Jorge Bartesaghi-Lay v. Immigr. & Naturalization Serv., 9 F.3d 819 (10th Cir. 1993). · Go Syfert
Jorge Bartesaghi-Lay v. Immigr. & Naturalization Serv., 9 F.3d 819 (10th Cir. 1993). Cases Citing This Book View Copy Cite
“t is apparently agreed that the possible persecution to be established by an alien in order for him to be eligible for asylum may come from a non-government agency which the government is unwilling or unable to control.”
38 citation events (15 in the last 25 years) across 4 distinct courts.
Strongest positive: Balogun, Yetunde v. Ashcroft, John (ca7, 2004-07-01)
Treatment trajectory · 1994 → 2026 · click a year to view as-of
1994 2010 2026
Top citers, strongest first. 31 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) Balogun, Yetunde v. Ashcroft, John
7th Cir. · 2004 · quote attribution · 1 verbatim quote · confidence high
t is apparently agreed that the possible persecution to be established by an alien in order for him to be eligible for asylum may come from a non-government agency which the government is unwilling or unable to control.
discussed Cited as authority (rule) Nkwonta v. Mukasey
10th Cir. · 2008 · confidence medium
Br. at 32; (citing Ustyan v. Ashcroft, 367 F.3d 1215, 1217 (10th Cir. 2004) (finding no persecution where petitioner failed to show that his beating, detention in a cell exposed to chlorine gas, and the destruction of his home were on account of his ethnic identity or imputed political beliefs and not simply in retaliation for his resistence to recruitment efforts); Bartesaghi-Lay v. INS, 9 F.3d 819, 822-23 (10th Cir.1993) (finding that reprisal for alien’s rejection of solicitation to join drug-smuggling operation was not on account of a protected ground)).
discussed Cited as authority (rule) Harutyunyan v. Gonzales
1st Cir. · 2005 · confidence medium
See Berishaj v. Ashcroft, 378 F.3d 314, 323 (3d Cir.2004) (explaining that past persecution requires a showing either that the acts were committed by the government or that the government was unable or unwilling to control them); Bartesaghi-Lay v. INS, 9 F.3d 819, 822 (10th Cir.1993) (similar); see also Da Silva, 394 F.3d at 7 (“Action by non-governmental actors can undergird a claim of persecution only if there is some showing that the alleged persecutors are in league with the government or are not controllable by the government.”).
discussed Cited as authority (rule) Hor, Abdelhadi v. Gonzales, Alberto R.
7th Cir. · 2005 · confidence medium
As explained in Balogun v. 8 No. 04-1964 Ashcroft, 374 F.3d 492 , 499 n. 8 (7th Cir. 2004), “ ‘[P]ersecution cognizable under the Act can emanate from sections of the population that do not accept the laws of the country at issue, sections that the government of that country is either unable or unwilling to control.’ Borja v. INS, 175 F.3d 732 , 735 n. 1 (9th Cir. 1999) (en banc); see also Chitay-Pirir v. INS, 169 F.3d 1079, 1081 (7th Cir. 1999); Sotelo- Aquije v. Slattery, 17 F.3d 33, 37 (2d Cir. 1994) (’[T]he statute protects against persecution not only by government forces but also…
discussed Cited as authority (rule) Abdelhadi Hor v. Alberto R. Gonzales
7th Cir. · 2005 · confidence medium
As explained in Balogun v. Ashcroft, 374 F.3d *502 492, 499 n. 8 (7th Cir.2004), “ ‘[Persecution cognizable under the Act can emanate from sections of the population that do not accept the laws of the country at issue, sections that the government of that country is either unable or unwilling to control.’ Borja v. INS, 175 F.3d 732 , 735 n. 1 (9th Cir.1999) (en banc); see also Chitay-Pirir v. INS, 169 F.3d 1079, 1081 (7th Cir.1999); Sotelo-Aquije v. Slattery, 17 F.3d 33, 37 (2d Cir.1994) (‘[T]he statute protects against persecution not only by government forces but also by nongovernmen…
discussed Cited as authority (rule) Yetunde Balogun v. John D. Ashcroft
7th Cir. · 2004 · confidence medium
See Luellen v. City of East Chicago, 350 F.3d 604 , 612 n. 4 (7th Cir.2003). 8 . "[Persecution cognizable under the Act can emanate from sections of the population that do not accept the laws of the country at issue, sections that the government of that country is either unable or unwilling to control.” Borja v. INS, 175 F.3d 732 , 735 n. 1 (9th Cir.1999) (en banc); see also Chitay-Pirir v. INS, 169 F.3d 1079, 1081 (7th Cir.1999); Sotelo-Aquije v. Slattery, 17 F.3d 33, 37 (2d Cir.1994) ("[T]he statute protects against persecution not only by government forces but also by nongovernmental grou…
discussed Cited as authority (rule) Batalova v. Ashcroft
10th Cir. · 2004 · confidence medium
“We have held that ‘the possible persecution to be established by an alien in order for him to be eligible for asylum may come from a non-government agency which the government is unwilling or unable to control.’ ” Kras-tev v. INS, 292 F.3d 1268, 1275-76 (10th Cir.2002) (quoting Bartesaghi-Lay v. INS, 9 F.3d 819, 822 (10th Cir.1993)).
discussed Cited as authority (rule) Emil Avgoustov Krastev Neli Pecheva Krasteva v. Immigration & Naturalization Service
10th Cir. · 2002 · confidence medium
We have held that “the possible persecution to be established by an alien in order for him to be eligible for asylum may come from a non-government agency which the government is unwilling or unable to con *1276 trol.” Bartesaghi-Lay v. INS, 9 F.3d 819, 822 (10th Cir.1993).
