JANUS AND JANEK

 Interim Decision #1900




                       MATTER or JANUS AND JANER
                        In Deportation Proceedings
                                 A-14813095-6
                                  .4-14805412

                       Decided by Board July 25,1968
11) In the exercise or discretion, adjuSLment of status under section 245, Irurni
   gration and Nationality Act, as amended, is granted an alien whose nonimmi-
  grant entry was not intended to bypass the normal visa-issuing process ; who
  has close family here ; who is eligible for visa issuance and who is unwilling
  to return to his native Czechoslovakia where he has been convicted, in absentia,
  of defection from the republic, sentenced to imprisonment, and his property
  'confiscated.
(2) Applietitions for withholding of deportation under section 243(h) of the
   Act alleging rear of persecution for political opinion are granted two natives
   and citizens of Czechoslovakia who, although members of the Communist Party
  at time of their nonimmigrant entry, by their uncontradicted testimony express
  their long-standing opposition to the political regime in Czechoslovakia ; who
  defected at the first opportunity, one repudiating his entrusted mission of proP•
  agandizing for the Communist government In this country, the other overtly
  making Ids criticism of conditions in Czechosolvaltia to agencies which could
  disseminate It widely and effectively: and who have both been convicted, in
  absentia, of defection from the republic and sentenced to imprisonment.
(3) The legal posture of an applicant for conditional entry under section 203(a)
  (7) is not that of an applicant for withholding of deportation under section
  243(h) of the Act and sued& standards of conduct cannot be set which will
  guarantee, without more, inclusion in or exclusion from eligibility for either
  benefit sought. An application under either section 203(a) (7) or 243(h) must
  be decided individually, on all its facts.

CHARGES :
  Order: (A11)—Act of 1952—Section 241 (a) (2) IS U.S.C. 1251(a) (2))—
                                Nonimmigrant visitors, remained longer.
   ON BEHALF OF RESPONDENTS :                ON BEHALF OF SERVICE:
     Charles Sternberg, Eequire               Irving A. Appleman
     International Rescue Committee           Appellate Trial Attorney
     888 Park Avenue Smith
     New York, New York 10016      '




  2 Because of their own activities with refugees and other immigrants, and their

interest in the subject mutter of this appeal, the following voluntary agencies


                                       866
                                                     Interim Decision #1900'
  This case is before us on appeal from the decision of the special
Inquiry officer : 2
      Finding all three respondents deportable as charged;
      Denying the application of respondent (1) for adjustment under
      Section 245 upon the ground that he is statutorily ineligible
     therefor;
     Denying the application of respondent (2) for adjustment under
     Section 245 as a matter of discretion;
     Granting voluntary departure to all, with the provision that if
     they do not depart when and as required, each will be ordered
     deported, respondents (1) and (2), who made no designation, to
     Czechoslovakia, respondent (3) to Sweden, the eounti.7 of desig-
     nation, with provision that if Sweden does not accept him, that
     he also be ordered deported to Czechoslovakia;
     Denying to all a withholding of deportation to Czechoslovakia.
     under Section 243(h) upon the ground that they have failed to
     sustain their burden of establishing that they would be persecuted
     because of race, religion or politics if returned to Czechoslovakia
                                        I
   We deal first with the case of Frantisek Janus, in which our disposi-
tion differs from that of the other two cases. Frantisek is a 42-year-old
married male alien, native and citizen of Czechoslovakia, whose only
entry to the United States was on July 7, 1966, as a nonimmigrant
visitor for pleasure; his authorized stay expired on August 31, 1986
and he remained beyond that date without authority. He concedes
that he is deportable as charged. At the deportation hearing held on
October 26, 1966, he learned that it was possible to apply for adjust-
ment to permanent resident status in the United States (see Tr. p. 63)
and the hearing was adjourned to permit him and Jaroslav Janus, who
is his brother, to prepare and present such applications, based on
petitions for fifth preference quota status to be filed by one of their
two American citizen ;brothers. The petitions were filed and were
joined in a single Brief Amiens Curiae, and requested permission to be present at
oral argument : American Fund for Czechoslovak Refugees, Inc.; Church World
Service, Inc.; National Council of Churches of Christ, USA; Department of Im-
migration, United States Catholic Conference; Lutheran Immigration and Refu-
gee Service, Lutheran Council USA; Polish American Immigration and Relief'
Committee, Inc.; Tolstoy Foundation, Inc.; United BIAS Service, Inc.
  2 There were two sets of hearings held• one for the Janus brothers-together
and one for Janek. Reference to transcript pages and exhibits in the Janus file is
followed by the letter "3" ; for Janek, by the letter "K".

