This item is only available as the following downloads:
This volume was donated to LLMC
to enrich its on-line offerings and
for purposes of long-term preservation by
Columbia University Law Library
Marvin E. Frankel
BOARD OF DIRECTORS
Jo R Backer
Robert L Bemstein
Tom A. Bernstein
Michael I Devis
Drew S Days.
Adrian W DeWind
Fr. Robert F. Drinan
Bruce J Ennis
R. Scot Greathead
Deborah K Greenberg
Banington Parker. Jr.
Barbara A. Schatz
Orville H ScheU
Steven R Shapiro
Jerome J. Shestack
Jose W. Dsokno
J G.H. Thoolen
Raren NM. Trnved
TRAINING PROGRAM ON THE
Michael H. Pbsner
Arthur C Hehton
POLT.AL ASYLUM PSO*CT
Diane F Orentlicher
REPRESENTATION OF HAITIAN ASYLUM APPLICANTS
The Lawyers Committee for International Human Rights
Immigration and Nationality Law Committee
Association of the Bar of the City of New York
THE LAWYERS COMMITTEE
HUMAN RIGHTS 036 WEST 44TH STREET. ,EW YORKr NY 10036, (212) 921-2160
REPLTTO: 0712 0 STREET. SE, WASHINCTOM, DC 20003. (202) 546-5315
TRAINING PROGRAM AGENDA
I. Overvie%1 of the historical and legal context of
the pro bono representation effort on behalf of
Haitians (20 minutes)
A. The decisions and release plan in Louis, et al.
v. Nelson, et al.
B. The posture of the administrative proceedings
concerning the class
C. The need to represent Haitians under the
release plan, and the evolving effort to
meet that need
II. Introduction of local legal coordinators and
su-mary description of the training session,
including the arrangements for a limited appearance
and presentation by representatives of the
Immigration and Naturalization Service (10 minutes)
III. Representation of Haitian asylum applicants
B. Conditions in Haiti
C. The substantive and procedural law of
Training Session Agenda
IV. The INS perspective (30 minutes)
A. Introduction of local INS coordinators and
B. INS arrangements for handling Haitian cases
C. The Service position on adjournments and
D. The Service position on the failure of
clients to appear
E. The Service position on withdrawal from
V. Considerations in the establishment of the
attorney-client relationship (15 minutes)
VI. The preparation of the asylum application
VII. The preliminary applications to the immigration
judge (30 minutes)
VIII. Local immigration court practice from
practitioner's viewpoint (15 minutes)
IX. Support services (10 minutes)
Training Session Agenda
B. Reimbursement for necessary disbursements
C. Referral of clients in need of social
services and to solve any legal problems
not related to the immigration case
X. The administration of the representation
effort (20 minutes)
A. The nature of the commitment sought,
recruitment of lawyers, and procedures
for matching them with prospective clients
B. Case management procedures
C. Practice materials and additional training
D. Supervision arrangements
XI. Concluding remarks (5 minutes)
The Lawyers Committee for International Human Rights
36 West 44th St., New York, New York, 10036 (212) 921-2160
June 21, 1982
wrvin E Fran*el
300 Part Avenue
New York, N* Yrrt 10022
M.chea H. flmnr
jOARD OF DIRECTORS
Mtuee~ R Berman
Roben! L Bemsrien
G Ltuongws Binaisa
Merrell E Cork, Jr.
Wayne D Comins
hcmel I Davis
APan W DeWind
Fr Roben F Drinan
ruce J Ennis
ear amin Gtrr.
R Scont Grearlead
Vwrgmni A Leary
Barbara A Schaz
Orville H Scceli
aJto J Srstack
A.mes R Sienai
Interested Lawyers and
Arthur C. Helton
Political Asylum Project
Need to Represent Detained Haitians
I am writing in connection with a recent
decision by a federal district court judge in Miami
that has created a critical need for pro bono
representation with respect to about 2,700 B-itians
now detained at various locations around the country,
including New York. We believe that a concerted
effort by the private and public interest bar will
meet the need and we are asking for your, your firm's,
or your organization's assistance in that connection.
I. Judge Spellman's Decision and the
Class of Persons Affected
On June 18, 1982, United States District Judge
Eugene P. Spellman ruled in a national class action
that the governmental policy implemented in the summer
of 1981 to detain all undocumented Haitians who arrived
in the United States was not adopted in accordance with
the requirements of the Administrative Procedure Act.
Louis, et al. v. Nelson, Commissioner, Immigration and
Naturalization Service, et al., Case No. 81-1260-CIV-EPS
(S.D. Fla. 1982D7. -- particular, the failure to give
interested persons notice and an opportunity to comment
on the new detention policy, and thereafter to promulgate
that policy in the Federal Register prior to its
implementation, was held to render the new detention
FOUNDED BY THE INTERNATIONAL LEAGUE FOR HUMAN RIGHTS AND THE COUNCIL OF NEW YORK LAW ASSOCIATES
Interested Lawyers and Legal Organizations
rule "null and void". The court explained that it "will
not sanction enforcement of ...[the] new detention
policy". Id. 41, 42. Judge Spellman's order directs
that a hearing be held at 2:00 p.m. on Wednesday, June
23, 1982, "... for the purpose of determining the effect
of this Court's ruling, the remedy to be afforded
Plaintiffs, how that remedy is to be effected and the
extent to which this Court should retain jurisdiction
over this cause."
The class covered is composed of all
unrepresented Haitian nationals who have been placed
under exclusion proceedings and who have been imprisoned
by the Immigration and Naturalization Service in
connection with the invalid detention rule. The class
numbers upwards of 2,000 people, and they are currently
at various Immigration Service detention facilities
around the country, including Ft. Allen, Puerto Rico;
Brooklyn, New York, as well as Bureau of Prisons
facilities in Otisville and Ray -r-ook, New York;
La Tuna, Big Springs, Texas; Lexington, Kentucky; and
Morgantown and Alderson, West Virginia.
II. The Posture of the Administrative
Proceedings Concerning the Class Members
The detainees are subject to exclusion
proceedings under Sections 235 and 236 of the Immigration
and Nationality Act. They have a right to counsel at
no expense to the government under Section 292 of the
Act. They are also eligible to apply for political
asylum in the United States under Section 208 of the
Act upon a showing of a well-founded fear of persecution
on account of race, religion, nationality, membership in
a particular social group or political opinion. The
procedures for requesting asylum include preparing and
submitting a formal written application, and an evidentiary
hearing before an immigration judge. They also have a
right under the regulations to appeal an adverse decision
by the immigration judge to the Board of Immigration
Appeals in Washington, D.C.
III. The Release Plan
In anticipation of the implementation of
Judge Spellman's decision at the hearing on June 23,
a number of legal organizations and voluntary agencies
Interested Lawyers and Legal Organizations
have discussed arrangements for the release of the
detained Haitians. The Lawyers Committee believes
that the voluntary agencies who would be responsible
for sponsoring and resettling the Haitians on an
interim basis, including the Church World Service of
the National Council of Churches, the United States
Catholic Conference, and Lutheran Immigration and
Refugee Service, should initially identify the
locations where the detainees can be sponsored. This
presumably would include major urban areas in the
Eastern and Central United States, such as New York
City, where there are communities of Haitians and
family available to assist the detainees. With the
assistance of such organizations as the American Bar
Association, lawyers should be recruited in these areas
to represent the Haitians in exclusion proceedings,
including an appeal, if necessary, to the Board of
IV. Training and Administration of the Plan
The Lawyers Committee will commit itself to
providing training and practice materials to lawyers
who represent Haitians. This will include oral
presentations and written materials concerning political
conditions in Haiti, preparing a formal asylum request,
preparing and conducting a hearing before the
immigration judge, locating potential expert witnesses,
and preparation, when necessary, of an appellate brief
to the Board of Immigration Appeals. A series of three
one-day sessions would be held on the following subjects:
(1) conditions in Haiti and preparation of the asylum
request; (2) preparation for hearings, including
locating potential expert witnesses; and (3) preparation
of an appeal to the Board of Immigration Appeals.
Outlines of similar presentations by the Lawyers
Committee are attached.
Since July of last year, the Lawyers Committee
has coordinated the representation of 86 detained
Haitians who were transferred to Brooklyn from Krome
in July of 1981. We recruited, trained, and supervised
about 35 lawyers in preparing and submitting formal
political asylum requests, and presenting the cases
at the hearings and on appeal.
While the representation of an alien in
exclusion proceedings is a relatively straightforward
Interested Lawyers and Legal Organizations
affair, it does require a definite commitment of
attorney time. In our experience, an initial investment
of about 15-20 hours to prepare an asylum request, 10-20
hours to prepare for and conduct a hearing, and 10-15
hours to prepare an appeal is not unusual, often over a
period of several months. Oral argument can be requested
on the appeal. While the undertaking is serious, we are
committed to making it feasible.
We hope that you, your firm, or your
organization will assist in meeting this critical need
for representation. Please feel free to call me to
discuss these matters.
!..7------ --- -- -"
CITED STATES DISTRICT COURT
SOUTHERN dSTAlCT OrF FLORIDA
..CASE RD. l2-1260-CIV-75
LUCIEN ExnS, et &I..
v. FINAL JLUDMNT1
ALAN C. PISP, et *3l.
The above-sty2id cause Is a class action brought to
challenge the Defenfandts policy of detaining laJtian nationals
pending resolution of their claims for admission to the Vnited
States.2 The Plaintiffs herein are the XaJtian Refugee Center,
Inc., Lucien Louis, Vllner Luberisse, Jean Louis terveblan,
Pierre Silien, Serge Verdieu, IUlfort Vilgard, Joel Casimir,
Job Dessin and Prophete Talleyvand, on behalf of themselves
and all others similarly situated. The elass certified by
the Court consists ofi
All Ialtian aliens who have arrived in the Southern
District of Frorida on or after May 2D, 1091, who
are applying for entry into the Onited Statesa'nd
also are presently in detention pending exclusion
proceeBings at various INS detention facilities,
for whom an 6rder of exclusion has not been entered
and who are aithers
3. represented by coUwselS Or
R. presented by counsel pro bono publieo assigned
by the sa'tian Refugae Volunteer La yor Ta k Force
of the V^e County Nar Association.
On June 1#, 1982, the Court issued an opinion in this case
that found as foll2ow
3. Plaintiffs have established that the new detention
policy, yhereby excludable aliens are placed in detention
untl2 thry establish to INS' satisfaction a prima facts
claim for admisslon, ywa not adopted in ac rdance with
the requirements of the Aaministrative ?rocedure Act.
ecouae Defendants failed to give interested persons
notice "ad an opportunity to coMMent on the now
detention policy in thO rderal Register 3D days prior
to ita Lnren-qtation, the Court finds the rule pursuant
to whch Plaintiffs are incarcerated to be aull and
dy its rVing, the Court deas not mean to say that
datantion Ia itself is unlawful. That question must
he left to other day. The Court holds that vhaw
the coverntmnt changed its long-standing policy of -
freely parollyg Naltians to a policy of incarcerating
tfeW vhly they liti ate their celas for admission
to this country, it did so In a procedurally laproper
way. Tho. procedures are designed to protect all
Srsoi lians and citJxans alike. Unless ad until
5 mavg a etitntioa rule or regulation s required
law, this Court will st &sanction enforcement of
tir Mre detention policy. Accordingly, the Court
finds La favor of the Plaintiffs on their Administrative
Procoure Act elaml as Set forth In Count 12 of the
1. Plaintiffs have failed to prove by a preponderance
of the evidence that they were incarcerated because of
their re* anld/or national origin. The evidence shows
that the aetentiom policy was not directed at Plaintiffs
because they were black and/or aitian. but because they
were exc2udable altens unable to establish a prisa facie
clais for admission and that non-Xaitiani were detained
pursuant to this policy as wall. The mere fact that
more jaitlans were detained and kept in detention for
longer periods of time than aliens of other nationalities
does not render the policy discrilmintory. Regardless
of its ultimate part, the policy was ntaened to be
applied and was n fact app2Led equally to al2 siaJlarly
situated aliens regardless of their race and/or national
*riLin. Accordingly, the Court finds In favor of the
efet ants as to Count V2J of the Complaint.
Based an tils ruliag, the Court set a hearing for June 23, 1912
to determine *the effect of this Court's ruling, the remedy to
be afforded Plaintiffs, how that remedy should be effected and
the extent to which this Court should retain jurisdiction over
The Court has found that the detention policy pursuant to
which Platiffs are incarcerated was adopted and Ilapl2asted
withoutt observance of the procedures required by lew."
Therefore, the Mw detention policy is saMl and void and the
polley regarding p4ao*, that wa used prior to May 30, 191 .
is la full force and ttffct. o S B.S.C. 1552 553, and
?0 Ke2lly v. united Stetes, 3) F..upp. 1M5, 1101 (g.D. Cal.
1972)s levip v. V.inberper, 415 F.lupp. 652 9. P.M. 1972);
bu Ching Cbow v. Attorney Ceneral. 30 r.Supp. 031 (D.C. D.C.
973)3 Prveo v. Norrip. 426 F. uPP. 976 U(.D. Pa. 1977u1 ldI -
ea v. Jere tary pf .Lbor, 461 i.4 47 (7te Cir. l197).
TWe Court does net belie that allo trg thes Plaintiffs
rima ax dittestion WhIle i rulmaaD pfvoc*ing takes
nj &a a viable s.oltWl to thiA lmWtit." .mS of the
stuiffs Perit have bees Lcarcerated for ever mie year
sat to a poly this court has ftoud to be alwvfSl.
11 La the recwr in dites tit thes. Lavid"lt-"
within the old detention policy because they are likely to
abscond or a security risk. It would not be just or equitable *
to require detention of the members of this class in the
future sor would an unconditional release be appropriate
under the circumstances. Therefore, the Court believes
that the reimay that best serves the interests of all parties
to this litigation Is an Interim plan for release of these
Plaintiffs on parole subject to the conditions set forth
herein pending a determination of their claims for
It is therefore,
oRD UD AND ADJUDGED as follow
2. F WAL i.JUZMZNT is entered in favor of the Defendants
as to Count V7Z of the Complaint.
2. FINAL JUDaGMNT is entered in favor of the Plaintiffs
as to Count U2 of the Complaint.
3. Based on the power vested in this Court pursuant to
28 U.S.C. $2202,4 the Defendants herein, their heirs, successors,
assignees, agents and employees are hereby :OJIINED from
enforcing their policy of detaining exec2udble aliens unless
they establish to IS' satisfaction a prima facie claim for
e dassion until that policy is embodied in a rule and adopted
in accordance with 5 V.S.C. 555 2 and 553 and another relevant
provision of lsv. 3ovever, this injunction shall not be
construed to preclude detention of eseludable aliens deeamd
Security risk or likely to abscond.
4. lased on the power vested in this Court pursuant to
23 O.S.C. $52202 and 2241, the Defendants herein, their heirs,.
*uccessors, assignees, agents and employees are bereby NJOIKD
free continuing to detain the Plaintiffs herein ind are 0 ~ERS
to release said IodividuAls.
5. Th: tsp:m ">tifs of Par.bra'ph 4 of this Final Judgent
is to be comenced forthwith In accordance with the terms and
conditions hereinafter set forth:
A. The immigration and aturalizatio.- Service is to obtanl
full2 |tetification information relative to each ~meber of the class
including but rot 2lmitmt to hotopraphs, fingerprints and a lr "
and complete personal story for future "acd continued identification
of said Irmnvidumls. Thsl record is to be kept by the Service
in duplicate form "an to be tili2zd by thMn in the location
that the a*lin is ultiateIly resettled. IXS shall also maintain
a master file of these records in their offices in Mimi,
FlorJda. Said central file is to be kept separate and apart
from other records for easy future identification and use.
These records shall contain continual updating of the original
location of said individual and any notice of a change relative
to address and e=ployzent.
a. tach ajitian is to receive a typed immigration form
2I-4 with lien number, an indication of parole pursuant to
Section 222(D) (5) of the rwtigration and rationality Act,
I D.5.C. 1212 (D) (S), and with 'employment authorised" staeped
on said form. A duplicate of said I-94 shall be kept in the
central file located her* in Miaal, Yorida in addition to being
kept in the aliem's fi2e.
C. The release of the sae ers of the class will be completed
regardless of whether counsel has been secured or otherwise
provided for said individuals at the tiae of their release.
D. The enibers of the class are to be released toDMs qrodI
sponsors throughout the Vnitd States upon presentation to INS
of responsible sponsors wvh are willing and agreeale to
accepting the terms and conditions of this Order as the same
S pply to them. Responsible sronors shal. always include
volunteer agencies ad may include extended family mem s .
(residents in a de facto $snse who can satisfy the Service
relative to their permanent "ad definable addresses) or ot-her
nuitable parties approved by the volunteer agencies. There
must be b^+'% a vclrtemr agency an an Irndividu! sponsor as
to each a2lie. It is not the intsmt if this Court by this Order
that the Service will deviate free the policy which precludes
the release of ifnLviduals-who have serious* contagious diseases
or who have been medically declared to be menta2lly psychotic .Z.
and a danger to themselves or the community. Financial assistance
to defray medical and psychiatric expenses and to assist those
Plaintiffs who are now and remain La the future financially
indigent is a concern that must be continued to be addressed.
Iumerous voluntary agencies have indicated their willingness
in this regard. It is not the Court's intent that this
financial obligation be the continued concern of the State
or the comnw.ity In which the Individual is located.
I. As a condition to approval as a sponsor, each voluntary
agency and individual sponsors as conte-.plated by this Order
will agree in writing to abide by the terms of this Order
including a full reporting procedure on a weekly basis to
independent third parties approved and appointed by this
Court. The Defendants within ten (10) days froa the entry of
this Order are to provide arrangements for financial funding
to defray the expense and functioning of said independent third
parties. The independent third parties appointed by this Court
are to Lwiediately conreunicate to the appropriate 2NS representative
the failure of any sponsor to report or any negative reports
relative to individual Naltians, that is to say, an indication
from the sponsor that the Ifaitan failed to contact him. The
reporting conBitions, requirements and responsibilities set
forth in this Paragraph are pursuant to and under the authority
of the United States District Court.
p. This Court's predoaessor issued an injunction enjoining
exclusionary hearings from going forward as to all aitlans in
detention who vere unrepresented by counsel. Subsequent to
this Court's opinion of J.une IS, P132, the Defendants moved to
dissolve that injunction. This Court toea herewith specifically
reserve ruling on said motion at this time in accordance with
the following terms and conditions
(1) hearings are to begin as soon as possible for all members
of the class who ar. re.sa-e*d L2 case whether they be
privately retained or pro knae.
(2) At or before the tiUe of release, each member of the
c2ass together with the voluntary agency and individual sponsor
are to be served with notice of the first appearance befo-e an
Immigration Judge which appearance is to be not less than
thirty (30) days after the date of release. At the time f
said first appearaMn, .f said individual has *ither privately *
retained cowunse2 r accepted pro boe representation, the -
Idividnal, tUgsther with the voluntary agency and individual
sponsor hd counsel who at that tie will be required to file
a 6-28 form, vill be notified and the matter will proceed
thereafter La accordance with law.
(3) If the individual has neither secured counsel or in
lieu thereof has pro boneo counsel assigned to bLa at the tiLe
of his first appearance, said matter shall be reset for his
second appearance not less than thirty (30) days thereafter.
(4) At the second appearance if private counsel has been
retained, said cause shall proceed as contemplated In the
proceeding paragraph. Zn the event the individual has not
secured private counsel, pro bone counsel will be assigned to
represent said individual provided, however, that if said inavidual
with a full understanding of his right to have said pro bono
counsel assigned to hia declines said representation, said
refusal to accept such pro bono representation shall serve as
good cause for said hearing,as It pertains to said individual,
proceeding in accordance with law.
IS) It is the Latent of this Order that each individual
has the right, after being fully advised of his right to
secure private counsel or have assigned pro bono representation,
to freely anS voluntarily valv, said rights provided that the
sane is done under oath before the Immigration Judge and that
said Individual 6 itwuntzed ft a~d eterained that he
rdzerstands his rights to privately retained counsel or have
pro bono counsel assigned to represent hik and sai Zxmigratio .
