*1 damages and was offered issue on relevancy predom- pertained in a whose inating degree new issue. The to that is-

trial therefore will limited and extent

sues of the existence injury. indicated, in-

Eichel’s As questions Eichel’s cludes two —whether

n conditionis due acci- to the 1960 at all injuries prior than dent to his rather n so, pre-existing and, illness injury. (cid:127)extent of the added Affirmed as to the determination

negligence; reversed and remanded injury new

.a (cid:127)damages. trial the issues SOVICH, Plaintiff-Appellant,

Stefano ESPERDY, A. Director,

P. District Immi gration Service, and Naturalization Defendant-Appellee.

No. Docket 27808.

United States Appeals Court of Second Circuit.

Argued Jan. 1963. May 15,

Decided *2 deported. hearing, At his

appellant deportability, conceded but was granted, upon request, privilege voluntary Italy. departure U.S.C. *3 1254(e). subsequently ap- it § When peared that would not be ad- Sovieh City, for Lowenstein, York New Edith Italy, however, deporta- mitted to his plaintiff-appellant. Yugoslavia tion to was ordered. 8 U.S.C. Atty., Morgenthau, U. S. M. (Roy Robert 1253(a). Babitt, Sp. U. S. Asst. S.D.N.Y. defendant-appel- September 22, 1959, counsel), applied On Atty., for Sovieh stay to the General for lee. deportation pursuant 243(h), to Section MEDINA, and WATERMAN Before provides: which Judges. MOORE, Circuit “The General is author- any ized to withhold Judge. WATERMAN, Circuit alien within the United to States appeal from an order is an This any country in which his for District Court States the United subject the alien be would to granting York of New District Southern period and for such Director the District a motion necessary time as he deems to' be Service, Immigration and Naturalization for such reason.” below, summary judgment, for defendant Appellant interrogated, was thereafter F.Supp. was com- 558. The action 9, 1959, by Special Inquiry on October or- an administrative to review menced Immigration Officer of the and Natural- appellant’s application under denying der ization Service in accordance with the regulations General then Nationality 8 U.S.C. Act (2) 243.3(b) in effect. C.F.R. stay deportation to of his for pre- Yugoslavia. primary testimony Special In his before the General, whether sented is Inquiry Officer Sovieh told of his life in Regional through delegate, Com- his Yugoslavia, opposition of his to Com- S., correctly inter- of the I. N. religious missioner political munism on ruling statutory preted standard grounds, against of statements the re- subject appellant to would be gime friends, that “physical he made had deported persecution” were he being by Yugoslav questioned officials Yugoslavia. against opposition and warned further finally, regime, and, escape of 1925in the Sovieh was born in Stefano Yugoslavia flight Italy. Ap- from Cres, City of on the Istrian Peninsula. pellant further testified that feared he territory Italy was and now then imprisoned he would his anti- Yugoslavia. 1956, Sovieh, part statements, beliefs and communistic attempts, unsuccessful es- several after illegal departure from the for his try, coun- Yugoslavia Italy, caped and fled to from in the of his return Yu- event refugee received as a was where he goslavia. year. In 1957 he remained one where employment on a Panamanian found 21, 1959, Special he In- On October 12, 1958, and, entered on October vessel quiry recommended denial Officer non-immigrant aas ground United application appellant’s on the 29-day period of shore for a crewman had failed to establish that he Sovieh physical persecution leave. Yugoslavia. deported The officer having January 16,1959, Sovieh re- On stated: longer for a in the United States mained authorized, was not in period than served “Since way why al- mistreated after these cause should to show he order reported leged dele with the or his utterances were gate. Ibid.; authorities, reasonable it seems Blazina v. (3 now F.2d he would not to believe upon persecuted his re- L.Ed.2d therefor very “The nature the decision be true turn. While may * * * illegal foreign- concerning punished what pun- likely parture issue- to do is a physical persecu- into which the courts should not in is not ishment contemplated statute. trude.” Dolenz v. United States ex tion rel. persecu- Shaughnessy, contemplates statute Lines, alleged Chicago offender see & Air tion visited Southern *4 103,, corporal punishment, Corp., v. Waterman 333 form of S.S. U.S. 111, 431, (1948). re- because of 68 S.Ct. 92 L.Ed. 568 torture or death formulating political opinion. decision, ligion Here the In ney the Attor applicant to, may punishment which the General has under access might appar- rely appropriate upon, suffer would fears circumstances he. ently Department crime for a be after State material and intelli conviction recognized gence cognizable under information is unavailable which perse- juridical system. reviewing not a That is Es court. Diminich v. 1961), perdy, 244, (2 cution.” 299 F.2d 246 Cir. 844, 875, 369 U.S. 82 S.Ct. Regional for the Commissioner The (1962); 7 L.Ed.2d 848 United States Region (to whom of the I.N.S. Northeast Shaughnessy, supra; ex rel. Dolenz v. delegated his had Jay Boyd, see v. 76 S.Ct. sys- authority under the administrative (1956). Moreover,, 100 L.Ed. 1242 243.3(b) effect, then in 8 C.F.R. tem power as with the General’s (2) (1958)), concurred in the suspend deportation to 244(a) under Section Special Inquiry Officer, and ordered Act, the favorable exer application under Section Sovich’s cise his discretion to withhold de 243(h) be denied. portation 243(h) under Section “is man Appellant thereupon commenced this ifestly right not a matter of under in the seeks action District Court circumstances, but rather is all cases ap- a declaration that the denial of his grace.” Jay Boyd, a matter of v. 351 plication upon was based an erroneous 924; Chao-Ling at 76 U.S. S.Ct. at interpretation 243(h). of Section Wang Pilliod, (7 v. 285 F.2d 520 1960); Zupicich Esperdy, Cir. v. confronted, outset, We are at the F.Supp. 574, (S.D.N.Y.1962). problem determining scope powers At- review actions of the Nevertheless, under torney General, delegates, or his 243(h) rights, Section not without 243(h) may judicially when, which enforced' Nationality Act of 1952. here, as refusal of the Gen Leong stay challenged In United eral States ex rel. Choy Shaughnessy, declaratory judgment. Moon v. a suit for applicant 218 F.2d (2 procedural Cir. is entitled stated that due- immigration Leong “In process. the field of and nation United States ex rel. Congress ality Choy Shaughnessy, supra. has vested the Moon executive He right application branch Government with wide dis lias have his con cretionary powers, scope ju sidered, Bouchard, supra, and Blazina closely given review is must dicial circumscribed.” this consideration in con language formity pertinent regulations, of Section itself with the by promulgated clear that the makes decision whether an physically persecuted alien would be Milutin v. himself. on U.S. solely 292, to his native 8 L.Ed.2d 501 return rests labelling perse- ‘physical application such actions must The denial of prison cution’. Nor can the three-month considerations have been “actuated may sentence to Blazina be sub- intended not have could jected deserting punishment ex Cf. United make relevant.” ship country illegally Shaughnessy, or his be termed rel. Kaloudis v. ‘physi- persecution. phrase Bou- (2 Blazina v. persecution’ cal should be taken to mean chard, at 511. 