                                      867
 Interim Decision #1900
  approved in January 1967; then and now ther was immediate quota
  availability based on the priority date created by the filing of the
  petitions.
     The special inquiry officer, stating that Frantisek's application for
 'adjustment had not been completely processed because of the decision
 the special inquiry officer had decided to make, assumed Frantisek to
 be statutorily eligible. The application and the record do not disclose
 any basis of ineligibility. The special inquiry officer, in considering
  the discretionary factor, referred to testimony by this respondent that
 when he applied for his visa he was seriously considering remaining
 here permanently, a fact which he did not tell the Consul for fear
 that he would not be able to come to the United States. It was respon-
 dent's further testimony that although he then wished to stay here
 permanently, he did not make the final decision to do so until after
 his arrival in the United States. On this basis, the special inquiry
 officer decided that respondent was not a bona fide nonimmigrant at
 the time of entry, and, citing Matter of Ortiz Prieto. 11 1. & N. Dec.
                                                 -


 '317, stated that there were no equities in the case which indicated that
 the results of the application should be other than adverse, as in the
 oiled case.
    We do not believe that a denial of adjustment is warranted. Here,
 as in Ortiz Prieto, a favorable factor is that respondent's entry on a
            -


 nonimmigrant visa was not made to bypass the normal visa issuing
 processes. In this case, however, it was the special inquiry officer him-
-self, three and a half months after their entry, who first made the
 Janus brothers aware that it was possible to apply for adjustment, and
 that their citizen brothers could file petitions to secure quota prefer-
 ences for them. Neither this respondent nor his brother began to
 work in this country until after the deportation proceedings were in-
 stituted. Respondent has close family here (his two citizen brothel's) ;
 his wife, who remained in Czechoslovakia, has not made any objection
to the application for adjustment. Respondent, who is clearly eligible
for visa issuance and has the requisite quota availability, cannot take
.advantage of these factors anywhere but in the United States. He has
 no foreign country to which he can go to apply for a visa; he is under-
 standably unwilling to return to Czechoslovakia, where he has been
convicted, in absentia, of "Defection from the Republic", sentenced to
a year's imprisonment, and has already had all of his property con-
fiscated. Respondent has been working steadily since he took his first
Job in the United States and has been sending money to Czechoslo-
 vakia for the support of his wife and children; he has no criminal
record other than the above mentioned conviction.


                                  868
                                                    Interim Decision #1900
    The total picture justifies a favorable exercise of discretion on Fran-
 tisek Janus' behalf, and we will provide for a grant to him of adjust-
ment to permanent resident status, under section 245, in our order at
the conclusion of this decision.
                                        II
   Vladimir Janek, who has nu family here, and no quota availability,
made no application for adjustment. He was a voluntary member of
 the Communist Party who started doubting its goals in 1957, after the
Hungarian Revolution, and who, by 1963, considered himself its enemy
and had started thinking about ways to escape from Communist
Czechoslovakia. He has asked for political asylum here as a defector.
   Jaroslav Janus made application under section 245, on the basis of
his brother's petition for fifth preference quota status, On the Form
1-485, he showed that he had been a member of the Communist Party
in Czechoslovakia from the summer of 1956 to the time of his depar-
ture in 1966. He stated that when he applied for a visitor's visa in
Prague, he was specifically asked by the American Consular Officer
whether he had ever been a member of the Communist Party, and he
denied it because he was afraid that if he told the truth, he would not
have been given a visa and would not have been able to come to the
"United States (Ex. 9B, J, p. 3J). The special inquiry officer, after
considering respondent's claim that his Party membership was invol-
untary, found that it had not been sustained, and that respondent was
precluded from establishing eligibility under section 212(a) (28) ; he
also found, using the standards of Matter of S and B 0--, 9 X. 8: N.
                                                                -


