interim Decision 9162226
MATTER OF MACCAUD
In Deportation Proceedings
A-13497481
Decided by Board September 7, 1973
(1) An immigration judge cannot make a conclusive judgment of citizenship from
a passport (Irish).
(2) Where the country of deportation designated by the alien did not unconditionally accept him for admission, the immigration judge was correct in
designating an alternate country of deportation in accordance with step 2 of
section 248(a) of the Immigration and Nationality Act.
(3) Where an applicant for withholding of deportation under section 243(h) of the
Act was afforded ample time (amounting, in the aggregate, to several months)
to set forth the bases of his claim, yet he produced nothing beyond his original
outline statement, which did not make a prima facie showing of persecution,
refusal of the immigration judge to allow a full hearing was not an abuse of
discretion nor was his denial of further adjournment in error.*
(4) Applicant has not established that because he aided some fellow prisoners
(who were members of the Quebec Liberation Front) to become aware of and
exercise their right under Canadian law, he would be subject to persecution
within the meaning of section 243(h) of the Act, if deported to Canada, the
country from which he entered the United States.*
CHARGE:
Order: Act of 1952—Section 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable at time
of entry under motion 212(a)(1!7) as an alien who had
previously been arrested and deported, no consent to
reapply for admission having been granted.
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Daniel J. Weinstein, Esquire David L. Milhollan
Legal Aid Bureau of Buffalo, Inc. Appellate Trial Attorney
205 Walbridge Building Gordon W. Sacks
Buffalo, New York 14202 Trial Attorney
(Brief filed) (Brief filed)
The respondent appeals from the December 27, 1972 decision of
the immigration judge in which he ordered that the respondent be
deported. The immigration judge specified Canada as the place of
• Reaffirmed, 500 F.2d 355 (C.A. 2, 1974).
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Interim Decision #2226
deportation, unless the Republic of Ireland should advise the
Attorney General of its willingness to accept the respondent into
its territory before deportation to Canada could be effected. In
that case, deportation would be to the Republic of Ireland. He also
denied the respondent's application for withholding of deportation
to Canada under section 243(h) of the Immigration and Nationality
Act.• We agree with the immigration judge; the appeal will be
dismissed.
The respondent, a native and citizen of Canada, conceded deportability on the charge contained in the Order to Show Cause at
his original deportation hearing on January 31, 1972, and was
permitted to designate the country to which he should be deported, "... if that country [was] willing to accept him into its
territory . . .," section 243(a), Immigration and Nationality Act. 1
HedsignathRpublcofIrend,asihlgewa
a citizen of that country and had an Irish passport, the immigration. judge did not at that time specify an alternate country of
deportation in hopes of obviating, if possible, an extended hearing
on the claim of persecution under section 243(h) which the respondent was prepared to make if ordered deported to Canada.
Following the deportation hearing, the respondent was convicted
under section 276 of the Act for entering the United States
without the consent of the Attorney General after previously
having been deported.
When the Republic of Ireland did not accept the respondent, the
Service moved to reopen the proceedings so that the immigration
judge might specify an alternate country of deportation. It is from
the decision rendered at the conclusion of the reopened hearing
that the respondent appeals.
In his appeal the respondent contends that: (1) the immigration
judge should have found him to he a citizen of Ireland; (2) the
Attorney General did not make a proper inquiry of Ireland and
therefore has not received a refusal to accept the respondent; (3)
Ireland is willing to accept him; (4) if Ireland is not willing to
1 Sec. 243. (a) The deportation of an alien in the United States provided for in
this Act, or any other Act or treaty, shall be directed by the Attorney General to
a country promptly designated by the alien if that country is willing to accept
him into its territory, unless the Attorney General, in his discretion, concludes
that deportation to such country would be prejudicial to the interests of the
United States .... If the government of the country designated by the alien fails
finally to advise the Attorney General within three months following original
inquiry whether that government will or will not accept such alien into its
territory, such designation may thereafter be disregarded. Thereupon deportation of such alien shall be directed to any country of which such alien is a subject
national, or citizen if such country is willing Lo accept him hitt; its Le/Litt/1y....
430
interim Decision #Vati
accept the respondent, the Attorney General should impose sanctions against Ireland pursuant to section 243(g) of the Act; (5) the
immigration judge abused his discretion in not allowing a full
hearing, as required by 8 CFR 242.17(c), on the respondent's claim
that he would be persecuted if returned to Canada; (6) the
immigration judge erred in not granting an adjournment for the
respondent's attorney to prepare his presentation of the persecution claim; and (7) the immigration judge erred in not granting
withholding of deportation to Canada under section 243(h). We find
these contentions to be without merit and shall dispose of each in
turn.
