Interim Decision #1825
KATI= OF TAN
In Deportation Proceedings
A-13983727
Decided by Board September 16, 1967 and December 14, 1967
(1) Since it has not been established that the government in power can not
' control mob action In Indonesia, application by respondent, a native and citizen
of Indonesia, for withholding of his deportation to that country under section
243(b), Immigration and Nationality Act, as amended, on the claim that because he is of Chinese ethnic origin he would be subject to persecution as a
result of mob action directed against members of his race by individual gronpo
in Didenesia, IS denied in the absence of convincing evidence be would be
singled out for persecution.
(2) She burden of proof and standards for withholding deportation under section 243(h) of the Act, as amended, may not be equated with the burden of
proof required to establish eligibility for "refugee" status under section 203
(a) (7) of the Act, as amended.
• Order: Act of 1952-Section 241(a) (2) [8 II.8.0. 1251(a) (2)1—Nonimmi-
' grant—remained longer.
ON BEHALF or BESPONDiNT: Ox BintAis or Einavion :
David Calliper, Esquire B. A. Tielhaber
• Warner Building Appellate Trial Attorney
1R'seliingdua D:(7 `20004
;
BEFORE THE BOARD
The respondent, of Chinese ethnic origin, is a native and citizen of
Indonesia. An order entered by the special inquiry officer on May 31,
1966 grants the respondent voluntary departure in lieu of deportation
as an alien who after entry as a nonimmigrant exchange visitor has remained longer than permitted. An application for a stay of deportation
to Indonesia was denied and the respondent's appeal from this denial
was considered by the Board of Immigration Appeals in November
of 1966. We remanded the case for a reopening of the proceeding to
permit the introduction of evidence material 'to the issue of relief under
section 243(h) and for such other evidence as the respondent may wish
564
Interim Decision #1325
to present on this issue. We directed that the spebial inquiry officer
render a decision de nova on the basis of the entire record. A reopened
hearing was accorded the respondent on January 25, 1967 and after due
consideration of the entire record the special inquiry officer denied the
respondent's application to withhold deportation to Indonesia pursuant for the provisions of section 243(h) of the Act. He certified the case
to the Board of Immigration Appeals for final decision.
The record in addition Ito the respondent's testimony both at the
original and reopened hearings includes six articles published in the
Washington Post, Time Magazine, The New York Times Magazine, by
the United States Department of Health, Education and Welfare and
by Cornell University :(Exs. 4 through 9). The respondent also submitted excerpts from a letter from his brother in law in East Java
- -
dated June 6, 1966 •(Ex. 10). A recital of the substance of the aforementioned published articles ha's been fully set forth in the opinion of
the special' inquiry Officer and will not be repeated: • •
The published articles indicate that Many of' the 2,500,000 Chinese
in Indonesia fear a bloodbath; that there is regular looting of Chinese
properties; that the Indonesian Government has banned the publication of all Chinese language newspapers; that many of the Chinese
language schools have been closed; that many Chinese have been deported to Communist China; that native Indonesians resent the domination of the nation's commerce by the Chinese; that there is an apparent organized attempt by-the Indonesian Government to 'create hostility toward the Chinese; that- the Chinge .control 80 per cent of private industry and that the' anti-Chine - sentimentdirected with
equal force against, IndoneSian• citizens who are ethnic Chinese and
Chinese who have migrated from the mainland.
, Excerpts from' the letter entered as Exhibit 10 advised the respondent that hi's family "are doing fine"; that litter the first of October movement "the situation was indeed. very quiet andthe atmosphere unpleasant"; that on •April 10 'there was mob violence along
Doho Street which resulted in. broken -front- .windowi in his father's
bakery "and that fortunately the bakery was not entered due to
the intervention of "military men and police."
The respondent testified that the Indonesian police make no distinction 'between the Chinese born in China and the Chinese born in Indonesia as far as police protection is concerned (R-27) . He further
testified that he had heard complaints from Chinese groups of how
they were mistreated but that he had never actually experienCed any
mistreatment himself (R-28). The respondent when queStioned as to
whether he would be persecuted by the Indonesian Government if he
returned to Indonesia replied in the negative (R-82). Ile admitted
565
Interim Decision #1825
that the persecution of the Chinese is by factions or individuals or
groups who have no authorized connection with the government
(R 32). He also stated that the police do nothing to restrain mob
-
violence when that violence is directed against the Chinese (R-32).
