Petitions by concededly deportable aliens to review order of the Board of Immigration Appeals which dismissed appeals from denials of their requests under § 243(h) of the Immigration and Nationality Act, 8 U.S.C. § 1253(h), for stays of deportation because of fear of persecution.
Friendly, Mulligan and Gurfein, Circuit Judges.
These petitions to review decisions of the Board of Immigration Appeals which dismissed appeals from orders of Immigration Judges (IJ) denying requests, under § 243(h) of the Immigration and Nationality Act, 8 U.S.C. § 1253(h), for stays of deportation on the ground that "the alien would be subject to persecution on account of race, religion, or political opinion," are typical of an unusually large number of such petitions that have recently reached us.
The Facts and the Prior Proceedings
Florentino Zamora is a 40-year old native and a citizen of the Republic of the Philippines. He entered the United States as a non-immigrant visitor for business on October 10, 1970 and was authorized to remain here until December 30 of that year. He requested and received a number of extensions by which permission was given for him to remain in the United States until October 30, 1971.
On January 16, 1971, Maria Zamora and her infant son Roberto, also citizens of the Philippines, entered the United States as visitors for pleasure. They also requested, and were granted, several extensions of their permitted stay until January 15, 1972. Maria is now 39 years old; her son is 5.
Having overstayed their authority to remain in this country, the Zamoras became subject to deportation proceedings under § 241(a)(2), 8 U.S.C. § 1251(a)(2), and the Immigration and Naturalization Service (INS) served Orders to Show Cause upon them. On February 14, 1973, the Zamoras applied to the District Director in New York for a grant of political asylum, see 8 C.F.R. § 108, and Operating Instructions 108, issued pursuant to the general authority granted the Attorney General by § 103(a), 8 U.S.C. § 1103(a). A summary of the basis for this request was forwarded by the District Director to the Office of Refugee and Migration Affairs (ORM) of the Department of State. In a reply dated February 27, 1974, the ORM reported that the Department did "not find that the Zamora family [had] made a valid claim to asylum. . . . [The Department believed] that the Zamora family would be able to live in the Philippines at this time free of restraints other than those imposed on all Philippine citizens. . . . On the basis of the information thus far submitted, [the Department was] unable to conclude that the Zamora family should be exempted from regular immigration procedures on the grounds that they would suffer persecution on account of race, religion, nationality, political opinion, or membership in a particular social group should they return to the Philippines." The application for asylum was denied. On May 24, 1974, a deportation hearing was held before an IJ. The Zamoras conceded their deportability. At the hearing they made applications for a withholding of deportation pursuant to § 243(h).*fn1
To establish the likelihood of persecution on his return to the Philippines, Florentino Zamora testified that in 1969 or 1970 he had participated in street demonstrations directed against the government of President Marcos and that some of the demonstrators had been subsequently jailed. Both Mr. and Mrs. Zamora testified to suppression of civil liberties in the Philippines. Mr. and Mrs. Zamora testified that efforts to question relatives remaining in the Philippines regarding the family business and the political situation had elicited only evasive responses and refusals to comment. At this juncture the INS trial attorney introduced into evidence the Department of State's letter. No objection was made.
In his decision, the IJ, after noting the evidence introduced by the Zamoras, also reviewed three newspaper clippings submitted by them which reported arrests of various dissidents in the Philippines; an advertisement soliciting letters to Congress urging the suspension of American aid to the Philippines so long as human rights there were repressed; and the Zamoras' claim that their cousin was married to the nephew of an imprisoned Philippine Senator.
On the basis of this evidence, the IJ found that "Nothing presented establishes that the Philippine government has been or now is aware of respondents or has any interest, any adverse interest, in them." He noted "parenthetically" that the Department of State had concluded that the Zamoras had not made out a valid claim for asylum, and went on to quote the relevant passages of the State Department letter. Nevertheless, the IJ added that in arriving at his own decision to deny the plea for suspension, he had not considered the views of the Department of State.
On April 17, 1975, the Board of Immigration Appeals dismissed an appeal from the IJ's decision, saying:
We have reviewed the record . . . and conclude that the decision was correct. In an official communication to the Service the State Department indicated its belief that the Zamora family would be able to live in the Philippines free of restraints, other than those imposed on all Philippine citizens by the terms of various martial law decrees. The respondents have failed to show a well-founded fear that their lives or freedom would be threatened in the Philippines on account of their race, religion, nationality, membership in a particular social group, or political opinion. [Citations omitted.] We are satisfied, therefore, that the respondents would not be persecuted if deported to the Philippines.
The filing of this petition for review on May 22, 1975 has entitled the Zamoras to an automatic stay of deportation, see § 1006(a)(3) ...