Interim Decision #2124—Appendix 

APPENDIX 

MEMORANDUM OPINION AND ORDER 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

JALEH BEHROOZI and 

ALI ASGHAR TAHERI, Plaintiffs, 

vsL. W. GILMAN, Regional Commissioner, 

Immigration and Naturalization Serv., Defendant. 

This 'is an action for a declaratory judgment finding plaintiffs 

eligible for permanent residency in the United States as refugees 

within the meaning of Section 203(ar) of the Immigration and 

Nationality Act, 8 U.S.C. § 1153(a)(7). 

This action is presently before this court on cross motions for 

summary judgment_ The pertinent facts are as follows: 

Both plaintiffs entered the United States as citizens and natives 

of Iran; plaintiff Behroozi as a non-immigrant visitor for pleasure 

in 1968, and plaintff Taheri as a non-immigrant student in 1964. 

Both enjoyed extensions of their status as non-immigrant students and visitors through 1970. 

On June 26, 1970, both plaintiffs were arrested, together with 

several other Iranian students, in connection with an incident 

involving the Iranian Consulate here in San Francisco. Both 

plaintiffs entered guilty pleas to a charge of false imprisonment 

and served 35 days in jail. 

In the summer of 1971, both plaintiffs applied to the Immigration 

Service seeking refugee status under Section 1153(a)(7), of the 

Immigration and Nationality Act, as interpreted in the Immigration Commissioner's decision in Matter of Zedkova (13 I. & N. Dec. 

626 (B IA,1970). 

In their applications for refugee status, plaintiffs alleged that 

they had "fled" Iran within the meaning of Zedkova, supra; that 

they had participated, while in the United States, in the activities 

of the Confederation of Iranian students which had recently been 

outlawed by the Iranian government; that they were unwilling or 

31 
Interim Decision #2124—Appendix 

unable to return to Iran for fear that they would be imprisoned 

because of their involvement with the Confederation and the 

Iranian Consulate incident. 

Section 1153(aX7) provides that conditional entries shall be made 

available to aliens who satisfy an Immigration officer: 

(A) that (i) because of persecution or fear of persecution on account of race, 

religion, or political opinion they have fled ... (II) from any country within the 

general area of the Middle East, and (ii) are unable or unwilling to return to 

such country or area on account of race, religion, or political opinion ... 

The Commissioner denied both applications upon the ground 

that petitioners had failed to establish that they had "fled" from 

their Middle East homeland within the meaning of Section 

1153(a)(7) and, having denied the petitions upon that ground, made 

no finding concerning the second requirement of Section 1153(a)(7), 

namely whether petitioners were unable or unwilling to return to 

their homeland on account of political opinion. 

Petitioners contend that the Commissioner's ruling was arbitrary, an abuse of discretion and a violation of his own regulation, 

Title 8 CFR, Part. 103.3(e), which provides that decisions selected 

by the Commissioner shall serve as precedents in all proceedings 

involving the same issues and, except as they may be modified or 

overruled by subsequently selected decisions, shall be binding on 

all officers and employees of the Service in the administration of 

the Act and that such decisions shall be published and made 

available to the public in the manner provided in Part 103.9(a). 

It has been held that, if there has been an abuse of discretion, 

i.e., no rational basis for the Commissioner's decision, it may be set 

aside. Suh v. Rosenberg, 437 F.2d 1098 (9th Cir., 1971); Reyes v. 

Carter, 441 F.2d 734 (C.A. 9, 1971). 

In Ariz v. Fullilove (N.D.Cal. 51148, 9/19/69), (appealed to become 

Ninth Circuit No. 25242, February 23, 1971) the Court of Appeals 

remanded with directions to this court to allow the Commissioner 

an opportunity to distinguish the Ariz decision from a prior, 

Tenorio case decided differently on apparently similar facts, or to 

state why the previous Tenorio decision should not be followed. 

Implicit in that remand is the proposition that, if valid distinctions 

of a prior different decision do not appear, or, if the Service does 

not show why its previous decision should not be followed, then it 

may be held that there has been arbitrary action in that the 

Commissioner, once having adopted a precedent, has failed to 

follow his own regulations by applying the precedent with an even 

hand in all cases involving the same issue. 

