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her constantly to join the Communist Party. She is convinced that she will be unable to obtain any employment in Poland because of the suspicion with which she is regarded for her failure to join the Party and because priority in hiring is given to those who are Party members.
The respondent in a pre-hearing statement on November 24, 1961, stated she was "willing and able to go to Poland from the United States voluntarily by paying her own expenses.” While she stated she did not wish to return to Poland on the next crossing of a boat leaving for Poland, the implication is given that she would not object to leaving on another crossing (Ex. 2). At the hearing, respondent stated she did not understand the question and that she never wanted to return to Poland (p. 26).
In deciding that respondent would not be faced with physical persecution in Poland, the special inquiry officer took administrative notice of the fact that about only one out of every 30 persons in Poland is a member of the Communist Party, that respondent did not occupy â position of prominence in Poland and that while in the United States she had not engaged in political activity against the Polish Government. The special inquiry officer concluded that respondent might be unable to obtain a teaching position if she is returned to Poland, and that while a complete withdrawal of employment opportunities would constitute physical persecution, the record did not establish that such a bar would be applied to respondent.
In deciding that respondent has not established that she will be faced with physical persecution in Poland, we note that she has not been subjected to physical persecution despite her religious beliefs and her refusual to join the Communist Party, that she was regularly employed from the time she was 21 in a sensitive area, she was given advanced training, and she was permitted to leave Poland for the United States.
While it may well be that respondent will be unable to obtain employment as a teacher because of her refusal to abandon religious beliefs and her refusal to join the Communist Party, the record fails to establish that she, a trained typist, will not be able to obtain employment in other areas of the economic life of Poland. Her belief that she will be unable to obtain employment must be measured by the fact that before she lost her employment as a teacher, she had applied for a passport to come to the United States indicating to some extent a lack of interest in securing immediate employment, and by the fact that she did come to the United States within about two months after obtaining her passport. Moreover, some issue is raised as to respondent's credibility by reason of the coincidence between the date respondent became free to come to the United States (June 1961 when she received her passport) and the date her employment ended. Furthermore, it appears odd that if respondent was questioned at length from January to June 1961, as she testified she had been, that she would have been issued a passport at the same time she was either discharged or about to be discharged from her employment as a teacher because of her attitude to the Party.
Our decision that respondent's return to Poland would not result in physical persecution is based upon facts of record only. However, under the authority contained in 8 CFR 242.17(c) (Supp. 1962) providing that information not of record may be utilized under certain circumstances, we, out of an abundance of caution, and to insure that all available information concerning the possibility of physical persecution would be considered, have examined certain confidential information the disclosure of which would in our opinion be prejudicial to the interests of the United States. This information of a general nature relating to living and political conditions in Poland which would affect deportees to Poland, collected by officials of the Government in carrying on their assigned duties and transmitted to the Board through official channels through another Government agency, has been carefully considered. We find nothing in it which would establish that our conclusion based upon the record is erroneous.
Respondent's representative contends that since refugees and escapees from Poland are being admitted to the United States, the respondent should be considered in this category because of the persecution she suffered in attempting to maintain her political and religious beliefs and that she should therefore be permitted to remain in the United States utilizing the provisions of section 243(h) of the Act. Whether or not the respondent is a refugee-escapee within the Act of July 14, 1960, as amended, (74 Stat. 504) is not a matter for determination in this proceeding (8 CFR 212.5(b) (Supp. 1962)).
The respondent's representative contends that under the regulations relief under section 243(h) of the Act is granted only after an order of deportation has been entered, and that no order of deportation having been entered against respondent, the adjudication of the application filed under section 243 (h) is premature. Respondent has been found deportable and the application for relief under section 243(h) of the Act was properly considered (8 CFR 242.17(c)(d) (Supp. 1962)). The appeal must be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby dismissed.
MATTER OF HAN
In DEPORTATION Proceedings
Decided by Board August 10, 1962
A special inquiry officer at a deportation hearing has no authority to adjudicate
a visa petition to accord a respondent first-preference status under section 203(a) (1) of the Immigration and Nationality Act or respondent's application for a waiver of the foreign-residence requirement under section 212(e) of that Act (See also, Matter of Rosenblatt, Int. Dec. No. 1260, and Matter of Irie, Int. Dec. No. 1304).
Order: Act of 1952-Section 241 (a) (2) (8 U.S.C. 1251 (a) (2)]-Remained
This case comes forward on appeal from an order entered by the special inquiry officer on June 11, 1962, denying the respondent's application for adjustment of his immigrant status to that of a permanent resident as provided in section 245 of the Immigration and Nationality Act on the ground that he is ineligible therefor but granting his request that he be permitted to depart voluntarily from the United States, in lieu of deportation, and directing that if he fails to depart when and as required he be deported to England, the country designated by him, on the charge designated above and further directing that if the aforementioned country advises that it is unwilling to accept him into its territory, * * * he be deported from the United States to Korea.
