the Italian Government. There is ample evidence now of record which affirmatively establishes that the respondent cannot satisfy the statutory requirement that he would be subjected to persecution in Italy "on account of race, religion or political opinion" (section 243 (h) as amended by Public Law 89-236).

Counsel argues that the statement of the Italian Foreign Ministry is not admissible as evidence unless an official of the Italian Government is produced for cross-examination. We note that it was respondent's counsel who originally requested that the statement be obtained from the Italian Government. Furthermore, relief under section 243 (h) is a matter of discretion and as such the respondent does not have as a matter of right, the cross-examination of witnesses as provided in section 242 (b) (3). Discretionary action by its very nature permits wide latitude to the authority charged with its exercise. The Attorney General may consider any evidence which would be of assistance in formulating "his opinion (that) the alien would be subject to persecution on account of race, religion or political opinion." Dolenz v. Shaughnessy, 206 F.2d 392 (C.A. 2, 1953); Diminich v. Esperdy, 299 F.2d 244 (C.A. 2, 1961), cert. den. 369 U.S. 844; Cantisani v. Holton, 248 F.2d 737 (C.A. 7, 1957).

Counsel maintains that under the savings clause of the 1952 Act (section 405 (a); 8 U.S.C. 1101, footnote) the respondent's application for a stay of deportation under section 243 (h) must be judged by the law existing prior to its amendment by Public Law 89–236. Counsel cites no authority to support this contention. It is well established that where a statutory provision as to administrative discretion is changed between the hearing before the special inquiry officer and final decision by this Board we must apply the amended version of the law. Foti v. Immigration and Naturalization Service, 332 F.2d 424 (C.A. 2, May 1964); Patsis v. Immigration and Naturalization Service, 337 F.2d 733, October 1964; cf. Matter of George. Int. Dec. No. 1533, B.I.A., December 16, 1965.

We affirm the order of the special inquiry officer denying respondent's application for withholding of deportation to Italy pursuant to the provisions of section 243 (h) of the Immigration and Nationality Act as amended by Public Law 89-236, effective December 1, 1965.

THE LEGALITY OF THE ORDER DIRECTING DEPORTATION

TO ITALY

Counsel contends that the deportation order entered by the special inquiry officer is illegal for the reason that there is no evidence of record that the Italian Government is presently willing to accept the respondent as a deportee. Counsel takes the position that section 243 (a) of the Immigration and Nationality Act (8 U.S.C.

1253 (a)) provides for orders of deportation to alternate countries. only where such country is willing to accept the alien. He cites in support of his position three cases concerned with actions brought by Chinese aliens contesting the execution of orders of deportation to either Communist China on the mainland or the Nationalist Government of China on Formosa.10 We note that counsel did not raise this issue before the special inquiry officer: (R-p. 29).

The cases cited by counsel are easily distinguishable from the case before us. This case does not present the problem which often confronts the Government in dealing with aliens of Chinese origin who were born on the mainland of China prior to the time the Nationalist Government (recognized by the United States) was forced to withdraw to Formosa. The cited cases are concerned with the execution of an order of deportation and not with an administrative determination of the place of deportation in accordance with the provisions of 8 CFR 242. 8 CFR 242.8 provides the special inquiry officer with authority "to determine deportability ... (and) ... to determine the country to which an alien's deportation will be directed in accordance with section 243 (a) of the Act..." (8 U.S.C. 1253 (a)).

Where there is an ancillary matter before the special inquiry officer, such as an application for a temporary withholding of deportation pursuant to section 243 (h) of the Immigration and Nationality Act (supra), the current regulation (8 CFR 242.17 (c)) provides that the alien shall be notified of his right to designate the country to which he wishes to be deported and that the special inquiry officer's order shall direct the alien's deportation in the first instance to the country so designated. 8 CFR 242.17 (c) also provides: "The special inquiry officer shall then (namely, after directing deportation to the designated country) specify and state for the record the country or countries in the alternate, to which respondent's deportation will be directed pursuant to section 243 (a) of the Act if the country of his designation will not accept him into its territory, or fails to furnish timely notice of acceptance, or the respondent declines to designate a country."

The special inquiry officer's order complies fully with the procedural pattern spelled out by the statute and the regulations set forth in 8 CFR 242. The special inquiry officer's decision makes a finding that the respondent is "a native of Italy, who claims he is

10 Lu v. Rogers, 164 F. Supp. 320 (D.C. D.C. 1958), aff'd 262 F.2d 471 (C.A. D.C. 1958); U.S. ex rel. Tom Man v. Shaughnessy, 142 F. Supp. 444, D.C. S.D.N.Y. (1956); U.S. ex rel. Lee Ming Hon v. Shaughnessy, 142 F. Supp. 468 (D.C. S.D.N.Y. 1956).

now stateless" (p. 2 of the special inquiry officer opinion). The record establishes that the respondent last entered the United States through the port of New York on August 10, 1920 and that his last place of residence prior to entry was Italy (Ex. A 75). Section 243 (a) of the Immigration and Nationality Act (8 U.S.C. 1253(a)) specifically states that an alien may be deported "(1) to the country from which such alien last entered the United States; (and) (3) to the country in which he was born" unless the country designated by the alien is willing to accept him. Accordingly, we find no basis for counsel's assertion that the order entered by the special inquiry officer is illegal. It is elementary that before such a claim of illegality can be made there must be a final order of deportation after appropriate administrative and judicial review. Otherwise, there would be no point in negotiating with a foreign country to determine whether it will accept a deportee.

