Interim Decision #1242 

MATT= OF NXOSEL 

In DEPORTATION Proceedings 

A-12281979 

Decided by Board August 10,196W 

(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 birth-. 

place 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 ASeortais 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 1252—Section 241(a) (2) IS U.S.O. 1251 (a) (2)1—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. Fol57 
Interim Decision #1212 

lowing 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, S U.S.C. 1255(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 respcindent cannot be 

deported to West Germany since she did not reside there, has no right 

to claim the citizenship of that country, and remained there only long 

enough to obtain the visa with which she came to the United States. 

The place to which deportation may be ordered is determined by one 

of the steps in a three-step plan designed by Congress. Step one provides that the alien shall be deported to a country designated by him 

if that country is willing to accept him. If the alien fails to make 

such designation, the next step contemplates the deportation of the 

alien to the country of which he is a subject, national or citizen, if 

such country is willing to accept him. If such country refuses to 

accept him, then the third step permits the Attorney General to order 

deportation to a country selected in his discretion from any one of 

the seven categories listed in the section (Leong Leun Do v. Esperdiy, 

197 F. Supp. 604 (S.D.N.Y. 1961; section. 243 (a) of the Act, 8 U.S.O. 

1253 (a) ). 

Applying the three-step plan. to the facts before us, we find that in 

accordance with step one, respondent was given an opportunity to 

designate a. place of deportation. This she first refused to do, but 

ultimately designated East Germany, following the designation with 

the request that the deportation be withheld because she would be 

faced with physical persecution if returned there. The designation 

of a country followed by a request for withholding deportation to 

that country is, in effect, a withdrawal of the designation (Chao Chin 

v. liturff, 168 F. Supp. 349 (S.D.N.Y., 1958) ). This brings us to stop 

two. Respondent claims that the country of which she is a subject, 

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Interim Decision #1242 

national, or citizen is East Germany, and as we have indicated ehe 

does not desire to be deported there ;because of her fear of physical 

persecution. This being so, there is no need to proceed further with 

step two. Step three permits deportation to the country in which 

the alien was born and where his place of birth is situated at the time 

he is ordered deported, or the country which had sovereignty over 

the birthplace at the time of his birth. In the eyes of the law, the 

United States considers all of these places to be West Germany. Deportation is also authorized to a country in which the alien resided 

prior to entering the country from which he entered the United States. 

In this case, respondent resided in. West Germany before embarking 

at Copenhagen for the United States. There is ample justification 

for selecting West Germany as the place of deportation. 

Counsel contends, moreover, that under judicial construction of 

the Act, before deportation to a country can be ordered, the Service 

must make a showing that the proposed country has agreed to accept 

the alien. Lu v. Rogers, 164 F. Supp. 320 (D.C. 1958), is cited. When 

designating a country in step three as a place of deportation, there 

is no requirement that preliminary inquiry be addressed to the country to which deportation is ordered (other than perhaps to the seventh 

country in the list—a country which is willing to accept the alien into 

its territory). Lu v. Rogers

, 

supra, cited by counsel was one in which 

deportation was contemplated to a. country of which the alien was a 

subject, national or citizen. In such event inquiry must be made as 

to whether the country is willing to accept the alien. In the instant 

case, this preliminary inquiry is not required. 

Since the Government does not intend deporting respondent to East 

Germany, her offer to establish that she would suffer physical persecution if deported there was properly rejected. 

Contentions concerning the reopening of proceedings to enable respondent to apply for an adjustment of status under section 245 of 

the Act (8 U.S.C. 1255) have been previously considered. Matter of 

A-17--, A-10659043 (November 20, 1959), cited by counsel (now 

found in 8 I. &N. Dec. 554, 558) is not pertinent. 

The appeal will be dismissed. 

ORDER: It is ordered that the appeal be and the same is hereby 

dismissed. 

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