Interim Decision *1446
MILITER OF LILO
In Deportation Proceedings
A-11828875
Decided by Board March 96,1965
(1) Respondent, a 39-year-old unmarried native of China, with advanced
training as a pilot, with skill as a contact lens technician, with the education, including a college degree, acquired during residence In the United
States since his entry in 1954, and with no relatives here who would be
adversely affected by his departure, has not established that his deportation
to Formosa would, within the meaning of section 244(a) (1), Immigration
and Nationality Act, as amended, result in "extreme hardship" because he
refused to return to that country after completing the program of- military
training for which he entered the United States and expressed political
views which are not looked upon with favor by the Nationalist Government
of China on Formosa.
(2) In adjudicating an application for withholding of deportation pursuant
to section 243(h) of the Act, a special inquiry officer may consider factors
other than those directly related to the alien's claim of physical persecution
and may deny such application as a matter of administrative discretion
without 'first making a formal finding of the alien's statutory eligibility
therefor.
(3) The possibility that respondent, if deported to Formosa, may be prosecuted by a military court martial for offenses committed while a member
of the military forces of that country does not constitute "physical proseLion" within the contemplation of section 243(h) of the Act. • [Wang v.
Mier; 285 F.2d 517 (C.A. 7, 1960)]
Omura:
Order: Act of 1952—Section 241(0(9) U.S.C. 1261(a) (9)]—NotOmmigrant, failed to maintain nonimmigrant stable, or
to comply with the conditions thereof.
The respondent, a native of the Mainland of China, a citizen of the
Aepublio of China on Formosa -appeals from an order entered by the
special inquiry officer on October 30, 1964 directing his deportation to
the Republic of China on Formosa on the charge that after entry as
a nonimmigrant alien he has failed to maintain his nonimmigrant
status or to comply with the conditions thereof. Applications for
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Interim Decision #1446
relief under sections 244(a) (1) and 243(h) of the Immigration and
Nationality Act were denied. Exceptions have been taken to the
denial of discretionary relief which would permit the respondent's
continued residence in the United States.
The respondent, 39 years of age, =married, last entered the
United States through the port of Agana, Guam, on October 11,
1954. He was admitted as a non-immigrant government employee
of a foreign goverment, to wit, a captain in the Chinese Nationalist
Air Force coming to the United States for advanced military training (section 101(a) (15), Immigration and Nationality Act; 8
U.S.C. 1101(6)(15)). The respondent testified that he resigned his
commission in the Chinese Air Force on February 14, 1955, shortly
before the scheduled return of his military unit to Formosa. He
has remained in the United States without authority. The respon-
-
dent concedes deportability. He alleges that he is politicilly opposed
to the organization and methods of the Nationalist government in
China. He also alleges that lie would be physically persecuted if
returned to Formosa.
The- respondent's application for withholding deportation under
section 243(h) of the Immigration and Nationality Act was denied
in an order entered by the Acting Regional Commissioner for the
Southwest Region on August 4, 1959. The respondent sought review
of the Acting Regional Commissioner's denial in the United States
District Court for the District of Columbia. The District Court
granted the government's motion for summary judgment and the
respondent appealed to the Court of Appeals for the District of
Columbia. The Court of Appeals on September 10, 1962, following the amendment of S CFlt 242 and 248, remanded the case to
the District Court with instructions to vacate its judgment. and remand the proceedings to the Immigration Service fora reopening to
afford the respondent an opportunity to seek relief under section
243(h) according to the procedure established by the amended regulations. This Board on motion of the District Director at San
Francisco ordered the hearing reopened to afford the respondent an
opportunity to seek relief under section 243(h) pursuant to the
procedure established by the amended regulations and for consideration of such other applications for discretionary relief that
way- be Bled. Our order of December 19, 1982 also provided that
:the outstanding order of deportation be withdrawn if discretionary
relief other than under section 213(h) be granted.
The respondent was granted hearing de novo on February 20,
1963, January 22, 1964, and May 18, 1964. During the course of the
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Interim Decision #1446
hearings the respondent applied for suspension of deportation, under
section 244(a) (1) of the Immigration and Nationality Act as amend- .
ed by the Act of October 24,,1962, and in the event that his deportation"be not suspended, he applied for a temporary withhold/4
of deportation under section 243(h) of the Immigration and Nationality Act (8 U.S.C. 1251(a) (1) and 1253 (h)).
The respondent seeks a suspension of his deportation on the
ground that his expulsion from the United States will cause him
extreme hardship. He testified that if he is forced to leave the
'United States he would be unable to adjust to a new environment
and would be unable to obtain employment as a contact lens technician, a position for which he has been trained. The respondent
also testified that his criticism of the Chiang Kai Shek regime on
Formosa has been reported by his superior officer to the foreign
office and that there is no question but that he would be sentenced
to death if returned to Formosa. His fear of physical persecution
because of his criticism of the Chiang Kai Shek regime and his resignation from the Chinese Air Force is the basis for his application
for withholding deportation under section 243 (h) of the Immigration and Nationality Act.