Dec. 436, that respondent had made a material misrepresentation in
denying membership, and was thus precluded from establishing ad-
justment eligibility under section 212(a) (19). We accept the special
inquiry officer's holding that this respondent is statutorily ineligible
for adjustment of status under section 245.
   Both of these respondents have applied for withholding of deporta-
tion to Czechoslovakia under section 213(h), claiming they would be
persecuted for political reasons if they were to return. Each already
has awaiting him a prison sentence on a conviction entered against
him in absentia under Article 109 of the Criminal Law of Czecho-
slovakia.' Article 109 is entitled: "Defection from the Republic". It
covers (1) a person who leaves Czechoslovakia without permission,
    Jaroslav Janus testified that his wife bad advised him she had tried but was
unable to get a copy of his coiviction from the court, but that his proceedings
were the same as his brother's, were held a week or two later, and resulted in the
same conviction and sentence. A copy of the conviction of Franttsolt Janus is in
the file as Exhibit 11J.

                                      869
Interim Decision #1900
 (2) a Czechoslovak citizen who remains in a foreign country without
permission, and (3) one who organizes either of those acts or leads a
group or groups of people across the border, they being without per-
mits to leave the country. Each respondent has been found a defector
from the Republic under the second category.
   In Jaroslav Janus' case, the court sentenced him to a year's im-
prisonment and ordered all of his property confiscated. His uncon-
tradicted testimony is that not only were all of his personal effects
taken, along with the automobile given jointly to him and his brother
Frantisek by their two United States citizen brothers, but half of the
property he owned is common with his wife as well (Tr. p. 49J). He
and she, among other things, owned a 50% interest in their family
home; the government did not sell or confiscate the home, but instead
made his wife pay 15,000 crowns for respondent's share. (The special
inquiry officer stated, at page 17, of the Janek record, that as of Novem-
ber 1, 1965, the exchange rate for the Czechoslovak crown was $.14 US.
Thus, as part of the confiscation Jaroslav's wife paid $2,100 to the
Czech Government.) Frantisek Janus was also sentenced to a year's
imprisonment and to confiscation of his property. The record of his
conviction characterized his crime as harmful to society because,
among other things, he had denigrated the good name of the Czecho-
slovak Republic (Ex. 11J, p. 2). It may be assumed that the same
characterization was made of Jaroslav Janus' acts.
   Vladimir Janek was sentenced to eight months' imprisonment, with
no confiscation of property. The record of conviction .shows that
Janek's wife testified that after he had advised her by letter that he in-
tended to remain in the United States, he began to write letters in
which he expressed homesickness, from which she assumed that he
would undoubtedly wish to return to Czechoslovakia (Janek testified
that this was a fabrication on his wife's part, Tr. p UK). From this,
and after a review of his background, the Court believed "that the
defendant committed a criminal act obviously at the instigation of
some other persons and without a thorough deliberation of his action"
 (Ex. 31C, bottom of p. 8). The Court then specifically stated that it had
set the sentence at the lowest level of the legal schedule so that it would
offer the defendant an opportunity to return to Czchoslovakia. Janek
and his witnesses all believed that this attempt to get him back was to
counteract the harmful effect of his, and other people's defections, but
that once he was back he would be subject to considerably harsher
treatment.
  Both Janek and Jaroslav Janus believe that if they were to return,
more would await them than the sentences now in effect. Each was
a member of the Communist Party and testified that this fact alone