The respondent, a 33-year-old married male, native and citizen of Korea, has resided continuously in the United States since his admission at Seattle, Washington, on September 27, 1955 as a nonimmigrant exchange visitor until September 26, 1956. He was granted several extensions of his temporary period of admission, the last of which expired on March 13, 1962. He has remained in the United States without permission since the latter date. Deportation proceedings were instituted against the respondent on March 19, 1962 and a hearing in deportation proceedings was held at Peace Bridge, Buffalo, New York on May 1, 1962, at which time the respondent and counsel admitted the truth of the factual allegations set forth in the order to show cause and conceded deportability on the charge stated therein. On the basis of the evidence present in this record the respondent is subject to deportation under the provisions of section 241 (a) (2) of the Immigration and Nationality Act, in that, after admission as a nonimmigrant exchange visitor under section 101 (a) (15) of the Immigration and Nationality Act, he has remained in the United States for a longer time than permitted.
On examination of the record we find that the respondent was married to a native and citizen of Korea at Syracuse, New York on January 21, 1961. A citizen child was born of this union at New Hartford, New York on August 16, 1961 (Exs. 13 & 14). The respondent's wife is a lecturer in mathematics at Utica College, a division of Syracuse University at Utica, New York (p. 21). A visa petition executed and filed by Syracuse University on August 9, 1961 on behalf of the respondent's spouse for the issuance of an immigrant visa under section 203 (a)(1)(A) of the Immigration and Nationality Act was approved by the Service on September 20, 1961. The respondent received a M.D. degree from Taegu Medical College in Korea. The respondent, as a part of his training as a medical scientist, is engaged in research and the work is currently in progress in the Department of Physiology at the State University of New York, Upstate Medical Center in Syracuse, where he is enrolled as a candidate for the degree of Doctor of Philosophy in Physiology. The respondent has been employed at the Masonic Laboratory since June 1960 at an annual stipend of $7,500.
The Masonic Foundation for Medical Research and Human Welfare at Utica, New York filed a visa petition with the special inquiry officer to have the respondent accorded first preference status under section 203(a) (1) of the Immigration and Nationality Act (Ex. 10). There was also filed with the special inquiry officer an application for a waiver of the residence requirement under section 212(e) of the Immigration and Nationality Act (Ex. 11). Counsel on appeal asserted that the respondent was entitled to have the special inquiry officer adjudicate his application for a waiver under section 212(e) of the Immigration and Nationality Act and the petition to accord him first preference status under section 203(a) (1) since the aforementioned are ancillary to the respondent's application for adjustment of his immigrant status to that of a permanent resident as provided in section 245 of the Immigration and Nationality Act. We find no merit to the aforementioned argument of counsel.
There is no authority conferred upon the special inquiry officer by law or regulation to pass upon or adjudicate the petition executed by the respondent's employer to accord him first preference status under section 203(a)(1)(A) of the Immigration and Nationality Act or his application for a waiver as provided in section 212(e) of the Act. Part 103.1, 8 CFR, confers upon District Directors the general authority to determine all petitions and applications. Part 103.2, 8 CFR, among other things provides that every formal application or petition shall be filed in accordance with the instructions contained thereon, such instructions being incorporated in the particular sections of the regulations requiring its submission. *** Form I-130 (Petition to Classify Status of Alien for Issuance of Immigrant Visa) shows that the District Directors are the only ones authorized to approve or revalidate a petition to accord status under section 203(a) (1) of the Immigration and Nationality Act.
The respondent was admitted to the United States as a nonimmigrant exchange visitor under section 101 (a) (15) (J) of the Immigration and Nationality Act, as amended. Section 212(e) of the Immigration and Nationality Act provides that no person admitted to the United States under section 101(a) (15) (J) or acquiring such status after admission shall be eligible to apply for an immigrant visa, or for permanent residence, * * * until it is established that such person has resided and been physically present in the country of his nationality or his last residence, or in another foreign country for an aggregate of at least two years following departure from the United States: *** or obtains a waiver of such two-year foreign residence requirement because of exceptional hardship upon the alien's spouse or child, if such spouse or child is a citizen of the United States. The statute specifically provides that upon the favorable recommendation of the Secretary of State, pursuant to a request of an interested Government agency, or of the Commissioner of Immigration and Naturalization after it has been determined that departure from the United States would impose exceptional hardship on the alien's spouse or child if such spouse or child is a citizen of the United States or a lawful resident alien, the Attorney General may waive the requirement of such two years' residence abroad * * *
Adjustment of status to that of a person admitted for permanent residence under section 245 of the Immigration and Nationality Act is dependent upon the alien's eligibility to receive an immigrant visa and admissibility to the United States as well as an immigrant visa being immediately available to him at the time his application is approved. Visa Office Bulletin No. 98 dated August 1, 1962 shows that the first preference portion of the quota for Korea is pre-empted for a period in excess of two years and the remaining classifications for