CAVLOV

 Interim Decision #1249




                              MA'ITER OF CAVLOV

                     In DEPORTATION Proceedings

                                  A-15809142

                  Decided by Board September B7, 1962
(1) Since respondent, a native and citizen of Yugoslavia, apparently had fulfilled his military obligations when he left Yugoslavia without permission ;
  there is nothing in the record to indicate that he engaged in any activity inimical to the Communist Party in Yugoslavia or in any political activity whatever ; and there appears to be no basis for assuming that the amnesty granted
  by Yugoslavia to about 150,000 persons outside the country, including persons
  who fled that country illegally after World War II. is inapplicable to a person
  deported to Yugoslavia, respondent has not established that he would be subsect to physic:jai persecution under section 243(h) of the Immigration and
  Nationality Act.
(2) While respondent is apparently a refugee under the mandate of the United
  Nations High Commissioner for Refugees, this in itself does not establish that
  he would be subject to physical persecution under section 243 (h) if deported
  to Yugoslavia because a person could be classified as a refugee for reasons other
  than fear of persecution.
ate:
  Order: Act of 1952—Section 241(a) (2) (8 U.S.C. 1251 (a (2)3—Nonimmigrant,
          remained longer than permitted.


  This case is before us on appeal from a decision of a special inquiry
officer granting voluntary departure and directing that the respondent
be deported if he fails to depart voluntarily.
  The respondent is a 33-year-old unmarried male, native and citizen
of Yugoslavia, who last entered the United States on May 28, 1959
at which time he was admitted as a nonimmigrant crewman authorized
to remain in the United States during the time his vessel remained
in port but not exceeding 29 days. He has remained in the United
States without authority. In the event of failure to depart, the special
inquiry officer directed deportation to Australia, the country designated
by the respondent, with alternative orders of deportation to Yugoslavia
and Italy. That officer denied the respondent's application under
:8 U.S.C. 1258 (h) for withholding of deportation to Yugoslavia. The

                                       94
                                              Interim Decision. #1249
respondent does not contest the special inquiry officer's conclusion that
he is deportable from the United States, and he stated that he does
not think he would be physically persecuted if deported to Italy. The
sole issue to be determined is whether the respondent has established
that he would be subject to physical persecution if deported to Yugoslavia.
   We have carefully reviewed the entire record and our decision rests
solely upon this record. The respondent was born in 1928. He was
conscripted into the armed forces of Yugoslavia in 1948 and was
discharged about seven months later because of illness. Subsequently
he served about 17 months in the Army of Yugoslavia between 1951
and 1953. With the exception of these two periods of military service, the respondent lived and worked at home on the family farm until
1954 when he left Yugoslavia in a small fishing vessel with five other
adults and landed in Italy. He testified that he lived in a refugee camp
in Italy from 1954 until he came to the United States in 1959.
   In his application for withholding of deportation (Ex. 2), the
respondent asserts that he is opposed to communism; that he left
Yugoslavia without permission in 1954; and that, if he were deported- to Yugoslavia, he would be punished for having requested political
asylum in Italy. The respondent asserted that about 1950 he was
interrogated by the authorities in Yugoslavia because of certain statements he was supposed to have made against the communists. He admitted that he was not imprisoned at that time or subsequently; that
he was not prevented from attending church; and that his mother
and sisters and brother still attend church in the same place in Yugoslavia. He asserted, however, that he believed the authorities intended
to put him in jail and that it was for that reason that he fled from
Yugoslavia in 1954.
  Under 8 CFI't 242.17(0, the respondent has the burden of establishing that he would be subject to physical persecution if deported to
Yugoslavia. The Government introduced a newspaper article dated
March 14, 1962 (Ex. 6) indicating that Yugoslavia had granted an
amnesty to about 150,000 persons outside the country including persons
who fled the country illegally after World War II. In his letter accompanying the appeal, the representative of the respondent states
that he will not return voluntarily to Yugoslavia and takes the
position that the amnesty may apply only to persons so returning and
not to any who are deported to Yugoslavia. While there appears to
be no basis for assuming that the amnesty is inapplicable to a person
deported to Yugoslavia, it does not appear to be too important whether
the respondent is or is not technically within the purview of this
amnesty. He had apparently fulfilled his military obligations when
he left Yugoslavia, and we do not believe that he has established that
                                  95
Interim Decision #1249
he would. be physically persecuted merely because he left Yugoslavia
without permission. There is nothing in this record to indicate that
the respondent engaged in any activity inimical to the Communist
Party in Yugoslavia or in any political activity whatever. Apparently
he engaged principally in the routine activity of a farmer. On the
one occasion in 1950, when he claims he was questioned by the authorities, no action was taken against him. On this record, we are unable
to say that the respondent has established that he would be subject to
physical persecution if returned to Yugoslavia.
   The remaining point in the argument on behalf of the respondent
relates to the letter (Ex. 4) dated May 10, 1962, by a representative of
the United. Nations High Commissioner for Refugees which shows
that the respondent is a refugee under the mandate of the High Commissioner; that his eligibility was determined on October 8, 1954; and
that the High Commissioner is opposed to the return, against his will,
of any refugee under the mandate to his country of origin. The special
 inquiry officer stated that, even though the respondent was recognized
 as a refugee in 1954, this did not mean that circumstances may not
have changed since that time. The letter of the respondent's representative contains the assertion that the conditions have not changed
 for the better in Yugoilavia since 1954 and he has referred to certain
statements indicating a closer relationship between Yugoslavia and
the Soviet Union. Actually, we do not believe it is material in the
respondent's case whether the present relationship between these
countries represents reapprochement or divergence. The fact remains
that Yugoslavia is a communist country, and we have considered this
in reaching our conclusion in the respondent's case.
   Although the respondent is apparently a refugee under the mandate of the United Nations High Commissioner for Refugees, this in
itself does not establish that he would be subject to physical persecution if deported to Yugoslavia. In his decision (p. 5), the special
inquiry officer stated that an examination of the United Nations
Resolutions indicates that the jurisdiction of the High Commissioner,
insofar as it relates to this respondent, derives from the following:
"Any person who, as a, result of events occurring before 1 January 1951
and owing to well-founded fear of being persecuted for reasons of
race, religion, nationality or political opinion, is outside the country
of his nationality and is unable or, owning to suck fear or for reasons
other than personal convenience, is unwilling to avail himself of the
protection of that country; …" (emphasis supplied). The language which we have emphasized indicates that a person could be classified as a refugee for reasons other than fear of persecution except that
it would not extend to a case where the reason was "personal
convenience".
                                  96
                                              Interim Decision #1219
   We have taken into consideration the statement that the High Commissioner is opposed to the involuntary return of any refugee under
the mandate to his country of origin. Nevertheless, we are required to
decide this case on the basis of the specific provisions of the laws of
this country. Since we have concluded that the respondent has not
established that he would be subject to physical persecution in Yugoslavia, we are unable to make the finding required by 8 U.S.C. 125a (h).
However, the respondent can avoid deportation to Yugoslavia by
departing voluntarily to any other country in accordance with the
voluntary departure privilege which was granted and, if he fails to
depart, an effort will be made to deport him to Australia, the respondent havine, designated that country as the place of deportation. In
view of the foregoing, the appeal will be dismissed.
   ORDER: It is ordered that the appeal be and the same is hereby
dismissed.




                                  97