                                   870
                                                   Interim Decision #1900
would make the crimes more serious in the eyes of the government
 (both witnesses who testified in Ja,nek's case agreed with this view).
Once they were actually in the custody of the Czech authorities, there
was no telling for how long they would be imprisoned. They claimed,
too, that punishment and ostracism would continue even after release
from prison, that they would thereafter be relegated to hard labor,
 perhaps in the mines, and would never again be able to get jobs above
the menial level.
  Respondent Janek cited additional reason for fearing dire con-
sequences. Shortly after his arrival here, he gave a four-hour inte•-
view to the Federal Bureau of Investigation, in which he discussed
conditions in Communist Czechoslovakia as they actually were. He
was also interviewed on the same subject for Radio Free Europe,
and later by the Czech language press in the United States. Exhibits
10K is the front page of one such newspaper, containing the story
of his departure and conviction, and setting forth prominently the
fact that immediately upon his leaving the Czech tourist group
with which he came here, he contacted the newspaper and gave it
information about the actual state of affairs in Czechoslovakia. We
have little doubt that at least some, if not all, of these facts are
known to the Czech Government.
   Janek testified. that he vocally differed with and criticized com-
munist policy for at least ten years. His first disenchantment was
about .the Hungarian Revolution. He was then at officers' school,
scheduled to become an officer in the army. He stated that he spoke
out critically about those events and was dismissed from the school,
two or three months before the completion of his course (Tr. p. 12K).
He stated that when he first joined the Party, he had believed that
it really was working for the good of all, but :
   • • gradually 1 came to the conclusion tnat everything the party stands
for is illogical and unacceptable for me. Gradually I saw for myself that the
words, that the leaders of the Communist State used, when they stated that
they were working for the benefit of the people and for the country, were not
based on any truth—that they were all lies—and that those leaders were com-
mitting crimes against the nation. When I found this out I spoke against
ft at the meetings of the Party and of the Labor Union about those facts. How-
ever, I found out that any position which I took against these facts were
completely in vain and to no avail. Moreover, I have been attacked on several
oecassions and that I was a reactionary and that I was speaking in the
spirit of the western ideology. Later I became discriminated against in my
work and people who once used to be my friends began to ostracize me. I
became so disgusted that from 1963 I refused to take any part in any activity
in public. (Tr. p. 13IL)
  In a sworn statement made to a Service investigator, Janek named
at least five offices he had held in communist organizations before

                                    87 L
Interim Decision #1900
his cessation of activity in 1963 (Ex. 9K, p. 5). He also said he had'
been told that he had been denounced by the State Security in the
summer of 1964 because he had stated publicly, at a meeting of the
employees of the plant where he worked, that the methods by which
Khrushchev had been deposed were intolerable (Ex. 9K, 6) .
  Testifying further about his reasons for becoming anti-Com-
munist, be said it became obvious to him that many crimes had been
committed for which the perpetrators had never been brought to
justice—many, many people executed and afterwards "rehabili-
tated", but that nothing had been done about these executions, it
was just "as if somebody had shot a rabbit." Since he was in a lower
echelon of the Party, he could stand up and speak out against these
things, but his criticism was in vain. As he put it: "It was just like
throwing peas on the wall, they bounced back and nothing hap-
pened" (Tr. p. 78K).
  He decided in 1963 that he would have to leave Czechoslovakia. He
twice tried to get permission to leave, once to West Germany, and
once to Austria, but was refused each time (Tr. p. 15K). It was then
that he decided to give up his skilled and well-paying job as a chem-
ical worker (he testified that he had earned 2,800 to 3,000 crowns a
month—$392 to $420—a very high income by Czech standards—
Tr. p.17) and to go to work as a miner.
I went there—also the work is extremely difficult and most of the workers
there are sent for punishment—I just wanted to disappear from their eyes,
meaning the Party. I wanted to disappear from the eyes of the people who-
knew what my convictions were because at that time I planned already for
a year that I would take a trip abroad to the west Bemuse all travel abroad
has to be approved by the communist party and by the worker's committee
I would never stand a chance that I could get such approval to travel west.
At my new place of work I received approval where they did not know me.
(Tr. p. 74r.)

