A-14586364
Decided by Board November 30, 1966
Application of respondent, a 21-year-old native and citizen of Hungary, for withholding of her deportation pursuant to the provisions of section 243(h), Immigration and Nationality Act, as amended by P.L. 89-236, is denied since respondent's liability to prosecution under Hungarian law, upon return to that country, arising from her disregard of the limitation placed on the duration of her travel abroad and from her objection to returning voluntarily to Hungary, does not, in itself, establish "persecution" within the contemplation of that section.
CHARGE:
Order: Act of 1952 — Section 241(a)(2) [ 8 U.S.C. 1251] — Nonimmigrant (visitor) — remained longer.
The special inquiry officer, in a decision dated July 15, 1966, denied the respondent's application for adjustment of her status to that of a permanent resident; granted her the privilege of voluntary departure; provided for her deportation from the United States to Hungary, on the charge contained in the order to show cause, in the event of her failure to so depart; and denied her application for temporary withholding of deportation to Hungary. The appeal from that decision, which brings the case before this Board for consideration, will be dismissed.
The record relates to a 21-year-old single female alien, a native and citizen of Hungary, who last entered the United States on or about December 1, 1964. She was then admitted as a nonimmigrant visitor for a period until September 15, 1965. On November 26, 1965, she was granted the privilege of voluntary departure in lieu of the institution of deportation proceedings, such departure to be effected on or before December 6, 1965. She has, however, remained in the United States since that date.
The foregoing establishes the respondent's deportability on the above-stated charge This was conceded in the course of the hearing before the special inquiry officer. It presents no problem here.
The special inquiry officer has already granted the respondent the privilege of voluntary departure. Suffice it to say, in this connection, that the record before us supports said official's action in this respect.
We find that the special inquiry officer has properly denied the respondent's application for adjustment of her status to that of a permanent resident pursuant to section 245 of the Immigration and Nationality Act ( 8 U.S.C. 1255). In order for her to be eligible for the benefits of that section, she is required to establish that an immigrant visa is readily available to her. Also, under the appropriate provisions of 8 CFR 245.1 the respondent, who is presently employed as a "shampoo girl" and assisting a hairdresser, is not eligible for the benefits of said section of the statute unless she presents a certification issued by the Secretary of Labor under section 212(a)(14) of the Act, or unless she demonstrates that her occupation is included in the current list of categories of employment for which the Secretary of Labor has issued a blanket certification under that section.
It is established and uncontested that this respondent has failed to obtain the required labor clearance. The copy of a newspaper article concerning reported changes in the procedure for obtaining the necessary labor clearance and containing a purported list of occupations for which a labor clearance will not be required, does not mention the specific occupation presently being followed by this respondent; and the very nature of this document speaks for itself insofar as its evidentiary value is concerned.
We likewise find that the special inquiry officer has properly denied the respondent's request for temporary withholding of her deportation to Hungary. Our review of the record convinces us that she has not met her burden of establishing that she would be subjected to persecution because of race, religion or political opinion upon her return to Hungary (see 8 CFR 242.17(c)). We do not think that the judicial precedents cited by the respondent ( Sovich v. Esperdy, 319 F.2d 21; and Dunat v. Hurney, 297 F.2d 744) call for a contrary conclusion.
The respondent first claimed that she was deprived of an opportunity to pursue further studies after completing high school, because she was considered a "class enemy" by the Hungarian authorities as a result of an uncle of hers having fled to the West. However, the record reflects that when she applied for a passport to make this trip to the United States, she told the Hungarian authorities she was coming here to visit that uncle who had left Hungary after the 1956 revolution and subsequently become a United States citizen. The fact that the Hungarian authorities nevertheless issued a passport to her within two or three weeks from the time her application for same was received speaks for itself in this connection.