37uge should further determine that SAy dectslon to give Ip V /
such right a voluntary and not the result of any force, threats
or pro lses. It ls further mAerstood that if the Individual
stalzr of the Class appears at the first appearance without
counsel an dias not knowingly, intellinitly and voluntarily
wave his right to counase, that he will be entitled to the
cootinuance of not less than thirty (30) days conteAplated for
the second appearafoo.
The Conrt is specifically continuing to reserve on the Government's
motion to vacate the injunction relative to the proceeding of
exclusionary hearLigs regardless of representation of counsel
as a direct result of the appearance before this Court of
representatIves of the American lar Association, the national
and local chapters of the American ZImgration Lawyers' Association,
the lawyers' Co~lttee for International Wuwan Rights and the
Dade County Par Association. It is the view of this Court that
based on the specific representations made by these organizations
and on the additional representations of several of the voluntary
agencies that likevise appeared before this Court Indicating
their ability to obtain attorneys for unrepresented Waltians,
that the effort to secure pro bono representation for all of the
individuals we=ers of the class desiring the same should be
attempted. "t is the further view of the Court that the
representation of Plaintiffs' counsel to this Court of assisting
in coordination of this effort should be honored by this Court
in the hope of its ultimate success. It is the intent of
this Court, Lherefore, that the injunction heretofore issued
by the preiecessor Judge will remain in effect regardless of
whether or not Plaintiffs pre in detention until ainety.110)
dry after the wtry of this Pinaj Xudwn at tSdch tin he s0a& will be daiLlvi.
a. ptlease of the individual members of this class ts
o0rmrD for the full period of legal process and that entry
of an order of exclusion in and of itself will aot be a gromud
to revoke said parole. An I nxcusabl2 failure to personally
appear for proceedings before the twmiration and Waturalisatiom
tervie- or any other prccedaig li which the attendance of the
* -wwAj asi&s resaltLng L a *Native report to UNS as sat
forth above, vwll be grounds for parole revocatJLo. A32 *thex
grounds beretofpre *xfstiar -.;Per existing law will 21krwlvi
serve as a ground for,parole revocatLem.
1. The voluntary agezrfes participating in this program -
will, to the extent possible, locate 2 bxers outsfle of Dao .
County ad the State *f Florida wklls taking lato considersatis
the Dade County pro bono program, the availability of other coun s .
and indivjiual sponsors related to said lines .
6. Thre L~ton *f the Waitian Refugee Center, anc. to
enlarge the class to lclude all valtifzs In detention for '-
whv a C-o1 has been filed behalf of said Plaintiffs be 4
and the sa- is hereby CPATD vith the tunorstanding and
representtion of counsel for the Plaintiffs that privately
retained or pro bono counsel will be secured so as to afford
fair representation of said Individuals to be heard within
the reasonable period conteaplated by this Order, said
individuals be and they are hereby ineuded within said class
and are bound by the full effects of this Court's opinion *f
une 19, 2912 &nd the provisions of this Pinal :ud pent.
7. That this Court does herewith vacate any Lnterlocutory
orders entered by this Court or by the predecessor Jud@ and
does herevith specifically reliquish jurisdiction over the
sxezaers of sald class to the extent that the *sa is met
hereafter specifically retained by this Courzt.7
S. That this Court does herevith specifically retain
jurisdiction over the parties and the subject matter on (a)
Defendants' ntion to vacate t s Court's Order enjoining the
eclusionary hearings relative to members of the elass who are
act represented by either private or pro bono coMnelu (b) this
Court's Order of Fblruary Is, 12 as the ause pertains to the
pro boro program of the Dade County par ALasociations (c) Plaintiffs' -. -
Ption ordering the frantic of relief to idtividwal mbn ers'
of tb. class wbo have heretofore escaped frao dotOntion to b1 -
mat1*M' to the be.ffits of this Court's opinion of 3aInt 1I,
1 2 "ad this Court's final yuTLat .t (d enforcementt of the
terms ad conditions of tmhis ial .udtg&ent; "a (*) the Plaintiffs'
* *. .
motion for wavrd of attorneys' fees and costs with the understanding
that this ret.,tion of jurladiction as to that Issue Is "@t a
determination of the merits of the enttlts"nt of the tPaintiffs
to either attorneys' fees r costs.
DOME AXD ODRDEZID in ope. Curt at 20:00 a.m. this 20th
&ay of ?wMe, 1912.
UCGENE P. SP&llUM
C[EZN P. SPELIMAN
MITE STATES DIST:- CT JU~G
Copies furnished to all parties
'This rinal Judg-nt is being entered pursuant to the provisions
of ro*eral Rules of Civil Pocedure 23 (c) (3), 54 and $S.
The cumpleait ti this cause originally contained seven counts -
thalljging a vie variety of policies and practices used by
Iws during exclusion proceedings. as A prior order of this
Court, four entire cowts and portions of two othws were
dtmJedi. gee Louis v. ekfssner, 532 7.Supp. 1I1 (S.D. iI. "
To issues set forth in three counts survived the Court's
Order of Dismissal. The first issue, and a question of primary
i.mjrtance to these Plaintiffs, is whether they are lawfully
beg demtained pending the outcome of their exclusion
rocreeings. As will be more fully *eplained W"rt, the
court ham found In favor of the Plaintiffs on t is issue based
on their APA claim (Count II) and in favor of the Defendants
on the discrimination ela I (Count VII). In light of the
relief to be afforded Plaintiffs by this Final Judgment, the
Court believes that Plaintiffs' claim of a right of access,
as set forth in Count IV of the Conlpant, is moot.
3tee Paragraph 6 Infra. The modification granted therein is
without prejudice to the right of the Government to object to
further class modifications or motions for intervention.
united States Lines Co. v. Shmauhn~ sy, 15 F.2d 315 (2nd
Cir. 1352), citing 1o'int Anti-Tascist etfu;ee Con.ittes v.
MNcrath, 341 U.S. 123 (15I)] Powell v. McCornick, 35 iU.S.
T786 I (i169).
'Private or pro bno counsel accepting responsibility of
representing class ma-ers must do so with the understanding and
retaliation that by undertaking that responsibility they are
Lapliedly representing that they ase capable of presenting the
alian's claim for admission within a reasonable period of tise
as contemplated by this Order.
This Order shall not be construed to rmanve from the District
Director the power granted to his by the regulations to, in
his discretiL.n, revoke the parole of any of the Plaintiffs
herein. Hopefully, the District Director's power in this
regard vllI be sparingly, judiciously and reasonably
exercised. To the extent it is so exercised, the Court retains
jurisdiction to review said revocation with regard to these
class e rs and, if necessary, to appoint Special Kasters in
various locations throughout the United States to conduct such
a review bastS on fact finding authority and to report to the
78y this ruling, the Court intends to relieve Itself of
1xrisdiction over all exclusio hearings involving class sefbers
that go forward outside of this District. The Individual aligns
should seek such adtinistratave or judicial relief as is
available to thm by statute in the appropriate DIS office or
federal district court. It is not the Court's intent to vacate may "-
Orders heretofore entered either granting or denying motions to
IAs to the A.-,ers of the class in detention as of the tate
of this Order, it is ordered that their prole status will be
S.. ovrd by this Final Jud.T'ezt and not by any subsequent rule
$To the extent that this Court does herewith reserve jurisdiction
il the ore tenus motions for reconsideration of this Court's
Order of Dismissal and for potions to a.Mend the class to include
individuals heretofore represented by counsel this Is a partial
Final Judgment, said issues to be dealt with by a supplemental
ozder aTn to the extent that paragraphs 7 and 8 hereof require
thk ssae, the Court does In fact retain jurisdiction for the
purposes of entering such supplemental order.
No Gold At The Hague
Howard Holtzmai, owe of nine judges on the Iran-
United States Claims Triburn at The Hague. delights
in taking visitors through The Hague's majestic Inter-
national Cour of Justice in the Peace Palace. showing
off the priceless Japanese silk paintings. Russian up-
estries, AD'rican Sculptur, Persian rugs, and other
objets d'ar that symbolze the palace's high-minded,
trunsatioxal mandate Holtmrnnn, 60, is on leave as
the senior partner of he highly regarded 25-lawyer
Manhattan firm of Holtznann, Wise & Shepard.
when he became a nationally recognized expert in
itemrnaotiaon trade For him, solving inernaioal eco-
0,ic disputes through xbriomk is mort ta a busi-
O'Bse it's a consuming dream, ow t has compelled
him to work for free o all kinda o( national and world
panels. So he was a natural chcke w Presiadent
, Reagn had to pick thrm Amerima to I rv o the
"1 came her," Hottzmann says, after stopin to
point out what good sense it makes tha the palace's
Oxw of Lady Justice is no bltdfolded. "with a
dra that this lranAmeric.n dipue was so hard that
-we had a chance to sho, a wored I, is fast becoming
I world with an iittrntiiona o y bow to do it.
We had a chance to prove that international disputes
ca be solved peacefully."
Guiding his visitor into (cotiaxed oa pat 8)
Counsel to a Conspiracy P.26
An inside account of how in-house lawyers and Howrey & Simon advised Gulf Oil
during the inception, rise, and fall of the world uranium cartel.
The Miners' Counsel-Candidate P.30
Richard Trumka comes out of the Pennsylvania coal mines to take on incumbent
Sam Church, Jr.. in a bid for the UMW presidency.
The Madness of Recruiting R__
Competition for graduates from top schools has intensified. But even for the largest
firms, the best advice about on-campus recruiting is: don't do it.
"Cuff Links Carl" Builds an Empire P.14
Carl Sanders, Georgia's other former governor, has found his place as chairman.
chief rainmaker, and lawyer-lobbyist at Troutman, Sanders.
Running for Judge _P.32
A California race heats up when an opponent attacks a judge's decisions one by one.
Up & Coming .45
Vanessa Ruiz, on the fast track at Fried, Frank. has shown partners that she can
handle a Supreme Court argument as well as a high-tech international deal.
IN EARLY APRIL MARTIN LEVINE -
made his first trip to Krome North, a for-
umer missile base on the edge of the Flonda
Everglades, to meet his new client. Pierre
Dessine. a 23-year-old Haitian seeking
political asylum, had already) been incar-
cerated six months at Krome, by then a
detention camp for about 600 Haitian
aliens. But right away Levine was struck
by the youth's soundness. "He was
strong, emotionally and physically." re-
calls Levine And Krome, while unmis-
Uakably a prison, did not have the stultify-
ing air of one. Inside the high steel fences
rolled with barbed wire, English classes
were jammed with Haitians so eager that
when one class stopped for a ten-minute
break the students would run to sit in on
another. Their special request of one in-
structor was that be teach "The Star-Span-
By early summer, however, the camp was infect-
ed with depression There were no more classes,
and the Haitians sat, day after day, clumped in
bunches under the four shelters standing at each
corner of the compound's empty, sun-baked bas-
ketball court. It was clear to Levine. who had been
visiting nearly once a week, that Dessine's spirit
.was flagging. Then, the last week in May. he got a
call. "We can't communicate without the interpret-
-: er except for a few words." says Levine. "He said.
'Mr Levine, tomorrow?' He had never called me
and asked me to come before, so I said, 'Today.'
"I went out there and he said. I don't want you
Sto file my asylum application. I'm going to kill
"- Now we'd gotten clsce--- used to say he
talked to me like a father-M I was cared I said,
Will you at least tell me when you're going to do
Sit?' I wasn't making any tenx Then I sad. 'At
- least promise me you'll see a doctor.' and be said
LEVINE, A MIAMI SOLO PRACTITIONER
-. specializing in personal injury law. had never han-
died even a rudimentary immigration case before
he met Dessine, let alone one involving political
T suit, which was filed on behalf of the Na-
dional Emergency Civil Liberties Commit-
wce and the Haitians Refugee Center. Inc.
SHe and a small band of Miami lawyers
have been fighting, with repeated success.
the government's treatment of Haitians
74 R 3 over the past five years.
S. At the seminar, Kurzban and his co-
counsel, University of Miami law profes-
aors Bruce Winick and Irwin Sitouy and
HRC lawyer Vera Weisz, handed out a
533-page manual and gave basic instruc-
tions on making an application for politi-
cal asylum, in itself a specialty within the
specialty of immigration law.
The group also received a primer on the
facts of life in Haiti. With a per capital
income of $260 a year, it is the poorest
country in the western hemisphere. less
than a quarter of its people read or write.
The government of President Jean-Claude
Duvalier, who succeeded his father in
1971 as lifetime dictator, is supported
both financially and politically by the
Nearly all their clients, the volunteers
were told, had arrived in this country since
June 1981, when the Immigration and
tNaturalization Service started its detention
program, and most would face exclusion
hearings. The INS maintains that exclu-
sion. a simpler and swifter process than
deportation, is appropriate because these
aliens, apprehended as they came ashore
or in airport customs, have never techni-
.I A call entered the United States. To fight
Rk af .exclusion, moost detainees are asking for
political asylum. Each must prove that he
asylum in which the outcome, he is convinced, will meets the requirements of the Refugee Act of 1980,
mean life or death for his client, which adopts an older United Nations protocol de-
Along with some 300 other non-immigration at- fiing political refugees as those who have a "well-
tormeys, he had answered a call for pro bone coun- founded fear of being prosecuted for reasons of
sel for the Haitians put out by Attorney General race, religion, nationality, membership of a per-
William French Smith and echoed by the Dade ticular social group or political opinion' and which
County Bar Association and-in an unusual extra- prohibits their deportation.
judicial gesture--by federal district judge Eugene According to the INS, of 5.646 political-asylum
Spellman Spellman had presided in Louis v. Nel- claims made by Haitians in 1980 and 1981, only 2
son, the class action now before the Eleventh Cir- were granted. The State Department, which re-
cuit challenging the detention of about 1,850 Hai- views all such claims, maintains that the vast ma-
tians at 14 facilities around the United States. jority of Haitians are "economic refugees." fleeing
After months of
seeing pictu es of
psoned ats HOW A SMALL BAND OF MIAMI
in his mormn p.-
per bve avol- LAWYERS TOOK ON THE JUSTICE
un ered because it
se."a o y DEPARTMENT-AND WON.
cause." In January
he attended a train-
ing session sponsored by the bar association and poverty rather than repression, and thus are nt
taught by the Haitians' counsel in Louis v. Nelson. deserving of asylum They are. according to sever-
Ira Kurzban. a partner at Miami's Kurzban, Kurz- al high officials of the Reagan administration,
ban & Weinger specializing in labor and immigra- gatecrasherss" jumping ahead of millions waiting
tion. is working pro bono as lead attorney in the o get into the Uni States legally. Says INS gen-
T AmSurW LAWY1 35
$,XTt.M BE* IW 2
eral counsel Maurice Inman. "They're
butting into the line." '
The Haitians' advocates. however, ar-
gue that a great many of the refugees ar
victims of repression Even those who
had no trouble before they left Haiti
could be viewed as traitors for aeking
asylum here, claims Krzban Thus, be
assets, they have as much ri ght stay
as Cubans who fled Castro or Nicara-
guans who fled the Sandinist. Tt pov-
cnmrnnt's efforts to expel the Haitans,.
be says. come from a bend of racism
and loyalty to Duvalier's regime.
Levine was also told about the Teona
Macoutes, Duvalier's ubiquitous pra--
military force, officially known as the
Volunteers for National Security. In
Haitian fable, Tonton Macoute, translat-
Md as Uncle Knapsack, is a foil to Tonton
Noel, at Christmas, while good children
receive presents from Toncon Noel, bad
thiidren art carried off in Tooton Ma-
:oute's knapsack, never to be sen
again The name is apt for Duvalier's
nichmncn, commented federal district
ludge James Lawrence King in a 1980
decision in Haman Refvugee Center v.
7ivileni declaing the INS s treatment of
laitian aliens discriminatory. for, be
wrote, the Macoutes "did indeed make
persons disappear." Moreover, he con-
inued, "the Macoutes essentially deter-
nine who is an enemy of the govern-
nent. There is no appreciable judicial
system in Haiti; their actions are accord-
ngly unchecked and unreviewed."
After the orientation session, about
00 of the original 300 lawyers signed up
or clients In accordance with an agree-
sent the government demanded to pre-
ent delay, the coordinators instructed
he lawyers to file G-28 forms--noices
frepresentation-before they met their
clients. Levine. however, chose not to
b this. Upon filing, a 35-day clock
wouldd start to run for filing the political-
sylum claim, and he'thought he might
eed more time He had been told the
Waitians would be mistrustful and close-
louthed at first. Survival in Haiti is
asked on payingng blind," as one detain-
Sputs it "Ifyou speak out against the
ovtmmCnt you get lost. like a dime "
On Levine's first visit. Dessine spoke
fhis desire to come to the United States
ad have a better life. When pressed, he
pressed his fear that whatever he
tight say would get back to the Haitian
government Levine assured him that he
wouldn'tt tell, but could not guarantee
t aor) would not get back He visited
second and a third time. each time
taking the 50-minute drive from Miami
id each time waiting an hour or more
x an INS guard to fetch his client.
'adually Dessine's story began to
Tiere On Levine's sixth or seventh
sit,. more than a month after the first.
cy prepared Dessine's affidavit for his
;ylum request. Levine also collected
XTobonruting statements from two Hai-
ins who had fled in the same boat.
I HAVE BEEN UNJUSTLY
:ated by the Tonton Macoutes in Port-
i-Prince and in AuCayes." De~sine te.
ns in the affidavit "Te peopc in Au-
syes were terrified of the Tootm Ma-
autes They extorted money and prop-
ty from people and arrested. beast and
of people who never broke a law and
ver had a trial His mother, he
urns, gave money to a Macoute and let
m borrow cows.
Dessine says his trouble started in
brtary 1979 at a carnival at AuCayes
ne there was dancing in the street
Imeone bumped him. he says. and he
U backward into a Macoute "The Ma-
T AS3Jtc AN LA~WY
coute hit me several times," Dessine as-
scris. "I was arrested and takes to a pris-
on.'" He was released tbe next da but
the Macoutes were watching hir e,
says, so he went for several months to a
bouse his mother owned in Port Salut.
In Scptcmber 1980 Dessine went to
Port-au-Prince, where go a $20-a-
week job. Thber e started lisaning to
two radio stations that never reached Au-
Cayes. "T1e commentators .. talked
about how the Tonton Macoutes beat
peopc and about the lac4 of fre*mn in
luu. TheK) W talked M bow other
the neighborhood he would be jailed.
Dcssine states thai his head was sniched
after the beating; a scar is visible.
Dessine returned to AuCayes where,
he says, a Macoute came to arest him
"because one of the horses went onto
ioCmnec else's property and ate aonme
ass." The Macoute then told Des-
sine's mother the real reason was that
Dessine had listened to the radio stations
in Pon-au-Prince, be says, she gave the
Macoute M30, and Dessine am wea to
hide in Pon Salut His mi stA pead an -
Other Macoule $80, esine aes, a d
PRO BONO COUNSEL MARTIN LEVINE
HAD NEVER HANDLED EVEN A
RUDIMENTARY IMMIGRATION CASE
BEFORE HE MET HIS HAITIAN
CLIENT-LET ALONE ONE IN WHICH
THE OUTCOME, HE IS CONVINCED,
WILL MEAN LIFE OR DEATH.
countries have laws that protect people
from things such as what the Tonton Ms-
On November 28. 190,. Dessine
learned that one of the commeatirs. had
been arrested This was r of a crack-
down in which aboul 125 people were
arrested, including virtually) al Haitian
humannghtsu activists. most independ-
cat journalists. and many defense law-
yers That evening. Dessine says. as he
was listening to one of the stations, a
Macoute came to his door, asked him if
be didn't have anything better o do. and
started hiding him He claims the Ma-
coute beat him with a club, dumped him
in the stret, and said if he didn't leave
in May 1981 she told him it seemed safe
In August 191, a the urging of
friends and against his beer judgment,
Dessine says, be went to a bit per) at a
Macoute lieutenant's home After a cou-
ple of hours, he continues, a Macoute
asked Desine's girl friend to dance In
Haiti it is not proper to ask a woman
escorted by another man to dance. She
and Dssine both resisted, be says. and a
shoving match ensued The Macoute
blew his whistle. Dessine says, and he
and his friends ran into the dark. He says
the lieutenant shouted to his men to catch
them, and if they resisted. shoot. Des-
sine's mother came to him in h diag. told
him her money couldn't protect him, and
pve him $600 be says he used for space
on a patched-tog ther vessel with 62 oth-
er passengers Desine landed near Key
Biscayne, within hours, he was taken to
The stry Desstie gives in his affida-
v is very different from what he tosl an.
