occasion of his initial admission at San Francisco, California in March 1948 or when he last entered the United States as a member of the armed forces in May 1960. The decision of the special inquiry officer directing that the respondent be deported from the United States to Hong Kong or in the alternative to Formosa became final when no appeal was taken therefrom. The evidence of record clearly estab lishes that the respondent is subject to deportation under the provisions of section 241(a)(1) of the Immigration and Nationality Act, in that, at the time of entry he was within one or more of the classes of aliens excludable by the law existing at the time of such entry, to wit, aliens who are immigrants not in possession of a valid unexpired immigrant visa, reentry permit, border crossing card, or other valid entry document and not exempted from the possession thereof by said Act or regulations made thereunder, under section 212 (a) (20) of the Immigration and Nationality Act.

The respondent's motion requesting that the proceedings be reopened for the purpose of affording him an opportunity to prosecute an application for suspension of deportation under the provisions of section 244 of the Immigration and Nationality Act as amended by the Act of October 24, 1962 was granted by the special inquiry officer on January 25, 1963. For the reasons hereinafter set forth, the special inquiry officer's decision of June 18, 1963 granting the respondent's application for suspension of deportation under section 244 of the Immigration and Nationality Act, as amended, will be approved. The evidence adduced at the reopened hearing held at Seattle, Washington on February 1, 1963 establishes that the respondent was born in Hong Kong, British Crown Colony, on June 8, 1935; that he attended primary school in Hong Kong until he was 12 years of age, at which time arrangements were made by his father, then a resident of the United States, to have the respondent enter the United States as the son of one Louie Sheuck Yu, a native-born citizen of the United States. The respondent's testimony indicates that after his admission to the United States he retained his assumed identity of Louie Chung Hing; that he completed high school in the United States and joined the Washington State National Guard in 1956.

The respondent enlisted in the Regular Army of the United States on September 7, 1957. He served continuously therein until his honorable discharge therefrom on May 16, 1960, a period of two years and eight months, at which time he was transferred to the United States Reserve Corps. While a member of the armed forces of the United States stationed in Guam, the respondent secured leave and went to Hong Kong, British Crown Colony, where he was married on January 30, 1959 to one Tso Lai Jen, a native and citizen of China. (Ex. 7) A son, now two years of age, was born of this union in Hong

Kong, British Crown Colony. The respondent's petition for the issuance of a nonquota immigrant visa to his wife subscribed and sworn to before a United States Consular Officer at Hong Kong, British Crown Colony, on February 6, 1959 failed to receive favorable consideration because the respondent was unable to submit any evidence in support of his claim that he was a United States citizen and he refused to submit to blood grouping tests. The respondent when questioned under oath by an officer of the Service at the office of the American Consulate in Hong Kong, British Crown Colony, on June 29, 1959 reiterated his false claim of being a citizen of the United States and deposed that his father was Louie Sheuck Yu, a native-born citizen of this country.

The respondent's application requesting that his deportation be suspended under sections 244 (a) (1) and 244(b) of the Immigration and Nationality Act was subscribed, sworn to and submitted for consideration at the Seattle, Washington office of the Service on February 1, 1963. Section 244(b) of the Immigration and Nationality Act as amended by the Act of October 24, 1962 provides that the requirements of continuous physical presence in the United States specified in paragraphs (1) and (2) of subsection (a) shall not be applicable to an alien who has served for a minimum period of 24 months in an active duty status in the armed forces of the United States and, if separated from such service, was separated under honorable conditions. As previously noted, the respondent served honorably in the United States Armed Forces on an active duty status for a continuous period of two years and eight months. This Board held in Matter of P-, A-11402870, decided June 19, 1963, that an applicant who is exempt from the requirements of any specified period of continuous physical presence as provided in section 244 (b) of the Immigration and Nationality Act is also exempt from the necessity of establishing good moral character for the period coextensive with the physical presence period; that the alien in such case must establish good moral character between the date of the filing of his application for suspension of deportation and the date that it is finally adjudicated and the alien's conduct prior to the date of filing can be considered in determining whether good moral character has been established during the period in question.

The only manner in which the respondent's immigrant status can be adjusted is by suspension of deportation. He is ineligible for adjustment of status under section 245 of the Immigration and Nationality Act because the quota for Chinese persons is pre-empted in all categories for an indefinite period and he cannot qualify for the creation of a lawful record of admission under section 249 of the Act. The record reflects the respondent has never been affiliated with any subversive or proscribed organizations. Except for traffic arrests, the

respondent has no criminal record in the United States or elsewhere. Independent character investigations conducted by the Service are entirely favorable to the respondent's application for the discretionary relief of suspension of deportation. He has maintained an excellent employment record and his present employer describes him as a conscientious person of good character and reputation, without objectionable traits or bad habits. The respondent's fraudulent admission to the United States in March 1948 as a citizen thereof and his retention of the assumed identity under which he was admitted to the United States in 1948 as well as his continuing to claim to be a citizen of the United States until sometime after his discharge from the United States Armed Forces in May 1960 are acts which should not be charged against the respondent inasmuch as he was only a child 12 years of age when his natural father, then a resident of the United States, arranged to have him admitted to the United States as the citizen son of Louie Sheuck Yu, a United States citizen.

