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. Frankl
WARD OF DIRECTORS
Jo R Backer Robert L Bernsein Tom A. Bernstein
Michael I Divis Drew S Days. U Adrian W DeWmd NorAnnr Dorsen Fr. Robert F. Drinan Bruce J. Ennis Benjamin Own R. Scot Greathead Deborah K Greenberg
Lani Guinier Lous Menkin Etizabeth Hoft-iman Wgi A r.yel' Stanley Mailman
Banino D Parker. Jr.
Bruce Rabb Barb~ara A. Schau Orville H. SctieU Steven R Shapiro Jack Sheinkman Jerxme J. Shestack Rose Styron Tefford Taylor
ADViOfr BO,,ARD Ken Bol
Jose W. Dsolmo Desmond Fernando
Gerard Gourgue Stephanie Gran
Xemr-an Monte alegre
Sr d a Popovic Waere Tamapolsky
T hongbai Thongpo
J OH. Tho.n Iaren N. Tried
TRAINING PROGRAM ON THE
Mk:ael H. Posner MXECUaTWIE 0M FCl01t Arthur C Helon LTMeAL AS~ PSO*CTa Diane F Orentlkher
DAU' ftY C1M0
REPRESENTATION OF HAITIAN ASYLUM APPLICANTS
Co-Sponsored By The Lawyers Committee for International Human Rights and the
Immigration and Nationality Law Committee of the
Association of the Bar of the City of New York
THE LAWYERS COM MITTEE FOR INTERNATIONAL HUMAN RIGHTS 036 WEST 4 STREET. rK-w YOR. NY 1o3, r212) 921-2160
RF.LYT : 07120 STRE.ET. SEWA SONC-TO, DC. 20003, (02) 546-5315
TRAINING PROGRAM AGENDA
I. Overvie% 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
21. Introduction of local legal coordinators and
su-ary description of the training session,
including the arrangements for a limited appearance
and presentation by representatives of the
Immigration and Naturalization Service (10 minutes)
II. Representation of Haitian asylum applicants
B. Conditions in Haiti
C. The substantive and procedural law of
Training Session Agenda page two
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 page three
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
Mevn E Franel 30C Park Avenue iNew York, P4A York 1 2
EXECUTIVE DIRECToR Michelt H. P mner
jOA)0D OF DIRECTORS
eurven R Berman Rcber! L Bemseln G Ltkongws Binsia lice Bushey hierell E Cork, Jr. 0111Isey Cark Wayne D Cohins .ck David whicrmel I Davis P~ian W DeWind Norman Doreen Fr Roben F Drinmn fruce J Ennis Saramin Gtvi. N Scotl Gresineac Deborah Greenberg Lou.is Nen~in iubeth Holman Vwiginia A Leary Bruce Rabb Barbara A Scatz Orvile H4 sc 'el JIVOrM J S ,staCk JAmes R Skenai flse Styror Tefforo Taylor
Interested Lawyers and Legal Organizations
Arthur C. Helton Director
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 20OD--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., Cas-e-No. 8l-1260-CIV-EPS (S.D. Fla. l92J7Ti----n 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 .[thej 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 Zrook, New York; La Tuna, Big Springs, Texas; Lexington, Kentucky; and Morgantown and Alderson, West Virginia.
1I. 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 iMnigration 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 Immigration Appeals.
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 3S 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 IS-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.
11 --- --.-~.
PUTM STATES DISTRICT COURT sOuTnZR ;2ISTA2l'CrF OrFOIDA CASE D. 12-126O-CiV-2:5
V. FINAL LDC T1
Al" C. PIMO, t 83.
The above-styled cause Is a class action brought to
challenge the Pefeoria.ntsl poli of detaining latian nationals
pending resolution of their claims for admission to the Vniteod states.2 The Plsintiffs herein are the Xaitian Refuee Center,
Znc., Luclem Louis, Vllner Luberisse, ?ean Louis terveblen, Pierre SIlien, Serge Verdieu, IUlfort Vilgard, Joel Casimir, job Degsin and prophete Ta2l*yvand, on behalf of themselves and all others similarly situated. The class certified by
the court consists of$
Al2 Iaitian aliens who have arrived in the Southern
strict of Florida on or after gay 2D, 1091, who are applying for entry Into the United states'end also are presently in detention pending exclusion
proceedings at various INS3 detention facilities,
for whom an 6rder of exclusion has not been entered
and who are lthezas
3. represented by CowiSelg Or
R "epresented by counsel pro bono publieo assigned
by the sa'tia" Reruge. Volunteer Lasor Tusk Force
of the Vaoe County Nar JAsociation.On .une I#, 1532, the Court issued an opinion in this case
that found as follows$
l. Plaintiffs have established that the new detention
Policy. yhereby excludable aliens are placed in detention
until they establish to INS' satisfactson a prima facis claim for admission, yal not adopted in a rdance wLth
the requirecants of the Administrative ?rocedure Act.
ecouie Defendants faile to give interested persons
b otice an opportunity to C*MM~nt on the now
dete-ntion policy in thO Lderal Rgister 3o days prior
to its L 'e-&Ttin. the Court finds the rule pursuant,
to whicb Plaintifft are incarcerated to be 'ull rand
dPy its rVing, the Court d6:e not Mean to say that
datantion IM itself is ulavful. That question must
he left to iither day. The Court holds that vhwan the overnment chanted its long-standing policy of
freely perolloainltiana to a policy of incarcerating
fe- whey they liti ate their cels for admission
to this Country, it did so In a procedurally Lmproper
way. ThO. procedures are designed to protot all
1 re o, slits d itJans alike. M2&ess ad until :5 m a daeteiotico rwle or regulation s Rqulred
law, this Court will st &Action enforcement of r Mv detentiOn policy. Accordingly, the Cout
finds In favor of the Plaintiffs on their Administrative
ProcoEax Act elam, as Set forth In Count 1 ot *A
1. Plaintiffs have failed to prove by a preponderance of the evidence that they were incarcerated because of their roe* ald/or national origin. the evidence shows
that the attentiom Ilicy was sot directed at Plaintiffs because they were black and/or Maitlan but because they were excludoble aliens unable to establish prisa facie claim for admission and that non-itins waere detained
pursuant to this policy as well. The mere fact that more titlans were detained and kept in detention for
longer periods of time than aliens of other nationalities
does not render the policydiscrlmIntory. Regardless of its ultimate inact, the policy was Intended to be
applied eand was In fact applied equally to all siLlarly situated allens regazdJess of their race and/or national
origin. Accordingly, the Court finds In favor of the
fetf"nts as to Count V2 of the Complaint.
Based an tis rulia, the Court set a hearing for June s3, 1912
to deterfune Othe effect of this Court's ruling, the remedy to
be afforded Plaintiffs, ho that remdy should be effected and
thbe extent to which this Court should retain jurisdiction over
The Court has found that the aetantion policy pursuant to
which Plaltiffs ars Incarcerated was adopted and IMpla20nt'd
lthout Observance of the procedures required by low.Therefore, the Mw detention policy is SMul a"d void and te
policy regarding p410, tOat WA used prior to xay 30, :L98.
is Ln full force and offet. 5 5 1.s.2. 5552. 553, and
?06, Kelly v. pnited Sotes, 3)9 ?.xup. 115, 1101 (g.D. Cal.
1972)s ;dvsl v. Voinberper, 415 Y.lpp. 652 9. P.N. 1972);
bpu Chine Cbo v AttorneY GneraL. 240 V.5W?. M016 (D.C. D.C.