286 F.2d confinement, torture or death inflicted on reviewing courts, ac Whether race, religion, account of properly tion under Section Chao-Ling Wang Pilliod, viewpoint.” employed standard consider the Attorney (“A 1960) (7 285 F.2d delegates, as distin prosecution military before a tribunal fairness, guished procedural foreign pursuant convened to laws of yet expressly ruled try state to offenses committed Diminich v. in this circuit. Cf. military member of that forces country, physi- cannot construed to be (1961), Hurney, 297 F.2d 744 Dunat v. cal [Section rehearing (1962) F.2d 753 [297 *5 (h)].”). however, banc], ruled the Third Circuit interpretation proper authority power Persuasive our phrase “physical persecution” in Section interpretations of review administrative “peculiarly law 243(h) may in be drawn cases § independent judicial appropriate as independently which the courts have con certainment.” F.2d at 746. Immigra provisions strued related in the Attorney Gen court there held that the Nationality tion and 1952 or the Act of delegate erroneously inter eral’s had Immigration Act of Under § 1917. stating provision preted that “the 244(a) of the Act of 8 U.S.C. § might applicant be denied fact that 1254(a), [formerly 19(c) Immi of the (cid:127)employment membership for church or gration 155(c)] Act of 8 U.S.C. § Party join for failure Communist Attorney given the tionary power discre * ** import of the within the suspend deportation in ” ‘physical persecution.’ term Ibid. the case of con certain aliens who have tinuously resided the United States express- In other cases the have courts years applica prior for some to their ly approved Attorney con- General’s relief, proved tion for who have their 243(h), thereby struction of in- Section “good during peri moral character” dicating willingness their to entertain od, deportation would, in the “whose upon employed .an attack the standards Attorney General, result g., in its E. administration. Diminich v. extremely exceptional unusual 1961) (2 299 F.2d 246 Cir. ” * * * * * * hardship 1254(a). (cid:127)(“ § U.S.C. simply Diminich’s claims were withholding deporta inAs the case of ‘difficulties’; repugnant (cid:127)of find 243(h), tion under the favorable ex religious § such interference observ- Attorney power ercise of the General’s be, ance and of association to freedom suspend deportation 244(a) is a ‘physical per- ‘difficulties’ are not the grace matter of and rests within the sole secution’ which chose to make discretion of the General or warranting stay the sole factor * * * delegate. Jay Boyd, v. portation ”); Blazina v. Bouch- 919, 100 (1956) ; L.Ed. 1242 S.Ct. ard, (3 1961) Cir. Lehmann, (6 Cavallaro v. 264 F.2d 237 (“At worst, appears [appellant] it 1959). Again, Cir. as under Section upon’ will be ‘looked down en- will * * * may rely ‘complications’. counter some information, confidential unavail repugnance governmental of such a reviewing court, or a policy religious able concepts to our own considering cannot, application suspend however, justify freedom Jay deportation turpitude conviction involved moral Boyd, supra; ineligible ex rel. Mat thus rendered him United States for discre ranga tionary (2 Finding Mackey, subsequent relief. 967, 74 actions gate dele U.S. appellant’s 98 L.Ed. 1109. some indication that prior conviction had not moral involved Nevertheless, repeat- the courts have turpitude, Appeals the Court of for the- edly granted deportable aliens relief cause, District of Columbia remanded the appeared where has directing that the district court “should General has misconstrued the limits * * * determine whether the Attor discretionary power under terms of his ney suspend General had discretion to 244(a) predecessor or its statute. appellant’s deportation, so, and if should Peterson, F.2d 180 McLeod direct him to exercise it.” 227 F.2d at (3 1960), petitioner denied had been 37. And see United ex rel. Zach States suspension 244(a) deportation under § Shaughnessy, arias v. 221 F.2d 578 (2) ground on the not been that he had “present in the United for a con Supreme * * * Court has itself under period years” tinuous five statutory taken to review constructions required Ruling the statute. General in petitioner’s temporary absence from discretionary cases where relief was de was caused an initial “errone Kristensen, nied. See McGrath v. deprivation appellant’s right ous U.S. 95 L.Ed. 173- discretionary relief,” the court held that (1950) (holding that because of errone departure, under those circumstanc statute, ous construction of a related the- es, continuity *6 interrupt did “not of Attorney unjustly refused to presence his in the United within States suspend appellant’s' deportation under § meaning statutory specific 19(c) Immigration 1917); of the Act of provision.” 283 F.2d at 187. court Hintopoulos United States ex rel. v. thereupon appellant’s directed that de Shaughnessy, 77, 72, 353 U.S. 77 S.Ct. portation stayed pending appli be a new 618, (1957) (“[i]t 1 L.Ed.2d 652 is clear Attorney cation to the dis for from applied the record that the Board cretionary relief. In United ex legal deciding the correct standards in Murff, (2 rel. Exarchou v. 265 F.2d 504 petitioners statutory whether prerequisites met the granted this court similar re suspension deporta 19(c) lief under of the § tion.”) Delgadillo And see v. Carmi 1917, holding Act of that the chael, 388, 10, 332 U.S. 68 S.Ct. 92 L.Ed. through General, delegate, his had erro ; (1947) Fong 17 Phelan, Haw Tan v. 333 neously appellant’s application denied 68 (1948). U.S. S.Ct. 92 L.Ed. 433 suspension deportation ground on the appellant prove had failed to his authority Reason as well as sup good statute,” said, character. “The we ports position that the standards em good itself, repu “makes character not a by ployed General in exer it, finding necessary tation for cising his discretion are * * * Service's decision. Thus subject judicial review. The Attor accept cannot the Service’s alternative ney General’s assessment of the condi that, even if conclusion Exarchou truth obtaining any particular tions is, country, fully conduct, described his ‘a married course, political matter, “ques carry not free man is on such a rela equally clear, tion of fact.” It is we be tionship and still be considered one of lieve, that the standards which those ” good 265 character.’ F.2d at judged are conditions to be Con —what Pagano Brownell, In gress expression “physical F.2d 36 meant appellant (D.C.Cir.1955), persecution” question had of law. For —is suspension upon nied courts rule that issue is ground prior 19 on that a criminal an intrusion into the General’s interpreta- (c); C.F.R. Milutin is rather an 242.17 It discretion. statutory prerequisites U.S. 82 S.Ct. 8 L.Ed.2d tion of the (1962). Moreover, unwilling to proper we are discretion. of his exercise argu- accept necessary premise statutory adminis all schemes Not having ment received advanced: regulation properly are trative construction statu- authoritative tory construction, judicial course. employed standard to be under 243§ a statu interpretation or elaboration (h), cloak General would tory occasionally pattern lies within disregard his of that standard behind charged agency special expertise of the upon factual determinations infor- based these cir Under with its enforcement. reviewing mation unavailable to a court. readily de the courts have cumstances judgment, the administrative ferred to may hold re We that the courts one of labeled whether view construction g., R. B. N. L. of “law.” E. “fact” or statutory limits within T., (2 F.2d 53 Local B. I. operate discretion is to under Section Moog 28, 1963); v. F. Jan. Industries 243(h). C., 2 L.Ed. T. U.S. brought We are thus to the merits. (1958); Railroad Commission 2d 370 ap- appellant’s recommendation that Co., Rowan, Nichols Oil Texas v. plication Special Inquiry (1940); 84 L.Ed. 1368 stated, as forth Officer set above: Co., N. R. B. v. Standard Oil L. may generally see “While true that [So- punished illegal Davis, for his vich] departure Administrative Law 30§ problem Here, however, no of administra punishment physical perse- is not the expertise arises. tive contemplated statute, cution predecessor reflected the the statute. like its contemplates persecution statute concern humanitarian alleged expelled visited offender in not be from our should aliens corporal punishment, re the form of totalitarian tor- into the hands of shores gimes unwilling recognize ture or gion even ele death because reli- decency. opinion. mentary of human Here the standards *7 Attorney punishment