Interim Decision #1347 

MATTER OF VARDJAN 

In DEPORTATION Proceedings 

A-11076903 

Decided by Board June 3, 1964 

(I) Reopening or application under section 243 (h), Immigration and Nationality 

Act, for submission of interrogatories to a Yugoslav consular officer will be 

denied because respondent has failed to meet the burden of establishing the 

necessity for the interrogatories or that the evidence is readily available since 

there is no showing of person before whom the interrogatories would be taken, 

that witness would voluntarily present himself to answer the interrogatories or 

authority exists in Yugoslavia to compel testimony, and there is no suggestion 

that letters rogatory are feasible or desirable. 

(2) Respondent's request for examination of Government report containing 

background information on conditions in Yugoslavia should have been denied 

on a claim of privilege as provided in 8 CPR 242.17(c). 

(3). Respondent has not established that because of her anti-Communist sentiments her efforts to resist return to Yugoslavia would subject her to physical 

persecution within the meaning of section 243(h) of the Act, if deported to 

that country. - 

(4) While respondent's economic prospects in Yugoslavia may not be good in 

view or her age (GO), limited skills, anti-Communist sentiments, and reluctance 

to return to that country, subsistence at a low level does not establish physical 

persecution within section 243(h) of the Act even if such subsistence, in 

whole or in part, results from restrictions on employment opportunities 

imposed deliberately because of her race, religion, or political opinion ; only 

total proscription of employment for such reasons suffices. 

(5) Section 243(h) does not contemplate protection against any future vagaries 

in the political scene under which the likelihood of physical persecution may 

be greater than at the present time, since such future possibilities are not 

amenable to proof; only where the likelihood of physical persecution presently 

exists is withholding of deportation warranted. 

CHARGE: 

Warrant: Act of 1952—Section 241 (a) (2) (8 U.S.C. 1251(a) (2) ]—Remained 

longer—Nonimmigrant visitor for pleasure. 

Respondent applied for withholding of her deportation to Yugoslavia on the ground that she would be physically persecuted there. 

She appeals from the special inquiry officer's denial of that application. 

567 
Interim Decision #1347 

In our opinion respondent would not be subject to physical persecution 

in Yugoslavia. Therefore we concur in the special inquiry officer's 

action. 

Respondent's authority to remain in this country as a visitor for 

pleasure expired on June 8, 1959. She had entered at New York on 

June VT, 1957. Deportation proceedings commenced on November 20, 

1959, with service of the order to show cause. Initially the special 

inquiry officer granted respondent voluntary departure with an alternate order of deportation. A private bill in respondent's behalf was 

then pending in Congress. Respondent did not appeal from the special 

inquiry officer's decision. 

Congress acted adversely on the private bill. Accordingly the Service, on June 29, 1900, notified respondent that she had until August 3, 

1960, to depart voluntarily from the United States. On August 2, 1960, 

respondent, pursuant to section 248(h) of the Immigration and 

Nationality Act, filed her application for withholding of her deportation to Yugoslavia, apparently anticipating that the Service would 

direct her deportation to that country.i 

The Service attempted to accord respondent a hearing upon her application before a special inquiry officer under the regulations then 

in effect. Respondent's counsel objected to her examination by anyone 

except a hearing officer appointed pursuant to the provisions of the 

Administrative Procedure Act. On advice of counsel, respondent 

declined interrogation and offered no evidence. The special inquiry 

officer recommended denial of the application. The regional commissioner on January 17, 1961, entered an order of denial. 

Respondent sought support for her position in the United States 

District Court for the Southern District of New York. The court, 

however, ruled adversely to respondent. On June 4, 1962, the Court 

of Appeals affirmed that judgment, per curiam, on the lower court's 

opinion. 

After the regional commissioner denied respondent's section 243 (h) 

application, the Service tried to obtain a Yugoslav travel document 

for respondent. Respondent declined to appear at the Yugoslav consulate for a personal interview requested by a consular officer. At 

the Service's request, however, respondent appeared with her counsel 

at the Service's local office. AYugoslav consular officer also appeared. 

