The opinion of the court was delivered by: Perry, District Judge.
Defendant, District Director, seeks an order under Rule 56 of
the Federal Rules of Civil Procedure, 28 U.S.C.A. granting
summary judgment and dismissing the complaint herein.
On January 29, 1959, plaintiff made application under Section
243(h) of the Immigration and Nationality Act, 8 U.S.C.A. §
1253(h) for a stay of deportation on the ground that he would be
physically persecuted if deported to Yugoslavia, and on February
25, 1959, a hearing and interrogation was held before a Special
Inquiry Officer of the Immigration and Naturalization Service.
On March 30, 1959, the Special Inquiry Officer recommended that
plaintiff's application for a stay be denied and on April 21,
1959, the Regional Commissioner of the Immigration and
Naturalization Service, having reviewed that recommendation,
ordered that plaintiff's application for stay of deportation be
Plaintiff has instituted this proceeding under the
Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq., for a
declaratory judgment that the entry of the order denying
plaintiff's application to withhold deportation to Yugoslavia was
an abuse of administrative discretion, was arbitrary and
capricious, and was in excess of and an abuse of the authority
and power of the defendant.
Plaintiff's deportability is not contested.
The record in this case shows, among other things, that
plaintiff (who was 17 years old at the time of the hearing on his
application for stay of deportation) was represented by counsel
of his own choice, that he was assisted by an interpreter, and
that during the course of the hearing three witnesses, called by
him, testified in his behalf.
Plaintiff claimed that if deported to Yugoslavia he would be
physically persecuted because of his religious and political
Quoting in part from the language used by the Regional
Commissioner in his order of April 21, 1959:
"He testified that he is a Roman Catholic and
anti-Communist and will, therefore, be persecuted in
"His testimony establishes that he has never at any
time been physically persecuted in Yugoslavia
although he always attended religious services, and
it was well known that both he and his family were
anti-Communist. There is no evidence to indicate
active opposition to the government of Yugoslavia as
both he and his father were issued passports and
permitted to visit the United States. His father has
returned to Yugoslavia and no claim has been made
that he has been physically persecuted since his
"In re Rudolf Kale, A9 555 532, April 23, 1958, it
was stated that from various sources, including the
personal observations of officers of this Service in
that country it was found that:
"`Churches throughout the country are open for
public worship and religious assembly and they are
being maintained and repaired, obviously with
Government permission, if not with its approval or
support. It must also be recorded that the Yugoslav
regime granted asylum to thousands of anti-Communist
Hungarians fleeing the latter country, and it refused
to repatriate them involuntarily, while assisting in
arrangements to settle them in western countries.'
"It is evident from the foregoing that physical
persecution because of religious or anti-communistic
beliefs does ...