Interim Decision #1249 

MA'ITER OF CAVLOV 

In DEPORTATION Proceedings 

A-15809142 

Decided by Board September B7, 1962 

(1) Since respondent, a native and citizen of Yugoslavia, apparently had fulfilled his military obligations when he left Yugoslavia without permission ; 

there is nothing in the record to indicate that he engaged in any activity inimical to the Communist Party in Yugoslavia or in any political activity whatever ; and there appears to be no basis for assuming that the amnesty granted 

by Yugoslavia to about 150,000 persons outside the country, including persons 

who fled that country illegally after World War II. is inapplicable to a person 

deported to Yugoslavia, respondent has not established that he would be subsect to physic:jai persecution under section 243(h) of the Immigration and 

Nationality Act. 

(2) While respondent is apparently a refugee under the mandate of the United 

Nations High Commissioner for Refugees, this in itself does not establish that 

he would be subject to physical persecution under section 243 (h) if deported 

to Yugoslavia because a person could be classified as a refugee for reasons other 

than fear of persecution. 

ate: 

Order: Act of 1952—Section 241(a) (2) (8 U.S.C. 1251 (a (2)3—Nonimmigrant, 

remained longer than permitted. 

This case is before us on appeal from a decision of a special inquiry 

officer granting voluntary departure and directing that the respondent 

be deported if he fails to depart voluntarily. 

The respondent is a 33-year-old unmarried male, native and citizen 

of Yugoslavia, who last entered the United States on May 28, 1959 

at which time he was admitted as a nonimmigrant crewman authorized 

to remain in the United States during the time his vessel remained 

in port but not exceeding 29 days. He has remained in the United 

States without authority. In the event of failure to depart, the special 

inquiry officer directed deportation to Australia, the country designated 

by the respondent, with alternative orders of deportation to Yugoslavia 

and Italy. That officer denied the respondent's application under 

:8 U.S.C. 1258 (h) for withholding of deportation to Yugoslavia. The 

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Interim Decision. #1249 

respondent does not contest the special inquiry officer's conclusion that 

he is deportable from the United States, and he stated that he does 

not think he would be physically persecuted if deported to Italy. The 

sole issue to be determined is whether the respondent has established 

that he would be subject to physical persecution if deported to Yugoslavia. 

We have carefully reviewed the entire record and our decision rests 

solely upon this record. The respondent was born in 1928. He was 

conscripted into the armed forces of Yugoslavia in 1948 and was 

discharged about seven months later because of illness. Subsequently 

he served about 17 months in the Army of Yugoslavia between 1951 

and 1953. With the exception of these two periods of military service, the respondent lived and worked at home on the family farm until 

1954 when he left Yugoslavia in a small fishing vessel with five other 

adults and landed in Italy. He testified that he lived in a refugee camp 

in Italy from 1954 until he came to the United States in 1959. 

In his application for withholding of deportation (Ex. 2), the 

respondent asserts that he is opposed to communism; that he left 

Yugoslavia without permission in 1954; and that, if he were deportedto Yugoslavia, he would be punished for having requested political 

asylum in Italy. The respondent asserted that about 1950 he was 

interrogated by the authorities in Yugoslavia because of certain statements he was supposed to have made against the communists. He admitted that he was not imprisoned at that time or subsequently; that 

he was not prevented from attending church; and that his mother 

and sisters and brother still attend church in the same place in Yugoslavia. He asserted, however, that he believed the authorities intended 

to put him in jail and that it was for that reason that he fled from 

Yugoslavia in 1954. 

Under 8 CFI't 242.17(0, the respondent has the burden of establishing that he would be subject to physical persecution if deported to 

Yugoslavia. The Government introduced a newspaper article dated 

March 14, 1962 (Ex. 6) indicating that Yugoslavia had granted an 

amnesty to about 150,000 persons outside the country including persons 

who fled the country illegally after World War II. In his letter accompanying the appeal, the representative of the respondent states 

that he will not return voluntarily to Yugoslavia and takes the 

position that the amnesty may apply only to persons so returning and 

not to any who are deported to Yugoslavia. While there appears to 

be no basis for assuming that the amnesty is inapplicable to a person 

deported to Yugoslavia, it does not appear to be too important whether 

the respondent is or is not technically within the purview of this 

amnesty. He had apparently fulfilled his military obligations when 

he left Yugoslavia, and we do not believe that he has established that 

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Interim Decision #1249 

he would. bephysically persecuted merely because he left Yugoslavia 

without permission. There is nothing in this record to indicate that 

the respondent engaged in any activity inimical to the Communist 

Party in Yugoslavia or in any political activity whatever. Apparently 

he engaged principally in the routine activity of a farmer. On the 

one occasion in 1950, when he claims he was questioned by the authorities, no action was taken against him. On this record, we are unable 

to say that the respondent has established that he would be subject to 

physical persecution if returned to Yugoslavia. 

The remaining point in the argument on behalf of the respondent 

relates to the letter (Ex. 4) dated May 10, 1962, by a representative of 

the United. Nations High Commissioner for Refugees which shows 

that the respondent is a refugee under the mandate of the High Commissioner; that his eligibility was determined on October 8, 1954; and 

that the High Commissioner is opposed to the return, against his will, 

of any refugee under the mandate to his country of origin. The special 

inquiry officer stated that, even though the respondent was recognized 

as a refugee in 1954, this did not mean that circumstances may not 

have changed since that time. The letter of the respondent's representative contains the assertion that the conditions have not changed 

for the better in Yugoilavia since 1954 and he has referred to certain 

statements indicating a closer relationship between Yugoslavia and 

the Soviet Union. Actually, we do not believe it is material in the 

respondent's case whether the present relationship between these 

countries represents reapprochement or divergence. The fact remains 

that Yugoslavia is a communist country, and we have considered this 

in reaching our conclusion in the respondent's case. 

Although the respondent is apparently a refugee under the mandate of the United Nations High Commissioner for Refugees, this in 

itself does not establish that he would be subject to physical persecution if deported to Yugoslavia. In his decision (p. 5), the special 

inquiry officer stated that an examination of the United Nations 

Resolutions indicates that the jurisdiction of the High Commissioner, 

insofar as it relates to this respondent, derives from the following: 

"Any person who, as a, result of events occurring before 1 January 1951 

and owing to well-founded fear of being persecuted for reasons of 

race, religion, nationality or political opinion, is outside the country 

of his nationality and is unable or, owning to suck fear or for reasons 

other than personal convenience, is unwilling to avail himself of the 

protection of that country; * * *" (emphasis supplied). The language which we have emphasized indicates that a person could be classified as a refugee for reasons other than fear of persecution except that 

it would not extend to a case where the reason was "personal 

convenience". 

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Interim Decision #1219 

We have taken into consideration the statement that the High Commissioner is opposed to the involuntary return of any refugee under 

the mandate to his country of origin. Nevertheless, we are required to 

decide this case on the basis of the specific provisions of the laws of 

this country. Since we have concluded that the respondent has not 

established that he would be subject to physical persecution in Yugoslavia, we are unable to make the finding required by 8 U.S.C. 125a (h). 

However, the respondent can avoid deportation to Yugoslavia by 

departing voluntarily to any other country in accordance with the 

voluntary departure privilege which was granted and, if he fails to 

depart, an effort will be made to deport him to Australia, the respondent havine,designated that country as the place of deportation. In 

view of the foregoing, the appeal will be dismissed. 

ORDER: It is ordered that the appeal be and the same is hereby 

dismissed. 

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