Interim Decision #1900 

MATTER or JANUS AND JANER 

In Deportation Proceedings 

A-14813095-6 

.4-14805412 

Decided by Board July 25,1968 

11) In the exercise or discretion, adjuSLment of status under section 245, Irurni 

gration and Nationality Act, as amended, is granted an alien whose nonimmigrant entry was not intended to bypass the normal visa-issuing process ; who 

has close family here ; who is eligible for visa issuance and who is unwilling 

to return to his native Czechoslovakia where he has been convicted, in absentia, 

of defection from the republic, sentenced to imprisonment, and his property 

'confiscated. 

(2) Applietitions for withholding of deportation under section 243(h) of the 

Act alleging rear of persecution for political opinion are granted two natives 

and citizens of Czechoslovakia who, although members of the Communist Party 

at time of their nonimmigrant entry, by their uncontradicted testimony express 

their long-standing opposition to the political regime in Czechoslovakia ; who 

defected at the first opportunity, one repudiating his entrusted mission of proP• 

agandizing for the Communist government In this country, the other overtly 

making Ids criticism of conditions in Czechosolvaltia to agencies which could 

disseminate It widely and effectively: and who have both been convicted, in 

absentia, of defection from the republic and sentenced to imprisonment. 

(3) The legal posture of an applicant for conditional entry under section 203(a) 

(7) is not that of an applicant for withholding of deportation under section 

243(h) of the Act and sued& standards of conduct cannot be set which will 

guarantee, without more, inclusion in or exclusion from eligibility for either 

benefit sought. An application under either section 203(a) (7) or 243(h) must 

be decided individually, on all its facts. 

CHARGES : 

Order: (A11)—Act of 1952—Section 241 (a) (2) IS U.S.C. 1251(a) (2))— 

Nonimmigrant visitors, remained longer. 

ON BEHALF OF RESPONDENTS : ON BEHALF OF SERVICE: 

Charles Sternberg, Eequire Irving A. Appleman 

International Rescue Committee Appellate Trial Attorney 

888 Park Avenue Smith 

New York, New York 10016 ' 

2Because of their own activities with refugees and other immigrants, and their 

interest in the subject mutter of this appeal, the following voluntary agencies 

866 
Interim Decision #1900' 

This case is before us on appeal from the decision of the special 

Inquiry officer : 2 

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 eounti.7 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 Section 243(h) upon the ground that they have failed to 

sustain their burden of establishing that they would be persecuted 

because of race, religion or politics if returned to Czechoslovakia 

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, 1986 

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. 63) 

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 

joined in a single Brief Amiens Curiae, and requested permission to be present at 

oral argument : American Fund for Czechoslovak Refugees, Inc.; Church World 

Service, Inc.; National Council of Churches of Christ, USA; Department of Immigration, United States Catholic Conference; Lutheran Immigration and Refugee Service, Lutheran Council USA; Polish American Immigration and Relief' 

Committee, Inc.; Tolstoy Foundation, Inc.; United BIAS Service, Inc. 

2 There were two sets of hearings held• one for the Janus brothers-together 

and one for Janek. Reference to transcript pages and exhibits in the Janus file is 

followed by the letter "3" ; for Janek, by the letter "K". 

867 
Interim Decision #1900 

approved in January 1967; then and now ther was immediate quota 

availability based on the priority date created by the filing of the 

petitions. 

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 1. & 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 

oiled 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 him-

-self, 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 brothel's) ; 

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. 

868 
Interim Decision #1900 

The total picture justifies a favorable exercise of discretion on Frantisek Janus' behalf, and we will provide for a grant to him of adjustment to permanent resident status, under section 245, in our order at 

the conclusion of this decision. 

II 

Vladimir Janek, who has nu 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 section 245, on the basis of 

his brother's petition for fifth preference quota status, On the Form 

1-485, he showed that he had been a member of the Communist Party 

in Czechoslovakia from the summer of 1956 to the time of his departure in 1966. He stated that when he applied for a visitor's visa in 

Prague, he was specifically asked by the American Consular Officer 

whether he had ever been a member of the Communist Party, and he 

denied it because he was afraid that if he told the truth, he would not 

have been given a visa and would not have been able to come to the 

"United States (Ex. 9B, J, p. 3J). The special inquiry officer, after 

considering respondent's claim that his Party membership was involuntary, found that it had not been sustained, and that respondent was 

precluded from establishing eligibility under section 212(a) (28) ; he 

also found, using the standards of Matter of S and B-0--, 9 X. 8: N. 

Dec. 436, that respondent had made a material misrepresentation in 

denying membership, and was thus precluded from establishing adjustment eligibility under section 212(a) (19). We accept the special 

inquiry officer's holding that this respondent is statutorily ineligible 

for adjustment of status under section 245. 

