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There is nothing in section 244(f) of the Act which requires that the term be given any but its well recognized meaning; the term thus cannot mean the formal admission of a crewman as such by a Service official.
That a formal admission of a crewman by the Service was not contemplated, may be seen from the fact that the very section in question which makes crewmen who "entered” ineligible provides for the in, eligibility of participants in a Department of State program who were “admitted to the United States pursuant to section 101(a) (15) (J)” of the Act (emphasis supplied). The use of the term "entered” for seamen and the use of the word “admitted” for a different class well disposes of the argument that Congress intended to bar only aliens who were "admitted” as crewmen.
Another reason for rejecting counsel's contention that only aliens who were legally admitted in the status of crewmen are barred from relief is the fact that such a law would favor the alien who entered illegally over the one who entered legally. If indeed only an alien who was "admitted” as a crewman is barred from relief, then the crewman who entered illegally, i.e., the one ordered detained on board his vessel who escaped into the United States, would not be barred from relief. It is hardly likely that Congress intended such a result. Rather, we believe it was the intent of Congress to bar all occupational seamen who entered by reason of their occupation. This result would best meet the problem which faced the Congress—the fact that seamen who have relatively easy access to the United States have used the seaman route to enter the United States for permanent residence-a problem which has engaged a good deal of the Service energies and which would be aggravated if persons having easy access to the United States were of the belief that they could obtain legal residence by deserting and hiding out (Hearings, Subcommittee on Appropriations H.R. (Dept. of Justice) 85th Cong., 2d Sess. pp. 13-14, 199 (1959); 86th Cong., 1st Sess. pp. 25, 305 (1960); 86th Cong., 2d Sess. pp. 409– 411 (1961). In light of this problem, it matters little that an alien is admitted as a crewman and deserts his ship, or that he deserted the ship without being permitted to land as a crewman, or that he, as is common-place, was brought to the United States as a passenger or workaway to reship as a seaman on another vessel.
We believe that the respondent is barred from relief because he entered in pursuit of his calling as a seaman. That he entered by reason of his occupation is clear from his testimony which shows he entered the United States to ship out as a seaman (pp. 2–3), by the record of his entry which shows that he entered as a crew member, that he was a seaman and was coming to the United States to reship foreign (Ex. 4), and by the fact the same record shows that for head tax purposes, respondent was placed under 8 CFR 105.3(k) which dealt with the nonresident occupational seaman who was entering the United States temporarily in pursuit of his occupation, or as a passenger or workaway and who was admitted solely for the purpose of reshipping foreign.
MATTER OF STOJKOVIC
In DEPORTATION Proceedings
Decided by Board June 4, 1963
Respondent, a 30-year-old native of Yugoslavia and national of the Dominican
Republic, has not established that because he was an officer in the Anti-Communist Foreign Legion organized in the Dominican Republic under Trujillo's dictatorship he would be subject to physical persecution within the meaning of
section 243(h), Immigration and Nationality Act, if deported to that country. CHARGE: Order: Act of 1952-Section 241(a) (2) (8 U.S.C. 1251 (a) (2)]-Entry as
nonimmigrant, remained longer.
Respondent was an officer in the Anti-Communist Foreign Legion organized in the Dominican Republic under Trujillo's dictatorship. He maintains that this former connection with the Trujillo regime would subject him to physical persecution in the Dominican Republic. On this ground he applies for withholding of his deportation to that country.
The special inquiry officer denied respondent's application and ordered deportation to the Dominican Republic. Respondent appeals from that denial. We must determine whether respondent's connection with Trujillo would subject him in the Dominican Republic to hardship which would amount to the physical persecution the statute contemplates.
Respondent raises several points meriting close consideration. The nebulous elements in the overall factual situation render difficult an objective assessment of the likelihood of physical persecution. Respondent's counsel points out that the special inquiry officer referred in his opinion to a valid principle of law but applied it erroneously to respondent's case. Technically, at least, respondent is correct on this point. Nevertheless, upon close analysis of the whole record, we reach the opinion that respondent would not now face physical persecution if deported to the Dominican Republic. Our decision, therefore, coincides with that of the special inquiry officer.