The special inquiry officer concludes that the respondent has not
met the burden of establishing that he would be subject to persecution
if he returned to Indenesia by reason of the fact that he is a member
of the Chinese race. The special inquiry officer relies on the respondent's
testimony that he experienced no personal persecution before his departure in 1962; that the respondent was employed by the Indonesian
Government before he departed; that he left his country with the blessing of his. government as an exchange visitor; that in effect the Chill= attitude has its origin by reason of the fact that the Chinese
control the country economically and that while the Chinese as an
ethnic group may • continue to draw the animosity or ill will of some
of the Indonesian people any persecution of the Chinese has not been
by government action. although there is some evidence that government authorities have acquiesced or sanctioned the agitation against
the Chinese.
- When the ease wAS originally before us in November of 1966 counsel
argued that section 243(h) of -the Immigration and Nationality Act
has no requirement that an alien prove to a mathematical certainty that
acts of violence would be directed against him if he returns to the country to which he has been.ordered deported. Counsel also maintains that
section 243(h) has no provision 'which requires the Attorney General to
make a finding that the government of a country subjects an alien. deportee trs persecution. in order to be eligible for relief under section
243(h) of the Act.
The Attorney General is authorized to withhold deportation of any
alien within the United Statei to any country in which in his
opinion the alien would be subject to persecution on account of race,
religion or political opinion. A deportable alien is eligible for relief
only when in the "opinion" of the Attorney General his deportation
would subject the alien to persecution in the country to which he has
been ordered deported. The statute does not restrict or specify the considerations that may be welled upon by the Attorney General in
formulating an "opinion."
The evidence supporting the respondent's claim of persecution establishes with certainty that the Chinese as a race have incurred the
animosity of individual groups of native Indonesians primarily because of their ability to control the economic and material wealth of
Indonesia. There is also evidence that Chinese who are on the same
social economic level as the indigenous Indonesians are in many in-
586
Interim Decision #1825
stances assimilated into Indonesian society as students and government
employees (Ex. 7). The respondent was employed in a responsible
position by the Indonesian Government prior to his departure for the
United States.
The respondent in the instant case concedes that he never experienced persecution prior to his departure from Indonesia. There
is also evidence that the property of his father was protected from mob
violence by the police of the respondent's local community as recently
as June of 1966 (Ex. 10). The respondent was permitted to depart by
his government as an exchange visitor and this fact contemplates his
return with knowledge that would inure to the benefit of the government of Indonesia. He testified that he has no personal knowledge that
the Indonesian Government has stimulated hostility toward the
Chinese who live in Indonesia (R-35).
The conditions which would confront the respondent upon returning to Indonesia have counterparts to a certain degree in other
countries which from time to time experience mob action by one ethnic
group against another. The hazards of personal injury which arise as
the result of conflict.between majority and minority ethnic groups, in
our judgment, are not contemplated within. section 243 (h) when there
is a reasonable showing as in this case that the government in power
does make -an attempt to control such incidents. Accordingly, we condude -that -the respondent has not established that he would be subject
to persecution within the meaning of -section 248 (h) by claiming a fear
of persecution by reason of the fact that he is an ethnic Chinese who
would bo returning to a country whioh on occasion had experienced mob
violence directed against members of his race by individual groups.
The appeal will be dismissed.
ORDER : It is directed that the order entered by the special inquiry
officer on May 31,1966' denying the respondent's application to withhold deportation to Indonesia under the 'provisions of section 243(h)
of the Act and granting him voluntary departure in lieu of deportation be and the same is hereby affirmed.
BEFORE THE BOARD
The respondent, of Chinese ethnic origin, is a native and citizen of
Indonesia. The Board of Immigration Appeals, on September 15,
1967, entered an order affirming a decision of the special inquiry officer
entered on May 31, 1960 denying the respondent's application to withhold deportation to Indonesia under the provisions of section 248 (h)
of the Immigration and Nationality Act and granting him voluntary
departure in lieu of deportation. Counsel for the respondent moves
for a reconsideration of this order.
567
Interim Decision #1825
The evidence supporting the respondent's claim of persecution has
been fully discussed in our opinion of September 15, 1967 and will not
be repeated. After a careful review of the evidence we concluded that
the respondent had not established that he would be subject to persecution within the meaning of section 243(h) by claiming a fear of
`persecution -by reason of the fact that he is an ethnic Chinese who
would be returning to a country (Indonesia) which on occasion has
experienced mob violence directed against members of his race by
individual groups.