applicant nor which the the Neither delegates might appar- fears suffer would in the Nat he ently be after conviction for a are better able than crime uralization Service Congres cognizable recognized ju- gauge under the that we the bounds of to system. persecu- concern, define the lim ridical That not and thus to sional tion.” which the General’s its within operate. is to discretion effectuating Inquiry the rec- Officer’s denial, Regional suggested if courts ommendation of the that even the It is Com- Region to review the standards em- missioner for the Northeast the undertook delegate by ployed “concur the the [red] I.N.S. they Inquiry 243(h), Special would have no that this Officer under § knowing persecuted physically whether standards de- would he de- means Yugoslavia,” being applied merely by ported in the them were the creed light material relied that extra-record ultimate conclusion discre- Officer’s tionary making be relief should upon denied. The attempt nega- made no Commissioner administra- Under his determinations. assumption effect, Inquiry regulations now in such reli- tive Of- tive might that well ficer be upon information Sovich confidential ance illegal departure punishment for his requirement from sharply limited Yugoslavia, did nor the Commissioner prior that determination disclosure prejudicial disclaim the standard which the Of- information States, ficer’s recommendation was based. of the United to the interests fairly product dictatorships circumstances it these of modern Under able inferred, believe, long that Re- to control to be borders and the move- gional Commissioner, people as the ments of their within In- them. adopted deed, delegate, history standard General’s employed by recent of Eastern Euro- deny- Inquiry pean Officer countries and current in Ber- events ing appellant’s application suggest pro- under 243 lin would seem to that such (h). one of- prerequisite anomalous for It would hibitions are a to the re- judg- profess pressions regimes in the ficial to concurrence im- communistic knowing another, pose upon subjects. well that ment of full their decided was of the matters substance regimes Devotees of such do not risk- same, supposed con- and that the not the prohibit- life and limb to violate statutes similarity merely currence went ing departure. sup- It would be naive to expression. verbal pose, therefore, punishment ille- for gal departure, circumstances,, under these analysis Inquiry An Officer’s politically motivated, is not or does not above, statement, quoted three reveals * *(cid:127) punishment constitute political opinion.” “because of assumptions conclu- which underlie his illegal imprisonment sion parture would not from contemplates; “The statute physical persecution contemplated * * * in the form of the statute: corporal punishment, torture or death.”' formulating so In applied the standard to be * * * 1. “Punishment after Special In- cognizable conviction a crime significant quiry made a Officer omission * * * recognized system juridical previous from approved by formulations persecution,” is not no doubt We have General and the courts: fugitive punishment alien phrase ‘physical persecution’ “The for a traditional crime could not ordi- confinement, should be taken to mean narily claim the benefits of torture, or death inflicted on account (h). It was not the intent of race, religion, view- refuge to make the United States a point.” (Emphasis supplied). Bla- by operation common criminals of this zina v. memory humanitarian statute. The legal sys- atrocities and of the Hitler’s corrupted tem pur- serve “Physical persecution contem- poses, however, are still too plates fresh for us subjection incarceration suppose physical persecution may corporal punishment, torture, or “recognized not bear the nihil obstat of a usually death based religion, on one’s *8 juridical system.” events, These same political opinions.” or indeed, recognize led this to that (Emphasis supplied.) Matter of even traditional crimes involve no Kale, (1958). Adm.Dec. A9555532 turpitude, purview moral within the of The Kale decision was forwarded to Re- immigration laws, American when their gional May, 1958, in Commissioners with * * commission was “incidental to the Yugo- that decisions toas all instructions great flight persecution oppres- from or slav crewmen who had entered since 1945 ** * against sion nations large and had at some been time racial, religious political or minorities.” since that date should be “based Op.Atty.Gen. 215-227. criteria” stated therein. See Diminich contemplates “The statute [only] (2 * * * persecution By allege 1961). because of to re- failure the threat ligion political opinion.” or death, therefore, pro- or torture as distin- against departure guished simple hibitions try incarceration, ap- from a from coun- not, course, having pellant precluded do define traditional from his- They application crimes Western 243(h). societies. are considered under § ing course, appellant’s suggest, application, that all do not should We incarceration, that, whatever its duration review the record and rule ourselves assigned generous justification, appli- under cable, whatever its would the most standard physical persecution appellant constitute within has failed to establish purview discretionary The courts have case for of the statute. relief. period held a brief of incarceration say We cannot that such a case has ship, for a seaman who has deserted his been established on record us. before military prosecution “a tri- before a Although appears to con- Government pursuant a for- bunal laws of convened to possibility appellant’s cede the incar- eign try committed offenses state ceration should he to his be returned military a country” member of the forces country, nature, native duration and would constitute grounds punishment for that threatened Chao-Ling 243(h). under § disputed. are Wang (7 Pilliod, Such a record is not uncommon in the Blazina v. applications case of under § F.2d more, Without Although applicants course. provision under this punishment, these the alien’s under establishing have the burden of might realistically circumstances, com- eligibility relief, they often, their are system pared to his liabilities within Sovich, persons like unlettered who have stat- law were to violate traditional away from their countries native utory or contractual duties. many years. They typically have suggest do not incar We available to them no better methods for political crimes, ascertaining ceration for even current conditions involved, as the one here would consti average abroad than does the citizen—or physical persecution tute under than does § court. this (h). repugnant our own con However to. reason, We believe it is for this cept justice, for il a brief confinement prejudicing well as to avoid national in- legal departure political opposi or for terests, has regime tion to would not totalitarian delegates authorized his Immi- necessarily Con fall within the ambit of gration and Naturalization Service gress’s enacting special concern consider extra-record information avail- believe, provision. unwilling areWe intelligence sources, able national however, Congress precluded has ruling upon applications from relief under an alien (h). Inasmuch as that information long years imprison threatened might as well favorable unfavorable ment, perhaps imprisonment, even life appellant’s contentions, say we cannot attempting escape a cruel dictator delegate how the ship. the statute Such construction of upon appellant’s application would rule an insensi attribute were he to consider it anew suffering tivity wholly human incon standards herein set forth. See Securi- history. our national sistent with Exchange ties and Commission Chen- hold, therefore, We that the ery Corp., General, through delegate, erroneous- L.Ed. 626 *9 ly construed the limits of his discretion judgment of the district court dis- illegal ruling imprisonment in missing appellant’s complaint is, accord- departure may “physical never constitute reversed, ingly, and the cause is remand-