The respondent next asserted that she is of the Roman Catholic faith, as are the vast majority of the people in Hungary, and that the Hungarian Government discriminates against Catholics who practice their religion by not giving them equal employment opportunities and holding them back from advancement. She indicated that before leaving Hungary she attended church and, as a result, could not get a job for some months after graduation from high school, and when she succeeded in obtaining employment it was merely as a bottle washer in a pharmaceutical factory. However, she did not explain away the possibility that the delay in her obtaining a job might have been the result of the lack of employment opportunities for people with only the limited degree of education she had obtained. We feel her employment was commensurate with her education and apparent ability. Moreover, the record reflects that after obtaining employment in the pharmaceutical firm she was subsequently given work of an administrative nature in the shipping department and was permitted to attend a commercial chemistry school. Thus, her record does not support a claim of complete deprivation of economic opportunity within the scope of the Dunat case, supra.
Also on this same point, respondent has testified that her parents are devout practicing Roman Catholics; that her father is employed as "main clerk" in the administrative office of a radio and television factory; and that her mother, when well enough to be employed, holds a position of a payroll clerk. She does not contend that they have ever been persecuted. We think that these factors, as well as the foregoing ones, demonstrate to be without foundation the respondent's alleged fears that she will be persecuted in Hungary from the religious or economic standpoint.
We find in this record no basis for the respondent's asserted fear of persecution for her political opinion. Her background of education and employment in Hungary, as hereinbefore outlined, does not support her claims in this respect. In addition, she has admitted that she took no part in political activity while she was in Hungary, and that she has not done so in the United States. According to the record, she is a politically unimportant person. Accordingly, we find her claims in this respect wanting.
Finally, we note that the Service trial attorney furnished the claims made by the respondent as the basis for requesting a stay of deportation to the Department of State for consideration, and the latter's response was adverse insofar as the respondent is concerned (Ex. 4). We cannot agree with the respondent that the advice furnished by the Department of State to the effect that the respondent may very well be subject to penalties in Hungary for having overstayed her visit, or for refusal to return to that country, calls for a conclusion contrary to that reached by the special inquiry officer in this matter. We are aware that the Department of State's reply indicated that the respondent may be subjected to more severe sanctions for objecting to being returned to Hungary than for simply having overstayed her visit in this country; and that in one specific instance a Hungarian husband and wife received a sentence, in absentia, of a year and four months' imprisonment and additionally were barred from pursuit of public affairs for three years, for refusing to return to Hungary. Nonetheless, we do not feel that these considerations require reversal of the special inquiry officer's decision in this respect.
The respondent has no criminal record whatsoever in Hungary. Her parents who still reside in that country have never been persecuted. She has had no military service of any kind in Hungary, and is a politically unimportant person. She does not personally know of anyone who has been persecuted after return to Hungary, and there is no basis for comparing the case of this respondent with that of the husband and wife situation outlined in the Department of State's response to the Immigration Service.
We do not think that a sentence to one year and four months' imprisonment constitutes a prolonged period of imprisonment within the scope of the court's decision in the Sovich case, supra, wherein the alien additionally had openly expressed his opposition to communism to friends in Yugoslavia. This, clearly, is not true of the respondent herein. Also, the possibility that she may be subjected to prosecution for violating Hungarian law and, consequently, to legal penalties which may be comparatively severe by United States standards of justice does not, in our opinion, establish the likelihood of "persecution" within the contemplation of section 243(h) of the Immigration and Nationality Act.
The respondent's liability to prosecution, as distinguished from persecution, upon return to Hungary obviously arises from her disregard of the limits placed upon the duration of her travel abroad and from her objection to returning voluntarily to Hungary. As a result, of course, she may be subjected to more severe penalties under Hungarian law than would otherwise be the case. But aside from the matter of her unauthorized extension of her visit in the United States, none of the other circumstances relied on by the respondent appear persuasively pertinent to the point at issue here. They existed before her departure from Hungary and did not result in her persecution there or prevent her leaving that country. Her parents who still reside in Hungary and are employed there have not been persecuted.
In conclusion, if weight were given to the basic reason for this appeal it would, in effect, make it possible for every Hungarian visitor to the United States to create a basis for immunity to deportation merely by extending the period of stay beyond that usually involved in a visit. Without more, this does not suffice to support an application for this type of relief.
ORDER: It is ordered that the appeal be and the same is hereby dismissed.