Interim Decision 4 1270

Interim Decision 4 1270

MATTER or Drat

In DEPORTATION Proceedings

A-12386631

Decided by Board March 90, 1963

Respondent, a native and national of the Dominican Republic, has not established

that he would be subject to physical persecution within the meaning of section

243 (li) of the Immigration and Nationality Act by claiming possible physical

injury, incurred as an innocent bystander, incident to uncontrolled mob violence in the Dominican Republic.

CHARGE:

of 1952—Sectioa 241(a) (2) [5 U.S.O. 1251(a) (2)]—Visitor

remained longer.

Order; Act

The record establishes respondent is deportable as charged in the

order to show cause. He remained in this country after the authorized time of his visit expired on December 10, 1961. The special

inquiry officer granted him the privilege of voluntary departure to be

replaced by deportation to the Dominican Republic, the country of his

birth and nationality, if he fails to comply with the conditions governing his voluntary departure. Respondent did not designate a country to which lie would want to be sent if deported. The maintains he

will be physically persecuted if returned to the Dominican Republic

and appeals from the portion of the special inquiry officer's decision

denying him the benefits of section 243 (h) of the Immigration and

Nationality Act.

Respondent's contentions differ substantially from those generally

raised in proceedings under section 243(h). He does not allege the

Dominican authorities would physically persecute him because of any

opposition on his part to the present government or any past activities.

Counsel for respondent asserts the special inquiry officer erred in limiting physical persecution under the statute to acts inflicted, or sanctioned, by governmental authorities. He argues that the statutory

meaning of the term "physical persecution" includes bodily harm at .

the hands of the populace (or certain elements thereof) where the gov199

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•rnment, although not sanctioning such act, is unable to control the

situation.

Respondent's evidence consists almost entirely of testimony of two

-witnesses and factual material from newspapers and magazines published either in this country or the Dominican Republic. Primarily,

it reports instances of mob violence occurring in Santo Domingo over

the past several months and points to the elements contributing to the

unrest. None of this evidence relates directly and specifically to

respondent.

As we perceive counsel's argument it comprises at least three distinct situations. A mob or organized group in the Dominican Republic may attack a person known to have been connected officially or

unofficially with the Trujillo regime and suspected, with good reason,

of participation in the dictatorship's excesses, or known by the mob or

group as otherwise opposed to its interests. The second situation also

results in intentional physical harm, but there the mob or group erroneously identifies the person as inimical. Respondent's witness, Armando Luna, underwent such an experience. In either of the foregoing situations the attacker (as happened to the witness, Luna) may

-enlist the unwitting aid of the authorities through false accusations.

In the third situation a completely innocent bystander may be inadvertently injured during a riot or other lawless and violent activity

caused by political unrest.

As the'Service's representative at oral argument points out, counsel's

historical examples of nongovernmental persecution relate to particular groups the early Christians, the Jews in Russia, and the

nobility during the French revolution. The dictionary defin

ition referred to in respondent's brief also suggests the group or class concept. 2

—

Respondt,hwvriclamsebhpnyclasorgu

which would render him particularly liable to harassment. Thus we

do not have before us the situation in which a mob or group might

attack 's person because of his past or present political activities.

Accordingly, we do not rule whether the statute contemplates that

situation.2

-

2 ". . . Third Edition of Webster's New International Dictionary issued in

1961, which is quoted as follows: 'la The Act or practice of persecuting as (1)

the infliction of sufferings, harm or death on those who differ (as in origin,

religion or social outlook) in a way regarded as offensive or meriting extirpation: * * * b : a campaign having for its object the subjugation or extirpation

of the adherents of a religion or way of life (pogroms in Russia)'." Respondent's brief, p. 2.

The point which counsel raises has been at least twice before Federal courts

of appeals. In each ease a group of Communists—acting without the government's authority or approval—allegedly would harass the individual in question

Footnote continued on following page.

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Counsel for respondent does not clearly distinguish the variations of

what we have assigned as his second situation. Under that situation

the attackers may simply mistakenly identify the victim. On the

other hand, the attackers may properly identify the victim, but act on

the basis of motives unrelated to those avowed. There may be only

a single attack or two or more. These possibilities suggest many

ramifications in the broader aspects of the question whether physical

injury arising under this second situation might come within the

statutory concept of physical persecution.

