limited to trips of considerable distance or duration. Siminoff v. Esperdy, 267 F. 2d 705 (2d Cir. 1959).

4. Refusal to cooperate in effecting deportation (242(e))

Deportees who are aggravated violators (subversives, criminals, etc.) may be prosecuted for willful failure to depart within six months or willful failure or refusal to apply for travel documents. Prosecutions under this section have encountered difficulties. Willful failure to depart can be established only if it is shown that a country was willing to receive the deportee. Willful failure to apply for travel documents is established only if the failure was for a bad purpose or nonjustifiable excuse. Heikkinen v. United States, 355 U.S. 273 (1958). In a prosecution under this section the defendant can contest the validity of the deportation order, through an appropriate motion to the trial court. United States v. Heikkinen, 221 F. 2d 890 (7th Cir. 1955), 240 F. 2d 94 (7th Cir. 1957), reversed on other grounds, 355 U.S. 273 (1958). (See also section 106 (a) (6), Immigration and Nationality Act, as amended, 8 U.S.C. 1105a(a)(6).)

SECTION 243 (a). PLACE OF DEPORTATION

The courts have ruled that the Act requires the Attorney General to ask the country of destination whether it will accept the deportees. This is mandatory even though the country in question is not recognized by our Government and even if our Government believes the inquiry will be futile. Man v. Wurff, 264 F. 2d 926 (2d Cir. 1959). Difficulties have surrounded efforts to deport aliens to countries with which we have no diplomatic relations. Rogers v. Lu, 262 F. 2d 471 (D.C. Cir. 1958). Such was the case with the People's Republic of China; however, this problem would seem to have been eliminated with the regularization of diplomatic relations on January 1, 1979. In view of the Taiwan Relations Act of 1979, 22 U.S.C. 3301, it would appear that an alien could still designate Taiwan as the country of deportation; however, this has not yet been ruled on by the courts.

There was debate at one time whether "country" of deportation had only a political connotation, but the authorities now agree that "country" is an ambiguous term and in different contexts may be either a political or a geographical designation. In regard to step two of the statutory plan deportation to the country of nationality-"country" has been found to have a political orientation relating only to a government recognized by the United States. Shih v. Kennedy, Fang v. Kennedy, and Fook v. Esperdy, supra. In other aspects of the statutory plan, "country" is a geographical designation, equivalent to "place". This has made possible deportations to places like Formosa (Ying v. Kennedy, 292 F. 2d 740 (D.C. Cir. 1961), cert. denied, 368 U.S. 914 (1961); Liu v. Holston, 297 F. 2d 740 (9th Cir. 1961)), and Hong Kong (Chuen v. Esperdy, 285 F. 2d 353 (2d Cir. 1960); Rogers v. Sheng, 280 F. 2d 663 (D.C. Cir. 1960), cert. denied, 364 U.S. 891 (1960); Wang v. Pilliod, 285 F. 2d 517 (7th Cir. 1960).)

Unsuccessful efforts have been made to challenge the constitutionality of section 243 (a) (7), authorizing deportation to any country that would receive the deportee. Marcello v. Kennedy, 194 F.Supp. 748 (D.C. Cir. 1961), aff'd on other grounds, 312 F.2d 874, cert. denied, 373 U.S. 933 (1963).

SECTION 243 (f). PERSONAL CARE FOR DEPORTEES WITH
PHYSICAL OR MENTAL AFFLICTIONS

Although this section has not been directly in issue, a related question has concerned claims by deportees that they were too ill or incapacitated to travel. The courts have refused to overturn the exercise of administrative discretion in determining whether and in what manner deportation should proceed in such cases. Polites v. Sahli, 302 F.2d 449 (6th Cir. 1962), cert. denied, 371 U.S. 916 (1962); Dentico v. INS, 303 F.2d 137 (2d Cir. 1962).

