Brice v. U.S. Dept. of Justice
| Decision Date | 05 December 1986 |
| Docket Number | No. 1765,D,1765 |
| Citation | 806 F.2d 415 |
| Parties | Lemiel BRICE, Petitioner, v. UNITED STATES DEPARTMENT OF JUSTICE, Immigration and Naturalization Service, Respondents. ocket 85-4191. |
| Court | U.S. Court of Appeals — Second Circuit |
Jean H. McCreary, Nixon, Hargrave, Devans & Doyle, Rochester, N.Y. (Gregory A. Franklin, of counsel), for petitioner.
Rudolph W. Giuliani, U.S. Atty., S.D.N.Y. (Noel Anne Farris, Sp. Asst. U.S. Atty., Steven E. Obus, Asst. U.S. Atty., of counsel), for respondents.
Before KAUFMAN, KEARSE and ALTIMARI, Circuit Judges.
Lemiel Brice is a thirty-four-year-old native and citizen of Haiti, who in 1978 entered the United States illegally. In July, 1982, Brice presented himself to the Immigration and Naturalization Service ("INS"), which commenced deportation proceedings against him pursuant to Sec. 241(a)(2) of the Immigration and Nationality Act ("INA"), 8 U.S.C. Sec. 1251(a)(2). Brice appeared before Immigration Judge Gordon W. Sacks on November 3, 1983. Conceding deportability, Brice requested asylum pursuant to Through an interpreter, Brice testified that if he returned to Haiti he would be imprisoned, beaten and possibly killed because he had left the country illegally. In support of his applications, Brice submitted documentary evidence including an affidavit executed by a former member of the government's security guard, the Tonton Macoutes, which stated that the then-president of Haiti, Jean-Claude Duvalier, had issued a secret order to detain all Haitians who returned to the country after leaving illegally. On November 23, 1983, Immigration Judge Sacks denied Brice's applications for asylum and for withholding of deportation.
INA Sec. 208(a), 8 U.S.C. Sec. 1158(a). Alternatively, he requested that his deportation to Haiti be withheld under INA Sec. 243(h), 8 U.S.C. Sec. 1253(h).
Brice appealed Judge Sacks's decision to the Board of Immigration Appeals ("BIA"). Oral argument was held and the BIA conducted an independent, de novo review of the evidence. On October 24, 1985, the BIA dismissed the appeal and afforded Brice thirty days to leave the country voluntarily. Brice filed a petition for review with this Court, automatically staying the order of deportation.
On February 24, 1986, Brice filed a motion to reopen his deportation proceedings with the BIA so that he might apply for the discretionary relief of suspension of deportation pursuant to INA Sec. 244(a)(1), 8 U.S.C. Sec. 1254(a)(1). On March 7, 1986, Brice filed a further motion with the BIA, requesting reconsideration of its denial of his original applications. The basis of this motion was that the record and transcript of the deportation hearing before Judge Sacks were defective. On June 3, 1986, the BIA denied both motions.
Brice appeals the BIA's decisions of October 24, 1985, and June 3, 1986. He contends that the BIA improperly denied his application for asylum because it misinterpreted the applicable legal standard by requiring him to show a "clear probability of persecution." He also argues that the BIA abused its discretion by refusing to reopen his deportation proceedings to allow him to apply for suspension. Finally, he asserts that, in light of shortcomings in the administrative record, the BIA erred in refusing to reconsider its dismissal of his appeal.
An alien who seeks to avoid deportation from the United States has two principal statutory remedies. INA Sec. 243(h) provides for withholding of deportation. The Attorney General shall not deport an alien to a country in which "his life or freedom would be threatened ... on account of," inter alia, his "membership in a particular social group, or [his] political opinion." In INS v. Stevic, 467 U.S. 407, 421-22, 104 S.Ct. 2489, 2496-97, 81 L.Ed.2d 321 (1984), the Supreme Court decided that the use of the verb "would" indicates that an alien must establish a clear probability of persecution--that more likely than not he would be subject to persecution--to qualify for relief under this section.
The alien's second statutory remedy is asylum. Pursuant to INA Sec. 208, an alien may be granted asylum in the discretion of the Attorney General if the Attorney General determines that he or she is a "refugee" within the meaning of the INA. A "refugee" is a person who is outside his country of nationality and who is "unable or unwilling to avail himself ... of the protection of that country because of persecution or a well-founded fear of persecution on account of," inter alia, his "membership in a particular social group, or [his] political opinion." 8 U.S.C. Sec. 1101(a)(42)(A).
In its decision denying Brice relief from deportation, the BIA stated that "the well-founded fear of persecution standard for asylum requires an alien's fear of persecution to have a sound basis in external, objective facts that show it is likely the alien will become the victim of persecution." The BIA went on to note that in its view "the eligibility standards for withholding of deportation and asylum are not meaningfully different and, in practical application, converge." Brice contends that this interpretation of the "well-founded fear standard" is error.
In our recent decision in Carcamo-Flores v. INS, 805 F.2d 60, 62 (2d Cir.1986), a case with facts virtually identical to those in this case, we held that the "well-founded fear of persecution" standard is less exacting than the "clear probability of persecution" test embodied in INA Sec. 243(h). To qualify for asylum, we held, an alien must demonstrate a subjective fear of persecution and some objective facts supporting that fear. The alien need not show, however, that persecution is more likely than not. A fear with some basis in objective reality is sufficient. In light of Carcamo-Flores, the BIA clearly misinterpreted the applicable legal standard in denying Brice's application for asylum.
The INS contends that, notwithstanding the BIA's misunderstanding of the "well-founded fear" standard, Brice's claim was considered under the proper test. Specifically, the INS points to a single paragraph in the BIA's opinion:
We are persuaded that [Judge Sacks] evaluated the respondent's testimony and the documentary evidence and correctly concluded that the respondent had failed to prove by a clear probability that he would suffer persecution in Haiti. The respondent also has not met the statutory standard of eligibility for asylum, regardless of whether his claim is assessed in terms of demonstrating a "clear probability," or a "good" or "valid reason to fear" persecution.
The INS insists this language indicates that the...
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