The special inquiry officer in the exercise of his discretion denied
the respondent's applications for suspension of deportation and for
withholding deportation. The special inquiry officer reasoned that
it would. not only be incongruous but would be an abuse of the discretion delegated to him by the Attorney General to permit the
respondent's continued residence in the United States in view of the
demand by the Nationalist Chinese Government that he be returned
to Formosa. The special inquiry officer is of the opinion that since
the respondent entered the United States as a - member of the Armed
Forces of one of our allies, pursuait to a mutual defense effort,
solely to receive training for the purpose' of strengthening that ally
and the defenses of the United States he should not be granted relief which would defeat that purpose.
Counsel for the respondent .maintains that the special inquiry
officer committed error in predicating his denial of relief on the
conclusion that the respondent does not merit' discretionary relief
because he deserted the Chinese Air Force. He argues that regardless of whether the respondent "resigned" or "deserted" the important
factor bearing upon the proper exercise of discretion, is that the
respondent's actions were justified in the light of his criticism of the
present regime governing Nationalist China. Counsel maintains
that the respondent is faced with the probability of death. if. re-
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Interim Decision #1446
turned to Formosa. Counsel argues that the proper exercise of discretion vested in the special inquhy.offieer under section 244 of the
Immigration and Nationality Act 'calls for •an assessment of the
alien's worth rather than a matter of foreign relations between the
United States and Nationalist China.
There was no finding by the special inquiry officer as to whether
the respondent is statutorily eligible for relief under section 244
(&) (1) of the Immigration and Nationality Act (8 U.S.C. 1251'
(a) (1)). The respondent is deportable under a provision of section 241(a) other than one mentioned in paragraph 2 of subsection
244(a). He has been physically present in the United States for a
continuous period since October of 1954. 'We do not believe that his
refusal to return to Formosa under the circumstances which prevail
here can be said to reflect upon his moral character.
The question presented insofar as statutory eligibility for suspension of deportation is concerned is whether the respondent can
support a claim of "extreme hardship" by relying upon factori
which are concerned with his conduct as an officer in the Chinese
Air Force and the fact that he expressed political views which are
not looked upon with favor by the Nationalist Government of China.
We are of the opinion that the political aspect of this case has no relation to a determination of "extreme hardship" •under section
244 (a) (1).
The respondent has a degree from the City College of San Fran
cisco. He now attends the 'evening division of the University of
San Francisco. He is gainfully employed as a contact lens technician_ He testified that if he were deported to an area other than
Formosa he would have language difficulties which would in all
probability limit his opportunity for gainful employment. He also
testified that he would be forced to abandon attending school in
the evening. He has no relatives in the United States. A brother •
resides on Formosa. The respondent concedes that there would be a
need in almost every country for one in his profession of preparing
contact lenses (pp. 11-14).
The personal privation contemplated in a situation characterized
by "extreme hardship" within the meaning of the statute is not a
definable term of fined and inflexible content or meaning. It necessarily depends upon the facts and circumstances peculiar to each
case. We are concerned with. an alien who was permitted to enter
the United States in 1954 for military training as a member of the
Armed Forces of a Nation allied with the United States. His ad-
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Interim Decision 4P 1446 .
mission for this purpose contemplated hill departure from the
*United States upon the completion of the training program.
It is our opinion that the evidence concerned with respondent's
economic 'well being does not support a. claim that his return toFormosa would result in extreme hardship to him within the meaning of the statute. The- respondent with his advanced training as
a pilot; with his skill as a contact lens technician and with this)
education he has acquired during his 10 years residence, is in a
better competitive position for employment than when . he entered
the 'United States in 1954. The respondent has no relatives in the
'United States who would be adversely affected by his departure.
There are no substantial equities in the respondent's case other
than those arising from- the fact that he refused to return to the
country of his nationality after completing the program of military
training for which he entered the United States. This factor alone
is insufficient to support a finding of "extreme hardship", within '
the meaning of section 244(a) (1). We find the respondent statutorily ineligible for suspension of deportation_
The respondent, in the alternative, applied for a temporary withholding of his deportation pursuant to the provisions of section
243(h) of the Immigration and Nationality Act. He maintains that
he will be subjected to physical persecution if deported to Formosa -.
The evidence on this issue consists of the respondent's testimony,
magazine articles concerning political conditions in Formosa and
the testimony of Doctor Ku Cheung Wu, a former private secretary
to Generalissimo Chiang Kai Shek and last a Governor of Formosa
from 1949 to 1953. The consensus of the magazine articles and the
testimony of Mr. Wu is that the Nationalist Government on Formosa is a dictatorial police state; that secret police arrest people" on
trumped-up charges and that justice both civil and military is a
farce. It is alleged that the respondent would be treated as a political opponent of Chiang Kai Shek and that he would be persecuted
for his criticism of the Nationalist Government.
The special inquiry officer is of the opinion that the record of this
case and the records created in the cases of Matters of Chong Fu
Meng and Lin Fu Mei,' contained considerable evidence which supports respondent's claim that he would be subjected to physical persecution -if returned to Formosa (Ex. 6). The special inquiry officer
also stated that the government "offered nothing substantial in relit was stipulated that all evidence on the issue of physical persecution in
the three cases covered by illes A-10491882, A-11828875 and A-8922827-would
be considered by the special inquiry ()Meer in staving at his decision.
