Interim Decision *1565 

MATrER of SISMALE 

In Deportation Proceedings 

A.-14682948 

Decided by Board March ES, 1966' 

(1) Where decision on. anapplication under section 243(b), IraMigration 

and Nationality Act, was rendered 'subsequent to the amendment of that 

section by section 11(f) of E L. 89-230, and fails to reveal whether the test 

of the new law was applied, the case will be remanded to have such 

deficiency supplied. 

(2) Mime a section 243(h) applicant Ilan the burden of establishing that her 

case warrants favorable action and since her own testimony may be the 

best and, in fact, the only evidence available to her, it must be accorded the 

most careful' and objective evaluation possible in the light of • •acceptable

official knowledge. 

CHARGE: 

. . 

Order: Act of 1952—Section ,241(a) (2) [8 1;8.0. 12513—Nonimmigrant 

(temporary visitor)—remained longer. 

This case is before us on appeal from a special inquiry officer's 

order of December 7, 1965, granting the respondent's alternative request . for voluntary. departure; providing for her deportation to 

Indonesia in the event of her failure to so depart; and denyinglhe 

application for temporary withholding . of depOrtationr. to Alai 

country. The case will be remanded to' the'speeial inquirj, 

for the reasons hereinafter set forth. • 

• The record relates to a 87-year:old single female alien, s;•mativd 

.and citizen of Indonesia, who last entered the United States on or' 

about August 25, 1964. She was then admitted at ra noninhmigraid 

temporary visitor. She was thereafter authorized to remain in. the 

United States in that status until: June 25, 1965. She has .remainfl.1.1 

.authority. . here since -that slate without

The foregoing establishes the .respondent's:deportability on the 

chvge contained in. the order to show 'cause. This was conceded 

in. the _course -of the hearing :before the special inquiry officer, ,pt 

which. time the respondent was reinesented by counsel. Tile point 

531 • 
Interim Decision #1565 

is unchallenged here. This aspect of the case, accordingly, requires 

no further discussion. 

The special inquiry officer granted. the respondent's alternative 

request for voluntary departure. Suffice it to say, in this connection, 

that the record before us supports said official's action in this respect. 

On October 3, 1965, section 11(f) of Public Law 89-236 was en- • 

acted (79 Stet. 911), amending section 243(h) of the Immigration 

and Nationality Act (8 U.S.O. 1253). That amendment struck out 

the words "physical persecution" and inserted in lieu thereof, as the 

test for temporary withholding of an alien's deportation, "persecution on account of race, religion, or political opinion" Our consideration of the special inquiry officer's opinion. in this case, which 

was rendered after the enactment in question, fails to reveal whether 

said official applied the test of the new law in arriving at his decision 

to deny this respondent's request for temporary withholding of her , 

deportation to Indonesia. We will remand the case to have this deficiency supplied. 

The respondent's basic contention on appeal, however, is that the 

special inquiry officer saddled her with an improper burden of proof. 

She claims that his decision rests solely on a finding that her testimony is incredible. She asserts that the evidence of record should 

not be so.simply brushed aside. 

This section of the law, as do several other provisions thereof, vests 

in the Abawney General or his duly designated delegate the discretion to grant or deny relief from deportation. In all such cases, 

favorable exercise of relief is manifestly not a matter of right under 

any circumstances; but rather is in all cases a matter of grace. The 

very wording of the Iaw.provides freedom of decision, to wit: the 

possibility of denial on purely discretionary grounds. 7n the last • 

analysis, then, the decision in an individual case depends• on the 

facts and circumstances peculiar to it. Accordingly, the enunciation 

of specific "standards" or "guide lines," as has been requested by the 

respondent, would be unwarranted. 

There are, nevertheless, certain general considerations which we 

think require recitation in connection with the instant application. 

Typically, the respondent has the burden of establishing that her 

case is a satisfactory one fOr favorable action (8 CPR 242.17(c)). 

Initially, that is, she has the obligation to set forth the conditions 

relating to her personally which support her anticipation of persecution. Characteristically, she has available to her no better methods for ascertaining current political conditions abroad than does 

the average person. Hence, practically speaking, although she may 

ultimately have the burden of persuasion, her own testimony may be 

532 
: 

Interim Decision-#i565 

the. best—in fact- the only—evidence she has available. It must, 

- therefore, be accorded the Most -eareful-and objective evaluation, pos 7 

 sible, in the light of acceptable official knowledge. 

Our carefUl ream of this record fails to reveal that the special 

inquiry officer has complied.with, the -foregoing fundamental requite- 

. ments'birein: We will, therefore, remand the case to said official 

for appropriate action accordingly:- In this connection, the respondent should be given the oppOrtunity to present any obtainable pertinent evidence supporting hei application. 

ORDER: It is ordered that the special inquiry officer's decision of 

December fi, 1965 be withdrawn and that the :case be remanded to 

said official for appropriate action not inconsistent with the foregoing opinion. 

533