Interim Decision #1316 

Mali OF TomCES-TE.TEDA 

In DEPORTATION Proceedings 

A-12336079 

Decided by Board January 3,1964 

Respondent, a native and national of the Dominican Republic, has not established 

that because be was a former chief of a military intelligence unit (Serviclo 

de Inteligencia Minter) during the Trailllo regime he would be =Meet to 

physical persecution within the meaning of section 243(h), Immigration and 

Nationality Act, if deported to the Dominican Republic. 

CHARGE 

Order: Act of 1952—Section 241(a) (2) [8 U.S.O. 1251 (a) (2) i—Nonimmigrant—remained longer. 

Respondent, , a former chief of a military intelligence unit in the 

Domnican Republic during the Trujillo regime, appeals from the portion of the special inquiry officer's order which denies his application 

for withholding of deportation to his homeland. He maintains that 

he would face physical persecution in the Dominican Republic because 

of his former position under Trujillo . 1On the basis of currently available information, we affirm the special inquiry officer's action. 

The hearings in respondent's case were held during July and August, 

1962. We heard oral argument on October 29, 1962. In the interim, 

for various reasons, it has not been feasible to render our decision. 

Over most of the intervening time we have been waiting for information which has only recently become available in final form. 

Respondent is a native and national of the Dominican Republic and 

married. He last entered the 'United States at New York on December 16, 1961 as a nonimmigrant foreign government official in transit 

to Canada. He had gone first from the Dominican Republic to Spain 

where he obtained his transit visa. Respondent testified that the 

Belaguer government assigned him to the position of 2nd secretary at 

the Dominican Embassy in Ottawa. He said he did not continue his 

journey to Canada because he knew most similar assignments bad been 

4Section 243 (h), Immigration and Nationality Act, 8 U.S.C. 1253 (h). 

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Interim Decision #1316 

canceled. Respondent's authorized stay in this country expired on 

January 13, 1962. 

The special inquiry officer directed deportation first to Spain, in 

accordance with respondent's designation, and alternatively to the 

Dominican Republic. Respondent neither contests deportability nor 

applies for voluntary departure. 

S.I.M. (Servicio de Inteligencia Minter), the organization which 

respondent headed for about seven or eight months prior to February 

or March of 1961, was an infamous, quasi-military security unit of 

Trujillo's regime. The record establishes S.I.M. was popularly identified with carrying out many of the dictatorship's excesses. Respondent testified S.I.M was created for Trujillo's personal security and to 

investigate and punish those who would oppose the dictatorship. He 

said so-called "repressive investigations" involved physical torture 

applied by a special corps of officers. 

Respondent admits that during this tenure as chief of S.I.M. some 

50 or 60 political prisoners were executed. He denies any direct responsibility for such acts, contending that he merely transmitted 

orders from Trujillo himself or from one of Trujillo's trusted lieutenants, Johnny Abbes Garcia. Although respondent had the title of 

chief of S.I.M., he diselnime any independent individual authority in 

connection with the principal activities of that agency. He said if he 

had refused to pass on orders to the persons who would carry them 

out he himselfwould have been killed. He also said that he could not 

refuse to accept the position of chief of S.I.M. when offered to him. In 

any event, we are not concerned with respondent's guilt or innocence as 

such. We are concerned only with determining whether, if returned 

to the Dominican Republic, respondent would be subject to physical 

abuse which would constitute physical persecution within the statutory 

concept. 

In May the 'United States District Court for the Southern District of New York recommended Clodoveo Ortiz-Gonzalez' extradition 

to the Dominican Republic. 2Ortiz, a former S.I.M. agent, appeared 

as a witness for respondent in these proceedings. The court ruled 

against Ortiz on his contention that the offenses with which he was 

charged were political offenses, hence not extraditable. The court 

avoided other political implications in the situation, noting that application to the Secretary of State would furnish full protection against 

delivery of the accused to any government which would not live up to 

its treaty obligations, and would use the treaty as a subterfuge to 

secure the accused from a country of political asylum. Subsequently 

2In re. Gonzales, 217 r. Supp. 717 (S.D. N.Y. 1963) • 

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Interim Decision #1316 

the Secretary of State directed Ortiz-Gonzalez's extradition, which has 

been effected. 3 

Respondent does not clearly set forth the theory underlying his 

contention that he will be physically persecuted in the Dominican Republic if returned to that country. He anticipates that because of his 

former position he will be killed. 