PERSECUTION CLAIMS (SEC. 243 (h))

The amendment of this section by section 11(f) of the Act of October 3, 1965, 79 Stat. 918, changed the reference to "physical persecution" to read "persecution on account of race, religion, or political opinion." The Refugee Act of 1980, Pub. L. No. 96-212, Sec. 203 (e), 94 Stat. 107 (1980), further amended this section to read that the Attorney General shall not deport any alien whose "life or freedom would be threatened . . on account of race, religion, nationality. in a particular social group, or political opinion." However, no decisions arising under this new language have been digested here.

It has been the position of the Department of Justice that the Attorney General's determinations in this area are entirely discretionary and subject at most to a very narrowly circumscribed review by the courts. Almost invariably the courts have adopted this formulation. Blazina v. Bouchard, 286 F.2d 507 (3d Cir. 1961), cert. denied, 366 U.S. 950 (1961); Batistic v. Pilliod, 286 F.2d 268 (7th Cir. 1961); Dolenz v. Shaughnessy, 206 F.2d 392 (2d Cir. 1953). Although no effort will be made to enumerate all reported cases, the major channels of decisions are charted as follows:

1. Claim of improper basis for decision

In effect, this is a claim that the Attorney General has misinterpreted the statute. Although one court declared that economic deprivation can amount to physical persecution, (Duant v. Hurney, 297 F.2d 744 (3d Cir. 1961)), other courts said that this is so only if all economic opportunities are denied. Diminich v. Esperdy, 299 F.2d 244 (2d Cir. 1961), cert. denied, 369 U.S. 844 (1962); Soric v. Flagg, 303 F.2d 289 (7th Cir. 1962). Moreover, it is clear that a deportee cannot successfully resist deportation to a nonpersecuting country merely because he would be a refugee in that country, sharing economic difficulties and physical hardships with many others. Fu v. INS, 386 F.2d 750 (2d Cir. 1967), cert. denied, 390 U.S. 1003 (11968)

Generally, the statute relates to persecution by the established government unless it does not have effective control of its terrtory.. See Lavdas v. Holland, 235 F.2d 955 (3d Cir. 1956). Thus, the Attorney General did not abuse his discretion in denying withholding of deportation where the government from which asylum was originally sought had been removed from power and the aliens failed to show a clear probability of persecution under the new government. Cisternas-Estay v. INS, 531 F.2d 155 (3d Cir. 1976), cert. denied, 429 U.S. 853 (1976). Similarly, the possibility that the deportee's country might some day be overrun by Communists was deemed insubstantial. Cakmar v. Hoy, 265 F.2d 59 (9th Cir. 1959).

The possibility of criminal prosecution, even for deserting the armed forces or a vessel, was deemed not to constitute persecution. Blazina v. Bouchard, supra; Diminich v. Esperdy, supra; Kalatjis v. Rosenberg, 305 F.2d 249 (9th Cir. 1962); Wang v. Pilliod, 285 F.2d 517 (7th Cir. 1960). Persecution cannot be inferred from reasonable police restrictions. De Lucia v. INS, 370 F.2d 305 (7th Cir. 1966), cert. denied, 386 U.S. 912 (1967). However, one court suggested that the prospect of prolonged imprisonment for violating exit restrictions might be considered persecution. Sovich v. Esperdy, 319 F.2d 21 (2d Cir. 1963).

In Coriolan v. INS, 559 F.2d 993 (5th Cir. 1977), the court stated that the Attorney General's discretion under this section, to withhold the deportation of any alien to any country in which he or she would be subject to persecution on account of race, religion or political opinion, must be measured in light of the United Nations Protocol Relating to the Status of Refugees, to which the United States became a signatory in 1969. See Matter of Dunar, 14 I&N Dec. 310 (1973), for a full discussion of the relationship between Section 243(a) and the Protocol.