In support of their contention in this case, petitioners point out 

that in a previous decision, i.e., Matter of Zedkova, No. A-18049736, 

decided November 23, 1970, the Commissioner had held that for 

32 
Interm Decision #2124—Appendix 

purposes of the word "fled", as used in Section 1153(a)(7), it is 

immaterial whether the circumstances which cause an alien to 

become a refugee occur before or after departure from the country 

or area. 

Zedkova involved an alien Czechoslovak woman who was admitted to the United States in April 1968, as a non-immigrant visitor 

for pleasure and to visit friends. While she was here, the Soviet 

Union in August, 1968 invaded Czechoslovakia. Advised by her 

anti-communist parents that she might be persecuted by the new 

Czechoslovakian communist government, she (sic) became fearful 

of returning, and after refusing an order from the Czechoslovakian Embassy in the United States to return, she filed application 

for refugee classification under Section 1153(a.)(7). 

The Commissioner, considering the principal issue to be whether 

under these circumstances she could be regarded as having "fled" 

from a communist dominated country because of persecution or 

fear of persecution on account of race, religion or political opinion 

within the meaning of the statute held that she could be regarded 

as having "fled" saying: 

"It would be extremely narrow and inequitable to view those nationals who 

physically fled from Czechoslovakia because of political opinion as refugees 

and to withhold such status from those who remained out of the country for 

the same reason. According to "Webster's New International Dictionary," 

Third Edition, the term "fled" may reasonably be construed to include one 

who has avoided, abandoned or forsaken a danger or evil. Wo boleivo that this 

broad construction is consonant with the remedial nature and purpose of 

Section 203(a)(7) of the Act in its use of the term. Within the context of such 

definition, it is immaterial whether the circumstances which caused an alien 

to become a refugee occurred before or after departure from the country or 

area." 

There is, of course, the question whether the Commissioner's 

construction in Zedkova of Section 203(aX7), i.e., 8 U.S.C. § 1153(a)(7), 

was legally sustainable—although that question is not raised by 

petitioners, who merely complain that the Commissioner in their 

case should follow his ruling in ZedkoVa. 

It should be noted, however, that in Shabasit v. Immigration and 

Naturalization Service, 450 F.2d 345 (CA. 9,1971), the Court, having 

before it a record showing that Shubash, an Arab Christian, a 

resident of Jerusalem, carrying a Jordanian passport, left Jerusalem in 1966, not because of persecution, but for personal reasons as 

a non-immigrant visitor and showing, further, that since Shubash's entry into the United States, ISrael had occupied Jerusalem, held that on such record petitioner had failed to meet his 

burden of meeting either condition A(i) or condition A(ii) of Sec. 

1153(0(7). 

Assuming the soundness of the Commissioner's construction of 

33 
Interim Decision #2124—Appendix 

the law in Zedkova it appears that petitioners here were in 

virtually identical positions with Zedkova insofar as they, like 

Zedkova, had come to the United States for reasons wholly 

unrelated to flight arising out of any fear of political persecution in 

their homeland. In both cases any fear of return for such reasons 

arose out of changed conditions in the homeland occurring after 

the aliens had come to the United States—in Zedkova a Communist takeover; in this case according to petitioner's evidence 

presented to the Commissioner in support of their applications, an 

announced policy of the Iranian government to deal punitively 

with Iranians who, like these two petitioners, associated themselves with the Confederation of Iranian Students, apolitically 

oriented organization opposed to the established Iranian regime. 

Since, according to the Commissioner's Zedkova decision, "it is 

immaterial whether the circumstances which cause an alien to 

become a refugee, occurred before or after departure from the 

country or area", the question arises whether there is any rational 

basis for distinguishing the situations of these petitioners from 

Zedkova, insofar as the woid "fled" is concerned, or any rational 

basis for not following the Zedkova decision here. 

The Commissioner here considered the previous Zedkova decision and made a distinction from Zedkova upon the theory that in 

the pending cases the circumstances, occurring after petitioner's 

departure from Iran and causing their fear to return, are different 

from those constituting the analogous occurrence in Czechoslovakia after Zedkova's departure and causing her fear to return. The 

key to the Commissioner's distinction appears at p. 3 of his 

decision in this case where he states: "Iran has not been invaded 

by another country since the applicant's departure as Czechoslovakia was in the matter of Zedkova." 

'Of course, the circumstances are different, but both were political changes, one a communist takeover in Czechoslovakia and the 

other an announced governmental policy of Iran directed at the 

political activities of members, including petitioners, of the Confederation of Iranian students. 