No prior arrangement had been made with respondent for interview 

by, or in the presence of, a Yugoslav official 

1Section 243 (h) provides as follows : 

The Attorney General is authorized to withhold deportation of any alien within 

the United States to any country in which in his opinion the alien would be 

subject to physical persecution and tor such period of time as he deems to be 

necessary for such reason. 

568 
Interim Decision 4t1347 

Respondent says that the immigration officer, at the request of the 

Yugoslav official, inquired why respondent had declined to appear at 

the consulate voluntarily to renew her passport. Respondent, on 

advice of counsel, declined to answer. Her attorney relates that prior 

to that question he had strenuously objected to the procedure and that, 

after respondent. declined Lo answer the one and only question put to 

her, a further heated exchange followed. The immigration officer 

then terminated the interview. 

In July of 1962—subsequent to the Court of Appeals' decision affirming dismissal of respondent's complaint—respondent moved to reopen 

the administrative proceedings. The Service at first opposed that 

motion but later withdrew its objections_ The special inquiry officer 

granted respondent's motion. After full hearing on the merits, the 

special inquiry officer denied the application, entering the order under 

review here. 2 

At the reopened hearing respondent renewed her objections to the 

special inquiry officer's legal competency to preside. Her counsel 

indicated that he again raised this point, which the courts had decided 

against respondent, merely to preserve any rights or benefits respondent might obtain in the event the Supreme Court in another matter 

involving this issue rules to the contrary. Counsel has not pressed this 

point on appeal. Therefore, we need not consider the effect of the 

Court of Appeals' judgment in relation to these proceedings, nor the 

correctness of the special inquiry officer's ruling that respondent's 

renewal of the objection was frivolous. 

Respondent requests that, if we are unable to rule favorably upon 

her application on the record before us, we remand the case to the 

special inquiry officer for submission of interrogatories to the Yug,oslav 

consular officer who attempted to interview respondent in connection 

with her passport application and for production by the Service of 

certain reports in its possession covering general conditions in Yugoslavia. Although we believe we could dispose of this case without 

reaching the procedural points raised by respondent, we shall discuss 

them because of their importance for other proceedings. 

I. Respondent's request for submission of interrogatories to a Yugoslav 

government official 

Respondent has . prepared written interrogatories directed to the 

Yugoslav consular officer who was present at her interview at the 

Service's New York office. The record shows that officer's address 

in Belgrade. The interrogatories are not part of the record but were 

2Between administrative hearings, the regulations bad changed to give jurisdiction in 243 (b ) proceedings to the special inquiry officer, and, on appeal, to us. 

569 
Interim Decision #1347 

marked for identification (Ex. R-3). We shall not, therefore, refer 

to their specific contents but only to such matters as are developed in 

the record. The record sufficiently reflects their purpose, however. 

Thoi special inquiry officer refused to authorize presentation of the 

interrogatories to the Yugoslav official. He said that, because it is 

doubtful whether the official would or could be requested to answer, 

the proposed testimony could not be considered readily available. He 

also said the interrogatories are exploratory and of doubtful materiality here. We agree with the special inquiry officer's action, but the 

denial may better be based on other grounds. 

Respondent has the burden of showing the necessity of taking the 

deposition of a prospective witness.' Respondent's counsel said that 

through the interrogatories he seam to establish that the interview at 

the Service office brought to the Yugoslav authorities' attention that 

respondent seeks political refuge in this country, that she is not in 

sympathy with the regime in Yugoslavia, that she fears the government there, and that, out of fear, she refused to appear at the Yugoslav 

consulate to answer the consular officer's questions. Even assuming 

that the occurrences at the Service office were reported to the home 

authorities and tended to create the impression respondent seeks to 

establish, the proposed interrogatories are not necessary as evidence 

of the probable attitude of the Yugoslav authorities toward respondent 

in the event of her deportation to Yugoslavia. We may concede on the 

basis of the evidence of record that that attitude is apt to be hostile. 