* Section 243(h), Immigration and Nationality Act, 8 U.S.C. 12:53 (h).
Respondent is a native of Yugoslavia, 30 years old, and single. The Trujillo regime granted him Dominican nationality. Respondent left the Dominican Republic on March 7, 1962 and arrived at Miami, Florida that same day, entering the United States as a nonimmigrant purportedly in transit to France. His authorized stay in this country expired on March 9, 1962. Respondent admits that he entered this country intending not to continue his journey to France. The order to show cause, however, charged him only with overstaying his authorized time. He concedes deportability on that charge. Respondent declined to apply for voluntary departure or to designate a country to which his deportation should be directed.
Respondent states that he left Yugoslavia in 1956 because he did not want to live under the Communists. He resided in France until 1959. In that year he signed a contract with the Dominican Republic's representatives in France for employment in the Dominican Republic. Upon his arrival there, instead of employment pursuant to the agreement, he was ordered into military service. Respondent testified that he objected to military service but accepted the offer after notification the alternative to serving in the military forces was imprisonment. He subsequently attained the rank of first lieutenant.
In 1960 when Trujillo disbanded the Anti-Communist Legion, respondent transferred to a mountain regiment under the command of Vladimir Secen, then a lieutenant colonel. Respondent remained in military service until June 1, 1961, just after Trujillo's death. Colonel Secen, who had also been respondent's commanding officer in the Anti-Communist Legion, appeared as a witness for respondent.
This record suggests three possible sources for respondent's physical persecution in the Dominican Republic—imprisonment, deportation, or mob violence. We shall discuss in the order given each of these sources from two points of view—respondent's actual experiences while in the Dominican Republic and his probable experiences if returned to that country.
I. Respondent's actual experiences in the Dominican Republic
Respondent's activities immediately following termination of his military service are not clear. He testified he was arrested twice, once in November 1961 and again on December 26, 1961. He was imprisoned the first time for about eight days and the second until February 7, 1962. Respondent said he was arrested because he was considered a good friend of Trujillo. He also said the charges were
using arms without a permit, although he was then an army officer required to wear arms, and being a Trujillo mercenary. Respondent alleges that he was mistreated in jail but does not describe any abuse. Even if respondent’s arrests had a purely political basis, his imprisonments-in view of their relatively short duration and the lack of evidence of actual mistreatment-cannot be held to have constituted physical persecution for purposes of the statute.
2. Deportation The record does not show whether respondent was actually deported from the Dominican Republic. He testified that shortly after his release from prison in February 1962 he was taken one night to army intelligence headquarters. The authorities picked up his passport at that time and returned it to him the day before he left the Dominican Republic. When respondent was about to depart, the authorities told him he would be able to travel to France and gave him a ticket for air transportation to that country. Such facts are as consistent with an intention to make some restitution under the breached contract of employment by returning respondent to France, the country in which the contract was executed, as they are with an intention to deport respondent. We shall assume respondent's deportation from the Dominican Republic, however, in order to consider for our purposes its possible effect.
The special inquiry officer refers to the legal principle that a sovereign state has a right to deport undesirable persons. Counsel for respondent points out that that principle refers to aliens and does not apply to a national of the country. He asserts that deportation of a national from his own country is a most insidious form of physical persecution cutting him off from friends, family, economic resources, language, and culture.
Deportation of a national is akin to banishment or exile. Historically banishment has been recognized at times as a punishment and at other times as a conditional pardon. The latter concept prevailed in England where banishment was first known as "abjuration.” The accused party took an oath to leave the realm and to return only with permission. This was a conditional pardon rather than punishment.3
* The special inquiry officer refers to Lopez v. Howe, 259 F. 401 (C.A. 2, 1919), a case of an alien. In U.S. v. Ju Toy, 198 U.S. 253 (1905) the appellee claimed United States nationality. The Court, however, three justices dissenting, accepted the administrative officials' finding of alienage and considered the writ of habeas corpus on that basis.
*8C.J.S. p. 593 (1962).