The Commissioner's so called distinction appears to be a distinction as to detail rather than a distinction in principle. Having in 

mind the procedure followed by the Court of Appeals in Ariz v. 

Fullilove, supra, we are of the opinion that this case should be 

remanded, witout any final decision by this court, in order to give 

the Commissioner an opportunity to reconsider his decision in this 

case in light of our analysis of the situation, the Commissioner to 

report to this court within 60 days concerning whatever view or 

action he may take and this court reserving full power to reconsider its own tentative views expressed herein. 

34 
Interim Decision #2124—Appendix 

It is so ORDERED. 

DATED: December 22, 1972 

Matter of Jaleh Behroozi and Asghar Taheri 

Decided bylegional Commissioner July 10, 1973 

These applications are before the Regional Commisioner pursuant to an order of the U.S: District Court for the Northern 

District of California for reconsideration of denial decisions dated 

January 14 and 21, 1972, and to report to the Court concerning 

whatever views or action taken. 

Both applicants are natives and citizens of Iran. Mr. Taheri 

entered the United States as a non-immigrant student on May 13, 

1964, with authorized stay last extended until November 2, 1970. 

Miss Behroozi entered the United States as a nonimmigrant 

visitor for pleasure on October 21, 1968. Her status was changed 

from visitor to student on September 8, 1969, with authorized stay 

last granted until August 4, 1971. 

Both applicants were arrested on June 26, 1970, along with other 

Iranian students in connection with the invasion and damaging 

the premises of the Iranian Consulate in San Francisco, California. 

They subsequently entered guilty pleas to a charge of false 

imprisonment and served 35 days in jail. 

The applicants applied for classification as refugees under the 

proviso to section 203(a)(7) of the Immigration and Nationality Act, 

as amended, during 1971. They alleged that they "fled" from Iran 

within the meaning of that term as construed in the Matter of 

Zedkova, Interm Decision No. 2062 and that they were unwilling 

or unable to return to Iran as they feared that they would be 

jailed in Iran because of their activities with the Confederation of 

Iranian Students and because of their arrest for taking part in the 

anti-Iranian government demonstration at the Consulate of Iran 

in San Francisco. 

9/Ir. Taheri's application for classification as a refugee under the 

proviso to section 203(a)(7) was denied on January 14, 1972. That 

denial decision was selected by the Commissioner of this Service as 

a precedent decision and designated as Interim Decision No. 2124. 

Miss Behroozi's application was denied on January 21, 1972. In both 

cases, it was decided that the applicants had not established that 

they had "fled" from Iran within the meaning of section 203(a)(7). 

Both applicants had departed from Iran temporarily for personal 

reasons and not because of persecution or fear of persecution. It 

was decided that they had not "fled" from Iran within the 

meaning of that term as construed in the Matter of Zedkova, 

supra, as that case involved the development of a situation 

35 
Interim Decision #2124—Appendix 

subequent to the alien's departure over which the alien had no 

control, whereas in the instant cases, the applicants' situations 

were produced by their own deliberate actions. 

A complaint for declaratory judgment was filed in the District 

Court March 1, 1972, as a result of the denial decisions. The Court 

stated in part in its decision of December 22, 1972, that "it appears 

that petitioners here were in virtually identical positions with 

Zedkova" (emphasis supplied). The Court added that "the 

question arises whether there is any rational basis for distinguishing the situations of these petitioners from Zedkova, insofar as the 

word 'fled' is concerned, or any rational basis for not following the 

Zedkova decision here, and that the "so called distinction appears 

to be a distinction as to detail rather than a distinction in 

principle." In addition, the court stated, "The key to the Commissioner's distinction appears at p. 3 of his decision in this case 

where he states: 'Iran has not been invaded by another country 

since the applicant's departure as Czechoslovakia was in the 

Matter of Zedkova.' " Thereafter, these cases were remanded to 

give the Regional Commissioner an opportunity to reconsider his 

decision in light of the Court's analysis of the situation and to 

report to the Court within 60 days. The Service was subsequently 

granted until July 20, 1973, to make the required report. 

The Director, Office of Refugee and Migration Affairs, Department of State, was requested on January 23, 1973, to furnish an 

advisory opinion as to the validity of applicants' claim that they 

fear persecution in Iran because of their activities with the Confederation of Iranian Students. 

In his response dated June 7, 1973, the Director stated, in part, 

as follows: 

We believe that important differences exist between the situation of the 

Iranian students and that of Miss Zedkova. and that there are substantial 

policy reasons for insisting that the distinction be maintained in these cases. 

