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Lena v. Immigration and Naturalization Service

June 9, 1967

KONSTANTINOS LENA, PETITIONER,
v.
IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT



Knoch, Castle and Fairchild, Circuit Judges.

Author: Knoch

KNOCH, Circuit Judge.

The petitioner, Konstantinos Lena, is a native and citizen of Turkey. He came to the United States in the fall of 1964 as a visitor on a pleasure trip. He did not depart on February 4, 1966, when his authorization to remain expired. He admits that he is amenable to deportation under § 241(a) (2) of the Immigration and Nationality Act, Title 8 U.S.C.A. § 1251(a) (2), having outstayed his permitted time.

He sought a stay of deportation under § 243(h) as amended, Title 8 U.S.C.A. § 1253(h), which was denied by the Special Inquiry Officer, whose decision was sustained by the Board of Immigration Appeals. This petition for review was then filed pursuant to Title 8 U.S.C.A. § 1105a, on the ground that denial of a stay in this case was arbitrary and erroneous in law.

The petitioner takes the position that he has presented a prima facie case of persecution, because of his Greek Orthodox faith, if he is forced to return to Turkey, and that the Attorney General to justify denial of a stay must rebut that prima facie case with clear, convincing and unequivocal evidence.

The statute in question provides:

Title 8 U.S.C. § 1253(h) (1965)

Withholding of deportation

"(h) The Attorney General is authorized to withhold deportation of any alien within the United States to any country in which in his opinion the alien would be subject to persecution on account of race, religion, or political opinion and for such period of time as he deems necessary for such reason."

It previously read:

"(h) The Attorney General is authorized to withhold deportation of any alien within the United States to any country in which in his opinion the alien would be subject to physical persecution and for such period of time as he deems to be necessary for such reason."

Title 8, U.S.C. § 1253(h) (1952) (amended by P.L. 89-236, § 11(f), 79 Stat. 918, Oct. 3, 1965)

The pertinent change was the removal of the word "physical" before the word "persecution."

The decision to be made is within the administrative judgment of the Attorney General or his duly authorized delegate. United States ex rel. Dolenz v. Shaughnessy, 2 Cir., 1952, 200 F.2d 288, 291, ...


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