973)3 Piry-o v. -Mrris. 426 ?, uPP. !76 U0.D. Pa. 17) 7lvte v. J ret eJy f .L-bo;. 01 i.2d 475 (ftd C-r. 172).
TAe Court doe net &olit that allwwg tes Plaitifts
rim Aa ditestion while "ul0akAn9 pe"5 take*
I &ai a viable solWtiiS tA ts lmtuUt." .kMo of the
smiffs Potiv here bee L rratod f"r peer me roar
not to a polt-/ tt court hs ftod to be mlavfSl.
1 L1 a the recwi inmcetes txt t)e. La"milled"
within the old detention polcy because they are likely to abscond or a security risk. It would not be just or equitable to require detention of the meabrs of this class in the futrre sor would an unconditional release be appropriate under the circumstances. Therefore, the Court believes that the reamey 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 vondtions set forth herein pending a determination of their claims for admission.
It is therefore,
ORDIU AND A3UGE:D as follow:
1. F PAL 7VDMLZNT Is entered in favor of the Defendants as to Count V7Z of the Complaint.
2. F rAL JD-aM1T is entered In favor of the Plaintiffs as to Count 21 of the Complaint.
3. lased on the power vested in this Court pursaunt to
28 V.S.C. 52202,4 the Defendants herein, their heirs, sucessor&,
assigees, aents and employees are hereby M:OIDN frem enforcing their policy of detlning e9xnrl*ble malens unless they establish to IsS' satisfaction a prL face claim for .drission until that policy is embodied In a rule and adopted in accordance with 5 V.S.C. 55552 and 553 and another relevant provision of lov. oovevor, this injunction shall not be ponstrued to preclude detention Of eseludable aliens detemd a Security risk or likely to xbsco.nd
4. lased on the pover vested in this Court pursuAht to
23 U.S.C. 552202 and 224, the Defendants herein, their heirs, gucctoxorr, lSgiji~gns, agents and employees are hereby ZNJOI= free co tinuing to detain the Plaintiffs herein ind are ORDER= to release said i.dividul.
5. Th: sm:m xtf~s of Parbjraiph 4 of this Final 3Udgent
is to be comenced fortlwith in accordance with the terms and conditions hereinafter set forth A. The 2Imigration Naturaizatio- Service is to obtln "
full jifobtificatin Information relative to each maber of the Class scluding but rot lJmit4 to ]Photoraphs, fingerprints and a "- "
adc complete personal history for future aJ" continued identification of said Irpevidimls. This record is to be kept by the Service in duplicate form to be rtillitd by thUe in the location that the ealn is ultLnmately resettled. INS shell also maintain a master file of these records in their offices in Miami, Florids. taid 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 eaployzent.
a. tach Irsitlan is to receive a typed imigration form 2-94 vith alien number. an Indication of parole pursuant to Section 222(D) (3) of the lwtigration end 1rtionality Act. I V.5.C. 2132(D) (S), and with 'employment athorrised" at eped on said form. A duplicate of said I-94 shall be kept Ln the central file located bare In Miaai, Yhoria In addition to being kept Ln the alien's file.
C. The release of the members of the class will be cofpleted regardless of whether counsel sx been curedd or otherwise provided for sgld Individuals at the tLe of their release.
V. The seie4ra of the class are to be released tOlM a sponsors thro.ghovt the V ted States upon presentation to INS of responsible sponsors vh are willing and agreeable to accepting the terms and conditions of this Order a the sa~e ,pply to them. Responsible asrlnrs she".1 always Include volunteer agencies way Include extended family MOeRts. (residents In a de factor $able Whe can satisfy the Service relative to thilr peuL et sad definable addresse8| or Ot-her arnutskje parties approved by the volunteer agencies. There must be b^+%t a yl,.rt*@r agency "n an #rejvidlu&2 sponsor a to each alien. it Is not the Lntent if tis Court OY this Order that the Service will deviate from the po:icy which precludes
the release of Indrviduas' Vho have serious. contagious diseases or who have been Oedically declared to be mentally psychotic and a danger to themselves or the eoiunity. Financial assistance to defray medical and psychiatric expenses and to assist those Plaintiffs who are no and remain In the future financially indigent is a concern that must be continued to be addressed. Vu erous 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.
X. 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 &bide 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 from the entry of this Order are to provide arrangements for financial funding to defray the expense and functioning of said independent third parties. The ind*ependent third parties appointed by this Court are to Lweditely copuicate to the appropriate INS representstive the failure of any sponsor to report or any negative reports relative to individual Natians, that Is to say. an Indication from the sponsor that the Ilaitian failed to contact his. The reporting co editions, requirements and responsibilities set forth In this Paragraph are pursuamt to and under the authority of the United States District Court.
p. This Court's pre9doessor issued an Injunction enjoining exclusionary hearings from going forward as to a2l Vaitlns In detention who vere uwrepresented by counsel. Subsequent to this cout's opinion of .?wae If* P132, the Defendants moved to dissolve that Injunction. This Court eoea herewith specifically reserve ruling ce said motion at this time in accordance vith the following terms And conditions:
(11 le#&ings are to begin as soon as possible for all members of the class vh,2 ar; re. _sa *4 L c.nse* whether they be privately retained or pro kno.
(2) At or before the tIJU of release, each me3.h4r of the
C2as together vith the voluntary agency and Individual sponsor e to be served with rutice of the first appearance beft- an Iigration Judge whch appearase is to be not less thAn thirty (3O3 lays after the date of release. At tUe time of said first a1pparamc, If aid individual has eiter privately retained cowsel or accepted pro booe representation, the "iividual, tgsth# r with the voluntary *gen ad irdividual sponsor counsel who at that tie ill be required to file a "Y-23 form, will be notified a"d the matter will proceed thereafter Ln accordance vith lUm.
(3) If the individual has neither secured counsel or In lieu thereof has pro bono counsel assigned to bha at the tLe of his first appearaice, said matter shall be reset for his second appearance hot less t an thirty (30) days thereafter.
(41 At the second appearance If private counsel has been retained, sald cause shall proceed as contemplated In the proceeding paragraph. Zn the event the Individual has not secured private counsel, pro beon counsel will be assigned to represent said Individual provided. however, that If said invdual with a full understanding of his right to have said pro hono counsel assigned to hi. declines said representation, said refusal to accept such pro beno representation shall serve as good cause for said bearings It pertains to said Individual. proceeding in accordance vith law.
1$) It is the Intent of this Order that each Individual has the right, after being fully advised of his right to secure private counsel or have assigned pro b eo representation, to freely ant vol~utarlly valv, said rights Provided that the sowe s done ndoer oath before the Zmigration Judge and that said Individual 16 ILftrwzd cf "B Aetervaned that be rerstands his rights to privately retained counsel or have pro boo counsel assiged to represset klx and sai Imigrati.n :u'ge should further detervdne that SAJy decision to give IV such right Is voluntary not the result ef any force, threats or promises. It Lo further muerstood that If the Individual ealer of the C2ass a5pears At th* first aP;41ece VwthDf counsel &Ar dits not knoangly, itellenitly and voluntarily
waive his right to rounase, that he wiil be entitled to the continuance of sot lea than Lhirty (30) days conteAplated for the second appearasoo.
the Court is secifically continuing to reserve on the Government's notion to vacate the Injunction relative to the proceeding of exclusionary bearLzgs 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 Zlgration Lawyers' Association, the lawyers' Coitte* for International Wwan lights and the Dade County Par Association. It Is the view of this Court that based on the specific representation& made by these organizations and on the additional representations of several of the voluntary agencies that likewise 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 Individual wezbers of the class desiring the same should be attempted. -t ts the further view of the Court that the representation of Plaintiffs' counsel to this Court of as$isting in coordination of this effort should be honored by this Court in the hope of its ultimate success. It Is the Intet of thi Court. Lherefore, that the Injunction heretofore Issued by the preiecesor udge will remaL In effect regardless of whether or bot Plaintiffs pre In detention until Minety.10) drys after the wfty of this Pimaj .hdqwn at wtdch tirn 0a' &a iU be &iLwlVd.
a. pilsase of the Individual members of this class to ormrm for the full period of legal process and that entry of Ln order of exclusion In and of itself vill not be a growmd to retvoke sid parole. An inexcusable failure to personally appear for proceedings before the tmwitration and Waturaliatiom torvi"e or any other PrccedLa in which the atte nce of the
S-WwAjAJ s%&s realtLAg Li a &*Native report to XXX as sot forth above, viii be grounds for parole revocatLm. A32 *thea grounds beretofprr xistlA -;Pi existLn low will 21 ireipe serve a g a gromA forparole revocstLim.6
1. The YimtarY agezctis participating in this program
will, to t* extent possible. locate Wcabers outside of Da.
