Interim Decision #1347
MATTER OF VARDJAN
In DEPORTATION Proceedings
A-11076903
Decided by Board June 3, 1964
(I) Reopening or application under section 243 (h), Immigration and Nationality
Act, for submission of interrogatories to a Yugoslav consular officer will be
denied because respondent has failed to meet the burden of establishing the
necessity for the interrogatories or that the evidence is readily available since
there is no showing of person before whom the interrogatories would be taken,
that witness would voluntarily present himself to answer the interrogatories or
authority exists in Yugoslavia to compel testimony, and there is no suggestion
that letters rogatory are feasible or desirable.
(2) Respondent's request for examination of Government report containing
background information on conditions in Yugoslavia should have been denied
on a claim of privilege as provided in 8 CPR 242.17(c).
(3). Respondent has not established that because of her anti-Communist sentiments her efforts to resist return to Yugoslavia would subject her to physical
persecution within the meaning of section 243(h) of the Act, if deported to
that country. -
(4) While respondent's economic prospects in Yugoslavia may not be good in
view or her age (GO), limited skills, anti-Communist sentiments, and reluctance
to return to that country, subsistence at a low level does not establish physical
persecution within section 243(h) of the Act even if such subsistence, in
whole or in part, results from restrictions on employment opportunities
imposed deliberately because of her race, religion, or political opinion ; only
total proscription of employment for such reasons suffices.
(5) Section 243(h) does not contemplate protection against any future vagaries
in the political scene under which the likelihood of physical persecution may
be greater than at the present time, since such future possibilities are not
amenable to proof; only where the likelihood of physical persecution presently
exists is withholding of deportation warranted.
CHARGE:
Warrant: Act of 1952—Section 241 (a) (2) (8 U.S.C. 1251(a) (2) ]—Remained
longer—Nonimmigrant visitor for pleasure.
Respondent applied for withholding of her deportation to Yugoslavia on the ground that she would be physically persecuted there.
She appeals from the special inquiry officer's denial of that application.
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Interim Decision #1347
In our opinion respondent would not be subject to physical persecution
in Yugoslavia. Therefore we concur in the special inquiry officer's
action.
Respondent's authority to remain in this country as a visitor for
pleasure expired on June 8, 1959. She had entered at New York on
June VT, 1957. Deportation proceedings commenced on November 20,
1959, with service of the order to show cause. Initially the special
inquiry officer granted respondent voluntary departure with an alternate order of deportation. A private bill in respondent's behalf was
then pending in Congress. Respondent did not appeal from the special
inquiry officer's decision.
Congress acted adversely on the private bill. Accordingly the Service, on June 29, 1900, notified respondent that she had until August 3,
1960, to depart voluntarily from the United States. On August 2, 1960,
respondent, pursuant to section 248(h) of the Immigration and
Nationality Act, filed her application for withholding of her deportation to Yugoslavia, apparently anticipating that the Service would
direct her deportation to that country.i
The Service attempted to accord respondent a hearing upon her application before a special inquiry officer under the regulations then
in effect. Respondent's counsel objected to her examination by anyone
except a hearing officer appointed pursuant to the provisions of the
Administrative Procedure Act. On advice of counsel, respondent
declined interrogation and offered no evidence. The special inquiry
officer recommended denial of the application. The regional commissioner on January 17, 1961, entered an order of denial.
Respondent sought support for her position in the United States
District Court for the Southern District of New York. The court,
however, ruled adversely to respondent. On June 4, 1962, the Court
of Appeals affirmed that judgment, per curiam, on the lower court's
opinion.
After the regional commissioner denied respondent's section 243 (h)
application, the Service tried to obtain a Yugoslav travel document
for respondent. Respondent declined to appear at the Yugoslav consulate for a personal interview requested by a consular officer. At
the Service's request, however, respondent appeared with her counsel
at the Service's local office. AYugoslav consular officer also appeared.
No prior arrangement had been made with respondent for interview
by, or in the presence of, a Yugoslav official
1Section 243 (h) provides as follows :
The Attorney General is authorized to withhold deportation of any alien within
the United States to any country in which in his opinion the alien would be
subject to physical persecution and tor such period of time as he deems to be
necessary for such reason.
568
Interim Decision 4t1347
Respondent says that the immigration officer, at the request of the
Yugoslav official, inquired why respondent had declined to appear at
the consulate voluntarily to renew her passport. Respondent, on
advice of counsel, declined to answer. Her attorney relates that prior
to that question he had strenuously objected to the procedure and that,
after respondent. declined Lo answer the one and only question put to
her, a further heated exchange followed. The immigration officer
then terminated the interview.
