BIGGS, Chief Judge.
This is an appeal from an order of the United States District Court for the District of New Jersey permanently enjoining the District Director of the Immigration and Naturalization Service from deporting the appellee pursuant to a deportation order issued by the Service. Briefly, the facts are these. The plaintiff-appellee, Bruno Blazina, a 22-year-old Yugoslav national, entered the United States in August, 1957 as a non-immigrant seaman pursuant to Section 1282, Title 8 U.S.C.A. providing for conditional permits to land for a period not exceeding 29 days. On December 19, 1957, Blazina having remained in the United States for a longer period than authorized, the Immigration and Naturalization Service ordered him to appear on December
On January 27, 1958 Blazina applied to the Attorney General for a stay of deportation pursuant to Section 243(h) of the Immigration and Nationality Act of 1952, 66 Stat. 212, as amended, 8 U.S. C.A. § 1253(h),
On November 26, 1958, a hearing in which Blazina was represented by counsel of his own choice was had on this application before a Special Inquiry Officer. At this hearing Blazina did contend that he would be subject to physical persecution if deported to Yugoslavia. In substance, he asserted three reasons why the Attorney General should conclude that the Yugoslavian authorities would persecute him physically on his return. First, Blazina called attention to the fact of the communist government's general hostility toward religious beliefs and practice, and alleged that he was a practicing Roman Catholic who in good faith follows the tenets and precepts of his religion. When queried as to the precise sanctions he would be subjected to, Blazina testified that "[O]ne that works has complications" and that "those that go to church and worship over there are looked down upon."
On the basis of the testimony just summarized the Special Inquiry Officer recommended that the application be denied, concluding that Blazina had failed to establish "by reasonable and probative evidence that he would be subjected to physical persecution if returned to Yugoslavia." On December 31, 1958 the Regional Commissioner ordered that the application be denied stating that in his opinion Blazina would not be subject to physical persecution if deported.
The suit at bar was filed by Blazina on September 25, 1959, seeking a "permanent injunction" restraining the District Director of the Immigration and Naturalization Service of New Jersey from deporting him to Yugoslavia. It is alleged in the complaint that the action of the Attorney General in denying the relief sought by Blazina was arbitrary and capricious and that Blazina would be subject to physical persecution if deported to Yugoslavia. Affidavits were filed, the contents of which need not be detailed here. It is sufficient to state that they set out with sufficient clarity and correctly the events which preceded the filing of the suit. On October 9, 1959, upon the whole record of the proceedings had before the Special Inquiry Officer and the pleadings, the District Director moved for summary judgment under Rule 56(b), Fed.R.Civ.Proc., 28 U.S.C. The court below concluded that there was no sound basis in law or in fact for the Attorney General to refuse to grant Blazina the dispensation authorized by Section 243 (h) and on February 11, 1960 granted a permanent injunction restraining Blazina's deportation. The appeal of the District Director followed on April 4, 1960, and the case came on for argument in this court on October 6, 1960. Between the date of the taking of the appeal and the date of the argument Blazina who had volunteered for the draft, was inducted into the Armed Forces of the United States.
The District Director contends that the District Court erred in that it exercised independent judgment on a matter that was committed by Congress to the discretion of the Attorney General. We agree with this contention. The predecessor of Section 243(h) which was enacted in 1952, was Section 20 of
Blazina does not contend that the Attorney General did not consider his application, that the regulations were not followed or conformed with,
Before the Attorney General may grant relief under Section 243(h) it must be shown to his satisfaction that, if deported, the alien would be subject not only to persecution, but to physical persecution. Blazina's testimony affords no basis for concluding that his religious beliefs would cause him to be subjected to such sanctions in Yugoslavia. At worst, it appears that he will be "looked down upon" and will encounter some "complications". That Blazina may suffer even these consequences at the hands of his government merely because of his religious practice and belief is deplorable. The repugnance of such a governmental policy to our own concepts of religious freedom cannot, however, justify our labelling such actions as "physical persecution".