As you are aware, there is a relatively large number of foreign students in the 

United States at all times. The expenses of many of these students are paid by 

the government of the United States or of their own country with the 

intention that they will return home and there utilize the education and 

experience received in the United States. Many students assume an express 

obligation to so return. However, there has consistently been a number of 

foreign students who decide to remain in the United States more or less 

indefinitely, sometimes believing that opportunities for personal advancement 

are better here and sometimes for one or more of a variety of other reasons. 

In this context it should be noted that the duly enacted laws of 

foreign countries are very often less permissive than our own in 

the area of political dissent. It is not uncommon in many countries 

for membership in specified political organizations to be illegal 

even in the absence of political activities beyond simple member36 
Interim Decision #2124—Appendix 

ship. It is therefore not difficult for a foreign student or other alien 

in the United States to join disfavored political organizations, to 

make inflammatory political statements or to engage in protest 

activity, any or all of which might render such persons subject to 

criminal prosecution in their native countries. For these reasons, 

we feel that applications for refugee status by foreign students 

who came originally to the United States not for political asylum 

but for education should be examined with extreme care and not 

in the context of a section 203(a)(7) proceeding, which fails to 

include a full administrative hearing for development of relevant 

facts and review by the Board of Immigration Appeals. 

As indicated above, we believe that important distinctions exist 

between the cases of the Iranian students and that of Miss 

Zedkova, and that such distinctions should be urged upon the 

Court. In Zedkova, the Commissioner found that "It would be 

extremely narrow and inequitable to view those nationals who 

physically fled from Czechoslovakia because of political opinion as 

refugees and to withhold such status from those who remained out 

of the country for the very same reason." That determination was 

reached in the context of three specific findings of fact appearing 

in the decision which we consider important: first, that "several 

thousand Czechoslovak nationals escaped into Austria and Germany where they sought classification as refugees"; second, that 

"it has been satisfactorily Pstahlish ed that the applicant abandoned her residence in Czechoslovakia because of fear of persecution on account of her political belief ..."; and third, that there 

were new circumstances in Czechoslovakia which caused her to 

become an alien.l 

I. In context of other refugees. This finding indicates that Miss 

Zedkova's application for refugee status was made in the context 

of circumstances which strongly supported her application, i.e., the 

exodus from her native country of a mass of other citizens as a 

result of a political upheaval. It is notable that the Zedkova case 

did not arise as an isolated instance of alleged persecution, but 

rather in the context of a large number of similar applications 

which, according to the Regional Commissioner's decision, resulted 

in depletion of the visa quota under section 203(aX'7) for the first 

time since it became effective. 

Although we have not made an exhaustive review of the 

legislative history of section 203(0'7) and its predecessors, our 

limited research indicates this preference category was intended 

Per discussion with the Dept. of State, the word alien was intended to be 

"refugee." 

37 
Interim Decision #2124 Appendix 

by Congress to benefit refugees as that term is customarily 

understood, that is, persons who have actually fled their native 

countries because of persecution, usually political persecution. It is 

our understanding that the statute finds its origin in the participation of the United States in the resettlement of large numbers 

of World War II refugees, and, later, of persons who became 

refugees as a result of the Hungarian Revolution and the Suez 

conflict, both in 1956. While section 203(a)(7) may also apply to 

isolated cases of persons who actually flee because of fear of 

persecution from Communist or Middle Eastern countries, we do 

not believe this legislation properly can be interpreted so broadly 

as to include aliens who have come to this country as students and 

who thereafter claim refugee status on the basis of their own 

activities here some years after their arrivaL 

In the Zedkova case, the Regional Commissioner recognized the 

anomaly that would exist if persons who coincidentally were 

outside of Czechoslovakia for nonpolitical reasons at the time of 

the Soviet invasion were treated differently from the thousands of 

refugees who physically escaped into Austria and Germany. Such 

an anomaly, however, cannot be found in cases such as those of 

the present Iranian students. Although Iranians frequently travel 

abroad for educational and other purposes, and although a small 

number of the students abroad are opposed to the present government of their country, there has been no exodus of persecuted 

Iranians from Iran. 

