Interim Decision 4 1270 

MATTER or Drat 

In DEPORTATION Proceedings 

A-12386631 

Decided by Board March 90, 1963 

Respondent, a native and national of the Dominican Republic, has not established 

that he would be subject to physical persecution within the meaning of section 

243 (li) of the Immigration and Nationality Act by claiming possible physical 

injury, incurred as an innocent bystander, incident to uncontrolled mob violence in the Dominican Republic. 

CHARGE: 

Order; Act of 1952—Sectioa 241(a) (2) [5 U.S.O. 1251(a) (2)]—Visitor 

remained longer. 

The record establishes respondent is deportable as charged in the 

order to show cause. He remained in this country after the authorized time of his visit expired on December 10, 1961. The special 

inquiry officer granted him the privilege of voluntary departure to be 

replaced by deportation to the Dominican Republic, the country of his 

birth and nationality, if he fails to comply with the conditions governing his voluntary departure. Respondent did not designate a country to which lie would want to be sent if deported. The maintains he 

will be physically persecuted if returned to the Dominican Republic 

and appeals from the portion of the special inquiry officer's decision 

denying him the benefits of section 243 (h) of the Immigration and 

Nationality Act. 

Respondent's contentions differ substantially from those generally 

raised in proceedings under section 243(h). He does not allege the 

Dominican authorities would physically persecute him because of any 

opposition on his part to the present government or any past activities. 

Counsel for respondent asserts the special inquiry officer erred in limiting physical persecution under the statute to acts inflicted, or sanctioned, by governmental authorities. He argues that the statutory 

meaning of the term "physical persecution" includes bodily harm at . 

the hands of the populace (or certain elements thereof) where the gov199 
Interim Decision 40270 

•rnment, although not sanctioning such act, is unable to control the 

situation. 

Respondent's evidence consists almost entirely of testimony of two 

-witnesses and factual material from newspapers and magazines published either in this country or the Dominican Republic. Primarily, 

it reports instances of mob violence occurring in Santo Domingo over 

the past several months and points to the elements contributing to the 

unrest. None of this evidence relates directly and specifically to 

respondent. 

As we perceive counsel's argument it comprises at least three distinct situations. A mob or organized group in the Dominican Republic may attack a person known to have been connected officially or 

unofficially with the Trujillo regime and suspected, with good reason, 

of participation in the dictatorship's excesses, or known by the mob or 

group as otherwise opposed to its interests. The second situation also 

results in intentional physical harm, but there the mob or group erroneously identifies the person as inimical. Respondent's witness, Armando Luna, underwent such an experience. In either of the foregoing situations the attacker (as happened to the witness, Luna) may 

-enlist the unwitting aid of the authorities through false accusations. 

In the third situation a completely innocent bystander may be inadvertently injured during a riot or other lawless and violent activity 

caused by political unrest. 

As the'Service's representative at oral argument points out, counsel's 

historical examples of nongovernmental persecution relate to particular groups—the early Christians, the Jews in Russia, and the 

nobility during the French revolution. The dictionary defintion referred to in respondent's brief also suggests the group or class concept. 2 

 Respondent, however, disclaims membership in any class or group 

-which would render him particularly liable to harassment. Thus we 

do not have before us the situation in which a mob or group might 

attack 's person because of his past or present political activities. 

Accordingly, we do not rule whether the statute contemplates that 

situation.2 

2 ". . . Third Edition of Webster's New International Dictionary issued in 

1961, which is quoted as follows: 'la The Act or practice of persecuting as (1) 

the infliction of sufferings, harm or death on those who differ (as in origin, 

religion or social outlook) in a way regarded as offensive or meriting extirpation: * * * b : a campaign having for its object the subjugation or extirpation 

of the adherents of a religion or way of life (pogroms in Russia)'." Respondent's brief, p. 2. 

The point which counsel raises has been at least twice before Federal courts 

of appeals. In each ease a group of Communists—acting without the government's authority or approval—allegedly would harass the individual in question 

Footnote continued on following page. 

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Counsel for respondent does not clearly distinguish the variations of 

what we have assigned as his second situation. Under that situation 

the attackers may simply mistakenly identify the victim. On the 

other hand, the attackers may properly identify the victim, but act on 

the basis of motives unrelated to those avowed. There may be only 

a single attack or two or more. These possibilities suggest many 

ramifications in the broader aspects of the question whether physical 

injury arising under this second situation might come within the 

statutory concept of physical persecution. 

Physical persecution for purposes of the statute has been held generally to be based upon religious, political, or racial grounds' There 

is some indication that the term should not be so restricted.' We limit 

our inquiry at this point, however, to circumstances in the second situation, reasonably derived from the record, which if counsel's thesis is 

correct might satisfy the requirements of the statute. Within this 

scope any intentionally inflicted physical harm respondent might suffer could result only from a completely mistaken identification of him 

as a supporter of Trujillo or as otherwise opposed to the political interests of the mob or fraction. Nothing in respondent's testimony 

because of his political convictions. In Lavdcts v. Holland, 235 F.2d 955 (CA. 