persecution” purview within the of § stay depor- ed with instructions 243(h). tation be issued remain in effect until argues appellant given oppor- now Government shall have the assuming that, tunity application even the his to renew Gener to the' deny- Attorney 243(h). al’s use of erroneous in standard 30 Judge (concur- misreading MEDINA, of the law neces- such sarily must Circuit capricious arbitrary. be and

ring) . assume, sug Even if my agree as seems to be with cannot concur. I I gested by my Moore, brother that there hold- Moore’s statement brother something “undertaking vaguely ambiguous the about ing amounts in case this rulings Special Inquiry paternalism” or Officer gigantic world task of Regional and Commissioner, the un- and that way and opens to “bizarre the that it governing contrary, correct on standards were un results.” On desirable silentio,1 derstood these con- officials sub record, for further remand this is hypothesis. mere unsubstantiated an act me sideration seems ambiguity readily The so-called can simple justice. upon and, remand, resolved in view in both referred to Section consequences drastic to which Sovich dissenting au- opinions, majority and the may exposed pervasive and the human with- thorizes the itarian ing concern of the in enact in which deportation hold Sheng 243(h) (see Section Chi Liu in the alien would Holton, Cir., 1961, 740, 9 F.2d 297 see “physical not persecution.” do I 741-742; Esperdy, United States v. S.D. rulings Inquiry Special how the N.Y., 1960, F.Supp. 491, 498-499), 188 Regional Commissioner Officer and the duty seems to me to be our clear to re anything im- other than can mean ****8 mand proceedings.2 the case for further may illegal departure prisonment persecution.” “physical never constitute MOORE, Judge LEONARD P. Circuit given thus so, construction this is If (dissenting). utterly only repug- to the statute is Appellant, Sovich, brought Stefano and his- our national traditions nant to declaratory judgment action in the dis- patently tory, inconsistent also it is court, seeking declaring trict “arbitrary an order enacting Congress in the intention of capricious” 243(h). A decision based stay General’s refusal to parallel position ard, Cir., 1961, 507, 511, its the dis 1. This finds 3 286 F.2d cert. Hurney, senting opinion denied, 1904, 950, in Dunat v. 366 U.S. 81 S.Ct. 6 L. 744, Cir., 1961, 749, which was F.2d Ed.2d 1242. majority rejected by in that case very least, apparently by eight 2. At the in view of substan members of the Court employed bane, reargument tial doubts as to the standard 297 F.2d 753 prior bearing, Sovich would seem to This Court’s critical discussion Esperdy, Cir., be entitled to have us reverse and Dunat in Diminich v. remand 1961, 244, 247-248, for a clarification on this issue. Cf. Sain, 1963, 1962, 844, 875, 293, Townsend v. L. 372 U.S. 369 U.S. 82 S.Ct. 315, 10, 745, ; 848, application fn. 9 L.Ed.2d 770 Ed.2d without to the Co., language 1940, Minnesota v. National Tea instant case where the n Special Inquiry opinion quoted 920; U.S. 60 S.Ct. L.Ed. Officer's Pitcairn, Judge ignored. Herb v. 324 U.S. Waterman cannot be 65 S. adopted I find Ct. 89 L.Ed. 789. While the standard the circum hearing case, prior patently erroneous, stances of this to be order that the Serv may may appeared Judge ice error have the benefit of have to the Water Inquiry Special Regional governing man’s elaboration of Officer and stand Commissioner, ards, also who to accord to have been misled Sovich the ad language vantage procedures the broad of cases which hold of the new established n that under particular by regulations subsequent circumstances im in force prisonment cognizable hearing (see crimes under a date of bis Milutin v. Bouch system foreign juridical ard, 1962, would not consti 8 L. “physical persecution.” Kalatjis 501, vacating tute remanding, See Cir., Ed.2d Rosenberg, Cir., 1962, 50; Zupicich 305 F.2d *10 252; Blagaic Flagg, Cir., 1962, 574, S.D.N.Y., 1962, F.Supp. v. 580, 7 304 207 fns. 623, 627; 13-14), just F.2d pra, Diminich v. su it seems that Sovich should 246; hearing. 299 F.2d at Blazina v. Bouch- receive a new

