Imagini ale paginilor
PDF
ePub

Whether imposed as punishment or a condition for a pardon banishment has usually been attended with loss of civil rights.

Respondent has retained his Dominican nationality and the right to travel on a Dominican passport. In the absence of any evidence to the contrary, we assume that he has also retained any other civil rights which attach to Dominican nationality. There is no evidence indicating respondent is likely to be denaturalized. His case, therefore, is more akin to "relegation" in old English law, or relegatio of the Roman civil law, a modified type of banishment (temporary in England) in which the person retained his rights of citizenship.5

Moreover, respondent testified that he requested permission to leave the Dominican Republic in lieu of remaining there in military service. He was being returned to France, the country from which he had entered the Dominican Republic and in which he had sought refuge after leaving Yugoslavia. Under his theory that his deportation from the Dominican Republic-if he was deported—constituted physical persecution, his present sojourn in this country must be a form of physical persecution. His efforts to remain here in lieu of going to any other country, including the Dominican Republic or France, militate against such a view of his case.

Respondent's ties in the Dominican Republic are slight. The record does not disclose that respondent has friends, family, or economic resources in the Dominican Republic. Respondent himself testified that the Dominican officers serving in the Army under Trujillo looked upon him as a foreigner, an alien. Therefore, the special inquiry officer's position although technically inaccurate, is not so far wrong in substance. Only if respondent's ties in the Dominican Republic were so strong as to make enforced absence from that country severe and unusual hardship might his deportation, or banishment, from the Dominican Republic constitute physical persecution. For the foregoing reasons we conclude that even assuming respondent's departure from the Dominican Republic was equivalent to deportation, he has not suffered physical persecution thereby.

1

3. Mob Violence

Information in the record (Ex. 3) indicates the Anti-Communist Legion was used to oppose the attempted invasion of the Dominican Republic in 1959 by Dominicans seeking to overturn the Trujillo regime. Such activity, even though coerced, no doubt adds to any

* Black L.D., Rapalje and L.L.D. For a discussion of some modern instances of banishment with historical references see Armstrong, Banishment: Cruel and Unusual Punishment, 111 U. Pa. L. Rev. 758 (April 1963).

Black L.D., Rapalje and L.L.D.

5

unpopularity in the Dominican Republic of former members of the Anti-Communist Legion resulting from their association in general with the Trujillo regime. Respondent has referred vaguely to an inability to move freely about the streets in the Dominican Republic. We believe these allegations reflect fear of mob action. His witness, Secen, also referred to danger from the mobs. Respondent cites no occurrence, however, in which he had any particular difficulty with a mob in the streets of the Dominican Republic. We find in this record no evidence that he has suffered physical persecution in the Dominican Republic from that source assuming, without deciding, that the statute contemplates physical persecution can arise from such a source.

We conclude from the discussion thus far of respondent's suggested sources of physical persecution-imprisonment for a political offense, deportation or banishment, and mob violence—that respondent did not undergo any physical persecution while residing in the Dominican Republic. But what if respondent were now to be returned to the Dominican Republic?

II Respondent's probable experiences if returned to the Dominican Republic.

The likelihood that respondent will encounter physical persecution in the Dominican Republic can be founded only upon existing circumstances in that country. We take official notice that the executive leaders of the Dominican Republic's Government have changed since respondent's hearing. So far as we can ascertain at this time, however, this change has no material effect in our consideration of respondent's case. If anything there is less internal tension, at least on the surface, then there was at the time the special inquiry officer heard respondent's case.

1. Imprisonment

Respondent testified the authorities informed him that if he returned to the Dominican Republic he would again be imprisoned. As a mercenary during Trujillo's dictatorship, even though an unwilling one, respondent would no doubt be unpopular with many segments of the population as well as some individuals within the Government. Respondent's position in that regime, however, was not of a type or significance likely to now cause lengthy imprisonment or unduly harsh treatment while confined. We believe that respondent's confinement, if any, would be relatively brief—as were his prior imprisonments.

Counsel for respondent mentioned in his memorandum on appeal that he knows from personal observation that the treatment accorded

Compare Matter of Diaz, Int. Dec. No. 1270 (March 20, 1963).

political prisoners in respondent's country is not according to our standards of treatment of prisoners. There is no evidence in the record in support of this statement, however, and, in particular, no evidence that the treatment is such that confinement for even a brief period of time might constitute physical persecution. Moreover, there is no reason to suppose that the Dominican authorities would not again permit respondent to leave the country, especially in lieu of serving a lengthy term in prison.