County amd the Stet of Florida vi le taking sto consideration t9 Dad* County pro bon@ program, the availability of other cowuna "
and ind ividual sponsors related to said aliens.
6. The aTtion Of the RaAt$a Refugee Center, Inc. WD onlarge the class to iseude all valtimams In Letention for vw a C-1 has been filed cc behalf of said Plaintiffs be ad the sa I s hereby CPA= vith the endratanging and representatLon of counsel for the Plaintiffs that privately retained or pro bono counsel vill be secured so as to afford fair representation of said Individuals to be heard vItUin the reasonable period cO temlated by this Order, said individuals be and they are Pereby incuded within soid class a8n are bound by the full affects of this court's opinion of Jun 1, 1332 &M the provisions of this Final :u.dmemt.
7. orhat this Court d"s herevith vacate any Lntelocut .-y orders entered by this Court or by the pretde:essor Judgee a does here ith specifically relibu15h lurisict"on Over t"e s.ez*rs of said class to the extent that the sa" Is Not hereafter specifically retained by this Couzt.7
e. That t1s Court does berevith specifically retain Jurisi tion over the parties the subject matter Oa (a) Defendants' ntion to vacate this court's Order enjoining the elusionary hearings relative to &tebrs of the class vho are aot represented by either private or pro bomo CoMoelu (b) this Court's Order of Folru ry 3, 1312 as the pas pertains to the pro bot FrOP-a of the Vade county par Amssociations (C) Plaintiffs' -, -.
Option orderizl the fpanti of relief to Lidividual **Aber* of the class vbo have herotofore escaped from dtentio to Mmatfo.i to the bseofftx of tis Court's opinion of 3Int I$. 1? an" this Court,& final TveV.astI (id enforce ent of the terxs a"d conditions Of this Final ;tiud&"eAtj "n (0) the Plaiatiffs'
motion for awrd f attorneys* fees and costs vith the understanding that this ret.,tion of jurladiction as to that Issue Is "t a detezmination f the merits of the entItl rnt of the aintLffs to either attorneys' fees x casts.
D E A. ODE In Op"Ji o urt at 10:00 a.m. this 20th
&sy of ?Mwe, 1912.
UGE[E P. &DEIUA
ItGZNsfZ Pe s tLL'LAM M4I7ZD STATZS DIS7RICT JU=C Copies furnished to all parties
' his Final ugent is being entered pursuant *o the provisions ef ?oeral Rules of Civil Psotedure 23 (c (3) 54 and $9.
rhe eumaplaiDt in this cause originally contained &even counts thalle gitng a Wie variety of policies and practices used by Irw during exclusion proceedings. Ins prior order of thL Court, four entire cwts an portions of two othws were di5J 555ed. Fe loLs v. Iecsner, $32 7.Spp. 11 (S.D. FI. "
No issues get forth In three cow ts survived the Court' Order Of Ditsissal. The first Issue. a d a question of primary mjPortance to these Pilintiffs, is whether they are lawfully b*JS detained pending tJt Outcomae of their exclusion cceedings. As will be more fully explained W., the urt am found In fevor of the Plastiff on tm isissue based
on their APA claim (Count MI and In favor of the Defendants on the discrfminatlon clsi (Count VI). 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 Coun~t IV of the Ccnladnt, Is moot.
390eC Paragraph 6 Infra. The modification granted therein Is without PreIudice to the right of the GCovernent to object to further class modifications or motions for Intervention.
4Ltited States Lines Co. v. !hsuhnssy, 19S F.2d 315 (2nd Cair.p1321 citing .7e'int Anti-rascist xetf;oe Connittat v. 4c(rath, 341 U.S. 123 (MI)5h Powell v. McCormick, ) i0U.S. 7a867DI (1313).
'private or pro bon* counsel accepting responsibility of representing class mej-.hers must do so vith the uderstanding and realistion that by undertaking that responsibility they are Lap~elily representing that they ae capable of presenting the alle"Is claim for admission within a reatnable period of tise as -ont"patod by this Order.
Ths Order shall Dot be construed to raeve from the District Director the power granted to him by the regulations to In hia discretL.,, revoke the parole of any of the Plaintiffs hereln. Ecpefully, the District Director's power in this regard viii be sparingly, judicioutsly and reasonably exercised. ft the extent it is so exercised, the Court retIlns
* ju risdiction to review said rev'cationt with regard to these class andrs If necessary, to appoint Special Masters In
various locations throughout the United states to conduct such a review baste 2 om fact finding Authority to report to the Court.
78y this ruling, the Court intends to relieve Itself Of uruisdiction over all &xclugi= hearings Involving class seftberthat go forward outside pf this District. The Individual aliens should sek such adninistratave or judicial relief as Is available to them by statute In the appropriate INS office or federal district Court. It Is not the CoUrt's intent to vacate amy y -Orders heretofore entered either granting or d yIng motions to
IAs to the A-,k.rs of the class In detention as of the tate of this Order, it is Ordered that their rolee status will be rovrzetd by this Tinal .7dT%'.et not by any subsequent rule hereafter bdovted.
$TO the extent that this Court does herewith reserve jurisdiction
il the ore tenus Notion& for reconsider aion of this Court'S
order of Dismissal and for potions to a."end the class to Inclue individuals twretofore represented by counsel. this Is a partial
Final Oudrtent. said issues to be dealt with by a supplemental ozder and to the extent that paragraphs 7 and 3 hereof require
tht ssae. the Court does In fact retain urisdiction for the 4
purposes of entering such supple etal order.
No Gold At The Hague
Howard Holtzm a owe of nine judges on the ran,United States Claims Triburil at The Hague. delights i taking visitors thugh The Hague's majestic Internationail Corm of Justice in the Peace Palace. showing off'the priceless lapanese silk paintings, Russian upestries, Aimerican SuJpt=s, Persian rugs, and other objets d'ar that symbolizt the palace' high-minded, tunmatimal mandate Holm==nn, 60, is on lave as the senior partner of t ighJly regarded 25-lawyer Manhattan firm of Holtznann Wise & Shepard. when he became a national) recogized expert m "temrnatiora tnde For him, solving inenabnal eo00i, disputes through xbio is mort ta a busiOIss it's a comuming dreatn, owhU has compelled him to work fot free oc all Lindi; o( nional ad world panels. So he was a natural d when resident
Ragan hd to pick tr-m A.merm ID MWn 00 the
"I cane her," Hotzmann says, after stoping to point out what good sense t makes dui the palace&' Oxw of Lady Justice is no blindfolded, "with a ti that this lra A ercn di p was so hard ta
-we had a chance to rhoi, a w d Ma, is fas becoming I world with an inttiniional y bow to do it. We h a chance to prove that imer n ational disputs
- Can be solved pcecfully."
