Interim Decision #1316
Mali OF TomCES-TE.TEDA
In DEPORTATION Proceedings
A-12336079
Decided by Board January 3,1964
Respondent, a native and national of the Dominican Republic, has not established
that because be was a former chief of a military intelligence unit (Serviclo
de Inteligencia Minter) during the Trailllo regime he would be =Meet to
physical persecution within the meaning of section 243(h), Immigration and
Nationality Act, if deported to the Dominican Republic.
CHARGE
Order: Act of 1952—Section 241(a) (2) [8 U.S.O. 1251 (a) (2) i—Nonimmigrant—remained longer.
Respondent, a former chief of a military intelligence unit in the
,
Domnican Republic during the Trujillo regime, appeals from the portion of the special inquiry officer's order which denies his application
for withholding of deportation to his homeland. He maintains that
he would face physical persecution in the Dominican Republic because
of his former position under Trujillo . 1 On the basis of currently available information, we affirm the special inquiry officer's action.
The hearings in respondent's case were held during July and August,
1962. We heard oral argument on October 29, 1962. In the interim,
for various reasons, it has not been feasible to render our decision.
Over most of the intervening time we have been waiting for information which has only recently become available in final form.
Respondent is a native and national of the Dominican Republic and
married. He last entered the 'United States at New York on December 16, 1961 as a nonimmigrant foreign government official in transit
to Canada. He had gone first from the Dominican Republic to Spain
where he obtained his transit visa. Respondent testified that the
Belaguer government assigned him to the position of 2nd secretary at
the Dominican Embassy in Ottawa. He said he did not continue his
journey to Canada because he knew most similar assignments bad been
4 Section 243 (h), Immigration and Nationality Act, 8 U.S.C. 1253 (h).
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Interim Decision #1316
canceled. Respondent's authorized stay in this country expired on
January 13, 1962.
The special inquiry officer directed deportation first to Spain, in
accordance with respondent's designation, and alternatively to the
Dominican Republic. Respondent neither contests deportability nor
applies for voluntary departure.
S.I.M. (Servicio de Inteligencia Minter), the organization which
respondent headed for about seven or eight months prior to February
or March of 1961, was an infamous, quasi-military security unit of
Trujillo's regime. The record establishes S.I.M. was popularly identified with carrying out many of the dictatorship's excesses. Respondent testified S.I.M was created for Trujillo's personal security and to
investigate and punish those who would oppose the dictatorship. He
said so-called "repressive investigations" involved physical torture
applied by a special corps of officers.
Respondent admits that during this tenure as chief of S.I.M. some
50 or 60 political prisoners were executed. He denies any direct responsibility for such acts, contending that he merely transmitted
orders from Trujillo himself or from one of Trujillo's trusted lieutenants, Johnny Abbes Garcia. Although respondent had the title of
chief of S.I.M., he diselnime any independent individual authority in
connection with the principal activities of that agency. He said if he
had refused to pass on orders to the persons who would carry them
out he himself would have been killed. He also said that he could not
refuse to accept the position of chief of S.I.M. when offered to him. In
any event, we are not concerned with respondent's guilt or innocence as
such. We are concerned only with determining whether, if returned
to the Dominican Republic, respondent would be subject to physical
abuse which would constitute physical persecution within the statutory
concept.
In May the 'United States District Court for the Southern District of New York recommended Clodoveo Ortiz-Gonzalez' extradition
to the Dominican Republic. 2 Ortiz, a former S.I.M. agent, appeared
as a witness for respondent in these proceedings. The court ruled
against Ortiz on his contention that the offenses with which he was
charged were political offenses, hence not extraditable. The court
avoided other political implications in the situation, noting that application to the Secretary of State would furnish full protection against
delivery of the accused to any government which would not live up to
its treaty obligations, and would use the treaty as a subterfuge to
secure the accused from a country of political asylum. Subsequently
2 In re. Gonzales, 217 r. Supp. 717 (S.D. N.Y. 1963) •
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Interim Decision #1316
the Secretary of State directed Ortiz-Gonzalez's extradition, which has
been effected. 3
Respondent does not clearly set forth the theory underlying his
contention that he will be physically persecuted in the Dominican Republic if returned to that country. He anticipates that because of his
former position he will be killed.