  Much of this material about Janek has been disregarded or glossed
over by the special inquiry officer, with the statement that Janek was
not subjected to persecution while in Czechoslovakia, and that gen-
erally speaking overt acts in the United States manifesting opposi-
tion to the country of possible deportation do not support an
application under section 243(h). It is his further holding that there
has been no showing that the conviction in absentia was politically
motivated. We feel that these criteria have been taken and used out of
context in this case.
  While it is true that we have not regarded with favor an applicant
whose first indication of opposition to the political regime of the
country he left is made after arrival in the United States, that is not
what confronts us here. Janek's uncontroverted testimony is that he

                                   872
                                                    Interim Decision #1900
started expressing opposition in 1957 in Czechoslovakia and was dis-
missed from the officers' school for it; that he continued to express his
dissenting views, although his criticism had no effect except to injure
him. The sincerity and strength of his opposition is shown by the fact
that his criticism here was not made in private to friends and acquaint-
ances but to agencies which could best put it to use and could dissemi-
nate it most widely and effectively. We do not doubt that if he were to
return to Czechoslovakia, he would be punished for these acts under
Articles 102 (Defamation of the Republic, etc.), 103 (Defamation of
the President or other public representative, etc.), 104 (Defamation
of a state belonging to the world Socialist system), 106 (exposure of
State secrets—this respondent worked in uranium processing plants
and offered to share his knowledge with the United States Govern-
ment), and 112 (violation of the interests of the Republic abroad) of
the Criminal Law, and we believe that under these circumstances such
prosecution would in effect be persecution for political opposition.
This is.a factor to be reckoned with, especially when the acts committed
in the United States are not the beginning but the continuation of a
year's long course of expression of opposition to the Communist Czech
regime.
    It cannot be said, across the board, that every statute imposing crim-
 inal sanctions for unauthorized travel outside of a particular country
 must be devoid of political implications. That will depend upon
 provisions of the particular statute and the manner in which it is
 administered. The one under which respondent was convicted is, by its
 own denomination aimed at "Defection from the Republic." The act
 of defection normally has political, rather than criminal, connotations.
Also, a conviction that concerns itself with the fact that the defendant
 comes from a worker's family, that by his failure to return he took
advantage of the confidence shown in him, and that he did not act
as a good citizen when at the first available opportunity he defected
from his native country and remained abroad (Ex. 3K), does not, it
appears to us, have travel control as its prime concern.
   On evaluation of all the material and testimony presented by Janek
and on his behalf, we conclude that he has so strongly shown the
likelihood of persecution for his opposition to the political system in
Czecholsovakia that it cannot be disregarded. We are mindful, too, of
the letter in Janek's file (Ex. 15K) from the State Department to the
District Director at New York, received by him on September 12, 1967,-
in which it is stated :
  On the basis of the information contained in Mr. Janek's file, the Department
does not favor his deportation to Czechoslovakia * **.
We shall grant to Janek the requested withholding of deportation
under section 243 (h).
                               873
    Interim the ism!' Woo
    Returning to the case of Jaroslav Janus, he testified that he had
-never believed in the tenets of communism and was opposed to the
regime from the time of its accession to power in 1948 (see Ex. 9AJ,
 p. 7) ; he was the only member of his family to join the Commu-
 nist Party. His brother Frantisek was approached but refused to join
  (Ex. 10j, p. 4) ; his brother Jaromir was so opposed to the regime
 that he tried to escape from Czechoslovakia illegally in 1965, was
.arrested and imprisoned 4-5 months (his wife obtained his release
 from jail by a petition to the President), and since that time has been
 unable to get a job as anything but a delivery man in a factory, de-
:spite the fact that he has been trained in certain skills (Tr. pp. 33-
.34J). Jaroslav testified that none of his four children is a member
of the Party: "I brought them up in a way to be opposed to the Com-
munist Party" (Tr. p. 32J). His own membership in the Party was
passive; he held no office (Ex. 9AJ, p. 6) and did not always attend
-the monthly meetings (Ex. 9AJ, p. 8). He testified that he joined
the Party because he felt it was necessary to protect his family's fi-
-


