Matter of Niesel

• Decision Date: 10 August 1962
• Docket Number: Interim Decision Number 1242,A-12281979
• Citation: 10 I&N Dec. 57
• Parties: MATTER OF NIESEL In DEPORTATION Proceedings
• Court: U.S. DOJ Board of Immigration Appeals

10 I&N Dec. 57

MATTER OF NIESEL

In DEPORTATION Proceedings

Interim Decision Number 1242

A-12281979

Board of Immigration Appeals

Decided by Board August 10, 1962

(1) Respondent's request to withhold deportation to a named country under section 243(h) of the Immigration and Nationality Act, following her designation under section 243(a) of the Act of that country as the country to which she prefers to be deported is, in effect, a withdrawal of the designation.

(2) Since the United States does not recognize the East German government, respondent's claim to be a subject, national, or citizen of East Germany does not preclude her deportation to the Federal Republic of Germany (West Germany) within step 3 of section 243(a) of the Act, that being the country in which she was born, the country in which her place of birth is situated at the time she is ordered deported, the country which had sovereignty over her birthplace at the time of her birth, and the country in which she resided prior to entering the country from which she entered the United States.

(3) Step 3 of section 243(a) of the Act does not require that preliminary inquiry be addressed to the country to which respondent is to be deported to ascertain its willingness to accept her (other than perhaps the seventh-listed country, a country which is willing to accept the alien into its territory).

CHARGE:

Order: Act of 1952 — Section 241(a)(2) [8 U.S.C. 1251(a)(2)] — Remained longer than permitted after nonimmigrant admission (temporary visitor).

The special inquiry officer found respondent deportable on the ground stated above and granted her voluntary departure, providing however, that if she failed to depart, she should be deported to West Germany. Respondent applied for a stay of deportation on the ground that she is a national of East Germany and if deported there, would be faced with physical persecution. The special inquiry officer denied her application. Respondent filed this appeal from the denial.

Respondent's case was previously before this Board. On March 13, 1962 the Board entered an order dismissing respondent's appeal from the order of the special inquiry officer finding her deportable upon the ground stated above and granting her voluntary departure. Following the dismissal, respondent applied to the special inquiry officer (in accordance with authority granted to the special inquiry officer in the Board's order dismissing the appeal) for reopening of proceedings so that she could file an application for the withholding of her deportation on the claim of physical persecution under section 243(h) of the Act, 8 U.S.C. 1253(h). At the reopened hearing, the respondent declined to make a designation of the country to which her deportation should be directed whereupon the special inquiry officer specified the Federal Republic of Germany (West Germany) as the place of deportation. Respondent then designated East Germany as the place of deportation and at the same time pursued an application under section 243(h) of the Act to withhold her deportation stating that she would be subject to physical persecution if delivered to the hands of the officials of the East German government. (The East German government is not recognized by the United States.) The special inquiry officer denied the application pointing out that the Service did not contemplate deporting respondent to East Germany, and he refused to permit respondent to submit evidence concerning persecution in East Germany. Counsel contends that respondent cannot be deported...