2. Deportation

Failing respondent's departure from the country at his own request, the authorities might on their own initiative take steps to expel him. Respondent contends both that expulsion would be likely to occur and that it would constitute physical persecution. The special inquiry officer admits that respondent might be deported from the Dominican Republic. We concede a fairly high degree of probability for such an eventuality. For the reasons discussed in considering the circumstances under which respondent left the Dominican Republic in May 1962, however, we believe respondent's expulsion from that country would not constitute physical persecution.

3. Mob violence

Respondent says that the communistic 14th of June party persecutes anyone who had belonged to the Anti-Communist Legion. The record does not specify what form such persecution might take. That party has not had control of the Government at any time. Probably respondent believes that the party's adherents would, without governmental sanction, attack former Legionnaires.

Respondent makes no direct allegation that he would suffer physical harm at the hands of rioting or demonstrating mobs in the Dominican Republic. The special inquiry officer states respondent's position is basically that the current Government in the Dominican Republic would physically persecute him because of his military employment by the Trujillo regime. Respondent's counsel does not take exception to that statement. He frames the issue more broadly, however, in terms of whether the respondent will receive treatment in the Dominican Republic which will constitute physical persecution-without specifying whether such treatment would come from the Government or some other source. Thus we do not have sharply defined here the issue raised, but not determined, in Matter of Diaz—whether physical harm inflicted upon a person by a mob acting without governmental

? The record is silent as to Dominican law empowering such action.

sanction, can constitute physical persecution for the purposes of section 243(h) of the Immigration and Nationality Act.

As we have noted, however, respondent testified that he could not walk in the streets. His witness, Vladimir Secen, testified that his own troubles were with Communist controlled groups on the streets. Latent in respondent's situation, therefore, lie the queries whether a mob in the Dominican Republic might physically harm him and, if so, whether such harm would amount to physical persecution for purposes of the statute.

Respondent's case, insofar as mob violence might be involved, corresponds to what we designated as the first situation in Diaz. We there reserved the question pertaining to that situation—whether intentional physical harm inflicted because of past association with the Trujillo regime or because of antithetic interests by a riotous mob, acting without the sanction of the Dominican Government, would amount to physical persecution within the meaning of section 243(h). We again find that we need not consider the legal import of this question.

Respondent submitted no evidence to corroborate his bare statement that he would not be able to go out on the streets. The Dominican newspaper clipping which refers to deportation of four persons from the Dominican Republic (Ex. 3) is an ordinary news item which makes no reference to any particularly inflammatory public action or opinion. Moreover, there is no evidence that the authorities could not adequately protect respondent by controlling any outbursts of mob violence which might appear. Instances of mob violence in the Dominican Republic have diminished. We believe that respondent is not likely to suffer harm from such a source.

We conclude that respondent is not likely to encounter in the Dominican Republic any treatment which would warrant withholding his deportation to that country on the grounds that he would be physically persecuted there and dismiss the appeal.

ORDER: It is ordered that the appeal be and hereby is dismissed.

* Supra

MATTER OF WONG

In VISA PETITION Proceedings

A-12644189

Decided by Board May 8, 1963

(1) Acknowledgment by the natural father (domiciled in California) of a child

born out of wedlock in China in 1946, without bringing the child into his family, is insufficient to effect legitimation under section 230 of the California Civil

Code. (2) Likewise, legitimation has not been effected under Article 1065 of the Civil

Code of the Republic of China of 1931, since the earliest declaration of acknowl. edgement occurred in January 1961, more than 5 years after the birth of the child (Article 1067), and there is no evidence of support or maintenance of the child by the putative father prior to that date.

The case comes forward on appeal from the order of the District Director, San Francisco District, dated March 28, 1963, denying the visa petition for the reason that the beneficiary is the petitioner's illegitimate child and is not a "child" as defined in section 101(b) (1) of the Immigration and Nationality Act she has not been legitimated under section 230 of the Civil Code of the State of California in that the beneficiary has not been received into the petitioner's home in San Francisco, California or Hong Kong with the petitioner's legal wife, Chew Lim Wong.

The petitioner, a native of China, 43 years old, male, and a naturalized citizen of the United States, seeks nonquota status on behalf of the beneficiary a native and citizen of China, born April 26, 1916. The petitioner was married to Chew Lim Wong, who is presently residing in the United States and who is a naturalized citizen. The beneficiary is the illegitimate issue of the petitioner's relationship with one Kwok Kwai Fong, as is another child, Wong Sui Kuen, who was born in Hong Kong on September 23, 1961. In an affidavit dated June 5, 1962, the petitioner stated that he had been a resident in the State of California for more than 20 years past; that he has at all times treated the beneficiary as his legitimate daughter; that he has just returned from Hong Kong where he resided with the beneficiary as a family group. In the brief accompanying the appeal it is stated that the petitioner visited Hong Kong for the specific purpose of

« ÎnapoiContinuați »