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BATISTIC v. PILLIOD

March 22, 1960

FRANO BATISTIC
v.
ALVA L. PILLIOD, DISTRICT DIRECTOR, CHICAGO DISTRICT U.S. DEPARTMENT OF JUSTICE, IMMIGRATION & NATURALIZATION SERVICE.



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.

Frano Batistic, plaintiff, is a native and citizen of Yugoslavia who legally entered the United States on April 14, 1958 as a nonimmigrant visitor and who has been ordered deported under Section 241(a)(2) of the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1251(a)(2) on the ground that after admission as a nonimmigrant under Section 101(a) (15) of said Act, 8 U.S.C.A. § 1101(a) (15) he remained in the United States for a longer time than permitted.

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 denied.

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 beliefs.

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
  Yugoslavia.
    "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
  return.
    "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 ...

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