Interim Decision #1242
MATT= OF NXOSEL
In DEPORTATION Proceedings
A-12281979
Decided by Board August 10,196W
(1) Respondent's request to withhold deportation to a named country under
section 243(h) of the Immigration and Nationality Act, following her designation under section 243(a) of the Act of that country as the country to which
she prefers to be deported is, in effect, a withdrawal of the designation.
(2) Since the United States does not recognize the East German government,
respondent's claim to be a subject, national, or citizen of East Germany does
not preclude her deportation to the Federal Republic of Germany (West Germany) within step 3 of section 243(a) of the Act, that being the country in
which she was born, the country in which her place of birth is situated at the
time she is ordered deported, the country which had sovereignty over her birth-.
place at the time of her birth, and the country in which she resided prior to
entering the country from which she entered the United States.
(3) Step 3 of section 243(a) of the Act does not require that preliminary inquiry be addressed to the country to which respondent is to be deported to ASeortais its willingness to accept her (other than perhaps the seventh-listed
country, a country which is willing to accept the alien into its territory).
CHARGE:
Order Act of 1252—Section 241(a) (2) IS U.S.O. 1251 (a) (2)1—Remained
longer than permitted after nonimmigrant admission (temporary
visitor).
The special inquiry officer found respondent deportable on the ground
stated above and granted her voluntary departure, providing however, that if she failed to depart, she should be deported to West
Germany. Respondent applied for a stay of deportation on the ground
that she is a national of East Germany and if deported there, would
be faced with physical persecution. The special inquiry officer denied
her application. Respondent filed this appeal from the denial.
Respondent's case was previously before this Board. On March 13,
1962 the Board entered an order dismissing respondent's appeal from
the order of the special inquiry officer finding her deportable upon
the ground stated above and granting her voluntary departure. Fol-
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Interim Decision #1212
lowing the dismissal, respondent applied to the special inquiry officer
(in accordance with authority granted to the special inquiry officer
in the Board's order dismissing the appeal) for reopening of proceedings so that she could file an application. for the withholding of her
deportation on the claim of physical persecution under section 243(h)
of the Act, S U.S.C. 1255(h). At the reopened hearing, the respondent
declined to make a. designation of the country to which her deportation should be directed whereupon the special inquiry officer specified
the Federal Republic of Germany (West Germany) as the place of
deportation. Respondent then designated East Germany as the place
of deportation and at the same time pursued an application under section 243(h) of the Act to withhold her deportation stating that she
would 'be subject to physical persecution if delivered to the hands of
the officials of the East German. government. (The East, German
government is not recognized by the United States.) The special
inquiry officer denied the application pointing out that the Service
did not contemplate deporting respondent to East Germany, and he
refused to permit respondent to submit evidence concerning persecution in East Germany, 'Counsel contends that respcindent cannot be
deported to West Germany since she did not reside there, has no right
to claim the citizenship of that country, and remained there only long
enough to obtain the visa with which she came to the United States.
The place to which deportation may be ordered is determined by one
of the steps in a three-step plan designed by Congress. Step one provides that the alien shall be deported to a country designated by him
if that country is willing to accept him. If the alien fails to make
such designation, the next step contemplates the deportation of the
alien to the country of which he is a subject, national or citizen, if
such country is willing to accept him. If such country refuses to
accept him, then the third step permits the Attorney General to order
deportation to a country selected in his discretion from any one of
the seven categories listed in the section (Leong Leun Do v. Esperdiy,
197 F. Supp. 604 (S.D.N.Y. 1961; section. 243 (a) of the Act, 8 U.S.O.
1253 (a) ).
Applying the three-step plan. to the facts before us, we find that in
accordance with step one, respondent was given an opportunity to
designate a. place of deportation. This she first refused to do, but
ultimately designated East Germany, following the designation with
the request that the deportation be withheld because she would be
faced with physical persecution if returned there. The designation
of a country followed by a request for withholding deportation to
that country is, in effect, a withdrawal of the designation (Chao Chin
v. liturff, 168 F. Supp. 349 (S.D.N.Y., 1958) ). This brings us to stop
two. Respondent claims that the country of which she is a subject,
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Interim Decision #1242
national, or citizen is East Germany, and as we have indicated ehe
does not desire to be deported there ;because of her fear of physical
persecution. This being so, there is no need to proceed further with
step two. Step three permits deportation to the country in which
the alien was born and where his place of birth is situated at the time
he is ordered deported, or the country which had sovereignty over
the birthplace at the time of his birth. In the eyes of the law, the
United States considers all of these places to be West Germany. Deportation is also authorized to a country in which the alien resided
prior to entering the country from which he entered the United States.
In this case, respondent resided in. West Germany before embarking
at Copenhagen for the United States. There is ample justification
for selecting West Germany as the place of deportation.
Counsel contends, moreover, that under judicial construction of
the Act, before deportation to a country can be ordered, the Service
must make a showing that the proposed country has agreed to accept
the alien. Lu v. Rogers, 164 F. Supp. 320 (D.C. 1958), is cited. When
designating a country in step three as a place of deportation, there
is no requirement that preliminary inquiry be addressed to the country to which deportation is ordered (other than perhaps to the seventh
country in the list a country which is willing to accept the alien into
—
its territory). Lu v. Rogers supra, cited by counsel was one in which
deportation was contemplated , to a. country of which the alien was a
subject, national or citizen. In such event inquiry must be made as
to whether the country is willing to accept the alien. In the instant
case, this preliminary inquiry is not required.
Since the Government does not intend deporting respondent to East
Germany, her offer to establish that she would suffer physical persecution if deported there was properly rejected.
Contentions concerning the reopening of proceedings to enable respondent to apply for an adjustment of status under section 245 of
the Act (8 U.S.C. 1255) have been previously considered. Matter of
A-1 7--, A-10659043 (November 20, 1959), cited by counsel (now
found in 8 I. &N. Dec. 554, 558) is not pertinent.
The appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
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