Augustin v. Sava, 815
| Citation | 735 F.2d 32 |
| Decision Date | 22 May 1984 |
| Docket Number | No. 815,D,815 |
| Parties | Basseter AUGUSTIN, Petitioner-Appellant, v. Charles C. SAVA, District Director of the New York District of the Immigration and Naturalization Service, and Kevin Doyle, Deputy Assistant Director For Detention and Deportation of the Immigration and Naturalization Service, Respondents-Appellees. ocket 83-2326. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Robert B. Calihan, New York City (Richard E. Simpson, New York City, on the brief), for petitioner-appellant.
Michael P. DiRaimondo, Sp. Asst. U.S. Atty., Brooklyn, N.Y. (Raymond J. Dearie, U.S. Atty., and Miles M. Tepper, Asst. U.S. Atty., Brooklyn, N.Y., on the brief), for respondents-appellees.
Before TIMBERS, NEWMAN and KEARSE, Circuit Judges.
Haitian refugee Basseter Augustin appeals from two orders entered on July 15, 1983 and August 26, 1983, and from the judgment entered thereon, in the Eastern District of New York, Eugene H. Nickerson, District Judge, denying his petition for a writ of habeas corpus which sought judicial review of an order of exclusion and deportation.
The district court, in rejecting appellant's claim that his due process rights had been violated, held that entering aliens have few, if any, due process rights; that in this case a meaningful application for asylum was not made "utterly impossible"; and that the Immigration Judge (IJ) did not abuse his discretion in denying a continuance. The court also rejected appellant's claim that he should have been placed in deportation proceedings rather than exclusion proceedings, holding that such claim had not been presented to the IJ or the Board of Immigration Appeals (BIA) and therefore had been waived.
This appeal raises important issues with respect to the procedural rights of aliens, including particularly the judicial duty to scrutinize the scope and accuracy of translations of immigration administrative proceedings. We hold that Augustin's procedural rights were violated by the inadequate translation of his hearing before the IJ. We remand to the district court with instructions to grant the writ unless a renewed asylum request is properly processed.
Haitians began to arrive in the United States in the early 1970s. Over the last ten years, around 40,000 have come to the United States, some fleeing political persecution and some fleeing destitution. Attempting to sort out the genuine claims of persecution which justify political asylum has been a difficult task. The attempt has generated much litigation.
Augustin claims that he came to this country to escape political persecution directed at himself and his family by paramilitary forces of the Haitian government. He alleges that his cousin, Benjamin Janvier, angered the Tonton Macoutes by having one of their members arrested for the suspected poisoning of his father (Augustin's uncle). 1 Janvier was severely beaten during his six month imprisonment. He further angered the government by refusing, upon his release, to return to his former post with the Leopards, another paramilitary group.
Thereafter, Augustin's entire family was placed under surveillance, threatened, and periodically arrested. In response, Augustin and Janvier initiated political activities against the Duvalier regime. They formed a local opposition group which challenged the Tonton Macoutes and they participated in secret martial arts classes. Augustin was detained and interrogated at Casearnes Arsenal on February 8, 1981. He went into hiding several months after his release because he learned that the Haitian Army had arrested three other members of his family and was looking for him and Janvier. The Army located Janvier and had him arrested.
On August 25, 1981, Augustin left Haiti in a small boat. The boat sank off the Florida coast on October 26, 1981. Thirty-three passengers (including Augustin's sister) drowned. Augustin was carried by the current to the beach. He attempted to help others involved in the sinking and then began walking into town. He was arrested as he approached a Miami sidewalk with others from the boat. After his arrest and initial processing by the Immigration and Naturalization Service (INS), he was taken to Krome Detention Center near Miami where he was held for nine months pursuant to an INS detention program. Pro bono counsel Magda Montiel Davis was assigned to Augustin pursuant to a consent decree forbidding exclusion or deportation of Haitian refugees not represented by counsel. Louis v. Meissner, 530 F.Supp. 924, 930 (S.D.Fla.1981).
