interim Decision 9162226 

MATTER OF MACCAUD 

In Deportation Proceedings 

A-13497481 

Decided by Board September 7, 1973 

(1) An immigration judge cannot make a conclusive judgment of citizenship from 

a passport (Irish). 

(2) Where the country of deportation designated by the alien did not unconditionally accept him for admission, the immigration judge was correct in 

designating an alternate country of deportation in accordance with step 2 of 

section 248(a) of the Immigration and Nationality Act. 

(3) Where an applicant for withholding of deportation under section 243(h) of the 

Act was afforded ample time (amounting, in the aggregate, to several months) 

to set forth the bases of his claim, yet he produced nothing beyond his original 

outline statement, which did not make a prima facie showing of persecution, 

refusal of the immigration judge to allow a full hearing was not an abuse of 

discretion nor was his denial of further adjournment in error.* 

(4) Applicant has not established that because he aided some fellow prisoners 

(who were members of the Quebec Liberation Front) to become aware of and 

exercise their right under Canadian law, he would be subject to persecution 

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

country from which he entered the United States.* 

CHARGE: 

Order: Act of 1952—Section 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable at time 

of entry under motion 212(a)(1!7) as an alien who had 

previously been arrested and deported, no consent to 

reapply for admission having been granted. 

ON BEHALF OF RESPONDENT: 

Daniel J. Weinstein, Esquire 

Legal Aid Bureau of Buffalo, Inc. 

205 Walbridge Building 

Buffalo, New York 14202 

(Brief filed) 

ON BEHALF OF SERVICE: 

David L. Milhollan 

Appellate Trial Attorney 

Gordon W. Sacks 

Trial Attorney 

(Brief filed) 

The respondent appeals from the December 27, 1972 decision of 

the immigration judge in which he ordered that the respondent be 

deported. The immigration judge specified Canada as the place of 

• Reaffirmed, 500 F.2d 355 (C.A. 2, 1974). 

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Interim Decision #2226 

deportation, unless the Republic of Ireland should advise the 

Attorney General of its willingness to accept the respondent into 

its territory before deportation to Canada could be effected. In 

that case, deportation would be to the Republic of Ireland. He also 

denied the respondent's application for withholding of deportation 

to Canada under section 243(h) of the Immigration and Nationality 

Act.• We agree with the immigration judge; the appeal will be 

dismissed. 

The respondent, a native and citizen of Canada, conceded deportability on the charge contained in the Order to Show Cause at 

his original deportation hearing on January 31, 1972, and was 

permitted to designate the country to which he should be deported, "... if that country [was] willing to accept him into its 

territory . . .," section 243(a), Immigration and Nationality Act. 1 

 He designated the Republic of Ireland, and since he alleged he was 

a citizen of that country and had an Irish passport, the immigration. judge did not at that time specify an alternate country of 

deportation in hopes of obviating, if possible, an extended hearing 

on the claim of persecution under section 243(h) which the respondent was prepared to make if ordered deported to Canada. 

Following the deportation hearing, the respondent was convicted 

under section 276 of the Act for entering the United States 

without the consent of the Attorney General after previously 

having been deported. 

When the Republic of Ireland did not accept the respondent, the 

Service moved to reopen the proceedings so that the immigration 

judge might specify an alternate country of deportation. It is from 

the decision rendered at the conclusion of the reopened hearing 

that the respondent appeals. 

In his appeal the respondent contends that: (1) the immigration 

judge should have found him to he a citizen of Ireland; (2) the 

Attorney General did not make a proper inquiry of Ireland and 

therefore has not received a refusal to accept the respondent; (3) 

Ireland is willing to accept him; (4) if Ireland is not willing to 

1 Sec. 243. (a) The deportation of an alien in the United States provided for in 

this Act, or any other Act or treaty, shall be directed by the Attorney General to 

a country promptly designated by the alien if that country is willing to accept 

him into its territory, unless the Attorney General, in his discretion, concludes 

that deportation to such country would be prejudicial to the interests of the 

United States .... If the government of the country designated by the alien fails 

finally to advise the Attorney General within three months following original 

inquiry whether that government will or will not accept such alien into its 

territory, such designation may thereafter be disregarded. Thereupon deportation of such alien shall be directed to any country of which such alien is a subject 

national, or citizen if such country is willing Lo accept him hitt; its Le/Litt/1y.... 

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interim Decision #Vati 

accept the respondent, the Attorney General should impose sanctions against Ireland pursuant to section 243(g) of the Act; (5) the 

immigration judge abused his discretion in not allowing a full 

hearing, as required by 8 CFR 242.17(c), on the respondent's claim 

that he would be persecuted if returned to Canada; (6) the 

immigration judge erred in not granting an adjournment for the 

respondent's attorney to prepare his presentation of the persecution claim; and (7) the immigration judge erred in not granting 

withholding of deportation to Canada under section 243(h). We find 

these contentions to be without merit and shall dispose of each in 

turn. 

