MATTER OF JANUS AND JANEK
A-14813095-6 A-14805412
Decided by Board July 25, 1968
July 25, 1968
Interim Decision #1900
In Deportation Proceedings
(2) Applications for withholding of deportation under
(3) The legal posture of an applicant for conditional entry under
CHARGES:
Order: (All)—Act of 1952—
ON BEHALF OF RESPONDENTS: Charles Sternberg, Esquire, International Rescue Committee, 386 Park Avenue South, New York, New York 100161
ON BEHALF OF SERVICE: Irving A. Appleman, Appellate Trial Attorney
Finding all three respondents deportable as charged;
Denying the application of respondent (1) for adjustment under Section 245 upon the ground that he is statutorily ineligible therefor;
Denying the application of respondent (2) for adjustment under Section 245 as a matter of discretion;
Granting voluntary departure to all, with the provision that if they do not depart when and as required, each will be ordered deported, respondents (1) and (2), who made no designation, to Czechoslovakia, respondent (3) to Sweden, the country of designation, with provision that if Sweden does not accept him, that he also be ordered deported to Czechoslovakia;
Denying to all a withholding of deportation to Czechoslovakia under
I
We deal first with the case of Frantisek Janus, in which our disposition differs from that of the other two cases. Frantisek is a 42-year-old married male alien, native and citizen of Czechoslovakia, whose only entry to the United States was on July 7, 1966, as a nonimmigrant visitor for pleasure; his authorized stay expired on August 31, 1966 and he remained beyond that date without authority. He concedes that he is deportable as charged. At the deportation hearing held on October 26, 1966, he learned that it was possible to apply for adjustment to permanent resident status in the United States (see Tr. p. 6J) and the hearing was adjourned to permit him and Jaroslav Janus, who is his brother, to prepare and present such applications, based on petitions for fifth preference quota status to be filed by one of their two American citizen brothers. The petitions were filed and were
The special inquiry officer, stating that Frantisek‘s application for adjustment had not been completely processed because of the decision the special inquiry officer had decided to make, assumed Frantisek to be statutorily eligible. The application and the record do not disclose any basis of ineligibility. The special inquiry officer, in considering the discretionary factor, referred to testimony by this respondent that when he applied for his visa he was seriously considering remaining here permanently, a fact which he did not tell the Consul for fear that he would not be able to come to the United States. It was respondent‘s further testimony that although he then wished to stay here permanently, he did not make the final decision to do so until after his arrival in the United States. On this basis, the special inquiry officer decided that respondent was not a bona fide nonimmigrant at the time of entry, and, citing Matter of Ortiz-Prieto, 11 I. & N. Dec. 317, stated that there were no equities in the case which indicated that the results of the application should be other than adverse, as in the cited case.
We do not believe that a denial of adjustment is warranted. Here, as in Ortiz-Prieto, a favorable factor is that respondent‘s entry on a nonimmigrant visa was not made to bypass the normal visa issuing processes. In this case, however, it was the special inquiry officer himself, three and a half months after their entry, who first made the Janus brothers aware that it was possible to apply for adjustment, and that their citizen brothers could file petitions to secure quota preferences for them. Neither this respondent nor his brother began to work in this country until after the deportation proceedings were instituted. Respondent has close family here (his two citizen brothers); his wife, who remained in Czechoslovakia, has not made any objection to the application for adjustment. Respondent, who is clearly eligible for visa issuance and has the requisite quota availability, cannot take advantage of these factors anywhere but in the United States. He has no foreign country to which he can go to apply for a visa; he is understandably unwilling to return to Czechoslovakia, where he has been convicted, in absentia, of “Defection from the Republic“, sentenced to a year‘s imprisonment, and has already had all of his property confiscated. Respondent has been working steadily since he took his first job in the United States and has been sending money to Czechoslovakia for the support of his wife and children; he has no criminal record other than the above mentioned conviction.
II
Vladimir Janek, who has no family here, and no quota availability, made no application for adjustment. He was a voluntary member of the Communist Party who started doubting its goals in 1957, after the Hungarian Revolution, and who, by 1963, considered himself its enemy and had started thinking about ways to escape from Communist Czechoslovakia. He has asked for political asylum here as a defector.
Jaroslav Janus made application under
Both of these respondents have applied for withholding of deportation to Czechoslovakia under
In Jaroslav Janus’ case, the court sentenced him to a year‘s imprisonment and ordered all of his property confiscated. His uncontradicted testimony is that not only were all of his personal effects taken, along with the automobile given jointly to him and his brother Frantisek by their two United States citizen brothers, but half of the property he owned is common with his wife as well (Tr. p. 49J). He and she, among other things, owned a 50% interest in their family home; the government did not sell or confiscate the home, but instead made his wife pay 15,000 crowns for respondent‘s share. (The special inquiry officer stated, at page 17, of the Janek record, that as of November 1, 1965, the exchange rate for the Czechoslovak crown was $.14 US. Thus, as part of the confiscation Jaroslav‘s wife paid $2,100 to the Czech Government.) Frantisek Janus was also sentenced to a year‘s imprisonment and to confiscation of his property. The record of his conviction characterized his crime as harmful to society because, among other things, he had denigrated the good name of the Czechoslovak Republic (Ex. 11J, p. 2). It may be assumed that the same characterization was made of Jaroslav Janus’ acts.
