Interim Decision #1707
MAr.iBrt OF MOY
Application for Classification as Refugee
A-11551885
Decided by Regional Commissioner February 2, 1967
Since an alien who had been firmly resettled in another country is ineligible for
refugee classification under the proviso to section 203 (a) (7) of the Immigration
and Nationality Act, as amended, such classification is denied applicant. a
native of China, who, after fleeing the mainland in 1949 thereafter had been
firmly resettled in Colombia, South America, having acquired permanent residence and substantial assets in that country, including a partnership interest
in a farm and cash savings amounting to $6,000 in a bank.
ON BEHALF OF APPLICANT: Samuel B. Waterman, Esquire
111 Broadway
New York, New York 10006
This matter is before the Regional Commissioner on certification of
the decision of the District Director denying the application for
refugee classification under the proviso to section 203(a) (7) of the
Immigration and Nationality Act, as amended.
The applicant is a citizen of China, single, born September 12, 1932,
in Toy Sun, Kwangtung, China. He fled from China to Hong Kong
about 1949 because of his fear of persecution on account of -political
opinion. He states he is unwilling to return to China because he is
opposed to Communism and the Communistic form of government. He
remained in Hong Kong from about 1949 until May 26, 1956, during
which time he was attending school and was supported by money
received from his father who had remained on the Chinese Mainland.
In 1956 the applicant went to Colombia, South America for employment. He was admitted to the United States on April 22, 1958, as a
visitor for pleasure for four months. Thereafter he was granted a
change of status to that of a nonimmigrant student extensions of
stay until January 30, 1963. He has since remained in the United States.
Upon his admission to the•United States, the applicant presented a
passport issued by the Republic of China valid to February 3, 1960, and
a reentry permit for his return to Colombia to expire in January 1960.
117
Interim Decision #1707
His Chinese passport was revalidated until February 3, 1963, and his
reentry permit for Colombia until March 1, 1961. When interviewed by
an officer of this Service on September 11, 1958, the applicant stated
be had resided in Colombia since May 1956; that he was engaged there
in farming with a partner; that he and his partner owned land in
Colombia; and that he had approximately $8,000 in a bank in Barranquilla, Colombia. In an application for an extension of stay submitted
in October 1959, the applicant stated he. had a yearly income of $2,700
from his personal savings in Colombia, South America.
Section 203 (a) (7) of the Immigration and Nationality Act, as
amended, reads as follows:
(7) Conditional entries shall next be made available by the Attorney General,
pursuant to such regulations as be may prescribe and in a number not to exceed
6 per centam of the number specified in section 201(a) (ii). to aliens who satisfy
an Immigration and Naturalization Service officer at an evemluation in any
non-Communist or non-Communist-dominated country, (A) that (I) because of
persecution or fear of persecution on account of race, religion, or political
opinion they have fled (I) from any Communist or Comnumist-dominated country or area, or (II) from any country within the general area of the Middle
East, and (ii) are unable or unwilling to return to such country or area on account of race, religion, or political opinion, and (iii) are not nationals of the
countries or areas in which their application for conditional entry is made; or
(B) that they are persons uprooted by catastrophic natural calamity as defined
by the President who are unable to return to their usual place of abode. For the
purpose of the foregoing the term "general area of the Middle East" means the
area between and including (1) Libya on the west, (2) Turkey on the north, (8)
Pakistan on the east, and (4) Saudi Arabia and Ethiopia on the south PROVIDED, That immigrant visas in a number not exceeding one-half the number
specified in this paragraph may be made available, in lieu of conditional entries
of a like number, to such aliens who have been continuously physically present
in the United States for a period of at least two years prior to application for
adjustment of status.
We will concede for the purpose of this order that the applicant
fled from Communist China because of fear of persecution on account
of his political opinion and that he is unwilling to return thereto on
account of political opinion. The issue to be decided here is whether by
reason of having become resettled in a third country, Colombia, South
America, he is ineligible for the requested refugee status. The statute
does not specifically mention resettlement in another country after an
alien has fled from his homeland. Reference will be made therefore to
the legislative history of Public Law 89-236 which added section
203(a) (7) in its present form to the Immigration and Nationality
Act. The Senate Committee on the JudiCiary when considering H.R.