discussed Cited as authority (rule) Maloukh v. INS (2×) also: Cited "see"
10th Cir. · 1997 · confidence medium
See Adhiyappa, 58 F.3d at 267-68 . -10- because of political opinion, not because of refusal to join guerrillas); Bartesaghi-Lay v. INS, 9 F.3d 819, 823 (10th Cir. 1993) (affirming BIA’s finding of no refugee status because possible persecution was based on petitioner’s refusal to participate in drug smuggling, not political opinion); Adhiyappa, 58 F.3d at 267-68 (no persecution based on political opinion where petitioner informed government of terrorist group members presumably to improve job situation and avoid government retribution).
discussed Cited as authority (rule) Amin Maloukh v. Immigration & Naturalization Service (2×) also: Cited "see"
10th Cir. · 1997 · confidence medium
See id.; see also Elias-Zacarias, 502 U.S. at 483 (petitioner must establish persecution because of political opinion, not because of refusal to join guerrillas); Bartesaghi-Lay v. INS, 9 F.3d 819, 823 (10th Cir.1993) (affirming BIA's finding of no refugee status because possible persecution was based on petitioner's refusal to participate in drug smuggling, not political opinion); Adhiyappa, 58 F.3d at 267-68 (no persecution based on political opinion where petitioner informed government of terrorist group members presumably to improve job situation and avoid government retribution).
discussed Cited as authority (rule) Oscar Garcia v. Immigration & Naturalization Service
10th Cir. · 1997 · confidence medium
See id. (holding that record failed to show political motive by petitioner); Bartesaghi-Lay v. INS, 9 F.3d 819, 822 (10th Cir.1993) (holding that possible persecution by a revolutionary group was the result of petitioner's refusal to smuggle drugs, and not because of his political opinions). 8 Because petitioners cannot satisfy the burden of proof to establish statutory eligibility for asylum, neither can they meet the heightened burden to succeed on their claim for withholding of deportation.
discussed Cited as authority (rule) Garcia v. INS
10th Cir. · 1997 · confidence medium
See id. (holding that record failed to show political motive by petitioner); Bartesaghi-Lay v. INS, 9 F.3d 819, 822 (10th Cir. 1993) (holding that possible persecution by a revolutionary group was the result of petitioner’s refusal to smuggle drugs, and not because of his political opinions).
cited Cited as authority (rule) Mroz v. Reno
10th Cir. · 1997 · confidence medium
Bartesaghi-Lay v. INS, 9 F.3d 819, 822 (10th Cir. 1993).
cited Cited as authority (rule) Sylwester Mroz v. Janet Reno, United States Attorney General
10th Cir. · 1997 · confidence medium
Bartesaghi-Lay v. INS, 9 F.3d 819, 822 (10th Cir.1993).
cited Cited as authority (rule) Saeed Rezai v. Immigration & Naturalization Service
10th Cir. · 1995 · confidence medium
Bartesaghi-Lay v. I.N.S., 9 F.3d 819, 822 (10th Cir.1993).
cited Cited as authority (rule) James Chitima v. Immigration & Naturalization Service
10th Cir. · 1995 · confidence medium
Bartesaghi-Lay v. INS, 9 F.3d 819, 822 (10th Cir.1993).
discussed Cited as authority (rule) Ziane Cherif Benziane v. Immigration and Naturalization Service (2×)
10th Cir. · 1995 · confidence medium
Generally, the feared persecution must emanate from the government, but an alien may be eligible for asylum if he establishes possible persecution "from a non-government agency which the government is unwilling or unable to control." Bartesaghi-Lay v. INS, 9 F.3d 819, 822 (10th Cir.1993); accord Elnager v. United States INS, 930 F.2d 784, 788 (9th Cir.1991).
cited Cited as authority (rule) Jose Antonio Salguero, Jr., Rosa Candida Zelaya v. Immigration & Naturalization Service
10th Cir. · 1995 · confidence medium
Bartesaghi-Lay v. INS, 9 F.3d 819, 822 (10th Cir.1993).
discussed Cited as authority (rule) Daniel Aszalos v. Immigration & Naturalization Service
10th Cir. · 1995 · confidence medium
In light of the Supreme Court's holding in Elias-Zacarias, as well as our consistent application of the substantial evidence standard at step one of the asylum inquiry, e.g., Castaneda v. INS, 23 F.3d 1576, 1578 (10th Cir.1994); Bartesaghi-Lay v. INS, 9 F.3d 819, 822 (10th Cir.1993); Baka v. INS, 963 F.2d 1376, 1379 (10th Cir.1992), we decline Mr. Aszalos' invitation to revise the standard of review
discussed Cited as authority (rule) Irina Volkova, Alisa Gandina and Natalia Volkova v. Immigration & Naturalization Service
10th Cir. · 1994 · confidence medium
The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order filed November 29, 1993. 151 F.R.D. 470 2 In light of the Supreme Court's holding in Elias-Zacarias, as well as our consistent application of the substantial evidence standard at step one of the asylum inquiry, e.g., Castaneda v. INS, 23 F.3d 1576, 1578 (10th Cir.1994); Bartesaghi-Lay v. INS, 9 F.3d 819, 822 (10th Cir.1993); Baka v. INS, 963 F.2d 1376, 1379 (10th Cir.1992); Kapcia, 944 F.2d at 707 , we reject petitioner…
discussed Cited as authority (rule) Ljubisa Filimonovic v. Immigration & Naturalization Service
10th Cir. · 1994 · confidence medium
