Interim Decision #1923
MATTER OF JOSEPH
In Deportation Proceedings
A-14840845
Decided by Board November 29, 1968
(1) While the special inquiry officer must exercise discretion to keep the
hearing within bounds, the strict rules of evidence do not apply in an immigration proceeding and an applicant for relief under section 243(h), Immigration and Nationality Act, as amended, should be given reasonable
opportunity in the presentation of evidence to be relied on by the Attorney
General in formulating an opinion as to whether withholding of deportation is warranted.
(2) Where the testimony of respondent and his witness affirmatively established respondent was politically active as a leader of the opposition to the
Duvalier regime from 1957 until his departure from Haiti in 1965; he was
incarcerated on 3 occasions by the Duvalier regime and was beaten; his
father-in-law was assassinated by supporters of Duvalier; and he has
been an activist in opposition to Duvalier since his arrival in the United
States, respondent has established a clear probability that should he return to Haiti he would be subject to persecution because of political opinion within the meaning of section 243(h) of the Act, as amended, administrative notice being taken that conditions in Haiti, as set forth in United
States ex red Mercer v. Esperdy, 234 F. Supp. (S.D. N.Y., 1964), have not
improved to any extent since 1964.
CHARGE:
Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251 (a) (2)1—Nonimmigrant--remained longer.
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
James J. Hines, Esquire R. A. Vielhaber
1250 Connecticut Ave., N.W. Appellate Trial Attorney
Washington, D.C. 20036
The respondent, a native and citizen of Haiti, appeals from an
order entered by the special inquiry officer on September 5, 1968
granting him voluntary departure in lieu of deportation as an
alien who after entry as a nonimmigrant visitor remained longer
than permitted. An application for withholding deportation to
Haiti pursuant to section 243(h) of the Immigration. and Nation-
70
Interim Decision # 1923
ality Act was denied. Exceptions have been taken to the denial of
the application for withholding deportation.
The respondent, a married male alien, last entered the United
States through the port of San Juan, Puerto Rico, on or about
May 1, 1965. He was admitted as a nonimmigrant visitor for
pleasure authorized to remain in the United States until June 15,
1965. He has remained in the United States subsequent to June
15, 1965 without authority and concedes that he is deportable as
charged in the order to show cause.
The respondent applied for a withholding of his deportation
pursuant to the provisions of section 243 (h) of the Immigration
and Nationality Act. The respondent maintains that he is
regarded as a political opponent of the Duvalier Regime in Haiti
and that he would be subject to persecution on account of his
political opinion if he returns to his native country. The special
inquiry officer concludes that the respondent has not met the
burden of establishing by substantial evidence that he would be
subject to persecution because of his race; religion or political
opinion if he returns to Haiti.
The respondent testified that during the presidential campaign
of 1957 he was active politically in behalf of Louis Dejoie, a candidate who ran in opposition to Duvalier. The respondent further
testified that he was a member of the corps of guards organized
by Dejoie; that during the campaign, he was arrested, beaten up
and taken to jail for no reason (pp. 15 and 16). He was again
arrested in 1958, held in prison for six months, and beaten on
three occasions. He bears sears on his body as a result of the
beatings (pp. 19-21). The respondent testified that after his
release from prison in 1958, he joined the underground and on
occasion went into hiding (p. 22). He was again arrested for
security reasons in February of 1965. He testified that he was
beaten while in prison; that upon his release from prison he went
into hiding and that soon after his release he began making
arrangements to go to the United States (pp. 28-29). He testified
that his mother bribed the officers to obtain the necessary papers
for entry into the United States (p. 31). He obtained a Haitian
passport through a Haitian consul located in Miami, Florida (p.
81).
The respondent testified that after his arrival in the United
States, he was active with a political group known as "Luc
Somard" which had as its aim the subversion of the Duvalier
Government (p. 32). The respondent also testified that he was
71
Interim Decision #1923
associated with the Moran group which had its own newspaper
(p.69).
A witness for the respondent, one Luc Savein, testified that he
and the respondent were the campaign leaders for Dejoie; that he
[the witness] - was occupationally a salesman for Esso Standard
Oil Company in Haiti and also published his own newspaper, "La
Cloche"; that he [the witness] was arrested in the month of
October 1966; that he was subsequently released; and that he
then obtained a Haitian passport to enter the United States. The
witness testified that the respondent would be apprehended at the
airport and killed without any ceremonies if he returned to Haiti
(P. 53).
The respondent testified that his brother in law is in exile in
- -
the United States and that his father-in-law, an attorney, was
assassinated (pp. 63 and 64). The respondent further testified
that after the assassination in 1964 or 1965, he went into hiding
(pp. 64 and 65) .
The testimony of the respondent and his witness makes it clear
that they were active politically against the Duvalier Regime
from 1957 up until the respondent's departure in June of 1965.