The thrust of counsel's argument urging error in the Board's conclusion is that section 243(h) does not require an alien to prove that
he Nvolild be subject to persecution by his -goverriment in order to be
eligible for relief and that eligibility is established when the evidence
affirmatively shows that an alien would be subject to persecution because of mass activity on the part of the dominant race of a country or
an organised mil:Jerky within a country against an ethnic group of
which the alien is a member. We do not dispute counsel's argument that
the statute does not require proof of persecution by an - organized
government. However, the statute does give the Attorney General
discretion to stay deportation only in circumstances where an alien
affirmatively shows that he "would be subject to persecution on account
of race, religion, or political opinion" in the country to which he is
being deported.
The policy of restricting llie'faitorable exercise of ctscretion to
cases "of elear probability of perseentiOn of the particular individual
ipetitioner has been sanctioned by the courts. Lena v. Immigration
and NaturblilatiimigetaCe, 379 F.2d 536, 538 (CA. 7, June 7, 1967).
Mob action may be a ground for staying deportation under section
243(h) whet° it is established that a government cannot control the
mob. The evidence before us, however, establishes to our satisfaction
that the IndonesianGoirernment is able to control mob action.
A recent article in the New York Times (March 25, 1967) submitted
by counsel during oral argument • states: 4The harassment (of the
Chinese) varies from one area to another depending on the attitude of
local officials. In some cases it (the harassment) seems to meet strong
opposition from top Government officials." This is not evidence that
the 4es.pepdent as an individual would be subject to persecution in
Indonesia because. of his race, religion,Rr political opinion..In fact the
respondent testified that he was not alvare,of any, activity by the Indonesian Government to stimulate mass activity and hostility toward
persons of Chinese origin (A 84).. The evidence .of sporadic harass-
-
rapt of ethnic Chinese which varies from one area ; of Indonesia to
another does not amount to the particularized persecution that justifies
568
Interim Decision #1825
a stay of deportation under section 243 (h) of the Immigration and
Nationality Act. Meng Kai Fa, et a2. v. Immigration. and Naturalisation Service, Nos. 287 and 236 (C.A. 2, November 16,1967).
Counsel argues that the recent amendment of section 243(h) which
eliminates the term "physical persecution" and inserts in lieu thereof
"persecution on account of race, religion or political opinion" equates
section 243(h) with section 203 (a) (7) -which defines a "refugee" and
accordingly the same burden of proof and standards for granting
relief is required for both sections of the Act. Counsel refers to the
legislative history of the amendment in support of his argument (Congressional Record, Volume III, No. 157, pp. 20995 and 20996, House
of Representatives, August 25, 1965) .
While it is true that the sponsor of the amendment said that the
alien who applies for a stay of deportation under the amended statute
"must bear the same burden of proof" as the alien who seeks to enter
the 'United. States as a "refugee," nevertheless he made it clear that
the amendment "narrows the word persecution by limiting the scope
of its interpretation to three specifics: namely, persecution on account
of race, persecution on account of religion, or persecution on account
of political opinion."
Section 203(a) (7) of the Act grants a conditional visa to an alien
who satisfies an immigration officer at an examination in any non-Communist or non-Communist dominated country that "because of
persecution or fear of persecution on account of race, religion or
political opinion (he has) fled from any Communist or Communist
dominated area, or from any country within the general area of the
Middle East, and (is) unable or unwilling to return to such country
or area on account of race, religion or political opinion, and (is) not
(a) national of the countries or areas in which (his) application for
conditional entry is made .. ." An alien refugee must satisfy an immigration officer that he is otherwise admissible under the entire immigration process before he can be granted a conditional entry whereas a
deportable alien regardless of the provision under which he has been
found deportable may be granted a stay of deportation if in the
"opinion" of the Attorney General he would be subject to persecution
on account of race, religion or political opinion. The amendment did
not change the basic concept with regard to the test to be applied by the
Attorney General in exercising his discretion. It merely limited the
scope of section 243(h) to three specifics, namely, persecution on account of race, religion and political opinion rather than one general
term, namely, "physical persecution." Under the circumstances, we
find no support in the legislative history of the amendment for counsel's
argument that an alien deportee is required to do no more than meet
569
Interim Decision 4E1825
the standards applied under section 203 (a) (7) of the Act when seeking
_relief under section 243 (h) .
In the absence of convincing evidence that the respondent would
be singled out for persecution if he returns to Indonesia because of the
fact that he is an ethnic Chinese, we find no basis for granting a stay
of deportation under section 243 (h) of the Immigration and Nationality Act. The motion will be denied and our order of September 15,
1967 will be affirmed.
ORDER: The motion to reconsider is hereby denied; the order
entered by the Board of Immigration Appeals on September 15, 1967
is hereby affirmed.
570