In July of 1962—subsequent to the Court of Appeals' decision affirming dismissal of respondent's complaint—respondent moved to reopen
the administrative proceedings. The Service at first opposed that
motion but later withdrew its objections_ The special inquiry officer
granted respondent's motion. After full hearing on the merits, the
special inquiry officer denied the application, entering the order under
review here. 2
At the reopened hearing respondent renewed her objections to the
special inquiry officer's legal competency to preside. Her counsel
indicated that he again raised this point, which the courts had decided
against respondent, merely to preserve any rights or benefits respondent might obtain in the event the Supreme Court in another matter
involving this issue rules to the contrary. Counsel has not pressed this
point on appeal. Therefore, we need not consider the effect of the
Court of Appeals' judgment in relation to these proceedings, nor the
correctness of the special inquiry officer's ruling that respondent's
renewal of the objection was frivolous.
Respondent requests that, if we are unable to rule favorably upon
her application on the record before us, we remand the case to the
special inquiry officer for submission of interrogatories to the Yug,oslav
consular officer who attempted to interview respondent in connection
with her passport application and for production by the Service of
certain reports in its possession covering general conditions in Yugoslavia. Although we believe we could dispose of this case without
reaching the procedural points raised by respondent, we shall discuss
them because of their importance for other proceedings.
I. Respondent's request for submission of interrogatories to a Yugoslav
government official
Respondent has . prepared written interrogatories directed to the
Yugoslav consular officer who was present at her interview at the
Service's New York office. The record shows that officer's address
in Belgrade. The interrogatories are not part of the record but were
2 Between administrative hearings, the regulations bad changed to give juris-
diction in 243 (b ) proceedings to the special inquiry officer, and, on appeal, to us.
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Interim Decision #1347
marked for identification (Ex. R-3). We shall not, therefore, refer
to their specific contents but only to such matters as are developed in
the record. The record sufficiently reflects their purpose, however.
Thoi special inquiry officer refused to authorize presentation of the
interrogatories to the Yugoslav official. He said that, because it is
doubtful whether the official would or could be requested to answer,
the proposed testimony could not be considered readily available. He
also said the interrogatories are exploratory and of doubtful materiality here. We agree with the special inquiry officer's action, but the
denial may better be based on other grounds.
Respondent has the burden of showing the necessity of taking the
deposition of a prospective witness.' Respondent's counsel said that
through the interrogatories he seam to establish that the interview at
the Service office brought to the Yugoslav authorities' attention that
respondent seeks political refuge in this country, that she is not in
sympathy with the regime in Yugoslavia, that she fears the government there, and that, out of fear, she refused to appear at the Yugoslav
consulate to answer the consular officer's questions. Even assuming
that the occurrences at the Service office were reported to the home
authorities and tended to create the impression respondent seeks to
establish, the proposed interrogatories are not necessary as evidence
of the probable attitude of the Yugoslav authorities toward respondent
in the event of her deportation to Yugoslavia. We may concede on the
basis of the evidence of record that that attitude is apt to be hostile.
It is possible the Yugoslav authorities are not aware of the judicial
proceedings in respondent's behalf, although we consider such unawareness doubtful. Yet, apart from the judicial proceedings and the
interview in question, the record shows respondent's long absence from
Yugoslavia, her one brief contact with the consulate in 1958 for renewal of her passport, her failure in 1961 to, respond to the consulate's
invitation for an interview, and the consulate's awareness that respondent is under deportation proceedings here. It is obvious on these
facts alone, therefore, the Yugoslav authorities are aware respondent
is resisting returning to that country. Without events at the Service's
office, they might not now be as aware of respondent's reasons for
refusing to contact the consulate—assuming those events were reported
to them. If respondent were returned to the jurisdiction of those
authorities, however, they could by interrogation and investigation
easily ascertain her reasons for resistance.
Thus, even if the Yugoslav consular officer responded to the interrogatories, and respondent's expectations were met, the evidence, for
U.S. v. Ammeter, 5 F.R.D. 395 (E.D. N.Y., 1946).
570
Interim Decision #1347
our purposes, would be largely cumulative. Such evidence might at
best serve to bring into sharper focus respondent's relationship with
the Yugoslav authorities. Any corroborative value it might have for
other evidence of record, would be slight, however. Moreover, for
reasons which we shall develop later, we do not believe that the events
involving the consular officer unduly prejudiced respondent with the
Yugoslav authorities insofar as likelihood of physical persecution is
concerned.