We note that a change of status to permanent resident under 

section 245, based on an application under 203(a)(7), would ultimately lead to United States citizenship, a benefit beyond that 

required under the Status of Refugees Convention and the Protocol thereto. We also note that if section 203(a)(7) status is denied in 

cases such as the present on the ground the applicant has not fled 

his country, suspension (sic—per discussion with the Department of 

State, the word suspension was intended to be "withholding") of 

deportation remains available under section 243(h). It is believed, 

therefore, that the latter remedy is most in accordance with Congressional intent where the alien has not physically fled his country 

because of fear of persecution or does not find himself in such 

unusual circumstances as those surrounding the Zedkova case. 

2. Abandonment of residence. It is clear from the facts of the 

Zedkova case that the applicant abandoned her residence very 

shortly after arriving in the United States as a direct result of the 

Soviet invasion of Czechoslovakia. She had not come to the United 

States several years before and remained here under a continuously renewed student or visitor's visa, and so there could be no 

38 
Interim Decision #2124—Appendix 

question in her case as to the reason she had remained out of her 

country for an extended period or of at what point in time she 

actually abandoned her residence. The circumstances of the present cases, however, make it questionable that Mr. Taheri and Miss 

Behroozi have abandoned their residences in Iran because of fear 

of persecution. Mr. Taheri first came to the United States in 1964 

and to our knowledge has never evidenced any intention of 

returning to Iran. His first overt political activity appears to have 

occurred in 1970, and although we, of course, cannot know at what 

precise point Mr. Taheri might have given up any real intention of 

returning to his native country, it seems entirely possible that it 

was before 1970. Although Miss Behroozi did not arrive in the 

United States until 1968, approximately 3 years before the date of 

her application for permanent resident status, there are grounds 

for believing that her reasons for abandoning her Iran residence 

are more closely related to the emigration of her parents to Israel 

than to a well-founded fear of persecution in Iran. 

Where, as here, the 'circumstances surrounding a decision to 

abandon former residence reasonably could lead to a conclusion 

that the decision was made for reasons other than fear of persecution or would have been made regardless of any such fear, the 

applicant should be required to present persuasive evidence that 

he decided to remain in the United States because of such fear. 

This issue, of course, goes to the statutory requirement that the 

applicant have "fled" from his country and is distinct from the 

reasons he presently may be unable or unwilling to return. 

3. New circumstances in alien's country. In its December 22, 1972 

opinion, the district Court noted that in both Zedkova and the 

present cases "any fear or return for such reasons (political 

persecution) arose out of changed conditions in the homeland after 

the aliens had come to the United States ..." This element of 

changed conditions is clearly necessary in the case of aliens who 

have not physically fled from their countries, and it points up the 

inherent difficulty in the theory of constructive flight We do not 

believe that any new circumstances have occurred in Iran that are 

similar to the 1968 events in Cvechoslovakia or that otherwise 

support the applicants' claim that they have fled Iran for fear of 

persecution within the meaning of section 203(anAccording to documents submitted to the INS by counsel for the 

applicants, it was announced in Iran in January 1971 that members 

of the Confederation of Iranian Students would after March 21, 1971 

be subject to prosecution under a penal statute enacted June 12, 

1931. This announcement followed the June 26, 1970 occupation of 

the Iranian Consulate in San Francisco by 41 members of the 

Confederation, including the applicants, and a series of similar 

39 
Interim Decision #2124—Appendix 

demonstrations in Europe. The applicants were indicted in California on five counts, including false imprisonment by fraud, menace 

and violence and destruction of property, and were convicted of 

false imprisonment. We believe that the announcement in Iran of 

January 21, 1971 resulted in part from the criminal act in San 

Francisco of the applicants and other members of the Confederation. 

In Zedkova a wholly new government had been installed in the 

alien's country after events that resulted in the actual flight of 

thousands of refugees. In the present case, there was no new 

government or law in Iran, nor any substantive new policy; 

having criminally attacked Iranian government property and 

officials in San Francisco, the applicants were subject to prosecution under the 1931 legislation, both for their own acts and for 

memberhip in the Confederation which apparently had organized 

the Consulate occupation. Of course, that legislation was available 

for prosecution of the applicants whether or not there was any 

official announcement that it would be employed. 