31 Yugoslavia Service, and F.2d on the claim Naturalization 308 779 243(h) (2d persecution 1962) pursuant (en banc); Cir. v. Pil to Section Batistic Nationality liod, Immigration (7th Act Cir.) 286 F.2d cert. denied of the 268 935, S.Ct., court 1253(h)). trial 366 U.S. 81 6 L.Ed.2d 847 U.S.C. § by (1961); granted defendant Blazina cross-motion v. 286 F.2d Immigration and (3rd Cir.) 507 cert. District Director summary (1961); 81 S.Ct. 6 L.Ed.2d 1242 Service Naturalization Hoy, judgment. appeals. (9th Cakmar v. 265 F.2d 59 Cir. Sovich 1959); United States ex Moon rel. v. in the stated to the facts addition Shaughnessy, (2d 218 316 Cir. hear majority opinion, record 1954); United ex rel. Dolenz v. States Inquiry ing Special Officer before Shaughnessy, (2d 206 F.2d 392 Cir. Yugo in resided that discloses Sovich 1953). Appellant raises no such claim de his until in from his birth 1925 slavia may complain here. He that the denial During period, he that parture relief has been actuated through elemen fifth went school “considerations that could not his tary grade thereafter worked intended relevant”, have to make United tes He fisherman. or a father’s farm Shaughnessy, ex States rel. Kaloudis v. belonged Com tified that he never (2d 180 F.2d United Cir. politically ac Party, never munist was Hintopoulos Shaugh ex rel. v. expressed publicly himself tive, and never nessy, 1956), 233 F.2d (2d pri town, against his but Communism aff’d 353 U.S. L.Ed.2d vately opposition to friends. his confided (1957), application or that his was reported of them that one He believes arbitrarily capriciously denied or or with he was warned him to the authorities complete disregard desist, a of the law and' the' early official in 1956 local Bouchard, supra. facts. Blazina v. This making he did such utterances does mean not that denial be set was while he conceded that He desist. so merely unsupported aside because sub Yugoslavia physically he was never Immigration stantial Foti evidence. im was never harmed mistreated and or Service, supra; and Naturalization Unit charged prisoned crime. with Shaughnessy; ed States ex rel. Moon v. re expressed that if he fear Sovich supra. jailed would be turned to he “escaped” he and because because he deportable eligible A alien is for relief Special opposed to Communism. only when, “opinion” here in the appel Inquiry that recommended Officer Attorney General, expulsion would sub application lant’s be denied. ject physical that alien to admittedly deportable alien chal- go. An to which he must lenging recognized long refusal Gen- courts have the At torney eral to relax under Section deciding here (h) solely certain lines attack availa- has compe within the complain can ble to him. He that he has Namkung tence of the executive branch. “appropriate procedural Boyd, denied due (9th been 1955) ; process” application has not Shaugh States ex rel. United Dolenz v. given consideration, nessy, a fair 395, supra; 206 F.2d at U. S. given was not in accord- consideration Holton, rel. Cantisani v. ex 248 F.2d 737 regulations pertinent pro- with the (7th ance denied 356 U.S. mulgated by Attorney General, L.Ed.2d (1958) ;. given opportunity Bouchard, supra. Blazina v. The Attor present ney on the evidence has access information,, persecution. reviewing Foti court, See available to practice punishing has failed 1. Sovich to refer eourt oslav those who flee any Yugoslav making country, statute unlawful departure punishable any Yug- or to act *11 32 uralization, nationality of As climate and code the which to assess legislative against foreign country part an essential and which given exaggerated, scheme, assertions, Attorney weigh the often General the responsibility ap passing 243(h) relief. It on of an for § plications judicial limita- of aliens the withhold of these for with awareness ing suspension deportation.2. In or courts have stressed tions that judicial passing applications, “closely scope on the Attor such circumscribed” ney 243 General find must first make factual § of relief review of a denial n (h). recognize ings statutory majority prereq seem to to whether the The eligibility validity principles find but uisites of of these have been met.3 question legal applied review, as a correctness of standards courts can that the making law, standards such factual determinations

