After careful consideration of the testimony offered on July 2, 1953, April 20, 1955 (as summarized in Report of June 1, 1955), and January 13, 1956, plaintiff's contention of illegal agency action will be denied for the reasons summarized under headings of the two basic findings involved.
I. Plaintiff's intent to remain in the United States at the time of his entry on October 21, 1951.
There is substantial competent and probative evidence
to support the finding of the Special Inquiry Officer that plaintiff had this intent and there is no basis in the record to support the contention that this finding and the administrative action taken on the basis of it was arbitrary, capricious, an abuse of discretion, or illegal under the Administrative Procedure Act, 5 U.S.C.A. § 1009. The evidence on this point is quite similar to that before this court in Tsimounis v. Holland, D.C.E.D.Pa.1955, 132 F.Supp. 754, affirmed 3 Cir., 1956, 228 F.2d 907, and in Mascarin v. Holland, D.C., 143 F.Supp. 427, at page 429. Under such circumstances, the plaintiff is in this country illegally (see 228 F.2d at page 908 of opinion of United States Court of Appeals for the Third Circuit in the Tsimounis case, supra) and is not entitled to relief under Section 6 of the Refugee Relief Act, 50 U.S.C.A.Appendix, § 1971d, since he has not established that 'he lawfully entered the United States as a bona fide non-immigrant.' See United States ex rel. Feretic v. Shaughnessy, 2 Cir., 1955, 221 F.2d 262, 263;
Mascarin v. Holland, supra.
II. Plaintiff's being subject to fear of persecution or physical persecution if he returned to Yugoslavia.
A. Possible application of language concerning fear of persecution in Section 6 of the Refugee Relief Act, 50 U.S.C.A.Appendix, § 1971(d).
The discussion under I above makes any discussion of the following jurisdictional language of the above-mentioned Section 6 unnecessary: 'he is unable to return to the country of his birth, or nationality, or last residence because of persecution or fear of persecution on account of race, religion, or political opinion.' However, it may be helpful to counsel for aliens subject to similar deportation orders in cases coming before this court in the future to suggest that, if the court is to be asked to rely on news report clippings from newspapers, counsel should make, at the least, some showing that this is the only evidence available. In this case, counsel relies on one sentence in a newspaper report,
and such a hearsay statement would not seem sufficient to sustain the burden imposed on plaintiff under the above-mentioned Section 6, even if the court had to consider the above-quoted language.
See Lavdas v. Holland, 3 Cir., 1956, 235 F.2d 955.
B. Possible application of Section 243(h) of the Immigration and Nationality Act, 8 U.S.C.A. § 1253(h).
The above-mentioned Section 243(h) authorizes the Attorney General to withhold deportation of an alien 'to any country in which in his opinion the alien would be subject to physical persecution.' The Attorney General is only required to grant the alien an opportunity to present evidence on the subject of persecution and to consider such evidence. See United States ex rel. Dolenz v. Shaughnessy, 2 Cir., 1953, 206 F.2d 392;
Namkung v. Boyd, 9 Cir., 1955, 226 F.2d 385. Cf. Jay v. Boyd, 1956, 351 U.S. 345, 76 S. Ct. 919, 100 L. Ed. 1242.
Plaintiff was given a hearing on January 13, 1956, and was represented by able counsel. No evidence of physical persecution
in Yugoslavia was placed in the record, even though there is every indication that many United States citizens travel in Yugoslavia each year.
In the absence of any evidence (by affidavit or otherwise) that the record of the administrative proceedings filed in this court are not complete or are inaccurate, plaintiff's objection to disposition of the matter on a motion for summary judgment is without merit. Cf. Tsimounis v. Holland, supra, and Lavdas v. Holland, supra, in both of which cases motions for summary judgment were used.
For the foregoing reasons, defendant's motion for summary judgment will be granted.