1 “The Attorney General is authorized to withhold deportation of any alien within the United States to any country in which in his opinion the alien would be subject to persecution on account of race, religion, or political opinion and for such period of time as he deems to be necessary for such reason.” Sec. 243(h), 66 Stat. 163, 214 (1952), 8 U.S.C. §1253(h), as amended by §11(f), 79 Stat. 911, 918 (1965).

2 8 C.F.R. §242.17(c).

3 Ibid.

4 See §241(a), 8 U.S.C. §1251(a), for classes of aliens who may be deported. Refugees who come into the United States under parole (§212(d)(5), 8 U.S.C. 51182(d)(5)) or conditional entry (§203(a)(7), 8 U.S.C. §1153(a)(7)) are subject to exclusion and may not apply for relief under §243(h).

5 The background of this legislation is briefly described in Evans, A. E., “The Political Refugee in United States Immigration Law and Practice,” 3 The International Lawye 204 (1969)Google Scholar.

6 See Evans, A. E., “Political Refugees and the United States Immigration Laws: A Case Note,” 62 A.J.I.L 921 (1968)Google Scholar.

7 1 9 U.S. Treaties 6223, T.I.A.S., No. 6577; 63 A.J.I.L. 385 (1969). The treaty entered into force for the United States on Nov. 1, 1968.

8 See Mann, C. R., “Asylum Denied: The Vigilant Incident,” 23 Naval War College Revie 4 (1971)Google Scholar; L. F. E. Goldie, “Legal Aspects of the Refusal of Asylum by U.S. Coast Guard on 23 November 1970,” ibid. 32; J. N. Washburn, “Revelations of the Lithuanian Defector Episode of November 23, 1970,” 6 The International Lawyer 1 (1972); U.S. House of Representatives, Committee on Foreign Affairs, Hearings before Subcommittee on State Department Organization and Foreign Operations, “Attempted Defection by Lithuanian Seaman Simas Kudirka,” 91st Cong., 2d Sess. (1970). The Department’s “General Policy” appears at 66 Dept. of State Bulletin 124 (1972) and is reprinted below at p. 616.

9 Sec. 241(a)(9), 8 U.S.C. §1251(a)(9); §252(c), 8 U.S.C. §1282(c); $101(a)(15) (C), 8 U.S.C. §1101(a)(15)(C).

10 Sec. 212(a)(28), 8 U.S.C. §1182(a)(28); §212(a)(9)(10), 8 U.S.C. §1182(a) (9)(10); §241(a)(l)(2)(6), 8 U.S.C. §1251(a)(l)(2)(6).

11 Sec. 241(a)(4), 8 U.S.C. §1251(a)(4).

12 8 C.F.R. §242.17(d). It does not “constitute a concession of alienage or deportability. . . .” Ibid.

13 Sec. 243(a), 8 U.S.C. §1253(a); 8 C.F.R. §244.1.

14 Sec. 243(a), 8 U.S.C. §1253(a); 8 C.F.R. §242.17(c). The choices are as Mows “without necessarily giving any priority or preference because of their order. . . :

(1) to the country from which such alien last entered the United States;

(2) to the country in which is located the foreign port at which such alien embarked for the United States or for foreign contiguous territory;

(3) to the country in which he was born;

(4) to the country in which the place of his birth is situated at the time he is ordered deported;

(5) to any country in which he resided prior to entering the country from which he entered the United States;

(6) to the country which had sovereignty over the birthplace of the alien at the time of his birth; or

(7) if deportation to any of the foregoing places or countries is impracticable, inadvisable, or impossible, then to any country which is willing to accept such alien into its territory.” Sec. 243(a)(l)–(7), 8 U.S.C. §1253(a)–(7).

15 8 C.F.R. §242.17(c). In Matter of Sagasti, the Board of Immigration Appeals suggested that the “better practice” might be to ask the alien whether he wished to apply for §243(h) relief relative to any country, whether his choice or the special inquiry officer’s. Interim Decisions of the Board of Immigration Appeals, No. 2100 (1971) (cited henceforth as Int. Dec. No.).