3, 1956), the court ruled there was insufficient basis for the petitioner's belief 

that if he returned to his small community in Greece, Communists there, who 

in no way represented the governmental authorities, would physically harm him. 

The court for this reason did not decide nor comment upon whether fear of persecution by secretly and illegally operating communist terrorists in the petitioner's 

homeland might satisfy the requirements of the statute—section 4 of the Dieplaced Persons Act, 50 U.S.C. App. section 1953. 

In U.S. ex rel. Cantieani v. Holton, 248 F.2d 737 (OA. 7, 1957) cert. den. 356 

U.S. 932 (1958) (referred to by the special inquiry officer) the petitioner declared 

he would be subject to persecution and abuse from communistic elements in 

his village in Italy. The court in upholding the administrative denial of relief 

under section 243 (h) of the Immigration and Nationality Act (8 U.S.C. 1253 (h) ) 

gave no indication whether abuse by nonofficial elements in the population could 

constitute physical persecution for purposes of that statutory provision. On 

that subject the court pointed out only that there was no proof the authorities in 

the village, admittedly noncommunist, could not protect the petitioner. 

A district court, however, has considered that section 6 of the Refugee Relief 

Act of 1953 as amended (50 U.S.O. App. section 1971d) did not require "persecution or fear of persecution" to be by the de /are or de facto government of the 

foreign country. The court ruled that the petitioners should have been allowed 

to submit evidence that they feared persecution from certain communist elements 

in Italy. D'Antonto v. 'Witmer:nosey, 189 F. Supp. 719 (S.D. N.Y. 1956). 

Madam v. Bouchard, 280 F.2d 507 (CA. 3, 1961), cert. den. 866 U.S. 950 

(1961) ; Matter of Kale. A-9555532,4/23/58, discussed in Dentbrovskie v. Evenly, 

195 F. Supp. 488 (S.D. N.Y. 1961) ; Gordon and Rosenfield, Immigration Law and 

Procedure, b97 (1962 Supp.). 

` Wasserman, Book Review, 28 Fordham L. Rev. 860 (1959-1960). 

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Interim Decision #1270 

provides a basis for believing that he might be denounced on political 

grounds but for purely personal, or other irrelevant, reasons. Apart 

from whether the injuries suffered by the witness Luna constitute 

physical persecution within the meaning of the statute, respondent 

has not connected his circumstances to those of Luna. 

At oral argument counsel for respondent, in an attempt to counter 

the Service representative's suggestion that physical persecution contemplates action aimed against a member, or members, of a particular 

group, suggested that mobs in the Dominican Republic might identify 

respondent and his compatriots in the other similar cases before us as 

former supporters of Trujillo. He noted they are from the middle 

class, have traveled to the United States, and would be distinguishable 

in appearance from the mobs. We do not believe, however, that the 

mobs would seek out an individual on the streets of Santo Domingo 

simply because of his middle- or upper-class appearance. 

Moreover, there are obvious interpretive difficulties in holding that 

physical persecution for the purposes of section 243 (h) includes physical injury due to mistake. Logically, such an occurrence appears further removed from the ordinary concept of persecution than what 

befell witness Luna. Practically, in only highly unusual circumstances could the opinion required by the statute be reached. Additionally the fewer and less related any possibilities of injury might be 

the more difficult a holding of likelihood of physical persecution would 

become. 

Therefore, even if respondent were to suffer physical injury because 

s. mob or group in the Dominican Republic mistakenly identified him 

as a proper object of its wrath, in all probability the circumstances 

could not reasonably be considered physical persecution for purposes 

of the statute. In addition, respondent has not shown that any such 

fate awaits him in his native land. Under any of the circumstances 

of the second situation which might be relevant to respondent's case, 

he is not entitled to the benefits of section 243(h). We do not rule on 

the legal effect for the purposes of section 248 (h) of circumstances in 

veneral under that situation. 

We determine therefore that respondent's case rests squarely upon 

the third situation- 5Respondent says that it would be risky for him, 

or any other Dominican here, to return to the Dominican Republic 

under present conditions. The provisional government, he contends—

although desiring to maintain law and order—is unable to control effectively outbreaks of mob violence arising from the general political 

5 Subsequent to oral argument in respondent's case, his counsel argued a group 

of similar cases in which counsel's contentions relate solely to what we characterize as the third situation. 

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Interim Decision #1270 

unrest which has followed Trujillo's assassination. He argues that 

any innocent bystander may be injured or killed. 

Narrowly, therefore, the issue before us is whether physical harm befalling an innocent bystander during a lawless and riotous demonstration by a mob might constitute physical persecution within the 

meaning of section 243 (h). 