INS official when first appe bended. He
hadn't trusted him, Dessme told Levie,
so be had said he'd never been arrested.
he'd paid $4 for the boa trp, ad he'd
come to make money for his family. The
INS may use that version wo kieah
After his suicide threat, Deasine was
sent to P.L. Dodge, a mental hospital
where Krome inmates are taken. Levine
went for advice to another volunteer at-
torney who had woo parole for two de-
tainees who had tried to kill themselves.
A month later Dessine was also paroled.
A week after Dessine's transfer, Le-
vine visited him in the hospital. Dessine
asked a question he bad asked before,
one that comes in perpetual refrain from
incarcerated Haitians. "Why are w in
jail? We are Dot criminals. Can you ex-
"I said that this administration
doesn't want you here but that I don't
agree, and I'm doing everything I can,"
He shakes his bead. "You can't really
answer that. As far as I'm concerned
they're in a concentration camp. You
can call them detainees, but you can call
black white. It makes me ashamed to be
INHOSPITALTY TO HAITIAN
refugees is not unique to the Reagan ad-
ministration From the time Haitians-
the first black refugees to seek asylum
here. Kurnban points out---began arrive.
ing in substantial numbers in late 1972.
they have been treated differently from
other groups seeking asylum In a series
of class actions led by Kurzban-who
was aided from the statn by veteran New
York immigration lawyer Ira Gollobin-
couts have found that Haitians were de-
nied fair exclusion bearings, work per.
mits, and access to information that
could support their asylum claims. Ac-
cording to Judge King's decision in Civi.
irri (recently affirmed by the Eleventh
Circuit), the INS discrimination was
capped by a "Haitian program" stayed
in 1978. "The decision was made among
high INS officials to expel Haitians, de-
spite whatever claims to asylum individ-
ual Haitians might have." he ruled. "A
program was set up to accomplish this
goal (t resulted in wholesale violations
of due proce, and only Haitians were
Until the summer of 1981, injunctions
from a succession of federal judges had
blunted the impact of the INS actions.
Few Haitians were deported, and deten-
tion when it occurred. was shon-ived.
But with the Reagan administration, in-
si.ation has become a high-priority s-
sue Following the disaster of the 190
Mariel boat lif, in which about 120,000
Cubans, some from hospitals for the
criminally inane, were ct into mouth
Florida, President Reagan announced his
cornmitMent to "regain control of our
ln accordance with the Presidet's
promise, a legislative proposal now be-
ore Congress demands a severe curtail-
inent-calletd "strmamlining"-of the
exclusion process, replacing the adver-
sarial formal with an interview before a
bearing officer and eliminating the right
to judicial review Sanctiocs against em-
ployers who knowingly hire illegal
PHOTOcu r. BY JAY o000
01 T _1* _,_ M %2IZZ
E, BECAME A DETENTION CAMP FOR ABOUT 600 HAITIANS IN JUNE 1961.
as re also included. The administra-
i has also iDcreased the INS budget by
: million to $486 million and plans to
amp the hopelessly inefficient agen-
Finally, there are the policies of in-
iction and detention: coast guard cut-
return boats carrying refugees to
d, and those who get through are de-
ed. According to Associate Attorney
cal Rudolph Giuliani, those policies
I had a profound effect: 36 illegal
ian aliens were apprehended in Flor-
in Marcb, April, and May of 1982,
d with 1,08 in that period in
urzban and other Haitian counsel
te that the administration's eager-
to flex its muscle has resulted in a
Haitia r as discriminatory
one Judge g inveighed against
n,*ilr i. "This administration said
re toing to show the American peo-
bas we can enforce our immigration
and they took a of people
a; defense s, o .' indigent,
do not speak the language, and who
,CarIy a minority," declares Kurz-
S There not like Cubans and Nica-
*7b have a prolific; constnico-
I a lot of money. They're a beca
Vple than Mexic a so
? Mexicans it would be imnocaible
S-1een the appearance of effective.
norcmg the law. And they're not
to do it to people from communist
*"es because this administration
vrthig in the most black-and-
', e d-r terms. So the Haitians
"t the perfect taret."
E government does not contest that
been Haitians who have been over-
Sits detention facilities In fact,
crs in the President's task force on
Vatio predi ed it. A memo sent
to President Reagan by Attorney General
William French Smith in July 1981-
drafted by Smith's then-special assistant
David Hiller-recommended detention,
but warned that it "could create an ap-
pearance of 'coocentration camps' filled
largely by blacks Yet in statements to
the press and Congress, Smith has re-
peatedly assenrted that the delays in pro-
cessing the Haitians' cases-and thus
their prolonged detention-.have been
caused, in large pan, by the lawsuit filed
on their behalf.
MORE THAN A YEAR AFTER THE
star of Louis v. Nelson, the lawsuit chal-
lenging the detention program, govern-
ment lawyers and the Haitians' counsel
are still fighting round after bitter round.
The latest skirmish staned on June 14,
when the attorney general made a sur-
prise announcement of an "experimen-
tal" parole plan for Haitians who had
counsel and sponsors, had not yet been
found excludable, and met certain other
conditions. Word spread quickUy
through Krome, but on closer inspection
the plan was disappointing : it would re-
lease only 150 detainees a its first few
months and provided for reincarceration,
pending judicial appeal if an alien's asy-
lum application was denied at his exclu-
Pso hearing In practice, it could mean
that a Haitian, after a year in Krome,
could have several weeks of freedom-
and be sent back to Krome.
From the govenVment's point of view.
what design could better insure failure?
Giuliani plays out the scenario: "Sup-
pose 0 showA up ([t their exclusion hear-
mgs] and 120 effect entry illegally [by
absconding] Then we would have to say
we were wrong in thinking that there was
an alternative to detention. And other
people would just have to be detained
until the bearing takes place." Smith, be
says. personally devised the plan. The
timing if the announcement, adds Hill-
er, was designed so as not to seem "re-
active" to Spellman's imminent ruling.
Just four days later, Spellman did
rule. He started his opinion by quoting
Carl Sandburg-"Life is like an anion;
you peel off one layer at a time, and
sometimes you weep"- d continued
to equivocate throughout in what ap-
pears more an exercise in political
gamesmanship than judicial reasoning.
While he found the detention program
null and void because the government
had not allowed public comment before
instituting it, be also found that it did not
Both sides claimed victory, and when
they appeared in Spellman's court the
following week, both argued that their
release proposals should be doted.
Spellman's order, issued on June 29, re-
sembles the plaintiffs' plan more than
Smith's, but it was DO( without restric-
tons: only Haitians with INS-approved
sponsors would be released, and they
would have to report weekly.
Altbough many observers thought the
government would accept Spetlman's
compromise as a face-saving way out.
the Justice Department lawyers immedi-
ately sought a tay, and as soon as Spell-
man denied it, they pursued it in the
Eleventh Circuit. On July 13, a three-
judge panel again denied the emergency
stay, but recommended that hearings on
the government's appeal and the Hai-
tian's cross-appeal of Spellman's deci-
sion in the case stan expeditiously.
Pending the outcome of those bear-
ings, Spellman's release order has taken
force, and as of lawe July fhe Noional
Council of Churches and other voluntary
groups were beginning to offer sponsors
and stan the release process. Yet the pos-
sibility of reincarocratio remains:
should the government succeed in its ap-
peal, its more limited release program
would presumably take effect, and many
Haitians could return to Krome.
THE LAWSUIT SMITH SAYS HAS
been jamming the gears of justice stayed
back in June 198), soon after the INS
began holding mass hearings for Haitian
aliens in Miami-35 at a time. behind
locked doors, in rooms from which law-
yers were barred. When HRC lawyer
Steven Forester tried to intercept Hai-
tians in hallways and explain their right
to counsel, be says be was "shouted
down" by INS guards and threatened
with aest,; the Haitians were then forced
to march double-time past attorneys and
ruted through back stairways and
clerks' offices to courtrooms. During a
three-day period, 96 Haitians wer or-
dered de d.
After F ster and others complained
to the Justice Department, Smith It-
leased guidelines calling for open and
individual hearing, but he also declared
the mass proceedings of the pest week
legal. An emergency stay on June 9 from
Judge SpelIman sopped deportation
plans for 85 Haitians eight bours before
the plow was to take off. I1 had already
been deported five days earlier.
A week after the stay. Kurzban's
group filed the complaint marking the
arn of Louis v. Nelson and hearings
commenced before federal district judge
Alcoe Hastings Expert witnesses =dti-
ried that tapes and transcripts of the mass
bearings revealed inaccuracies and onm-
missions by INS translators. One Ian-
TW WanjCAN LAVYER 'fl7
"uage instructor testified that words such
as expired visa, bearings, citizens, and
, political asylum were either translated
It to Frencb, which most Creole-speak-
ing Haitians don't understand, or wer-
Sat translated at all Asylum, sh said. is
v understood by many Haitians to men a
h mental hospital, so when ked if dtey
wanted asylum bey said they rtainly
Sdid no. When t judge a d if the
a aliens wanted to appeal his rl to a.
a higher court, the trniltor asked if they
wtd o to a larger U cOUro Tht,
Sloo, they clinked.
b After several weeks the gov na
a dmited improprieties and agreed to re-
mand the 85 cases, but litigation cootin-
SuLed In mid-July thbc government stated
i tipping Haitians from Kroie to federal
, prisons and other fcibties in places such
H aM Otisville, New York; Liauna, Texas;
, Alderson, West Virginia; and Lexing-
Soe, Kentucky. It then moved to proceed
with exclusion bearings i these loca-
.tions where, unlike M=ani, therm were
virtually Do immigration lawyers and no
N Ocole iUteprrters In.October Hastings
issued a preliminary injunction barring
exclusion hearings unless the Haitians
c6btained counsel. Te government. he
laid, had subjected the detainoces to a
4 "buman shell g e ... sc.anenrig them
,to ... desolate, remote, hostile, and
culturally diverse areas "
i Even at Krome, the Haitians couldn't
ept counsel. Miami immigration asnor-
raeys couldn't handed their cases eco-
'lomically, and few inmates could pay at
all. So until the pro bono effort got stan-
ed eight months after the camp opened,
Bly HRC's two attorneys were avail-
cible to the hundreds of inmates at
I On July 22. 1981, the INS stepped up
hibe pace of exclusion bearings at Krome
iy scheduling thert simultaneously. Im-
iigration judges consistently refused
1tontinnuaces of even five tmnutes. "I
was regularly forced literally to run be--
sween two or three courtrooms in order
to represent clients." states HRC lawyer
Forester in an affidavit. "Sometimes I
s~aud not run fast enough. On August 4.
mar instance, four Haitians wert ordered
excluded ... I was in another court-
coorn and the judge refused to await my
appearance (In Civiletri, Judge King
fLd declared simultaneous scheduling il-
tgal, but a Krome immigration judge,
denr) Scroope, felt he was not bound by
he finding As he stated when deposed.
c'I don't agree with the facts in it.")
*n July 27 until November 19 not one
i about 85 political-asylum claims was
By mid-November 1981 the govern-
vent had barely made a dent in he Hai-
rns' hearings. The overwhelming ma.
Wity were %till unrepresented and Has-
igs's injunction prevented hearings
iom proceeding At this point, the gov-
,nment apparently decided to change
;k. As Gerald Meschkow, one of the
luciter lawyers, puts it. "What do
bu do when you can't swallow it and
Va can't spit it out?"
IThen, in quick successimK, imuhlt-
tous scheduling was haihed, te anor-
ly general issued the call for pro boe
kunsel, and a new gen cral l.,
hsurice Inman, took over INS. ("I
lin't know zero about immigration."
V's Inman, who left his L.A. finm.
lexander, Inman, Tanier & Weder-
'*yet, last summer. "They wanted
nriebody who was bright, relatively
righ, and had political views close to
4 administraion's.") On December
l for the first time at Krome. a politi-
I-asylum claim was Iranted Judge
L TM kOCXAN LAwYDX
Syey Majure said be did it despitec
Mr, Forester's represcanation." Accord-
ing to Forester and others, the claim was
Indistinguishable from dozens ofodcrs.
One more has been granted since, four
have becD granted in bearings in Puerto
Smith's call for pro bow lawyers, fa-
cilitated by lnman, was an about-face by
the government. In early September
Bruce Winick had written to the attorney
paerac to offer the pro Jkjo services of
at kas 25 Dk.e Couoy hwyt. Assis-
tm U.S. Anorary Itc ard Mrhal,
THE DADE COUNTY BAR ASSOCI-
ation, "purred by the government's
change in attitude, finally got a pro bono
program off the ground in January. At
it looked good, the initial response
of 300 was better than anyone had ex-
pected A blue-ribbon citizens' commit-
Ie attracted such luminaries as Chester-
field Smith of Miami's Holland &
Knight.just-retired Unive'ity of Miami
law school dean Sois Mentscitoff, aad
Robert Floyd of Miami's Floyd Pearsoa
Strwal Richman Ger & Weil. Nel
Scbaes. the bar associanios's presiden-
IRA KURZBAN, LEAD COUNSEL IN
THE HAITIANS' CLASS ACTION,
STARTED THAT SUIT AFTER THE I.N.S.
HELD MASS HEARINGS-35 AT A
TIME, BEHIND LOCKED DOORS,
AND WITHOUT COUNSEL-AND
ORDERED 96 HAITIANS DEPORTED
IN THREE DAYS. -
then the giouertne's lead counsel i
Lou v. A'Iso, told W ct bhi "dci-
ena" wa. deLuung the offer But al-
though Marshall relayed that message.
be had also beet arguing inside the de-
partment that having placed the Haitians
m detention where they could not get
counsel, the government had to help
them obtain it After "shouting 'for
months" on that point. Marshall quit in
February because, he says Dow. "I
would have had to eviscerate my con-
science" to continue representing the
elect aud a successful criminal lawyer,
beaded the project, be had done imuru-
raiDon work for the Haitians in the early
Sonnet and Inran hit it off right away.
"Inman is a klot easier to deal with than
the previous INS people." Sonnet notes.
"He sees the bigger picture." Kurzban,.
however, fell relations between the Dde
County bar committee and the govern-
meint were entirely too collaborative At
an early meeting with govcrnmCnt law-
yers. he argued that too much was being
given away in an agreement OB tfb pro-
cedural course voluteers would follow.
He won his point, savin the Haitians so
avenue for pursuing their claims, but be
wasn't invited to any more joint meet-
ings. "Maybe I overrtact." says Kurz-
ban with a smile that suggests be doesn't
On March 16. whm the Dade Couty
committee and the goveninte m ued
into a stipulation on procedure, Soame
assured Judge Spellman, who had taken
over in December after a bribery inveti-
poo caused Hastings to sacp aside. ilw
the voluntes' G-28s would be returned
within a week or two. Yet two months
blaer, 433 Haitians had bect asi ed
counsel and only 395 G-28s had
filed. The program was in disarray.
This probably ranked no one more
than the jud The pro boAo effort, says
ce plaintiffs lawyer. had become
Sp man's "pet project." He bad trav-
e to the American Bar Association's
mid-winter convention to speak about it.
The training sessions were videotaped as
models for similar programs that would
be started wherever Haitians were de-
tained On June I a meeting of all pro
bone counsel was called in the judge's
courtroom, the first since the lawyers
had received their clients' same in
March. Spellman scolded the assembled
group, now numbering 75. for not bav-
mg acted more promptly. He then threat-
ened, in an action plaintiffs counsel
consider wholly appropriate, to dis-
solve nua sponte the injunction Hastings
had imposed on hearings for incarcerat-
ed and unrepresented Haitians less the
volunteers proceeded expeditiously.
"This as a terribly imrant project
from the standpoint of thi bar asoci-
ation and for me as a court," the judge
explained. "This is being looked at by
bar associations throughout the United
States. It's important that you follow
After the irate judge left the meeting,
the lawyers aired their concerns. They
were a troubled group. Few, if any, e.
imm agion lawyers, and vera said
they felt extremely anxious-like seal
estate lawyers who suddenly found
themselves handling a capital case. AJ-
though Sonnet tried to allay their fears by
ayi*n the "real action' would come
later in federal court, the lawyers said
they were afraid they would prejudice
their clients' claims by making an in-
compleu record Some added thaI hey
were worried about the government us-
ing them as a whitewash, giving the Hai-
tians the form but the substance of
due process Others aid they had be-
oe discouraged about their clients'
claims steering weak. though some had
made this determination after only one
interview. Sore said the) became fnau-
tatcd after waiting for bounds a Kone to
see their clients or after ralizing the
amour oftiime they would have to invest
to b ld rapport Senvera had chosen o
take only ooc client and send bk te
other two assigned.
But then there were the arn, thoa6
who had been as diligent as Levine with
Dessine Jeffrey Mandler, an associate
w Miami Beach's Smith and Mandler, is
representing five Haitians WheA he go
on clent out on parole after he bad ned
to hang himself with heess, Mandler
says it "felt like I was on clkxd aine."
But, he adds, the commitmenCt is enor-
mous. over the past two months be has
spent at least 16 hours on each client.
When INS general counsel Irnan
looks at the Dade County Bar Associ-
tion project's mixed success, he does
Mot see the predictable waxing and wan-
ing of busy lawyers' pro bowo commt-
PHTOCRAt T SJAY M 0001
'DETENTION COULD "CREATE AN APPEARANCE OF 'CONCENTRATION CAMPS.' "A JUSTICE DEPARTMENT MEMO WARNED.
cot. He sees conspiracy. "'Kurzban is
)ina out and telling the pro bono law-
=s in Miami not to represent these peo-
c." he charges body. "How else do
Hs explain that so few G-28s have been
Kurzban denies Inman's charge. A
acher at the training sessions and an
thor of the manual, urban is always
:I ful, ay pro bone lawyers who have
id him for advice. None has ever
ard him suggest that the volunteers not
ess their clients' claims.
Kurzban and other Haitian counsel
int to their winning record in litigation
tr the last several years and say it
ows that due process---ot obstruc-
imim-is their toal. "I didn't enter
se injunctions,' Says Kurzban, "fed-
s1 judges did." He acknowledges that
T fair hearings those who do not have
lid claims must be deported.
Inman dismisses these statements with
angry wave. "This is war," he de-
res. "The war is to in effect eliminate
Idefiition of refugee and to open our
"'erd to anybody that wants to come in
d have a worldwide equalization of
th and propey." Kurzban and the
,C lawyers, he says. "are orchestrat-
( some massive provanF to open our
S ors for all immigratoo."
,hirin never uses the words "conumu-
.o"piracy." but they run betwei
Sines of much of what he mys.
S also represents the tgovn-
7t. of Cuba," he offers at one p .
opo of nothing "Isn't that r?"
u.b. has represented Cuba in comn-
Vialitigation as local counsel for the
S York firm Rabinowitz, Boudin,
061M. Krinsky & Licberman.)
erhps it is Inman's seige mentality
causes him to utter questionable, if
wholly false, statements. Statistics
Elike rabbits out of a hat "Seven.
ive recent of Hatians do not show
or t hearins," be declares. Ac-
f TAY OiyciYGA
According to Giuliani, the Justice De-
pan.ment does not keep such statistics.
"Ninety-five percent of the people
polled in Florida support the govern-
mcit's detention policy. It was reported
in The Miami Herald," he asserts. In
fact, a June 30 poll conducted by Behav-
ioral Science Research and reported in
the Herald found that of 274 Dade Coun-
ty residents questioned. 61 percent fa-
vored release of the Haitians.
Inmrnan also insists that Kurzban has
told him "several times" that he be-
lieves only 5 percent of the detained Hai-
tians have colorable claims. "The only
thing I could possibly have said is that
five percent do not have colorable
claims," replies a bemused Kurzban.