Both of these respondents have applied for withholding of deportation to Czechoslovakia under section 213(h), claiming they would be 

persecuted for political reasons if they were to return. Each already 

has awaiting him a prison sentence on a conviction entered against 

him in absentia under Article 109 of the Criminal Law of Czechoslovakia.' Article 109 is entitled: "Defection from the Republic". It 

covers (1) a person who leaves Czechoslovakia without permission, 

Jaroslav Janus testified that his wife bad advised him she had tried but was 

unable to get a copy of his coiviction from the court, but that his proceedings 

were the same as his brother's, were held a week or two later, and resulted in the 

same conviction and sentence. A copy of the conviction of Franttsolt Janus is in 

the file as Exhibit 11J. 

869 
Interim Decision #1900 

(2) a Czechoslovak citizen who remains in a foreign country without 

permission, and (3) one who organizes either of those acts or leads a 

group or groups of people across the border, they being without permits to leave the country. Each respondent has been found a defector 

from the Republic under the second category. 

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 UK). 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. 31C, bottom of p. 8). 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 Czchoslovakia. 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 

870 
Interim Decision #1900 

would make the crimes more serious in the eyes of the government 

(both witnesses who testified in Ja,nek's case agreed with this view). 

Once they were actually in the custody of the Czech authorities, there 

was no telling for how long they would be imprisoned. They claimed, 

too, that punishment and ostracism would continue even after release 

from prison, that they would thereafter be relegated to hard labor, 

perhaps in the mines, and would never again be able to get jobs above 

the menial level. 

Respondent Janek cited additional reason for fearing dire consequences. Shortly after his arrival here, he gave a four-hour inte•-

view 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 1 came to the conclusion tnat 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 

ft 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 

oecassions 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. 13IL) 

In a sworn statement made to a Service investigator, Janek named 

at least five offices he had held in communist organizations before 

87 L 
Interim Decision #1900 

his cessation of activity in 1963 (Ex. 9K, p. 5). He also said he had' 

been told that he had been denounced by the State Security in the 

summer of 1964 because he had stated publicly, at a meeting of the 

employees of the plant where he worked, that the methods by which 

Khrushchev had been deposed were intolerable (Ex. 9K, 6) . 

Testifying further about his reasons for becoming anti-Communist, be 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 whoknew what my convictions were because at that time I planned already for 

a year that I would take a trip abroad to the west Bemuse 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. 74r.) 

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 section 243(h). It is his further holding that there 

has been no showing that the conviction in absentia was politically 

motivated. We feel that these criteria have been taken and used out of 

context in this case. 

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 

872 
Interim Decision #1900 

started expressing opposition in 1957 in Czechoslovakia and was dismissed from the officers' school for it; that he continued to express his 

dissenting views, although his criticism had no effect except to injure 

him. The sincerity and strength of his opposition is shown by the fact 

that his criticism here was not made in private to friends and acquaintances but to agencies which could best put it to use and could disseminate it most widely and effectively. We do not doubt that if he were to 

return to Czechoslovakia, he would be punished for these acts under 

Articles 102 (Defamation of the Republic, etc.), 103 (Defamation of 

the President or other public representative, etc.), 104 (Defamation 

of a state belonging to the world Socialist system), 106 (exposure of 

State secrets—this respondent worked in uranium processing plants 

and offered to share his knowledge with the United States Government), and 112 (violation of the interests of the Republic abroad) of 

the Criminal Law, and we believe that under these circumstances such 

prosecution would in effect be persecution for political opposition. 

This is.a factor to be reckoned with, especially when the acts committed 

in the United States are not the beginning but the continuation of a 

year's long course of expression of opposition to the Communist Czech 

regime. 

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 

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 

Czecholsovakia 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 section 243 (h). 

873 
Interim the ism!' Woo 

Returning to the case of Jaroslav Janus, he testified that he had 

-never believed in the tenets of communism and was opposed to the 

regime from the time of its accession to power in 1948 (see Ex. 9AJ, 

p. 7) ; he was the only member of his family to join the Communist Party. His brother Frantisek was approached but refused to join 

(Ex. 10j, p. 4) ; his brother Jaromir was so opposed to the regime 

that he tried to escape from Czechoslovakia illegally in 1965, was 

.arrested and imprisoned 4-5 months (his wife obtained his release 

from jail by a petition to the President), and since that time has been 

unable to get a job as anything but a delivery man in a factory, de-

:spite the fact that he has been trained in certain skills (Tr. pp. 33- 

.34J). Jaroslav testified that none of his four children is a member 

of the Party: "I brought them up in a way to be opposed to the Communist Party" (Tr. p. 32J). His own membership in the Party was 

passive; he held no office (Ex. 9AJ, p. 6) and did not always attend 

-the monthly meetings (Ex. 9AJ, p. 8). He testified that he joined 

-the Party because he felt it was necessary to protect his family's financial security. He had broken his wrist in about 1955 and the bone 

took more than a year to heal; even at the end of that time, the wrist 

was inflexible so that he could not work, as he had before, on the assembly line. Although the union provided for a disabled worker to 

the extent of establishing that he was entitled to 80% of his base 

.salary during illness or injury for a period of up to one year, the 

worker was nevertheless in financial straits because his salary was 

normally augmented by overtime pay, and 80% of the base salary 

was not sufficient compensation. Also, although the union offered 

some job protection in that the worker after recovery was entitled 

to get a job in the same plant, it did not have to be on the same level 

as the prior job (Tr. pp. 36-37J). It was in this situation, after a considerable period of injury and materially lowered income and enough 