It is possible the Yugoslav authorities are not aware of the judicial 

proceedings in respondent's behalf, although we consider such unawareness doubtful. Yet, apart from the judicial proceedings and the 

interview in question, the record shows respondent's long absence from 

Yugoslavia, her one brief contact with the consulate in 1958 for renewal of her passport, her failure in 1961 to, respond to the consulate's 

invitation for an interview, and the consulate's awareness that respondent is under deportation proceedings here. It is obvious on these 

facts alone, therefore, the Yugoslav authorities are aware respondent 

is resisting returning to that country. Without events at the Service's 

office, they might not now be as aware of respondent's reasons for 

refusing to contact the consulate—assuming those events were reported 

to them. If respondent were returned to the jurisdiction of those 

authorities, however, they could by interrogation and investigation 

easily ascertain her reasons for resistance. 

Thus, even if the Yugoslav consular officer responded to the interrogatories, and respondent's expectations were met, the evidence, for 

U.S. v. Ammeter, 5 F.R.D. 395 (E.D. N.Y., 1946). 

570 
Interim Decision #1347 

our purposes, would be largely cumulative. Such evidence might at 

best serve to bring into sharper focus respondent's relationship with 

the Yugoslav authorities. Any corroborative value it might have for 

other evidence of record, would be slight, however. Moreover, for 

reasons which we shall develop later, we do not believe that the events 

involving the consular officer unduly prejudiced respondent with the 

Yugoslav authorities insofar as likelihood of physical persecution is 

concerned. 

Thus respondent has failed to discharge her burden of showing the 

necessity for the interrogatories. For that reason alone they should not 

be authorized. Because the situation is somewhat unusual and our 

reasons for denying respondent's request may be important in other 

proceedings, however, we shall refer to various additional justifications 

for denial. 

As the special inquiry officer has pointed out, the regulations for 

proceedings under section 243(h) of the Immigration and Nationality 

Act authorize respondent to submit such evidence as is readily available.4In requesting presentation of interrogatories to the prospective 

witness, the burden is upon respondent to show the witness will present 

himself voluntarily to answer the interrogatories, or, if not, an authority in Yugoslavia to compel testimony. 5Respondent also should 

show the person before whom the interrogatories would be taken. She 

has done none of these. Although her 'counsel, in supporting the request, mentioned that permission to take interrogatories have been 

addressed to consuls in various parts of the world, he suggested no 

procedure for the interrogatories here. The Federal Rules of Civil 

Procedure provide a method for taking depositions in a foreign country Which we might adopt .° Our consular officers qualify as persons 

before whom such depositions may be taken. 

Respondent has not shown, however, that the Yugoslav government 

permits our consular officers to take depositions—particularly when 

the prospective witness is not only a Yugoslav national but a govern- 

' 8 CFR 242.17 ( c) 

° Cf. U.S. v. Avsmeier, supra'. 

° Rule 28 (b) provides : 

In a foreign country, depositions may be taken (1) on notice before a person 

authorized to administer oaths in the place in which the examination is held, 

either by the law thereof or by the law of the United States, or (2) before a person 

commissioned by the court, and a person so commissioned shall have the power by 

virtue of his commission to administer any necessary oath and take testimony, or 

(3) pursuant to a letter rogatory. A commission or a letter rogatory shall be 

issued on application and notice and on terms that are just and appropriate. It 

is not requisite to the issuance of a commission or a letter rogatory that the taking 

of the deposition in any other manner is impracticable or inconvenient * * *. 

571 
Interim Decision #1547 

ment official—or whether any consular convention between. this country and Yugoslavia covers such a situation- 7 

Moreover, in Branyan v. Koninklijke Luatvaart Maatsohappij the 

Department of State acknowledged that letters rogatory rather than 

notice to a consular officer or a commission provide the only fAnsible 

means of obtaining the testimony of government employees and the 

production of official records.9Although the information sought in 

Brangan was voluminous, technical, and complex—involving investigation of an airplane crash—the principle appears equally applicable 

here. Consular officers would naturally be reluctant to take testimony 

from officials of the host country, particularly in a matter which 

might be sensitive to the host government. Respondent does not even 

suggest that letters rogatory are feasible or desirable here. 

