic.

The likelihood that respondent will encounter physical persecution

in the Dominican Republic can be founded only upon existing circumstances in that country. We take official notice that the executive

leaders of the Dominican Republic's Government have changed. since

respondent's hearing. So far as we can ascertain at this time, however, this change has no material effect in our consideration of respondent's case. If anything there is less internal tension, at least on

the surface, then there was at the time the special inquiry officer

heard respondent's case.

1. Imprisonment

Respondent testified the authorities informed him that if he returned to the Dominican Republic he would again be imprisoned. As

a mercenary during Trujillo's dictatorship, even though an unwilling

a one, respondent would no doubt be unpopular with many segments of

the population as well as some individuals within the Government.

Respondent's position in that regime, however, was not of a type or

significance likely to now cause lengthy imprisonment or unduly harsh

treatment while confined. We believe that respondent's confinement,

if any, would be relatively brief—as were his prior imprisonments.

Counsel for respondent mentioned in his memorandum on appeal

that he knows from personal observation that the treatment accorded

Compare Matter of Diaz, Int. Dee. No. 1270 (March 20, 1963).

285

Interim Decision *1286

political prisoners in respondent's country is not according to our

standards of treatment of prisoners. There is no evidence in the record in support of this statement, however, and, in particular, no evidence that the treatment is such that confinement for even a brief

period of time might constitute physical persecution. Moreover,

there is no reason to suppose that the Dominican authorities would not

again permit respondent to leave the country, especially in lieu of

serving a lengthy term in prison.

2. Deportation

Failing respondent's departure from the country at his own request,

the authorities might on their own initiative take steps to expel him.'

Respondent contends both that expulsion would be likely to occur and

that it would constitute physical persecution. The special inquiry

officer admits that respondent might be deported from the Dominican

Republic. We concede a fairly high degree of probability for such

an eventuality. For the reasons discussed in considering the circumstances under which respondent left the Dominican Republic in

May 1962, however, we believe respondent's expulsion from that country would not constitute physical persecution.

3. Mob violence

Respondent says that the communistic 14th of June party persecutes anyone who had belonged to the Anti-Communist Legion. The

record does not specify what form such persecution might take. That

party has not had control of the Government at any time Probably

respondent believes that the party's adherents would, without governmental sanction, attack former Legionnaires.

Respondent makes no direct allegation that he would suffer physical

harm at the hands of rioting or demonstrating mobs in the Dominican

Republic. The special inquiry officer states respondent's position is

basically that the current Government in the Dominican Republic

would physically persecute him because of his military employment

by the Trujillo regime. Respondent's counsel does not take exception •

to that statement. He frames the issue more broadly, however, in

terms of whether the respondent will receive treatment in the Dominican Republic which will constitute physical persecution—without

specifying whether such treatment would. come from the Government

or some other source. Thus we do not have sharply defined here the

issue raised, but not determined, in Matter of Diaz—whether physical

harm inflicted upon a person by a mob acting without governmental

The record is silent as to Dominican law empowering such action.

286

Interim Decision #1286

sanction, can constitute physical persecution for the purposes of section 243 (h) of the Immigration and Nationality Act. 8

As we have noted, however, respondent testified that he could not

walk in the streets. His witness, Vladimir Secen, testified that his own

troubles were with Communist controlled groups on the streets. Latent in respondent's situation, therefore, lie the queries whether a mob

in the Dominican Republic might physically harm him and, if so,

whether such harm would amount to physical persecution for purposes

of the statute.

Respondent's case, insofar as mob violence might be involved, corresponds to what we designated as the first situation in Diaz. We there

reserved the question pertaining to that situation—whether intentional

physical harm inflicted because of past association with the Trujillo

regime or because of antithetic interests by a riotous mob, acting without the sanction of the Dominican Government, would amount to

physical persecution within the meaning of section 243 (h). We again

find that we need not consider the legal import of this question.

Respondent submitted no evidence to corroborate his bare statement

that he would not be able to go out on the streets. The Dominican

newspaper dipping which refers to deportation of four persons from

the Dominican Republic (Ex. 3) is an ordinary news item which makes

no reference to any particularly inflammatory public action or opinion.

Moreover, there is no evidence that the authorities could not adequately

protect respondent by controlling any outbursts of mob violence which

might appear. Instances of mob violence in the Dominican Republic

have diminished. We believe that respondent is not likely to suffer

harm from such a source.

We conclude that respondent is not likely to encounter in the Dominican Republic any treatment which would warrant withholding his

deportation to that country on the grounds that he would be physically

persecuted there and dismiss the appeal.

ORDER: It is ordered that the appeal be and hereby is dismissed.

• Supra •.

287