Thus respondent has failed to discharge her burden of showing the
necessity for the interrogatories. For that reason alone they should not
be authorized. Because the situation is somewhat unusual and our
reasons for denying respondent's request may be important in other
proceedings, however, we shall refer to various additional justifications
for denial.
As the special inquiry officer has pointed out, the regulations for
proceedings under section 243(h) of the Immigration and Nationality
Act authorize respondent to submit such evidence as is readily available.4 In requesting presentation of interrogatories to the prospective
witness, the burden is upon respondent to show the witness will present
himself voluntarily to answer the interrogatories, or, if not, an authority in Yugoslavia to compel testimony. 5 Respondent also should
show the person before whom the interrogatories would be taken. She
has done none of these. Although her 'counsel, in supporting the request, mentioned that permission to take interrogatories have been
addressed to consuls in various parts of the world, he suggested no
procedure for the interrogatories here. The Federal Rules of Civil
Procedure provide a method for taking depositions in a foreign country Which we might adopt .° Our consular officers qualify as persons
before whom such depositions may be taken.
Respondent has not shown, however, that the Yugoslav government
permits our consular officers to take depositions—particularly when
the prospective witness is not only a Yugoslav national but a govern-
' 8 CFR 242.17 ( c)
° Cf. U.S. v. Avsmeier, supra'.
° Rule 28 (b) provides :
In a foreign country, depositions may be taken (1) on notice before a person
authorized to administer oaths in the place in which the examination is held,
either by the law thereof or by the law of the United States, or (2) before a person
commissioned by the court, and a person so commissioned shall have the power by
virtue of his commission to administer any necessary oath and take testimony, or
(3) pursuant to a letter rogatory. A commission or a letter rogatory shall be
issued on application and notice and on terms that are just and appropriate. It
is not requisite to the issuance of a commission or a letter rogatory that the taking
of the deposition in any other manner is impracticable or inconvenient ….
571
Interim Decision #1547
ment official—or whether any consular convention between. this country and Yugoslavia covers such a situation- 7
Moreover, in Branyan v. Koninklijke Luatvaart Maatsohappij the
Department of State acknowledged that letters rogatory rather than
notice to a consular officer or a commission provide the only fAnsible
means of obtaining the testimony of government employees and the
production of official records.9 Although the information sought in
Brangan was voluminous, technical, and complex—involving investigation of an airplane crash—the principle appears equally applicable
here. Consular officers would naturally be reluctant to take testimony
from officials of the host country, particularly in a matter which
might be sensitive to the host government. Respondent does not even
suggest that letters rogatory are feasible or desirable here.
Finally, respondent seeks to obtain what would in effect be admissions against interest by a Yugoslav official. If that official were willing to make any statement at all (and assuming that a suitable method
for taking the statement could be found) the possibility of obtaining
probative evidence favorable to respondent's cause is remote. 9
IL Respondent's request to examine certain reports contained in the
Service's records
Respondent refers to administrative proceedings before the Service
in the ease of a certain Yugoslav national. Those proceedings have
been cited in judicial decisions." In reaching its decision in that case,
the Service relied upon certain reports obtained through various official sources. Those reports contained background 'information on
conditions in Yugoslavia. Respondent requests that the reports be
made available for her examination.
The special inquiry officer denied this request on the ground that
there is no showing that the information is sufficiently current and
relevant to the particular facts and circumstances here to justify its
production, and on the further ground that respondent's request
appears to be a fishing expeditiOn. The special inquiry officer also
mentioned—apparently as an additional reason for not directing production of the report—that some of the information may be confidential. He did not, however, specifically assign any claim of privilege
See generally 22 U.S.C. 841, 816, 1195, 1203.
8 13 F.R.D. 425 (S.D. N.Y., 1953).
Compare Sang Ryup Park v. Barber, 107 F. Supp. 605 (NJ/ Calif., 1952)-
a somewhat analogous situation in reverse. There the Service sought evidence
of nonpersecution from an interested foreign official.
° Matter of Sale, A-9555532, April 28, 1958, discussed at length in Dombroeelle v. Esperdy,
198 F. Supp. 488 (1961) .
572
Interim Decision #1347
to the documents. The trial attorney objected to production of the
reports but did not specifically raise any claim of privilege.