Counsel also urges error in that the order entered by the special inquiry officer does not conform to section 8(b) of the Administrative Procedure Act which requires findings of fact, conclusions of law together with the reasons or basis for the administrative action on material issues of fact, law and discretion. We find no error. The special inquiry officer's decision does make a finding with regard to the place of the alien's birth and there is evidence of record that Italy is the country of his last residence prior to entering the United States (p. 2, special inquiry officer opinion and Ex. A 75). Furthermore, the procedural requirements of the Administrative Procedure Act are not applicable to deportation proceedings under the immigration laws. Marcello v. Bonds, 349 U.S. 302, 99 L.ed. 1107 (1955). There is no requirement in either the statute or the regulations that the special inquiry officer make formal findings of fact and conclusions of law to support an order deporting an alien to a foreign port or place.

We find no substance to counsel's claim that the order entered by the special inquiry officer directing the respondent's alternate deportation to Italy is illegal. The order is hereby affirmed.

CONCLUSION

The respondent, now 68 years of age, has resided in the United States for more than 45 years. He last entered the United States with fraudulent documents on August 10, 1920. He married a lawfully resident alien in 1927 (pp. 109-110). Three children have been born of the marriage, a daughter and two sons. Both of the respondent's sons served in the United States Army and were honorably discharged. There is evidence that one of his sons is

mentally ill but capable of handling his own financial affairs. He receives compensation amounting to $250 per month from the Veterans Administration (Exs. A 69 & 70).

A physician, called by the respondent, testified that in his opinion the respondent's deportation would have an injurious effect on his health and life. He diagnosed the respondent's physical condition as follows: coronary insufficiency, hypertension due probably to arteriosclerosis and emotional factors, a deteriorated kidney, enlargement of the prostate gland, diabetes and low grade anemia (Ex. A 68). The physician expressed his belief that the respondent's deportation may cause a relapse in the condition of his mentally ill son. The witness concedes, however, that the respondent has had a kidney ailment since the removal of one of his kidneys in 1948 and that he (respondent) has been afflicted with diabetes since 1942 (pp. 63 & 64).

Against this background of long residence in the United States after a fraudulent entry, close family ties in the United States and rather poor physical condition, we have a 68-year-old alien who committed two homicides in Italy prior to his entry (Ex. 36); an alien who obtained a fraudulent naturalization in 1928; an alien who was convicted of conspiracy to commit extortion in 1943 and sentenced to ten years' imprisonment " (Exs. A 64 & A 65); an alien whose fraudulent naturalization was revoked in 1957; and an alien who was convicted for income tax evasion in 1959 and sentenced to three years' imprisonment and a $15,000 fine.12

A careful review of the voluminous record clearly establishes that the respondent's plea for administrative grace is based primarily on negative evidence concerned with his criminal convictions, the source from which he has derived the major portion of his income over the past 35 years and the alleged unfairness of the conduct of the reopened hearing by the special inquiry officer rather than affirmative evidence of his rehabilitation and present worth in the community in which he resides. The respondent did not produce a single witness or affidavit to establish his reputation or support his claim of good moral character. There is nothing to show that the respondent is aware of the gravity of his past misconduct. His counsel, in fact, stated for the record, "I concede that his (respondent's) reputation is not good, yes, but I don't concede that there is justification for it." (R-p. 37)

"He served three years and eight months of the ten-year sentence and was paroled (Ex. A 94, pp. 2 & 10).

12 The respondent was incarcerated from July 1, 1959 until October 21, 1961, continuing on probation for an additional period of three years.

We have fully considered the humanitarian aspects of the respondent's case. It is difficult if not impossible to define any standard for judging discretionary matters of the nature presented by this case. We have in the past exercised the discretion given the Attorney General by the immigration laws to waive criminal grounds of exclusion where the record affirmatively establishes: (1) long residence in the United States; (2) close family ties in the United States who would be adversely affected by the denial of discretionary relief; (3) the crime or crimes committed by the alien are remote from the date of the application for discretionary relief, and most important of all (4) there is an affirmative showing of genuine reformation over a reasonable period of time.

We find no substantial evidence in this record which would support a claim of genuine reformation and rehabilitation on the part of the respondent. He refused to answer questions concerning his reputation in the City of Chicago (R-pp. 338-341). He refused to comply with the special inquiry officer's repeated directives to furnish a net-worth statement and other information concerning the source of his income which according to his income tax returns amounted to more than $100,000 during the years of 1959 and 1962 (Exs. A 80, A 85 & A 86) (R-pp. 320, 349, 350, 378). He refused to answer questions as to whether he had ever engaged in bootlegging or extortion; whether he had ever been associated with a group engaged in illegal activities; and whether he had ever received any monetary payments from such a group or from such activities (R-pp. 291-292).

The respondent's refusal to answer such questions leaves only one inference, namely, that his illegal activities are of a continuing nature. He has submitted no affirmative evidence of a genuine reformation and rehabilitation although the burden is upon him to support his application for discretionary relief with such evidence. Under the circumstances, we have no other alternative but to dismiss the appeal. An appropriate order will be entered.

ORDER: The order entered by the special inquiry officer denying relief under sections 249, 212 (h) and 243 (h) of the Immigration and Nationality Act, as amended, is hereby affirmed.

It is further directed that the appeal be and the same is hereby dismissed.