With reference to contention (1), we agree with the immigration 

judge's analysis of the issue (Decision of immigration judge, p. 10). 

While possession of a United States passport may be some evidence of United States citizenship, it is not conclusive proof 

thereof, and may be overcome by sufficient evidence that the 

holder of the passport is not a citizen, Urtetiqui v. D'Arcy, 34 U.S. 

692, 699 (1835); Peignand v. INS, 440 F.2d 757, 760 (C.A.1, 1971); In 

re Gee Hop, 71 F. 274, 276 (N.D. Cal. 1895); Matter of Rocha, 10 I. & 

N. Dec. 770, 772-73 (BIA, 1964); Matter of H-H-and H-M-, 

3 I. & N. Dee. 680, 683 (BIA, 1950). Thus, he may be refused 

admission despite his possession of a passport, In re Gee Hop, 

supra; Matter of H-H- and H-M, supra. Nor is a passport a 

judgment of citizenship, Matter of H-H-and H-M-, supra at 688. 

The law of Ireland appears to be the same as United States law 

on this point, and may be presumed to be the same in the absence 

of any evidence tending to show otherwise, C. McCormick, Handbook of the Law of Evidence § 326 (1954). Therefore, the immigration judge was in no position to make a finding as to the 

respondent's Irish citizenship. 

Regarding contentions (2) and (3), the statute does not require a 

refusal by the country designated by the respondent. If the 

Attorney General is not notified that the designated country is 

willing to accept the deportee within three months, the respondent 

is to be deported to the alternate country specified by the immigration judge, section 243(a), Immigration and Nationality Act. 

The record contains several letters bearing on the question of 

acceptance of the respondent by the Irish Government (Exs. 3, 4, 5, 

6, and 7, statement of August 28, 1972, and letter of November 2, 

1972 from the Department of Justice, Dublin). The Immigration 

and Naturalization Service request, made on February 17, 1972, is 

part of the record as Exhibit 4. The reply chiefly relied on by the 

Service is Exhibit 3, dated September 21, 1972, which states: "The 

Irish authorities have confirmed their refusal to accept Mr. MacCaud on deportation." It also characterizes the August 28, 1972 

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Interim Decision #2226 

statement from the Department of Foreign Affairs (upon which 

the respondent bases his contention that there has been no 

refusal) as a background note for press releases and not a formal 

statement of the Irish government. That statement said that all 

Irish citizens have the right to enter Ireland subject to normal 

immigration procedures and checks at the port of entry, and that a 

decision not to supply a special travel document does not involve a 

denial of entry into Ireland. The last letter on the subject, on 

stationery of the Department of Justice, Dublin, dated November 

2, 1972, signed illegibly by an unidentified signer, restates what 

was said in the unofficial background note of August 28, 1972. This 

is not an unconditional acceptance as required by the statute, U.S. 

ex rel. Tom Man v. Murff, 264 F.2d 926, 928 (C.A. 2, 1959); U.S. ex 

rel. Wong v. Esperdy, 197 F. Supp. 914, 917 (S.D.N.Y. 1961); Du v. 

Rogers, 164 F. Supp. 320, 321 (D.D.C), aff'd 262 F.2d 471 (D.C. Cir. 

1958). Ireland ordinarily issues a special travel document to deportees to that country whether or not they have Irish passports. 

The refusal to issue a special travel document may be due to the 

fact that, while the respondent indicated that his Irish citizenship 

rests upon his father's birth in Dublin (Tr. p. 8), two documents 

executed by the respondent on April 30, 1963 (Form 1-217, Information for Travel Document or Passport, Ex. 4; and the respondent's affidavit, Ex. 8) show that his father was born in Scotland. 

Since Ireland has not unconditionally accepted the respondent for 

admission and he will be subject to ordinary immigration inspection, and since there may be some doubt as to the validity of his 

claim to Irish citizenship, we agree with the immigration judge 

that Ireland has not demonstrated willingness to accept the 

respondent and therefore find that the immigration judge was 

correct in designating an alternate country of deportation in 

accordance with step 2 of section 242(a). 

Concerning contention (4), the respondent petitioned the United 

States District Court for the District of Connecticut for a writ of 

mandamus ordering the Attorney General to invoke sanctions 

against the Republic of Ireland, pursuant to section 243(g) of the 

Act, for its refusal to accept the respondent upon deportation. The 

request for mandamus was denied on the merits, MacCaud v. 

United Stutes, 354 F. Supp. 872 (D. Conn. 1972), and the respondent 

has filed an appeal with the Second Circuit Court of Appeals. Until 

the Court of Appeals acts, the District Court's decision stands. 

With regard to contentions (5) and (6), 8 CFR 242.17(c) allows the 

respondent in deportation proceedings 10 days to apply for withholding of deportation pursuant to section 243(h) and provides: ". 