And so it goes Inman is nothing if not
a lapel grIbber, obsessed with getting hisY
view of the world across, looking, as he
says, for one "honest" reporter to tell
his story. One thing he wants absolutely
clear he is the "objective" arbiter. He
does not care, personally, whether anm
asylum claim is granted or not, as long as
the law is complied with. "I am literally
the onl) person with a legitimate objec-
tive," he says "The others. Ira [Kurz-
ban and] the rest ar trying to
achieve their objective by destroying the
Despite his self-image as a dispassion-
ae observer, Inman's emotions rise like
flares Asked about the Haitians' protest
that they ai not criminals, he exclaims,
"Wrong' They say they have commined
so crimes, but they have. They tore
down our borders'" And while he insists
be has no problems with granting valid
asylum claims, of the Haitians be has
interviewed, he says "one hundred per-
cent" came for economic reasons:
"They want material wealh, whatever
thai may be to them-a- house, a car., a
pig Inman spoke with about 30 Hai-
tians detained in Puerto Rico and with
about 100 at Krorne, he says. His insight'
into the motivations of those at Krocae
comes from a visit of about an hour, in
which he walked through the camp with
then-director Cecilio Ruiz and talked,
without a translator, to Haitians who ap-
proached Inman says be speaks a litte
Spanish but no Creole, the languages are
THE HAITIANS' PLIGHT HAS BE-
come hopelessly politicized They are
prticularly susceptible to manipulation
se even in the fairest of proceed-
ings their claims are as hard to prove as
to disprove-and the burden of proof is,
on them. Most arrive after harrowing sea'
voyages without any documents that
could support their stories-and for a
beating by a Macoute, what document
could there be? Truth here is subjective.
It lies in their expressions and inflec-
tions, which the judge can interpret free-
ly, depending on predilection and ca-
"The INS is suffering from a psycho-
logical block when it insists all these
people are economic refugees." says
Linton Lovett, a partner in Miami's
Howard. Brawner & Lovett who volun-
teered to represent two Haitians. both of
whom have claimed life-threatening en-
counters with the Macoutes. "The prob-
km is that most of these Haitians are not
ideological and don't fit precisely into
our Northern Americ an/European con-
cept of political refugee. So you can say
they just had a fight with a policeman.
but you have to remember that the Ton-
too Macoute is the only government
these people know."
Lovett, a former foreign service offi-
cer, describes himself as a "violent anti-
communist." but criticizes U.S ties to
right-wing regimes. "I don't think of our
vernment as brutal or bloodthirsty."
says, "but what they are doing with
these Haitians is worthy of the most ty-
rannical regime. They can get these peo-
ple killed-and very well may."
The INS legal machine grinds on. At
Krome, in a trailer that serves as a court-
room, Pierr Phanor, a muscular, som-
ber-looking 28-year-old, is facing Mar-
tin Spiegel. an immigration judge
brought in from El Paso for a month to
bear about 40 remanded cases. Most of
Krome's immigration judges, like Spie-
gel, ar appointed from the ranks of INS
trial lawyers. But while many seem to
have more affinity for the border patrol
than for the liberal young lawyers who
appear on the Haitians' behalf, Spiegel.
an urban type who cultivates an eminent-
ly reasonable demeanor, says he thinks
at the only way these cases will be
fairly beard is with new judges and new
lawyers--he old cast is too batne-
Phranor's original hearing date was
August 4, 1981. a day so frenetic that his
claim was heard and rejected not once
but twice by different judges. The Jus-
tice Department later remanded the case,
and this time Phanor is represented by
Howard Landau, a 1980 University of
Miami law school graduate working for
HRC. Phanor's asylum claim was pre-
pared by other HRC lawyers; Landau has
met him only once before. As he begins
to elicit Phanor's testimony, it is clear he
is not getting the answers he wants.
Ptianor does nox seem to follow him well
and the story he gives is skeletal. He had
a run-in with a Mcoue in 1977 and was
jailed for a day. he says; his uncle paid
money to get huimn out and protect hi;
then the Macoute moved away. In 1961
he heard the Macoute had returned and
fled the country. To go back, he
claimed, would be to lose his life.
While Spiegel reads his ruling.
Phanor cradles his head in his hands
Spiegel finds him credible but says the
incident was "a somewhat personal
problem. insufficient tojustify withhold-
ing deportation." An interpreter begins
THE AMDUCA L.AWx 039
SErT.MaE iwi2 J
* ....-..-~-"-.-v *- .cj7V~iT~~~'I
-. a. *-.- -a- S..-
The INA Insurance
rnpanu- are nauonally
respt ied as one of
e premier w ners of Bar
s based on many
years of expeence.
ability a wilngrness
and abuity to
to specific needs.
and compet.ove rates
CNA is also one of the
few companies to ofer
you a choice of claims
made or occurrence
Urge your Ba
inwsgate what CNAs
mean to you
to relaie the dcisio to Phangr. "De-
pon?" hecris. "A Haiti?" Whe W
wterpreter asets, be explode in tor-
rents ofan The judge nses~ d kave
If we were going to deprt hin,.
Phanoe demands, why had we kept him
n po for eJven moofuhs' He wilw Or
goMc This supposed to be a country
of justice. and f all this suffering we
re e~an him Mbck? His blood. he
cries, wil be o our I~ads.
Awacha Haidti, Josph Aristide, is
kbing icri wd by Landau. He is
man's order, as e e tM it is possib
btt he wil be dqpacrd. Oc hit day,
LAdau Wp s him for his evenal
beringF, be I he does nBo wa I to o
before t INS tral because menry-
ooe who os a loses. He mys a e
canno sleep moret hain two kowi wi- -
out king& s by bad dreams,. md
he ca so fl s ca t. He is wtr4him.
He says e does ao uderstad wby be is
tbei kL het. He wn to bk us mwow
Landuay o be can'b t tB hism wm be
will get out He orys dis Pnsidel is
I.N.S. GENERAL COUNSEL MAURICE
INMAN SAYS 100 PERCENT OF
HAITIANS HE'S TALKED TO CAME
FOR ECONOMIC REASONS:
"THEY WANT MATERIAL WEALTH,
WHATEVER THAT MAY BE TO THEM-
A HOUSE, A CAR, A PIG."
wearing a pry siy hirt. his skin a
deeper cas of ry He is remblin so.
is Azu irss as tough i a soft breeze.
Sn tkij (awiet be punmped from a ac-
Mcad-sry window a Kruce, he was rt-
kaaed from P.L. Dodge. the metal hos.
pit. ju a few days ago Link by lle.
e explains tht he klef Haiti because the
Macoutes ried :o take land on wtuct he
had rice r=ady for planttnm He resisted.
he says. ad the next day they came
klokint for him Hus modar told him so
kave and ga him moin y and be
boarded pane to Miami last Jly.
Ans*ide as rockng back and forth is
mBn thua two months before his cood.i-
titMal release will come under Spell-
. C A Lnsj'ance Companes/CNA Pla'zaCrucago IL 60685
trying to do oaediing difftrent bout
immFrjUamon =an the last, and be is asak.
*g eM txple of him and odr Hai-
Wben the interpreter Wl Aristide
Itis, he laughs shortyj He llaps te back
of ow hand down in 6e palm af iw
other. auin and again. a dtie Haian
gesture War mncs no hope. "So dta, .
ni cse. I ask you," he says with a
hado* of a smnik. "am Inor a los per-
At Atir lawyers' rrqwjt. Ae t nmes of
twv Hatuiav haow been cAated Pwrrr
Drurar and Joseph Arinnufe wrr pe-
d onO RAln 1 1 3 W W
n THE LAWYERS COMMITTEE
OES!!! FOR INTERNATIONAL
'i "H HUMAN RIGHTS 36 WEST 44TH STREET, NEW YORK, NY 10036. (212) 921.2160
Michael H. Pbsner
Arthur C. Helton
POUIMCAL ASYLU, PjeECT
Marvin E. Frankel
BOARD OF DIRECTORS
Jo R. Backer
Maureen R. Berman
Robert L. Bernstein
Tom A. Bernstein
Merrell E Clark. Jr.
Michael I. Davis
Adrian W DeWind
Fr. Robert F. Drinan
Bruce J. Ennis
R. Scott Greathead
Virginia A. Leary
D. Barrington Parker. Ill
Barbara A. Schatz
Orville H. Schell
Jerome J Shestack
James R Silkenat
THE SUBSTANTIVE AND PROCEDURAL LAW
POLITICAL ASYLUM IN THE UNITED STATES
ARTHUR C. HELTONC1983
FOUNDED BY THE INTERNATIONAL LEAGUE FOR HUMAN RIGHTS AND THE COUNCIL OF NEW YORK LAW ASSOCIATES
THE SUBSTANTIVE AND PROCEDURAL
LAW OF POLITICAL ASYLUM IN
THE UNITED STATES
by Arthur C. Helton, Esquire0l983
I. Eligibility 8 U.S.C. SS1158, 1101(a)(42)(A)
A. Alien must be "physically present in the United
States or at a land border or port of entry."
B. Asylum may be granted "irrespective of ... [the]
alien's status," i.e., whether or not in possession
of valid travel documents, whether or not there has
been a finding or concession of excludability or
C. Alien must be a "refugee" under 8 U.S.C. Sll01(a)
1. Must be outside country of nationality or,
in the case of a person having no nationality
(i.e. stateless), is outside country of last
a) Includes persons outside of country of
nationality at time of events that gave
rise to fear of persecution (refugee
"sur place"). Paragraphs 94-96 of the
Handbook on Procedures and Criteria for
Determining Refugee Status under the 1951
Convention and 1967 Protocol relating to
the Status of Refugees (Geneva 1979) of
the Office of the United Nations High
Commissioner for Refugees (hereinafter,
"Handbook"). The United Nations Protocol
is the international law correlative to
substantive asylum law in the United
States, and the United States became a
party to the Protocol in 1968. 19 U.S.T.
6223; T.I.A.S. No. 6577; 606 U.N.T.S.
267. The Board of Immigration Appeals
has cited the provisions of the Handbook
as persuasive authority in the analysis
of asylum claims. See Matter of
Frentescu, Int. Dec. No. 2906 at 4 (BIA
June 23, 1982); Matter of Rodriguez-
Palma, 17 I&N Dec. 465 (BIA 1980). The
United States Court of Appeals for the
Second Circuit has cited the Handbook as
representing a restatement of the High
Commissioner's 25 years of experience,
the practices of governments acceding to
the Protocol and literature on the
subject. Stevic v. Sava, 678 F.2d 401
(2d Cir. 1982), cert. granted, No. 82-973
(Feb. 28, 1983).
2. Must be "unable or unwilling to return to,"
and "unable or unwilling to avail himself or
herself of the protection of" the country in
a. Includes refusal of national passport or
refusal to extend its validity (Handbook,
11i 98, 99).
3. Because of "persecution or a well-founded fear
a. Need for a subjective state of mind and
and objective, external situation.
b. Victims of famine or natural disaster
are not included, unless they also have
a well-founded fear of persecution
(Handbook, %1 39).
c. Subjective element necessitates assess-
ment of alien's personality, i.e., his
particular "psychological reaction" to
the conditions (Handbook, 11 40).
d. Subjective element also necessitates
assessment of credibility where case is
not clear from facts on the record. "It
will be necessary to take into account
the personal and family background of the
applicant, his membership in a particular
racial, religious, national, social or
political group, his own interpretation
of his situation, and his personal
experiences -- in other words, everything
that may serve to indicate that the pre-
dominant motive for his application is
fear. Fear must be reasonable.
Exaggerated fear, however, may be well-
founded if, in all the circumstances of
the case, such a state of mind can be
regarded as justified." (Handbook,
e. Alien may not possess in his vocabulary
the words "fear of persecution", or even
"persecution", and need not invoke those
words; such fear may be "implicit
in his story" (Handbook, 46).
f. Alien, for psychological reasons, may
not be able to describe likelihood of
persecution in political terms (Handbook,
g. As to the objective element, an alien
must normally show "good reason why he
individually fears persecution", but a
desire "to avoid a situation entailing
the risk of persecution" may be enough
(Handbook, i 45; Stevic v. Sava, supra.
See also Reyes v. INS, 693 F.2d 597 (6th
Cir. 1982); Rejaie v. INS, 691 F.2d 139
(3d Cir. 1982).
h. When alien himself has not suffered
persecution, fear may be founded on
experiences of friends, relatives or
others which "show that his fear that
sooner or later he also will become a
victim of persecution is well-founded"
(Handbook, 1111 43 and 45).
i. A threat to life or freedom, or other
serious violations of human rights,
clearly constitute persecution (Handbook,
j. Measures not in themselves amounting to
persecution may, in combination with
other adverse factors (e.g., general
atmosphere of insecurity in the country
of national origin), produce an effect on
the mind of the alien that can reasonably
justify a claim to well-founded fear of
persecution on "cumulative grounds"
(Handbook, 11 53).
k. Discrimination "of a substantially pre-
judicial nature" may constitute persecu-
tion (Handbook, 11 54 and 55).
1. Punishment for the commission of a crime
may constitute persecution (e.g., if
excessive or a pretext, or in view of the
facial character of the offense (e.g.,
"illegal" religious instruction) (Hand-
m. Unlawful or unauthorized departure or
stay outside of applicant's country of
nationality may constitute persecution
(e.g., when penalties are "severe" and
applicant's reasons for leaving or
remaining outside his country are related
to persecution (Handbook, 11 61).
n. Persecution may be economic in form
(e.g., economic measures which are
implemented for racial, religious or
political reasons against a particular
group (Handbook, T 63).
o. Whether general economic measures applied
to a whole population constitute persecu-
tion would depend on the circumstances of
the case. "Objections to general eco-
nomic measures are not by themselves good
reasons for claiming refugee status. On
the other hand, what appears at first
sight to be primarily an economic motive
for departure may in reality also involve
a political element, and it may be the
political opinions of the individual that
expose him to serious consequences,
rather than his objections to the eco-
nomic measures themselves." (Handbook,
p. While persecution is normally related to
the actions of the authorities of a
country, it may also be practiced by
others "if they are knowingly tolerated
by the authorities or if the authorities
refuse, or prove unable, to offer
effective protection" (Handbook, 91 65).
4. On account of race, religion, nationality,
membership in a particular social group, or
political opinion. 8 U.S.C. 51101(a)(42)(A).
a. Mere membership in a race, religion or
social group will ordinarily not be
enough to substantiate a claim for
refugee status. There may be situations
affecting the classification, however,
where such membership will in itself
constitute a ground to fear persecution
(Handbook, V1 70, 73, 74 and 79).
b. Race has to be understood in its widest
sense to include all kinds of ethnic
groups that are referred to as "races" in
common usage (Handbook, 68).
c. "Nationality" includes membership in an
"ethnic or linguistic group", usually a
numerical minority, but sometimes a
majority (Handbook, 1i1I 74-76).
d. A "particular social group" normally
comprises persons of similar background,
habits or social status (Handbook, 11 77).
e. It is not necessary for the alien to have
expressed his political opinion. Due to
the strength of the alien's convictions,
it may be reasonable to assume that his
opinions will sooner or later find
expression and that he will, as a result,
come into conflict with the authorities.
Where this can reasonably be assumed, the
alien can be considered to have fear of
persecution for reasons of political
opinion (Handbook, 11 82).
f. An alien claiming fear of persecution
because of political opinion need not
show that the authorities of his country
of origin knew of his opinions before he
left the country (Handbook, 1l 83).
g. In determining whether a political
offender can be considered a refugee,
consideration should be given to the
following elements: personality of the
alien, his political opinion, the motive
behind the act, the nature of the act
'committed, the nature of the prosecution
and its motives; finally, also, the
nature of the law on which the
prosecution is based. "These elements
may go to show that the person concerned
has a fear of prosecution and
punishment -- within the law -- for an
act committed by him." (Handbook, If
II. Grounds of Ineligibility
A. A "refugee" does not include any person who
"ordered, incited, assisted, or otherwise parti-
cipated in the persecution of any person on account
of race, religion, nationality, membership in a
particular social group, or political opinion."
8 U.S.C. S1101(a)(42)(B).
B. If the alien is "firmly resettled" in a foreign
country asylum is to be denied by a district
director. 8 C.F.R. 5208.8(f)(1)(ii).
1. Requires an offer of resident status, citizen-
ship, or some other type of permanent reset-
tlement by another nation, as well as settle-
ment in that nation to flee persecution. 8
a. An alien is not firmly resettled if
conditions of residence in the nation in
question (e.g., type of available housing
and employment, enjoyment of rights and
privileges such as travel documentation,
education, public assistance, or
naturalization) are substantially and
consciously restricted in comparison to
the general populace. 8 C.F.R. 5208.14.
See Matter of Portales, Int. Dec. 2905 at
5 (BIA May 14, 1982).
2. Ground not relevant to application for
temporary withholding of deportation.
Matter of Lam, Int. Dec. 2857 at 6 (BIA March
C. If alien has been convicted of a "particularly
serious crime" and "constitutes a danger to the
community of the United States" asylum is to be
denied by a district director. 8 C.F.R. S208.8(f)
D. If there are "serious reasons" to believe that the
alien has committed a "serious non-political crime"
outside the United States prior to arrival asylum
is to be denied by a district director. 8 C.F.R.
1. In determining whether an offense is "non-
political", regard should be given to its
nature and purpose, i.e., whether it has been
committed out of genuine political motives and
not merely for personal reasons or gain.
There should also be a close and direct causal
link between the crime committed and its
alleged political purpose and object. The
political element of the offense should also
outweigh its common-law character (Handbook,
2. A "serious" crime must be a capital crime or a
very grave punishable act. Minor offenses
punishable by moderate sentences are not
grounds for exclusion even if technically
referred to as "crimes" in the penal law of
the country concerned (Handbook, 155).
3. It is necessary to strike a balance between
the nature of the offense presumed to have
been committed by the applicant and the degree
of persecution feared. If a person has well-
founded fear of very severe persecution, e.g.,
persecution endangering his life or freedom,
a crime must be very grave in order to exclude
him. If the persecution feared is less
serious, it will be necessary to consider the
nature of the crime or crimes presumed to have
been committed in order to establish whether
the alien is not in reality a fugitive from
justice or whether his criminal character does
not outweigh his character as a bona fide
refugee (Handbook, 11 156).
4. If the alien has served his sentence, been
granted a pardon, or has benefitted from an
amnesty, then there is a "presumption" that
this ground of ineligibility does not apply
(Handbook, 11 157). Cf. Matter of Rodriguez-
E.. If there are "reasonable grounds" for regarding the
alien as a danger to the security of the United
States asylum is to be denied by a district
director. 8 C.F.R. 5208.8(f)(1)(vi).
F. Asylum may be denied by a district director if
there is an outstanding offer of resettlement by a
third nation where the alien will not be perse-
cuted, and his resettlement there would be "in the
public interest". 8 C.F.R. S208.8(f)(2).
G. Asylum may be denied by an immigration judge even
though deportation is temporarily withheld under 8
U.S.C. S 1253(h) on the ground that the applicant
has intentionally circumvented the overseas
refugee admission process. Matter of Salim, Int.
Dec. 2922 (BIA Sept. 29, 1982).
III. Grounds to Terminate Asylum Status
A. The alien is no longer a refugee under 8 U.S.C.
1101(a)(42)(A) due to changed circumstances in the
country of nationality or last habitual residence.
8 U.S.C. 51158(b); 8 C.F.R. S 208.15(a)(1).
B. The alien poses a danger to the security of the
United States, or because of conviction of a
serious crime poses a danger to the community. 8
C. The alien was not eligible for asylum. 8 C.F.R.
IV. Procedures to Apply for Asylum
A. The Application 8 U.S.C. S1158(c); 8 C.F.R.
1. Form 1-589 ("Request for Asylum in the United
States") is to be submitted by the asylum
a. Applicant's spouse or children may be
included in the application.
b. A form G-325A (biographical information)
and an FD-258 fingerprint chart must be
submitted for persons over 14 years of
2. Jurisdiction lies with the appropriate
district director over any request for asylum
made by an alien in the United States, except
that jurisdiction over an asylum request by an
alien who has been served with a notice of
hearing in exclusion proceedings or with an
order to show cause in deportation proceedings
lies exclusively with the immigration judge,
subject to a request for a remand by a
district director. 8 C.F.R. 5208.1 (48 Fed.