With reference to contention (1), we agree with the immigration
judge's analysis of the issue (Decision of immigration judge, p. 10).
While possession of a United States passport may be some evidence of United States citizenship, it is not conclusive proof
thereof, and may be overcome by sufficient evidence that the
holder of the passport is not a citizen, Urtetiqui v. D'Arcy, 34 U.S.
692, 699 (1835); Peignand v. INS,
440 F.2d 757, 760 (C.A.1, 1971); In
re Gee Hop,
71 F. 274, 276 (N.D. Cal. 1895); Matter of Rocha,
10 I. &
N. Dec. 770, 772-73 (BIA, 1964); Matter of H H and H M ,
- - - -
3 I. & N. Dee. 680, 683 (BIA, 1950). Thus, he may be refused
admission despite his possession of a passport, In re Gee Hop,
supra; Matter of H-H- and H-M, supra. Nor is a passport a
judgment of citizenship, Matter of H-H-and H-M-, supra at 688.
The law of Ireland appears to be the same as United States law
on this point, and may be presumed to be the same in the absence
of any evidence tending to show otherwise, C. McCormick, Handbook of the Law of Evidence § 326 (1954). Therefore, the immigration judge was in no position to make a finding as to the
respondent's Irish citizenship.
Regarding contentions (2) and (3), the statute does not require a
refusal by the country designated by the respondent. If the
Attorney General is not notified that the designated country is
willing to accept the deportee within three months, the respondent
is to be deported to the alternate country specified by the immigration judge, section 243(a), Immigration and Nationality Act.
The record contains several letters bearing on the question of
acceptance of the respondent by the Irish Government (Exs. 3, 4, 5,
6, and 7, statement of August 28, 1972, and letter of November 2,
1972 from the Department of Justice, Dublin). The Immigration
and Naturalization Service request, made on February 17, 1972, is
part of the record as Exhibit 4. The reply chiefly relied on by the
Service is Exhibit 3, dated September 21, 1972, which states: "The
Irish authorities have confirmed their refusal to accept Mr. MacCaud on deportation." It also characterizes the August 28, 1972
431
Interim Decision #2226
statement from the Department of Foreign Affairs (upon which
the respondent bases his contention that there has been no
refusal) as a background note for press releases and not a formal
statement of the Irish government. That statement said that all
Irish citizens have the right to enter Ireland subject to normal
immigration procedures and checks at the port of entry, and that a
decision not to supply a special travel document does not involve a
denial of entry into Ireland. The last letter on the subject, on
stationery of the Department of Justice, Dublin, dated November
2, 1972, signed illegibly by an unidentified signer, restates what
was said in the unofficial background note of August 28, 1972. This
is not an unconditional acceptance as required by the statute, U.S.
ex rel. Tom Man v. Murff, 264 F.2d 926, 928 (C.A. 2, 1959); U.S. ex
rel. Wong v. Esperdy,
197 F. Supp. 914, 917 (S.D.N.Y. 1961); Du v.
Rogers,
164 F. Supp. 320, 321 (D.D.C), aff'd
262 F.2d 471 (D.C. Cir.
1958). Ireland ordinarily issues a special travel document to deportees to that country whether or not they have Irish passports.
The refusal to issue a special travel document may be due to the
fact that, while the respondent indicated that his Irish citizenship
rests upon his father's birth in Dublin (Tr. p. 8), two documents
executed by the respondent on April 30, 1963 (Form 1-217, Information for Travel Document or Passport, Ex. 4; and the respondent's affidavit, Ex. 8) show that his father was born in Scotland.
Since Ireland has not unconditionally accepted the respondent for
admission and he will be subject to ordinary immigration inspection, and since there may be some doubt as to the validity of his
claim to Irish citizenship, we agree with the immigration judge
that Ireland has not demonstrated willingness to accept the
respondent and therefore find that the immigration judge was
correct in designating an alternate country of deportation in
accordance with step 2 of section 242(a).
Concerning contention (4), the respondent petitioned the United
States District Court for the District of Connecticut for a writ of
mandamus ordering the Attorney General to invoke sanctions
against the Republic of Ireland, pursuant to section 243(g) of the
Act, for its refusal to accept the respondent upon deportation. The
request for mandamus was denied on the merits, MacCaud v.
United Stutes,
354 F. Supp. 872 (D. Conn. 1972), and the respondent
has filed an appeal with the Second Circuit Court of Appeals. Until
the Court of Appeals acts, the District Court's decision stands.
With regard to contentions (5) and (6), 8 CFR 242.17(c) allows the
respondent in deportation proceedings 10 days to apply for withholding of deportation pursuant to section 243(h) and provides: ".
