special inquiry officer, the trier of the facts, regarding demeanor, lack of candor and probity, we are not disposed to find his evaluation of the testimony incorrect. The respondent is ineligible for discretionary relief, including the discretionary relief of section 245 of the Immigration and Nationality Act because he has failed to establish good moral character for the past ten years. In addition, the respondent has failed to establish the requisite ten years of continuous physical presence in the United States since his last deportable act. The respondent designated Brazil as the country of deportation in the event that he is ordered deported, and Italy has been named as the alternative country of deportation in the event deportation cannot, pursuant to the statute, section 243 (a) of the Immigration and Nationality Act (8 U.S.C. 1253 (a)), be effected to Brazil. The respondent has submitted an application for withholding of deportation to Italy pursuant to the provisions of section 243 (h) of the Immigration and Nationality Act (8 U.S.C. 1253 (h)), alleging that he will be physically persecuted if deported there. Although the respondent has testified that the "Mafia" is a fable and the "Cosa Nostra" does not exist, nevertheless, since he has acquired the reputation of a gangster, mobster, and racketeer in the United States, the Italian authorities are well aware of this reputation and that as a result thereof they will subject him upon his deportation to Italy to such treatment and restrictions as will constitute physical persecution. He contends that in accordance with Italian law and practice, if deported to Italy, he will be subjected to certain intensive restrictions upon his liberty and his social and economic life, including confinement or restriction to a small village in the Sicilian peninsula of Italy, limitation in his freedom of movement throughout the country, subjection to surveillance, interrogation, and possibly arrest, with or without probable reason or cause, and denial of employment opportunities because of physical disabilities and the proscription of the Italian statutes, so as, in fact, to impose severe, if not total, economic sanctions and restrictions. The phrase "physical persecution" as used in section 243 (h) of the Immigration and Nationality Act has been interpreted as meaning confinement, torture, or death inflicted on account of race, religion, or political viewpoint.10 It has also been held that economic proscription so severe as to deprive a person of all means of earning "Blazina v. Bouchard, 286 F.2d 507 (3rd Cir. 1961), cert. den. 366 U.S. 950; Diminich v. Esperdy, 299 F.2d 244 (2d Cir. 1961), cert. den. 369 U.S. 844. a livelihood may amount to physical persecution." This of course means économic proscription inflicted because of race, religion or political viewpoint. On the other hand, possible incarceration for one or two years for illegally deserting a vessel, difficulties and hardships feared by the alien on his return, and imprisonment for conviction of a crime do not constitute physical persecution as that term is used in section 243 (h) of the Act.12 Whatever physical persecution is claimed by the respondent arises out of his actions and reputation in the United States. The Government of Italy is a democratic one and not totalitarian. There is no doubt that if the respondent were tried, he would receive a judicial trial with adequate safeguards. The claim of physical persecution stems from speculation and conjectures unrelated to the respondent himself. There is no evidence that the respondent would be subject to physical persecution within section 243 (h) of the Immigration and Nationality Act because of race, religion or political viewpoint. It is concluded that respondent has failed to establish his claim of physical persecution and his application for withholding of deportation is denied. The constitutional question ürged by counsel, that deportation would constitute cruel and unusual punishment in violation of the Eighth Amendment, is not cognizable in this forum. We have also considered other objections raised by counsel. There is no requirement in the statute or in the regulations regarding an independent character investigation. In view of the numerous witnesses in this case, such an investigation would appear to be superfluous. However, where discretionary relief is denied, it is neither usual practice nor requirement that such an investigation be conducted and the Government has not relied on an investigation. We regard the denial by the special inquiry officer of the request for subpoenas to assure the presence of various Government officials of other agencies as vague, irrelevant and immaterial because there is not in issue matters which may or may not have been the subject of investigation by the Federal Bureau of Investigation, the Internal Revenue Service, or the Bureau of Narcotics. A request for a deposition has been granted. Viewing the record as a whole, we do not find there was any prejudicial error committed and conclude that the respondent has been given a fair hearing. The appeal will be dismissed. ORDER: It is ordered that the appeal be and the same is hereby dismissed. 11 Dunat v. Hurney, 297 F.2d 744 (3rd Cir. 1952). 