Interim Decision #2914
MATTER OF EX1LUS
In Exclusion Proceedings
A-24720564
Decided by Board August J, 1982 .
(1) The constitutional requirements of due process in an administrative proeeeding vary
according to the relative importance of the governmental and private interests involved;
however, it is settled that such requirements are satisfied in an administrative hearing
if the proceeding is found to be fair.
(2) The immigration judge's refusal to permit the asylum applicant to submit interrogatories to the State Department in connection with an advisory opinion rendered by that
agency did not constitute a denial of due process where the significant impact of such
submission upon the efficient functioning of the government outweighs the minimal
benefit to be gained by the asylum applicant.
(3) Due process does not require the translation of an entire administrative hearing;
however, certain portions of the hearing must be translated in order fnr the pi-neaptiing
to be fair, and the immigration judge may also determine, in his discretion, if translation
of other dialogue is essential to an alien's ability to assist in the presentation of his case.
(4) The immigration judge properly denied a motion for translation of the entire proceeding
where all portions of the hearing after that denial were either translated or explained
to the alien.
EXCLUDABLE: Act of 1952—Sec. 212(a)(19) [8 U.S.C. 1182(a)(19)) —Procured visa by fraud
Act of 1952—Sec. 212(a)(20) [8 U.S.G. 1182(a)(20))---Not in possession of
valid unexpired immigrant visa or other valid entry document
ON BEHALF OF APPLICANT: ON BEHALF OF SERVICE:
Larry S. Rifkin, Esquire Leonard Devertz
Murray & Rifkin, P.A. General Attorney
1 S.W. 3rd Street, Suite 200
Miami, Florida 33130
By: Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members
This case is before us on appeal from a decision of the immigration
judge dated November 18, 1981, finding the applicant excludable and
denying her application for asylum and withholding of exclusion and
deportation. The appeal will be dismissed.
The applicant is a 21-year-old native and citizen of Haiti The record
reflects that she sought admission to the United States on September 7,
276.
Interim Decision #2914
1981. The Service charged her with excludability under sections 212(a)(19)
and (20) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(19)
and (20).
At exclusion proceedings, the applicant conceded excludability on the
advice of counsel. However, she sought relief from exclusion by submitting an application for asylum and withholding of exclusion and deportation.' In conjunction therewith, she made two motions to the immigration judge. She requested that she be permitted to submit interrogatories to the person at the Bureau of Human Rights and Humanitarian
Affairs of the Department of State who rendered an advisory opinion on
her asylum claim. She also moved that the interpreter for the Service
give a simultaneous translation of the entire proceedings, including all
testimony, argument of counsel, and rulings and statements of the immigration judge. The immigration judge denied both motions. He further
concluded that the applicant failed to establish that she has a well-founded fear of persecution if she returns to Haiti. Thus he found that
she was not entitled to asylum or withholding of exclusion and deportation.
On appeal, the applicant contends that the immigration judge erred in
refusing to permit her to submit the requested interrogatories and in
denying her motion for simultaneous translation of the proceedings. She
further argues that the immigration judge improperly denied her application for asylum and withholding of exclusion and deportation.
We shall address first the merits of the applicant's persecution claim.
The law is well settled that an applicant for asylum or for withholding of
exclusion and deportation bears the burden of proving that he has a
well-founded fear of persetigion if he returns to his native land. Fleurinor
v. INS, 585 F.2d 129 (5 Cir.' 1978); Martineau v. INS,
556 F.2d 306 (5
Cir. 1977); Henry v. INS,
552 F.2d 130 (5 Cir. 1977); Daniel v. INS,
528
F.2d 1278 (5 Cir. 1976). This language refers to more than the alien's
subjective state of mind. He must establish that he is likely to. be persecuted on account of his race, religion, nationality, membership in a
particular social group, or political opinion. See Kashani v. INS,
547
F.2d 376, 379 (7 Cir. 1977); see also McMullen-v. INS,
658 F.2d 1312 (9
Cir. 1981).
