After regular attendance at Party meetings and functions, and regular financial support for its activities, it is rather fanciful to believe petitioner was still unaware of the political nature of the Communist Party. It is doubtful that the meetings were so ineptly run or structured.

The Service contends that the following facts directly or indirectly support the finding or inference that the respondent was aware of the political nature of the Party:

The record establishes that the respondent presided at four or five closed meetings of the communist party at his apartment in 1949 or 1950; that he held frequent conversations with [government witness] Pikes regarding communist party affairs, during this period; that respondent stated he had been a member "quite a number of years" (p. 58); that the Stockholm Peace Petition as a Party function and device for recruitment of Party members was a subject of discussion; that communist party literature was discussed; that the respondent had tried to recruit furniture workers for the communist party; that as recently as 1957 the respondent helped arrange a meeting at his apartment with two communist party officials; that there was a discussion about communist party recruiting; that respondent was quoted as having stated he was disposed to leave a dinner at one time because two of the persons present "were deviating from the Party Line, and that they were not good Communists" (p. 76).

Counsel's contention, apart from attacks upon the credibility of the Government witness, is in brief that the Government witness' testimony concerning respondent's Party membership fails to establish that respondent was aware of the political nature of the Party or that respondent was an officer or had executive responsibility of an official nature. More specifically, counsel states that the record establishes not that respondent chaired the four or five Communist Party meetings at his home in an official position but rather that he was little more than a host in his own home. He is of the belief, that the record is deficient since it fails to show the substance of the conversations and the nature of the Party affairs discussed with the Government witness; that a simple admission of membership by respondent does not elucidate the character of the membership; that the concern with the Stockholm Peace Petition does not establish the political nature of the Party; that the effort to recruit workers to the Party was not shown to have resulted in success; that respondent's chance presence at a meeting between the Government witness and officials at which the Party's work in the North and South were discussed is no more evidence that the respondent was aware of the political nature of the Party than was Gastelum-Quinones' attendance at a Communist Party convention; and that respondent's characterization of two individuals as deviators from the Party line and bad communists was without significance in the absence of evidence as to what the Party line was or what constituted a bad communist. Counsel further contends the evidence fails to reveal the nature of Party activities or the nature of re

433

spondent's work, except perhaps to show that respondent's efforts were to better working conditions among furniture workers or to carry out trade union objectives.

From this review, it is clear that the charge before us cannot be sustained unless the Service rules out the possibility that respondent's affiliation with the Party was devoid of political implications. We believe the Service has failed to sustain its burden. There is no direct proof in the record that the respondent was aware of the political nature of the Party; nor does the evidence justify an inference that respondent was aware of the Party's political aspect. Evidence that the respondent presided at four or five meetings in his apartment does not justify such an inference in absence of proof that respondent presided because he had an official obligation to do so, or that matters relating to the Party's political nature were discussed. Respondent's presence at the Party meetings and at the meeting with the Party officials is an aspect of membership which appears to differ little in quality from Gastelum-Quinones' attendances at Party meetings, the convention and the unit executive board meeting. The testimony of the Government witness fails to show participation in Party activities to such a degree that it would be fair to infer that the alien had to know the political nature of the Party.

Although we find the charge has not been sustained on this record we shall not terminate proceedings without affording the Service a chance to proceed further if it desires. Until Gastelum-Quinones was decided, the administrative view was that an alien's unexplained voluntary membership and activity in the Communist Party over a period of time justified an inference that he knew the political nature of the Party. Until Gastelum-Quinones, we were unaware of the degree of involvement required before such an inference was justified. Had the Service been aware of the standard which Gastelum-Quinones exacts, the Service presentation of its case might have been different. Therefore, if the Service wishes to offer further testimony as to the nature of the respondent's membership and activity, it may, within three months from the date of this order apply for reopening of proceedings to the special inquiry officer who held this hearing or his substitute. If application for reopening of proceedings is not made within the period, or authorized extension thereof, these proceedings shall be considered terminated.

ORDER: It is ordered that the outstanding order of deportation be and the same is hereby withdrawn.

It is further ordered that if the Service fails to move for reopening of proceedings within three months from the date of this order or any authorized extension thereof, the proceedings shall be considered terminated.

MATTER OF TORRES-TEJEDA

In DEPORTATION Proceedings

A-12336079

Decided by Board January 3, 1964

Respondent, a native and national of the Dominican Republic, has not established that because he was a former chief of a military intelligence unit (Servicio de Inteligencia Militar) during the Trujillo regime he would be subject to physical persecution within the meaning of section 243 (h), Immigration and Nationality Act, if deported to the Dominican Republic.

CHARGE:

Order: Act of 1952-Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimm1grant-remained longer.

Respondent, a former chief of a military intelligence unit in the Domnican Republic during the Trujillo regime, appeals from the portion of the special inquiry officer's order which denies his application for withholding of deportation to his homeland. He maintains that he would face physical persecution in the Dominican Republic because of his former position under Trujillo.1 On the basis of currently available information, we affirm the special inquiry officer's action.

