MATELOT

Interim Decision #2927




                                MATTER OF MATELOT
                              In Exclusion Proceedings
                                       A-26007558
                      Decided by Board November 1, 1982

(1) An immigration judge's refusal to admit as evidence findings of fact that are contained'
   in a reported federal decision does not deprive an alien of the opportunity to fully present
  an asylum claim.
CHARGE:
  Orden Act of 1952—Sec. 212(a)(20) [8 U.S.C. 1182(a)(20)]—Immigrant not in possession
                      of valid unexpired immigrant visa or other valid entry document
ON BEHALF OP APPLICANT:                                  ON BEHALF OF SERVICE:
   James W. Gardner, Esquire                               Debra Gordon
   Brown, Bucalos, and Gardner                             General Attorney
, 712 Lexington Building
   201 West Short Street
   Lexington, Eentucky 40507
BY:   Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members


   This matter is before the Board on appeal from the immigration judge's
decision of December 9, 1981, finding the applicant excludable from
admission to the United States under section 212(a)(20) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(20), and denying his application for asylum under section 208 of the Act.' The appeal will be
dismissed.
  The applicant is a 27-year-old native and citizen of Haiti who arrived
in the United States on July 14, 1981, by boat near Miami, Florida. He
hafino documents with which to enter the United States and was held in
detention by the Service. On September 1, 1951, he was served with
Form 1 122, "Notice to Applicant for Admission Detained for Hearing
          -


Before Immigration Judge," alleging that he was excludable from admis-

    The filing of an application for asylum in exclusion proceedings shall also be considered
as a request for withholding of exclusion or deportation under section 243(h) of the Immigration and Nationality Act, 8 U.S.C. 1253(h). 8 C.F.R. 208.3(b); see Mailer of Exilits, 18
I&N Dec. WO (NIA 1982); matter of Portales, 16 I&N Dee. 239 USIA 1982); matter of
Castellon, 17 l&N Dec: 616 (BIA 1981).

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sion to the United States under section 212(a)(20) of the Act as an
immigrant not in possession of a valid immigrant visa. Following his
initial two hearings before the immigration judge which were continued
to permit the applicant to have counsel prepared and to submit an
asylum application, the applicant filed Form 1-589, "Request for Asylum
in the United States," on October 16, 1981. 2 Upon receipt of an advisory
opinion from the United States Department of State, Bureau of Human
 Rights and Humanitarian Affairs (BHRHA), 3 the exclusion hearing was
resumed on December 9, 1981. The immigration judge found the applicant excludable as indicated above and denied his asylum application.
   On appeal, the applicant submits that the Service has the burden of
 proving that exclusion proceedings are proper. He alleges it was error
 to deny his request to have the government's primary inspector verify
 that exclusion proceedings are appropriate. The applicapt's argument is
 misplaced.. It is clear that an applicant in exclusion proceedings has the
 burden of establishing that exclusion proceedings are improper. See
section 291 of the Act; Matter of Phelisna, 

 (BIA
.1982); Matter of Lie La Nues, 18 1&N Dec. 140 (BIA 1981); Matter of
Pierre, 

 (BIA 1973); but cf. Matter of Salazar, 

 (BIA 1979) (colorable claim to lawful permanent resident status).
The applicant has not alleged that he "entered" the United States, but.
 rather, testified that he intended to work in the United States, that he
 intended to live here permanently and that he had no document which
 would permit him to reside in this country. Thus, the record clearly
 establishes that the applicant is excludable under section 212(a)(20) of
 the Act as an immigrant without a valid immigrant visa or other valid
 entry document.
   The applicant also raises various other arguments. He objects to the
 denial of his motion for "simultaneous translation" of the exclusion
 hearing. We find no error in the denial of this motion. See Matter of
Exilus, 18-I&N Dec. 276 (BIA 1982).
    Although the applicant apparently filed an incomplete 1-589 with the District Director,
he states that he advised the District Director that a thorough 1-589 would be submitted
within 45 days. Because the District Director presumably denied the asylum application in
2   letter received by the applicant an November :40, 1981, the applicant submits that he
was never given the opportunity to file:a thorough 1-589.
   The applicant's contention is without merit. Although harmless, it was error for the
District Director to rule on the 1-589. Where an applicant for admission to the United
States files an 1-589 after being placed in exclusion proceedings, jurisdiction over his
asylum claim lies exclusively with the immigration judge. See Matter of Dee, 18 l&N Dec.
269 (BIA 1982). The applicant was placed in exclusion proceedings on Septemlier 1, 1981,
with the service of Form 1-122. His asylum application was subsequently filed on October
16, 1981. Therefore, as the District Director had no authority to rule on the original 1-589,
the applicant has no basis upon which to submit an amended 1-589 to the District Director
fiir adjudication.
   3 See 8 C.F.R. 208.7 and 208.10(b). •



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Interim Decision #2927
  The applicant contests the'denial of his motion for parole. We find no
error in the denial of this motion. The District Director has exclusive
jurisdiction to parole an alien into the United States pursuant to 8
C.F.R. 212.5(a). Neither the immigration judge nor this Board has
jurisdiction to exercise parole power. Matter of Castellon, 

 (BIA 1981); Matter of Niayesh, 

 (BIA 1980); Matter
of Lepofsky, 

 (BIA 1974); Matter of Conceiro, 

 (BIA), affd, Conceiro v. Marks, 

 (S.D.N.Y.
 1973).
   The applicant argues that the denial of background information relating to conditions in Haiti deprived him of the opportunity to fully present his asylum claim. In Matter of Exame, 