16 Canada (1 case), Cuba (1), Czechoslovakia (1), Dominican Republic (1), France (1), Haiti (7), Hong Kong (3), Hungary (2), Israel (2), Iran (5), Jordan (3), Libya (1), Poland (4), South Korea (1), Spain (1), Tahiti (1), Taiwan (3), Uruguay (1), Viet-Nam (1), Yugoslavia (3).

17 Sadeghzadeh v. Immigration and Naturalization Service, 393 F.2d 894 (7th Cir., 1968) (Christian convert in Iran); Siu Fung Luk v. Rosenberg, 409 F.2d 555 (9th Cir., 1969), rehearing denied (1969), cert, dismissed, 396 U.S. 801 (1969) (Roman Catholic in Hong Kong); Kerkai v. Immigration and Naturalization Service, 418 F.2d 217 (3d Cir., 1969), cert, denied, 397 U.S. 1067 (1970) (Roman Catholic in Hungary); Matter of Cha, Board of Immigration Appeals, No. A-14100755 (1971, unpublished) (Christian convert in South Korea) (unpublished decisions cited henceforth by file number).

18 Matter of Latif, No. A-17754547 (1968) (objected to Israel’s control of home area); Muskardin v. Immigation and Naturalization Service, 415 F.2d 865 (2d Cir., 1969) (disliked regime in Yugoslavia); Gena v. Immigration and Naturalization Service, 424 F.2d 227 (5th Cir., 1970), rehearing denied (1970) (politically opposed to regime in Haiti).

19 Matter of Rosas, No. A-17597060, A-17588606 (1969) (Uruguay); Matter of Surzycki, Int. Dec. No. 1972 (1969) (Poland).

20 E.g., Kerkai v. Immigration and Naturalization Service, cited note 17 above (economic harassment in Hungary); Kovac v. Immigration and Naturalization Service, 407 F.2d 102 (9th Cir., 1969), 63 A.J.I.L. 823 (1969) (political harassment in Yugoslavia).

21 Matter of Fouche, No. A-17572638 (1969).

22 Matter of Cusiac, No. A-19050882 (1970) (Canada); Rosa v. Immigration and Naturalization Service, 440 F.2d 100 (1st Cir., 1971) (Dominican Republic); Matter of Lam, Int. Dec. No. 1854 (1968) (Hong Kong); Sin Fung Luk v. Rosenberg, cited note 17 above (Hong Kong).

23 E.g., Kasravi v. Immigration and Naturalization Service, 400 F.2d 675 (9th Cir., 1968) (Iran); Hamad v. United States Immigration and Naturalization Service, 420 F.2d 645 (D.C. Cir., 1969) (Jordan); Matter of Bielecki, No. A-13836799 (1970) (Poland).

24 E.g., Matter of Luccarotti, No. A-14393850 (1968) (fugitive), pet. for habeas corpus denied (N.D. Ga., 1970, unpublished); Matter of Thieu Van Ha, No. A-17028– 599 (1969) (military desertion); Kerkai v. Immigration and Naturalization Service, cited note 17 above (overstayed exit permit).

25 Matter of Janus and Janek, Int. Dec. No. 1900 (1968).

26 8 C.F.R. §242.17(c).

27 Matter of Ashrafzadeh, No. A-13838010 (1968); Lena c. Immigration and Naturalization Service, 379 F.2d 536, 538 (7th Cir., 1967).

28 Matter of loseph, Int. Dec. No. 1923 (1968), 6; 8 C.F.R. §242.14. edge” that his countrymen reviled Moslem converts to Christianity.²⁹ On

29 Matter of Tayeb, Int. Dec. No. 1865 (1968); Sadeghzadeh v. Immigration and Naturalization Service, cited note 17 above.