The applicant claims only that she will be persecuted because she left
Haiti illegally. She admits she has never been arrested or imprisoned
and makes no claim to have ever been a member of an organization
hostile to her country's government or to have expressed a political
opinion adverse to the authorities of that government. Although the
According to 8 C_F.R 208_8(h), an asylum request made after the institution of exclusion proceedings shall also be considered as a request for withholding of exclusion and
deportation pursuant to section 243(h) of the Act, $ U.S.C. 1233(h).
277
Interim Decision #2914
applicant las submitted numerous magazine and newspaper articles,
none relate to her individually or specifically support her claim that her
illegal departure would result in persecution upon her return to Haiti.
Furthermore, similar claims have been addressed and rejected as insufficient to establish a likelihood of persecution in Haiti without further
substantial evidence that prosecution for an illegal departure would
- occur or would be politically motivated. Henry v .7NS, supra; Matter of
Williams, 16 I&N Dec. 697 (BIA 1979); cf. Coriolan v. INS,
559 F.2d
993 (5 Cir- 1977). We are not convinced by the applicant's bare allegations and the evidence piesented that she would be persecuted in Haiti.
Inasmuch as the applicant has failed to meet her burden of establishing
the likelihood of persecution, 'we conclude that the immigration judge
properly denied her application for asylum and witholding of exclusion
and deportation.
The applicant argues that she was severely prejudiced by the immigration judge's refusal to allow submission of interrogatories. She asserts
that the immigration judge's actions effectively denied her the opportunity to inspect, explain, and rebut the adverse evidence against her
because she was precluded from determining how the State Department
arrived at the conclusions in its advisory opinion. Thus the applicant
claims that she was deprived of her due process right to a fair hearing.
Due process in an administrative proceeding is not defined by inflexible rules which are universally applied, but rather varies according to
the nature of the case and the relative importance of the governmental
and private interests involved. Mathews v. Eldrid,ge, 424 U.S. 319 (1976);
Richardson v. Perales,
402 U.S. 389 (1971); Cafeteria & Restaurant
Workers Union v. McElroy,
367 U.S. 886 (1961); Blackwell College of
Business v. Attorney General,
454 F.2d 928 (D.C. Cir. 1971); Matter of
Swissair "Flight SR 168,"
15 I&N Dec. 372 (BIA 1975). The constitutional requirements of due process are satisfied in an administrative
hearing if the proceeding is found to be fair. See Martin-Mendoza v.
INS,
499 F.2d 918 (9 Cif. 1974); Navarette-Navarette v. Landon,
223
F.2d 234 (V Cir. 1955), cert. denied,
351 U.S. 911 (1956); Matter of De
Vera,
16 I&N Dec. 266 (BIA 1977). In order to establish that he has
been denied a fair hearing, an alien must show that he has suffered
prejudice_ Nicholas v_ INS,
590 F.2d 802 (9 Cir_ 1979).
We do not find that this applicant was denied a full and fair hearing as
a result of her inability to submit interrogatories to the State Department. She complains only that she was precluded from determining how
the State Department arrived - at its conclusions. However, the letter
itself clearly states that the opinion was based on the evidence she had
submitted and the fact that the State Department had no other information to support her claim. The applicant was provided an opportunity to
explain and rebut the conclusion in the State Department letter that she
278
Interim Decision #2914
failed to establish a well-founded fear of persecution, yet she did not
submit any evidence in rebuttal to the advisory opinion. Further, she
has not specified any particular prejudice which resulted from the immigration judge's refusal to permit interrogatories, nor has she indicated
how the submission of interrogatories would have advanced her claim of
persecution. Consequently, we conclude that her exclusion hearing was
fair.