Respondent believes primarily that upon arrival in his homeland 

mobs, acting beyond control of the authorities, will violently attack 

him Respondent's own testimony reveals that he anticipates possible 

prosecution in the Dominican Republic because of his association with 

Trujillo but not unavailability of a fair trial, if prosecuted. Most of 

the witnesses in respondent's behalf testified that charges are pending, 

or likely to be brought, against him in the Dominican Republic. They 

apparently believe he would not receive a fair trial. Moreover, they 

agree it is highly probable mobs would kill him before the police could 

take him into custody. At oral argument respondent's counsel said 

that if by a miracle respondent survived attacks by mobs upon his 

arrival at the Dominican airport, he would be jailed. Counsel implied 

that respondent would not receive a fair trial. 

Counsel for the Service says respondent fears criminal proceedings 

and possible conviction in the Dominican Republic. He further states 

respondent fears more strongly that, before the authorities have a 

chance to try him, he will be seized by a mob and killed. Neither of 

these eventualities, according to the Service representative, is comprehended by the statutory language. 

We exclude from the term "physical persecution" any governmental 

action taken in an orderly, judicial manner to determine respondent's 

responsibility for the former activities of S.I.M., and to prescribe 

punishment only for acts so performed that, regardless of possible 

political motivation, they would constitute ordinary crimes under any 

civilized juridical system. To this extent, at least, we agree with 

counsel for the Service. 

We have no doubt that the populace in the Dominican Republic 

associates respondent with the excesses attributed to S.I.M. and, rightly 

or wrongly, holds him responsible for many of them. A. newspaper 

clipping (Ex. 3) refers to testimony at the trial of former S.I.M. 

agents, accused in the death of the Mirabal sisters, an event well-known 

in the Dominican Republic. That event excited the public's imagination and aroused its resentment. Respondent admits that he was in 

charge of S.I.M. when the Mirabal sisters met their deaths. Two of 

his witnesses corroborated his official position at that time. Yet, whatever the situation at the time of the hearing and oral argument, the 

8 18 U.S.C. 3184. 

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Interim Decision. 40316 

subsequent march of events, during which order has been restored in 

the Dominican Republic, eliminates any need of now considering 

whether respondent, if deported to the Dominican Republic, would 

face unrestrained mob violence and whether such violence is equivalent 

to physical persecution for -which deportation may be withheld. 

Looking at respondent's evidence in the light most favorable to him, 

the issue here resolves into two questions. Is respondent likely to he 

charged in the Dominican Republic with any offense? If so, would 

any proceedings under that charge reflect fair and ade,quate judicial 

processes 

Respondent's counsel stated at oral argument that respondent should 

not be tried at all because he has not committed a voluntary act which 

involves the Dominican penal law. Presumably counsel would contend 

that for this reason any imprisonment would result from a trial so 

unfair that conviction would be a foregone conclusion. Carrying this 

argument one step further, counsel would contend that such imprisonment constitutes physical persecution within the purview of section 

243(h), Immigration and Nationality Act. 

The Court in Gon2a2ez considered a somewhat similar contention. 

Ortis-Gonzales maintained that he acted as a military subordinate 

obeying the orders of a superior and in the exercise of public authority. 

The court found that under Dominican law, as under our own, public 

officials may be criminally liable for acts which fall well outside duly 

constituted public authority. The court also found that the Dominican 

Republic had Made out a prima-facie case that the extraordinary 

homicidal acts ascribed to Ortiz fall into this category. 