30 Sadeghzadeh v. Immigration and Naturalization Service, he. cit. note 17; Gena v. Immigration and Naturalization Service, cited note 18 above; Matter of Tayeb, cited note 29 above.

31 Matter of Surzycki, he. cit. note 19 above, at 3.

32 Cf. Matter of Janus and Janek, he. cit. note 25 above, at 10, with Muskardin v. Immigration and Naturalization Service, cited note 18 above; Berdo v. Immigration and Naturalization Service, 432 F.2d 824, 845 (6th Cir., 1970).

33 Sadeghzadeh v. Immigration and Naturalization Service, loc. cit. note 17 (witness in United States 17 years); Muskardin v. Immigration and Naturalization Service, loc. cit. note 18 (witness left Yugoslavia in 1940).

34 Berdo v. Immigration and Naturalization Service, 432 F.2d 824, 834.

35 Ibid. 835.

36 Rosa v. Immigration and Naturalization Service, 440 F.2d 100 at 102.

37 Matter of Tayeb, cited note 29 above (no documentary proof); Matter of Cha, cited note 17 above (documentary proof rarely available).

38 Kasravi v. Immigration and Naturalization Service, cited note 23 above (volume of printed material); Shkukani v. Immigration and Naturalization Service, 435 F.2d 1378 (8th Cir., 1971), cert, denied, 403 U.S. 920 (1971) (New York Times Magazine article).

39 Matter of Janus and Janek, loc. cit. note 25 above, at 15–16.

40 Ibid. 6.

41 Kerkai v. Immigration and Naturalization Service, cited note 17 above (overstayed exit permit); Matter of Frank, No. A-17040562 (1969) (expired passport); Matter of Luccarotti, cited note 24 above (fugitive offender); Cheng Fu Sheng v. United States Immigration and Naturalization Service, 400 F.2d 678 (9th Cir., 1968), cert, denied, 393 U.S. 1054 (1969), with dissent by Douglas, J. (military offense). It may be noted with reference to Cheng Fu Sheng that this case had been under litigation since 1959.

42 407 F.2d 102.

43 E.g., Hosseinmardi v. Immigration and Naturalization Service, 391 F.2d 914 (9th Cir., 1968).

44 Matter of Janus and Janek, Int. Dec. No. 1900 (1968) at 7–8.

45 Matter of Komarnicka-Smieja, No. A-13399315 (1971).

46 Berdo v. Immigration and Naturalization Service, 432 F.2d 824, 847.

47 Ibid.

48 Matter of Joseph, loc. cit. note 28, at 4. A plea that Communist riots in Hong Kong created an atmosphere which would endanger respondent was disallowed on the ground that the riots had occurred a year before the deportation hearing. Matter of Lam, cited note 22 above.

49 Cited note 23 above. Brief for Petitioner, 8.

80 Sec. 243.3(b), Immigration and Naturalization Service. Operations Instructions (April 7, 1971). The Service has representatives abroad but apparently does not use them as a source of information in §243(h) proceedings.

51 The Service has been sending such inquiries to the Department of State since 1963. 1 C. Gordon and H. N. Rosenfield, Immigration Law and Procedure 5–130 (rev. ed., 1970). There were about 45 such requests in 1971 regarding §243(h) applications. Information regarding procedure respecting these requests is based upon interviews with Charles Gordon, General Counsel, and I. A. Appleman, Appellate Trial Attorney, Immigration and Naturalization Service, Oct. 27, 1971, and Hon. Barbara M. Watson, Administrator, Bureau of Security and Consular Affairs, Department of State, and Frederick Smith, Esq., Deputy Administrator, Bureau of Security and Consular Affairs, Jan. 20, 1972. Opinions expressed are those of the author.

52 E.g., Asghari v. Immigration and Naturalization Service, 396 F.2d 391 (9th Cir., 1968).

53 The Service seeks information about such matters as respondent’s family background, education, occupation, military service, family ties at home and abroad, police record. Immigration and Naturalization Service, Operations Instructions, Appendix 01 243.3 (rev. 1966–1967).