Although we believe the special inquiry officer's denial of this request
should have been based upon an assertion that the information is
privileged under the regulations, we shall not disturb his ruling. 11
Wearfmilwthnoa icrespdntkoxamine. In our opinion, the regulations protect it from disclosure.
We also believe the information would not materially assist respondent's case. The burden upon respondent is heavy, however. Evidence having a direct bearing upon an application for section 243 (h)
relief is difficult to obtain. In proceedings under section 243 (h),
therefore, we would be inclined to be liberal in determining the reasonableness and propriety of a request to examine information in the
possession of the Government, if that information were nonprivileged.
III. Background for respondent's application under section 243(h)
Respondent is a national of Yugoslavia of German extraction. Her
birthplace was formerly in Austria. Now , however, it is in Yugoslavia. Respondent is 60 years old, married but separated.
Respondent completed eight years of elementary schooling in her
homeland. Shi lived in this country from 1920 to 1926. She then
returned to Yugoslavia where she married that same year She and
her husband separated in 1951: In Yugoslavia respondent worked on
land belonging to herself or her family and did housework. She has
worked as a housekeeper in this country
Respondent's husband lives in Yugoslavia. She has a son and two
daughters. One daughter lives in Yugoslavia. The son and other
daughter live in Germany. In this country respondent has two sisters
and a brother.
Respondent testified that she and members of her family favored reestablishment of the Royal Government after World War II. She
says they were known to be opposed to communism. Apparently she
and her family were relatively large landholders.
In 1942 respondent's husband was arrested by the partisans and
ahnost shot, but he escaped. He spent most of the war in Italian and
German camps. Respondent's sister and brother-in-law were also
sentenced to death by the partisans, but escaped. One of respondent's
daughters, who was told the partisans planned to kill her, had to flee
to Italy.
". 8 CFR 242.17( c) provides in part :
The determination under section 243(h) of the Act may be based upon information nut of record if, in the opinion of the special inquiry Meer or the Board,
the disclosure of such Information would be prejudicial to the interests of the
United States.
573
Interim Decision #1847
Respondent's mother left Yugoslavia in 1955 and went to Austria,
where she died about a year later. Upon her death the Yugoslav government confiscated her property. About 1950 respondent had also
lost a large piece of land and a house. She owned this property with
her husband. Respondent's testimony is not too clear, but it appears
the government took for some special purpose considerable property
where her land was located. Respondent received no compensation
for her or her mother's land but her husband received a piece of property in exchange for his half of the property which he and respondent
owned.
IV. Respondent's reasons for anticipating physical persecution in Yugoslavia
Respondent's contention that she will be physically persecuted in
Yugoslavia rests generally upon her testimony that she and her family
are known as anti-Communists and that she would now be in even
greater disfavor with the Yugoslav authorities because of her unauthorized absence from that country and her refusal to return. She
points to the Communists harassment of herself and members of her
family through threats of, or attempts at, violence and by confiscation
of her property and her mother's property without compensation.
Respondent also believes that, because she has lost her farm land, she
would be unable to support herself in Yugoslavia. She says no individual in Yugoslavia would employ her because there is no private
work and the government would not want her.
Respondent's testimony, at best, shows that she encountered socioeconomic difficulties in Yugoslavia because she was known not to be
sympathetic toward the Communist regime. She never suffered any
actual physical persecution. We do not believe her position would be
appreciably worse if she were to return there.
The threats of bodily harm and attempts at physical violence which
respondent says were directed against members of her family, occurred
during the war. Partisang made them. Respondent testified vaguely
concerning the reasons for the partisans' actions. Her testimony
suggests certain possibilities, however. The partisans may have considered respondent's family either was not supporting them sufficiently
or represented actual opposition. Respondent indicates she and her
family favored King Peter. The partisans may also have been opposed
to respondent's family because of their ethnic origin, or their holdings
of land. In any event, the wartime occurrences do not indicate any
active opposition to communism which might now be apt to lead to
hostile treatment of respondent at the hands of the Yugoslav authorities. Moreover, the past actions of those authorities in confiscating
land belonging to respondent and her mother would also be unlikely to
574
Interim Decision #1317
cause independently any new reprisals against respondent or to aggravate seriously any harsh treatment arising from other causes_
Respondent's testimony giving the reasons underlying the taking of
her land is also vague. Apparently the government wanted at least
part of it for some specific public purpose. Respondent believes she
was not compensated because of her anti-Communist record, but such
loss, even though severe economically, did not amount to physical
persecution.