 (BIA
1982), we found that the applicant was not afforded a full and fair opportunity to present his persecution> claim because the immigration judge
categorically refused to admit background evidence pertaining to conditions in Haiti. These proceedings are distinguishable from Exame,
however, in that the applicant's counsel admitted that he did not have
the documents which he wished to present to the immigration judge for
consideration (fr. p. 20). Under the circumstances of these proceedings,
we find no error in the immigration judge's refusal to receive unsubmitted
documents. Moreover, some of the documents which the applicant sought
to introduce were attached to his amended asylum application and were
received into evidence.
   In addition, we fmd no error in the immigration judge's refusal to
admit the findings of fact in Haitian Refugee Center v. Civiletti, 

 (S.D. Fla. 1980). These findings were made in proceedings
separate and distinct from those in the instant case. Further, it is not
necessary to introduce federal decisions into the proceedings inasmuch
as the findings and conclusions set forth therein are a matter of record
and can be cited. Moreover, on appeal, the Fifth Circuit agreed in part
with the government's contention that the district court erred in entering findings of fact on life in Haiti and found that the district judge
exceeded his authority to the extent he implied by his findings and
conclusions that the plaintiffs' claims of fear of persecution merited the
granting of asylum. See Haitian Refugee Center v. Smith, 

 (5 Cir. 1982).
   The applicant alleges that he was denied effective assistance of counsel because his present counsel was not competent to handle this case,
 having no prior experience in immigration law. After reviewing the
 proceedings and the brief on appeal, we are unpersuaded that the applicant has sustained his burden of establishing that he was denied effective assistance of counsel.
    Similarly, the applicant alleges that the immigration judge erred in
 refusing to grant a continuance because his counsel only had 9-days'

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notice to prepare for the hearing and because he had received the State
Department's advisory opinion immediately before the hearing. This
argument is without merit. The record reflects that counsel's partner
was present and had represented the applicant at his original hearing on
September 1, 1981. Further,•the record contains Form G-28, "Notice of
Entry of Appearance as Attorney or Representative," which was filed
by the applicant's counsel and which was received into evidence by the
immigration judge on September 29, 1981. Therefore, at a minimum,
the applicant's counsel had over two months and, more likely, had over
three months to prepare for this else. The 9-day notice in advance of the
continued hearing held on December 9, 1981, was not insufficient notice
inasmuch as the applicant's counsel actually had a substantially greater
period of time in which to prepare for the proceedings.
   In addition, we find no error with the denial of a continuance to rebut
the State Department's advisory opinion. The applicant does not allege
what evidence would have been forthcoming if the continuance 11111 been
granted. Further, the applicant was given the opportunity to rebut the
opinion expressed by the State Department and, in fact, did su by
testifying and submitting an amended asylum application in support of
his position. Moreover, the opinion is not binding on the immigration
judge or this Board.
   Finally, the applicant asserts that he has established his asylum claim,'
based on his rationale for escaping from Haiti and belief of the consequences of his return to that country. The applicant also contends that
there is no evidence to show why he is not entitled to asylum inasmuch
as the Service did not call any witnesses or present any proof to rebut
his case. -
   An applicant for asylum or withholding of deportation must show
that, if deported, he would be subject to persecution or that he has a
well-founded fear of persecution based on his race, religion, nationality,-
membership in a particular social group, or political opinion. Section
208(a) of the Act. See section 243(h) of the Act; Rejai© v. INS, 

 (3 Cir. 1982); McMullen v_ INS, 

 (9 Cir. 1981); Kashani
v. INS, 

 (7 Cir. 1977); Matter of Portales, 

(BIA 1982); Matter of Martinez-Romero, 

 (BIA 1981);
Matter of Dunar, 

 (BIA 1973). See also Stem v. Sava,

 (2 Cir. 1982). It is clear that, when presenting a claim, the
applicant has the burden of proof in such proceedings. See 8 C.F.R.
208.5; Haitian Refugee Center v. 

; McMullen v.
INS, supra; Matter of Exiles, supra. Moreover, an alien.who makes an
illegal departure from Haiti does not necessarily establish a well-founded
fear of persecution under the Act. See Matter of Exiles, supra. See also
Matter of Nagy, 

 (BIA 1966); Matter of Liao, 

 (BIA 1965).

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Interim Decision #2927
Liao, 

 (BIA 1965).
  The applicant believes that his claim should be granted because of his
,problems xxith the Ton Ton Macoutes and because he departed from
Haiti without authorization. In essence, the applicant states that his
father was imprisoned by the Ton Ton Macoutes for an unknown reason,
but was released upon the payment of $60.00. The applicant further
states that because he was responsible for his father's release, he was
questioned many times by the Ton Ton Macoutes. After a friend told
him that tile Ton Ton Macoutes were looking for him, the applicant
decided to leave Haiti.
   The applicant has not established that he will be persecuted or that he
has a well-founded fear of persecution within the contemplation of
section 20a(a) or 243(h) of the Act, regardless of whether his claim is
assessed in terms of whether he has demonstrated a "clear probability,"
a "good reason," or a "realistic likelihood.' The applicant states that he
departed from Haiti without permission. However, if returned, he has
not shown how his perceived treatment will be different from other
Haitians whio departed from that country without authorization or that
the penalty, if any, imposed by the Haitian government is within the
meaning of the Act. Further, on this record we are unable to conclude
that the questioning and possible arrest of the applicant by the Ton Ton
Macoutes qualifies the applicant for asylum and section 243(h) relief,
particularly when the contents of the questioning and reason for the
perceived arrest are not a matter of record.
  Accordingly, the appeal will be dismissed.
  ORDER:The appeal is dismissed.




 4 Therefore, we find no error with the zefueal of the immigration judge to outunit the
amended asylum application to the BHRHA of the Department of State for a second
advisory opinion. See 8 C.F.R. 208.10(b).

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