Prosecution for a violation of a penal statute by appropriate 

authorities of a foreign country because of unlawful membership 

in an organization is not necessarily persecution because of political opinion within the meaning of section 203(07). The applicants 

must establish that they are statutorily eligible for the classification sought. In addition, they must establish that their applications should be granted as a matter of discretion. They, along with 

other members of the Confederation, have been involved in criminal acts in violation of the laws of the United States. This militates 

against the favorable exercise of the Attorney General's discretionary authority and is a rational basis, in our opinion, for the 

denial of their application. We believe the applicants should not 

benefit directly or indirectly from their wilful and deliberate illegal 

actions. This was the key to the Regional Commissioner's prior 

decision, rather than that stated in the Court's" order remanding 

these cases for reconsideration, and supports the reason why their 

situation was found to be distinguishable from Zedkova. 

Should we find the applicants • eligible for classification as refugees, it could establish a precedent enabling an individual alien or 

group of foreign students from any country having a strict policy 

or attitude against political dissent to demonstrate in the United 

States against their government, as did these applicants, thus 

putting them in disfavor with their government and qualify such 

alien or group of foreign students for classification as refugees on 

the basis of a claim that they would be unable or unwilling to 

return to their country because of fear of persecution because of 

40 
Interim Decision #2124—Appendix 

political opinion. This is not what the statute or the decision in the 

Matter of Zedkova intended and should not be so interpreted. 

In view of the foregoing and after carefully reconsidering these 

cases, it is concluded that the applications were properly denied. 

The Regional Commissioner's decisions of January 14 and 21 will be 

reaffirmed. 

ORDER: IT IS ORDERED that the denial decisions of January 

14 and 21, 1972 be and the same are hereby reaffirmed 

Memorandum of Decision 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

JALEH BEHROOZI and 

ALI ASGHAR TAHERI, Plaintiffs, 

vsL. W. GILMAN, Regional Commissioner,Immigration and Naturalization Serv., 

Defendant. 

This is an action for a declaratory judgment finding 

plaintiffs eligible for classification as refugees within the meaning 

of section 203(a)(7) of the Immigration and Nationality Act, 8 

U.S.C. 1153(a)(7), in order that they may have preference in obtaining immigrant visas. 

This action is presently before this court on cross-motions for 

summary judgment. 

Reference is hereby made to this court's previous Memorandum 

of Opinion and Order of December 22, 1972, for the background of 

the present ruling. 

In that Memorandum we ordered the case remanded to the 

Commissioner for a report on whether the Commissioner's ruling 

(Taheri, A-13748152 (1114/72) and Behroozi, A-19181823 (1/21/73)) 

could be deemed an abuse of discretion for being contrary to his 

previous ruling in Zedkova, No. A-18049736, (11123/70) upon a record 

in this case that then appeared to this court to be similar to Zedkova 

and, if so, a violation of the Commissioner's own regulation 8 CFR 

Part 103.3(e) and 103.9(a) which provide in effect that decisions 

selected by the Commissioner shall serve as binding precedents in 

all proceedings involving the same issues—except as they may be 

modified or overruled by subsequently selected decisions. 

The Commissioner had ruled in Zedkova that the term "fled" as 

used in Sec. 203(a)(7) of the Immigration and Nationality Act, in 8 

U.S.C. § I153(a)(7) may be broadly construed to include one who has 

41 
Interim Decision #2124—Appendix 

avoided, abandoned or forsaken a danger or evil and that, when 

the statute is so construed, it becomes immaterial whether the 

circumstances creating refugee status occurred prior or subsequent to departure from the country or area; that an alien, who 

departed temporarily from Czechoslovakia prior to a Communist 

upheaval there in 1968 but who because of political opinion feared 

to return in view of changed conditions in that country , may be 

considered as having constructively "fled" within the meaning of 

the statute. 

The Report of the Commissioner, filed herein July 10, 1973, pursuant to our order, is to the effect that the Zedkova ruling that 

petitioner there had constructively "fled" Czechoslovakia within 

the meaning of the statute was distinguishable from the present 

case in that the Zedkova ruling was made in a context of three, 

specific ancillary findings of fact appearing in that decision but, 

according to the Commissioner Report, not present in the pending 

case. 

The Zedkova ancillary findings were as follows: 

(1) That "several thousand Czechoslovakian Nationals escaped 

into Austria and Germany where they sought classification as 

refugees." 

According to the Commissioner, the bearing of this finding on 

the ultimate finding that Zedkova had constructively "fled" within 

the meaning of the statute is that an actual exodus of a number of 

persons from the country in question (because of persecution or 

fear of persecution on account of race, religion or political, opinion) 

is reasonably required to justify an ultimate finding that one who 

happens to be outside that country at the time of such exodus and 

who decides to remain away for similar reasons has constructively 

fled the country within the meaning of the statute. 