(cid:127)of the correctness of fully by or are courts. General reviewable in the appli- delegate Hintopoulos whether United States ex v. determines rel. 243(h) Shaughnessy, 72, 618, be sub- relief would cant U.S. 77 S.Ct. 353 jected persecution. (1957); 1 L.Ed.2d 652 Kris McGrath v. tensen, 162, 224, 340 95 U.S. 71 S.Ct. government power federal Peterson, (1950); L.Ed. 173 McLeod v. only aliens, to admit to exclude them (3d 1960); 283 F.2d 180 United pre it seems fit to such conditions as Murff, ex rel. Exarchou 265 v. scribe, expel its and those within Pagano (2d F.2d 504 v. n dominionis powers plenary. in These Brownell, (D.C. 36 sovereignty here in its and have been recognized consistently the courts. Once General finds that eligible withholding States, the alien is or Nishimura Ekiu v. United suspension 651, 336, deportation, L.Ed. 1146 he must decide U.S. S.Ct. Young States, (1892); whether to Fok Yo United exercise his discretion v. applicant’s 296, 686, 185 U.S. 22 S.Ct. 46 L.Ed. The statute does not favor. ; Fisher, (1902) Yamataya specify or Kaoru restrict v. considerations that making relied U.S. 47 L.Ed. 721 that deci- (1903) ; Landon, granted according sion. Carlson 342 U.S. Relief v. (1952); 72 S.Ct. L.Ed. 547 unfettered discretion of the Shaughnessy, Harisiades v. and the or General standards factors (1952). employs only capri- 96 L.Ed. In 72 S.Ct. will be arbitrary. overturned Congress may designate addition, such cious or United States ex rel. .agencies carry Hintopoulos Shaughnessy, Jay supra; as it sees fit to out what expulsion Boyd, policies and U.S. ever of exclusion long agencies adopts so do L.Ed. 1242 here scope authority limits of concerns the of review of a transcend decision reposed them, discretion their .abuse involves open challenge finding .judgment process neither the mining statutory is not re fact deter- Yamataya eligibility Kaoru nor the view courts. exer- 1952, Congress withholding Fisher, supra. en cise discretion in or sus- Nationality deportation. pending (cid:127)acted the It review concerns seq.), 1101 et as a com of the standards used Act U.S.C. prehensive, §§ determining immigration, revised nat- in his 244(a). See, also, 2. Sections able under law of the United States 249(a). 245(a) and is not a member of class of aliens Sections have been whose suspended by could not 244(a) example, 19(d) For : whether Im- applied migration the alien has relief within Act of as amended. Un- years 249(a) five after the effective date : whether alien der entered statute; prior 28, 1940; whether he last entered the the United States to June years prior United States more than two has had residence in the United States 27, 1952; deport- continuously entry. to June whether he is since such

33 subject question. the decision a factual It to of is would be an alien whether physicial Attorney is opinion a to General persecution if returned Attorney Second, the majority con- to country. control. even The particular opines of a that an alien would be interpretation General an is that this tend eligibility subject persecution, physical is au- he statutory to of norm or standard before, thorized, required to not with- discretion of prerequisite an exercise to ques- deportation. a hold therefore, is, reviewable by any the construction is of law as Commenting change tion Attorney on in the stat- the statutory pre- of other General utory language, in said this United court in sense requisites. true one It is Shaughnessy, 206 States ex rel. v. Dolenz subject finding be alien would a 1953): (2d F.2d Cir. 394 prerequisite persecution is a physical to modified the lan- “That section discretionary Without action. to guage former in a statute Attorney finding, would be General clearly, manner which shows think, deportation. But powerless to withhold withholding depor- of that the inquiry. of is not the end this tation in the alien fears cases where Security wholly persecution rests in the ad- 23 of Internal judgment ‘opinion’ 987) amended Sec- (64 ministrative 1950 of Stat. Act Attorney Immigration of 1917 or his dele- General Act tion 20 gate. may provide: courts 890) The substi- to Stat. judgment tute their for his.” deported under alien “No shall atAnd 395: any chapter any to provisions this very “The Attorney nature of decision country Gen- which concerning make he must what the alien would that such eral shall find foreign country likely to do persecu- is is physical subjected to political issue into the courts which tion.” should not As was intrude. said language statutory aspects this Two Chicago & Southern Air Lines v. noteworthy. First, decision of are Corp., Waterman S. S. 333 U.S. as whether an 436, L.Ed. 92 568: per- subjected physical alien would be require ‘But if courts could full even solely deportation on is treated secution disclosure, very nature exec- Second, once such as a of fact. foreign policy as to utive decisions withholding finding made, a portation ” political, judicial.’ mandatory. Blazina 511 discretion in the has no matter. Immigration denied, repeal- (3d Cir.), cert. 81 was Act 1917 Nationality (1961), 1242 6 L.Ed.2d ed S.Ct. dealing provision Act of 1952. The court said: : physical persecution is now changes significant. “The are 1952 provides: the 1952 Act. It They make clear that decision physically “The author- an alien General is whether would be persecuted to his ized withhold on return native alien within the any country intended United States solely judgment committed subject physi- the alien would be General.” persecution period cal and for such See, also, ex United States rel. Cantisani necessary time as deems to (7th Holton, F.2d for such reason.” U.S. changes (1958); wrought Namkung 2 L.Ed.2d Boyd, new lan- guage (9th First, F.2d are clear. the determina- Shaugh ex Moon v. rel. tion of whether an alien would be United nessy, (2d simply is not foreign the country cases make clear that conditions These necessary an alien also be to deter- decision whether *13 subject validity mine to the of the fears. alien’s