54 8 C.F.R. §242.17(c). The record in the §243(h) proceedings may simply indicate that the Department “does not favor deportation” (Matter of Janus and Janek, loc. cit. note 25 above, at 12) or all or part of the text of the communication may be included.

55 Hosseinmardi v. Immigration and Naturalization Service, cited note 43 (no interrogatories nor cross-examination); Matter of Vatel, No. A-14388287 (1968) (no subpoenas of Department of State records). See also Matter of De Lucia, 11 Administrative Decisions under Immigration and Nationality Laws of the United States 565 (1966), affd. sub nom. De Lucia v. Immigration and Naturalization Service, 370 F.2d 305 (7th Cir., 1966), cert, denied, 368 U.S. 912 (1967).

56 Matter of Thieu Van Ha, cited note 24 above (no subpoena to witnesses from Viet- Nam Embassy).

57 Matter of Lee, Int. Dec. No. 1965 (1969).

58 Cf. Kasravi c. Immigration and Naturalization Service, cited note 23 above, in which the Court of Appeals took the view that the Department’s letter was not persuasive evidence and questioned the Department’s competence to comment on the respondent’s situation, but sustained the Board’s decision, based upon the Department’s letter, on the ground that the court cannot substitute its judgment for that of the Attorney General.

59 Matter of Tayeb, cited note 29 above; Matter of Lee, cited note 57 above.

60 Matter of Cha, cited note 17 above.

61 Loc. cit. 2–3.

62 Ibid. 4.

63 432 F.2d 824, 849.

64 United States ex rel. Dolenz o. Shaughnessy, 206 F.2d 392, 394 (2d Cir., 1953), cert, denied, 356 U.S. 932 (1953); Foti v. Immigration and Naturalization Service, 375 U.S. 217 (1963).

65 E.g., Hosseinmardi v. Immigration and Naturalization Service, cited note 43 above.

66 Matter of Janus and Janek, Int. Dec. No. 1900 (1968), at 15.

67 Ibid. 4, 14.

68 Ibid. 15–16. See also Matter of Aguiire, Int. Dec. No. 2072 (1971), as to the exercise of discretion by the special inquiry officer.

69 Frantisek Janus qualified for adjustment of status under §245, 8 U.S.C. §1255. Jaroslav Janus and Vladimir Janek, the former Communist Party members, were granted voluntary departure or, in the alternative, deportation to Czechoslovakia, or to Sweden and Czechoslovakia in the case of Janek, and deportation of these two was withheld under §243(h). Matter of Janus and Janek, loc. cit. at 17–18.

70 Int. Dec. No. 1923 (1968), 6–7.

71 407 F.2d 102, at 105.

72 Ibid. 106–107.

73 Ibid. 107–108.

74 Ibid. 108.

75 Cited note 32 above.

76 103 Cong. Rec. 1355 (1957); 36 Dept. of State Bulletin 984 (1957).

77 Berdo v. Immigration and Naturalization Service, 432 F.2d 824, 844. See p. 576 above, for the special inquiry officer’s reaction to Berdo’s expert witness.

78 407 F.2d 102 at 107.

79 Matter of Cha, loc. cit. note 17 above, at 3.

80 Loc. cit. note 7 above.

81 Senate Exec. K, 90th Cong., 2d Sess. viii (1968); Statement of L. A. Dawson, Acting Deputy Director, Office of Refugee and Migration Affairs, Department of State, Senate, Committee on Foreign Relations, Protocol Relating to Refugees, Exec. Rep. No. 14, 90th Cong., 2d Sess. 6 (1968); the Report of the Secretary of State to the President is reprinted in 63 A.J.I.L. 123 (1969).

82 Muskardin v. Immigration and Naturalization Service, cited note 18; Immigration and Naturalization Service v. Stanisic, 395 U.S. 62 (1969).