We do not have in this record evidence of respondent's active participation in any killings attributed to S.I.M. such as was before the court 

in Gonzalez. This difference is one of degree, however, since respondent admittedly was involved in 'the activities of S.I.M. The basic 

question still goes to the availability of a fair trial under the circumstances here. If respondent has no criminal responsibility 'under 

Dominican law for offenses committed by agents of S.LM. while he 

was their chief, fair and adequate judicial procedures woilld afford 

him sufficient opportunity to establish his innocence. 

Ortiz-Gonzalez also alleged that the offenses with which he was 

charged were political, rather than criminal. The court, as we have 

noted, rejected this contention as a matter of law, leaving to the 

Secretary of State any extralegal considerations which might 

Support it. 

We are not limited here by the provisions of a treaty and the extradition statute. We need only reach an opinion whether respondent 

would be physically persecuted in the Dominican Republic. Yet proceedings under section 248 (h) of the Immigration and Nationality Act 

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Interim Decision #1316 

and extradition proceedings have much in common .° Consequently, 

our function here resembles to some extent the functions of both 

judicial officers and the Secretary of State in extradition proceedings. 

In determining whether respondent should be returned to the Dominican Republic we may look broadly at the situation which he would 

face them 

If respondent is charged in the Dominican Republic with having 

committed any offenses in behalf of the Trujillo regime, we believe he 

would receive a fair trial. Although the Trujillo regime considered 

that prisoners of executed during respondent's tenure as chief 

of that organization were political prisoners, the circumstances 

suggest violations of penal provisions of Dominican law. We believe 

Dominican law, in determining the nature of any offenses with which 

respondent might be charged and his responsibility in their perpetration, would adequately protect respondent's interests. We rule adversely to respondent on any contention that offenses with which he 

might be charged were not criminal but political .° In particular, we 

do not perceive that any such offenses were manifestly so political that 

their punishment might constitute physical persecution. 

Our conclusion that respondent's case does not warrant withholding 

of his deportation to the Dominican Republic rests in part upon official notice of current conditions in the Dominican Republic, in part 

upon the outcome of Gonzalez, and in part upon certain other nonrecord information, privileged under the regulations.° None of the 

available current information indicates that, if returned to the Dominican Republic, respondent is likely to be physically persecuted. 

Respondent's counsel contends that the special inquiry officer improperly declined to subpoena certain witnesses. Those witnesses 

were all former officials of, or otherwise associated with, the Trujillo 

regime. They left the Dominican Republic about the time of that 

regime's fall. Their testimony could supply only background information and possibly greater detail about some of the matters of record. 

' Matter of Perez-Jiminez, Int. Dec. No. 1292. 

5Compare /are Gonzalez, supra: and authorities cited therein. 

Respondent suggests primarily that be might be prosecuted for "association 

with evildoers." Ile relies upon the testimony of witnesses, particularly that of 

a former lawyer in the Dominican Republic associated with him in S.I.M., to 

establish the existence of this provision of Dominican law and its effect. 

"The determination under section 243(h) of the Act may be based upon information not of record if, in the opinion of the special inquiry officer or the 

Board, the disclosure of such information would be prejudicial to the interests 

of the United States" 8 CFR 242.17(e). In our opinion the nonrecord information relied on here comes within this provision. 

The Attorney General's use of undiselnusti information in exorcising Lis discretion has the approbation of the Supreme Court. Jay v. Boyd, 351 U.S. 345 

(1950) ; Mdliutin v. Bouchard, 370 U.S. 292 (1962). 

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Interim Decision #1816 

We do not perceive that their testimony, no matter how favorable to 

respondent, could overcome the reliable information on which we base 

our conclusion. We need not consider, therefore, whether the special 

inquiry officer's refusal to grant respondent's request for subpoenas 

was error. 

We do not discuss other contentions of respondent except to note 

that he fears a change in government in his native country interrupting 

the present democratic trend. We answered a similar contention in 

Matter of Dias? We take official notice that the executive leaders of 

the Dominican Republic's Government have changed during the pendency of respondent's case on appeal. This change, so far as we can 

ascertain at this time, has, if anything, lessened any chances that 

respondent would be physically persecuted in the Dominican Republic. 

We shall dismiss the appeal. 

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

Int. Dec. No 1270. 

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