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associated with the Moran group which had its own newspaper (p. 69).
A witness for the respondent, one Luc Savein, testified that he and the respondent were the campaign leaders for Dejoie; that he [the witness] was occupationally a salesman for Esso Standard Oil Company in Haiti and also published his own newspaper, "La Cloche"; that he [the witness] was arrested in the month of October 1966; that he was subsequently released; and that he then obtained a Haitian passport to enter the United States. The witness testified that the respondent would be apprehended at the airport and killed without any ceremonies if he returned to Haiti (p. 53).
The respondent testified that his brother-in-law is in exile in the United States and that his father-in-law, an attorney, was assassinated (pp. 63 and 64). The respondent further testified that after the assassination in 1964 or 1965, he went into hiding (pp. 64 and 65).
The testimony of the respondent and his witness makes it clear that they were active politically against the Duvalier Regime from 1957 up until the respondent's departure in June of 1965. The respondent has been incarcerated on three occasions by the Duvalier Regime and while in prison, he was beaten and there is evidence of scars on his body attesting to this fact. The court in U.S. ex rel. Mercer v. Esperdy, 234 F. Supp. 611 (S.D.N.Y., 1964), took judicial notice of the danger of persecution faced by political opponents of Duvalier. The court, on the basis of facts reported to the press concerning conditions in Haiti, stated that there was a “suppression of human rights and a total nonexistence of any rule of law”; that there has been a suspension of "all articles of the Constitution guaranteeing individual rights, among them being free speech, freedom from arrest and police brutality” (p. 617). It is a matter of common knowledge and this Board takes administrative notice that conditions in Haiti have not improved to any extent since 1964.
The policy restricting the favorable exercise of discretion to cases "of clear probability of persecution of the particular individual petitioner" has been sanctioned by the courts. Lena v. Immigration and Naturalization Service, 379 F.2d 536, 538 (7th Cir., June 7, 1967). The court in Cheng Kai Fu v. Immigration and Naturalization Service, 386 F.2d 750 (2d Cir., 1967), cert. denied 390 U.S. 1003, said that an alien must show that he would be singled out as an individual by the governmental authorities and suffer persecution therefrom in order to establish a clear probability of persecution. We are of the opinion that the respondent has met this burden.
Counsel for the respondent during oral argument of the case before this Board referred to the conduct of the proceedings by the special inquiry officer. He questions whether the respondent had an adequate opportunity to develop that quantum of proof imposed 1 upon him as an alien who applied for relief under section 243 (h) of the Act because the special inquiry officer on numerous occasions sustained the objections of the trial attorney to questions posed by the attorney who represented the respondent during the several hearings. Counsel is of the opinion that a reasonable latitude for interrogation should be allowed in a proceeding under section 243 (h) of the Act.
We have carefully reviewed the record in light of the question raised by counsel. We note that the special inquiry officer sustained the objections of the trial attorney on more than 45 occasions in some 50 pages of the record (pp. 15–70). As an example, the witness for the respondent was questioned as to whether he engaged in any political activity with the respondent. The trial attorney objected and the special inquiry officer sustained, assigning no reason (p. 36). On other occasions when the respondent or his witness was questioned regarding violence during the political campaign in which they both participated, regarding the presence of physical marks on the body of the respondent and regarding whether anyone directly related to the respondent was persecuted by Duvalier, the special inquiry officer sustained the trial attorney's objections (pp. 38, 19 and 61). The special inquiry officer on some occasions stated that he was sustaining the trial attorney's objections because the particular question was either leading, irrelevant or without proper foundation. The special inquiry officer on one occasion during the hearing informed the respondent's counsel that he must "follow accepted procedures and formulate [his] questions in accordance with rules of evidence" (p. 49). The special inquiry officer on another occasion, after the trial attorney objected to a question as to whether the respondent had knowledge that his house was being watched by the Maquis, stated: “Sustained. Leading. Counsel have you any idea of the proper formation of a question ?" (p. 66)
Although the special inquiry officer must exercise discretion to keep the hearing within bounds, we think in this case he was
18 CFR 242.17 (c) provides, inter alia, that an alien who applies for relief under section 243(h) during a deportation proceeding “has the burden of satisfying the special inquiry officer that he would be subject to persecution on account of race, religion, or political opinion as claimed."
unduly restrictive. A deportable alien is eligible for relief under section 243 (h) only when in the "opinion" of the Attorney General his deportation would subject him to persecution because of his race, religion or political opinion in the country to which he has been ordered deported. The statute does not restrict or specify the considerations that may be relied upon by the Attorney General in formulating an "opinion.” Under the circumstances, an alien should be given a reasonable opportunity to develop his case. The strict rules of evidence do not apply in an immigration proceeding. Furthermore, in light of the situation known to exist in Haiti, counsel in this case should have been accorded wider latitude in fully developing the evidence. The stakes are high and the Attorney General must rely primarily on the record in reaching an intelligent and fair “opinion” as to whether a withholding of deportation is warranted.