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Interim Decision #1446
futation" of the evidence submitted by the respondent (p. 7, special
inquiry officer's opinion). The special inquiry officer denied withholding of deportation as a matter of administrative discretion without a formal finding on. the issue of whether the respondent would
be subjected to "physical persecution."
Counsel for the respondent takes the position that an application
for relief under section 243(h) cannot be denied as a matter of administrative discretion without a formal finding of statutory eligibility. He maintains that the applicant (respondent) has satisfied
the burden of establishing that he would. be subjected to physical
persecution if returned to the country to which he has been ordered
deported. It is argued that neither the statute nor the pertinent
regulations suggest that any factor other than those concerned with
physical persecution may be considered in arriving at a decision on
an application under section 243(h).
We find nothing in the statute or the regulations that limits the
special inquiry officer in the exercise of his discretion. Section 23
of the Internal Security Act of 1950,2 the predecessor of section
243(h) required a finding by the Attorney General that the alien
would or would not be subjected to "physical persecution" if such a
claim is made. U.S. ere rel. Ching Ping Zee et o2 v Shaughnessy,
107 F. Supp. 607 (U.S.D.C., S.D.N.Y., 1952). According to a de
cision by the United States District Court for the Northern District
of California, the withholding of deportation under section 23
(supra) was mandatory after a finding that the alien "would be
subjected to physical persecution" Sang Byv.p Park v. Barber,
107 F.
Supp. 605 (August 19, 1952).
• Congress, in enacting section 243(h) of the Immigration and
Nationality Act, drastically changed the language of section 28 of
the Internal Security Act of 1950. Section 243(h) reads: •
The Attorney General is authorized to withhold deportation of any alien
within the United States to any country in which in Ma opinion the alien
would be subject to physical persecution and for such period of time as he
deems to be necessary for such reason. (Emphasis supplied.)
The permissive word "authorized" has a far different meaning
than the mandatory word "shall" used in section 28 (supra, footnote
2). The Attorney General under section 243(h) "is authorized to
"Section 23, Internal Security Act of 1950, reads as follows:
"No alien shall be deported under any provisions of this Act to any
country in which the Attorney General shall End that such alien would
be subjected to physical persecution."
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Interim Decision #1446
withhold deportation of any alien within the United States (when)
in his opinion the alien would be subjected to physical persecution"
(Emphasis supplied.). This permissive language means that the
Attorney 'General or his delegate may consider factors other than
those directly related to an alien's claim of physical persecution In
forming his opinion as to whether discretion would be. exercised
either in favor of, or contrary to, the-alien's request for relief. The
Attorney General is not required, as was the case under section 23 . of
the Internal Security Act (supra), to make a formal finding with
regard to whether the alien will or will not be phyically persecuted.
We find no error on the part of the special inquiry officer in reach/TIE,
a conclusion in this , case that a withholai a of the - respondent's
deportation is not warranted without first making a formal findi
as to the respondent's statutory eligibility for such relief (Cf. Silvia
v. Carter, 326 F.2d 315 (C.A. 9, 1963), cert. den.
377 U.S. 917).
We do not believe, after a careful review of this record, that the
respondent will be subjected to "physical persecution" within the
meaning of section. 243 (h) if he returns to Formosa,. There is a possibility that he may be prosecuted by a military court martial. It
is alleged'that if convicted he will be subject to punishment under
article 93 of the Armed Forces Criminal Code for a maximum sentence of not more than three years. It is also alleged that in a similar case a Chinese Army Captain who refused to return with his
military unit after completing his training in the United States was
deported to Formosa, found guilty by a court martial and sentenced
to imprisonment for a term of only six months (see Ex. 17 and 18).
A procecution before a:military tribunal convened pursuant to the
laws of a foreign state to try offenses committed by a member of the
military forces of that country, cannot be construed to be physical
persecution within the meaning of section 243 (h) of the Immigration
and Nationality Act. Chao-Ling Wang v. Pilliod,
285 F.2d 517,
520 (C.A. 7, 1960).
Under section 243 (h) it is not a question of whether substantial
evidence supports the exercise of the discretion granted the Attorney
General or his delegate. The Attorney General of his delegate has
wide latitude and the primary consideration is whether the alien
has had a fair opportunity to present his case; whether the Attorney
General or his delegate has exercised his discretion and -Whether
there has been an error of law in the proceeding. We find no error
as a matter of law that the special inquiry officer's decision rests to
some degree on a political consideration, nameI., „the foreign policy
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Interim Decision #1446
of the United. States. The special inquiry officer exercised his discretion after affording the respondent a fair opportunity to present
his case. Cf, U.S. ex rel. Dolens v. Shaughnessy, 206 F.2d 392, 394,
395 (CA. 2, 1953.) The appeal will be dismissed.
ORDER: It is .directed that the appeal be and the same is hereby
dismissed.
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