Interim Decision #1279
MATrER OF DAD.AEIS
In DEPORTATION Proceedings
A-15477411
Decided by Board April 18, 1963
Physical persecution within the meaning of section 248(h), Immigration and
Nationality Act, has not been established by a native and citizen of Greece
on the basis of a claim of prosecution or other official opposition -which might
result from his religions activities (proselytism) in Greece as a Jehovah's
Witness.
CHARGE!
Order: Act of 1952—Section 241(a) (2) [8 U.S.O. 1251(a) (2)3—Remained
longer.
Respondent, a native and national of Greece who last entered the
United States on July 15, 1960 as a nonimmigrant crewman, is 23
years old and married to a citizen of the United States. He concedes
&portability as charged.
At the original hearing the special inquiry officer directed deportation to Germany, the country elected by respondent, with an alternate
order of deportation to Greece. Respondent did not have counsel at
that hearing but subsequently appealed through his present counsel.
That appeal sought an adjudication of respondent's eligibility for
withholding of deportation under section 243(h) of the Immigration
and Nationality Act, although no application for such relief had been
filed. Our order of July 11, 1962 directed reopening of the proceedings to afford respondent an opportunity to apply under the provisions
of that section and to submit supporting evidence.
The special inquiry officer, after further hearing, denied respondent's application for withholding of deportation and again ordered
deportation to Germany or alternatively to Greece. Respondent
appeals from the denial of the benefits of section 243(h). We concur
in the conclusion of the special inquiry officer.
Respondent testified that since arriving in this country he has
become a member of Jehovah's Witnesses. Communications from
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ministers of that sect corroborate such membership. The record contains a letter to respondent and his wife from the presiding minister of
Jehovah's Witnesses in Greece, which inter alts states that section 1
of the Greek Constitution provides that the dominant religion in
Greece is the Eastern Orthodox Church of Christ, that any other
religion is free to perform its worship rites without hindrance under
the protection of the laws, but proselytism and any other interference
with the dominant religion is forbidden. A letter to respondent's
wife from the Watchtower Bible and Tract Society sets forth that
certain members of the Jehovah's Witnesses in Greece have been
charged with proselytism and punished with imprisonment of up to
five months and fines. A number of other Witnesses are reported to
have been brought before the courts during the periods September
through November 1961 and February through April 1962, but
discharged.
Respondent indicates that if returned to Greece he would go from
door to door interpreting the Bible and delivering literature setting
forth the tenets of Jehovah's Witnesses. He maintains that he would
be subject to imprisonment for snob. activities.
Respondent's counsel contends the special inquiry officer erred as a
matter of law by failing to recognize that, under judicial and administrative precedents confinement on religious grounds constitutes
physical persecution within the meaning of the statute. Blazina v.
Bouchard, 286 F. 2d 507 (C.A. 3, 1961) cert. den.
366 U.S. 950 (1961) ;
Kalatjis v. Rosenberg,
305 F. 2d 249 (CA. 9, 1962) ; Diminich v.
Evenly,
299 F. 2d 244 (C.A. 2, 1961) cert. den.
369 U.S. 844 (1962),
which refers to Matter of Sale, A-9555532 (1958). As we read the
special inquiry officer's opinion, however, he does not rule out as a
matter of law confinement on religious grounds as a possible instance
of physical persecution. The special inquiry officer notes that the
general freedom of religion in Greece is subject only to the limitation
that proselytism for faiths other than the Eastern Orthodox is forbidden He notes also that respondent expects, if deported to Greece,
to engage as a Jehovah's Witness in proselytism and to be arrested and
possibly prosecuted in the courts for such proscribed activity. Weconsider the special inquiry officer ruled only that under these particular circumstances the arrest and confinement to which respondent may
be subject would not constitute physical persecution despite the religious issue.
In this country the proselytizing activities of Jehovah's Witnesses
are held in general to come within the protection of the constitutional
guarantees of freedom of religion, speech, and the press. Lovell v.
Griffin,
303 U.S. 444 (1938) ; Murdock v. Commonwealth of Pennsyl-
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vania, 319 U.S. 105 (1943) ; Martin v. Struthers,
319 U.S. 141 (1943) ;
Nietmotko v. Maryland, 340 -U.S. 268 (1951). These rights are not
absolute however. Schneider v. laving-ton,
308 U.S. 147 (1939). A
few cases have upheld particular applications of the police power
restricting such rights. Cow v. New Hampshire,
312 U.S. 569 (1941) ;
Chaplinsky v. New Hampshire, 315 17.S. 5N (1942) ; People v_ Bohnke,
287 N.Y. 154,
38 N.E. 2d 478 (1941), cert. den.
316 U.S. 667 (1942).
The Supreme Court has said that the First Amendment has two
aspects—freedom to believe and freedom to act, the first being absolute
but the second subject to regulation for the protection of society.