Nor can the three-months prison sentence to which Blazina may be subjected as punishment for deserting his ship or his country illegally be termed physical persecution. The phrase "physical persecution" should be taken to mean confinement, torture or death inflicted on account of race, religion, or political viewpoint. Imprisonment for jumping ship does not come within this test, but seems rather to be a criminal sanction that is reconcilable with generally recognized concepts of justice.
Blazina's final contention is that the very fact of his desertion which itself indicates anti-communist feeling, and his anti-communist statements made since his arrival will be ground for his subjection to physical persecution if returned to Yugoslavia. This contention
Blazina has asserted in this court and it is not denied that after volunteering for the draft, he has been inducted into the Armed Forces of the United States. This added circumstance in Blazina's situation is one which was not and could not have been before the Attorney General. The court below and this tribunal are entitled to review that action of the Attorney General only on the basis of the record which was before him. Accordingly we cannot and do not discuss or deal with this aspect of the case. In view of Blazina's induction into the Armed Forces of the United States we will order our mandate stayed for a period of sixty days from the day of the filing of this opinion to permit Blazina to petition for certiorari or to file a new application under Section 243(h) based on his induction into the Armed Forces of the United States, or to allow him to do both.
Regrettably, we are compelled to comment on one other matter. The trial judge treated the Assistant United States Attorney who argued this case in the court below in an undeservedly harsh manner. It is important that judges be ever alert to their responsibility for upholding the dignity and prestige of our judicial system.
The judgment will be reversed. The court below will be directed to dismiss the complaint.
"Q. With reference to your religious beliefs, would you state whether or not you are free to worship your faith in Yugoslavia? A. One that works has complications."
"Q. Do you have freedom of worship in Yugoslavia, generally? A. Only those who are not employed for the Government are allowed, and those who are working for the Government have no privileges and are not allowed."
"Q. Well, the question I ask you now is — is there freedom of worship — could you worship freely in Yugoslavia whether you are a Catholic or any other denomination? A. I still maintain that those employed with the authorities have no privileges and others are permitted."
"Q. Compared to the freedom that you have here to worship, would you say that the same freedom applies in Yugoslavia to a person who is not employed by the Government? A. No, not the same, because those that go to church and worship over there are looked down upon.
"Q. Do you mean, would you say then that the Government looks with disfavor upon any religious beliefs in Yugoslavia? A. Yes, they do not recognize worship."
"Q. Well, in what manner then do you insist that you would be persecuted if you were returned to Yugoslavia? A. Because I fled from there and I know that those who return are punished.
"Q. However, would you be punished because you fled or because you are opposed to the Yugoslav government? A. Because I do not care for the Communist party."
"Q. Why would you be persecuted because you don't care for the Communist party, if as you have said you have never disclosed to anyone the fact that you do not care for it or are opposed to that party? A. The fact that I fled is proof enough that I did not care for the Communist regime.
"Q. So that the sole reason in essence that you have for believing that you would be persecuted is the fact that you fled and the possible indication that by reason of your having fled you have indicated disapproval of the Communist government in Yugoslavia. Is that right? A. Yes, that is correct."
"Q. Have you ever spoken against the communist form of government or Yugoslav form of government to any group or any individual? A. No, I did not because I would fear exposure.
"Q. On board the ship when you came to the United States did you have any difficulty because of the fact that you are opposed to the Yugoslav form of government, or you indicated in some way that you are opposed to it? A. No, I did not because I feared then they wouldn't allow me abroad — to go ashore."
"Q. Have you ever been in any way politically active? A. We just spoke against the communistic regime to our friends in school but not openly.
"Q. You mean just among the intimacy of the people you trusted you might have commented against the communist regime; is that what you mean? A. Yes, that's correct.
"Q. Did you ever hold any political office of any kind or were you ever prominent in any way, politically? A. No."