The application shall consist of respondent's statement setting 

forth the reasons in support of his request. The respondent shall 

432 
Interim Decision #2226 

be examined under oath in his application and may present such 

pertinent evidence or information as he has readily available. The 

respondent has the burden of satisfying the [immigration judge] 

that he would be subject to persecution on account of race, 

religion, or political opinion as claimed ... ." 

As early as January 31, 1972 at the original hearing, the 

respondent expressed an intention to apply for withholding of 

deportation under section 243(h) if deported to Canada. When 

Ireland would not accept the respondent, the Service moved to 

reopen so that the immigration judge might specify an alternate 

country for deportation. The motion was granted on July 17, 1972 

over the respondent's opposition. 

The reopened hearing was first set for October 1972 in Connecticut, where the respondent was imprisoned after his conviction 

under section 276 of the Act. The respondent objected to the place 

of the hearing in a letter dated September 24, 1972, since his 

witnesses were nearer to the Buffalo area. In an October 18, 1972 

letter he objected to a proposed bipartite hearing, part in Connecticut and part in Buffalo. Finally the Government notified him that 

the reopened hearing would take place in Buffalo on November 6, 

just three days after the respondent's release from prison. The 

respondent replied that he needed more time to hire an attorney 

to prepare his case, but he submitted a seven-page outline of his 

claim. He wrote in ink at the end of the statement: "This is an 

outline only. Witnesses will be called to substantiate and elaborate 

these facts," (Ex. 10, p. 7). 

At the reopened hearing, almost four months after the motion to 

reopen was granted, the respondent again requested more time. 

The hearing was adjourned till the following day, when the immigration judge found that even if witnesses did testify and prove 

that all of the facts alleged in the respondent's persecution claim 

were true, the respondent would not be eligible for relief under 

section 243(h). However, he granted the respondent three additional weeks to amplify his claim with documents, affidavits of 

witnesses, and additional grounds. The respondent submitted 

nothing beyond his original claim. 

We agree with the immigration judge that it would be futile and 

wasteful to hold a further hearing on this claim of persecution. 

The respondent had ample time, amounting to several months, to 

set forth the bases of his claim, yet he produced nothing in all that 

time beyond . his original outline, which in our opinion does not 

make a prima facie showing of persecution. 

The regulation should not be interpreted to require fruitless 

proceedings. Further proceedings to prove the facts alleged in the 

respondent's outline of his claim would not change the outcome. 

433 
Interim Decision ozzzo 

The immigration judge did not abuse his discretion by refusing to 

allow a full hearing, and further adjournment was not necessary. 

As for contention (7), the respondent avers that when he was in 

jail in Canada before his last entry into the United States, he 

aided some fellow prisoners to become aware of and exercise their 

rights under Canadian law. Some of these fellow prisoners were 

members of the Quebec Liberation Front (FLQ). He alleges that 

because of this he was beaten by prison guards and will be subject 

to similar ill treatment if returned to Canada. There is nothing in 

the record which shows that the respondent has been or will be 

persecuted because of this tenuous association with the FLQ. 

We agree with the immigration judge's analysis of the persecution claim on pages 6-10 of his decision. While there is no precise 

definition of persecution in the statute, it has been defined in the 

courts as "the infliction of suffering or harm upon those whb differ 

(in race, religion, or political opinion) in a way regarded as 

offensive," Kovae v. INS, 407 F.2d 102, 107 (C.A. 9, 1969). Criminal 

prosecution is not persecution unless it is politically motivated, 

Sonic V. INS, 346 F.2d 360, 361 (CA. 7, 1965); Kazuo v. INS, supra 

at 104; Matter of Janus and Janek, 12 I. & N. Dec. 866, 876 

(BIA,1968). The respondent has not adequately shown that he was 

politically motivated in leaving Canada or that he has a reasonable fear of being persecuted upon his return. If he is prosecuted 

when he returns to Canada, it apparently will be for escaping from 

jail or breaching parole. Such prosecution does not seem to be 

politically motivated. In fact, the respondent has stated that prior 

grievances have been redressed by parliamentary enactments, 

that the prison guards alleged to have beaten him have been 

prosecuted (albeit they were acquitted), and that he was transferred at his request to different institutions for his protection. 

Furthermore, persecution must be at the hands of the government, unless the government cannot control the persecutors,Rosa 

v. INS, 440 F.2d 100 (C.A. 1, 1971); Matter of Tan, 12 I. & N. Dec. 

564, 568 (BIA, 1967); Matter of Eusaph, 10 I. & N. Dec. 453, 

455 (B1A,1964). We are satisfied that the respondent has failed to 

show a well-founded fear that his life or freedom will be threatened in Canada on account of his race, religion, nationality, 

membership in a particular social group, or political opinion. See 

Matter of Dunar, Interim Decision No. 2192 (BIA,1973). We therefore conclude that the respondent will not be subject to persecution 

if he is deported to Canada. 

In view of the foregoing we shall affirm the decision of the 

immigration judge and dismiss the appeal. 

ORDER: The appeal is dismissed. 

434