nancial security. He had broken his wrist in about 1955 and the bone
    took more than a year to heal; even at the end of that time, the wrist
was inflexible so that he could not work, as he had before, on the as-
sembly line. Although the union provided for a disabled worker to
the extent of establishing that he was entitled to 80% of his base
.salary during illness or injury for a period of up to one year, the
 worker was nevertheless in financial straits because his salary was
normally augmented by overtime pay, and 80% of the base salary
was not sufficient compensation. Also, although the union offered
some job protection in that the worker after recovery was entitled
to get a job in the same plant, it did not have to be on the same level
as the prior job (Tr. pp. 36-37J). It was in this situation, after a con-
siderable period of injury and materially lowered income and enough
-residual disability so that he could not return to any manually skilled
_job, that Jaroslav Janus was approached by the Party with the promise
-that if he joined he would get a foreman's job, but that if he did not,
he would get a lesser job than he originally had (he believed this might
have been on the level of a cleaning man or delivery man—Tr. p. 35J),
and he decided to join the Party (Tr. pp. 28J, 35-37J). He makes no
claim that he ever publicly denounced the Party or its goals, although
he was always opposed to communism, he apparently lived with his
membership as a necessary evil, doing no more than he had to to main-
tain that membership. He testified that he had no difficulty in obtain-
ing his passport to come to the United States because his brothers had
-visited Czechoslovakia a short while before, and he was requesting the
passport to visit them in the United States_ He also stated that before


                                     874
                                               Interim Decision #1900
he left, he was visited by a representative of the Secret Police who told.
him that if he should meet people in the United States, especially im-
migrants• from Czechoslovakia, who criticized the Czechoslovak re-
gime, he (Janus) should explain that the situation had improved very
much and should try to change the person's anti-Communist views
(Ex. 9AJ, p. 9).
   Jaroslav Janus left Czechoslovakia because of his disagreement with
the Communist system (Tr. p. 29; p. 13 ; p. 25J, etc.) ; he left with the
intention of never returning (Ex. 9.14, p. 6). Nothing in the files in-
dictates anything other than this political motivation for his renuncia-
tion of the country where he was born and lived for 47 years. He is
genuinely afraid of reprisals by the Czech Government if he should
be forced to return, not simply because he has remained away longer
than authorized, but because he, a member of the Communist Party in
good standing, entrusted with the mission of propagandizing for the
Communist government in the United States, showed his true political
sentiments by defecting. The punishment imposed upon him by the
Czech court under Article 109/2, including not only the sentence to
imprisonment but, on his very first offense of any kind, the confiscation
of all of his property; the severity with which that confiscation was
carried out, including the enforced contribution by his wife of $2,100 to
cover the value of his interest in their home; the concern, in the record
of his brother's conviction, with the defection from the Republic, and
with the denigration of the good name of Czechoslovak'Republic (Ex.
11J) ; all of these factors persuade us that what would await Jaroslav
                                                                  _
Janek upon his return to Czechoslovakia would not be punishment for
violation of an ordinary criminal statute (the prosecution has already
taken place) , but persecution for the political offense he has committed
against the State. We hold that respondent has satisfied the require-
ments of section 243 , as amended by the Act of October 3, 1965, and
will grant to him also a withholding of deportation.
                                  III
  Counsel and the voluntary agencies that have interested themselves
in these cases contend that the special inquiry officers and the Board
continue to apply a far too stringent standard and impose a far too
heavy burden on the alien in these eases, ignoring the change made in
the law by the 1965 amendment, and ignoring, too, the equating by that
act of the standard necessary for a section 243(h) withholding with
the standard for establishing eligibility as a conditional entrant un-
der section 203(x) (7). They contend that the special inquiry officers
and the Board do not recognize certain truths; i.e., that a man may
be fleeing from a country even though he does not cross its borders