Guiding his visitor into (coaxti ad oa pat )
Counsel to a ConspiPacy P.26
An inside account of how in-house lawyers and HowTey & Simon advised Gulf Oil
during the inception, rise, and fall of the world uranium cartel.
The Miners' Counsel-Candidate .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 P
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 ajudge's decisions one by one.
Up & Coming P.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 tp to Krome North, a forIner missile base on the edge of the Flonda Everglades, to meet his ne& client. Pierre Dessine. a 23-year-old Haitian seeking political asylum, had already) been incarcerated six months at Krome, by then a detention camp for about 600 Haitian alien%. But right away Levine was struck by the youth's soundness. "He was strong, emotionally and physically," rcalls Levine. And KYome. while unmistakably a prison, did not have the stultifyi 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 stdents would run to sit in on another. Their special request of one intsuctor was that be teach "The Star-Spangled Banner.'
By early summer, however, the camp was infected 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 basketball cour. It was clear to Levine, who had been visiting nearly once a week, that Dessine's spirit .was flagging. Then, the last week in Ma), he got a call. "We can't communicate without the interprt: except for a few words," says Levine. "'He said
'MY Levine, tomnorroow He had never called me and asked me to come befror, so Ismud, 'Today.'
"I went out there and he .d, '1 don't want you 0 s fMe my asylum applicatio. I'm going to kill
"Now we'd gotten close-he used to say he
talked to me like a father--4Md I was wArd I said, 'Will you at least tell me whea you're goin; to do #it7 I wasn't making any a I Then Iad, 'At
l"at Promise me you'1 see a doctor.' and be said
LEVINE, A MIAMI SOLO PRACTITIONER specializing in personal injury la ., had never han- died even a rudimentary immigration case before he met Destine, et alone one involving political TAy1 i"y&M
T suit, which was filed on behalf of the Nadonal Emergency Civil Liberties Commitw.e and the Haitians Refugee Center. Inc. .' He and a small hand of Miami lawyers have been ighting, with repeated success. the government's treamnt of Haitians over the past five years.
At the seminar, Kurzban and his cocounsel, University of Miami law mesaoms Bruce Winick and Irwin Sto y and HRC lawyer Vera Weisz, handed out a 533-page manual and gave basic instruc. tions on making an application for political asylum, in itself a specialty within the xpe.ialty of immigration law.
The group also received a primer on the faces of life in Haiti. With a pe capital income of $260 a year, it is the poorest country in the western hemisphere, less dtan a quarter of its people rmad 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 clienu, the volunteers were told, had arrived in this country since June 1981, when the Immigradon and Naturalization Service started its detention prgm and most would face exclusion herings. The INS maintains that exclusion, a simpler and swifter process than deporton, is appn:Tr ate because these
aiens,. apprehended as they came ashore or in airport customs, have never teclni cally entered the United States. To fight
exclusion, most detainees are asking for political asylum. Each must prove tha he asylum in which the outcome, he is convinced, will moets the requirements of the Refugee Act of 1980. mean life or death for his client, which adopts an older United Nations protocol deAlong with some 300 other non-immigration at- ring political refugees as those who have a "welltorneys. he had answered a call for pro bono coun- foudd fea of being prosecuted for reasons of sel for the Haitians put out by Attorney General race, religion, nationality. membership of a perWilliam French Smith and echoed by the Dade ticular social group or political opinion' andwhich County Bar Association and-in an unusual extra- prohibits their deportation. judicial gesure--by federal district judge Eugene According to the INS, of 5.646 political-asylum Spellman Spellman had presided in Louis v. Netl claims made by Haitians in 1980 and 1981, only 2 son, the class acn now before the Eleventh Cir- were granted. The State Department. which rcuit challenging the detention of about 1,850 Hai- views all such claims, maintains that the vast matians at 14 fcilities around the United States. jority of Haitians ar "economic refuge .," fleeing
After months of
seeing pictures of iipnsoned Haitians HOW A SMALL BAND OF MIAMI
111 his f0Mon&n m
m LAWYERS TOOK ON THE JUSTICE
unweered because.~ DEAiM N -NDW N
cause." In JanuaryDEPARTMENT-AND WON.
he attended a training session sponsored by the bar association and poverty rather than repression, and thus am no taught by the Haitians' counsel in Louis v. Nelson. deserving of asylum. They are. according to severIra Kurzban. a partner at Miami's Kurzban, Kurz- al high officials of the Reagan administration, ban & Weinger specializing in labor and immigra- *'gatecrasbers" jumping ahead of millions waiting ion, is working pro boo as lead attorney in the so get into the United States legally. Says INS genT $T. ASW $AN LS a 5
cral counsel Maurice Inman. "'They' butting into the line." '
The Haitians advocates. howeer, argue that a gat many of the refugees an victims ot reression Even those who had no trouble before the) left Haiti could be viewed as traitors for aekigR asylum here, claims Kwzban Thus, be asset, they have as much ri to tay as Cubans who fled Cs=o c Nicarsguans who fled the Sandinists 7Uc pvnmmcnts efforts to expel the Haitians. be says. come from a bWld of naism d loyalty to Duvaict's regime.
Levine was also told about the Te am iacoutes, Duvalier's ubiquitous Pontmilitary force, officiall) known as the Volunteers for National Security In Haitian fable, Tonton Macoute, translatDdas Uncle Knapsack, is a foil to Tonton Noel, at Cbristmas. while god children receive presents from Tonion Noel, bad hidden ane earned off in Tonton Marute's knapsack, never to be men again The ame is apt for Duvalier's ienchenen, commented federal district Wgdc James Lawrence King in a 1980 Decision in Haitian Rrfgee Center v. 7ivileni declann the INS s treatment of laitiam aliens discnrsinatoty, fr, be wrote, the Macoutes "did indeed make persons disappear." Moreover, he coninued, "the Macoutes essentially deternine who is an enemy of the governnent. There is no appreciable judicial system in Haiti; their actions an acordngly unchecked and unnviwved.'" After the orientmon session, about 0 ofthe original 300 lawyers signed up or clients In accordance with an agreenent the government demanded to preent delay, the coordinators instructed he lawyers to file G-29 forms---noces frepresentaion-before the% met their clients. Levine. however, chose not to b this. Upon filing, a 35.-day clock ,ould surt to run for filing the politicalsylum claim, and he'thought he might eed more time. He ha been told the laitians would be mistrustful and closesouthed at frust. Survival in Haiti is ased on 'plyg blind." as one detainr putsit "'Ifyou speak out against the
government you get lost. like a dime On Levine's first visit. Dessine spoke this desire to come to the United States od have a better life. When pressed, he pressed his feaw that whatever he tight say would get back to the Haitian government Levine assurd him that he wouldn'tt tell, but could not guarantee le tor) would not get back He visited Wcond and a third time. each time Making the S0-minute drive from Miami lid each time waiting an hour or more x an INS guard to fetch his client. ndually Dessine's story began to Tierge On Levine's sixth or seventh visit. more than a month ater the first. cy prepared Destine's affidavit for his ;ylum request. Levine aJso collected xTiboruting statements from two HaiLns who had fled in the same boat.
I HAVE BEEN UNJUSTLY
ated by the Tonton Macoutes in Port. '-Prince And in AuCayes," D.sine be. fts in the affidavit "The peopl imAuyes were terrified of the Tootm alutes They extorted money sad prop TY from people and ar estd, best and Io people who never broke a law and 'ver had a trial His mother, be irs, gave mone) to a Micoute and let m borrow cows.