Cantwell v. Connecticut,
310 U.S. 296, 303, 304 (1940).
The Court ruled in „Murdock that a. nondiscriminatory tax on distribution of literature was invalid when applied against Jehovah's
Witnesses. Martin v. Struthers invalidated an ordinance forbidding
knocking on the door or ringing the doorbell of a residence in order to
deliver a handbill as applied against handbills distributed on behalf of
Jehovah's Witnesses. In Nietmotko denial of a request by Jehovah's
Witnesses for a permit to hold a meeting in a public park was overruled where the denial appeared to be based not upon any valid exercise
of the police power but upon arbitrary action on the part of the local
officials.
On the other hand, in Cow v. New Hampshire a statute requiring a
permit and license fee for parades was held valid in a case involving
Jehovah's Witnesses. Chaplinsky v. New Hampshire upheld a state
statute applicable only to the use in a public place of words directly
tending to cause a breach of the peace_ The speaker was a Jehovah's
Witness who had been engaged in distributing literature of his sect
on the street and addressing passers-by. He used the inflammatory
words against the City Marshall after a, disturbance broke out.
People v. Bohnke upheld an ordinance which prohibited, without prior
consent of the occupants, entry by nonresidents of the community
upon private residential property for certain purposes, including the
distribution of pamphlets or other literature. Appellants were nonresident Jehovah's Witnesses distributing religious information.
Thus in this country the right of Jehovah's Witnesses to proselyte
is not without limitation. In Greece, however, that right appears to
be nonexistent. Counsel for respondent urges us to adopt the standards in this country in determining whether the action of the Greek
authorities against Jehovah's Witnesses constitutes physical persecution. Although at times particular aspects of questions arising under
section 243(h) should be considered in the light of the standards
in this country rather than those in the country in question, we do
not believe the statute contemplates that unless aliens will enjoy
within their own country the same type, degree, and extent of religious
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and individual freedom they enjoy here deportation may be withheld
on the grounds of impending physical persecution. Wherever possible, consistent with the purposes of the statute, considerable latitude
should be extended to the foreign law. The Court of Appeals for the
Third Circuit in Blaziena v. Bouch,ard (supra at 511, cited by respondent's counsel for another proposition) indicated that repugnance of a
governmental policy to our own concepts of religious freedom cannot
in itself justify our labeling actions taken under that policy as
"physical persecution."
The record does not reveal the specific facts underlying individual
instances of prosecution in Greece of Jehovah's Witnesses. The letter
from the Watchtower Bible and Tract Society describes only in a
general way such prosecutions. It says that the members of the sect
were charged with talking about the Bible to others or getting together
in their own homes to discuss the Bible, and that, in some cases, false
charges were brought against Witnesses who had done nothing. The
Presiding Minister in Greece describes two convictions naming the
Witnesses involved. Each received a fine of 2000 drachmas and probation for six months for displaying their religious literature plus imprisonment of two and a half months in one case and one month in
the other. The particular circumstances upon which the prosecutions
were based do not appear, however.
We have considered the evidence in the light most favorable to
respondent, assuming that the Jehovah's Witnesses in Greece who encountered police opposition were engaged in activities generally protected in this country and that prosecution under the Greek constitutional provision of members of the sect is widespread. We note, however, that the affidavit of a member of the sect resident in this country,
formerly a Jehovah's Witness in Greece, alleges repeated persecution
and hunting out by the police there—but refers only to one instance
of actual imprisonment which lasted about 30 hours. As previously
noted, the maximum other imprisonments described in the record
were for about five months. Looking at the general situation as revealed by this record of Jehovah's Witnesses in Greece vis-a-vis Greek
law, including the extent of the sanctions imposed by the authorities,
we agree with the special inquiry officer's conclusion that any prosecution or other official opposition which might result from respondent's
religious activities in Greece would not fall within the purview of
section 243(h) of the Immigration and Nationality Act. We shall
dismiss the appeal.
ORDER: It is ordered that the appeal be and hereby is dismissed.
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