Finally, respondent seeks to obtain what would in effect be admissions against interest by a Yugoslav official. If that official were willing to make any statement at all (and assuming that a suitable method 

for taking the statement could be found) the possibility of obtaining 

probative evidence favorable to respondent's cause is remote. 9 

IL Respondent's request to examine certain reports contained in the 

Service's records 

Respondent refers to administrative proceedings before the Service 

in the ease of a certain Yugoslav national. Those proceedings have 

been cited in judicial decisions." In reaching its decision in that case, 

the Service relied upon certain reports obtained through various official sources. Those reports contained background 'information on 

conditions in Yugoslavia. Respondent requests that the reports be 

made available for her examination. 

The special inquiry officer denied this request on the ground that 

there is no showing that the information is sufficiently current and 

relevant to the particular facts and circumstances here to justify its 

production, and on the further ground that respondent's request 

appears to be a fishing expeditiOn. The special inquiry officer also 

mentioned—apparently as an additional reason for not directing production of the report—that some of the information may be confidential. He did not, however, specifically assign any claim of privilege 

See generally 22 U.S.C. 841, 816, 1195, 1203. 

8 13 F.R.D. 425 (S.D. N.Y., 1953). 

Compare Sang Ryup Park v. Barber, 107 F. Supp. 605 (NJ/ Calif., 1952)-

a somewhat analogous situation in reverse. There the Service sought evidence 

of nonpersecution from an interested foreign official. 

° Matter of Sale, A-9555532, April 28, 1958, discussed at length in Dombroeelle v. Esperdy, 198 F. Supp. 488 (1961) . 

572 
Interim Decision #1347 

to the documents. The trial attorney objected to production of the 

reports but did not specifically raise any claim of privilege. 

Although we believe the special inquiry officer's denial of this request 

should have been based upon an assertion that the information is 

privileged under the regulations, we shall not disturb his ruling. 11 

 We are familiar with the information which respondent seeks to examine. In our opinion, the regulations protect it from disclosure. 

We also believe the information would not materially assist respondent's case. The burden upon respondent is heavy, however. Evidence having a direct bearing upon an application for section 243 (h) 

relief is difficult to obtain. In proceedings under section 243 (h), 

therefore, we would be inclined to be liberal in determining the reasonableness and propriety of a request to examine information in the 

possession of the Government, if that information were nonprivileged. 

III. Background for respondent's application under section 243(h) 

Respondent is a national of Yugoslavia of German extraction. Her 

birthplace was formerly in Austria. Now , however, it is in Yugoslavia. Respondent is 60 years old, married but separated. 

Respondent completed eight years of elementary schooling in her 

homeland. Shi lived in this country from 1920 to 1926. She then 

returned to Yugoslavia where she married that same year She and 

her husband separated in 1951: In Yugoslavia respondent worked on 

land belonging to herself or her family and did housework. She has 

worked as a housekeeper in this country 

Respondent's husband lives in Yugoslavia. She has a son and two 

daughters. One daughter lives in Yugoslavia. The son and other 

daughter live in Germany. In this country respondent has two sisters 

and a brother. 

Respondent testified that she and members of her family favored reestablishment of the Royal Government after World War II. She 

says they were known to be opposed to communism. Apparently she 

and her family were relatively large landholders. 

In 1942 respondent's husband was arrested by the partisans and 

ahnost shot, but he escaped. He spent most of the war in Italian and 

German camps. Respondent's sister and brother-in-law were also 

sentenced to death by the partisans, but escaped. One of respondent's 

daughters, who was told the partisans planned to kill her, had to flee 

to Italy. 

". 8 CFR 242.17( c) provides in part : 

The determination under section 243(h) of the Act may be based upon information nut of record if, in the opinion of the special inquiry Meer or the Board, 

the disclosure of such Information would be prejudicial to the interests of the 

United States. 