Respondent's age and limited skills would doubtless restrict her
employment opportunities in Yugoslavia. The authorities there might
intentionally further restrict respondent's employment opportunities
because of the matters to which she has testified, including her attempts
to avoid returning to her homeland. We doubt, however, that respondent's fears that in Yugoslavia she would be totally without any
means of support would be realized. Her economic prospects would
not be good, but subsistence at a low level does not meet the statutory
standard for physical persecution, even if such subsistence, in whole or
in part, results from restrictions on employment opportunities imposed
deliberately because of the individual's race, religion, or political
opinion. Only total proscription of employment for such reasons
suifices.12 Respondent has not offered any evidence to corroborate her
statement that the authorities would not want her because they know
she is against them and would not care for her—how she lives, and
what she does, or if she dies.
Respondent says that if deported to Yugoslavia, she would be taken
into custody, given a hearing, put in prison and maybe beaten up. She
says she will have no freedom in Yugoslavia.
We believe respondent would probably be questioned by the Yugoslav authorities if the were returned to her homeland. Possibly she
would be confined during such examination. We believe any such
confinement would be relatively brief, however. We see nothing in the
record which indicates any likelihood of a prolonged investigation.
Contrary to respondent's expectations, we also see little or no likelihood respondent would be imprisoned as a result of investigation. If
by any chance respondent were imprisoned, we believe confinement
would be for a relatively brief period of time. There are no circumstances in this record which indicate otherwise. Certainly, no reason
appears for believing that respondent would be subject to imprisonment so prolonged or under such severe conditions as to constitute
physical persecution.
upunat v. Harney, 297 F. 2d 744 (CA. 3, 1982). Cf. Sonic v. Flagg,
303 P. 2d
289 (0.A. 7, 1962).
575
Interim Decision #13117
Current evidence of respondent's attitude toward the Yugoslav authorities is reflected primarily in her reluctance to return to her country. The record, however, contains nothing to distinguish her case
from the numerous cases of Yugoslav nationals who have attempted
strenuously to remain in this country rather than return to Yugoslavia.
Respondent says that the incident -which occurred in the presence of
the Yugoslav consul at the Service office is the worst thing that could
happen to her in her relations with the Yugoslav authorities. She
based her motion to reopen these proceedings upon that incident. We
believe she has exaggerated its importance. The most favorable inference in her behalf that we can draw is some emphasis of her reluctance to be interviewed by a Yugoslav, consular officer and to participate in any steps designed to enable this country to return her to Yugoslavia. The consulate, of course, was aware of such reluctance. The
attempted interview proposed to overcome it.
Yugoslav authorities may pay some special attention to respondent's
role at the attempted interview, if respondent is returned to Yugoslavia
and subjected to interrogation or investigation. Respondent, therefore, has cause to be concerned. We do not believe she need. anticipate actual physical persecution, however. We doubt that the Yugoslav authorities would take such a severe view of the matter. Thus
the incident is by no means dispositive of the issue here.
We believe respondent while testifying had in mind primarily the
harsh conditions in her homeland immediately following World War
II. Political restrictive measures against individuals have relaxed
considerably in Yugoslavia, even since respondent left there in 1957.
Li the light of such current conditions as we may officially notice, and
on the basis of respondent's own circumstances as shown in the record,
we perceive no valid grounds for anticipating respondent would be
physically persecuted if deported to Yugoslavia. Considering respondent's case as a whole, the Yugoslav authorities are at most likely
to subject respondent to some form of social, and economic sanctions.
Respondent's individual freedom may even be severely limited in numerous ways short 'of actual incarceration. Section 248 (h) does not
protect against such sanctions and restrictions, however.
Respondent has submitted several pieces of documentary evidence
in the form of a book, reports, congressional correspondence, articles
from a magazine and a Croatian newspaper, and newspaper clippings.
This evidence bears upon conditions in Yugoslavia. Some of this material traces events during World War II, the transition to Communist
control, and conditions in Yugoslavia in the period immediately following World War IL Other material is more current. The most
recent information of any substance covers events approximately
through 1961.
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Interim Decision #1347
This material serves mainly two purposes. It provides background
information on living conditions in Yugoslavia under the Communist
regime which respondent would face if she were returned to that
country.13 We would, in any event, take official notice of much of
this information, but the material is helpful in calling our attention,
and the attention of the special inquiry officer, to such matters. More
importantly, the information serves as the basis for an argument which
would substantially enlarge the scope of section 243(h). Counsel attempts to relate to respondent's particular situation general statements
found throughout some of the material which describe difficulties of
life in Yugoslavia. These difficulties confront practically all persons
who do not accept communist principles.