would investigations whether or These of and determinations determination and solely they intelligent- only within are such that ly lie can withhold to They The role of made judgment. the administrative executive branch. assuring closely the that are foreign is limited to related the conduct of our courts the proc- procedural political due was' afforded relations and as- alien involve Attorney judgments deci- sessments General’s and the and that the ess arbitrary. competence capricious courts no have was not to review. sion majority The action of the in this case long legal con been has The literature point illustrates the well. It knows noth- dichotomy “law” between with the cerned ing Yugoslav of the existence of laws judi consequences on “fact” and the and making “escape” a crime. knows noth- It attaching or the other of one review cial ing past practices govern- of the of particular question decided label to Yugoslavia punishing ment of in viola- agency.4 One an administrative tors of this law even if it does exist. It suggested frequently has been that tests nothing pun- severity knows of approach expertness.5, would This of might ishment that on So- inflicted reviewing consider the court first have Yugoslavia. vich on his return to Yet of administrative relative .abilities delegate, it tells the agency render in and the courts who we must assume has answers judgment question at on is formed questions, to these that does he Although approach had has its this sue. critics,6 meaning physical persecu- know the of help it is of here. When 243 tion. sought, (h)-relief is General must determine believe that I physical persecution competence if de give alone has the . content country. particular phrase. ported Only gov To decide to that of branch question, the .ernment which is entrusted the safe political guard foreign cli into consideration the our relations, take and has country prac and facilities, involved its mate attendant information and regarding, example, experience meaningfully gauge treat tices can all returning end defectors. To this ment and subtleties variations of action designed can confidential information. utilize oppress perse- that are and supra. Jay Boyd, assessment of His The realities in which cute.7 of world . See, g., Report Gen- Yugoslavia. e. 4. in in conditions The decision Administrative Pro- case, eral’s Committee on the Kale rendered after the investi Dickinson, (1941) ; Administra- gation completed, cedure was forwarded to Law, Supremacy and the tive Justice Regional Commissioners with instructions (1927) ; Henderson, The Federal Yugoslav decisions as to all crew (1924). Commission, Trade 93-98 who had men entered since 1945 and had in at some time since g., See, Landis, Administrative e. 5. date should be “based the cri Process, (1938). 152-153 stated therein. teria” The decision dis political Yugoslavia* cussed climate of Brown, See Law and Fact Judicial 6. Judge Friendly’s detail. in some See Review, 926-927 56 Harv.L.Rev. in Diminich v. 299 F. (1943). (2d 246-247 2d background decision Matter of 7 L. Kale, procedure Adm.Dee. A9 555 532 instructive Ed.2d 848 utilized point. A number contentions the Commissioner in this instance in by Yugoslav proceed- required raised nationals the resources dicates to ascer ings political foreign before the Service led the Commis- tain facts in a country sioner 1956 to demonstrates well October the need professional judgment evaluating defer further action until the Service was consequences probable able to collect reliable information as to of these facts. responsibility for, population live and must remain sen- its half of more than slavery foreign to, degrees varying sitive the conduct of our re- standards) require lations. (by our constantly meaning phrase be of that judicial required No elaboration is only by the re-evaluated8 recast and the radical differences in criminal laws government so—the able to do branch of procedures that exist between Executive. own those totalitarian regard every states. If we are to greater impor of far consideration A *14 procedure provide law or as a failure to clearly however, ex is the tance here “elementary standards of human decen- Congress.9 pressed The intention cy”, undertaking gigantic we are indeed statute, especially language paternalism. task of world the This ma- legislation, makes modified the jority They would undertake. do not Congressional purpose to evident grant the Yugoslavia’s imposes pun- like law which the broadest the General illegal departure for ishment country. from its considering appli possible discretion in They Neither do I. do not juxtaposi 243(h). cations § wish to have “an alien threatened with discretionary to authorization tion the of long years imprisonment, perhaps even deportation and declaration the withhold imprisonment, attempting life for to es- opinion of the that it is the cape dictatorship.” I, a cruel Nor do but physical persecution that is toas the decision is not ours to make. In should conclude search determinative short, despite personal predilection to legislative desire. His decision for the every person, except criminal, allow only capricious should be overturned who has reached our shores to remain arbitrary. or here, Congress it is that is entrusted with immigration fields of In delicate fashioning immigration policies relations, and international the courts Congress discretionary has vested certain should mindful of the constitu- be ever powers in the General. powers separation of and not at- tional tempt Turning apply- to the case at hand and take the function of the to over ing scope above, of review described sug- majority other gests two branches. required. fact, my affirmance is 243(h) that section “reflected the view, the same result called is for if we Congress concern of humanitarian that apply scope of review contended for expelled from aliens should not be our by majority. into the hands totalitarian shores re- Special Inquiry Officer concluded gimes unwilling recognize ele- even his recommendation that Sovich be de- mentary decency.” human standards 243(h) following: nied relief with the Yugoslavia deserves that con- Whether demnation, ill-equipped I am to decide. applicant “Since not in imagine why any way that is the would reason I mistreated after these al- leged reported such determinations have left' were been utterances government authorities, branch it seems that has reasonable to Comparative Analysis, clear 8. The statute itself makes that 58 Harv.L.Rev. required keep (1944) arguing is un- 105-107 that reviewing in which § der review those cases function of court adminis- granted. “legisla- Since he is to with- relief trative decisions is to search for period Congress lays “for such hold time tive intention”. When necessary general he deems to be for such rea- down standards for an adminis- persecution]”, follow, [physical agency agency he must be son continuously trative has developments filling alert in