Dessine says his trouble started in brutary 1979at a carnival at ACayes n themn was dancing in the street Imrone bumped him, he says and he U backward into a Macoute "The Ma$ 'aMs3C AN LAWYU 'i IrNi2
-~~ 4 -IV V i "W OR-.-
coute hit me several tLnes," Destine asserts. "I was arrested and takes to a prison.'* He was released the ext da but the Macoutes w= watching hie'Sbc says, so he went for sveral months to a house his mother owned in Port Salut.
In Scpcrber 1980 Destine went to Prt-au-Prin.wer hbe tot a 20-a. week job. 71er be mted iit-ing to two radio sations that never reached AuCayes. "'T1e commentators talked bout how the Tonton Macoifts beat plc and about the I" of fre m in
l. Th1K t a.1ed how octhe
heig be would be jailed.
Destine states t his head was snibed after the heating; a scar is visible.
Deuibe returned to AuCayes where, he says, a Macclt came to rst him because e one of the horses went onto ICWIrnelc else's property and sie somse .ass." Thc Mlcoute then told Desaxre's mother the real reason was that Dess.in had listened to the radio stations in Port-au-Prino, be says, &he gave the Macute M30 and Dmlin a wea 10 hicr m Pont S ,ut. His pdteas anther Mbol s.8, 1.n states. No
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 proe people from things such as what the Tonton Macautes did."
On November 23. 190. Dessin learned that ore of the commnaiowrs had been arrested Thi was t of a crackdown in which about 225 people were arrsted, including virtsnl)Lr l Hasitian human.-igtu activists, most independCat jou'rniss. man) defense bwyen, That evening, Destine says, as be was listening to one of the stations. a Macoute came to his door, asked him if e didn't have anything better to do, and started hiring him He claims the Macoute beat him with a club. dumped him in the sot, and said if he didn't kave
in May 1911 she told him it seemed safe to retul.
In August 191, a the urging of friends and against his hencr .ad ment, Desint says, x ewent to a bit p r a, Ma-oute Ii ieriant's bone Alft a couplor bo urs. he contirues, a Macoute ased Dessine's girl friend to danoe In Haiti it is not proper to ask a woman scored b) another man to dance. She and Drssine both msisted., be Lsy. and a shoving match ensued Tbe Maccute bew his whistle. Desine says, and he and his finds ran into the dark. He says the iieutant shouted to his men to catch them, and if they resisted, shoot. Dessines mocha cari to him in hiding. told
him ber money couldn't protect him, and gave him $600 be says he used for space on a patcbed-together vessel with 62 other passengers Dessine landed newr Key Discaynle. within hours, be was taken to K.ooe.
The "ary Desti- gives in his afIWav is very different from wtw he tso n. INS official when first api.ended. He hadn't trusted him, Dessir told Lvine so he had said he'd never been wresacd. he'd paid $4 for the boat p a h'd come to make money for his r ry. The INS may use that version w Dessine's testimony.
After his suicide thrat, Deasine wa sent to P.L. Dodge, a mental bospila whe re rome inmates a taken. Levine went for advice to other volunteer atsomey who had won pa rle for two detainces who had tried to kill themselves. A month later Dessine was also paroled. A week after Dessine's transfer, Levine visited him in the hospital. Destine asked a question he had asked before. one that comes in perpetual refrain from inca' cnrted Haitians: "Why a in jail? We ar ot criminals. Ca you explain it?"
'I said that this admntration doesn't want you here but that I don't agree, and I'm doing everything I can," says Levine.
He shakes his bead. "You can't really answer that. As far as I'm corcered they're in a concentration camp. You can call them de.ties, but you can call black white. It makes me ashamed to be an Ameican."
I[NNOSPITALITY TO HAnTIAN
refugees is not unique to the Reagan ad. ministration From the time Haitiansthe fist black refugees to seek asylum here. Kuriban points ou-.lbegan arriv. ing in substantial numbers in lat 1972. they have been created differemly fnn orh groups seeking asylum lI a series of class actions led by Kirzban-who was aided from the san by veteran New York iurnigraton lawyer Ira Collobincout have found that Haitians were denied fair exclusion bearings, work per. wits, and access to information ta could support their asylum claims. Ac. cording to Judge King's decision in Civi. kmn (recently affirmed by the Eleventh Circuit), the INS discrimination was capped by a "Haitian program" summed in 1973. "'The decision was made among high INS officials to expel Haitians. despite whatever claims to asylum individtal Haitians might have." be ruled. "A Prgrm was Set up to accomplish this gol (It] reIted in wholesale violations of due process. and only Haitians wen
Until the summer of 198 1, injunctions from a succession of feder) judges had unted the imp&" of the INS actions. Few Hitiuans wen deported, and detentin, when it occund. was short-livd. But with the Ren administration. un,,-ati.n has become a highporitissue Following the disaster of the IM Mariel boat If. in which about 120,000 Culbans, some from hoitals fm the crtiily insae,. wrer k into moth Flkrida, Prdent Reagan announced his COrMitrret to *'*gain conrl or O. borders",
In accorance with the Presidents rois, Legislative propsal gow beoreCgress demands a seven curtailtent--cle.d "stnaminig---of the exclusion process, replacing the adver. sail format with an interview before a hearing ofl'=e and eliminatLrg the right tojudicial review Sanctions against mploye who knowmgly hare illegal
1 1 al a q .*j#I1t 1.3-~ *~%S~xtl
-r ]*H nflz zr it 2 .
', .7. .
'DETENTION COULD "'CREATE AN APPEARANCE OF 'cONCFErRATON CAMPS,' A JUSTICE DEPARTMENT MEMO WARNED.
cot. He ses conspiracy. "'Kurzban is )in$ out and telling the pro bono lIaw= in Miami not to represent these peoe" he charges hotly. "How else do )Uexplain that so few O-28s have been
Kuzban denies Inma 's charge. A aicher at the trrinin sessions and an hor of the manual, u-zban is always Ipful, say pro bono lawyers who have ed 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 thai due process---not obsmscmiism-ss their ;oal. "' didn't enter e injunctions,' says Kurzban, "fed11 judges did." He acknowledges that r fair hearings those who do t have
lid claims must be deported.
Inman dismisses these statements with angry wave. "This is war," he deIes. "The war is to in effect eliminate definition of refugee and to open our ede anybody that wants to come in d have a worldwide equalization of lth and prrty." Kurzbn and the ,C lawyers, he says, "a orchestrat9 sore massive provan, to open ou
-- ors for all immigration "
,huari never uses the words "coau'nu* piracycy." but they fn betwnei
ins of much of wat e mys.
mbnalso represents the goVailt :.Of Cuba." he offers at one
r -opo of nothing. "-n't that jrT
ul.a.has represented Cuba in con',litigation as local counsel for the
York firn Rabinowitz, BoKUin,
061M. Krinsky & ieberman.)
Perha it is nman's seige mentality causes him to utter questionable, if
Wholly false, statrents. Statistics Ar lke rabbits out of a hat "'Sevenrlive recent of Haitianis do not show
f r igs he declares. Acf TAY It~yG,4A
According to Giuliani, the Justice Department does not keep such statistics. "Ninety-five percent of the people polled in Florida support the governmtii's detention policy. It was reported in The Miami Herald," he asserts. In fact, a June 30oIl conducted by Behavioral Science re anM Wreported in
the Herald found that of 274 Dade County residents questioned, 61 percent favored release of the Haitians.