In addition to the substantial line of authority in this circuit, beginning with Kapcia v. INS, 944 F.2d 702, 707 (10th Cir.1991), treating this issue as a question of fact reviewed under the substantial evidence standard, see, e.g., Bartesaghi-Lay v. INS, 9 F.3d 819, 822 (10th Cir.1993), the United States Supreme Court, see INS v. Elias-Zacarias, 112 S.Ct. 812, 815 (1992) (BIA's determination that applicant is not eligible for asylum must be upheld if supported by reasonable, substantial, and probative evidence on record as whole, citing 8 U.S.C. 1105a(a)(4)), and most circuits addressing thi…
discussed Cited as authority (rule) de la Llana-Castellon v. Immigration & Naturalization Service
10th Cir. · 1994 · confidence medium
There may very well be evidence that the coalition government does not enjoy full or even marginal control in Nicaragua and that the San-dinistas are still a force to be reckoned with. 1 Second, the BIA failed to acknowledge that the persecution of which an applicant for asylum complains need not emanate from the present government of a foreign nation. “[T]he possible persecution to be established by an alien in order to be eligible for asylum may come from a non-government agency which the government is unwilling or unable to control.” Bartesaghi-Lay v. INS, 9 F.3d 819, 822 (10th Cir.1993…
discussed Cited as authority (rule) Llana-Castellon v. Immigration and Naturalization Service
10th Cir. · 1994 · confidence medium
There may very well be evidence that the coalition government does not enjoy full or even marginal control in Nicaragua and that the Sandinistas are still a force to be reckoned with. 1 27 Second, the BIA failed to acknowledge that the persecution of which an applicant for asylum complains need not emanate from the present government of a foreign nation. "[T]he possible persecution to be established by an alien in order to be eligible for asylum may come from a non-government agency which the government is unwilling or unable to control." Bartesaghi-Lay v. INS, 9 F.3d 819, 822 (10th Cir.1993) …
discussed Cited "see" Cisneros-Diaz v. Holder, Jr. (2×)
10th Cir. · 2011 · signal: see · confidence high
See Bartesaghi-Lay v. INS, 9 F.3d 819, 822 (10th Cir.1993); 8 C.F.R. § 1208.13 (a) (“The burden of proof is on the applicant for asylum to establish that he or she is a refugee[.]”).
cited Cited "see" Lissitchev v. Ashcroft
10th Cir. · 2004 · signal: see · confidence high
See Bartesaghi-Lay v. INS, 9 F.3d 819, 822 (10th Cir.1993) (noting that persecution “may come from a non-government agency which the government is unwilling or unable to control”).
cited Cited "see" Portillo v. INS
10th Cir. · 1999 · signal: see · confidence high
See 5 Bartesaghi-Lay v. INS , 9 F.3d 819, 921 (10th Cir. 1993).
discussed Cited "see" Marcia Amelia Diaz De La Vega-Cabrera v. Immigration and Naturalization Service
9th Cir. · 1995 · signal: see · confidence high
See Bartesghi-Lay v. INS, 9 F.3d 819, 822 (10th Cir.1993) (holding that a merchant marine who was approached by a revolutionary group to smuggle drugs would be persecuted on account of his profession, not his political opinion).
cited Cited "see, e.g." Artur Ustyan v. John Ashcroft, Attorney General
10th Cir. · 2004 · signal: see, e.g. · confidence medium
See, e.g., Bartesaghi-Lay v. INS, 9 F.3d 819, 822 (10th Cir.1993).
cited Cited "see, e.g." Ustyan v. Ashcroft
10th Cir. · 2004 · signal: see, e.g. · confidence medium
See, e.g., Bartesaghi-Lay v. INS, 9 F.3d 819, 822 (10th Cir.1993).
discussed Cited "see, e.g." Nasir v. Immigration & Naturalization Service
10th Cir. · 2002 · signal: see also · confidence medium
The persecution may come from a nongovernmental source if the alien can establish that the government is “unwilling or unable to control” the source, de la Llana-Castellon v. INS, 16 F.3d 1093, 1097 (10th Cir.1994); see also Bartesaghi-Lay v. INS, 9 F.3d 819, 822 (10th Cir.1993) (addressing whether alien had well-founded fear of persecution by non-government para-military group).
discussed Cited "see, e.g." Ramirez v. INS
10th Cir. · 1997 · signal: compare · confidence medium
Compare Sotelo-Aquije v. Slattery, 17 F.3d 33, 36-37 (2d Cir. 1994) (finding political persecution because guerrilla organization threatened petitioner on account of his active, public opposition), with Bartesaghi-Lay v. INS, 9 F.3d 819, 822 (10th Cir. 1993) (holding government sympathizer did not establish -4- political persecution by rebel group because threat “was prompted by the fact that he declined to become involved . . ., and not because of his political opinions”).
Retrieving the full opinion text from the archive…
Jorge BARTESAGHI-LAY, Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE, Respondent
93-9516.
Court of Appeals for the Tenth Circuit.
Sep 30, 1993.
9 F.3d 819
Submitted on the briefs: *, Lawrence E. Davis of Davis & Shelton, Oklahoma City, OK, for petitioner., Frank W. Hunger, Asst. Atty. Gen., Civ. Div., David J. Kline, Asst. Director, and David M. McConnell, Attorney, Office of Immigration Litigation, Civ. Div., Dept, of Justice, Washington, DC, for respondent.
Logan, Moore, McWilliams.
Cited by 42 opinions  |  Published
McWILLIAMS, Senior Circuit Judge.

