Interim Decision #2787
MATTER OP Fwv.
In Deportation Proceedings
A-15174527
Decided NI Board March 26, 1980
(1) Diplomatic recognition of the Peoples Republic of China, and acknowledgment of the
status of Taiwan as part of the Peoples Republic does not mean that deportation to
Taiwan is the equivalent of deportation to the Peoples Republic, given the distinct
self-government and society of Taiwan. Matter of Cheung,16 I&N Dec. 690 (BIA 1979)
clarified.
(2) Alien's claim that he would suffer persecution in Taiwan because it is now recognized
as part of the Peoples Republic of China is rejected.
(3) Where the Service does not intend in any case to deport an alien to the Peoples
Republic of China, and the alien intends to submit an application for withholding of
deportation under section 242(h) of the Act, no useful purpose would be served in
remanding a case to have the Peoples Republic of China designated as the alien's
country of nationality under section 243(a) of the Immigration and Nationality Act.
(4) Where neither the Service's nor the alien's intentions are clear in regard to the effect
of designation of the Peoples Republic of China as the Step Two country of deportation, the record will be remanded to the immigration judge..
(5) If, upon remand to consider the designation of the Peoples Republic of China it
transpires that this country must be designated, and the respondent states for the
record his intention to submit an application for asylum, then the Service should state
whether it intends to deport the alien there, and if it states that it does not, then the
immigration judge should designate a place of deportation set forth in section
243(a)(1) through (7) of the Act.
CHARGE:
Order: Act of 1952—Section 241(a)(2) [3 U.S.C.1251(a)(2)]—Nonimmigrant
—remained longer than permitted
ON BEHALF OF RESPONDENT: David C. Buxbaum, P.C.
11 Broadway—Suite 1612
New York, New York 10004
BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members
In a decision dated November 1, 1978, the respondent was found
deportable by the immigration judge and was granted voluntary
departure. His application for withholding of deportation under sec-
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tion 243(h) of the Immigration and Nationality Act, 8 U.S.C. 1256N,
was denied. The respondent appeals from this decision. The record will
be remanded to the immigration judge.
The respondent is a 45-year-old native of the Peoples Republic of
China, born on Ta Chen Island, Chekiang Province. In 1955, he, along
with the other inhabitants of that island, was evacuated to Taiwan. He
resided there until July 1974. In January 1975, he was admitted as a
crewman, authorized to remain for 29 days. He remained beyond that
time. At the deportation hearing before the immigration judge, with
benefit of counsel, the respondent admitted all of the allegations of the
Order to Show Cause and conceded deportability on the charge under
section 241(a)(2) of the Act. He also submitted an application for
withholding of deportation under section 243(h) of the Act. He did not
specify in his application from which country he wished deportation
withheld, but presented testimony regarding the Peoples Republic of
China. He testified that he would suffer political persecution within
the meaning of section 243(h) as a result of his opposition to communism, and the fact that he had fled from the island of his birth to
Taiwan. The immigration judge concluded that the respondent's application was defective because the Service did not intend to deport the
respondent to the Peoples Republic of China, but to Taiwan as his
country of citizenship. He denied the application on this ground. He
also found that the respondent's related claim that the Government
was estopped from deporting the respondent was without basis. This
claim is based on the fact that the respondent was apparently evacuated from his island by the United States Seventh Fleet in 1955, and
claims to have been promised along with the other evacuees that he
could go to the United States as a refugee_ The respondent presented
no proof that such a promise had been made, nor did he show any legal
obligation to him on the part of the Government because of its role in
the evacuation. On the other hand, the Service introduced into
evidence a letter from the Department of State in which it was stated
that no special provision had been made for the evacuees. The immigration judge therefore concluded that the respondent had no claim
to refugee status.
On appeal, the respondent claims that he would suffer persecution in
Taiwan because it is now recognized as part of the Peoples Republic of
China. He also continues his claim to estoppel. In the case of the
estoppel claim, we agree with the immigration judge that the respondent has not presented any proof of entitlement to refugee status as a
result of the events that occurred in 1955.
We also reject the assertion that deportation to Taiwan is equivalent
to deportation to the Peoples Republic of China. In Matter of Cheung,
16 I&N Dec. 690 (BIA 1979), we stated that the "United States acknowl-
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edges "Peking's position that there is but one China and that Taiwan is
part of China". We did not find that deportation to Taiwan is the
equivalent of deportation to the Peoples Republic. The diplomatic
acknowledgment of the status of Taiwan as part of the Peoples Republic has not affected the fact that Taiwan continues to maintain a
system of self-government and society distinct from that of the Peoples Republic. The respondent has presented no evidence that. his
removal to Taiwan would subject him to persecution by the Peoples
Republic of China or by the government of Taiwan. There is thus no
basis for his claim of persecution under section 243(h) of the Act.
There is, however, another aspect of this case which has not been
directly addressed by the respondent. This is the effect that Cheung, id.
has on the designation of the country of deportation. We held there
that if an alien does not designate a country of deportation, deportation shall first be directed to any country of which the alien is a subject
national or citizen, if the country is willing to accept him. We further
held that if this cannot be arranged, "then deportation may be directed
without necessarily giving any priority or preference because of their
order, to any one of seven categories of countries." We consequently
remanded the case to the immigration judge in light of the fact that
the United States Government had recognized that there was but one
China. Although it was never expressly stated in that decision, the
underlying premise is clearly that an alien born in the Peoples Republic of China enjoys the right under Step Two of section 243(a) of the Act
to have the Peoples Republic designated as the country of deportation.
A question that was left unresolved by Cheung,
id. was whether the
fact that an alien is a citizen of the Peoples Republic of China requires
that this country be designated in all circumstances. The importance
of this question is heightened where an alien in deportation proceedings has indicated that he may fear return to the Peoples Republic.
There does not appear to be any useful purpose served by remanding a
case to have the Peoples Republic of China designated if the Service
does not intend in any case to deport the alien to that country, and the
alien intends to present a claim for withholding of deportation to the
Peoples Republic if the country is designated. In this particular instance, the question is complicated by the fact that the record is silent
on both possibilities. We do not know the intentions of either the
Service or the respondent. We therefore will reopen the proceedings so
that the immigration j udge may determine the country of the respondent's citizenship in light of recent events as expressed in Cheung. If it
transpires that the Peoples Republic of China must be designated
under section 24S(a) of the Act, then the respondent should state for
the record -whether or not he intends to submit an application for
withholding or asylum based on this designation. If he states this
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intention, then the Service should state in turn whether or not it
intends to deport the respondent to the Peoples Republic of China. If it
does not intend to seek such deportation, then the immigration judge
should designate a place of deportation as specified in section.243(a)(1)
through ('7) of the Act. This procedure appears to us to meet the twin
purposes of preventing deportation to a country where the alien may
suffer persecution, and allowing the Government to deport aliens
illegally in the United States to a place contained in the Congressional
formulation set forth in section 243 of the Act. The record will accordingly be remanded to the immigration judge.
ORDER The record is remanded to the immigration judge for
further proceedings consistent with the foregoing opinion.
357