Furthermore, as a general rule, we do not find that the refusal of an
immigration judge to permit submission. of interrogatories to the State
Department constitutes a denial of due process. The regulations require
that the advisory opinion rendered by the State Department must be
included in the record and that the applicant for asylum must be given
an opportunity to inspect, explain, or rebut it. See 8 C.F.R. 208.10(b);
Matter of Saban, 18 l&N Dec. 70 (BIA 1981); Matter of Francois,
15 I&N Dec. 534 (BIA 1975). The purpose in admitting the advisory
opinion of the State Department into evidence at a hearing on an asylum
claim is three-fold: (1) to establish compliance with the regulatory requirement of 8 C.F.R. 208.10(b); (2) to bring forth any information available
to the State Department which supports the applicant's claim; and (3) to
indicate the State Department's opinion regarding the likelihood of persecution given the specific facts presented by the applicant. We recognize that these opinions are ex parte declarations which are submitted
without the traditional safeguards required of admissible evidence in
judicial proceedings and that they are frequently general in nature. 2
-Howevr,thpinsbdgotheimranjudthe
Board and these factors are considered in determining the significance,
if any, to be accorded an advisory opinion and in weighing its evidentiary value in relation to the evidence presented by the alien. See Matter
• of Williams, supra; Matter of Francois, supra.
The inclusion of the State Department opinion in the record was not
intended to provide additional discovery procedures for the applicant
for asylum. The burden of establishing the likelihood of his persecution
rests with the applicant. 3 Furthermore, the applicant is given ample
The reliability of the opinions issued by the State Department involving asylum claims
has been questioned in some court decisions. See Khalil v. District Director, 457 F.2d
1276 (9 Or_ 1972); Hosseinmardi v. INS,
405 F.2d 25 (9 Cir. 1968), rehearing denied
(1969); Kasravi v. INS.
400 F.2d 675 (9 Cir. 1968). However, their value as a source of
information about the general conditions in foreign countries has been recognized and we
know of no decision finding the admission of such opinions into evidence to be reversible
error. See Zamora v. INS,
534 F.2d 1055 (2 Cir. 1976); Asgheri v. INS,
396 F.2d 391 (9
Cir. 1968); Namkung v. Boyd,
226 F.2d 385 (9 Cir. 1955); United States ex rel. Dolenz v.
Shaughnessy,
206 F.2d 392 (2 Cir. 1953); Matter of Francois, supra; see also Jaen v. INS,
554 F.2d 155 (3 Cir. 1977); Martineau. v. INS, supra; Daniel v INS, supra_
Where the denial of an asylum claim has been based on the applicant's failure to
present sufficient evidence of persecution, the courts have not found the absence of cross-
279
Interim Decision #2914
opportunity to present evidence in rebuttal of any adverse information
from the State Department. See 8 C.F.R. 208.10(b); Jaen v. INS, supra.
Consequently, we are not persuaded that the denial of interrogatories
unfairly prejudices the asylum applicant's ability to present his claim or
that their submission would measurably improve it. Moreover, we are
not unmindful of the potential effect that the submission of interrogatories 'would have on the already heavy workload under which the State
Department now labors. It is clear that this would also excessively
prolong exclusion proceedings involving asylum claims. Balancing the
significant impact that submission of interrogatories would be likely to
have on the efficient functioning of the government against the minimal
benefit that an asylum applicant may reap, we conclude that no denial of
due process results from the absence of interrogatories. See Mathews v.
Eldridge, supra.
We likewise reject the applicant's argument that the immigration
judge's refusal to permit simultaneous translation of the entire proceedings' denied her due process right to a fair hearing.' The applicant conLends that she was prejudiced by her ability to understand only part of
the hearing and by the inunigratien judge's .delegation of authority to
the interpreter to determine when translation was necessary. However,
she has specified no particular injury which resulted from the alleged
error and has failed to set forth the untranslated portions of the hearing
which she believes required translation.