Respondent believes primarily that upon arrival in his homeland
mobs, acting beyond control of the authorities, will violently attack
him Respondent's own testimony reveals that he anticipates possible
prosecution in the Dominican Republic because of his association with
Trujillo but not unavailability of a fair trial, if prosecuted. Most of
the witnesses in respondent's behalf testified that charges are pending,
or likely to be brought, against him in the Dominican Republic. They
apparently believe he would not receive a fair trial. Moreover, they
agree it is highly probable mobs would kill him before the police could
take him into custody. At oral argument respondent's counsel said
that if by a miracle respondent survived attacks by mobs upon his
arrival at the Dominican airport, he would be jailed. Counsel implied
that respondent would not receive a fair trial.
Counsel for the Service says respondent fears criminal proceedings
and possible conviction in the Dominican Republic. He further states
respondent fears more strongly that, before the authorities have a
chance to try him, he will be seized by a mob and killed. Neither of
these eventualities, according to the Service representative, is comprehended by the statutory language.
We exclude from the term "physical persecution" any governmental
action taken in an orderly, judicial manner to determine respondent's
responsibility for the former activities of S.I.M., and to prescribe
punishment only for acts so performed that, regardless of possible
political motivation, they would constitute ordinary crimes under any
civilized juridical system. To this extent, at least, we agree with
counsel for the Service.
We have no doubt that the populace in the Dominican Republic
associates respondent with the excesses attributed to S.I.M. and, rightly
or wrongly, holds him responsible for many of them. A. newspaper
clipping (Ex. 3) refers to testimony at the trial of former S.I.M.
agents, accused in the death of the Mirabal sisters, an event well-known
in the Dominican Republic. That event excited the public's imagination and aroused its resentment. Respondent admits that he was in
charge of S.I.M. when the Mirabal sisters met their deaths. Two of
his witnesses corroborated his official position at that time. Yet, whatever the situation at the time of the hearing and oral argument, the
8 18 U.S.C. 3184.
437
Interim Decision. 40316
subsequent march of events, during which order has been restored in
the Dominican Republic, eliminates any need of now considering
whether respondent, if deported to the Dominican Republic, would
face unrestrained mob violence and whether such violence is equivalent
to physical persecution for -which deportation may be withheld.
Looking at respondent's evidence in the light most favorable to him,
the issue here resolves into two questions. Is respondent likely to he
charged in the Dominican Republic with any offense? If so, would
any proceedings under that charge reflect fair and ade,quate judicial
processes
Respondent's counsel stated at oral argument that respondent should
not be tried at all because he has not committed a voluntary act which
involves the Dominican penal law. Presumably counsel would contend
that for this reason any imprisonment would result from a trial so
unfair that conviction would be a foregone conclusion. Carrying this
argument one step further, counsel would contend that such imprisonment constitutes physical persecution within the purview of section
243(h), Immigration and Nationality Act.
The Court in Gon2a2ez considered a somewhat similar contention.
Ortis- Gonzales maintained that he acted as a military subordinate
obeying the orders of a superior and in the exercise of public authority.
The court found that under Dominican law, as under our own, public
officials may be criminally liable for acts which fall well outside duly
constituted public authority. The court also found that the Dominican
Republic had Made out a prima-facie case that the extraordinary
homicidal acts ascribed to Ortiz fall into this category.
We do not have in this record evidence of respondent's active participation in any killings attributed to S.I.M. such as was before the court
in Gonzalez. This difference is one of degree, however, since respondent admittedly was involved in 'the activities of S.I.M. The basic
question still goes to the availability of a fair trial under the circumstances here. If respondent has no criminal responsibility 'under
Dominican law for offenses committed by agents of S.LM. while he
was their chief, fair and adequate judicial procedures woilld afford
him sufficient opportunity to establish his innocence.