The respondent has been a resident of the United States since he was 12 years old, a period of more than 15 years. His military record in the United States Army is excellent. Moreover, he speaks good English and enjoys a good reputation among associates and employers. Persons who have known the respondent for many years attest that he is a person of good moral character and loyal to the United States. Clearly, his deportation from the United States would result in extreme hardship to himself. On the basis of all the evidence in this record, we find that the respondent has established good moral character and is statutorily eligible for the discretionary relief of suspension of deportation under section 244 (a) (1). For the reasons hereinbefore set forth, no change will be made in the order of the special inquiry officer granting suspension of deportation.

ORDER: It is ordered that the deportation of the alien be suspended under the provisions of section 244(a) (1) of the Immigration and Nationality Act.

It is further ordered that if the Congress takes no action adverse to the order granting suspension of deportation, the proceedings be cancelled, and the alien, if a quota immigrant at the time of entry not then charged to the appropriate quota, be so charged as provided by law.

It is further ordered that in the event Congress takes action adverse to the order granting suspension of deportation, these proceedings shall be reopened upon notice to the alien.

MATTER OF BANJEGLAV

In DEPORTATION Proceedings

A-15804394

Decided by Board August 28, 1963

Respondent, a 27-year-old Yugoslav crewman, has not established that because he deserted his vessel he will be subject to physical persecution within the meaning of section 243 (h), Immigration and Nationality Act, if deported to Yugoslavia, since the penalties for such desertion are reprimand, fine and loss of wages earned (but ordinarily not jail.)

CHARGE:

Order: Act of 1952-Section 241(a) (2) [8 U.S.C. 1251(a) (2)]—Nonimmigrant (crewman)-remained longer.

On April 29, 1963, the special inquiry officer, after finding that the respondent had failed to establish that he would be subject to physical persecution if deported to Yugoslavia, authorized the privilege of voluntary departure for him, with the provision for his deportation to Sweden, alternatively to Yugoslavia, on the charge contained in the order to show cause in the event of his failure to so depart. The appeal from that decision, which brings the case before this Board for consideration, will be dismissed.

The record relates to a 27-year-old male alien, a native and citizen of Yugoslavia, who last entered the United States on or about September 21, 1962. He was then admitted as a crewman for the period of time his vessel was to remain in port, but in no event to exceed 29 days. He has remained in this country since the expiration of the temporary period of his admission without authority. Accordingly, his deportability on the above-stated charge is established. It is also conceded.

The special inquiry officer has granted the respondent's request for voluntary departure. In this connection, the respondent has testified that he has never been arrested or had any difficulty with the police. There is no evidence of record indicating that he has been other than a person of good moral character during the past five years. He is

married to a naturalized citizen of the United States, who testified in his behalf in the course of the deportation proceedings. The record confirms the respondent's testimony that he surrendered himself voluntarily to the Immigration Service. He has asserted that he is ready and willing to leave the United States at his own expense rather than be deported. The special inquiry officer was satisfied that, if faced with the alternative of deportation, the respondent would depart from the United States to some country of his choice. For these reasons, we agree with the special inquiry officer that voluntary departure is merited in these premises. His action in this respect, therefore, is affirmed.

The only issue remaining to be resolved here is whether the respondent has met the burden resting upon him in this proceeding of establishing that he would be subjected to physical persecution if deported to Yugoslavia. For the reasons hereinafter stated, we find that he has not. Therefore, the appeal will be dismissed.

Generally speaking, physical persecution, the likelihood of which authorizes a stay of deportation under this section of the law, means confinement, torture, or death inflicted on account of race, religion or political viewpoint.1 The main thrust of respondent's argument here, ignoring the questions of race and religion, is that he will be subjected to persecution because of his political viewpoint. In essence, his claim is that he has openly expressed opposition to communism, Yugoslav style, by persistently refusing to join the party; and, at least on his last four voyages, by discussing with fellow crew members the good points of the capitalistic system and the weaknesses of dictatorships. We, however, agree with the special inquiry officer that the record, showing that respondent was able to speak as he did and resist all overtures to join the Party, without detriment to his career, does not support the respondent's position.

For about three years prior to becoming a crewman, respondent was an office worker, sailed on a small river boat, and served in the Yugoslav navy. After his discharge, he sailed as a cadet officer for two years, and then took an examination for the merchant marine. He was qualified for this by the training he had received in the naval academy. During his years as a crewman, he rose to the position of second navigating officer.

In our opinion the respondent's progress careerwise, as set forth above, belies any claim to persecution because of opposition to communism. As a matter of fact, respondent has testified that the worst that would happen to him for his refusal to join the Party and his viewpoint

1 Blazina v. Bouchard, 286 F.2d 507 (C.A. 3, 2/2/61).