573 
Interim Decision #1847 

Respondent's mother left Yugoslavia in 1955 and went to Austria, 

where she died about a year later. Upon her death the Yugoslav government confiscated her property. About 1950 respondent had also 

lost a large piece of land and a house. She owned this property with 

her husband. Respondent's testimony is not too clear, but it appears 

the government took for some special purpose considerable property 

where her land was located. Respondent received no compensation 

for her or her mother's land but her husband received a piece of property in exchange for his half of the property which he and respondent 

owned. 

IV. Respondent's reasons for anticipating physical persecution in Yugoslavia 

Respondent's contention that she will be physically persecuted in 

Yugoslavia rests generally upon her testimony that she and her family 

are known as anti-Communists and that she would now be in even 

greater disfavor with the Yugoslav authorities because of her unauthorized absence from that country and her refusal to return. She 

points to the Communists harassment of herself and members of her 

family through threats of, or attempts at, violence and by confiscation 

of her property and her mother's property without compensation. 

Respondent also believes that, because she has lost her farm land, she 

would be unable to support herself in Yugoslavia. She says no individual in Yugoslavia would employ her because there is no private 

work and the government would not want her. 

Respondent's testimony, at best, shows that she encountered socioeconomic difficulties in Yugoslavia because she was known not to be 

sympathetic toward the Communist regime. She never suffered any 

actual physical persecution. We do not believe her position would be 

appreciably worse if she were to return there. 

The threats of bodily harm and attempts at physical violence which 

respondent says were directed against members of her family, occurred 

during the war. Partisang made them. Respondent testified vaguely 

concerning the reasons for the partisans' actions. Her testimony 

suggests certain possibilities, however. The partisans may have considered respondent's family either was not supporting them sufficiently 

or represented actual opposition. Respondent indicates she and her 

family favored King Peter. The partisans may also have been opposed 

to respondent's family because of their ethnic origin, or their holdings 

of land. In any event, the wartime occurrences do not indicate any 

active opposition to communism which might now be apt to lead to 

hostile treatment of respondent at the hands of the Yugoslav authorities. Moreover, the past actions of those authorities in confiscating 

land belonging to respondent and her mother would also be unlikely to 

574 
Interim Decision #1317 

cause independently any new reprisals against respondent or to aggravate seriously any harsh treatment arising from other causes_ 

Respondent's testimony giving the reasons underlying the taking of 

her land is also vague. Apparently the government wanted at least 

part of it for some specific public purpose. Respondent believes she 

was not compensated because of her anti-Communist record, but such 

loss, even though severe economically, did not amount to physical 

persecution. 

Respondent's age and limited skills would doubtless restrict her 

employment opportunities in Yugoslavia. The authorities there might 

intentionally further restrict respondent's employment opportunities 

because of the matters to which she has testified, including her attempts 

to avoid returning to her homeland. We doubt, however, that respondent's fears that in Yugoslavia she would be totally without any 

means of support would be realized. Her economic prospects would 

not be good, but subsistence at a low level does not meet the statutory 

standard for physical persecution, even if such subsistence, in whole or 

in part, results from restrictions on employment opportunities imposed 

deliberately because of the individual's race, religion, or political 

opinion. Only total proscription of employment for such reasons 

suifices.12Respondent has not offered any evidence to corroborate her 

statement that the authorities would not want her because they know 

she is against them and would not care for her—how she lives, and 

what she does, or if she dies. 

Respondent says that if deported to Yugoslavia, she would be taken 

into custody, given a hearing, put in prison and maybe beaten up. She 

says she will have no freedom in Yugoslavia. 

We believe respondent would probably be questioned by the Yugoslav authorities if the were returned to her homeland. Possibly she 

would be confined during such examination. We believe any such 

confinement would be relatively brief, however. We see nothing in the 

record which indicates any likelihood of a prolonged investigation. 