Vladimir Janek was sentenced to eight months’ imprisonment, with no confiscation of property. The record of conviction shows that Janek‘s wife testified that after he had advised her by letter that he intended to remain in the United States, he began to write letters in which he expressed homesickness, from which she assumed that he would undoubtedly wish to return to Czechoslovakia. (Janek testified that this was a fabrication on his wife‘s part, Tr. p. 78K). From this, and after a review of his background, the Court believed “that the defendant committed a criminal act obviously at the instigation of some other persons and without a thorough deliberation of his action” (Ex. 3K, bottom of p. 3). The Court then specifically stated that it had set the sentence at the lowest level of the legal schedule so that it would offer the defendant an opportunity to return to Czechoslovakia. Janek and his witnesses all believed that this attempt to get him back was to counteract the harmful effect of his, and other people‘s defections, but that once he was back he would be subject to considerably harsher treatment.
Both Janek and Jaroslav Janus believe that if they were to return, more would await them than the sentences now in effect. Each was a member of the Communist Party and testified that this fact alone
Respondent Janek cited additional reason for fearing dire consequences. Shortly after his arrival here, he gave a four-hour interview to the Federal Bureau of Investigation, in which he discussed conditions in Communist Czechoslovakia as they actually were. He was also interviewed on the same subject for Radio Free Europe, and later by the Czech language press in the United States. Exhibits 10K is the front page of one such newspaper, containing the story of his departure and conviction, and setting forth prominently the fact that immediately upon his leaving the Czech tourist group with which he came here, he contacted the newspaper and gave it information about the actual state of affairs in Czechoslovakia. We have little doubt that at least some, if not all, of these facts are known to the Czech Government.
Janek testified that he vocally differed with and criticized communist policy for at least ten years. His first disenchantment was about the Hungarian Revolution. He was then at officers’ school, scheduled to become an officer in the army. He stated that he spoke out critically about those events and was dismissed from the school, two or three months before the completion of his course (Tr. p. 12K). He stated that when he first joined the Party, he had believed that it really was working for the good of all, but:
. . . gradually I came to the conclusion that everything the party stands for is illogical and unacceptable for me. Gradually I saw for myself that the words, that the leaders of the Communist State used, when they stated that they were working for the benefit of the people and for the country, were not based on any truth—that they were all lies—and that those leaders were committing crimes against the nation. When I found this out I spoke against it at the meetings of the Party and of the Labor Union about those facts. However, I found out that any position which I took against these facts were completely in vain and to no avail. Moreover, I have been attacked on several occasions and that I was a reactionary and that I was speaking in the spirit of the western ideology. Later I became discriminated against in my work and people who once used to be my friends began to ostracize me. I became so disgusted that from 1963 I refused to take any part in any activity in public. (Tr. p. 13K.)
In a sworn statement made to a Service investigator, Janek named at least five offices he had held in communist organizations before
Testifying further about his reasons for becoming anti-Communist, he said it became obvious to him that many crimes had been committed for which the perpetrators had never been brought to justice—many, many people executed and afterwards “rehabilitated“, but that nothing had been done about these executions, it was just “as if somebody had shot a rabbit.” Since he was in a lower echelon of the Party, he could stand up and speak out against these things, but his criticism was in vain. As he put it: “It was just like throwing peas on the wall, they bounced back and nothing happened” (Tr. p. 78K).
He decided in 1963 that he would have to leave Czechoslovakia. He twice tried to get permission to leave, once to West Germany, and once to Austria, but was refused each time (Tr. p. 15K). It was then that he decided to give up his skilled and well-paying job as a chemical worker (he testified that he had earned 2,800 to 3,000 crowns a month—$392 to $420—a very high income by Czech standards—Tr. p. 17) and to go to work as a miner.
I went there—also the work is extremely difficult and most of the workers there are sent for punishment—I just wanted to disappear from their eyes, meaning the Party. I wanted to disappear from the eyes of the people who knew what my convictions were because at that time I planned already for a year that I would take a trip abroad to the west Because all travel abroad has to be approved by the communist party and by the worker‘s committee I would never stand a chance that I could get such approval to travel west. At my new place of work I received approval where they did not know me. (Tr. p. 74K.)