Reg. 5885 (1983)).
3. A request for asylum in exclusion or
deportation proceedings is considered a
request for withholding of deportation under 8
U.S.C. S1253(h). 8 C.F.R. S208.3(b). See
Matter of Matelot, Int. Dec. 2927 (BIA Nov. 1,
1982); Matter of Exilus, Int. Dec. 2914 (BIA
Aug. 8, 1982); Matter of Portales, supra.;
Matter of Castellon, 17 I&N Dec. 616 (BIA
B. Available remedies pending adjudication of the
1. Employment authorization can be obtained from
a district director at the time the asylum
application is filed if the application is
"non-frivolous". 8 C.F.R. S 109.1(b)(2) and
2. Advance parole can be obtained from a district
director upon the filing of the application as
a matter of discretion or because of "emergent
or humanitarian considerations". 8 C.F.R.
S 212.5(c); O.I. S212.5c.
1. The burden is on the applicant. 8 C.F.R.
a. Documentation is not required. A person
fleeing persecution arrives frequently
without personal documents. If the
alien's account appears credible, then he
should, unless there are good reasons to
the contrary, be given the benefit of the
doubt (Handbook, 11 196).
2. Each applicant is examined or heard in person
(by an immigration officer or immigration
judge) prior to adjudication of the asylum
application. Personal appearance of children
may be waived. 8 C.F.R. 5208.6.
3. The district director or the immigration judge
shall request an advisory opinion from the
Bureau of Human Rights and Humanitarian
Affairs of the State Department. 8 C.F.R.
S 208.7 and 208.10(b).
a. An opinion may be requested by an
immigration judge before whom an appli-
cation has been renewed as a matter of
discretion. 8 C.F.R. S208.10(b).
b. The opinion should include a statement of
reasons for the opinion. See Zamora v.
INS, 534 F.2d 1055 (2d Cir. 1976).
c. Discovery available in exclusion of
deportation proceedings regarding the
opinion if same would assist the
applicant in proving his or her claim. 8
C.F.R. SS236.2(d) and 242.14(e). See
Matter of Exilus, supra.
4. If asylum is granted by a district director,
it is granted for one year from the date of
approval, with annual interviews to determine
continued eligibility, and subsequent grants
in increments of one year. 8 C.F.R.
5. Upon being granted asylum status, and assuming
certain other prerequisites are satisfied,
after one year of physical presence in the
United States, the alien is eligible to apply
to become a permanent resident. 8 U.S.C.
S1159(b); 8 C.F.R. S 209.2.
6. If the application is denied by a district
director, it may be renewed before an
immigration judge in exclusion or deportation
proceedings. 8 C.F.R. S208.9.
7. Even crewmen and stowaways in exclusion
proceedings are entitled to hearings on an
asylum claim. Chun v. Sava, 708 F.2d 869 (2d
8. Asylum may be revoked by a district director
or an immigration judge, depending on the
procedural posture of the case. 8 C.F.R. S
208.15(b) and 208.15(c).
9. An adverse decision by an immigration judge
may be appealed to the Board of Immigration
Appeals (BIA). 8 C.F.R. SS3.1(b)(1), 3.1(b)
(2), 236.7, 242.21.
10. In deportation proceedings, an adverse
determination by the BIA can be immediately
reviewed by a petition for review to the
appropriate Circuit Court of Appeals with
further review available in the United States
Supreme Court. 8 U.S.C. S1105a(a).
11. In exclusion proceedings, an adverse BIA
decision can be reviewed via habeas corpus in
the appropriate district court, with further
review available in the Circuit Court and
Supreme Court. 8 U.S.C. S1105a(b). Habeas
review is also available in deportation
proceedings on grounds that could not have
been raised previously. 8 U.S.C. S1105a(c).
See Fay v. Noia, 372 U.S. 391 (1963).
Prepared by the la'w fi mo E&ag6mn, e Rey & Bernsen
VoL 3, No. 7 J July.August, 1984
STEMfC* THE DECISION AND ITS IMPLICATIONS
by Arthur C. Helton*
The Supreme Court decision
Law prior to Refugee Act of 1980
On June 5, 1984, the U.S. Supreme Court decided
its first case under the Refugee Act of 1980. In a
unanimous decision authored by Justice Stevens, the
Court held, in INS v. Stevic, U.S. -, 52 U.S.L.W.
4724 (No. 82-973, decided 6/5/84), that the refugee
standard "well-founded fear of persecution" did
not apply to the immigration remedy of withholding
of deportation under 243(h) of the Immigration and
Nationality Act. Instead, the Court ruled that the
prior administrative "clear probability" standard ob-
tained "whether it is more likely than not that the
alien would be subject to persecution." 52 U.S.L.W.
at 4728. This result was compelled, according to the
Court, by the language of the statute and legislative
The Supreme Court began its analysis with the
language of the withholding statute: "The text of the
* Mr Helt is a 976 mrdusre of the No. York Univ-rmity School of
Lau, -nd a member of tbe Ncw York Bar. He is cuemdi) director of
the Political Asylum Project of thbe -ers' Committee for Intrnatiocai
nuMin Rihts ued in New York Oty.
Implications of Stevic
Need for clarifying legislation
Well-founded fear standard
statute simply does not specify how great a possibility
of persecution must exist to qualify the alien for with-
holding of deportation. To the extent that such a
standard can be inferred from the bare language of
the provision, it appears that a likelihood of perse-
cution is required." Id at 4727.
The Supreme Court found persuasive the fact that
the section provides literally for withholding of de-
portation only if the alien's life or freedom "would"
(not "might" or "could") be threatened in the home
country; and the fact that the withholding provision,
both prior to and after amendment, makes no mention
of the term "refugee." Id at 4728.
The Supreme Court, in its textual analysis, distin-
guished the withholding provision from "requests for
discretionary asylum," which incorporates the refugee
definition and well-founded fear of persecution stan-
dard. Id at 4728, 4730. While expressly eschewing
the opportunity to discuss the meaning of the well-
founded fear standard, the Court characterized as a
"moderate position" the notion "that so long as an
Immigration law Report is published eleven times per year by Clark Boardrnan Company, Ltd.. 435 Hudson Street, New rk, N.Y. 10014.
Subscription 595 per year.
C1984 by Clark Boardman Company. Ltd. ISSN 0731.5767
This publication is designed to provide accurate and authoritative information in regard to the subject matter covered It is sold with the
Lunrdestanding that the publisher is not engaged in rendering legaf, accounting or other professional service. f legal advice o other
expen asSistarce is required. the services of a ompetent person should be sought -From a Declaration of Principles jointly adopted by a
Committee of the American Bar Association and a Committee of Publishers.
objective situation is established by the evidence, ft
need.not be shown that the situation will probably
result in persecution, but it is enough that persecution
is a reasonable possibility." Id at 4728. Ax
The Supreme Court found its analysis consistent
with the Refugee Act, which was designed "to elim-
inate the piecemeal approach to admission of refugees
previously existing ... and to establish a systematic
scheme for admission and resettlement of refugees."
(Citations omitted, emphasis in original.) Id at 4729.
As to the 1967 United Nations Protocol Relating to
the Status of Refugees, the Court noted that it did
not require admission at all, nor did it preclude a
signatory from exercising judgement among classes of
refugees within the refugee definition in determining
who to admit. Id at 4729 n.22. The Court elaborated:
"[T]o the extent that domestic law was more gen-
erous than the Protocol, the Attorney General would
not alter existing practice; to the extent that the Pro-
tocol was more generous than the bare text of Section
243(h) would necessarily require, the Attorney Gen-
eral would honor the requirements of the Protocol
and hence there was no need for modifying the lan-
guage of Section 243(h) itself." Id at 4730 n.22.
Despite the wide-ranging analysis, the Court's hold-
ing itself was quite narrow: "We have deliberately
avoided any attempt to state the governing standard
beyond noting that it requires that an application be
supported by evidence establishing that it is more
likely than not that the alien would be subject to
persecution on one of the specified grounds. This
standard is a familiar one to immigration authorities
and reviewing courts, and Congress did not intend to
alter it in 1980. ... We did not decide the meaning
of the phrase 'well-founded fear of persecution' which
is applicable by the terms of the Act and regulations
to requests for discretionary asylum. That issue is not
presented by this case." Id at 4730.
The narrowness of the Supreme Court's holding
surprised both the parties and knowledgeable observ-
ers. To appreciate the limited scope of the holding
and its implications for the future, it will be useful
initially to examine, as did the Court, the "pre-existing
sources" of law in the United States.
Pre-1968 asylum law
Before 1968, there were three procedures, each with
a different standard, under which aliens could seek
refuge in the United States.
Under the Immigration and Nationality Act as
passed in 1952 ("1952 Act"), the Attorney General
was authorized to "withhold deportation of any al-
ien ... to any country in which in his opinion the
alien would be subject to physical persecution. .... "
Pub. L. No. 82-414, 66 Stat. 166 (current version at
8 U.S.C. J 1101). Faced with this discretionary au-
thority to decline to deport an alien from the United
States, a limiting principle was developed to restrict
"the favorable exercise of discretion to cases "of clear
probability of persecution of the particular individual
petitioner'...." In re Joseph, 13 I. & N. 70 (B.I.A.
1968) (citation omitted); In re Tan. 12 I. & N. 564,
568 (B.I.A. 1967); Lena v INS, 379 F.2d 536, 538
(7th Cir. 1967).
The "clear probability" standard, furthermore, was
applied stringently. See, e.g., In re Tan, supra (vo-
luminous documentation of abuse of ethnic Chinese
in Indonesia, letters from relatives, and an attack on
the family business ruled insufficient); In re Kojoory,
12 I. & N. 215, 217 (B.I.A. 1967) (Iranian president
of anti-Shah student organization denied withholding
despite findings of "no doubt" that alien was "prom-
inently involved" in political activities in the United
States, and that it was "likely" that he had been so
identified by the government of Iran). See also Haitian
Refugee Center v. Civiletti 503 F. Supp. 442 (S.D.
Fla. 1980), modified sub nom. Haitian Refugee Center
v. Smith, 676 F.2d 1023 (5th Cir. 1982), in which the
district court found evidence of systematic and ex-
tensive persecution throughout the Haitian cases re-
viewed, yet not one applicant had met the "clear
probability" standard.' For example, one woman's
father had been killed by the Ton Ton Macoutes, who
had come for her just after she had fled. Another had
been jailed after the murder of both her husband and
her son. 503 F. Supp. at 474-510.
The application of this standard was reviewable
only for abuse of discretion, a difficult standard to
meet. Even where "the Attorney General's course of
conduct shows consistency in the various cases," his
ungenerous interpretation of the law in a single case
was deemed insufficient cause to hold that "he has
exercised his discretion in an arbitrary manner." Lena
v. INS, supra, at 538.
The second procedure, conditional entry, was en-
acted in 1965 and concerned the admission of refugees
from overseas. Pub. L. No. 89-236, 3, 79 Stat. 913
(repealed at 94 Stat. 107) ("1965 Amendments"). The
INS could grant this status to aliens "who satisfied]
an Immigration and Naturalization Service officer at
an examination in any non-Communist or non-Com-
munist-dominated country, (A) that (i) because of
persecution on account of race, religion, or political
opinion they [had] fled (I) from any Communist or
Communist-dominated country or area, or (11) from
any country in the Middle East, and (ii) [were] unable
or unwilling to return to such country or area on
account of race, religion, or political opinion, and (iii)
[were] not nationals of the countries or areas in which
their application for conditional entry is made. ..".
FL7J gALUJALAJ u X, V *pI a/ s' J *L X-
Stat. 107). There was a numerical ceiling on admis-
sions, and relief was strictly limited by ideology and
Judicial review was ordinarily precluded, since
^ most of the eligibility determinations were made
abroad. While the precedents are sparse, it is apparent
that the conditional entry standard was more lenient
than the withholding standard. See Cheng Fu Sheng
Y. Barber. 269 F.2d 497, 499 (9th Cir. 1959) (con-
struing the term "fear of persecution" in the unrelated
Refugee Relief Act of 1953 as "ip sharp contrast" to
the stringent withholding of deportation provision).
See also In re Tan, supra, at 569-70; In re Adamska."
12 I. & N. 201, 202 (B.I.A. 1967) (holding conditional
entry to be "substantially broader" than the pre-1965
withholding); In re Ugricic, 14 I. & N. 384, 385-86
(B.I.A4. 1972) (conditional entry found to require but
"good reason to fear persecution").
In 1952, the Attorney General was granted au-
thority to "parole" aliens temporarily into the country
"for emergent reasons or for reasons deemed strictly
in the public interest." 1952 Act, 212(d)(5), 66 Stat.
at 188 (current version at 8 U.S.C. 1182(dX)(5XA)).
This third procedure was also used to admit refugees
from overseas. In contrast to conditional entry, there
were no numerical limitations. In contrast to with-
holding, there were no ideological or geographic lim-
itations. In practice, however, the parole power was
used almost exclusively to admit those fleeing Com-
munism. World Refugee Crisis: The International
Community's Response, Report to the House Com-
mittee on the Judiciary, 96th Cong., Ist Sess. 213
(1979) ("World Refugee Crisis').
United Nations Protocol
In 1968 the United States became a party to the
1967 United Nations Protocol Relating to the Status
of Refugees ("Protocol"), 19 U.S.T. 6223, T.I.A.S.
No. 6577, 606 U.N.T.S. 267. The United States
thereby bound itself to apply the provisions of the
Protocol, which defines the term "refugee" as a person
who "owing to well-founded fear of being persecuted
for reasons of race, religion, nationality, membership
in a particular social group or political opinion, is
outside the country of his nationality and is unable
or, owing to such fear, is unwilling to avail himself
of the protection of that country; or who, not having
nationality and being outside the country of his former
habitual residence, is unable or, owing to such fear,
is unwilling to return to it." Protocol, Art. L 2.
As Justice Stevens explained in Stevic, the sponsors
of the Protocol, and expert witnesses who appeared
before the Senate Foreign Relations Committee, were
unequivocal in their assurances that ratification of the
v ,L, $I. UJU ULAL 1 UiLUC t 0AVC3CJY UPt M WC
Federal and State laws of this country." 114 Cong.
Rec. 29,391 (1968) (statement of Sen. Mansfield); ac-
conrd 114 Cong. Rec. 27,757 (1968) (message from
the President transmitting the Protocol); id at 27,758
(letter of submittal from the Department of State);
114 Cong. Rec. 27,844 (1968) (statement of Laurence
A. Dawson of the Department of State). -s
Particularly persuasive was Eleanor McDowell of
the Office of the Legal Advisor of the Department of
State, who testified before the Foreign Relations Com-
mittee on the subject of the Protocol. She stated that
"existing regulations which have to do with depor-
tation would permit the Attorney General sufficient
flexibility to enforce the provisions of this convention
which are not presently contained in the Immigration
and Nationality Act." S. Exec. Rep. No. 14, 90th
Cong., 2d Sess. 8 (1968).
Need for legislation
The Protocol standard, however, was not applied
in practice. The failure of the Stevic court, further-
more, to recognize this failure in practice caused it
to misconstrue the full import of the enactment of
the Refugee Act.
The withholding of deportation provision, as
amended in 1965, read: "The Attorney General is
authorized to withhold deportation of any alien within
the United States to any country in which in his
opinion the alien would be subject to persecution on
account of his race, religion or political opinion and
for such period of time as he deems to be necessary
for such reason." 1965 Amendments, 3, 79 Stat.
918, amending 243(h) of 1952 Act, 66 Stat. at 214
(current version at 8 U.S.C. I 1253(h)). The consid-
erable flexibility permitted under the withholding pro-
vision could have accommodated the new refugee
standard. However, while the Board of Immigration
Appeals limited negative exercises of discretion in In
re Dunar, 14 I. & N. 310, 322 (B.I.A. 1973), it retained
IMMIGRATION LAW REPORT
prepared by the law firm of
FRAGOME.N, DEL REY AND BERNSEN
New York Chicago Los Angeles Miami
San Francisco Stamford, Ct Washington, D.C.
Editor-in-Chief Austin T. Fragomen, Jr.
Senior Editors" Alfred J. Del Rey, Jr.
Senior Writer and Editor Steven C. BeDa
Contributing Editors: Patrick J. Quane, James 0.
McKeon. Ronald F. Storette, David N. Strand
Noreen Quirk, Peter H. LoEsy, Ethan Bensinger,
Frederick D. Goosen, Lynn GrindAll, Jim Tom
Haynes, Karin C. Lestelle
the "clear probability" standard. In re Joseph, supra.
Nor, as Justice Stevens recognized, was there any
consensus among the courts that reviewed witlhold-
ing of deportation determinations after accession to
the Protocol about the appropriate refugee eligibility
standard. Some used the "well-founded fear" stan-
dard. Pereira-Diar v. INS 551 F.2d 1149, 1154 (9th
Cir. 1977); Zamora v. JNS 534 F.2d 1055, 1058 (2d
Cir. 1976); Paul v. INS. 521 F.2d 194, 200 (5th Cir.
1975). Others used the "clear probability" standard.
Martineau v. INS, 556 F.2d 306, 307 (5th Cir. 1977);
Pierre v. United States, 547 F.2d 1281, 1289 (5th Cir.
1977), vacated and remanded to consider moorness,
434 U.S. 962 (1977); Cisternas-Esay v. INS, 531 F.2d
155, 159 (3d Cir. 1976); Rosa v. INS, 440 F.2d 100,
102 (1st Cir. 1971).
Still others used different standards. Khalil v. Dis-
trict Director, 457 F.2d 1276, 1277 n.3 (9th Cir. 1972)
("would be persecuted"); Henry v. INS, 552 F.2d 130,
131 (5th Cir. 1977) ("probable persecution"); Daniel
v. INS, 528 F.2d 1278, 1279 (5th Cir. 1976); Shkukani
v. INS, 435 F.2d 1378, 1380 (8th Cir.), cert. denied,
403 U.S. 920 (1971); Kovac v. INS, 407 F.2d 102, 105
(9th Cir. 1969) ("probability of persecution"); Gena
v. INS. 424 F.2d 227, 232 (5th Cir. 1970) ("likely"
Occasionally, the courts addressed the issue
squarely. The Seventh Circuit opined that "the 'well-
founded fear' standard in the Protocol and the 'clear
probability' standard which this court has engrafted
onto section 243(h) will in practice converge." Ka-
shani v. INS, 547 F.2d 376, 379 (7th Cir. 1977). The
Fifth Circuit explained, however, that the Protocol
standard, as viewed by the Board, suggestede] at least
a slight diminution in the alien's burden of proof...."
Coriolan v. INS, 559 F.2d 993, 997 n.8 (5th Cir. 1977).
The Attorney General's parole power was also suf-
ficiently flexible to accommodate the ideologically
neutral Protocol standard. In practice, however, ide-
ology continued to animate decision-making. World
Refugee Crisis, supra. That a relative few non-Com-
munists were admitted under the parole power shows
that the Attorney General could have admitted ref-
ugees regardless of ideology.
After 1968 it became increasingly apparent to leg-
islators that the INS was still using practices and
procedures that frustrated implementation of the Pro-
tocol and that were inconsistent with its generous
underlying humanitarian philosophy. Consistent with
the United States' leadership in showing compassion
for the persecuted, Congress called for legislation to
ensure implementation of the Protocol.
As soon as the Protocol was ratified, members of
Congress realized that the definition of refugee would
have to be broadened. See, eg., S. 3202, introduced
into the Senate, 115 Cong. Rec. 36,965-66 (1969).
This need was highlighted by the so-called Kurdica
Affair in 1970, in which a Soviet sailor who had
jumped ship was returned to his vessel without an
opportunity to seek asylum.
