Kovac v. Immigration and Naturalization Service

• Decision Date: 29 January 1969
• Docket Number: No. 21913.,21913.
• Parties: Djordje KOVAC, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, John P. Boyd, District Director, Seattle, Washington, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

407 F.2d 102 (1969)

Djordje KOVAC, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, John P. Boyd, District Director, Seattle, Washington, Respondent.

No. 21913.

United States Court of Appeals Ninth Circuit.

January 29, 1969.

Jack E. Tanner (argued), Tacoma, Wash., for petitioner.

Albert E. Stephan (argued), Asst. U. S. Atty., Eugene Cushing, U. S. Atty., John P. Boyd, Dist. Director, I. N. S., Seattle, Washington, Cecil F. Poole, U. S. Atty., Stephen M. Suffin, I. N. S., San Francisco, Cal., for respondent.

Before HAMLEY, JERTBERG, and BROWNING, Circuit Judges.

BROWNING, Circuit Judge:

This is a petition for review of a final order of deportation. 8 U.S.C. § 1105a (1964). We remand for further proceedings.

Petitioner, a native and citizen of Yugoslavia, entered the United States on February 13, 1967, as a non-immigrant crewman on shore leave from a Yugoslavian vessel. 8 U.S.C. §§ 1101(a) (15) (D) and 1282(a) (1) (1964). His ship departed on February 21, but petitioner remained. He concedes that he is deportable. 8 U.S.C. § 1251(a) (2) (1964).

At his deportation hearing, held on March 6, 1967, petitioner expressed a desire to apply for a temporary stay of deportation under section 243(h) of the Immigration and Nationality Act, 8 U.S.C. § 1253(h), which, as amended October 3, 1965, Pub.L. 89-236, § 11(f), 79 Stat. 918, authorizes the Attorney General to withhold deportation to any country in which "the alien would be subject to persecution on account of race, religion, or political opinion."

The deportation hearing was brief, consisting almost entirely of an examination of petitioner by government counsel through an interpreter — petitioner did not speak English and was not represented by counsel. At the conclusion of the hearing the special inquiry officer dictated an opinion denying relief under section 243(h) (although no formal application had been filed) and ordering petitioner deported. The special inquiry officer denied petitioner's motion to reopen and reconsider. On appeal the Board of Immigration Appeals affirmed the denial of the motion and denied petitioner's similar motion to the Board.

The special inquiry officer rested his decision upon his understanding that petitioner's claim to persecution was "based solely on the fact that he could be liable to prosecution for violations of the Yugoslavian law for deserting his ship." However, the documents subsequently filed by petitioner with the special inquiry officer and the Board made it clear that this was not the substance of petitioner's claim.

Petitioner's claim, as set out in his notice of appeal and motions for reopening and reconsideration, rested upon the following allegations. Petitioner is a Yugoslavian citizen, but was discriminated against because of his Hungarian extraction. He was trained as a chef, and, after completing trade school, was employed as a chef in various hotels and inns. Following the Hungarian revolution in 1957, petitioner was approached by officials of the Yugoslavian secret police and asked to mingle among the Hungarian refugees and inform the police of the activities of the Hungarian underground. He refused to do so. Because of this refusal the Yugoslavian secret police contacted his employers and caused him to lose several jobs as a chef, and to be turned away when seeking employment while others less qualified were hired. It became impossible for him to obtain employment in the occupation for which he was trained. Eventually, he secured a job as a cook on a merchant vessel because the growing Yugoslavian merchant marine was unable to secure qualified personnel. On an earlier voyage he left his ship in Houston, Texas, and inquired of the FBI as to how he might seek political asylum; he was told to conceal himself until his vessel departed and then ask asylum at the local office of the Immigration and Naturalization Service. Having now done so, if he were returned to Yugoslavia he would be faced with "fizical sic abuse as well as long confinement since my action would be considered open defiance and denunciation of Communism. They would make it impossible for the rest of my life to earn a decent living to support my family."

In affirming the denial of petitioner's motion to reopen, the Board of Immigration Appeals applied legal standards which reflect, in our opinion, an erroneous interpretation of section 243(h). Whatever the scope of review of factual aspects of decisions under this section, it is now well settled that the "standards employed by the Attorney General in exercising his discretion under § 243(h) are subject to judicial review." Sovich v. Esperdy, 319 F.2d 21, 26 (2d Cir. 1963).¹ An administrative decision based upon erroneous legal standards cannot stand. SEC v. Chenery Corp., 318 U.S. 80, 94, 63 S.Ct. 454, 87 L.Ed. 626 (1943). Three erroneous legal standards were applied by the Board in this case.

