Interim Decision #1825 

KATI= OF TAN 

In Deportation Proceedings 

A-13983727 

Decided by Board September 16, 1967 and December 14, 1967 

(1) Since it has not been established that the government in power can not 

' control mob action In Indonesia, application by respondent, a native and citizen 

of Indonesia, for withholding of his deportation to that country under section 

243(b), Immigration and Nationality Act, as amended, on the claim that because he is of Chinese ethnic origin he would be subject to persecution as a 

result of mob action directed against members of his race by individual gronpo 

in Didenesia, IS denied in the absence of convincing evidence be would be 

singled out for persecution. 

(2) She burden of proof and standards for withholding deportation under section 243(h) of the Act, as amended, may not be equated with the burden of 

proof required to establish eligibility for "refugee" status under section 203 

(a) (7) of the Act, as amended. 

• Order: Act of 1952-Section 241(a) (2) [8 II.8.0. 1251(a) (2)1—Nonimmi-

' grant—remained longer. 

ON BEHALF or BESPONDiNT: 

David Calliper, Esquire 

• Warner Building 

1R'seliingdua; D:(7 `20004 

Ox BintAis or Einavion : 

B. A. Tielhaber 

Appellate Trial Attorney 

BEFORE THE BOARD 

The respondent, of Chinese ethnic origin, is a native and citizen of 

Indonesia. An order entered by the special inquiry officer on May 31, 

1966 grants the respondent voluntary departure in lieu of deportation 

as an alien who after entry as a nonimmigrant exchange visitor has remained longer than permitted. An application for a stay of deportation 

to Indonesia was denied and the respondent's appeal from this denial 

was considered by the Board of Immigration Appeals in November 

of 1966. We remanded the case for a reopening of the proceeding to 

permit the introduction of evidence material 'to the issue of relief under 

section 243(h) and for such other evidence as the respondent may wish 

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Interim Decision #1325 

to present on this issue. We directed that the spebial inquiry officer 

render a decision de nova on the basis of the entire record. A reopened 

hearing was accorded the respondent on January 25, 1967 and after due 

consideration of the entire record the special inquiry officer denied the 

respondent's application to withhold deportation to Indonesia pursuant for the provisions of section 243(h) of the Act. He certified the case 

to the Board of Immigration Appeals for final decision. 

The record in addition Ito the respondent's testimony both at the 

original and reopened hearings includes six articles published in the 

Washington Post, Time Magazine, The New York Times Magazine, by 

the United States Department of Health, Education and Welfare and 

by Cornell University :(Exs. 4 through 9). The respondent also submitted excerpts from a letter from his brother-in-law in East Java 

dated June 6, 1966 •(Ex. 10). A recital of the substance of the aforementioned published articles ha's been fully set forth in the opinion of 

the special' inquiry Officer and will not be repeated: • • 

The published articles indicate that Many of' the 2,500,000 Chinese 

in Indonesia fear a bloodbath; that there is regular looting of Chinese 

properties; that the Indonesian Government has banned the publication of all Chinese language newspapers; that many of the Chinese 

language schools have been closed; that many Chinese have been deported to Communist China; that native Indonesians resent the domination of the nation's commerce by the Chinese; that there is an apparent organized attempt by-the Indonesian Government to 'create hostility toward the Chinese; that-the Chinge .control 80 per cent of private industry and that the' anti-Chine -sentimentdirected with 

equal force against, IndoneSian• citizens who are ethnic Chinese and 

Chinese who have migrated from the mainland. 

, Excerpts from' the letter entered as Exhibit 10 advised the respondent that hi's family "are doing fine"; that litter the first of October movement "the situation was indeed. very quiet andthe atmosphere unpleasant"; that on •April 10 'there was mob violence along 

Doho Street which resulted in. broken -front- .windowi in his father's 

bakery "and that fortunately the bakery was not entered due to 

the intervention of "military men and police." 

The respondent testified that the Indonesian police make no distinction 'between the Chinese born in China and the Chinese born in Indonesia as far as police protection is concerned (R-27) . He further 

testified that he had heard complaints from Chinese groups of how 

they were mistreated but that he had never actually experienCed any 

mistreatment himself (R-28). The respondent when queStioned as to 

whether he would be persecuted by the Indonesian Government if he 

returned to Indonesia replied in the negative (R-82). Ile admitted 

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Interim Decision #1825 

that the persecution of the Chinese is by factions or individuals or 

groups who have no authorized connection with the government 

(R-32). He also stated that the police do nothing to restrain mob 

violence when that violence is directed against the Chinese (R-32). 