The respondent has been incarcerated on three occasions by the
Duvalier Regime and while in prison, he was beaten and there is
evidence of scars on his body attesting to this fact. The court in
U.S. ex rel. Mercer v. Esperdy, 234 F. Supp. 611 (S.D.N.Y.,
1964), took judicial notice of the danger of persecution faced by
political opponents of Duvalier. The court, on the basis of facts
reported to the press concerning conditions in Haiti, stated that
there was a "suppression of human rights and a total nonexistonce of any rule of law"; that there has been a suspension of "all
articles of the Constitution guaranteeing individual rights, among
them being free speech, freedom from arrest and police brutality" (p. 617). It is a matter of common knowledge and this Board
takes administrative notice that conditions in Haiti have not
improved to any extent since 1964.
The policy restricting the. favorable exercise of discretion to
eases "of clear probability of persecution of the particular individual petitioner" has been sanctioned by the courts. Lena v.
Immigration and Naturalization Service,
379 F.2d 536, 538 (7th
Cir., June 7, 1967). The court in Cheng Kai Fu v. Immigration
and Naturalization Service,
386 F.2d 750 (2d Cir., 1967), cert.
denied
390 U.S. 1003, said that an alien must show that he would
be singled out as an individual by the governmental authorities
and suffer persecution therefrom in order to establish a clear
72
Interim Decision #1923
probability of persecution. We are of the opinion that the
respondent has met this burden.
Counsel for the respondent during oral argument of the case
before this Board referred to the conduct of the proceedings by
the special inquiry officer. He questions whether the respondent
had an adequate opportunity to develop that quantum of proof
imposed 1 upon him as an alien who applied for relief under section 248 (h) of the Act because the special inquiry officer on
numerous occasions sustained the objections of the trial attorney
to questions posed by the attorney who represented the respondent during the several hearings. Counsel is of the opinion that a
reasonable latitude for interrogation should be allowed in a proceeding under section 248 (h) of the Act.
We have carefully reviewed the record in light of the question
raised by counsel. We note that the special inquiry officer sustained the objections of the trial attorney on more than 45 occasions in some 50 pages of the record (pp. 15-70). As an example,
the witness for the respondent was questioned as to whether he
engaged in any political activity with the respondent. The trial
attorney objected and the special inquiry officer sustained, assigning no reason (p. 36). On other occasions when the respondent or
his witness was questioned regarding violence during the political
campaign in which they both participated, regarding the presence
of physical marks on the body of the respondent and regarding
whether anyone directly related to the respondent was persecuted
by Duvalier, the special inquiry officer sustained the trial attorney's objections (pp. 38, 19 and 61). The special inquiry officer on
some occasions stated that he was sustaining the trial attorney's
objections because the particular question was either leading,
irrelevant or without proper foundation. The special inquiry
officer on one occasion during the hearing informed the respondent's counsel that he must "follow accepted procedures and formulate [his] questions in accordance with rules of evidence" (p.
49). The special inquiry officer on another occasion, after the trial
attorney objected to a question as to whether the respondent had
knowledge that his house was being watched by the Mavis,
stated : "Sustained. Leading. Counsel have you any idea of the
proper formation of a question?" (p. 66)
Although the special inquiry officer must exercise discretion to
keep the hearing within bounds, we think in this case he was
1 8 CFR 242.17 (c) provides, inter alia, that an alien who applies for relief
under section 243 (h) during a deportation proceeding "has the burden of
satisfying the special inquiry officer that he would be subject to persecution
on account of race, religion, or political opinion as claimed."
73
Interim Decision #1923
unduly restrictive. A deportable alien is eligible for relief under
section 243 (h) only when in the "opinion" of the Attorney General his deportation would subject him to persecution because of
his race, religion or political opinion in the country to which he
has been ordered deported. The statute does not restrict or specify the considerations that may be relied upon by the Attorney
General in formulating an "opinion." Under the circumstances,
an alien should be given a reasonable opportunity to develop his
case. The strict rules of evidence do not apply in an immigration
proceeding. Furthermore, in light of the situation known to exist
in Haiti, counsel in this case should have been accorded wider latitude in fully developing the evidence. The stakes are high and
the Attorney General must rely primarily on the record in reaching an intelligent and fair "opinion" as to whether a withholding
of deportation is warranted.
It has been our observation that documentary evidence is
seldom available to establish the likelihood of persecution. In the
usual situation, the only way an adequate record can be created
in a section 243 (h) case is by questioning the alien and his witnesses. The important factor is not whether the question is leading, irrelevant, or without foundation, but rather whether the
answer would assist the Attorney General in formulating his
opinion. The special inquiry officer should weigh this objective
along with his obligation to keep the record within bounds when
ruling upon objections made by either counsel for the alien or the
trial atttorney.
Although we find this record circumscribed, we conclude on the
basis of the evidence before us that there exists a very real and
present danger that the respondent would be persecuted because
of his political opinion if he should return to Haiti. He has
affirmatively established that he was politically active as a leader
of the opposition to the government of Duvalier while residing in
Haiti. His father-in-law, an attorney in Port-au-Prince, was
assassinated by supporters of Duvalier. The respondent has been
an activist in opposition to Duvalier since he arrived in the
United States. We will withhold the respondent's deportation to
Haiti pursuant to section 243 (h) of the Immigration and Nationality Act.
ORDER: It is directed that the appeal be and the same is
hereby sustained.
It is further directed that the deportation of the respondent be
withheld pursuant to, the provisions of section 243(h) of the
Immigration and Nationality Act.
74