Inrnua also insists that Kurzban has told him "several times" that he belkves only 5 percent of the detained Haitians have colorable claims. "The only thing I could possibly have said is that five percent do not have colorable claims," replies a bemused gurzban.
And so it goes lnmsan is nothing if not a lapel grabber obsessed with getting his ) 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, personaly, whether an asylum claim is granted or nor, as long as the law is complied with. "I am literally the onil person with a legitimate objective." he says "The others. Ira [Kurzban and]. the rest. . trying to achieve their objective by destroying the system."
Despite his self-image as a dispassionat observer, Inman's emotions rise like flares Asked about the Haitians' protest thdat they an not criminals, he exclaims. "Wrong' They say they have committed no crirres, but they have. They tore down our borders!" And while he insists be has no problems with grianting valid asylum claims, of the Haitians he has interviewed, he Lays "one hundred percent" came for economic reasons: "'They want material wealth, whatever that may be to them-- house, a ca. a pig Inman spoke with about 30 Haitians detained in Puerto Rico and with about 100 at Krore, he says. His insight'
into the motivations of those at Kroase 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 approahed Inman says be speaks a lite SPanish but no Creole, the languages am
THE HAITIANS' PLIGHT HAS BEcome hopelessly politicized They an ptularly susceptible to manipulation se even in the fairest of proceedinis their claims ar as hard to prove as to disprove-and the burden of proof is, 0 them. Most arrive after harrowing sea voyages without any documents ftt could support their stories--and for a beating by a Macoue, what document could there be? Truth here is subjective. It lies in their expressions and inflecfdons, which the judge can interpret freely, depending on pre&lction and calarce.
"'The INS is suffering from a psychological block when it insists all these people ae economic refugees." says LintonLovert, a partner in Mia1i's Howard. Brawner & Lovett who volunttee.d to represent two Haitians. both of whom have claimed life-threatening encounters with the Macoutes. "The probkm is that most of these Haitians an not ideological and don't fit precisely into ouir Northern Amenrican!European conce-s of political refugee. So you can say they just had A fight with A policeman. but you have to nrrmber that the Tonton Macote is the only government these people know."
Lovet, a former foreign service offiwr, describes himself as a "violent anticogmunist." but criticizes U.S ties to right-wing regimes. "I don't think of our
vemment as bruta or bloodthirsty."
says, "but what they an doing with these Haitians is worthy of the most tyrannical regime They can get these peo-
ple kled-and very well may."
The INS legal machine grinds on. At Krome, in a trailer that serves as a courtroom, Pierr. Pbanor, a muscular, somher-looking 28-year-old, is facing Martin Spiegel. an imigration judge brought in from El Paso for a month to hear about 40 remanded cases. Most of KIrome's immigration judges, like S piegel, an appointed from the ranks of INS Val lawyers. But while many seem to have mor affinity for the border patrol than for the liberal young lawyers who appear on the Haitians' behalf, Spiegel. an rban type who cultivates an eminently reasonable demeanor, says he thinks
at the only way these cases will be fairly heard is with new judges and new lawyers--the old cast is too bankscarred.
Pf.,nur's original hearing date was August 4, 198 1. a day so frenetic tt his clam was heard and rejected not once but twice by different judges. The Justice Department later remanded the case. and this time Phainor is represented by Howard Landau, a 1980 University of Miami law school graduate working for HRC. Ptrnor's asylum claim was prepard by other HRFClawyers; Landau has met him orly once before. As he begins to elicit Phanor's teseimony, it is clear he is Wo getting the answers he wants. Phianor does no seem to follow him well and the r. he gives is skeletal Hie bad a run-in with a Mcouse in 1977 and was jailed for a day, he says; his uncle paid moneyto gel tun out and protect him; then the Macoute moved away. In 1961 he heard the Macoute had returned md fled the country. To go back, he claimed, would be to loe 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 withholdMg deportation." An interpreter begins
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THE LAWYERS COMMITTEE. ES FOR INTERNATIONAL
M'FIr HUMAN RIGHTS 36 WEST 44TH STREET, NEW YORK, NY 10036, (212) 921.2160
/ichael H. Pbsner IECUTEVE Dd;CV
Arthur C. Helton DIRECrOR
POJ'nCAL .SYLLY P'06CT
Marvin E. Frankel
BOARD Of DIRECTORS
Jo R. Backer
Maureen R. Berman Robert L. Bernstein Ton A. Bernstein
Bruce Bushey Merrell E Clark. Jr. Ramse. Clark
Michael I. Davis Adrian W DeWind tNorman Dorsen F'. Robert F. Drinan Bruce J. Ennis Benjamin Gim R. Scott Greathead Deborah Greenberg Lani Guiner Louis Henkin Elizabeth HOltzman Virginia A. Leary Stanle Mailman D. Barrington Parker. III
Bruce Rabb Barbara A. Schatz Orville H. Schell Jerome J Shestack James R. Silkenat Rose Styron Telford Taylor
THE SUBSTANTIVE AND PROCEDURAL LAW
POLITICAL ASYLUM IN THE UNITED STATES
ARTHUR C- HELTONC 1983
FO(JDED BY THE INTERNATIONAL LEAGUE FOR HUM&N RIGHTS AND THE COUNCIL OF NW 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, l101(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 RodriguezPalma, 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,
i il 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, %i 39).
c. Subjective element necessitates assessment of alien's personality, i.e., his particular "psychological reaction" to
the conditions (Handbook, VI 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 predominant motive for his application is
fear. Fear must be reasonable.
Exaggerated fear, however, may be wellfounded 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, 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, 111 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 prejudicial nature" may constitute persecution (Handbook, i 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) (Handbook, 56-60).
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, I 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 persecution would depend on the circumstances of
the case. "Objections to general economic 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 economic 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, %1 65).
4. On account of race, religion, nationality,
membership in a particular social group, or
political opinion. 8 U.S.C. S]101(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, VH1 70, 73, 74 and 79).
b. Race has to be understook 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, 11I1 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, 1 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, il 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 participated 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. Sl101(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. S208.8(f)(l)(ii).
1. Requires an offer of resident status, citizenship, or some other type of permanent resettlement by another nation, as well as settlement 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 "nonpolitical", 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 wellfounded 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 RodriguezPalma, supra.
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. S208.8(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 persecuted, 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.
S110](a)(42)(A) due to changed circumstances in the
country of nationality or last habitual residence.
8 U.S.C. S1158(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.
I. 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 age.
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. 51253(h). 8 C.F.R. 5208.3(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. 55 109.1(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.
S212.5(c); 0.1. S212.5c. C. Adjudication
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, I 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.
SS 208.7 and 208.10(b).
a. An opinion may be requested by an
immigration judge before whom an application 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, s .
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. SS
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. S53.1(b)(l), 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. S105a(a).
11. In exclusion proceedings, an adverse BIA
decision can be reviewed via habeas corpus in
the appropriae district court, with further
review available in the Circuit Court and
Supreme Court. 8 U.S.C. Sll05a(b). Habeas
review is also available in deportation
proceedings on grounds that could not have
been raised previously. 8 U.S.C. Sll05a(c).
See Fay v. Noia, 372 U.S. 391 (1963).
Prepared by the law fic o&ag6i n, e Rey & Bernsen
Vol 3, No. 7 NJJuly-August, 1M8
STE-C" THE DECISION AND ITS IMPICATIONS by Arthur C. Helton*
The Supreme Court decision
Law prior to Refugee Act of 1980
0 1980 Act
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 obtained "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 history.