The special inquiry officer concludes that the respondent has not 

met the burden of establishing that he would be subject to persecution 

if he returned to Indenesia by reason of the fact that he is a member 

of the Chinese race. The special inquiry officer relies on the respondent's 

testimony that he experienced no personal persecution before his departure in 1962; that the respondent was employed by the Indonesian 

Government before he departed; that he left his country with the blessing of his. government as an exchange visitor; that in effect the Chill= attitude has its origin by reason of the fact that the Chinese 

control the country economically and that while the Chinese as an 

ethnic group may • continue to draw the animosity or ill will of some 

of the Indonesian people any persecution of the Chinese has not been 

by government action. although there is some evidence that government authorities have acquiesced or sanctioned the agitation against 

the Chinese. 

- When the ease wAS originally before us in November of 1966 counsel 

argued that section 243(h) of -the Immigration and Nationality Act 

has no requirement that an alien prove to a mathematical certainty that 

acts of violence would be directed against him if he returns to the country to which he has been.ordered deported. Counsel also maintains that 

section 243(h) has no provision 'which requires the Attorney General to 

make a finding that the government of a country subjects an alien. deportee trs persecution. in order to be eligible for relief under section 

243(h) of the Act. 

The Attorney General is authorized to withhold deportation of any 

alien within the United Statei to any country in which in his 

opinion the alien would be subject to persecution on account of race, 

religion or political opinion. A deportable alien is eligible for relief 

only when in the "opinion" of the Attorney General his deportation 

would subject the alien to persecution in the country to which he has 

been ordered deported. The statute does not restrict or specify the considerations that may be welled upon by the Attorney General in 

formulating an "opinion." 

The evidence supporting the respondent's claim of persecution establishes with certainty that the Chinese as a race have incurred the 

animosity of individual groups of native Indonesians primarily because of their ability to control the economic and material wealth of 

Indonesia. There is also evidence that Chinese who are on the same 

social economic level as the indigenous Indonesians are in many in586 
Interim Decision #1825 

stances assimilated into Indonesian society as students and government 

employees (Ex. 7). The respondent was employed in a responsible 

position by the Indonesian Government prior to his departure for the 

United States. 

The respondent in the instant case concedes that he never experienced persecution prior to his departure from Indonesia. There 

is also evidence that the property of his father was protected from mob 

violence by the police of the respondent's local community as recently 

as June of 1966 (Ex. 10). The respondent was permitted to depart by 

his government as an exchange visitor and this fact contemplates his 

return with knowledge that would inure to the benefit of the government of Indonesia. He testified that he has no personal knowledge that 

the Indonesian Government has stimulated hostility toward the 

Chinese who live in Indonesia (R-35). 

The conditions which would confront the respondent upon returning to Indonesia have counterparts to a certain degree in other 

countries which from time to time experience mob action by one ethnic 

group against another. The hazards of personal injury which arise as 

the result of conflict.between majority and minority ethnic groups, in 

our judgment, are not contemplated within. section 243 (h) when there 

is a reasonable showing as in this case that the government in power 

does make -an attempt to control such incidents. Accordingly, we condude -that -the respondent has not established that he would be subject 

to persecution within the meaning of -section 248 (h) by claiming a fear 

of persecution by reason of the fact that he is an ethnic Chinese who 

would bo returning to a country whioh on occasion had experienced mob 

violence directed against members of his race by individual groups. 

The appeal will be dismissed. 

ORDER : It is directed that the order entered by the special inquiry 

officer on May 31,1966' denying the respondent's application to withhold deportation to Indonesia under the 'provisions of section 243(h) 

of the Act and granting him voluntary departure in lieu of deportation be and the same is hereby affirmed. 

BEFORE THE BOARD 

The respondent, of Chinese ethnic origin, is a native and citizen of 

Indonesia. The Board of Immigration Appeals, on September 15, 

1967, entered an order affirming a decision of the special inquiry officer 

entered on May 31, 1960 denying the respondent's application to withhold deportation to Indonesia under the provisions of section 248 (h) 

of the Immigration and Nationality Act and granting him voluntary 

departure in lieu of deportation. Counsel for the respondent moves 

for a reconsideration of this order. 

567 
Interim Decision #1825 

The evidence supporting the respondent's claim of persecution has 

been fully discussed in our opinion of September 15, 1967 and will not 

be repeated. After a careful review of the evidence we concluded that 

the respondent had not established that he would be subject to persecution within the meaning of section 243(h) by claiming a fear of 

`persecution -by reason of the fact that he is an ethnic Chinese who 

would be returning to a country (Indonesia) which on occasion has 

experienced mob violence directed against members of his race by 

individual groups. 