Jorge Bartesaghi-Lay, hereinafter referred to as the petitioner, entered the United States “without inspection” near Brownsville, Texas on April 14, 1991. The petitioner, a citizen of Peru, was immediately placed in deportation proceedings. In those proceedings, petitioner requested asylum in the United States, a withholding of deportation, and, in the alternative, voluntary departure. A hearing was held before an Immigration Judge who rendered a decision wherein petitioner’s request for asylum and a withholding of deportation was denied, although he was granted voluntary departure status in lieu of deportation from the United States. The petitioner appealed the decision of the Immigration Judge to the Board of Immigration Appeals (hereinafter referred to as “the Board”) which, in effect, affirmed the judge’s decision. Thereafter petitioner filed a timely petition for review with this court. 8 U.S.C. § 1105a(a) and 28 U.S.C. § 158.

At the hearing before the Immigration Judge, petitioner was represented by counsel and testified through an interpreter. From his testimony we learn that he is a 39-year old Peruvian national, who was placed in deportation proceedings after an unlawful entry at Brownsville, Texas. Petitioner stated he was en route to Canada where “he had friends” who had been granted asylum in that country. For some 14 years petitioner[*821] had served in the Peruvian Merchant Marines as a sailor and had been in the United States numerous times while so serving. He stated that frequently drugs were smuggled into the United States along with cargo.