-residual disability so that he could not return to any manually skilled 

_job, that Jaroslav Janus was approached by the Party with the promise 

-that if he joined he would get a foreman's job, but that if he did not, 

he would get a lesser job than he originally had (he believed this might 

have been on the level of a cleaning man or delivery man—Tr. p. 35J), 

and he decided to join the Party (Tr. pp. 28J, 35-37J). He makes no 

claim that he ever publicly denounced the Party or its goals, although 

he was always opposed to communism, he apparently lived with his 

membership as a necessary evil, doing no more than he had to to maintain that membership. He testified that he had no difficulty in obtaining his passport to come to the United States because his brothers had 

-visited Czechoslovakia a short while before, and he was requesting the 

passport to visit them in the United States_ He also stated that before 

874 
Interim Decision #1900 

he left, he was visited by a representative of the Secret Police who told. 

him that if he should meet people in the United States, especially immigrants• from Czechoslovakia, who criticized the Czechoslovak regime, he (Janus) should explain that the situation had improved very 

much and should try to change the person's anti-Communist views 

(Ex. 9AJ, p. 9). 

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. 9.14, p. 6). Nothing in the files indictates 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 the United States, 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 

_ Janek 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 section 243 , as amended by the Act of October 3, 1965, and 

will grant to him also a withholding of deportation. 

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 eases, 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 section 243(h) withholding with 

the standard for establishing eligibility as a conditional entrant under section 203(x) (7). They contend that the special inquiry officers 

and the Board do not recognize certain truths; i.e., that a man may 

be fleeing from a country even though he does not cross its borders 

821-654--89--57, 875 
Interim Decision #1900 

clandestinely but exits with proper documentation; that statutes restricting all travel outside of a country and punishing violations with 

imprisonment or other criminal sanctions, are inherently political in 

character and not analogous to provisions such as section 2151Immigration and Nationality Act; that any person, therefore, who leaves an 

Iron Curtain country and stays out of it longer than authorized, 

faces political persecution on his return, and should not bo deported 

back behind the Iron Curtain, etc. 

The Board has recognized the changes made in section 243 (h) by the 

1965 amendment and has not only shaped its own decisions to accord 

to the changed standards but has often granted reopening and remanded eases so that an application for a stay heard under the older 

and more stringest standard can be considered under the new. Special 

inquiry officers have themselves reopened proceedings for the same 

purpose. The Board recognizes, too, that flight may be made with legal 

documentation, and has not restricted its rulings on 243 (h) eligibility 

to persons who climbed under fences or swam rivers at night. We 

are not persuaded, however, that an applicant for conditional entry 

under section 203(a) (7) is in the same legal posture as an applicant 

for a withholding of deportation under section 243 (h). Nor do we 

believe that specific standards of conduct can be set which will guarantee, without more, inclusion in or exclusion from eligibility for the 

benefit being sought. Both under section 203 (a) (7) and section 243(h) 

cases must be decided individually, on all of their facts; the performance of a particular act or the following of a specified course of 

conduct are no more than guidelines for arriving at a result on the 

basis of an entire record. We are not convinced that every travel 

restriction imposed by an Iron Curtain country and punished, in the 

breach, by imprisonment, is political persecution; or that every person 

who leaves such a country and subjects himself to the penalties provided under those laws by remaining outside of his country for longer 

than permitted is a bona fide refugee, or a person who will be subject 

to persecution on his return because of his political opinion. A person 

whose departure from an Iron Curtain country is devoid of political 

motivation, or whose decision not to return is unrelated to the politics 

of that country (e.g., the person who finds better economic opportunity here, or enters into a marital relationship with a resident alien 

or United States citizen) is not entitled to a section 243 (h) stay solely 

on the basis that he may face criminal prosecution for overstay. Nor 

is a person who has not expressed opposition to the political regime 

before departure automatically excluded from relief, if he can show 

that his departure was politically motivated and that any consequences 

he faces on return are political in nature. Each case, as we have said 

876 
Interim Decision #1900 

before, must be considered on all of its facts, each factor given its 

proper weight. We are aware of the inherent nature and intended function of the 243 (h) stay provisions, and have shaped our decisions 

accordingly. 

IV 

ORDER: It is ordered that the decision of the special inquiry officerheretofore 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 section 245 of 

the Immigration and Nationality Act; and 

It is further ordered that respondent Jaroslav Janus is denied adjustment of status under section 245 upon the ground that he is statutorily ineligible therefor; and 

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 therefor; 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 of 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 

877 
Interim Decision #1900 

whether it will or will not accept respondent into its territory, that 

respondent shall be deported to Czechoslovakia; and 

It is further ordered that the deportation of respondents Jaroslav 

Janus and Vladimir Janek to Czechoslovakia be withheld, pursuant 

to the provisions of section 243 (h) of the Immigration and Nationality 

Act, for such period and under such conditions as the Attorney General 

may deem appropriate. 

878