Physical persecution for purposes of the statute has been held generally to be based upon religious, political, or racial grounds' There

is some indication that the term should not be so restricted.' We limit

our inquiry at this point, however, to circumstances in the second situation, reasonably derived from the record, which if counsel's thesis is

correct might satisfy the requirements of the statute. Within this

scope any intentionally inflicted physical harm respondent might suffer could result only from a completely mistaken identification of him

as a supporter of Trujillo or as otherwise opposed to the political interests of the mob or fraction. Nothing in respondent's testimony

because of his political convictions. In Lavdcts v. Holland, 235 F.2d 955 (CA.

3, 1956), the court ruled there was insufficient basis for the petitioner's belief

that if he returned to his small community in Greece, Communists there, who

in no way represented the governmental authorities, would physically harm him.

The court for this reason did not decide nor comment upon whether fear of persecution by secretly and illegally operating communist terrorists in the petitioner's

homeland might satisfy the requirements of the statute—section 4 of the Dieplaced Persons Act, 50 U.S.C. App. section 1953.

In U.S. ex rel. Cantieani v. Holton, 248 F.2d 737 (OA. 7, 1957) cert. den. 356

U.S. 932 (1958) (referred to by the special inquiry officer) the petitioner declared

he would be subject to persecution and abuse from communistic elements in

his village in Italy. The court in upholding the administrative denial of relief

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

gave no indication whether abuse by nonofficial elements in the population could

constitute physical persecution for purposes of that statutory provision. On

that subject the court pointed out only that there was no proof the authorities in

the village, admittedly noncommunist, could not protect the petitioner.

A district court, however, has considered that section 6 of the Refugee Relief

Act of 1953 as amended (50 U.S.O. App. section 1971d) did not require "persecution or fear of persecution" to be by the de /are or de facto government of the

foreign country. The court ruled that the petitioners should have been allowed

to submit evidence that they feared persecution from certain communist elements

in Italy. D'Antonto v. 'Witmer:nosey, 189 F. Supp. 719 (S.D. N.Y. 1956).

Madam v. Bouchard, 280 F.2d 507 (CA. 3, 1961), cert. den. 866 U.S. 950

(1961) ; Matter of Kale. A-9555532,4/23/58, discussed in Dentbrovskie v. Evenly,

195 F. Supp. 488 (S.D. N.Y. 1961) ; Gordon and Rosenfield, Immigration Law and

Procedure, b97 (1962 Supp.).

` Wasserman, Book Review, 28 Fordham L. Rev. 860 (1959-1960).

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provides a basis for believing that he might be denounced on political

grounds but for purely personal, or other irrelevant, reasons. Apart

from whether the injuries suffered by the witness Luna constitute

physical persecution within the meaning of the statute, respondent

has not connected his circumstances to those of Luna.

At oral argument counsel for respondent, in an attempt to counter

the Service representative's suggestion that physical persecution contemplates action aimed against a member, or members, of a particular

group, suggested that mobs in the Dominican Republic might identify

respondent and his compatriots in the other similar cases before us as

former supporters of Trujillo. He noted they are from the middle

class, have traveled to the United States, and would be distinguishable

in appearance from the mobs. We do not believe, however, that the

mobs would seek out an individual on the streets of Santo Domingo

simply because of his middle- or upper-class appearance.

Moreover, there are obvious interpretive difficulties in holding that

physical persecution for the purposes of section 243 (h) includes physical injury due to mistake. Logically, such an occurrence appears further removed from the ordinary concept of persecution than what

befell witness Luna. Practically, in only highly unusual circumstances could the opinion required by the statute be reached. Addi-

tionally the fewer and less related any possibilities of injury might be

the more difficult a holding of likelihood of physical persecution would

become.

Therefore, even if respondent were to suffer physical injury because

s. mob or group in the Dominican Republic mistakenly identified him

as a proper object of its wrath, in all probability the circumstances

could not reasonably be considered physical persecution for purposes

of the statute. In addition, respondent has not shown that any such

fate awaits him in his native land. Under any of the circumstances

of the second situation which might be relevant to respondent's case,

he is not entitled to the benefits of section 243(h). We do not rule on

the legal effect for the purposes of section 248 (h) of circumstances in

veneral under that situation.

We determine therefore that respondent's case rests squarely upon

the third situation- 5 Respondent says that it would be risky for him,

or any other Dominican here, to return to the Dominican Republic

under present conditions. The provisional government, he contends—

although desiring to maintain law and order—is unable to control effectively outbreaks of mob violence arising from the general political

5 Subsequent to oral argument in respondent's case, his counsel argued a group

of similar cases in which counsel's contentions relate solely to what we characterize as the third situation.

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unrest which has followed Trujillo's assassination. He argues that

any innocent bystander may be injured or killed.

Narrowly, therefore, the issue before us is whether physical harm befalling an innocent bystander during a lawless and riotous demonstration by a mob might constitute physical persecution within the

meaning of section 243 (h).