Legislators introduced bills to require INS to con-
form its standards and practices to those of the Pro-
tocol, and the pressure for change was constant from
1973 until the passage of the 1980 Refugee Act. See
S. 2643, 119 Cong. Rec. 35,734 (1973); S. 2405, 121
Cong. Rec. 29,947 (1975). Bills considered in 1976
by the House had contained the "well-founded fear"
refugee standard. See Western Hemisphere Immigra-
tion, Hearings on H.R. 367, H.R. 981, and H.R. 10323
Before the Subcomm. on Immigration, Citizenship and
International Law of the House Comm. on the Judi-
ciary, 94th Cong., 1st and 2d Sess. (1976) ("1976
House Hearings"). Indeed, they were the subject of
most of the hearings, and it is significant that rep-
resentatives of the Departments of State and Justice
recognized the difference between the stringent "clear
probability" standard and the Protocol standard. The
Justice Department, while supportive of "the basic
tenets of this [refugee] provision ... believed] that the
"well-founded fear of persecution' should be limited
to the 'well-founded fear of persecution in the opinion
of the Attorney General.' The Department believed]
that ... [otherwise] it would be entirely subjective
with the alien claiming refugee status whether [or not]
his fear of being persecuted was well-founded." 1976
House Hearings at 18.
The refugee standard was raised specifically in hear-
ings in 1977. Congresswoman Holtzman, ultimately
the co-sponsor of the 1980 legislation, stated her con-
cern with the INS's narrow reading of the law. She
"I wonder if you have any concern that ... we
ought to... spell out-but not in an overly detailed
manner-the kinds of procedures that should be used.
"The reason I raise this is because when Congress
creates a statutory scheme and does not really specify
how that scheme is to be implemented it can be
thwarted by the executive branch. I am concerned
because I think the definition of refugee in this bill is
an excellent one and even though it states what person
will be a refugee if he or she has a well-founded fear
of persecution, we don't spec fy how that well-founded
fear is to be ascertained .. ."Hearings on H.R. 3056,
Policy and Procedures for the Admission of Refugees
Into the United States Before the Subcomm. on Im-
migration. Citizenship, and International Law of the
House Comm. on the Judiciary, 95th Cong., 1st Sess.
126-27 (1977) (emphasis supplied). Congresswoman
Holtzman, as a lawyer, appreciated that a stringent
In 1978, Congressman Elbcg, expressing Con-
gress's growing impatience with the INS's failure to
fulfil the spirit of the Protocol, stated: "For years, we
0 have received assurances .. from the Justice De-
partment... that criteria, guidelines, and regulations
would be promulgated... so we would not have to
go through the necessity of moving legislation. Yet
this has never taken place." Hearings on the Admission
of Refugees Into the United States. II, Before the Sub-
comm. on Immigration, Citizenship and International
Law ofthe House Comm. on the Judiciary, 95th Cong.,
1st & 2d Sess. 15 (1978).
Thus, the stage was set for comprehensive legisla-
The Refugee Act of 1980 established a standard for
uniform and non-ideological refugee eligibility. Con-
gress intended this new standard to be compatible
with the humanitarian traditions and international
obligations of the United States. Central to the Act
was a statutory definition of "refugee" which con-
formed to that of the Protocol. A refugee was defined
as "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 coun-
try 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...-. 101(a)(42)(A) of the Immigration and
Nationality Act, 8 U.S.C. 1101(aX42) (1982).
As Justice Stevens explained, 203(e) of the Ref-
ugee Act amended the language of 243(h), basically
conforming it to the language of Article 33 of the
United Nations Protocol. Section 243(h)() as
amended provides in pertinent part: "The Attorney
General shall not deport or return any alien ... 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." Article 33(1) of the Protocol provides: "No
Contracting State shall expel or return ('refouler') a
refugee in any manner whatsoever to the frontiers of
territories where his life or freedom would be threat-
ened on account of his race, religion, nationality,
membership of a particular social group or political
Opinion." While, as the Supreme Court observed in
) Stevic, the statute does not use the term "refugee,"
---- -- a& w & UJ"LJUj, Uu5 u C UWC
term and thereby incorporates the refugee definition.
It is beyond dispute, furthermore, that Congress
intended the definition of "refugee" in the 1980 Act
to conform to that in the Protocol. See, e.g., 126 Cong.
Rec. 3,757 (1980) (statement of Senator Kennedy:
"The new definition makes our law conform to the
United Nations Convention and Protocol.... ").
During hearings, the derivation of the term was often
mentioned and never questioned. This intent was em-
phasized in the report of the Senate Judiciary Com-
mittee and debate on the Senate floor. S. Rep. No.
256, 96th Cong., Ist Sess. (1979), 125 Cong. Rec.
Similarly, throughout House consideration of the
bill, references were made to "the fundamental change
under the legislation ... the replacing of the existing
definition of refugee with the definition which appears
in the U.N. Convention and Protocol...." Refugee
Act of 1979: Hearing on H.R. 2816 Before the Sub-
comm. on Immigration. Refugees, and International
Low of the House Comm. on the Judiciary, 96th Cong.,
1st Sess. 27 (1979) ("1979 House Hearings"); see also
id at 43, 168, 169, 248, 251, 280, 284, 291, 357, 361,
383, 393; 125 Cong. Rec. 35,813-26 (1979).
The purpose of changing the definition was not only
to excise ideological bias from immigration law, but
also to "facilitate bringing refugees into this country,"
since only a well-founded fear of persecution would
have to be established. 1979 House Hearings, supra.
at 169 and 284, Briefing on the Growing Refugee Prob-
lem, Hearing Before the Subcomm. on International
Organizations of the House Comm. on Foreign Affairs
96th Cong., Ist Sess. 4-5 (1979).
Congress emphasized its concern over the intran-
sigence of INS in the past and expressed its intention
to monitor compliance in the future: "The Committee
intends to monitor closely the Attorney General's
implementation of the [asylum] section so as to insure
the rights of those it seeks to protect." H.R. Rep. No.
608, 96th Cong., 1st Sess. 18 (1979).
Inevitability of Stevic and Its Implications
Even though Congress emphasized the uniform,
non-ideological standard through the enactment of
the Refugee Act of 1980, INS continued to follow the
"clear probability" standard. See, 'eg., In re Mc-
Mullen, 17 I. & N. 542 (B.I.A. 1980), rv'd McMullen
v. INS, 658 F.2d 1312 (9th Cir. 1981). In McMullen,
the Board denied withholding despite confirming doc-
umentary evidence of the applicant's defection from
the Provisional Irish Republican Army ("PIRA",
and the nature and activities of the PIRA, finding
under the "clear probability" standard that the alien
bad not demonstrated that the Irish government could
....... wtu uz appeals reversed,
explaining that the standard applied had been vir-
tually "impossible" to satisfy. 658 F.2d at 1319. See
also Marroquin-Manriquez v. INS, 699 F.2d 129 (3d
Cir. 1983) (withholding denied by the Board where
the applicant had been involved in a student political
organization, a member of which had been killed, and
the alien had been linked to the killing; and where
three expert witnesses testified in support of appli-
Given the adherence of INS to the prior withhold-
ing standard, the raising of the issue in Stevic, whether
the Refugee Act had relaxed that standard through
the adoption of the refugee definition and "well-
founded fear" criterion, was virtually inevitable. The
Court's resolution of the issue, however, has but nar-
row implications, may contravene the purpose of the
Refugee Act and the obligations of the United States
under the Protocol, and provides little guidance as to
the meaning of the "well-founded fear" standard.
The impact of the Stevic decision will be quite nar-
row since all aliens can apply for asylum in addition
to withholding of deportation (or exclusion) and
thereby take advantage of the possibly more liberal
asylum standard. Advocates should therefore apply
for both asylum and withholding, and argue that the
evidence shows that persecution is more likely than
not and, a fortiori that there is a "reasonable possi-
bility" of persecution.
Only those aliens who were denied asylum (pre-
sumably on grounds other than the fact that they
could not show a well-founded fear of persecution)
could be affected, ie., because they were firmly re-
settled in a third country and are thereby ineligible
for asylum, 8 C.F.R. 208.8(f)(ii), or because they
are denied asylum as a matter of discretion. Matter
ofSalim, Int. Dec. 2922 (B.I.A. 1982). Only a relative
handful of aliens would fall into these categories.
Of course, by emphasizing the distinction between
discretionary asylum and mandatory withholding of
deportation, Stevic invites an increasing role for dis-
cretion in asylum adjudications. Until now, discretion
has played a rather circumscribed role. See, e.g., Mat-
ter of Salim, supra (asylum denied to Afghan who
circumvented the refugee admission program in Pak-
istan). An expansion of the exception could serve to
swallow whole the right to asylum.
Need for clarifying legislation
By carving out a single procedure with an appar-
tntly different standard under which an alien can seek
refuge in the United States, the Supreme Court has
acted contrary to a general object of the Refugee
Act-to unify standards and procedures in the area.
See Chun v. Sava, 708 F.2d 869 (2d Cir. 1983) (stow-
away held entitled to evidentiary hearing on asylum
claim even though a hearing is otherwise precluded
by exclusion statute). Stevic reintroduces complica-
tions in an area which Congress sought to regularize
through the enactment of the Refugee Act.
Such complications, however, may prove to be
short-lived. Both the House and Senate versions of
pending immigration reform legislation, the so-called
Simpson-Mazzoli bill (S. 529 and H.R. 1510), provide
at 124(aX)) that an application for relief under
243(h) "shall be considered to be an application for
asylum under Section 208 and shall be considered in
accordance with the procedures set forth in that
The Stevic holding would presumably be overruled
upon the enactment of this legislation which equates
withholding with asylum. Should Simpson-Mazzoli
not be enacted, the Stevic decision would seem then
to invite legislation specifically making it clear that
the refugee definition applies as well to the withhold-
ing remedy in order to achieve the uniformity sought
by Congress in the Refugee Act.
Such an outcome would accord with the obligations
of the United States under the Protocol. As it stands
now, it is conceivable under the Supreme Court's
analysis in Stevic that a person who meets the defi-
nition of "refugee" under the Protocol could be re-
turned by the Attorney General to a territory to face
persecution in violation of Article 33. While any such
action would presumably constitute an abuse of dis-
cretion under Stevic, there is no reason not to foreclose
any ambiguity and make it clear that the refugee
The Supreme Court in Stevic declined to discuss
the import of the well-founded fear standard and ex-
pressly reserved that issue for another day. To ap-
preciate the meaning of the standard, including Justice
Stevens' "reasonable possibility" formulation, refer-
ence must be made to-be Handbook on Procedures
and Criteria for Determining Refugee Status Under
the 1951 Convention and the 1967 Protocol Relating
to the Status of Refugees (Geneva 1979), which was
not cited in Stevic. A recent decision of the Ninth
Circuit, Zavalar-Bonilla v. INS, F.2d (9th Cir.
1984), which will be discussed in the next issue of
IMMIGRATION LAW REPORT, provides a useful ve-
hicle for the examination of how to evaluate evidence
under the asylum standard.
UNITED STATES DEPARTMENT OF JUSTICE
BOARD OF IMMIGRATION APPEALS
Appeals in Exclusion Proceedings
Concerning Various Haitians Who
Were Transferred on July 18, 1981,
to the Service Processing Center
in Brooklyn, New York.
BRIEF IN SUPPORT OF COMMON
CONTENTIONS IN THE APPEALS
OF THE ALIENS
Arthur C. Helton, Esquire
Lawyers Committee for
International Human Rights
36 West 44th Street
New York, New York 10036
TABLE OF CONTENTS
PRELIMINARY STATEMENT ............................. 1
STATEMENT OF FACTS.................. ............ 1
ARGUMENT ................................... ... .... 2
APPELLANTS ARE ENTITLED TO ASYLUM AND
TO WITHHOLDING OF DEPORTATION UNDER
SECTION 243(h) OF THE IMMIGRATION
AND NATIONALITY ACT............................... 5
A. The Immigration Judges applied
the wrong legal standard................ 6
B. Appellants' evidence
entitles them to asylum ................. 7
APPELLANTS' EXCLUSION PROCEEDINGS MUST
BE TERMINATED BECAUSE THEY HAVE ENTERED
THE UNITED STATES. ................................ 10
A. The language of the Act requires
physical presence alone to
establish an "entry", as confirmed
by its legislative history .............. 11
B. The federal courts recognize that
an "entry" is effected by physical
presence accompanied by freedom
from restraint............ ... ... ...... .. 12
C. The Board's "intent to evade"
standard has no basis in law............ 13
D. The Board should declare the
exclusion proceedings to be void
from their inception and direct
that appellants' claim be heard
in deportation proceedings.............. 17
E. The burden of proof on the "entry"
issue should not be on appellants ....... 18
APPELLANTS HAVE BEEN SYSTEMATICALLY DENIED
THE MEANS AND OPPORTUNITY TO EFFECTIVELY
ASSERT THEIR ASYLUM CLAIMS........................ 20
A. The failure of the INS to follow
its own pre-hearing regulations
severely prejudiced appellants'
right to asylum ......................... 21
1. Appellants' pleas for political
asylum should have been honored
by the INS and referred to an
INS District Director.............. 21
2. Appellants' asylum claims have
been prejudiced by the INS's
late and defective service of
the Form 1-122 ..................... 23
3. Appellants were denied
their right to counsel ............. 25
B. The Immigration Judges' improper
conduct and rulings at the hearings
fatally prejudiced appellants'
asylum claims ............................. 26
1. The Immigration Judges' decisions
are invalid because they prejudged
appellants' claims................... 26
2. The Immigration Judges improperly
received into evidence and gave
undue weight to the State
Department's recommendations on
appellants' political asylum
applications............. ........... 28
3. The Immigration Judges' refusal
to hear expert witnesses who
were prepared to testify in
appellants' behalves constitutes
prejudicial error.................. 31
4. The Immigration Judges' failure
to accept appellants' other
proffered evidence constitutes
prejudicial error................... 34
5. The failure to provide comprehen-
sive simultaneous translation
was fundamentally unfair to
appellants ......................... 36
C. The Immigration Judges prevented the
creation of records suitable for
review by this Board .................... 37
1. Distortion of the hearing records
severely prejudices these appeals.. 37
2. Faulty translation and trans-
cription renders the records
inadt -jate and misleading.......... 38
CONCLUSION .......................... ............. 40
This brief is submitted in support of the appeals
from the oral decisions of the Immigration Judges which
ordered various Haitians at the Service Processing Center in
Brooklyn, New York, excluded from the United States. Briefs
have been submitted in the individual appeals, and this
brief addresses issues that are raised in many of the
appeals, and is submitted for the convenience of the Board.
STATEMENT OF FACTS*
Appellants are Haitian nationals who arrived in
South Florida by boat in or about May of 1981. They alighted
from the boats on which they had arrived, some during the
day and some at night, and were present for varying periods
of time on the beach and/or inland, prior to being appre-
hended by the authorities.
Appellants were imprisoned by the Immigration and
Naturalization Service (hereafter "Service" or "INS") for
about one month at Camp Krome in Miami. They were trans-
ferred thereafter on July 18, 1981, to the Service Processing
Center at Brooklyn, New York, where most have remained to
* These factual representations are derived from the records
on the appeals.
Appellants were held for exclusion proceedings.
They obtained pro bono counsel, and filed applications for
political asylum in the United States. Hearings were held
on the claims and counsel made various motions, including
applications challenging subject matter and personal juris-
diction. Depositions and the issuance of subpoenas were
sought. All of the motions and requests, however, were
denied on uniform grounds. The asylum claims were denied by
the Immigration Judges in oral decisions, and these appeals
Appellants are some of over thirty thousand black
Haitian nationals who have escaped to the shores of South
Florida over the past twenty years, "fleeing the most
repressive government in the Americas." Haitian Refugee
Center v. Civiletti, 503 F.Supp. 442, 450 (S.D. Fla. 1980),
aff'd sub nom. Haitian Refugee Center v. Smith, F.2d
(5th Cir., Unit B, 1982). They arrived with the influx
of the "Haitian boat people" who braved eight-hundred-mile
journeys across the open sea in dangerously overcrowded,
small, leaky wooden sailboats. Id. Upon reaching the
shores of the United States, appellants requested political
asylum because of the persecution they had suffered in
Haiti, and on the grounds of a well-founded fear of continued
persecution, imprisonment or death upon return to Haiti.
When appellants landed in Florida, they became
subject to a revised version of the "Haitian Program" which
the Immigration and Naturalization Service established
during the spring and summer of 1978 "for the purpose of
disposing of a backlog of asylum claims filed by Haitian
immigrants." Id., at 510. The Haitian Program was analyzed
in an extensive and meticulously documented opinion by the
Honorable James Lawrence King, United States District Judge
for the Southern District of Florida. Judge King concluded
that the goal of the Haitian Program was "to expel Haitian
asylum applicants as rapidly as possible." Id., at 513.
The policy underlying the program reflected "a predetermina-
tion that none of the Haitians deserve asylum." Id., at
514. The means adopted to implement this program included
"systematic and pervasive" due process violations, as a
result of which "Haitians were unable to adequately present
their claims for asylum, and were deprived of full and fair
consideration of that which they did present." Id., at
Appellants arrived in the United States in 1981,
after Judge King had made these findings concerning the
Haitian Program. Yet they have been the victim of a sys-
tematic deprivation of the means and opportunity to assert
their asylum claims, irrespective of merits, just as surely
as if the Haitian Program (which Judge King declared illegal)
were still in full effect. Indeed, at every point of con-
tact between appellants and the INS -- from the initial
landing in Florida to the preparation of these appeals --
the INS acted to frustrate and impede the assertion of
appellants' asylum claims.
Appellants' asylum applications were denied in
pro forma exclusion proceedings in hearings that did not
afford appellants even a pretense of fundamental fairness.
The Immigration Judges incorrectly applied a "clear prob-
ability" test to appellants' applications, whereas the
Second Circuit has held that asylum may be granted "upon
a showing far short of a 'clear probability' that an
individual will be singled out for persecution." Stevic
v. Sava, Docket Nos. 81-2288, 4162, slip op. at 2500
(2d Cir. May 5, 1982) (emphasis added). See McMullen v.
Immigration and Naturalization Service, 658 F.2d 1312 (9th
The Immigration Judges also gave the appearance
of pre-judging appellants' claims. Improper evidentiary
rulings admitted defective State Department advisory opin-
ions into evidence while appellants' profferred expert
testimony and their relevant and competent documentary
evidence were excluded.
An asylum applicant in exclusion proceedings is
entitled to the rights provided by statute and regulation.*
Many of the violations of which appellants complains are,
in and of themselves, sufficient to require reversal and/or
remand of the decision below. But taken as a whole, the
application of erroneous legal standards and the breaches of
regulations and appellants' statutory protections have so
impaired their capacity fully and fairly to present the
claims for asylum, that the proceedings from which these
appeals are taken must be set aside. Appellants have stated
valid claims for asylum and withholding of deportation.
They should not be returned to Haiti at this time to face
prison, torture or death. The Board should grant the relief
which appellants seek.
APPELLANTS ARE ENTITLED TO ASYLUM AND
TO WITHHOLDING OF DEPORTATION UNDER
SECTION 243(h) OF THE IMMIGRATION AND
An alien merits political asylum in the United
States if he has been persecuted or has a well-founded fear
of persecution upon return to his country of national origin
* The relevant statutes are located in the Immigration and
Nationality Act of 1952 (the "Act") found at 8 U.S.C. $1101
et seg. The pertinent regulations concerning asylum are set
forth at 8 C.F.R. 5108.1 et seq.
on account of race, religion, nationality, membership in a
particular social group, or political opinion. 8 U.S.C.
551101(a)(42), 1158. When an alien In exclusion proceedings
before an immigration judge applies for asylum, his application
"shall also be considered" as a request for "withholding
exclusion or deportation pursuant to section 243(h) of the
Act." 8 C.F.R. 208.3(b). Section 243(h) provides that the
Attorney General "shall not deport or return" any alien to a
country where his life or freedom would be jeopardized by
persecution. 8 U.S.C. S1253(h).'
A. The Immigration Judges applied
the wrong legal standard.
The Immigration Judges below applied the wrong
legal standard when they rejected appellants' asylum claims.
