Antoine Salem Shubash, Petitioner-appellee, v. District Director of the U. S. Immigration Andnaturalization Service, Respondent-appellant, 450 F.2d 345 (9th Cir. 1971)

The District Director of the United States Immigration and Naturalization Service appeals from a judgment which overturned his denial of Shubash's application for seventh preference classification under 8 U.S.C. § 1153(a) (7). We reverse.

The statute authorizes the issuance of a seventh preference visa "to aliens who satisfy an Immigration and Naturalization Service officer * * * (A) that (i) because of persecution or fear of persecution on account of race, religion, or political opinion they have fled * * * (II) from any country within the general area of the Middle East, and (ii) are unable or unwilling to return to such country or area on account of race, religion, or political opinion * * *." The statutory conditions (i) and (ii) are in the conjunctive; both must be met. The burden of proof is placed by the statute on Shubash. 8 U.S.C. § 1153(d). A court may overturn a denial of a visa under this section only for abuse of discretion. (Suh v. Rosenberg, 9 Cir., 1971, 437 F.2d 1098, 1102.) Here, we can find none. Shubash did not meet his burden as to either condition.

Shubash, an Arab Christian, a resident of Jerusalem, carrying a Jordanian passport, left Jerusalem in 1966, not because of persecution but for personal reasons, entering and re-entering this country as a non-immigrant visitor. Since then, Israel has occupied Jerusalem. However, Shubash has not proved that he would be persecuted or hampered in any way if he returned either to Jerusalem or to that portion of Jordan not occupied by Israel. The record supports the Regional Commissioner's findings.

Reversed with directions to dismiss the action as to appellee.