Contrary to respondent's expectations, we also see little or no likelihood respondent would be imprisoned as a result of investigation. If 

by any chance respondent were imprisoned, we believe confinement 

would be for a relatively brief period of time. There are no circumstances in this record which indicate otherwise. Certainly, no reason 

appears for believing that respondent would be subject to imprisonment so prolonged or under such severe conditions as to constitute 

physical persecution. 

upunat v. Harney, 297 F. 2d 744 (CA. 3, 1982). Cf. Sonic v. Flagg, 303 P. 2d 

289 (0.A. 7, 1962). 

575 
Interim Decision #13117 

Current evidence of respondent's attitude toward the Yugoslav authorities is reflected primarily in her reluctance to return to her country. The record, however, contains nothing to distinguish her case 

from the numerous cases of Yugoslav nationals who have attempted 

strenuously to remain in this country rather than return to Yugoslavia. 

Respondent says that the incident -which occurred in the presence of 

the Yugoslav consul at the Service office is the worst thing that could 

happen to her in her relations with the Yugoslav authorities. She 

based her motion to reopen these proceedings upon that incident. We 

believe she has exaggerated its importance. The most favorable inference in her behalf that we can draw is some emphasis of her reluctance to be interviewed by a Yugoslav, consular officer and to participate in any steps designed to enable this country to return her to Yugoslavia. The consulate, of course, was aware of such reluctance. The 

attempted interview proposed to overcome it. 

Yugoslav authorities may pay some special attention to respondent's 

role at the attempted interview, if respondent is returned to Yugoslavia 

and subjected to interrogation or investigation. Respondent, therefore, has cause to be concerned. We do not believe she need. anticipate actual physical persecution, however. We doubt that the Yugoslav authorities would take such a severe view of the matter. Thus 

the incident is by no means dispositive of the issue here. 

We believe respondent while testifying had in mind primarily the 

harsh conditions in her homeland immediately following World War 

II. Political restrictive measures against individuals have relaxed 

considerably in Yugoslavia, even since respondent left there in 1957. 

Li the light of such current conditions as we may officially notice, and 

on the basis of respondent's own circumstances as shown in the record, 

we perceive no valid grounds for anticipating respondent would be 

physically persecuted if deported to Yugoslavia. Considering respondent's case as a whole, the Yugoslav authorities are at most likely 

to subject respondent to some form of social, and economic sanctions. 

Respondent's individual freedom may even be severely limited in numerous ways short 'of actual incarceration. Section 248 (h) does not 

protect against such sanctions and restrictions, however. 

Respondent has submitted several pieces of documentary evidence 

in the form of a book, reports, congressional correspondence, articles 

from a magazine and a Croatian newspaper, and newspaper clippings. 

This evidence bears upon conditions in Yugoslavia. Some of this material traces events during World War II, the transition to Communist 

control, and conditions in Yugoslavia in the period immediately following World War IL Other material is more current. The most 

recent information of any substance covers events approximately 

through 1961. 

576 
Interim Decision #1347 

This material serves mainly two purposes. It provides background 

information on living conditions in Yugoslavia under the Communist 

regime which respondent would face if she were returned to that 

country.13We would, in any event, take official notice of much of 

this information, but the material is helpful in calling our attention, 

and the attention of the special inquiry officer, to such matters. More 

importantly, the information serves as the basis for an argument which 

would substantially enlarge the scope of section 243(h). Counsel attempts to relate to respondent's particular situation general statements 

found throughout some of the material which describe difficulties of 

life in Yugoslavia. These difficulties confront practically all persons 

who do not accept communist principles. 

As we have seen, however, within our conception of the scope of 

section 243(h) there is no reason to believe respondent would be subject to physical persecution if returned to Yugoslavia. We could 

grant her application, therefore, only if we interpreted section 243 (h) 

to include the case of almost any person who has escaped from Yugoslavia or who, like respondent, has left legally but remained abroad 

becauee of reluctance to return to a Communist regime. In other 

words, we would have to so interpret section 243(h) that flight from 

Yugoslavia per se renders a returnee subject to physical persecution 1 4 

We are wrsvillbig to so rule without a clear congressional expression 

that physical persecution within the meaning of the statute is that 

broad. Otherwise, such an interpretation would appear to run counter 

to the legislative policy for refugees as expressed through P.L. 86-648." 