It has been our observation that documentary evidence is seldom available to establish the likelihood of persecution. In the usual situation, the only way an adequate record can be created in a section 243 (h) case is by questioning the alien and his witnesses. The important factor is not whether the question is leading, irrelevant, or without foundation, but rather whether the answer would assist the Attorney General in formulating his opinion. The special inquiry officer should weigh this objective along with his obligation to keep the record within bounds when ruling upon objections made by either counsel for the alien or the trial atttorney.
Although we find this record circumscribed, we conclude on the basis of the evidence before us that there exists a very real and present danger that the respondent would be persecuted because of his political opinion if he should return to Haiti. He has affirmatively established that he was politically active as a leader of the opposition to the government of Duvalier while residing in Haiti. His father-in-law, an attorney in Port-au-Prince, was assassinated by supporters of Duvalier. The respondent has been an activist in opposition to Duvalier since he arrived in the United States. We will withhold the respondent's deportation to Haiti pursuant to section 243 (h) of the Immigration and Nationality Act.
ORDER: It is directed that the appeal be and the same is hereby sustained.
It is further directed that the deportation of the respondent be withheld pursuant to the provisions of section 243(h) of the Immigration and Nationality Act.
MATTER OF YAU
In Visa Petition Proceedings
Decided by Regional Commissioner May 2, 1968
Since neither petitioner's B.S. degree in electronic engineering from a nonac
credited school, nor his experience-practical trainee as a draftsman for a short time with Ampex Corporation and employment as a practical trainee with Teledyne Systems as a junior member of the Technical Staff—, nor a combination of his experience and education are the equivalent of a B.S. degree in electronic engineering from an accredited college or university in the United States, he does not qualify as a member of the professions as an electronic engineer within the meaning of sections 101(a) (32) and
203(a) (3) of the Immigration and Nationality Act, as amended.* ON BEHALF OF PETITIONER: Hiram W. Kwan, Esquire
1011 North Broadway, Suite 203
This case comes forward on appeal from the decision of the District Director, Los Angeles, who denied the petition on April 3, 1968 in that the applicant's B.S. degree in electronic engineering from a nonaccredited school does not qualify as a member of the professions eligible for preference classification under section 203(a) (3) of the Immigration and Nationality Act, as amended.
Oral argument was requested and granted. Counsel appeared for such argument as scheduled.
The petitioner is a 39-year-old single male, a native of Hong Kong and a citizen of Great Britain. He was admitted to the United States as a visitor August 12, 1955 for three months and was granted change of status to student on November 18, 1955. He has been in student status continuously since that time. His third and final period of practical training following graduation will expire August 8, 1968. He first attended California Polytechnic Institute in San Luis Obispo, California, then Sacramento Junior College in Sacramento, California, then New York City
* Reaffirmed. See 293 F. Supp. 717.
College, then RCA Institute in New York, then Sacramento Junior College again, then RCA Institute in Los Angeles and lastly enrolled at Pacific States University in Los Angeles in January 1967 from which he graduated on June 13, 1967 with a degree of Bachelor of Science in electronic engineering.
Following his graduation he was employed as a practical trainee for a short time with Ampex Corporation in Culver City, California as a "draftsman" and since March 1967, has been employed as a practical trainee with Teledyne Systems of Los Angeles as a junior member of the Technical Staff.
The present petition for classification for third preference as an electronic engineer was filed in his own behalf March 5, 1968.
Section 101 (a) (32) states: "The term “profession' shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries.”
Section 203 (a) (3) of the Immigration and Nationality Act provides for the issuance of visas "to qualified immigrants who are members of the professions, or who because of their exceptional ability in the sciences or arts will substantially benefit prospectively the national economy, cultural interests, or welfare of the United States."
Examination of the occupations named in section 101 (a) (32) of the Act indicates the following characteristics common to all: (1) recognition as a member of those professions normally requires a successful completion of a specific course of education on the college or university level, culminating in the attainment of a specific type of degree or diploma; and (2) the attainment of such degree or diploma is usually the minimum requirement for entry into those occupations (Matter of Asuncion, 11 I. & N. Dec. 662).
In support of his application petitioner has presented evidence of his graduation from Pacific States University with a Bachelor of Science degree in electronic engineering. This school, however, is not an accredited school. The Office of Education, Department of Health, Education and Welfare on March 28, 1967 advised this Service as follows: "Our records, spanning more than a quarter century, reveal that Pacific States University is not accredited and has not established that its degrees are recognized or that its credits are accepted unconditionally by accredited institutions of higher education.” The accrediting commission for senior colleges and universities, Western Association of Schools and Colleges does not recognize Pacific States University as an accredited institution of higher learning.