The thrust of counsel's argument urging error in the Board's conclusion is that section 243(h) does not require an alien to prove that 

he Nvolild be subject to persecution by his-goverriment in order to be 

eligible for relief and that eligibility is established when the evidence 

affirmatively shows that an alien would be subject to persecution because of mass activity on the part of the dominant race of a country or 

an organised mil:Jerky within a country against an ethnic group of 

which the alien is a member. We do not dispute counsel's argument that 

the statute does not require proof of persecution by an -organized 

government. However, the statute does give the Attorney General 

discretion to stay deportation only in circumstances where an alien 

affirmatively shows that he "would be subject to persecution on account 

of race, religion, or political opinion" in the country to which he is 

being deported. 

The policy of restricting llie'faitorable exercise of ctscretion to 

cases "of elear probability of perseentiOn of the particular individual 

ipetitioner has been sanctioned by the courts. Lena v. Immigration 

and NaturblilatiimigetaCe, 379 F.2d 536, 538 (CA. 7, June 7, 1967). 

Mob action may be a ground for staying deportation under section 

243(h) whet° it is established that a government cannot control the 

mob. The evidence before us, however, establishes to our satisfaction 

that the IndonesianGoirernment is able to control mob action. 

A recent article in the New York Times (March 25, 1967) submitted 

by counsel during oral argument • states: 4The harassment (of the 

Chinese) varies from one area to another depending on the attitude of 

local officials. In some cases it (the harassment) seems to meet strong 

opposition from top Government officials." This is not evidence that 

the 4es.pepdent as an individual would be subject to persecution in 

Indonesia because. of his race, religion,Rr political opinion..In fact the 

respondent testified that he was not alvare,of any, activity by the Indonesian Government to stimulate mass activity and hostility toward 

persons of Chinese origin (A-84).. The evidence .of sporadic harassrapt of ethnic Chinese which varies from one area ;of Indonesia to 

another does not amount to the particularized persecution that justifies 

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Interim Decision #1825 

a stay of deportation under section 243 (h) of the Immigration and 

Nationality Act. Meng Kai Fa, et a2. v. Immigration. and Naturalisation Service, Nos. 287 and 236 (C.A. 2, November 16,1967). 

Counsel argues that the recent amendment of section 243(h) which 

eliminates the term "physical persecution" and inserts in lieu thereof 

"persecution on account of race, religion or political opinion" equates 

section 243(h) with section 203 (a) (7) -which defines a "refugee" and 

accordingly the same burden of proof and standards for granting 

relief is required for both sections of the Act. Counsel refers to the 

legislative history of the amendment in support of his argument (Congressional Record, Volume III, No. 157, pp. 20995 and 20996, House 

of Representatives, August 25, 1965) . 

While it is true that the sponsor of the amendment said that the 

alien who applies for a stay of deportation under the amended statute 

"must bear the same burden of proof" as the alien who seeks to enter 

the 'United. States as a "refugee," nevertheless he made it clear that 

the amendment "narrows the word persecution by limiting the scope 

of its interpretation to three specifics: namely, persecution on account 

of race, persecution on account of religion, or persecution on account 

of political opinion." 

Section 203(a) (7) of the Act grants a conditional visa to an alien 

who satisfies an immigration officer at an examination in any nonCommunist or non-Communist dominated country that "because of 

persecution or fear of persecution on account of race, religion or 

political opinion (he has) fled from any Communist or Communist 

dominated area, or from any country within the general area of the 

Middle East, and (is) unable or unwilling to return to such country 

or area on account of race, religion or political opinion, and (is) not 

(a) national of the countries or areas in which (his) application for 

conditional entry is made .. ." An alien refugee must satisfy an immigration officer that he is otherwise admissible under the entire immigration process before he can be granted a conditional entry whereas a 

deportable alien regardless of the provision under which he has been 

found deportable may be granted a stay of deportation if in the 

"opinion" of the Attorney General he would be subject to persecution 

on account of race, religion or political opinion. The amendment did 

not change the basic concept with regard to the test to be applied by the 

Attorney General in exercising his discretion. It merely limited the 

scope of section 243(h) to three specifics, namely, persecution on account of race, religion and political opinion rather than one general 

term, namely, "physical persecution." Under the circumstances, we 

find no support in the legislative history of the amendment for counsel's 

argument that an alien deportee is required to do no more than meet 

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Interim Decision 4E1825 

the standards applied under section 203 (a) (7) of the Act when seeking 

_relief under section 243 (h) . 

In the absence of convincing evidence that the respondent would 

be singled out for persecution if he returns to Indonesia because of the 

fact that he is an ethnic Chinese, we find no basis for granting a stay 

of deportation under section 243 (h) of the Immigration and Nationality Act. The motion will be denied and our order of September 15, 

1967 will be affirmed. 

ORDER: The motion to reconsider is hereby denied; the order 

entered by the Board of Immigration Appeals on September 15, 1967 

is hereby affirmed. 

570