A few years before his illegal entry at Brownsville, petitioner left the Merchant Marines, a leave that was prompted, at least in part, when he learned that the ship he was then working on was, inter alia, smuggling drugs. Petitioner then took a job in Lima, Peru. About this time, petitioner became friends with a former acquaintance in the army who was a member of the Tupac Amaru Revolutionary Group (MRTA), a left wing group dedicated to overthrowing the right wing group then ruling Peru. He eventually learned that MRTA engaged in drug smuggling activities and used the money derived therefrom to finance its political activities. Petitioner was invited to participate in MRTA’s drug smuggling operations, but he turned down the invitation since he was not in sympathy with MRTA’s aims and, as a “believer in capitalism,” supported the right wing group then in control in Peru. Petitioner testified that when he turned down the invitation to join MRTA, he was threatened not to tell anyone what he knew about MRTA “at the risk of death.” Shortly thereafter, petitioner decided to leave Peru and go to Canada, hoping to find a safe haven there. Accordingly, he left Peru, leaving behind a wife and two children, and was en route to Canada when he was apprehended at the Texas border.

A change of venue having been granted, the hearing before the Immigration Judge was held in Oklahoma City, Oklahoma. The evidence adduced before the Immigration Judge consisted of various documents, as well as the testimony of the petitioner. After summarizing the evidence, the Immigration Judge found, inter alia, that the petitioner had failed to show a “well-founded fear of persecution” should he be returned to Peru on any of the grounds enumerated in 8 U.S.C. § 1101(a)(42), and therefore was not entitled to asylum, nor had he shown a clear probability of persecution on any of the grounds set forth in 8 U.S.C. § 1253(h) which would entitle him to a withholding of deportation. The Immigration Judge indicated that MRTA had attempted to recruit the petitioner because of his prior experience in smuggling drugs into other countries, which ability he had acquired while serving in the Peruvian Merchant Marines, and that petitioner had in reality fled Peru because of “general conditions,” not because of a well-founded fear of persecution by MRTA for his political opinions. As indicated, the Immigration Judge also found that petitioner was eligible for voluntary departure and granted him until July 20, 1992, to voluntarily depart the United States, and in the event he did not so depart, ordered his deportation to Peru.

On review, the Board affirmed, in effect, the Immigration Judge, holding that petitioner was not entitled to asylum or a withholding of deportation, but was granted 30 days to voluntarily depart the country.

On appeal to this court, petitioner’s basic position is that the Board’s decision is not supported by the record, and that, in fact, the record compels a finding that petitioner is entitled to asylum and a withholding of deportation. [1] We disagree and hold that the record supports the Board’s decision.

