## Facts

- Djordje Kovac, a Yugoslav citizen of Hungarian ethnicity, entered the United States on February 13, 1967, as a nonimmigrant crewman on shore leave; after his ship departed, he remained and conceded deportability.
- At a deportation hearing, conducted through an interpreter and without counsel for Kovac, he sought to apply for withholding of deportation under Immigration and Nationality Act § 243(h) (8 U.S.C. § 1253(h)).
- The special inquiry officer denied § 243(h) relief and ordered deportation, treating Kovac’s claim as based only on potential prosecution in Yugoslavia for deserting his ship.
- In later filings, Kovac asserted that, after the 1956 Hungarian revolution, Yugoslav secret police pressured him to inform on Hungarian refugees; he refused.
- Kovac claimed that, because of his refusal and his ethnicity, officials interfered with his employment, causing job loss and repeated denial of work in his trained occupation, making it effectively impossible to earn a livelihood; he argued similar treatment would recur if returned.
- The special inquiry officer denied a motion to reopen and reconsider; the Board of Immigration Appeals affirmed and denied a similar motion.
- Kovac petitioned for judicial review of the final deportation order.

## Issues

1. Whether “persecution” under INA § 243(h) is limited to threats to life or physical liberty, or may include severe economic discrimination imposed on account of race, religion, or political opinion.
2. Whether the immigration authorities erred by misconceiving the basis of Kovac’s § 243(h) claim and failing to apply the correct legal standard in exercising discretion.

## Decision

- The Ninth Circuit granted the petition to the extent of remanding to the agency for further proceedings.
- The court held that “persecution” under § 243(h) is not confined to physical harm or imprisonment and can include substantial, targeted economic disadvantage tied to a protected ground.
- The court found the agency’s disposition defective because it treated Kovac’s claim as merely fear of prosecution for desertion, rather than addressing his allegations of ethnically and politically motivated economic and employment harassment.
- The court required reconsideration under the correct interpretation of “persecution” and on the basis of the full set of allegations.

## Legal Principles

- Under INA § 243(h), “persecution” may include substantial economic discrimination or deprivation that effectively denies a person a means of earning a livelihood, when inflicted on account of race, religion, or political opinion.
- Agency discretion in withholding decisions must be exercised under the correct legal standard and must reflect consideration of the claim actually presented, not a mischaracterized substitute.
- When the record indicates the agency applied an unduly narrow conception of persecution or failed to evaluate the asserted grounds, the proper remedy is remand for reconsideration.

## Conclusion

The Ninth Circuit ruled that § 243(h) persecution can include severe, targeted economic discrimination and remanded because immigration authorities misapprehended Kovac’s claim and therefore did not evaluate his allegations under the correct legal standard.


Kovac v. Immigr. & Naturalization Serv., 407 F.2d 102 (9th Cir. 1969)