The Judges ruled that appellants must establish a "clear
probability of particularized persecution" should they be
returned to Haiti, citing Matter of Dunar, 14 I & N Dec. 310
(BIA 1973). But neither the standard enunciated by the
Judges, nor Matter of Dunar, are the law anymore. The Second
* The provisions of the Act concerning refugee status and
the withholding of deportation are the national law corre-
latives to the pertinent part of Articles 1 and 33 of the
United Nations Convention and Protocol Relating to the
Status of Refugees, to which the United States became a
party in 1968. 19 U.S.T. 6257; T.I.A.S. No. 2322; 606
U.N.T.S. 268. Appellants request relief under the Protocol
as well as under the relevant United States statutes and
Circuit, after a lengthy discussion of the standard for
withholding deportation In Section 243(h) cases, held that
"asylum may be granted, and, under Section
243(h), deportation must be withheld, upon
a showing far short of a 'clear probability'
that an individual will be singled out for
Stevic v. Sava, Docket Nos. 81-2288, 4162, slip op. at 2500
(2d Cir. May 5, 1982) (emphasis added). The Stevic court
rejected Matter of Dunar, supra, and explicitly stated that
the "'clear probability' test is no longer the applicable
guide for administrative practice under Section 243(h)."
Id., at 2498. Therefore, these cases must be remanded so
that the records can be developed and considered under the
proper legal standard, and the Immigration Judges directed
to apply the proper standard.* See 8 C.F.R. 3.1(d)(2);
Unga v. Immigration and Naturalization Service, 404 F.2d 48
(9th Cir. 1968).
B. Appellants' evidence
entitles them to asylum.
Appellants submitted sufficient evidence below to
establish that they had well-founded fears of persecution
and were thus entitled to asylum and to withholding of
* Stevic v. Sava, supra, was decided after the decision
below, but its interpretation of the law, based on its
application of the Refugee Act of 1980, governs this appeal.
Conditions in Haiti were the subject of a lengthy
and detailed description by Judge King. Haitian Refugee
Center v. Civiletti, supra, 503 F.Supp. at 474-510.* After
hearing dozens of witnesses and receiving thousands of pages
of documentary evidence, Judge King reached a chilling con-
clusion. The claims of Haitians, as a class, he wrote:
"were more political than recognized,
and the uniform rejection of their claims
demonstrates a profound ignorance, if
not an intentional disregard, of the con-
ditions in Haiti. It is beyond dispute
that some Haitians will be subjected to
the brutal treatment and bloody prisons
of Francois Duvalier upon their deporta-
tion. Until the INS can definitely state
which Haitians will be so treated and
which will not, the brutality and blood-
letting is its responsibility."
503 F.Supp. at 510.
The findings of Judge King were essentially the
same as those reported in the documentary evidence which was
received below in these cases. Appellants supplied the
Immigration Judges with reports of the Organization of.
American States, Amnesty International and the Lawyers
Committee for International Human Rights, all of which
describe the political conditions in Haiti in 1980 and 1981
and corroborate appellants' own testimony about their fears
* In affirming Judge King's decision, the Fifth Circuit,
while ruling that the findings regarding conditions in Haiti
were unnecessary to the decision, did not dispute their
of persecution. Appellants also testified on their own
behalves regarding their well-founded fears of persecution.
Other documentary evidence lending further support to
appellants' claims of asylum was incorrectly excluded
from the records by the Immigration Judges. See Infra.
The INS, moreover, offered no evidence to rebut
either Judge King's prior findings or appellants' testimony
and documentary evidence. The failure of the INS to contra-
dict appellants' evidence mandates reversal of the decisions
denying the asylum claims. McMullen v. Immigration and
Naturalization Service, supra. As in McMullen, appellants
here testified in their own behalves and submitted documen-
tary evidence to support their claims. As in McMullen,
"[t]he INS did not submit evidence of its own which indicated
that any of [appellants'] exhibits were inaccurate nor did
it submit independent evidence showing [appellants'] lack of
credibility." 658 F.2d at 1317. Also, as in McMullen, the
Judges did not suggest what further proof they would require
to establish the activities of the Tonton Macoutes (the
Haitian security forces).
Given the vagueness and inadequacy of the decisions
below, the fact that all of the evidence in the records sup-
ports a contrary conclusion, and, above all, because the
wrong legal standards were applied, the decisions denying
asylum and the withholding of deportation must be reversed.
APPELLANTS' EXCLUSIONS PROCEEDINGS MUST
BE TERMINATED BECAUSE THEY HAVE ENTERED
THE UNITED STATES
Appellants made an "entry" into the United States
as that term is defined in the Act. Upon making an "entry,"
they were subject to deportation proceedings under 8 U.S.C.
$1252, not exclusion proceedings under 8 U.S.C. $1226,
irrespective of the legality of the "entry." See, e.g.,
Leng May Ma v. Barber, 357 U.S. 185, 187 (1958); Shaughnessy
v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953);
Beauvil v. Ahrens, 333 F.2d 307, 308 n.1 (5th Cir. 1964);
United States ex rel. Lam Fo Sang v. Esperdy, 210 F.Supp.
786, 790 (S.D.N.Y. 1962); Matter of Estrada-Betancourt,
12 I & N Dec. 191, 193 (BIA 1967). Because Appellants made
an "entry," the exclusion proceeding contested were void
from their inception. Cf., American Fire & Casualty Co.
v. Finn, 341 U.S. 6 (1951); McCorkle v. First Pennsylvania
Banking and Trust Co., 459 F.2d 243 (4th Cir. 1972);
Goldstone v. Payne, 94 F.2d 855 (2d Cir. 1938); 1 Moore's
Federal Practice 10.60 at 631 (2d ed. 1982).
The words of the statute, the intent of Congress,
and the decisions of the federal courts all support an ob-
jective interpretation of "entry" based on the circumstances
surrounding an alien's presence in the United States. They
do not require an alien to prove the subjective element of
"intent to evade," recently introduced by the Board as a
principal criterion for establishing an "entry."
A. The language of the Act requires physical
presence alone to establish an "entry", as
confirmed by its legislative history.
The Act defines "entry" simply as a readily-
"coming of an alien into the
United States, from a foreign
port or place or from an
outlying possession, whether
voluntarily or otherwise..."
8 U.S.C. 1101(a)(13). By this definition, Congress estab-
lished an objective standard -- coming into the United States
-- for "entry" by an alien.
This definition of "entry" was first included in
the 1952 version of the Act. Ch. 47, Title I, S101, 66
Stat. 166. Congress intended the precise formulation of
"entry" which appears in that Act:
"Section 101(a)(13) [8 U.S.C.
1101(a)(13)] defines the term
'entry.'. [T]he term is not
precisely defined in the present
law. Normally an entry occurs
when the alien crosses the border
of the United States and makes a
physical entry, and the question
of whether an entry has been made
is susceptible of a precise deter-
H.R. Rep. No. 1365, 82d Cong,, 2d Sess., reprinted in 1952
U.S. Code Cong. & Ad. News 1683 (emphasis added).* This
precise, geographical definition.of "entry" has been untouched
by Congress over the course of thirteen amendments during the
last thirty years. See 8 U.S.C.A. 51101.
B. The federal courts recognize that an
"entry" is effected by physical presence
accompanied by freedom from restraint.
The federal courts have abided by the plain meaning
of the definition of "entry" and have overwhelmingly held
that an "entry" into the United States is effected when an
alien is physically present in this country and is free from
official restraint. United States v. Kavazanjian, 623 F.2d
730, 736 (1st Cir. 1980); United States v. Oscar, 496 F.2d
492, 493-94 (9th Cir. 1974); United States v. Vasilatos, 209
F.2d 195, 197 (3d Cir. 1954); United States v. Anaya, 509
F.Supp. 289, 303 (S.D. Fla. 1980). See also United States
v. Martin-Plascencia, 532 F.2d 1316, 1318 (9th Cir.) cert.
denied, 429 U.S. 894 (1976) ("surreptitious free-will entry"
fifty yards into the United States at a place other than as
designated by immigration officers is an illegal "entry").
Congress also modified the definition of "entry" to
except the re-entry of certain resident aliens who either
left the United States voluntarily or who never intended to
leave. Id., at 1684. Congressional concern for re-entering
resident-aliens has no bearing on the issues here.
Only where an alien has been paroled under 8 U.S.C.
$1182(d)(5) can he be physically at large in the United
States'without having effected an "entry." See Vitale v.
Immigration &'Naturalization Service, 463 F.2d 579, 582 (7th
Cir. 1972); Klapholz v. Esperdy, 201 F.Supp. 294, 296-97
(S.D.N.Y. 1961), aff'd, 302 F.2d 928 (2d Cir.), cert. denied,
371 U.S. 891 (1962).
The message of both Congress and the courts is
clear: an alien who has actually evaded inspection and who
is physically in the United States, and not either imprisoned
or "enlarged" on parole, has made an "entry" into the United
States. Once there has been an "entry," the alien is subject
to deportation proceedings. Leng May Ma v. Barber, supra;
Shaughnessy v. United States ex rel. Mezei, supra; Beauvil v.
Ahrens, supra; Matter of Estrada-Betancourt, supra.
C. The Board's "intent to evade"
standard has no basis in law.
Despite the clear federal court decisions, and in
the absence of any Congressional mandate, the Board has
introduced a subjective element into the definition of
"entry." It held in Matter of Phelisna, A26-006-147 (1982)
that "actual and intentional evasion of inspection" is a
primary element of an "entry," which is established only
when an alien proves:
"(1) a crossing into the territo-
rial limits of the United States,
I.e. physical presence plus (2) an
inspection and admission by an
immigration officer [citations
omitted]; or (3) actual and inten-
tional evasion of inspection at the
nearest inspection point, Cheng v.
INS, 534- F.2d 1018 (2 Cir. 1976);
U.S. ex rel. Giacone v. Corsi, 64
F.2d 18 (2 Cir. 1933); Morini v.
United States, 21 F.2d 1004 (9 Cir.
1927), cert. denied, 276 U.S. 623
(1928); Lew Mo v. United States,
237 F.50 (Cir. 1916); Matter of
Estrada-Betancourt, 12 I&N Dec. 191
(BIA 1967); coupled with (4) freedom
from restraint [citations omitted]."
(emphasis added). Essentially identical formulations of
this definition of "entry," including the requirement of
"intentional" evasion of inspection, have appeared in other
recent BIA decisions. See Matter of Pierre, 14 I & N Dec.
467 (BIA 1973) (identical formulation); Matter of Lin, Int.
Dec. 2900 (BIA 1982).
But the authority relied on by the BIA for includ-
ing a subjective "intent" element in determining "entry"
provides no support for this Board-invented rule.
In Cheng v. INS, 534 F.2d 1018 (2d Cir. 1976), the
parties agreed to apply the Board's formulation of "entry" as
set forth in Matter of Pierre, supra. The Court never passed
on the issue of entry; it expressly assumed the correctness
of the Board's definition arguendo. 534 F.2d at 1019. Cheng
The three other cases relied on by the Board --
United States ex rel. Giacone v. Corsi, supra; Morini v.
United States, supra; and Lew Moy v. United States, supra --
were all decided long before the present definition of
"entry" first appeared in the 1952 Act:
[S]ince [those cases] interpreted
a different statute, [they do] not
govern our interpretation of the
Immigration and Nationality Act of
Cheng v. INS, supra, 534 F.2d at 1019.
Corsi and Morini, supra, are both distinguishable
"re-entry" cases in which aliens who had resided in the
United States for twenty years or more made short visits to
Canada or Mexico and were apprehended after making an illegal
"entry" while returning to the United States. In an effort
to avoid the harsh and seemingly disproportionate punishment
of deportation in such cases, the courts sometimes expressed
a willingness to prevent deportation where the alien could
show that he had not entered because he was on his way to
present himself to the nearest immigration inspection point.
See, e.g., Thack v. Zubrick, 51 F.2d 634 (6th Cir. 1931).*
* Lew Moy v. United States, supra, also relied on by the
BIA, is not an entry case at all. In Lew Moy, defendants
were indicted for a two-part offense which included both
entry and subsequent concealment. 237 F.Supp. at 52. The
BIA has itself recognized that Lew Moy is not applicable
to the issue of "entry." See Matter of Estrada-Betancourt,
12 I&N Dec. 191, 196 (BIA 1967).
The element of "intent" upon which those cases
turned had its origins as a defense, in criminal and deporta-
tion proceedings, available to an alien who is in the country
(and otherwise,deportable) to show that he was proceeding
to an INS inspection station, and that his "entry" was
thus legal, when he was intercepted. The objective standard
for an "entry" urged here does not change that standard or
detract from that defense.
But the Board has now somehow transmuted holdings
that were applied for the benefit of an alien seeking to
avoid deportation or criminal sanctions, and that permitted
an alien to prove that he did intend to seek out immigration
authorities, into a rule that would require an alien attempt-
ing to establish an "entry" to prove that he did not intend
to proceed to an INS inspection station. This constitutes
an impermissible indulgence in alchemy. See e.g., Stevic v.
Sava, supra, 678 F.2d at 410; Plasencia v. Sureck, 637 F.2d
1286 (9th Cir. 1980) app. pndg., 451 U.S. 940 (1982).
In sum, the Board's insistence that an alien prove
."intent to avoid inspection" is contrary to the plain mean-
ing of the statutory definition of "entry," contrary to
express legislative intent that entry be susceptible to
"precise determination," and contrary to the overwhelming
teachings of the federal courts. Physical presence and
freedom from restraint are sufficient to establish an
D. The Board should declare the exclusion
proceedings to be void from their
inception and direct that appellants'
claims be heard in deportation proceedings.
Appellants have made an "entry" into this country
under any standard, and they are thus subject to deportation
proceedings, not exclusion proceedings. The exclusion pro-
ceedings should be declared void ab initio, and appellants
should have their asylum claims heard and determined in
Appellants' claim that the INS placed them in the
wrong proceedings is analogous to an objection to subject
matter jurisdiction. Should the Board allow the exclusion
proceeding to stand, then it will be sending the message
that the Service can arbitrarily ignore the statutory scheme
whenever asylum is an issue. Like any other executive
agency, the INS is bound by the statutes and the rule of
law. See, e.g., Schaffer Transportation Co. v. United
States 355 U.S. 83 (1957); Sloan v. United States Department
of Agriculture 335 F. Supp. 816 (W.D. Wash. 1971). The INS
should be directed to comply with the Congressional mandate
which requires that an alien who has made an "entry" into
this country be subject to deportation proceedings.
E. The burden of proof on the "entry"
issue should not be on appellants.
The Board was wrong when it insisted that the
alien in Matter of Phelisna, supra, had the burden of estab-
lishing that exclusion proceedings were improper. In fact,
the Act is silent as to who must establish the propriety of
exclusion proceedings. The propriety of those proceedings,
which turns upon the "entry" issue, must be determined
without placing the burden on appellants.
The Board explicitly relied on 8 U.S.C. S1361 when
it ruled in Phelisna that "an applicant in exclusion proceed-
ings has the burden of establishing that exclusion proceed-
ings are improper." That reliance on Section 1361 is
misplaced. Section 1361 allocates the burden of proof on
specified grounds within the context of a proper proceeding;
it does not impose a burden on an alien to establish either
an "entry"* or the propriety of any particular kind of
proceeding, be it an exclusion or a deportation proceeding.
The plain words of Section 1361 state that an
alien must establish that he is not subject to exclusion
"under any provision of this chapter." 8 U.S.C. S1361. Many
* The Section 1361 requirement that an alien prove the
time, place and manner of entry is limited by its terms to
a deportation proceeding, and then only where illegal entry
is an issue. See Iran v. INS 656 F.2d 469 (9th Cir. 1961).
appellants have admitted non-possession of threshold entry
documents. That issue, and the associated burden of proof,
are irrelevant here. The only relevant issue -- on which
the statute is silent -- is whether exclusion proceedings
themselves are proper.
The Board itself has recognized that a decision
about the propriety of exclusion proceedings precedes any
allocation of the burden of proof:
"Before we consider the points
raised by the respondent on appeal,
it is necessary to resolve the
initial question of the propriety
of the exclusion proceedings in
Matter of Salazar, Int. Dec. 2741 (BIA 1979) at 2-3. In
Salazar, the BIA first determined that exclusion proceedings
were proper without reference to Section 1361; only then did
the Board impose the burden (as mandated by Section 1361) on
the applicant to prove non-excludability.
By contrast, in Phelisna, the Board confused the
issue of the propriety of the exclusion proceedings with the
issue of excludability. The burden of Section 1361 applies
only to the issue of excludability. The Board erred when it
imposed on the alien the burden of establishing the impropri-
ety of the proceedings by proving "entry," and it would err
to impose a similar burden on appellants.
Appellants have met any burden which they may have
had at the outset to go forward with the proof which shows
an "entry." The ultimate burden- of persuasion in these
cases must rest with the INS, which is the custodian of most
of the evidence relevant to the "entry" issue (other than
the alien's testimony). The cases should be remanded for
hearings under the appropriate legal standards.
APPELLANTS HAVE BEEN SYSTEMATICALLY DENIED
THE MEANS AND OPPORTUNITY TO EFFECTIVELY
ASSERT THEIR ASYLUM CLAIMS
At every point of contact between appellants and
the INS, the INS acted to frustrate and impede the assertion
of appellants' asylum claims. These inhibitory measures --
before, during and after the hearings below -- were so pre-
judicial to appellants' claims as to amount to a denial
of the fundamental fairness to which they were entitled.
Some individual violations of appellants' rights, standing
alone, are sufficient to require reversal of the denials of
the asylum claims. Cumulatively, there is no doubt: the
pattern of violations unambiguously mandates reversal of
the denials of asylum and remand to the Immigration Judges.
A. The failure of the INS to follow its
own pre-hearing regulations severely
prejudiced appellants' right to asylum.
1. Appellants' pleas for political asylum
should have been honored by the INS and
referred to an INS District Director.
Orally, as well as by letters to the New York and
Miami district directors, appellants requested asylum before
being placed under exclusion proceedings. The INS ignored
those requests and thereby denied appellants their right to
an initial determination of their asylum claims before an
INS district director. The regulations provide:
"Jurisdiction over any request for asylum
made by an applicant for admission at a
port of entry shall lie with the district
director having jurisdiction over that port of
8 C.F.R. 208.1. This regulation confers jurisdiction for
receiving and acting upon "any request for asylum" exclu-
sively on the district director of the INS where, as here,
the requests were made before the hearings opened on the
merits of the asylum claims. 8 C.F.R. S5208.1; 236.2. It
is the "request" for asylum, and not any other act such as
the completion of an 1-589 form, that vests jurisdiction in
the district director.
Appellants orally and by letter asked for asylum
prior to being placed under exclusion proceedings. These
constituted "requests for asylum" under 8 C.F.R. $208.1 and
vested jurisdiction in the district director. Section 108.1
of the Service's Operations Instructions demonstrate that a
form 1-589 asylum application form is but one method by
which to "request" asylum. The Board, moreover, has not
hesitated to enforce the allocation of jurisdiction between
a district director and an immigration judge under the regu-
lations. Matter of Chumpitazi, 16 I & N Dec. 629 (BIA 1978);
Matter of Exantus and Pierre, 16 I & N Dec. 382 (BIA 1977).
The district director should have adjudicated the asylum
The failure of the district director to exercise
jurisdiction (mandated by INS' own regulations) deprived
appellants of the district director's separate consideration
of, and decision on, the claims. This would have provided
appellants with an additional opportunity to present, and to
obtain a ruling on, those claims. In the event of denials,
immigration judges would have had the benefit (as intended
by 8 C.F.R. S236.4) of the >district director's reasoning, as
well as the responsibility to entertain renewed applications
if circumstances warranted. The Board should vacate the
decisions below to permit appellants to present their claims
for asylum to the district director in the first instance as
8 C.F.R. 5208.1 requires.
2. Appellants' asylum claims have been
prejudiced by the INS' late and
defective service of the Forms 1-122.
The proceedings to exclude appellants were not
commenced properly: the INS failed to give appellants
timely and adequate notice of the charges lodged against
them. 8 C.F.R. $235.6 requires that service of the 1-122
"Notice to Alien Detained for Hearing" be made immediately,
that it be read to a non-English speaking alien through an
interpreter, that it be explained to him, and that he be
advised of his right to counsel. Appellants were deprived
of fundamental due process when the Service failed to follow
these mandates of its own regulations.