The Immigration and Nationality Act sets forth two methods whereby an otherwise de-portable alien claiming persecution if deported can seek relief. They are asylum and withholding of deportation. In the instant case, petitioner sought both, each of which was denied. Kapcia v. I.N.S., 944 F.2d 702, 706 (10th Cir.1991).

Asylum

8 U.S.C. § 1158(a) provides as follows:

The Attorney General shall establish a procedure for an alien physically present in the United States or at a land border or[*822] port of entry, irrespective of such alien’s status, to apply for asylum, and the alien may be granted asylum in the discretion of the Attorney General if the Attorney General determines that such alien is a refugee within the meaning of section 1101(a)(42)(A) of this title.

8 U.S.C. § 1101(a)(42) provides, in part, as follows:

(42) The term “refugee” means (A) any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, ...

Although the persecution which petitioner here complains of does not emanate from the present Peruvian government, which indeed petitioner sympathizes with, it is apparently agreed that the possible persecution to be established by an alien in order for him to be eligible for asylum may come from a non-government agency which the government is unwilling or unable to control. McMullen v. I.N.S., 658 F.2d 1312, 1315, n. 2 (9th Cir.1981) and Rosa v. I.N.S., 440 F.2d 100, 102 (1st Cir.1971).

As stated in Kapcia, supra, if an alien be determined to be a “refugee,” as defined by the statute, then the Attorney General may grant asylum. In the instant ease, the Board held that petitioner was not a “refugee” within the meaning of the statute, and on that basis denied asylum to the petitioner. In this connection, the Board spoke as follows:

We cannot conclude that these facts establish the respondent’s eligibility for asylum in the United States. Taking the respondent’s testimony as true for the purpose of analysis, the record is clear that the respondent was solicited for MRTA’s drug-smuggling operations by virtue of his employment as a sailor, not for any political reasons. When the respondent refused, he placed himself at risk of harm since the MRTA members wished to insure the secrecy of their plans, not due to any concern about the respondent’s political opinion. The fact that the MRTA has an ultimately political rather than purely criminal purpose does not alter their motive to silence the respondent in this regard. As such, the respondent’s fear, although perhaps objectively as well as subjectively valid, is not on account of one of the five qualifying grounds set forth in section 101(a)(42) of the Act, 8 U.S.C. § 1101(a)(42);

We review the Board’s factual findings of whether an alien is a “refugee” as defined in the statute under the substantial evidence standard. Kapcia, supra, at p. 707. Our review of the record convinces us that the Board’s determination that petitioner does not fit any of the statutory definitions of “refugee” is supported by the record. Petitioner’s testimony permits the inference that he was being recruited by MRTA because of his prior experience in drug smuggling, and that possible persecution by MRTA, should he be returned to Peru, was prompted by the fact that he declined to become involved in MRTA’s drug smuggling, and not because of his political opinions. I.N.S. v. Elias-Zacarias, — U.S.—, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).

Withholding Deportation

8 U.S.C. § 1253(h) provides as follows:

(h) Withholding of deportation or return
(1) The Attorney General shall not deport or return any alien (other than an alien described in section 1251(a)(4)(D) of this title) to a country if the Attorney General determines that such alien’s life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion.

Consistent with its holding that petitioner was not a “refugee,” as defined by 8 U.S.C. § 1101(a)(42), the Board also found that petitioner was not subject to possible persecution in Peru “on account of [his] race, religion, nationality, membership in a partic[*823] ular social group, or political opinion,” as required by 8 U.S.C. § 1253(h), and therefore was not entitled to have deportation withheld. Again, the Board was of the view that any possible persecution of petitioner on a return to Peru was not based on his “political opinion,” but on the fact that he refused to get involved in drug smuggling. The record permits such a finding. I.N.S. v. Elias-Zacanas, — U.S.—, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).

Decision affirmed.

1

. In LN.S. v. Elias-Zacarias,-U.S. --, -- n. 1, 112 S.Ct. 812, 815, n. 1, 117 L.Ed.2d 38 (1992), the Supreme Court held that in order to reverse the Board’s finding that an alien is not entitled to asylum or a withholding of deportation, it must find that the evidence not only supports a conclusion that the alien is entitled to asylum or a withholding of deportation, but compels such a finding.