1. The Board appears to have equated petitioner's fear of punishment for having sought political asylum in this country with a fear of punishment for having deserted his ship. The critical difference between the two under section 243(h) is spelled out in Sovich v. Esperdy, supra, 319 F.2d at 28: Congress did not intend to make the United States a refuge for common criminals, but it did intend to grant asylum to those who would, if returned, be punished criminally for violating a politically motivated prohibition against defection from a police state. The Board itself has recently recognized that relief may be afforded under section 243(h) if an alien can show "that his departure was politically motivated and that any consequence he faces on return are political in nature," even though they take the form of criminal penalties for flight. Matter of Janus and Janek, Int. Dec. No. 1900, decided July 25, 1968. Petitioner appears to have been denied the benefit of an evaluation of his allegations against the standard reflected in this more enlightened interpretation of the statute.

2. The Board concluded that if petitioner were returned to Yugoslavia he would not be denied employment but would simply be assigned to ships not destined for this country. The Board rested this conclusion entirely upon its decision in Matter of Banjeglav, 10 I. & N. Dec. 351 (1963), in which another Yugoslavian seaman testified that this would be the consequence of his own conduct. Since the seaman in the latter case did not allege a history of years of racially or politically motivated employment discrimination preceding his defection, the prediction, even if accurate as to him, is wholly inapplicable to petitioner. Under the statute petitioner was entitled to a determination based upon the probability of persecution of himself, not of others. Cf. Cheng Kai Fu v. Immigration & Naturalization Service, 386 F.2d 750, 753 (2d Cir. 1967).²

3. An even more serious problem arises from the significance which the Board attached to its conclusion that some employment opportunity would remain available to petitioner in Yugoslavia. This, the Board said, "would deprive of any validity the possible claim that he would be subjected to economic sanctions so severe as to deprive him of all means of earning a livelihood." The standard here applied by the Board is clearly wrong.

Until 1965, the Attorney General's authority to withhold deportation under section 243(h) was limited to those cases in which the alien could show the probability of "physical persecution." The significance of the adjective is illustrated by the decision in Blazina v. Bouchard, 286 F.2d 507, 511 (3d Cir. 1961.) There, the court held that "before the Attorney General may grant relief under section 243(h) it must be shown to his satisfaction that, if deported, the alien would be subject not only to persecution, but to physical persecution." The latter phrase, the court held, "should be taken to mean confinement, torture, or death inflicted on account of race, religion, or political viewpoint."³ The court concluded that the fact that Blazina "will be `looked down upon' and will encounter some `complications,'" because of his religious beliefs, though "deplorable," was not enough, since it did not constitute "physical" persecution.

In Dunat v. Hurney, supra, 297 F.2d at 753, the same court held that under section 243(h) as it then read, "economic proscription so severe as to deprive a person of all means of earning a livelihood may amount to physical persecution." But mere discrimination in employment was not enough; "denial of all types of employment" was necessary to constitute "physical persecution." Soric v. Flagg, 303 F.2d 289, 290 (7th Cir. 1962).⁴ This is the standard which the Board applied in the present case.

However, section 243(h) was amended in 1965, by the same bill which generally liberalized the Immigration and Nationality Act by abolishing the "national origins" system. The adjective "physical" was deleted, and the language was modified to read, "persecution on account of race, religion, or political opinion."

This amendment followed repeated criticism of the narrowness of the restriction to "physical" persecution,⁵ including a specific reference to rulings that "reducing a workman to the lowest stage of ability to work, and thereby depriving him of opportunity of providing for himself and his family, is not `physical.'" Congressman Feighan, Chairman of the House Committee which later proposed the amendment, and floor manager of the bill, expressed approval of the latter criticism.⁶

On another occasion, Congressman Feighan said of the "physical persecution" requirement that "we should * * * remove from the law this outmoded concept."⁷ In offering the language which was eventually adopted,⁸ Congressman Poff stated: "The clause `physical persecution' is entirely too narrow. It is almost impossible for the alien under an order of deportation to assemble the quantum of evidence necessary to discharge his burden of proof." 111 Cong.Rec., pt....