That policy limits recognition of the status of "refugee-escapee" even 

though the critical words in the definition of that term—"persecution 

or fear of persecution on account of race, religion or political opinion"—are, we believe, susceptible of a broader interpretation than the 

term "physical persecution." in section 243 (h)." Clearly section 243 

(h) of theAct is to be applied selectively. 

Among the material submitted by respondent, and accepted by the 

special inquiry officer to the extent of particular passages selected by 

respondent, is Milovan Djilas' book, The New Class (Ex. R-7). One 

" Included also is information on the plight of refugees from 'Yugoslavia. 

"We believe the dispute between the special inquiry officer and respondent over 

the incident at the Service office as a "bootstrap operation" involves essentially 

the special inquiry officer's reluctance to rule that respondent's section 243(h) 

application and the Incident before the consular officer per se justify withholding 

of her deportation. The effect of such factors should not be disregarded, but 

neither is in and of itself conclusive. 

11 74 Stet. 504, as amended 76 Stet. 124. The amendment removed the original 

expiration date of July 1,1962. 

" The definition of "refugee-escapee" in section 15 of P.L. 85-316, 71 Stet. 643, 

was adopted by P.L. 86-648. 

577 

768-456--65-38 
Interim Decision #1347 

of those passages itself refutes part of respondent's argument. In 

speaking of discrimination practiced by a Communist dictatorship, 

Djilas says: 

Persecution of democratic and socialist thought which is at variance with that 

of the ruling oligarchy is fiercer and more complete than persecution of the most 

reactionary followers of the former regime. This is understandable: the last 

named are less dangerous since they look to a past which bus little likelihood 

of returning and reconquering.17 

By her own testimony respondent favors the old regime. It is extremely doubtful, however, that even. a Communist court would classify her as a highly reactionary follower of that regime. Moreover, 

despite respondent's experience in living outside of Yugoslavia, it is, 

if anything, more doubtful that she would become in Yugoslavia such 

an articulate spokesman for Western ideas and ideals as to become 

subject to physical persecution. Nothing in the supporting material 

submitted by respondent alters our opinion that respondent faces only 

the difficulties ordinarily experienced by returnees to Yugoslavia. 

Respondent's testimony indicates that she expects long and harsh 

imprisonment, beatings, and possibly even death. The report on the 

European refugee situation prepared in 1959 by, the Zellerbach Commission, which respondent submitted in evidence, describes the usual 

fate awaiting Yugoslav returnees. The commission's interviews with 

numerous refugees indicate the possibility of imprisonment at hard 

labor for a few months is not uncommon. More important, however, 

the returnee will almost certainly be out of favor with the regime. 

Such lack of favor will probably find practical expression in discrimination in such things as employment and housing and perhaps 

even a greater curtailment of individual freedom than the populace 

as a -whole experiences. 

The extent of such difficulties -will, of course, vary greatly in the 

individual case. There are many variables. Among these variables 

are the individual characteristics of the returnee, the individual characteristics of the local Communist officials with whom the returnee 

comes into most intimate contact, and the overall political atmosphere 

at the time any particular hardship or difficulty is imposed. Among 

these factors we can here consider only respondent's individual characteristics and the current conditions and political atmosphere in 

Yugoslavia—to the extent that we may officially notice such conditions and atmosphere. 

Respondent argues that section 243(h) contemplates as well protection against any future vagaries in the political scene under which 

the likelihood of physical persecution may be greater than at the 

2' At 144, 45. 

573 
Interim Decision #1847 

present time. We do not agree. Such future possibilities are not 

amenable to proof and consequently their determination is not amenable to the adjudicative process. Only where the likelihood of physical 

persecution presently exists in a particular situation is withholding 

of deportation warranted. We do not find such likelihood here. 

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

579