We hold section 243 (h) does not cover injuries which may befall

anyone who happens to be in the vicinity of an outbreak of mob violence, even though the mob is aroused by factors commonly associated

with persecution—racial, religious, or political differences. The statute is designed to benefit a particular class of persons, not any national

of a country which is undergoing a period of upheaval accompanied

by violence. Respondent is attempting to equate physical injury

arising out of political discord with physical persecution. They are

not necessarily the same.

To hold that accidental bodily harm resulting from an anarchical or

otherwise dangerous internal political situation does not come within

the purview of section 243(h) is not to deny a remedy to individuals

who face such situations. Deportation to troubled areas may be stayed

by the Service as a matter of policy during an emergency irrespective

of the probability of physical persecution, just as official temporary

travel bans to certain geographic areas are often imposed. 6 Nothing

which we say here should be construed as a recommendation either for

or against granting such an administrative stay of deportation to

respondent. We have no jurisdiction over a stay of this type?

Moreover this appeal brings 'before us matters not suited to adjudicative processes. Respondent relies upon current events, but the events

of record are no longer current. The decision must necessarily disregard facts which occurred contemporaneously with, or immediately

prior to, the hearing and consider facts which have arisen subsequently.

Counsel's own argument illustrates the difficulty. His brief argues

that deportation should be stayed at least until the elections promised

for December 20, 1962. At oral argument he suggested that action

leading toward deportation should be deferred until at least the officials elected in the December elections take office on February 27th

Since it is possible nationals of a country might incur risks during a period

of violent political discord which casual visitors would not, the absence of a general ban on travel to the Dominican Republic does not weaken counsel's argument

in its entirety. But the freedom of travel to the Dominican Republic does affect

adversely counsel's contention that respondent faces serious danger of personal

injury as an innocent bystander.

I Counsel for respondent indicates that the Service had earlier refrained from

deporting Dominican nationals to their homeland. A change in that policy

brought on these proceedings.

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of this year. In arguing similar cases on March 4, 1963 counsel said

in effect that it is too early to determine conditions under the new

government.

The changing political scene in the Dominican Republic necessitates

these shifts in argument; the shifting basis for decision demonstrates

that the grounds for a stay of deportation urged by respondent fall

properly within the more flexible sphere of purely administrative action rather than the procedures imposed by the regulations under the

statutory provision. The statute and regulations contemplate that

the conditions relied upon be sufficiently static to enable, by a process

of adjudication subject to review, formation of a considered opinion

of the likelihood of physical persecution.

Yet the factual record here also supplies ample grounds for denying

respondent's application for a stay of deportation because of anticipated physical persecution. Looking at conditions in the Dominican

Republic either at the time of the hearing or at the present time, we

find little larenhood that, if respondent returned there, his allegations

would be borne out. The situation in the Dominican Republican is still

developing. Nevertheless, in addition to being insufficiently connected

to respondent, assertions in the record that the present democratic

trend may terminate are speculative.

More importantly, however, respondent's application fails as a

matter of law. Counsel for respondent has been afforded unlimited

opportunity to develop his thesis. The attorneys who represented the

Service at the hearing in this and related cases have objected to

certain testimony and to submission of some of the documentary evidence as not germane to the issue of physical persecution. The special

inquiry officers—although often noting the merit of the objection—

have accepted such evidence into the record in order not to hamper

the respondents' presentation of their position. We have reviewed

counsel's contentions sympathetically in order to give these respondents

the consideration of everything in their favor—over and above what

we might perceive as deficiencies in their actual proof. At the minimum, however, the benefits of section 243 (h) may be extended only

to one who faces being singled out for physical suffering imposed on

the basis of some belief or activity which the oppressor seeks to overcome or punish.8 The assertions by and in behalf of respondent and

his compatriots relating to the third. situation, which alone find any

measure of support in the record, do not bring them within this standard. We need not decide here what other requirements may be imOf course, many situations which would meet these broad criteria would

not, on other grounds, constitute "physical persecution."

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plicit in the statutory language—particularly whether governmental

authorities must inflict or sanction the physical persecution.

We reach the same conclusion as the special inquiry officer, if not

completely upon the same grounds. Respondent's evidence and argument, as related to that evidence, do not, in our minds, conform to any

reasonable statutory meaning for the term "physical persecution." 9

We shall dismiss the appeal.

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

° In addition to the record in respondent's case, we have considered the testimony and any additional exhibits in counsel's similar cases currently before

us, other material submitted by counsel to the Board, and all of counsel's

arguments.

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