The INS did not issue forms 1-122 to appellants
until long after they had arrived in the United States, even
though the INS detained them from the moment of their arrest
until the I-122s were served (and continues to detain many of
them to this date). The contested 1-122 forms were tardily
and incompletely prepared. When they were finally served,
the INS failed to explain to appellants the nature and
implications of, or the actions which they should take in
response to, the forms. The defective "notices" did not
even inform appellants of the date, time and place for the
hearings, in contravention of the basic requirements of due
process. Cf. 8 U.S.C. S1252(b)(1).
The late and defective service of the forms 1-122
greatly prejudiced appellants' preparation and presentation
of their asylum applications by leaving them unaware of the
charges that were to be lodged against them during a particu-
larly critical period of time. Appellants were not even
advised that the INS intended to exclude them from, rather
than settle them in, the United States, until after they
reached New York many weeks later. By the time they under-
stood their peril, potential witnesses -- such as fellow
refugees who could have corroborated their stories -- had
long since been scattered to various detention centers
throughout the United States. Appellants were not apprised
of the advisability of building records to substantiate
their asylum claims by obtaining affidavits from, and ascer-
taining the location of, pertinent witnesses.
The late and defective service of the forms 1-122
is but another manifestation of the INS' discriminatory
policy of detaining and mass-processing Haitian asylum
applicants. In its zeal to discourage further Haitian boat
people from arriving in this country, the INS again failed
to abide by its own procedures and minimal requirements.
"It is well settled that an Executive
Agency of the Government is bound by its
own regulations, which have the force and
effect of law, and the failure of an
agency to follow its regulations renders
Its decision invalid."
Gulf States Manufacturers, Inc. v. National Labor Relations
Board, 579 F.2d 1298, 1308 (5th Cir. 1978). See also
Morton v. Ruiz, 415 U.S. 199, 235 (1973).
Thus, from the outset, these derelictions by the
INS set a pattern of unfairness and procedural infirmity
that has continued throughout these proceedings. The Board
should remedy this and other procedural deficiencies by
directing that the safeguards of 8 C.F.R. $236.2 be complied
with in the proceedings that are conducted upon remand.
3. Appellants were denied
their right to counsel.
The INS failed to inform appellants in a proper
and timely manner of their right to counsel. Appellants did
not have counsel while they were initially detained at Camp
Krome, Miami, Florida or for approximately two months
thereafter. Their cases were seriously prejudiced because
they were not represented by an attorney during that time.
They lost the opportunity to press their political asylum
applications before the district director in Miami, and to
secure witnesses' statements that could have corroborated
both the events in Haiti (on which their asylum applications
are based) and many of the procedural deficiencies on which
these appeals are premised.
Under INS regulations, an alien detained for Inquiry
before an immigration judge
S"... shall be advised of his right to
representation by counsel of his choice
at no'expense to the Government, and of
the availability of free legal services
8 C.F.R. S235.6. Fairness, and INS's own regulations, re-
quired the Service to insure that appellants were aware of
the availability of legal assistance and that they understood
their need for counsel. The INS failed to fulfill this obli-
gation; appellants are therefore entitled to new hearings.
Partible v. Immigration and Naturalization Service, 600 F.2d
1094, 1096 (5th Cir. 1979).
B. The Immigration Judges' conduct and
improper rulings at the hearings fatally
prejudiced appellants' asylum claims.
1. The Immigration Judges' decisions
are invalid because they prejudged
The Immigration Judges' conduct in these cases
raises the appearance of prejudgment. The Judges' eviden-
tiary rulings almost invariably crippled appellants' ability
to fully present their asylum claims. The Judges never
deviated from the pattern of the other Haitian exclusion
proceedings over which they presided: they "decided" appel-
lants' asylum applications only seconds after the close of
the record, even though scores of pages of detailed docu-
mentary material had just been marked and received into
evidence. Fair consideration, based on all of the evidence,
was not humanly possible in those few seconds. Perhaps most
telling was the fact that a part of the decisions in these
cases was read directly from a script which had apparently
been prepared even before the records closed.
Prejudgment of appellant's case requires reversal
of the result below. See Matter of Joseph, 13 I & N Dec. 70
(BIA 1968), in which the Board criticized an immigration
judge for improperly restricting an alien's opportunity to
establish a claim under Section 243(h) of the Act. Determi-
nation of appellants' cases may not be based on the Immigra-
tion Judges' personal views and the strategic considerations
and directives of the INS:
"The determination of [a) special inquiry
officer shall be based only on the evidence
produced at the inquiry."
8 U.S.C. 1226(a).
The standard for invalidating a result which
a hearing officer has prejudged is "whether 'a disinterested
observer may conclude that [the hearer] has in some measure
adjudged the facts as well as the law of a particular case
in advance of hearing it.'" Cinderella Career and Finishing
Schools, Inc. v. Federal Trade Commission, 425 F.2d 583, 591
(D.C. Cir. 1970), citing Gilligan Will & Co. v. Securities
and Exchange Commission, 267 F.2d 461, 469 (2d Cir.), cert.
denied, 361 U.S. 896 (1959). See also United States ex rel.
Accardi v. Shaughnessy, 347 U.S. 260 (1954).
Administrative adjudicatory hearings "must be atten-
ded not only with every element of fairness but with the very
appearance of complete fairness." Cinderella Career and
Finishing Schools, supra, 425 F.2d at 591. Here, a federal
judge in another jurisdiction has found that there existed a
nationally-directed INS plan to expel all Haitians after
rejecting their asylum applications. Haitian Refugee Center
v. Civiletti, supra, 503 F.Supp. at 514. The Immigration
Judges' conduct raises a substantial appearance that they
continued this INS policy and prejudged appellants' cases.
That error can be corrected only by new hearings without a
2. The Immigration Judges improperly
received into evidence and gave
undue weight to the State Department
recommendations on appellants'
political asylum applications.
The letters received from the Bureau of Human Rights
and Humanitarian Affairs ("BHRHA") of the Department of State
in response to appellants' asylum applications did not give any
information or meaningful guidance to the Immigration Judges.
Admitting those letters into evidence raised the substantial
risk that it would be accorded undue significance.
The regulations which provide for an advisory
opinion by the State Department contemplate a thorough and
meaningful review of asylum applications. But here, the
advisory opinions were mass-produced form letters in which
only the applicants' name, an identifying number, and country
were individually added. The form stated that
"[I]t is our view that the subject has failed
to establish a well-founded fear of being
persecuted upon return to HAITI within the
meaning of the United Nations Protocol Relating
to the Status of Refugees."
This pro forma letter makes a mockery of the directive in
8 C.F.R. 208.10(b) that "[t]he BHRHA opinion...shall be
made part of the record, and the applicant given an oppor-
tunity to inspect, explain, and rebut it." Appellants were
unable to "explain" or "rebut" the advisory opinions because
they failed to state any grounds for the recommendation that
their asylum claims be rejected.
The Court of Appeals for the Second Circuit
was extremely critical of a State Department letter which
did not "reveal, so far as feasible, the basis for the views
expressed." Zamora v. Immigration and Naturalization Service,
534 F.2d 1055 (2d Cir. 1976).
"The difficulty with introducing [form] letters
into hearings under 243(h) is that they do both
too little and too much. The ones in these cases
and in others that we have seen give little
or nothing in the way of useful information
about conditions in the foreign country. What
they do is to recommend how the district director
should decide the particular petitioner's request
for asylum. When these letters are introduced
Into the $243(h) inquiry, they present [the State
Department's] conclusion as to an adjudicative
fact based, in the present examples, solely on
the alien's own statements and phrased in the very
language of the 243(h) standard... Particularly in
light of the difficulties confronting the alien in
proving his case, there is a risk that such
communications will carry a weight they do not
534 F.2d at 1062-63. The court then advised the INS and the
State Department "to conform their practices in the future to
the views here expressed." 534 F.2d at 1063.
The Fifth Circuit has disallowed summary and
conclusory findings in a related context. In Coriolan v.
Immigration and Naturalization Service, 559 F.2d 993 (5th Cir.
1977), the Court reversed and remanded the denial of an
asylum claim by the Board of Immigration Appeals, ruling in
part that the Board had made inadequate, conclusory findings.
"The Board's decision declared only that the.
aliens 'had failed to show a well-founded fear
that their lives or freedom would be threatened in
Haiti on account of their race, religion, nation-
ality, membership in a particular social group or
political opinion.' This conclusion obviously
gives us no indication of whether it rests upon a
credibility evaluation, a decision that the
petitioners' testimony--even if credited--reveals
no reason to fear persecution, or a construction
of law which excludes the penalties petitioners
fear from the ambit of the term 'persecution.'"
559 F.2d at 997. The BHRHA form letters presented in appel-
lants' cases were prepared either In total disregard, or in
ignorance of the requirements set by reviewing courts.
Admission of the State Department's unsupported
opinions was especially prejudicial because appellants were
deprived by the Judges of their right to depose or cross-
examine those responsible for the letters. An alien is
entitled to cross-examine adversary witnesses. 8 C.F.R.
5236.2(a); Matter of Martinez, Int. Dec. 2700 (BIA 1979).
He is also entitled, on application to a judge, to depose
witnesses who cannot attend the hearing. 8 C.F.R. 5236.2(d),
242.14(e). Applicants were denied an opportunity to depose
or cross-examine the author of the form letters. Under
these circumstances, fundamental fairness requires a remand
for new hearings in which only letters fairly stating the
basis for their recommendations are admitted, and which
allow appellants the opportunity, if necessary, to explain
and rebut (by cross examination and discovery) the letters'
findings and conclusions.
3. The Immigration Judges' refusal
to hear expert witnesses who were
prepared to testify in appellants'
behalves constitutes prejudicial error.
An alien in an exclusion proceeding is entitled
to introduce evidence in his own behalf. 8 C.F.R. 5236.2(a).
Reversible error is committed where an alien is denied the
opportunity to present his witnesses. For example, in
Kwock Jan Fat v. White, 253 U.S.-454, 463-64 (1920), a writ
of habeas corpus was granted because the testimony of three
of the petitioners' witnesses was not recorded and was not
before either the Commissioner of Immigration or the Secre-
tary of Labor at the time of their respective decisions.
See also Gung You v. Nable, 34 F.2d 848, 851 (9th Cir. 1929).
When the Immigration Judges refused to allow appellants to
present their expert witnesses, appellants' right to funda-
mentally fair hearings was denied.
Expert witnesses play a particularly important
role in an asylum case. Evidence of political conditions
within a country is admissible to prove a claim of political
persecution. Expert evidence can provide background infor-
mation about the political conditions in the applicant's
country which is necessary for an accurate evaluation of a
claim of political persecution. Coriolan v. Immigration and
Naturalization Service, 559 F.2d 993, 1002-04 (5th Cir.
In Zamora v. Immigration and Naturalization
Service, supra, the Second Circuit acknowledged the desir-
ability of having an expert witness, noting that onlyny
rarely will an applicant be able to locate and enlist the
services of an expert on conditions in the foreign coun-
try...". 534 F.2d at 1062. Where, as here, witnesses
were located, but were not allowed to appear, the prejudice
Several circuits have admitted expert testimony
offered on behalf of aliens claiming political persecution.
United States ex rel. Dolenz v. Shaughnessy, 200 F.2d 288,
290 (2d Cir. 1952), cert. denied, 345 U.S. 928 (1953); Berdo
v. Immigration and Naturalization Service, 432 F.2d 824 (6th
Cir. 1970); Shkukani v. Immigration and Naturalization
Service, 435 F.2d 1378, 1379 (8th Cir.), cert. denied, 403
U.S. 920 (1971). None of these decisions suggested that the
admissibility of the expert's testimony depended in any
manner on his firsthand knowledge of either the particular,
personal events described by the political asylum applicant,
or the then-current political conditions in the applicant's
country of origin.
The Second Circuit has recently held that a proper
evaluation of whether an alien has a well-founded fear of
persecution involves "subjective as well as objective elements,"
including "conditions in the country of origin and "experi-
ences of others". Stevic v. Sava, Docket Nos. 81-2288, 4162,
slip op. at 2492 (2d Cir. May 5, 1982). It is just such
evidence that an expert is best suited to provide.
Appellants here proffered expert testimony which
was material, competent, and relevant to their asylum claims
under the Stevic standard. The-Immigration Judges prejudiced
appellants' right to prove their asylum claims by refusing
to allow appellants' experts to testify as to the conditions
in Haiti which must be understood in order to evaluate the
claims fairly. The decisions below must therefore be vacated,
and new hearings ordered to allow appellants to present all
4. The Immigration Judges' failure to
accept appellants' other proffered
evidence constitutes prejudicial error.
INS regulations require an immigration judge to
allow an alien in an exclusion hearing to present all rele-
vant evidence in his own behalf. The regulations command
that "[t]he Immigration Judge shall...advise [the alien] that
he will have a reasonable opportunity to present evidence in
his own behalf..." 8 C.F.R. $236.2(a). Furthermore, the
regulations require the judge to "receive and adduce material
and relevant evidence..." 8 C.F.R. $236.2(b).
Because in asylum cases an immigration judge "needs
all the help he can get" concerning conditions in the country
of prospective deportation, Zamora v. Immigration and
Naturalization Service, supra, 534 F.2d at 1062, the standard ,
is whether the evidence is relevant, not whether the evidence
is primary or secondary. The BIA was cautioned by the Fifth
Circuit for affirming a decision which denied admission of
relevant evidence in the form of an Amnesty International
Report on Haiti. Coriolan v. Immigration and Naturalization
Service, 559 F.2d 993, 1002-04 (5th Cir. 1977). The Coriolan
court declared that "the opinion of Amnesty International is
conclusive neither upon this Court nor upon the Immigration
and Naturalization Service. But the evaluation in this
report is certainly relevant." 559 F.2d at 1002-03.
Particularly relevant were the findings of fact by
Judge King in Haitian Refugee Center v. Civiletti, supra,
503 F.Supp. at 474-51. Judge King heard dozens of witnesses
testify, upon direct and cross-examination, about political
repression in Haiti. His findings of fact (which the INS
did not rebut below in these cases) are directly material to
appellants' asylum applications. Nonetheless, the Immigra-
tion Judges refused to consider them.*
There was no justification for rejecting this
relevant evidence in these cases. Similar evidence was
admitted in Zamora v. Immigration and Naturalization Service,
supra; McMullen v. Immigration and Naturalization Service,
* The Fifth Circuit, in affirming Judge King's decision,
recognized that, while the findings were not necessary to
the decision, they are admissible to substantiate an asylum
658 F.2d 1312 (9th Cir. 1981); and Berdo v. Immigration
and Naturalization Service, 1432 F.2d 824 (6th Cir. 1970).
Such evidence has a direct bearing on the issue of whether
the asylum applicant has a well-founded fear of perse-
cution. Stevic v. Sava, supra, slip op. at 2492. The
proper relief for this prejudicial error is remand for a
new, complete hearings, where such evidence will be admitted
5. The failure to provide comprehensive
simultaneous translation was
fundamentally unfair to appellants.
Only severely circumscribed simultaneous translation
was provided by the INS at the hearings. Nothing but direct
questions to the appellants, and their responsive testimony,
was translated. Appellants were thereby effectively denied
the right to hear adverse testimony, to understand rulings from
the bench, or to follow arguments of counsel. As a result,
appellants were unable to respond to and correct inaccurate or
misleading statements prejudicial to their asylum claims.
The absence of an interpreter "is contrary to the
aim of our law to provide fundamental fairness in administra-
tive proceedings." Niarchos v. Immigration and Naturalization
Service, 393 F.2d 509, 511 (7th Cir. 1968). Here, the provi-
sion by the INS of interpreters who were not permitted to
translate the bulk of the proceedings at the hearings was
not sufficient to afford fundamental fairness to appellants.
Just as it is clearly "not within the Service's discretion
to conduct an.official inquiry, without an interpreter, in
a language the petitioner can neither understand nor speak,"
id., so also is it an abuse of discretion to selectively
translate only limited portions of the hearing. See United
States ex rel. Negron v. New York, 434 F.2d 386 (2d Cir.
1970). This case should be remanded for a hearings in which
the entire proceedings are translated for appellants' benefit.
C. The Immigration Judges prevented the creation
of records suitable for review by the Board.
1. Distortion of the hearing records
severely prejudices these appeals.
Appellants' right to appeal has been severely prej-
udiced by the inadequacy of the records resulting from the
Immigration Judges' continued contravention of the regulatory
requirement to keep a verbatim record of proceedings.
8 C.F.R. 236.2(e).
Throughout presentation of appellants' cases below,
the Judges' exclusive control of the tape recording device
resulted in the creation of records which did not fully
reflect the proceedings. The Judges were able, and did in
fact, turn the tape recorders off and, at their own whim,
deleted from the records whatever comments by any of the
participants at the hearings -- Including appellants and
their counsel. -- which they preferred not to have appear on
the records of the proceedings.
This abuse provided fatally defective records, of
little use to this Board or any other forum. Moreover, this
prevents appellants from having a full and meaningful review
of their cases. See Goldberg v. Kelly, 397 U.S. 254, 301
(1970); Kwock Jan Fat v. White, 253 U.S. 454, 464 (1920).
In addition, various unexplained gaps appeared in
the tapes while in the custody of the INS. Whatever reason
lies behind these lacunae, they demonstrate that the hearings
were not "recorded verbatim" as mandated by C.F.R. 1236.2(e)
Ponce v. McGrath, 91 F.Supp. 23, 25 (S.D. Cal. 1950). These
cases must be remanded with instructions to permit the
development of full and fair records suitable for review.
See Matter of Charles, Int. Dec. 2591 (BIA 1977).
2. Faulty translation and transcription
renders the records inadequate and
Faulty translation by the Service interpreters at
the hearings resulted in flawed records -- records contain-
ing not the words of the appellants and other witnesses, but
rather often unrecognizable renditions by the interpreters.
These translation errors were compounded by clerical errors
in the transcription of the already-misleading tape. The
resulting doubly-defective records prejudice appellants'
opportunity to fair appeals based on verbatim records.
8 C.F.R. 5236.2(e).
Appellants were accompanied by their own inter-
preters at the hearings. Their interpreters detected faulty
translations by the INS interpreters on numerous occasions.
These mistranslations were brought to the Immigration Judges'
attention by appellants' counsel, but the records often
stood uncorrected and are therefore riddled with errors.
The INS must provide an accurate translation of an
alien's testimony to ensure fundamental fairness of an immi-
gration proceeding. As one court put it, the right to a
hearing "is a vain thing if the alien is not understood."
Gonzales v. Zurbrick, 45 F.2d 934, 937 (6th Cir. 1930).
Accordingly, "it is not unreasonable to expect that, where
the services of an interpreter are needed, his capability
should be unquestioned." Id.; Niarchos v. Immigration and
Naturalization Service, 393 F.2d 509, 511 (7th Cir. 1968).
It is especially important that the translation of
an applicant's testimony be free from doubt in a political
asylum hearing where "the stakes are high" for an alien
facing deportation if his claim is not understood. Kovac
v. Immigration and Naturalization Service, 407 F.2d 102,
108 (9th-Cir. 1969); Leung v. Immigration and Naturalization
Service, 531 F..2d 166, 168 (3d Cir. 1976).
The inaccurate and misleading translation of the
appellants' testimony rendered their presence at the hear-
ing a nullity. Cf. United States ex rel. Negron v. State
of New York, 434 F.2d 386 (2d Cir. 1970) (Failure to pro-
vide a translator when required is the equivalent of hold-
ing a hearing without the presence of the subject). This
is especially true where the interpreters demonstrated a
bias against the appellants' asylum claims. At a minimum,
this prejudicial violation of the 8 C.F.R. S236.2(e)
requirement of verbatim records entitles appellants to new
hearings, with the services of competent and unbiased inter-
For the reasons set forth above, appellants'
asylum applications should be granted and deportation should
be withheld under Section 243(h) of the Act. Alternatively,
the decisions below should be set aside, and the cases
remanded for hearings before different immigration judges
in which appellants can fairly present evidence in their
behalf and receive impartial decisions based only on consid-
eration of the records.
Dated: -September 7, 1982
New York, New York
Arthur C. Helton, Esquire
Lawyers Committee for
International Human Rights
36 West 44th Street
New York, New York 10036
* The assistance of the law firm of Kronish, Lieb, Shainswit,
Weiner & Hellman in New York City in the preparation of this
brief is gratefully acknowledged.