The Supreme Court began its analysis with the language of the withholding statute: "The text of the
Mr Hetr h i 1976 gmsduare of the Now York Univ-rmiy School of La, -d a m-ber of the Nce' York Bar. He is c ned) dirctor of the PoliticaJ Asytum Projwct of tbe La-yen' C mmittee for Inti-matiocai
-nz Rjits. Nd in New York Cty.
Implications of Smvic
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 withholding 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 pers.e cution is required." Id at 4727.
The Supreme Court found persuasive the fact that the section provides literally for withholding of deportation 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, distinguished the withholding provision from "requests for discretionary asylum," which incorporates the refugee definition and well-founded fear or persecution standard. Id at 4728, 4730. While expressly eschewing the opportunity to discuss the meaning of the we.founded fear standard, the Court characterized as a "moderate position" the notion "that so long as an
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C1984 by Clark Boardman Company. Ltd. ISSN 0731.5767
This publication is deigned to provide accurate and authoritatve information in regard to the subject matter covered It is sold with the Lrsdestand ng that the publisher is nor engaged in rerdering legal, accounfing or other proffsional service if legal advice of other expert aSistnce is required. the services of a competent person should be sought -rrom a Declaration of Principles jointly adopted by a Conmittee of the American Bar Associat;o,& rd a Committee of PubliOhers.
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.
The Supreme Court found its analysis consistent with the Refugee Act, which was designed "to eliminate 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 Coirt 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. Jd at 4729 n.22. The Court elaborated:
"Mo the extent that domestic law was more generous than the Protocol, the Attorney General would not alter existing practice; to the extent that the Protocol was more generous than the bare text of Section 243(h) would necessarily require, the Attorney General would honor the requirements of the Protocol and hence there was no need for modifying the language of Section 243(h) itself." 1d at 4730 n.22.
Despite the wide-ranging analysis, the Court's holding 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." Jd at 4730.
The narrowness of the Supreme Court's holding surprised both the parties and knowledgeable bbservers. 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 alien 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
S U.S.C. 1101). Faced with this discretionary authority 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 56 538 (7th Cir. 197).
The "clear probability" standard, furthermore, was applied stringently. See, e.g., In re Tan, supra (voluminous documentation of abuse of ethnic Chinese in Indonesia, letters from relatives, and an attack on the family business ruled insufficient); In re Kojcory, 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 "prominently 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 z Civilerti, 503 F. Supp. 442 (S.D. Fla. 1980), modified sub nom. Haitian Refugee Center Y. Smith, 676 F.2d 1023 (5th Cir. 1982), in which the district court found evidence of systematic and extensive persecution throughout the Haitian cases reviewed, 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 his exercised his discretion in an arbitrary manner." Lena Y. INS, supra at 538.
The second procedure, conditional entry, was enacted 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 satisf[ied] an Immigration and Naturalization Service officer at an examination in any non-Communist or non-Communist-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 (I) from any country in the Middle East, and C) [were] unable or unwilling to return to such country or area on account of race, religion, or political opinion, and (iii) (were] not nationals ofthe countries or areas in which their application for conditional entry is made. "
7UJ ~ ~~ ?1ULJ VJ at X*
Stat. 107). There was a numerical ceiling on admissions, 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 Barber. 269 F.2d 497, 499 (9th Cir. 1959) (construing 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 Ton, supra, at 569-70; In re Adarmska,"
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 1. & N. 384, 385-86 (B.I.,. 1972) (conditional entry found to require but
"good reason to fear persecution").
In 1952, the Attorney General was granted authority 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(dX5XA)).
This third procedure was also used to admit refugees from overseas. In contrast to conditional entry, there were no numerical limitations. In contrast to withholding, there were no ideological or geographic limitations. In practice, however, the parole power was used almost exclusively to admit those fleeing Communism. World Refugee Crisis: The International Community's Response, Report to the House Committee 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
%av-- $w%.UJU ULVL aLiFtU6V WVC13C43 ULMJ
Federal and State laws of this country." 114 Cong. Rec. 29,391 (1968) (statement of Sen. Mansfield); accord, 114 Cong. Rec. 27,757 (l?68) (message from the President transmitting the Protocol); id at 27,758 (letter of submittal from the Department o State); 114 Cong. Rec. 27,844 (1968) (statement of LAurence A. Dawson of the Department of State). --7
Particularly persuasive was Eleanor McDowell of the Office of the Legal Advisor of the Department of State, who testified before the Foreign Relations Committee on the subject of the Protocol. She stated that "existing regulations which have to do with deportation 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, furthermore, 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 aien within the United States to any country in which in his opinion the alien would be subject to persecution an 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 considerable flexibility permitted under the withholding provision 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
IUWMGRATION LAW REPORT
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FRAoMF.N, DL REY AND BERNSEN
New York Chicago Los Angeles Miami
San Fmncisco Stamford, CL Washington, D.C.
Ediwr.in-Chief Austin T. Fragomen, Jr.
Senior Editor" Alfred Del R"y, Jr.
Senior Writer and Editor Steve C. De.
Contribut'ng Editorsv Patrick Quane, Iams 0. McKeon. Ronald F. Storette, David N. Strand, Noreen Quirk, Peter H. Lor%-y, Ethan E Bensinger, Frederick D. Goosen, Lynn Grindall, Jim Tom
Haynes, Karin C. LesterUe
the -clear probability" standard. In re Joseph. zupra. at 72.
Nor, as Justice Stevens recognized, was there any consensus among the courts that reviewed witlibolding of deportation determinations after accession to the Protocol about the appropriate refugee eligibility standard. Some used the "well-founded fear" stan. dard. Pereira-Diaz v. INS 551 F.2d 1149, 1154 (9th Cir. 1977); Zamora Y. JNS 534 F.2d 1055, 1058 (2d Cir. 1976); Paul ,. 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 mootness, 434 U.S. 962 (1977); Cisternas-F.-ray 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. District 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 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 INS. 424 F.2d 227, 232 (5th Cir. 1970) ("likely" persecution).
Occasionally, the courts addressed the issue squarely. The Seventh Circuit opined that "the 'wellfounded fear' standard in the Protocol and the 'clear probability' standard which this court has engrafted onto section 243(h) will in practice converge." Kashani Y. 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 Y. INS, 559 F.2d 993, 997 n.8 (5th Cir. 1977).
The Attorney General's parole power was also sufficiently flexible to accommodate the ideologically neutral Protocol standard. In practice, however, ideology continued to animate decision-making. World Refugee Crisis, supra. That a relative few non-Communists were admitted under the parole power siows that the Attorney General could have admitted refugees regardless of ideology.
After 1968 it became increasingly apparent to legislators that the INS was still using practices and procedures that frustrated implementation of the Protocol 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,%5-66 (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.
Legslators introduced bills to require INS to Conform its standards and practices to those of the Protocol, 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 Immigration, Hearings on H.R. 367, H. 981, and H.R. 10323 Before the Subcomm. on Immigration, Citizenship and International Law of the House Comm. on the Judiciary, 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 representatives 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 Genera].' The Department believe[d] 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 hearings in 1977. Congresswoman Holtzman, ultimately the co-sponsor of the 1980 legislation, stated her concern with the INS's narrow reading of the law. She Stated:
"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 specify 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 Sucomrm. on Im. migration Citizenship, and International Law of the House Comm. on the Judiciary, 95th Cong., Ist Sess. 126-27 (1977) (emphasis supplied). Congresswoman Holtzrman, as a lawyer, appreciated that a stringent
In 1978, Congressman Eilbctg, expressing ConCress's growing impatience wits the INS's failure to fulfil the spirit of the Protocol, stated: "For year we 0 v have received assurances from the Justice Domnent 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 Subcomm. 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 legislation.