Much of this material about Janek has been disregarded or glossed over by the special inquiry officer, with the statement that Janek was not subjected to persecution while in Czechoslovakia, and that generally speaking overt acts in the United States manifesting opposition to the country of possible deportation do not support an application under
While it is true that we have not regarded with favor an applicant whose first indication of opposition to the political regime of the country he left is made after arrival in the United States, that is not what confronts us here. Janek‘s uncontroverted testimony is that he
It cannot be said, across the board, that every statute imposing criminal sanctions for unauthorized travel outside of a particular country must be devoid of political implications. That will depend upon the provisions of the particular statute and the manner in which it is administered. The one under which respondent was convicted is, by its own denomination aimed at “Defection from the Republic.” The act of defection normally has political, rather than criminal, connotations. Also, a conviction that concerns itself with the fact that the defendant comes from a worker‘s family, that by his failure to return he took advantage of the confidence shown in him, and that he did not act as a good citizen when at the first available opportunity he defected from his native country and remained abroad (Ex. 3K), does not, it appears to us, have travel control as its prime concern.
On evaluation of all the material and testimony presented by Janek and on his behalf, we conclude that he has so strongly shown the likelihood of persecution for his opposition to the political system in Czechoslovakia that it cannot be disregarded. We are mindful, too, of the letter in Janek‘s file (Ex. 15K) from the State Department to the District Director at New York, received by him on September 12, 1967, in which it is stated:
On the basis of the information contained in Mr. Janek‘s file, the Department does not favor his deportation to Czechoslovakia * * *.
We shall grant to Janek the requested withholding of deportation under
Jaroslav Janus left Czechoslovakia because of his disagreement with the Communist system (Tr. p. 29; p. 13; p. 25J, etc.); he left with the intention of never returning (Ex. 9AJ, p. 6). Nothing in the files indicates anything other than this political motivation for his renunciation of the country where he was born and lived for 47 years. He is genuinely afraid of reprisals by the Czech Government if he should be forced to return, not simply because he has remained away longer than authorized, but because he, a member of the Communist Party in good standing, entrusted with the mission of propagandizing for the Communist government in this country, showed his true political sentiments by defecting. The punishment imposed upon him by the Czech court under Article 109/2, including not only the sentence to imprisonment but, on his very first offense of any kind, the confiscation of all of his property; the severity with which that confiscation was carried out, including the enforced contribution by his wife of $2,100 to cover the value of his interest in their home; the concern, in the record of his brother‘s conviction, with the defection from the Republic, and with the denigration of the good name of Czechoslovak Republic (Ex. 11J); all of these factors persuade us that what would await Jaroslav Janus upon his return to Czechoslovakia would not be punishment for violation of an ordinary criminal statute (the prosecution has already taken place), but persecution for the political offense he has committed against the State. We hold that respondent has satisfied the requirements of
III
Counsel and the voluntary agencies that have interested themselves in these cases contend that the special inquiry officers and the Board continue to apply a far too stringent standard and impose a far too heavy burden on the alien in these cases, ignoring the change made in the law by the 1965 amendment, and ignoring, too, the equating by that act of the standard necessary for a
The Board has recognized the changes made in
IV
ORDER: It is ordered that the decision of the special inquiry officer heretofore entered be and the same is hereby set aside and that the following order is entered in lieu thereof:
ORDER: Conditioned upon the usual processing, including an investigation by the Immigration Service and provided nothing adverse to the respondent is developed in such processing and investigation, it is ordered that respondent Frantisek Janus is granted adjustment to permanent resident status under the provisions of
It is further ordered that respondent Jaroslav Janus is denied adjustment of status under
It is further ordered that respondent Jaroslav Janus be granted voluntary departure from the United States, without expense to the Government, within such time and under such conditions as may be set therefore; and
It is further ordered that if respondent Jaroslav Janus should fail to depart when and as required, the privilege of voluntary departure shall be withdrawn without further notice or proceedings, and the following order shall thereupon become immediately effective; respondent Jaroslav Janus shall be deported from the United States to Czechoslovakia upon the charge contained in the order to show cause; and
It is further ordered that respondent Vladimir Janek be granted voluntary departure from the United States, without expense to the Government, within such time and under such conditions as may be set therefore; and
It is further ordered that if respondent Vladimir Janek should fail to depart when and as required, the privilege of voluntary departure shall be withdrawn without further notice or proceedings, and the following order shall thereupon become immediately effective; respondent Vladimir Janek shall be deported from the United States to Sweden upon the charge contained in the order to show cause; provided, however, that if Sweden advises the Attorney General that it is unwilling to accept respondent Janek into its territory, or fails to advise the Attorney General within three months following original inquiry
It is further ordered that the deportation of respondents Jaroslav Janus and Vladimir Janek to Czechoslovakia be withheld, pursuant to the provisions of