Since Ms. Davis spoke no Creole and Augustin spoke no English, preparation for the hearing and the asylum petition required the services of a translator. According to Ms. Davis, the INS promised to provide translating services but failed to do so at critical times. 2 At other times it provided a translator who appears to have been inadequate. The asylum form filed by Augustin and relied upon by the IJ, the BIA, and the State Department reflects the translator's misinterpretation that Augustin fled Haiti for fear of arrest because his uncle had a "disease". Further interrogation of Augustin following the BIA hearing and his affidavit of April 13, 1983, however, make it clear that this "disease" theory was not the substance of his claim.
At the exclusion hearing held on July 7, 1982, Ms. Davis requested a continuance to allow her to obtain the material she needed from the translating service and adequately to prepare the petition for asylum. She recited the failure of the translating service to send the translated letter or answers and its failure to appear for a meeting with her and Augustin as justification for the continuance. 3 INS did not oppose the continuance application.
The IJ, however, denied the application, stating to Ms. Davis that "the Court will not be a party to keeping [Augustin] in further incarceration, and that is all I would be doing by putting this off." He told Ms. Davis that she could question her client before him and that his answers would be made a part of the record. Ms. Davis stated that she did not know who to call as witnesses to substantiate the political persecution claim. The IJ responded that perhaps there were no witnesses to call. 4 Faced with this situation, Ms. Davis announced that she was withdrawing from representing Augustin at the exclusion hearing.
The IJ proceeded to question Augustin about his excludability. He asked him if he was a citizen of Haiti, when he arrived, how he arrived, whether he intended to remain in the United States for an indefinite period of time, and whether he had any papers issued by the United States. For aught that appears in the record before us, only these questions and Augustin's answers, together with some statements from the IJ to Augustin, were translated into Creole. The withdrawal of counsel and the denial of the continuance were not translated. In addition to the limited scope of the translation, there is evidence of deficiencies in the translator's ability to translate. 5 The translator's inattention toward translating became so apparent that the IJ directly questioned the translator as to whether he was repeating the IJ's words. When Augustin was asked if he was a native of Haiti, the translator translated his answer as "I am not married yet, but I know I am the Haitian." When Augustin was asked if he had anything to add, the translated response was The IJ, through the translator, could not make Augustin understand that this was the final hearing. Indeed, it is difficult to assess the extent of the translator's accuracy because many long and complex questions by the IJ were answered by Augustin with an ambiguous "yes". 6
The IJ also asked about the asylum claim. At this point, Ms. Davis told the IJ that she had instructed Augustin not to answer. The IJ announced that he would rely solely on material already in the record with respect to the asylum claim.
In an oral decision at the conclusion of the hearing on July 7, 1982, the IJ denied appellant's petition for political asylum on the ground that he had not established a well-founded fear of persecution within the meaning of 8 U.S.C. Sec. 1253(h)(1) (1982). On January 28, 1983, the BIA affirmed. It rejected Augustin's claim that he had been denied effective assistance of counsel and the right to present evidence. It held that denial of the continuance was justified because Ms. Davis had not shown that she could not have been prepared to proceed with Augustin's claim by the time of the exclusion hearing and that she had not shown actual prejudice.
On March 22, 1983, appellant was served with a notice requiring him to surrender on April 14, 1983. He filed a petition for a writ of habeas corpus in the Eastern District of New York on April 13, 1983, seeking judicial review of the order of exclusion and deportation. 7
On June 24, 1983, in a written decision and order, Judge Nickerson denied the petition. He held that the IJ did not abuse his discretion or deny appellant due process by denying his request for a continuance, and that Augustin had waived his claim that he should have been placed in deportation proceedings rather than exclusion proceedings by failing to raise that claim before the IJ or BIA. A motion to amend that decision and order was denied on August 19, 1983 except for a minor correction.
From the judgment entered on the district court's orders, the instant appeal has been taken. Appellant claims that his statutory and due process rights have been violated.
The power to admit or exclude 8 aliens is a fundamental sovereign attribute. 9 An alien who petitions for initial admission to the United States is requesting a privilege. E.g., Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 216 (19...
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