We hold section 243 (h) does not cover injuries which may befall 

anyone who happens to be in the vicinity of an outbreak of mob violence, even though the mob is aroused by factors commonly associated 

with persecution—racial, religious, or political differences. The statute is designed to benefit a particular class of persons, not any national 

of a country which is undergoing a period of upheaval accompanied 

by violence. Respondent is attempting to equate physical injury 

arising out of political discord with physical persecution. They are 

not necessarily the same. 

To hold that accidental bodily harm resulting from an anarchical or 

otherwise dangerous internal political situation does not come within 

the purview of section 243(h) is not to deny a remedy to individuals 

who face such situations. Deportation to troubled areas may be stayed 

by the Service as a matter of policy during an emergency irrespective 

of the probability of physical persecution, just as official temporary 

travel bans to certain geographic areas are often imposed. 6Nothing 

which we say here should be construed as a recommendation either for 

or against granting such an administrative stay of deportation to 

respondent. We have no jurisdiction over a stay of this type? 

Moreover this appeal brings 'before us matters not suited to adjudicative processes. Respondent relies upon current events, but the events 

of record are no longer current. The decision must necessarily disregard facts which occurred contemporaneously with, or immediately 

prior to, the hearing and consider facts which have arisen subsequently. 

Counsel's own argument illustrates the difficulty. His brief argues 

that deportation should be stayed at least until the elections promised 

for December 20, 1962. At oral argument he suggested that action 

leading toward deportation should be deferred until at least the officials elected in the December elections take office on February 27th 

Since it is possible nationals of a country might incur risks during a period 

of violent political discord which casual visitors would not, the absence of a general ban on travel to the Dominican Republic does not weaken counsel's argument 

in its entirety. But the freedom of travel to the Dominican Republic does affect 

adversely counsel's contention that respondent faces serious danger of personal 

injury as an innocent bystander. 

ICounsel for respondent indicates that the Service had earlier refrained from 

deporting Dominican nationals to their homeland. A change in that policy 

brought on these proceedings. 

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of this year. In arguing similar cases on March 4, 1963 counsel said 

in effect that it is too early to determine conditions under the new 

government. 

The changing political scene in the Dominican Republic necessitates 

these shifts in argument; the shifting basis for decision demonstrates 

that the grounds for a stay of deportation urged by respondent fall 

properly within the more flexible sphere of purely administrative action rather than the procedures imposed by the regulations under the 

statutory provision. The statute and regulations contemplate that 

the conditions relied upon be sufficiently static to enable, by a process 

of adjudication subject to review, formation of a considered opinion 

of the likelihood of physical persecution. 

Yet the factual record here also supplies ample grounds for denying 

respondent's application for a stay of deportation because of anticipated physical persecution. Looking at conditions in the Dominican 

Republic either at the time of the hearing or at the present time, we 

find little larenhood that, if respondent returned there, his allegations 

would be borne out. The situation in the Dominican Republican is still 

developing. Nevertheless, in addition to being insufficiently connected 

to respondent, assertions in the record that the present democratic 

trend may terminate are speculative. 

More importantly, however, respondent's application fails as a 

matter of law. Counsel for respondent has been afforded unlimited 

opportunity to develop his thesis. The attorneys who represented the 

Service at the hearing in this and related cases have objected to 

certain testimony and to submission of some of the documentary evidence as not germane to the issue of physical persecution. The special 

inquiry officers—although often noting the merit of the objection—

have accepted such evidence into the record in order not to hamper 

the respondents' presentation of their position. We have reviewed 

counsel's contentions sympathetically in order to give these respondents 

the consideration of everything in their favor—over and above what 

we might perceive as deficiencies in their actual proof. At the minimum, however, the benefits of section 243 (h) may be extended only 

to one who faces being singled out for physical suffering imposed on 

the basis of some belief or activity which the oppressor seeks to overcome or punish.8The assertions by and in behalf of respondent and 

his compatriots relating to the third. situation, which alone find any 

measure of support in the record, do not bring them within this standard. We need not decide here what other requirements may be imOf course, many situations which would meet these broad criteria would 

not, on other grounds, constitute "physical persecution." 

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plicit in the statutory language—particularly whether governmental 

authorities must inflict or sanction the physical persecution. 

We reach the same conclusion as the special inquiry officer, if not 

completely upon the same grounds. Respondent's evidence and argument, as related to that evidence, do not, in our minds, conform to any 

reasonable statutory meaning for the term "physical persecution." 9 

We shall dismiss the appeal. 

ORDER: It is ordered that the appeal be and hereby is dismissed. 

° In addition to the record in respondent's case, we have considered the testimony and any additional exhibits in counsel's similar cases currently before 

us, other material submitted by counsel to the Board, and all of counsel's 

arguments. 

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