The application shall consist of respondent's statement setting
forth the reasons in support of his request. The respondent shall
432
Interim Decision #2226
be examined under oath in his application and may present such
pertinent evidence or information as he has readily available. The
respondent has the burden of satisfying the [immigration judge]
that he would be subject to persecution on account of race,
religion, or political opinion as claimed ... ."
As early as January 31, 1972 at the original hearing, the
respondent expressed an intention to apply for withholding of
deportation under section 243(h) if deported to Canada. When
Ireland would not accept the respondent, the Service moved to
reopen so that the immigration judge might specify an alternate
country for deportation. The motion was granted on July 17, 1972
over the respondent's opposition.
The reopened hearing was first set for October 1972 in Connecticut, where the respondent was imprisoned after his conviction
under section 276 of the Act. The respondent objected to the place
of the hearing in a letter dated September 24, 1972, since his
witnesses were nearer to the Buffalo area. In an October 18, 1972
letter he objected to a proposed bipartite hearing, part in Connecticut and part in Buffalo. Finally the Government notified him that
the reopened hearing would take place in Buffalo on November 6,
just three days after the respondent's release from prison. The
respondent replied that he needed more time to hire an attorney
to prepare his case, but he submitted a seven-page outline of his
claim. He wrote in ink at the end of the statement: "This is an
outline only. Witnesses will be called to substantiate and elaborate
these facts," (Ex. 10, p. 7).
At the reopened hearing, almost four months after the motion to
reopen was granted, the respondent again requested more time.
The hearing was adjourned till the following day, when the immigration judge found that even if witnesses did testify and prove
that all of the facts alleged in the respondent's persecution claim
were true, the respondent would not be eligible for relief under
section 243(h). However, he granted the respondent three additional weeks to amplify his claim with documents, affidavits of
witnesses, and additional grounds. The respondent submitted
nothing beyond his original claim.
We agree with the immigration judge that it would be futile and
wasteful to hold a further hearing on this claim of persecution.
The respondent had ample time, amounting to several months, to
set forth the bases of his claim, yet he produced nothing in all that
time beyond . his original outline, which in our opinion does not
make a prima facie showing of persecution.
The regulation should not be interpreted to require fruitless
proceedings. Further proceedings to prove the facts alleged in the
respondent's outline of his claim would not change the outcome.
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Interim Decision ozzzo
The immigration judge did not abuse his discretion by refusing to
allow a full hearing, and further adjournment was not necessary.
As for contention (7), the respondent avers that when he was in
jail in Canada before his last entry into the United States, he
aided some fellow prisoners to become aware of and exercise their
rights under Canadian law. Some of these fellow prisoners were
members of the Quebec Liberation Front (FLQ). He alleges that
because of this he was beaten by prison guards and will be subject
to similar ill treatment if returned to Canada. There is nothing in
the record which shows that the respondent has been or will be
persecuted because of this tenuous association with the FLQ.
We agree with the immigration judge's analysis of the persecution claim on pages 6-10 of his decision. While there is no precise
definition of persecution in the statute, it has been defined in the
courts as "the infliction of suffering or harm upon those whb differ
(in race, religion, or political opinion) in a way regarded as
offensive," Kovae v. INS, 407 F.2d 102, 107 (C.A. 9, 1969). Criminal
prosecution is not persecution unless it is politically motivated,
Sonic V. INS,
346 F.2d 360, 361 (CA. 7, 1965); Kazuo v. INS, supra
at 104; Matter of Janus and Janek,
12 I. & N. Dec. 866, 876
(BIA,1968). The respondent has not adequately shown that he was
politically motivated in leaving Canada or that he has a reasonable fear of being persecuted upon his return. If he is prosecuted
when he returns to Canada, it apparently will be for escaping from
jail or breaching parole. Such prosecution does not seem to be
politically motivated. In fact, the respondent has stated that prior
grievances have been redressed by parliamentary enactments,
that the prison guards alleged to have beaten him have been
prosecuted (albeit they were acquitted), and that he was transferred at his request to different institutions for his protection.
Furthermore, persecution must be at the hands of the government, unless the government cannot control the persecutors,Rosa
v. INS, 440 F.2d 100 (C.A. 1, 1971); Matter of Tan,
12 I. & N. Dec.
564, 568 (BIA, 1967); Matter of Eusaph,
10 I. & N. Dec. 453,
455 (B1A,1964). We are satisfied that the respondent has failed to
show a well-founded fear that his life or freedom will be threatened in Canada on account of his race, religion, nationality,
membership in a particular social group, or political opinion. See
Matter of Dunar, Interim Decision No. 2192 (BIA,1973). We therefore conclude that the respondent will not be subject to persecution
if he is deported to Canada.
In view of the foregoing we shall affirm the decision of the
immigration judge and dismiss the appeal.
ORDER: The appeal is dismissed.
434