Our review of the transcript indicates that the applicant's attorney
submitted his motions only after admitting the allegations against the
applicant and conceding her excludability. Subsequent to the immigration judge's denial of the motions, the remainder of the proceeding
consisted only of questions directed to the applicant and her responses,
all of which were translated by the interpreter." Although the immigration judge asked counsel for the applicant if he desired a translation of
the decision, counsel stated that he would explain it to the applicant
himself. There was consequently no part of the hearing after submission
examination or interrogatories to be prejudicial error. See Pereira-Diaz v. INS,
551 F.2d
1149 (9 Cir. 1977); Paul v. INS,
521 F.2d 194 (5 Cir. 1975); Hosseinmardi v. INS, supra.
It is ottrunderatanding that in requesting "simultaneous translation" of the pruceedisigs,
the applicant did not intend for the translation to be made through the use of electronic
equipment so that the interpretation is indeed simultaneous, but desired only to have the
interpreter who was present at the hearing give a consecutive translation of the entire
proceedings. Cf_ United States v. Boria, 371 F.Supp 1068 (D.P.R. 1973).
5 We note that the examination of the applicant regarding her asylum claim was comprised• of only three questions asked by her counsel and two by the attorney for the
Service. In response to her attorney's questions, the applicant stated that she left Haiti
illegally and that she would be beaten or killed by government officials if she returned. '
The only information elicited as a result of the Service's attorneys questions related to her
date and place of birth and her marital status.
280
Interim Decision #2914
of the motions which was not either translated or explained to the
applicant, so neither of her arguments has any basis in fact. Her contention that she was denied a fair hearing is, therefore, completely without
merit. See Ramirez v. INS, 550 F.2d 560 (9 Cir. 1977); Orozco-Rangel
v. INS,
528 F.2d 224 (9 Cir. 1976); cf. Tejeda-Mata v. INS,
626 F.2d 721
(9 Cir. 1980); Tapia-Corona v. United States,
369 F.2d 366 (9 Cir. 1966).
Although an alien in exclusion or deportation proceedings is entitled
to a fair hearing, we do not find that due process requires translation of
the entire hearing. In most cases, all that need be translated are the
immigration judge's statements to the alien, the examination of the
alien by his counsel, the attorney for the Service, and the immigration
judge, and the alien's responses to their questions. However, the immigration judge may determine; in the sound exercise of his discretion,
that the alien's understanding of other dialogue is essential to his ability
to assist in the presentation of his case. Cf. United States v. Barrios,
457 F.2d 680 (9 Cir. 1972); United States v. Carrion,
488 F.2d 12 (1 Cir.
1973), cert. denied,
416 U.S. 907 (1974); United States v. Rodriguez,
424
F.2d 205 (4 Cir_), cert.. deithici, 400 TLS_ MI (1970); United States v.
Sosa,
379 F.2d 525 (7 Cir.), cert. denied,
389 U.S. 845 (1967); Suarez v.
United States,
309 F.2d 709 (5 Cir. 1962). For example, where a witness
testifies regarding factual matters which specifically relate to the alien's
own testimony, effective cross examination may necessitate translation
-
of the witness's testimony. See Tejeda-Mata v. INS, supra; United
States v. Carrion, supra; United States ex rel. Negron v. State of New
York,
434 F.2d 386 (2 Cir. 1970); Gonzalez v. People of Virgin Islands,
109 F.2d 215 (3 Cir. 1940). On the other hand, arguments presented by
counsel and the rulings of the immigration judge are primarily legal
matters, the translation of which generally would not be required where
the alien is represented and the protection of his interests is ensured by
counsel's presence.
Exclusion and deportation proceedings are civil, rather than criminal,
in nature, and the constitutional requirements of due process are satisfied by a full and fair hearing. Tejeda-Mata v. INS, supra; Ramirez v.
INS, supra,. We believe that the above stated guidelines, when implemented by the immigration judge in the sound exercise of his discretion,
reasonably assure that the alien will be afforded a fair hearing which
comports with the standards of due process. In this case, the judgment
of the immigration judge to deny the applicant's motion for simultaneous translation was appropriate.
Accordingly, the appeal will be dismissed.
ORDER The appeal is dismissed.
281