Ortiz-Gonzalez also alleged that the offenses with which he was
charged were political, rather than criminal. The court, as we have
noted, rejected this contention as a matter of law, leaving to the
Secretary of State any extralegal considerations which might
Support it.
We are not limited here by the provisions of a treaty and the extradition statute. We need only reach an opinion whether respondent
would be physically persecuted in the Dominican Republic. Yet proceedings under section 248 (h) of the Immigration and Nationality Act
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Interim Decision #1316
and extradition proceedings have much in common .° Consequently,
our function here resembles to some extent the functions of both
judicial officers and the Secretary of State in extradition proceedings.
In determining whether respondent should be returned to the Dominican Republic we may look broadly at the situation which he would
face them
If respondent is charged in the Dominican Republic with having
committed any offenses in behalf of the Trujillo regime, we believe he
would receive a fair trial. Although the Trujillo regime considered
that prisoners of executed during respondent's tenure as chief
of that organization were political prisoners, the circumstances
suggest violations of penal provisions of Dominican law. We believe
Dominican law, in determining the nature of any offenses with which
respondent might be charged and his responsibility in their perpetration, would adequately protect respondent's interests. We rule adversely to respondent on any contention that offenses with which he
might be charged were not criminal but political .° In particular, we
do not perceive that any such offenses were manifestly so political that
their punishment might constitute physical persecution.
Our conclusion that respondent's case does not warrant withholding
of his deportation to the Dominican Republic rests in part upon official notice of current conditions in the Dominican Republic, in part
upon the outcome of Gonzalez, and in part upon certain other nonrecord information, privileged under the regulations.° None of the
available current information indicates that, if returned to the Dominican Republic, respondent is likely to be physically persecuted.
Respondent's counsel contends that the special inquiry officer improperly declined to subpoena certain witnesses. Those witnesses
were all former officials of, or otherwise associated with, the Trujillo
regime. They left the Dominican Republic about the time of that
regime's fall. Their testimony could supply only background information and possibly greater detail about some of the matters of record.
' Matter of Perez-Jiminez, Int. Dec. No. 1292.
5 Compare /are Gonzalez, supra: and authorities cited therein.
Respondent suggests primarily that be might be prosecuted for "association
with evildoers." Ile relies upon the testimony of witnesses, particularly that of
a former lawyer in the Dominican Republic associated with him in S.I.M., to
establish the existence of this provision of Dominican law and its effect.
"The determination under section 243(h) of the Act may be based upon information not of record if, in the opinion of the special inquiry officer or the
Board, the disclosure of such information would be prejudicial to the interests
of the United States" 8 CFR 242.17(e). In our opinion the nonrecord information relied on here comes within this provision.
The Attorney General's use of undiselnusti information in exorcising Lis discretion has the approbation of the Supreme Court. Jay v. Boyd, 351 U.S. 345
(1950) ; Mdliutin v. Bouchard,
370 U.S. 292 (1962).
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Interim Decision #1816
We do not perceive that their testimony, no matter how favorable to
respondent, could overcome the reliable information on which we base
our conclusion. We need not consider, therefore, whether the special
inquiry officer's refusal to grant respondent's request for subpoenas
was error.
We do not discuss other contentions of respondent except to note
that he fears a change in government in his native country interrupting
the present democratic trend. We answered a similar contention in
Matter of Dias? We take official notice that the executive leaders of
the Dominican Republic's Government have changed during the pendency of respondent's case on appeal. This change, so far as we can
ascertain at this time, has, if anything, lessened any chances that
respondent would be physically persecuted in the Dominican Republic.
We shall dismiss the appeal.
ORDER: It is ordered that the appeal be and hereby is dismissed.
Int. Dec. No 1270.
440