1 Zupicich v. Esperdy, 319 F.2d 773 (2d Cir. 1963); Soric v. Flagg, 303 F.2d 289 (7th Cir. 1962); Kalatjis v. Rosenberg, 305 F.2d 249 (9th Cir. 1962). MATTER OF SASANO In Visa Petition Proceedings SFR-N-4593 Decided by Regional Commissioner October 22, 1965 Petition by the owner and operator of a fruit orchard to accord beneficiary nonimmigrant classification under section 101(a)(15) (H) (iii), Immigration and Nationality Act, as an industrial trainee in American methods of agriculture applicable to fruit raising, is denied since the proposed training program for beneficiary, a graduate of an agricultural college in Japan with 12 years' subsequent experience specializing in crops similar to those of petitioner, would consist principally of practical, on-the-job training. In addition, since beneficiary would be employed at least 8 hours per day, 6 days per week the entire year, and during a considerable portion of the year would be petitioner's only employee, it is concluded he would be involved in full-time productive employment and that any training received would be incidental thereto. Discussion: This case is before the Regional Commissioner on appeal from the District Director's decision denying the petition on the following grounds: It has been established that you have 60 acres of land under cultivation, which includes 30 acres of pears, 20 acres of plums, and a combination of 10 acres of vegetables, peaches, persimmons and cherries, and that you employ only 5 to 6 workers in the peak of the season. During a considerable portion of the year, the trainee will be your only employee, and for that reason it is concluded that the beneficiary will displace a United States citizen or resident alien, who would ordinarily be required to do the work that the beneficiary will be engaged in. Further, you have failed to establish that there will be any training offered the beneficiary other than full-time on-thejob training. The petitioner is owner and operator of a 60 acre fruit orchard. He proposes to train the beneficiary in American methods of agriculture as applied to fruit raising. He has submitted an outline of the proposed training which covers orchard management, planting and cultivation, packaging and shipping, and harvesting. He estimates the period of training required as 36 months. 245-235-67-25 The beneficiary is a 32-year-old native and citizen of Japan presently residing in Japan. Information has been submitted that he is a graduate of the Kagoshima Miyanojo Agriculture State College and has subsequently been engaged in farming in Japan for 12 years. He has submitted an affidavit attesting to ownership of 5.5 acres of land and that 3 acres of that land are devoted to orchards. When interviewed by a representative of this Service, the petitioner stated that all of the training offered would be by practical on-the-job training supplemented by unscheduled trips to the University of California to attend lectures and by visits to county fairs. In his brief on appeal, petitioner stresses his qualifications as a trainer and draws attention to the fact this Service previously approved his petition for an agricultural trainee who remained in his employ for a period of three years. The petitioner has established the beneficiary is a graduate of an agricultural college in Japan and that he has subsequently had 12 years' experience as a farmer specializing in crops similar to those of petitioner. It is conceded that American agricultural methods may differ from those of Japan to some extent. It is obvious that a peach, pear, plum, or citrus fruit grows much the same in either locale. It is reasonable to assume that only the method of raising differs, and the adaption of that method to the certain locale. This can be taught without resorting to the day to day chores involved in cultivation, pruning, spraying, and irrigation. The need to train a person who is a graduate of an agricultural college and who has 12 years' subsequent experience as a farmer in such a manner is unrealistic. Petitioner has stated the beneficiary will be employed eight hours a day in the winter and ten hours a day in the summer six days a week at the wage of $1.25 per hour yet maintains no domestic labor will be replaced. No explanation concerning replacement of the productive labor involved is given. The entire record, including representations made on appeal, has been carefully considered and it is concluded the beneficiary would be involved in full-time productive employment and that any training received would be incidental thereto. The decision of the District Director was proper, and no evidence has been submitted that would warrant disturbing that decision. The appeal will be dismissed. ORDER: It is ordered that the appeal be and the same is hereby dismissed. MATTER OF JANCAR In Visa Petition Proceedings A-13512978 Decided by Board November 2, 1965 Since under the law of Yugoslavia an illegitimate child may be legitimated by acknowledgment of the natural father, a child born out of wedlock in 1944 in Yugoslavia, whose birth certificate establishes such acknowledgment in 1944 and reflects confirmation by her mother of the statement of acknowledgment, is, in relation to her natural father, a child within the meaning of either section 101(b)(1)(A) or (C) of the Immigration and Nationality Act, as amended, and is, therefore, eligible for preference quota status under section 203(a)(3) of the Act. The case comes forward on appeal from the order of the District Director, Cleveland, Ohio, dated May 18, 1965, denying the visa petition for the reason that an illegitimate child derives no status, privilege or benefit under the Immigration and Nationality Act from or through the relationship of the child to its putative father. The petitioner, a native and citizen of Yugoslavia, a permanent resident alien since December 28, 1950, 52 years old, male, seeks preference quota status under section 203 (a) (3) of the Immigration and Nationality Act on behalf of his unmarried illegitimate daughter, a native and citizen of Yugoslavia, 21 years old. In support of the visa petition there has been submitted a Yugoslavian birth certificate showing the beneficiary's mother as Matilda Jancar and bearing a notation that the petitioner on July 14, 1944 signed a statement at the local Youth Center in the district of Radgona that he is the child's father and that the child's mother confirmed the statement. In connection with the appeal the petitioner states at the time of his daughter's birth, he was threatened with mobilization into the German Army and was in hiding. In 1945, fearing Communist persecution he fled the country never to return again, thus preventing him from marrying his daughter's mother. He states that he brought the beneficiary here as soon as he was comfortably settled and had his own home; that the beneficiary is his only heir and he has willed all his estate to her. |