The Refugee Act of 1980 established a standard for
uniform and non-ideological refugee eligibility. Congress 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 conformed 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 country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. .-. " 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 Refugee Act amended the language of 243(h), basically conforming it to the language of Article 33 of the United Nations Protocol. Section 243(hX]) 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 threatened 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 &jUJLJ J 1 U4 %=
term and thereby incorporates the refugee definition.
It is beyond dispute, furthermore, that Congresa intended the definition of Urefugee" in the 1980 Act to conform to that in the Protocol. See, ,g., 126 Cong. Rec. 3,757 (1980) (statement of Senator Kennedy: "The new definition makes our hw conform to the United Nations Convention and Protocol. .") During hearings, the derivation of the term was often mentioned and never questioned. This intent was emphasized in the report of the Senate Judiciary Committee and debate on the Senate floor. S. Rep. No. 256, 96th Con&, Ist Sess. (1979), 125 Cong. R. 23,231 (1979).
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 Subcomm. on Immigration. Refuge-s 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 Probkem, Hearing Before the Subcomm. on International Organizations of the House Comm. on Foreign Affair,
96th Cong., Ist Sess. 4-5 (1979).
Congress emphasized its concern over the intransigence 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 McMullen, 17 1. & N. 542 (B.I.A. 1980), rrv'dMcMullen v. INS, 658 F.2d 1312 (9th Cir. 1981). In McMullen, the Board denied withholding despite confirming documentary 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 had not demonstrated that the Irish government could
wi 9 uz appeaLS reversed, explaining that the standard applied had been virtually "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 applicant's claim).
Given the adherence of INS to the prior withholding standard, the raising of the issue in Stevic, whether the Refugee Act had relaxed that standard through the adoption of the refugee definition and "wellfounded fear" criterion, was virtually inevitable. The Court's resolution of the issue, however, has but narrow 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 narrow 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 forrior that there is a "reasonable possibility" of persecution.
Only those aliens who were denied asylum (presumably 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 resettled 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 of Salim, 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 discretion in asylum adjudications. Until now, discretion has played a rather circumscribed role. See, e.g., Matter of Salim, supra (asylum denied to Afghan who circumvented the refugee admission program in Pakistan). 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 appartntly 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 Reugee Act-to unify standards and procedures in the area. See Cin Sava, 708 F.2d 869 (2d Cir. 1983) (stowaway held entitled to evidentiary hearing on asylum claim even though a hearing is otherwise precluded by exclusion statute). Stevic reintroduces complications 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(aX1) that an application for relief under f 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 section."
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 withholding 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 definition of "refugee" under the Protocol could be returned 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 discretion under Stevic, there is no reason not to foreclose any ambiguity and make it clear that the refugee standard obtains.
The Supreme Court in Stevic declined to discuss the import of the well-founded fear standard and expressly reserved that issue for another day. To appreciate the meaning of the standard, including Justice Stevens' "reasonable possibility" formulation, refer. ence must be made to-the Handbook on Procedures and Criteria for Determining Refugee Status Under :he 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. IN, F.2d (9th Cir. 1984), which will be discussed in the next issue of IMMIGRATION LAW REPORT, provides a useful vehicle 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 (212) 921-2160
TABLE OF CONTENTS
PRELIMINARY STATEMENT . 1
STATEMENT OF FACTS 1
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
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 comprehensive simultaneous translation
was fundamentally unfair to
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 transcription renders the records
inadt-"jate and misleading 38
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 apprehended 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 transferred thereafter on July 18, 1981, to the Service Processing Center at Brooklyn, New York, where most have remained to the present.
* 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 jurisdiction. 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 followed.
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 predetermination 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 519.
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 systematic 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 contact between appellants and the INS -- from the initial landing in Florida to the preparation of these appeals -7
the INS acted to frustrate and impede the assertion of appellants' asylum claims.
Appellants' asylum applications were denied in yro forma exclusion proceedings in hearings that did not afford appellants even a pretense of fundamental fairness. The Immigration Judges incorrectly applied a "clear probability" 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 Cir. 1981).
The Immigration Judges also gave the appearance of pre-judging appellants' claims. Improper evidentiary rulings admitted defective State Department advisory opinions 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 NATIONALITY ACT
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
0 The relevant statutes are located in the Immigration and Nationality Act of 1952 (the "Act") found at 8 U.S.C. S1101 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. 51101(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
6 The provisions of the Act concerning refugee status and the withholding of deportation are the national law correlatives 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 regulations.
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 deportation.
* 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 conclusion. 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 conditions in Haiti. It is beyond dispute that some Haitians will be subjected to the brutal treatment and bloody prisons of Francois Duvalier upon their deportation. Until the INS can definitely state
which Haitians will be so treated and
which will not, the brutality and bloodletting 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 occurance.
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 contradict 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 documentary 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 supports 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 objective 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 readilyverifiable
"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. 61101(a)(13). By this definition, Congress established 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, Sol0, 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 determination."
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. S1101.
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, sur 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 territorial 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 intentional 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); Mori-n- 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(8 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 including 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. Ciacone v. Corsil, 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:
Since [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).* a Lew Moy v. United States, supra, also relied on by the BIA, Tsinot 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 1-967).
The element of "intent" upon which those cases
turned had its origins as a defense, in criminal and deportation 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 attempting 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 meaning 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 proceedings should be declared void ab initio, and appellants
should have their asylum claims heard and determined in deportation proceedings.
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 establishing 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 proceedings has the burden of establishing that exclusion proceedings 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
0 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 impropriety 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 prejudicial 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 severly
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. 5208.1. This regulation confers jurisdiction for receiving and acting upon "any request for asylum" exclusively 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. S208.1 and vested jurisdiction in the district director. Section 108.1 of the Service's Operations Insttuctions demonstrate that a form 1-5B9 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 regulations. Matter of Chumpitazi, 16 I & N Dec. 629 (BIA 1978); Matter of Exantus and Pierre, 16 1 & N Dec. 382 (BIA 1977). The district director should have adjudicated the asylum claims.
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. S208.1 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 particularly 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 understood 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 ascertaining 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. S236.2 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
". 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, required 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 obligation; 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' evidentiary 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" appellants' asylum applications only seconds after the close of
the record, even though scores of pages of detailed documentary 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. Determination of appellants' cases may not be based on the Immigration 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 attended 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 predetermined outcome.
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. 6208.10(b) that "[t~he BHRHA opinion.shall be made part of the record, and the applicant given an opportunity 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 1243(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, nationality, 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 appellants' 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 crossexamine 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.- 54, 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 Secretary 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 fundamentally 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 information 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. 1977).
In Zamora v. Immigration and Naturalization
Service, supra, the Second Circuit acknowledged the desirability 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 country.". 534 F.2d at 1062. Where, as here, witnesses were located, but were not allowed to appear, the prejudice is manifest.
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 "experiences 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 of- their evidence.
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 relevant 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. 1236.2(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 Immigration 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 claim.
658 F.2d 1312 (9th Cir. 1981); and Berdo v. Immigration and Naturalization Service, 132 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 persecution. 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 administrative proceedings." Niarchos v. Immigration and Naturalization Service, 393 F.2d 509, 511 (7th Cir. 1968). Here, the provision 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 prejudiced 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. S236.2(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 containing 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. 236.2(e).
Appellants were accompanied by their own interpreters 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 immigration 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 hearing a nullity. Cf. United States ex rel. Negron v. State of New York, 434 F.2d 386 (2d Cir. 1970) (Failure to provide a translator when required is the equivalent of holding 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 interpreters.
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 consideration 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 (212) 921-2160
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.