2. Claim of unfairness in procedure

Procedures for the consideration of persecution claims have been set up in the regulations and amended from time to time. The courts. have repeatedly held that since determinations on applications for withholding of deportation are discretionary in nature, involving essentially political conclusions, due process does not require a full hearing. Namkung v. Boyd, 226 F.2d 385 (9th Cir. 1955); Dolenz v. Shaughnessy, 206 F.2d 392 (2d Cir. 1953). (See Pierre v. United States, 547 F.2d 1281 (5th Cir. 1977), rehearing denied, 551 F.2d 863 (5th Cir. 1977), cert. granted, 434 U.S. 962 (1977), on remand, 570 F.2d 95 (5th Cir. 1978), and Sannon v. United States 427 F.Supp. 1270 (S.D. Fla. 1977), vacated and remanded, 566 F.2d 104 (5th Cir. 1977), on remand, 460 F.Supp. 458) S.D. Fla. 1978), for comparable holdings with respect to the nature of the disposition of asylum claims in exclusion proceedings.) 1

The procedural requirements of the Administrative Procedure Act have been found inapplicable. Cakmar v. Hoy, 265 F.2d 59 (9th Cir. 1959); Hao v. Barber, F.2d 821 (9th Cir. 1955). Due process in this connection has been regarded as requiring only that the applicant be given a reasonable opportunity to present his proof and to have it considered. Namkung v. Boyd, supra; Dolenz v. Shaughnessy, supra. The use of confidential information in evaluating the application has been approved. Milutin v. Bouchard, 299 F.2d 50 (3d Cir. 1962), vacated and remanded for consideration of application under revised regulations, 370 U.S. 292 (1962). Contra, Radic v. Fullilove, 198 F.Supp. 162 (N.D. Cal. 1961). The courts have endorsed the practice of incorporating in the record a letter from the Department of State discussing the likelihood of persecution in the particular case and

1 Despite this, INS, in a motion suggesting mootness, and while the Pierre and Sannon cases were pending in the Supreme Court, represented that the Service intended to promulgate regulations providing full evidentiary hearing before an immigration judge on asylum applications in the course of exclusion hearings. Under the regulations ultimately promulgated in 43 F.R. 40802 (1978) eflective May 10, 1979, asylum claims filed in exclusion proceedings were to be treated the same as those filed in deportation proceedings. In both cases, there would be a full evidentiary hearing on the asylum claim regardless of whether or not, in the case of deportation proceedings, the claim was accompanied by a motion for withholding of deportation under section 243 (h).

have rejected attempts to cross-examine or present interrogatories to the author of the State Department's letter. Asghari v. INS, 396 F.2d 391 (9th Cir. 1968). However, in Zamora v. IÑS, 534 F.2d 1055 (2d Cir. 1976), the court qualified this practice by saying that although State Department opinions and recommendations are admissible, such recommendations must not of themselves determine the outcome of an individual claim.

3. Claim of arbitrariness

A frequent basis for challenge is that the Attorney General's rejection of the presecution claim was arbitrary. In effect, such contentions usually seek to persuade the court to substitute its discretion for that of the Attorney General. Therefore, they are rarely successful. Shukani v. INS, 435 F.2d 1378 (8th Cir. 1971), cert. denied, 430 U.S. 920 (1971); Blazina v. Bouchard, 286 F.2d 507 (3d Cir. 1961), cert. denied, 366 U.S. 950 (1961); Batistic v. Pilliod, 286 F. 2d 268 (7th Cir. 1961). Since the determination is discretionary and entrusted to the "opinion" of the Attorney General, there is no requirement that there be an adversary hearing or that the Attorney General present opposing proof, or that his decision be supported by substantial evidence. Wang v. Pilliod, 285 F.2d 517 (7th Cir. 1960). If the applicant's evidence has been received and considered, the courts ordinarily have decided to intervene because the Attorney General has not believed him or has failed to evaluate the evidence as he does. Batistic v. Pilliod, supra; Balzina v. Bouchard, supra; Liu v. Holton, 297 F.2d 740 (9th Cir. 1961).