The hearings in respondent's case were held during July and August, 1962. We heard oral argument on October 29, 1962. In the interim, for various reasons, it has not been feasible to render our decision. Over most of the intervening time we have been waiting for information which has only recently become available in final form.

Respondent is a native and national of the Dominican Republic and married. He last entered the United States at New York on December 15, 1961 as a nonimmigrant foreign government official in transit to Canada. He had gone first from the Dominican Republic to Spain where he obtained his transit visa. Respondent testified that the Belaguer government assigned him to the position of 2nd secretary at the Dominican Embassy in Ottawa. He said he did not continue his journey to Canada because he knew most similar assignments had been 1 Section 243 (h), Immigration and Nationality Act, 8 U.S.C. 1253(h).

canceled. Respondent's authorized stay in this country expired on January 13, 1962.

The special inquiry officer directed deportation first to Spain, in accordance with respondent's designation, and alternatively to the Dominican Republic. Respondent neither contests deportability nor applies for voluntary departure.

S.I.M. (Servicio de Inteligencia Militar), the organization which respondent headed for about seven or eight months prior to February or March of 1961, was an infamous, quasi-military security unit of Trujillo's regime. The record establishes S.I.M. was popularly identified with carrying out many of the dictatorship's excesses. Respondent testified S.I.M. was created for Trujillo's personal security and to investigate and punish those who would oppose the dictatorship. He said so-called "repressive investigations" involved physical torture applied by a special corps of officers.

Respondent admits that during this tenure as chief of S.I.M. some 50 or 60 political prisoners were executed. He denies any direct responsibility for such acts, contending that he merely transmitted orders from Trujillo himself or from one of Trujillo's trusted lieutenants, Johnny Abbes Garcia. Although respondent had the title of chief of S.I.M., he disclaims any independent individual authority in connection with the principal activities of that agency. He said if he had refused to pass on orders to the persons who would carry them out he himself would have been killed. He also said that he could not refuse to accept the position of chief of S.I.M. when offered to him. In any event, we are not concerned with respondent's guilt or innocence as such. We are concerned only with determining whether, if returned to the Dominican Republic, respondent would be subject to physical abuse which would constitute physical persecution within the statutory concept.

In May the United States District Court for the Southern District of New York recommended Clodoveo Ortiz-Gonzalez' extradition to the Dominican Republic. Ortiz, a former S.I.M. agent, appeared as a witness for respondent in these proceedings. The court ruled against Ortiz on his contention that the offenses with which he was charged were political offenses, hence not extraditable. The court avoided other political implications in the situation, noting that application to the Secretary of State would furnish full protection against delivery of the accused to any government which would not live up to its treaty obligations, and would use the treaty as a subterfuge to secure the accused from a country of political asylum. Subsequently

'In re Gonzalez, 217 F. Supp. 717 (S.D. N.Y. 1963).

the Secretary of State directed Ortiz-Gonzalez's extradition, which has been effected.

Respondent does not clearly set forth the theory underlying his contention that he will be physically persecuted in the Dominican Republic if returned to that country. He anticipates that because of his former position he will be killed.

Respondent believes primarily that upon arrival in his homeland mobs, acting beyond control of the authorities, will violently attack him. Respondent's own testimony reveals that he anticipates possible prosecution in the Dominican Republic because of his association with Trujillo but not unavailability of a fair trial, if prosecuted. Most of the witnesses in respondent's behalf testified that charges are pending, or likely to be brought, against him in the Dominican Republic. They apparently believe he would not receive a fair trial. Moreover, they agree it is highly probable mobs would kill him before the police could take him into custody. At oral argument respondent's counsel said that if by a miracle respondent survived attacks by mobs upon his arrival at the Dominican airport, he would be jailed. Counsel implied that respondent would not receive a fair trial.

Counsel for the Service says respondent fears criminal proceedings and possible conviction in the Dominican Republic. He further states respondent fears more strongly that, before the authorities have a chance to try him, he will be seized by a mob and killed. Neither of these eventualities, according to the Service representative, is comprehended by the statutory language.

We exclude from the term "physical persecution" any governmental action taken in an orderly, judicial manner to determine respondent's responsibility for the former activities of S.I.M., and to prescribe punishment only for acts so performed that, regardless of possible political motivation, they would constitute ordinary crimes under any civilized juridical system. To this extent, at least, we agree with counsel for the Service.

We have no doubt that the populace in the Dominican Republic associates respondent with the excesses attributed to S.I.M. and, rightly or wrongly, holds him responsible for many of them. A newspaper clipping (Ex. 3) refers to testimony at the trial of former S.I.M. agents, accused in the death of the Mirabal sisters, an event well-known in the Dominican Republic. That event excited the public's imagination and aroused its resentment. Respondent admits that he was in charge of S.I.M. when the Mirabal sisters met their deaths. Two of his witnesses corroborated his official position at that time. Yet, whatever the situation at the time of the hearing and oral argument, the

18 U.S.C. 3184.