2580 (which became
Public Law 89-236) states in its Report #748,
p. 16:
118
Interim Decision #1707
As passed by the House, the bill in section 203(a) (7) provides that not to
exceed 10,200 refugees from communism and an area of the Middle East may
be granted conditional entries each year. As amended by the committee, this
category of refugees is enlarged to include aliens who have been uprooted from
their place of usual abode by a catastrophic natural calamity. It is the purpose
of the committee in adding this group of persons to the refugee category to provide relief in those cases where aliens have been forced to flee their homes as a
result of serious natural disasters, such as earthquakes, volcanic eruptions,
tidal waves, and in any similar natural catastrophes. The Congress, in a prior
case granted relief to such persons through the enactment of the Refugee Relief
Act of 1953, where the term "refugee" was defined as follows :
Sec. 2. (a) "Refugee" means any person in a country or area which is neither
Communist nor Communist-dominated who because of persecution, fear of persecution, natural calamity, or military operations is out of his usual place of abode
and unable to return thereto, who has not been firmly resettled, and who is in
urgent need of assistance for the essentiale of life or for transportation.
Refugees have been admitted to the United States through the sponsorship of
voluntary agencies and private citizens. The Committee anticipates that such
practice will continue so that each refugee will have an opportunity to adjust
and develop in this country without fear of abandonment and without the
possibility of becoming a public charge.
The conditional entry of refugees as proposed in this bill is not unlike the
parole procedure utilized during the existence of the so-called Fair Share Act
(sec. 212(d) (0) ) and it is Intended that the procedures remain the same.
In House of Representatives Report #745, August 6, 1965, Page 15
the following statement appears :
The conditional entry of refugees as proposed in this bill Is not unlike the
parole procedure utilized during the existence of the so-called Pair Share Act
(sec. 212(d) (5) ) end it is intended that the procedure remain the same. Since
the use of the term "parole" conveys a connotation unfavorable to the alien, the
substitute term "conditional entry" am been used to avoid any such implication.
The so-called Fair Share Refuge Act (the act of July 14, 1960), with the
exception of the sections which permit adjustment of status of refugees already
admitted to the United States under its provisions, is repealed. The repeal of
this legislation will again permit the United States to determine who is or who
is not a refugee.
A further indication of the congressional intent is found in the following 4tatement of Senator Edward M. Kennedy concerning H.R.
2580, which appears on page 23351 of the Congressional Record of
September 17, 1966 :
The plight of refugees has been of special concern to us since the end of World
War II. Every outbreak of violence between nations leaves its toll in the homeless and dispossessed. Our concern for refugees was capped in 1960 by the passage of the fair share law, under which we agreed to accept up to 25 percent of
persons displaced to other lands in a prior 6-month period, if these persons fell
under the mandate of the United Nations High Commissioner for refugees. This
law was passed in keeping with World Refugee Year. By placing refugees under
our general immigration law for the Bret time, the bill before us will do away
119
Interim Decision #1707
with the main provisions of the fair share law, thus allowing the United Sister
to make its own determination of who is or is not a refugee.
In the past we have accepted as refugees only those persons otherwise qualified who have not firmly resettled in another country. Those
persons who after fleeing from their homeland have proceeded to another country where they have been accepted as permanent residents
and have established themselves firmly can no longer be considered to
be fleeing from persecution. The Congress obviously did not intend
that the fact that an individual had fled from a country because of
persecution or fear of persecution should without regard to intervening circumstances qualify him forever'ss a refugee.
The applicant, to quote from a brief submitted by his former counsel on October 28, 1958 :
. . . . established that at his domicile in Barranquilla, Colombia, he has a partnership interest in a farm valued at $1,500.00 and has cash caving° amounting
to $5,000.00 In a Barranquilla bank. He also established that he has no intention
of abandoning his Colombia residence to which he is able to return (See permit
to reenter Colombia which expires January, 1960).
We conclude that the applicant became firmly resettled in Colombia
and that he does not qualify as a refugee within the scope of section
203(a) (7) of the Immigration and Nationality Act, as amended. The
decision of the District Director will be affirmed.
It is ordered that the application for refugee classification under the
proviso to section 203(a) (7) of the Immigration and Nationality Act,
as amended, be and hereby is denied.
120