the the function of in the interstices posi- giving involved and in the alien’s content to that standard. If developments. stayed agency vis-a-vis those has within tion the bounds of the exercise discretion fixed Con- Stern, Compare Findings gress, Review of the courts are not to substitute Judges judgment Administrators, agency: and Juries: A that of the their However, (3rd in not now be Cir. punishment he would believe racial, re re- fliction of persecuted therefore ligious, grounds political has to date true turn. While may illegal required. The fact that a law for his punished pun- harsh or restricts individual freedoms parture from way persecu- physical inconsistent with our own beliefs not the ishment application, does not mean its statute. with contemplated tion more, persecu contemplates out amounts to The statute recognized alleged offender in tion. all those upon the visited regimes punishment, corporal who live suf Communist the form deprivation fer freedoms that take death because torture or granted. Congress intended, religion opinion. Here how ever, (h) relief would be avail punishment which the only might appar- able could those who show that suffer fears he they singled subjected ently crime would be out and after conviction *15 recognized ju- persecution race, cognizable because of their re ligion political Here, persecu- viewpoint. or not system. That is ridical again, per the label attached tion. significance. secution is of no Penal applicant has that the “I believe punishing laws traditional crimes such by reasonable and establish failed to murder, robbery, etc., might ap be probative he would be that evidence plied discriminatory fashion;10 ain physical persecution if subjected to forbidding might law unauthorized exit Yugoslavia. appli- His returned to only against be invoked those who fled denied.” therefore cation should political Physical persecu for reasons. set majority the standards find that The majority exist, tion would likewise are errone- recommendation in this forth suggest, if un breach of traditional or reading fair of that a ous. I think prompted by perse traditional laws was excerpt demonstrates construc- above fear cution or for the persecution” phrase “physical tion proscribed reasons. only capricious or arbi- not that is not trary sight prin majority of these lose The clearly correct. that is but ciples fact that it relies on the when “physical persecution” phrase against has The depar prohibitions “[gjeneral * * * country construed not de do ture from incarceration, torture or death mean in Western soci crimes fine traditional race, religion, of one’s majority inflicted because finds a dis crucial eties.” Kale, opinions. political Matter of or See tinction, relief is con as far as § (1958); Diminich country A-9555532 escaping Adm.Dee. cerned, from between supra; Esperdy, Blazina friendly deserting ships in a one of its recognized, course, supra. has been escaping by fleeing It country11 across punishment is not con mode that the former is an act that its frontier. complete denial trolling, that of em might so countries do or forbid civilized physical persecution ployment can be only totalitarian countries limit —if while egress. an illicit reason. Diminich for rights inflicted This citizens’ is their Esperdy, supra; Hurney, Dunat v. majority feel, true, seem even only reports testimony recent 10. that Consider before Hear His York. ing punished violation quite of cer- Jews are was similar Commissioner defining laws commercial Russian tain he would be im He feared that Sovich’s. crimes. prisoned would for desertion and that he if returned. This Court have “diifieulties” the situation Diminich v. 11. This was for a incarceration violation of held that supra. Diminich, as Sovich Yugoslav law was “reconcilable with here, shipped Yugoslavia, out from had recognized concepts justice.” generally Italy, shipped as a sea- serted his vessel again F.2d at man deserted his vessel in New political persecuted egress his though no his return for forbidding has the law using religious lan- Then, or religion beliefs. political view- or relation to guage im- quoted, discriminatorily applied. earlier found he point and prisonment illegal departure for his Thus, Com- same fled the aliens who two race, re- which would not stem from of dissatisfaction munist because ligion, might political con- viewpoint, or did plight and who with their economic Although physical persecution. stitute unlaw- prosecuted on return both be language in the last two sentences departure, ful find themselves they quoted may overly quite broad positions as § as far different crime, suggest me, that conviction for this (h) concerned. To relief is religious political illogical even one related to incongruous result. viewpoint, would not under- constitute question here is determinative reading persecution, lan- lying a fair punishment, not cause guage that such context indicates departure mode or the title understanding. Inquiry not the Officer’s statute under the alien would assuming accepts fact, Tie he states prosecuted. Accordingly, what sentences, punish- imprisoned for before these two appellant here will be ment, Yugoslavia, form, related its must be illegal departure whatever race, religion, viewpoint. possibility must do more than show sup- amply violating prosecution not This is more conclusion than a law ported by af- discriminatorily the record and should applied. dem- must He here, record as firmed. Reversal on a onstrate, Gen- and convince the *16 contrary this, eral, prosecuted of doubt as free would be that he will be religion holding to our and the stand- Diminich this political law because of majority ard of there viewpoint, review established. or as the suggest, that he because fled type oppression.

of this majority’s reasoning also could lead to re» some undesirable bizarre First, place suits. ref- it would those ugees who have fled communist coun-

try granted asylum and been in a demo-

cratic jumped ship state and then here position a better desert a those who ex rel. UNITED STATES of America Communist vessel. It seem wiser MORRISON, James Relator- refugees discourage already who have Appellant, granted deserting one haven from ships friendly flouting nations and LaVALLEE, Edwin Warden of J. Clinton immigration our Further, own laws. Prison, Dannemora, York, State New Yugo- escapees annual number of Respondent-Appellee. apparently quite slavia is substantial. 393,Docket No. 28088. Many leave because of their plight. dire economic If of them can Appeals States Court of United reach shores, majority under the Second Circuit. they escaped decision the mere fact that Argued June 1963. would entitle them to consideration under June Decided 243(h), a section which was intended purpose. no such serve Turning now to the Special Inquiry Officer, clear to seems me proper that he had the criteria in passing

mind application. on Sovich’s found, first,

He that Sovich would not