The Commissioner contends that in the present case no such 

essential ancillary finding has been or can be made, pointing out 

that no such actual exodus of Iranians from their country has 

been shown or even claimed by petitioners; that in the present 

case the only showing is that petitioners left Iran as• non-immigrants for temporary residence here in pursuit of their pleasure 

and/or education. 

(2) That it was satisfactorily established in Zedkova that she had 

formed an intent to abandon her residence in Czechoslovakia 

because' of fear of persecution on account of her political belief. 

According to the Commissioner, the bearing of this finding on 

the ultimate finding that Zedkova had constructively "fled" within 

the meaning of the statute is that to support a finding of such 

cotistructive flight a reasonable showing should be made of an 

42 
Interim Decision #2124—Appendix 

intent to abandon residence in the former country because of the 

persecution (or fear of persecution) that caused the actual exodus 

of others. 

The Commissioner contends that no such ancillary finding has 

been or can be made in the present ease, pointing out that the 

evidence makes it questionable whether either of the two petitioners abandoned their Iran residence because of fear of persecution; that the evidence is such that petitioner Taheri, who came to 

the United States in 1964 as a nonimmigrant student, and petitioner, Behroozi, who entered in 1968, as a non-immigrant visitor 

for pleasure (later for study), might well be found to have decided 

to abandon their Iran residence, not a a result of fear of persecution, but for other reasons formed even before the announcement 

of any Iranian policy to persecute them. 

(3) That in Zedkova there were new circumstances in Czechoslovakia which caused Zedkava to become an alien. 

According to the Report, the bearing of this finding upon the 

ultimate finding of constructive flight is that a showing of changed 

conditions since an alien's actual departure from his country, is 

reasonably necessary in the case of aliens who have not physically 

fled their country but who claim constructive flight. The Commissioner points out that in Zedkova the finding of changed conditions, i.e., new circumstances, was supported by evidence that a 

wholly new government had been installed in the country since 

her departure, an event that caused the actual flight of thousands 

of others. 

The Commissioner contends that no such ancillary finding has 

been or can be made in the present case, pointing out that the 

evidence here is merely to the effect that in January, 1971, the 

Iranian government announced that members of the Confederation of Iranian students would, after March 21, 1971, be subject to 

prosecution under an Iranian penal statute enacted as long ago as 

1931; that this announcement followed and, according to the Commissioner, was the result of a June 26, 1970 occupation of the 

Iranian Consulate in San Francisco by forty-one members of the 

Confederation, including petitioners here, who were thereafter 

indicted in California on five counts and convicted of false imprisonment. 

Review by the District Court of rulings of the Immigration 

Commissioner is limited to determination of whether there has 

been an abuse of discretion, i.e., a decision without evidence to 

support it or a decision based on an incorrect understanding of the 

law. Song Jook Suh, v. Rosenberg, 427 F.2d 1098 (C.A. 9, 1971). 

Further, the burden of proof at the administrative level is upon 

the-petitioner, not upon the Commissioner, to show that they fall 

43 
Interim Decision #2124—Appendix 

within the terms of the statute as reasonably interpreted by the 

Commissioner. 

The court concludes that the Commissioner's interpretation of 

the statute to the effect that flight may be constructive as well as 

actual (provided that a claim of constructive flight is supported by 

the ancillary factual elements above discussed) was not an unreasonable or incorrect interpretation of the law; that in the case at 

bar the evidence was such that the Commissioner could reasonably find it insufficient to support the essential eleinents for 

constructive flight; that the ruling of the Commissioner in the 

present case was not an arbitrary departure from the ruling in 

Zedkova on the issue of constructive flight, and, therefore, was not 

a violation of 8 CFR Part 103.3(e) or 103.9(a). 

IT IS, THEREFORE, ORDERED that the defendant's motion 

for summary judgment be granted and plaintiffs' motion for 

summary judgment be denied, upon the condition, however, thit 

within thirty (30) days from the date of this Memorandum and 

Order the Commissioner supplement his previous decisions in Taberi and Behroozi by adding thereto his Report herein, together 

with a copy of this Memorandum, in order to clearly distinguish 

this case from Zedkova and so make clear that there has been no 

violation of 8 CFR 103.3(e) or 103.9(a). 

Dated: December 11, 1974. 

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