However, the court did intervene in the case of two Haitian nationals who had been denied both asylum and stays of deportation but who now proffered additional material evidence, in the form of a newly published Amnesty International Report on conditions in Haiti; the court remanded the case for reconsideration in light of the report. Coriolan v. INS, 559 F.2d 993 (5th Cir. 1977). Yet, in Fleurinor v. INS, 585 F. 2d 129 (5th Cir. 1978), the same court refused to remand another Haitian persecution case for reconsideration in light of the same Amnesty International Report because the alien had failed to show either that the Report was material to his particular case or that there were reasonable grounds for failure to adduce the Report before the INS. In Fleurinor, the Report had been published a full year before the Board of Immigration Appeals rendered a decision but the alien had made no attempt to reopen the proceedings before INS. SECTION 244. SUSPENSION OF DEPORTATION

This was one of the earliest forms of amelioration authorized by Congress, and in the past its denial led to much litigation. Despite the introduction of other remedies, such as adjustment of status, the volume of suspension applications and the resulting litigation has disminished only modestly.

Since this is a discretionary determination, the courts have adhered to the limited patterns of review described in section 243 (h). Thus, review may be available to determine whether the Attorney General correctly construed the standards of eligibility prescribed by Congress (Dessalernos v. Savoretti, 356 U.S. 269 (1958); Ceballos v. Shaughnessy, 352 U.S. 599 (1957)), whether the procedure was essentially fair (Jay

v. Boyd, 351 U.S. 345 (1956); Accardi v. Shaughnessy, 347 U.S. 260 (1954)); and whether the Attorney General abused his discretion (Kimm v. Rosenberg, 363 U.S. 405 (1960); Hintopoulos v. Shaughnessy, 353 U.S. 72 (1957).)

In relation to the interpretation of eligibility requirements, much of the litigation has concerned the definition of good moral character, discussed under section 191. Some other disputed facets probably have been eliminated by the 1962 amendment and simplification of this statute. One area of uncertainty that may remain concerns the correct interpretation of the term "such period" in section 244 (a) (2), as amended, which prescribes a ten-year period of good behavior for certain classes of aggravated violators following the commission of an act or the assumption of a status constituting "a ground for deportation." One court has ruled that for a subversive the ten-year period commences after termination of the subversive activity or association. Williams v. Sahli, 271 F. 2d 228 (6th Cir. 1959), cert. denied, 361 U.S. 966 (1960). However, another court has held that where deportation was ordered for registration violation, and the alien was also deportable for a previous overstay, the ten-year period could be measured from the earlier violation. Fong v. INS, 308 F.2d 191 (9th Cir. 1962). However, the rationale of the Fong decision was rejected by another court in Patsis v. INS, 337 F. 2d 733 (8th Cir. 1964), cert. denied, 380 U.S. 952 (1965), which held that the ten-year period was measured from the later violation.

The Court of Appeals for the Third Circuit has stated specifically that when an alien seeks suspension of deportation, the fact that she may have been a burden on the public purse is not relevant to the determination of extreme hardship. So Chun Chung v. INS, 602 F. 2d 608 (3d Cir. 1979). Yet the Court of Appeals for the Ninth Circuit has held that even where it was conceded that deportation would cause extreme hardship, the immigration judge did not abuse his discretion when he denied suspension of deportation to a mentally incompetent alien who lacked close family ties and support, was completely dependent upon welfare assistance which was anticipated to continue indefinitely, and who would probably require further hospitalization. Nee Hao Wong v. INS, 550 F. 2d 521 (9th Cir. 1977).

In relation to the fairness of procedure, the Supreme Court has held that the Attorney General must adhere to the procedure prescribed by his published regulations. Accardi v. Shaughnessy, 347 U.S. 260 (1954). Thus, the Attorney General was deemed to be precluded from interferring with the independent exercise of discretion by the Board of Immigration Appeals. Cf. Shaughnessy v. Accardi, 349 U.S. 280 (1955). In another holding, the Supreme Court upheld the use of confidential information in passing on applications for suspension of deportation. Jay v. Boyd, 351 U.S. 345 (1956).

In relation to attempts to review the exercise of discretion the courts have pointed out that the burden is on the applicant for suspension to show that he is worthy of relief. Therefore, if he does not make full disclosure of his background and activities, even on a claim of Fifth-Amendment privilege, the application for relief is properly denied. Kimm v. Rosenberg, 363 U.S. 405 (1960). Moreover, the courts emphasize that even if the applicant satisfies the preliminary qualifications, his application cannot succeed unless the Attorney General,