Interim Decision #1351
MATTER or Psalm
In DEPORTATION Proceedings
A-15713945
A-13285441
Decided by Board June 18,1964
Respondent, a native and citizen of the Dominican Republic, has not established
that because he was employed for a period of 0 mouths in a comparatively
minor capacity in the Servicio de Inteligencia Militar he would be subject 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) 3—Nonimmigrant—remained longer (both).
In a decision dated December 16, 1963, the Special Inquiry Officer
found the respondents herein deportable on the charge contained in
the order to show cause, denied their applications for temporary withholding of deportation under section 243 (h) of the Immigration and
Nationality Act, but granted them the privilege of voluntary departure
from the United States. From that decision the respondents have
appealed to this Board. Deportability has been conceded and the sole
issue before this Board is the denial of the respondents' applications
for withholding of deportation under section 243(h) of the Immigration and Nationality Act. The appeals will be dismissed.
In considering the applications for relief the Special Inquiry Officer
noted that the female respondent's claim of physical persecution is
based entirely on the fact that she is the spouse of the male respondent.
Accordingly, the Special Inquiry Officer concluded that it was necessary only to consider the application of the male respondent. He
disposed of the matter on that basis and in this action we concur.
The male respondent is a 29 year old married alien, native and citizen of the Dominidan Republic, who last entered the United States at
New Bedford, Massachusetts, on July8,1962, when he was admitted as
a nonimmigrant crewman and authorized to remain in the United
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States for a period of time not to exceed 29 days. He remained
beyond that time without authority and is consequently, subject to
deportation under section 241 (a) (2) of the Immigration and Nationality Act. Our consideration of this appeal. will be directed to his claim
that if he were to be deported to the Dominican Republic he would
be subject to persecution in that country. In support of this claim he
has submitted the following facts for consideration. In 1956 he obtained employment with the Dominican Police Force as an investigator. The record indicates that he -wore the uniform of the Dominican Police Force and that his activities as a law enforcement officer
were concerned mostly with the investigation of robberies. In 1960
his employment was terminated for the reason that he had accumulated
an excessive amount of demerits during his period of employment
with the police force. Thereafter he worked as a seaman and continued
as such until a short time after Trujillo was assassinated in May of
1961. Upon abandoning his calling as a seaman he continued employment with a Dominican electrical corporation servicing boilers. It is
his testimony that at that time he also began working for the
Servicio Inteligencia Milker (SIM), having obtained such employment with the help of his uncle who became Chief of the Central Information Agency of the SIM. His employment with the SDI continued for approximately six months when that organization went
out of existence. The main basis for his claim of persecution is based
upon his employment with the SDI He testified that he worked in
the Confidential Squad of the Section of Social Politics, and it was
his duty to inform his superiors concerning people in the Dominican
Republic who were displeased or dissatisfied with the Government of
that country. Upon questioning he testified that he did not cause any
one to be arrested, did not inform the SIM about any one and his
name was never published as a member of the SIM. However, he
stated that it was a well known fact that he was the nephew of Manuel
Antonio Perez and at the conclusion of his employment with the SIM
he found it necessary to go into hiding. Sometime thereafter he
obtained a job as a seaman on the vessel which brought him to the
United States in July 1962. Other testimony given by the respondent
in this regard has been fully noted in the opinion of the Special
Inquiry Officer and need not be repeated at this time.
The Special Inquiry Officer found that in view of the fact that the
respondent was a comparatively minor employee of the SIM there was
little reason to find that he would be persecuted were he to return to
his home country. He concluded that the respondent had failed to
establish that he would be subject to physical persecution in the
Dominican Republic.
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Counsel for the respondent appeared at oral argument on appeal.
The substance of his argument relates to his request for clarification
of the Board's decision in two cases, Matter of Dias, File A-12386631,
decided by the Board on March 20, 1963, and the Matter of TorresTejeda, File A-12336079, decided by the Board on January 3, 1964.
Counsel for the respondents seeks to simplify the matters in. question
before this Board by characterizing our decision in .Dias, as the finding
that an innocent bystander who might be persecuted by an unruly mob
cannot be found eligible for relief under section 243 (h). He describes
our decision in the T orres-Tejeda case as finding that a person who was
a "hatchet man" for Trujillo was not entitled to relief under section
243(h) because here he would be punished for crimes which he admitted committing. Such would not be persecution but rather prosecution and accordingly, would constitute appropriate punishment for
admitted crimes. With the analysis of these two cases counsel declares
he has no difficulty. He seeks in the instant case to place the male
respondent in a position between what he implies are the extremes of
circumstances relating to Dominicans who seek relief under section
243(h). In other words, he proposes the following question: "If
the Board can find that an innocent bystander such as Diaz is not
eligible for 243 (h) relief and can also find that a so-called 'hatchet
man' for a Government now overthrown is not eligible for 243(h)
relief, why then should not a man who has served with the SIM in a
minor capacity be granted withholding of deportation by reason of
anticipated persecution V"
In answer to counsel's arguments we find that the situations presented in the Diaz and Torres cases have little relevancy to the present
application for relief. As this Board has so often said in prior cases,
applications for withholding of deportation based upon a claim of
persecution must of necessity be considered on individual circumstances
and factual situations. The burden of showing persecution is and
must be upon the applicant for the requested relief. Generally speaking, the persecution to which section 243 (h) refers connotes confinement, torture, or death inflicted on account of race, religion, or political
viewpoint. This, of course, refers to physical persecution. 1 It has
been held that the section involved relates also to economic proscription which is so severe as to deprive a person of all means of earning
a livelihood? The present case urges in effect that the respondent is
fearful for his physical well being if he is to be returned to the Domini-
-
can Republic and this fear is based upon his short service in a minor
capacity as a member of the SIM. It is our judgment, therefore, that
1 .131aoina v. Bouchard, 286 F. 2d 507, Cal. 3, Feb. 2, 1961.
3 .1)unat v. Harney,
297 F. 2d 744, C.A. 3, Jan. 24, 1962.
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our decision must be based upon a consideration of the possibility of
actual physical persecution to which the respondent would be subjected. His testimony in this regard has been reviewed at length
by the Special Inquiry Officer. Nowhere in this record is there proof
or testimony sufficient to warrant our reversing the holding of the
Special Inquiry Officer. The present government in the Dominican
Republic is a stable one. The organization to which the respondent
belonged is now defunct. The respondent has failed to show, except
by surmise and speculation, any positive, conclusive or even persuasive
reasons for us to assume that he would be physically persecuted in his
home country. By his own testimony his service with the SDK was
undistinguished and innocuous.
From all the above and after a careful and thOrough study of the
record before us, this Board has concluded that the application for
withholding of deportation under section 248 (h) is not warranted in
this case. Our consideration as hereinabove described has been limited
to the claim of the male respondent. Inasmuch as we find his application to have no merit, it follows that the application of the female
respondent should also be denied. Accordingly, the following order
will be entered.
ORDER: It is ordered that the appeals be and the same are hereby
dismissed.
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