As we have seen, however, within our conception of the scope of
section 243(h) there is no reason to believe respondent would be subject to physical persecution if returned to Yugoslavia. We could
grant her application, therefore, only if we interpreted section 243 (h)
to include the case of almost any person who has escaped from Yugoslavia or who, like respondent, has left legally but remained abroad
becauee of reluctance to return to a Communist regime. In other
words, we would have to so interpret section 243(h) that flight from
Yugoslavia per se renders a returnee subject to physical persecution 1 4
We are wrsvillbig to so rule without a clear congressional expression
that physical persecution within the meaning of the statute is that
broad. Otherwise, such an interpretation would appear to run counter
to the legislative policy for refugees as expressed through P.L. 86-648."
That policy limits recognition of the status of "refugee-escapee" even
though the critical words in the definition of that term—"persecution
or fear of persecution on account of race, religion or political opinion"—are, we believe, susceptible of a broader interpretation than the
term "physical persecution." in section 243 (h)." Clearly section 243
(h) of theAct is to be applied selectively.
Among the material submitted by respondent, and accepted by the
special inquiry officer to the extent of particular passages selected by
respondent, is Milovan Djilas' book, The New Class (Ex. R-7). One
" Included also is information on the plight of refugees from 'Yugoslavia.
" We believe the dispute between the special inquiry officer and respondent over
the incident at the Service office as a "bootstrap operation" involves essentially
the special inquiry officer's reluctance to rule that respondent's section 243(h)
application and the Incident before the consular officer per se justify withholding
of her deportation. The effect of such factors should not be disregarded, but
neither is in and of itself conclusive.
11 74 Stet. 504, as amended 76 Stet. 124. The amendment removed the original
expiration date of July 1,1962.
" The definition of "refugee-escapee" in section 15 of P.L. 85 316, 71 Stet. 643,
-
was adopted by P.L. 86-648.
577
768-456--65-38
Interim Decision #1347
of those passages itself refutes part of respondent's argument. In
speaking of discrimination practiced by a Communist dictatorship,
Djilas says:
Persecution of democratic and socialist thought which is at variance with that
of the ruling oligarchy is fiercer and more complete than persecution of the most
reactionary followers of the former regime. This is understandable: the last
named are less dangerous since they look to a past which bus little likelihood
of returning and reconquering.17
By her own testimony respondent favors the old regime. It is extremely doubtful, however, that even. a Communist court would classify her as a highly reactionary follower of that regime. Moreover,
despite respondent's experience in living outside of Yugoslavia, it is,
if anything, more doubtful that she would become in Yugoslavia such
an articulate spokesman for Western ideas and ideals as to become
subject to physical persecution. Nothing in the supporting material
submitted by respondent alters our opinion that respondent faces only
the difficulties ordinarily experienced by returnees to Yugoslavia.
Respondent's testimony indicates that she expects long and harsh
imprisonment, beatings, and possibly even death. The report on the
European refugee situation prepared in 1959 by, the Zellerbach Commission, which respondent submitted in evidence, describes the usual
fate awaiting Yugoslav returnees. The commission's interviews with
numerous refugees indicate the possibility of imprisonment at hard
labor for a few months is not uncommon. More important, however,
the returnee will almost certainly be out of favor with the regime.
Such lack of favor will probably find practical expression in discrimination in such things as employment and housing and perhaps
even a greater curtailment of individual freedom than the populace
as a -whole experiences.
The extent of such difficulties -will, of course, vary greatly in the
individual case. There are many variables. Among these variables
are the individual characteristics of the returnee, the individual characteristics of the local Communist officials with whom the returnee
comes into most intimate contact, and the overall political atmosphere
at the time any particular hardship or difficulty is imposed. Among
these factors we can here consider only respondent's individual characteristics and the current conditions and political atmosphere in
Yugoslavia—to the extent that we may officially notice such conditions and atmosphere.
Respondent argues that section 243(h) contemplates as well protection against any future vagaries in the political scene under which
the likelihood of physical persecution may be greater than at the
2' At 144, 45.
573
Interim Decision #1847
present time. We do not agree. Such future possibilities are not
amenable to proof and consequently their determination is not amenable to the adjudicative process. Only where the likelihood of physical
persecution presently exists in a particular situation is withholding
of deportation warranted. We do not find such likelihood here.
ORDER: It is ordered that the appeal be and hereby is dismissed.
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