     821-654--89--57,              875
Interim Decision #1900
clandestinely but exits with proper documentation; that statutes re-
stricting all travel outside of a country and punishing violations with
imprisonment or other criminal sanctions, are inherently political in
character and not analogous to provisions such as section 2151 Immigra-
tion and Nationality Act; that any person, therefore, who leaves an
Iron Curtain country and stays out of it longer than authorized,
faces political persecution on his return, and should not bo deported
back behind the Iron Curtain, etc.
  The Board has recognized the changes made in section 243 (h) by the
1965 amendment and has not only shaped its own decisions to accord
to the changed standards but has often granted reopening and re-
manded eases so that an application for a stay heard under the older
and more stringest standard can be considered under the new. Special
inquiry officers have themselves reopened proceedings for the same
purpose. The Board recognizes, too, that flight may be made with legal
documentation, and has not restricted its rulings on 243 (h) eligibility
to persons who climbed under fences or swam rivers at night. We
are not persuaded, however, that an applicant for conditional entry
under section 203(a) (7) is in the same legal posture as an applicant
for a withholding of deportation under section 243 (h). Nor do we
believe that specific standards of conduct can be set which will guar-
antee, without more, inclusion in or exclusion from eligibility for the
benefit being sought. Both under section 203 (a) (7) and section 243(h)
cases must be decided individually, on all of their facts; the perfor-
mance of a particular act or the following of a specified course of
conduct are no more than guidelines for arriving at a result on the
basis of an entire record. We are not convinced that every travel
restriction imposed by an Iron Curtain country and punished, in the
breach, by imprisonment, is political persecution; or that every person
who leaves such a country and subjects himself to the penalties pro-
vided under those laws by remaining outside of his country for longer
than permitted is a bona fide refugee, or a person who will be subject
to persecution on his return because of his political opinion. A person
whose departure from an Iron Curtain country is devoid of political
motivation, or whose decision not to return is unrelated to the politics
of that country (e.g., the person who finds better economic oppor-
tunity here, or enters into a marital relationship with a resident alien
or United States citizen) is not entitled to a section 243 (h) stay solely
on the basis that he may face criminal prosecution for overstay. Nor
is a person who has not expressed opposition to the political regime
before departure automatically excluded from relief, if he can show
that his departure was politically motivated and that any consequences
he faces on return are political in nature. Each case, as we have said

                                  876
                                              Interim Decision #1900
before, must be considered on all of its facts, each factor given its
proper weight. We are aware of the inherent nature and intended func-
tion of the 243 (h) stay provisions, and have shaped our decisions
accordingly.
                                  IV
   ORDER: It is ordered that the decision of the special inquiry officer-
heretofore entered be and the same is hereby set aside and that the
following order is entered in lieu thereof :
   ORDER: Conditioned upon the usual processing, including an in-
vestigation by the Immigration Service and provided nothing adverse
to the respondent is developed in such processing and investigation,
it is ordered that respondent Frantisek Janus is granted adjustment
to permanent resident status under the provisions of section 245 of
the Immigration and Nationality Act; and
  It is further ordered that respondent Jaroslav Janus is denied ad-
justment of status under section 245 upon the ground that he is statu-
torily ineligible therefor; and
  It is further ordered that respondent Jaroslav Janus be granted
voluntary departure from the United States, without expense to the
Government, within such time and under such conditions as may be
set therefor; and
  It is further ordered that if respondent Jaroslav Janus should fail
to depart when and as required, the privilege of voluntary departure
shall be withdrawn without further notice or proceedings, and the
following order shall thereupon become immediately effective; re-
spondent Jaroslav Janus shall be deported from the United States
to Czechoslovakia upon the charge contained in the order to show
cause; and
  It is further ordered that respondent Vladimir Janek be granted
voluntary departure from the United States, without expense to the
Government, within such time and under such conditions as may be
set therefore; and
  It is further ordered that if respondent Vladimir Janek should fail
to depart when and as required, the privilege of voluntary departure
shall be withdrawn without further notice of proceedings, and the fol-
lowing order shall thereupon become immediately effective; respondent
Vladimir Janek shall be deported from the United States to Sweden
upon the charge contained in the order to show cause; provided, how-
ever, that if Sweden advises the Attorney General that it is unwilling
to accept respondent Janek into its territory, or fails to advise the
Attorney General within three months following original inquiry


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Interim Decision #1900
whether it will or will not accept respondent into its territory, that
respondent shall be deported to Czechoslovakia; and
   It is further ordered that the deportation of respondents Jaroslav
Janus and Vladimir Janek to Czechoslovakia be withheld, pursuant
to the provisions of section 243 (h) of the Immigration and Nationality
Act, for such period and under such conditions as the Attorney General
may deem appropriate.




                                  878