Coriolan v. Immigration and Naturalization Service

• Citation: 559 F.2d 993
• Decision Date: 22 September 1977
• Docket Number: No. 76-2990,76-2990
• Parties: Raymond CORIOLAN and Willy Bonannee, Petitioners, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 993

559 F.2d 993

Raymond CORIOLAN and Willy Bonannee, Petitioners, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 76-2990.

United States Court of Appeals Fifth Circuit.

Sept. 22, 1977.

Donald I. Bierman, Donald L. Ferguson, Miami, Fla., for petitioners.

Philip Wilens, Chief, Govt. Reg. and Labor Section, James P. Morris, Rex L. Young, Attys., Crim. Div., Dept. of Justice, Washington, D. C., for respondent.

Petition for Review of an Order of the Immigration and Naturalization Service (Florida Case).

Before TUTTLE, WISDOM and COLEMAN, Circuit Judges.

TUTTLE, Circuit Judge:

Raymond Coriolan and Willy Bonannee are Haitian nationals who concededly are deportable from this country. ¹ Like many of their compatriots, however, they contend that they will face political persecution on their return to Haiti. If their claims are correct, both sentiments of mercy and statutory provisions would block their deportation. The Immigration and Naturalization Service has concluded that deportation should proceed. We, however, conclude that the INS has thus far failed to adequately evaluate the aliens' claims, and we remand for further proceedings in light of this opinion.

I. THE PROCEEDINGS BEFORE THE AGENCY

Petitioners' deportation hearing convened on July 13, 1975. The petitioners stipulated to their deportability, and applied for political asylum, a form of relief from deportation which is granted or denied by INS district directors. The district director denied their requests. The aliens then sought relief under Section 243(h) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1253(h) (1970), which permits the Attorney General ² to "withhold deportation" as long as necessary if the alien would be subject to political persecution when deported. This too was denied. ³

In the course of these proceedings, the aliens had an opportunity to present evidence on their behalf. They offered only their own statements. In Coriolan's case, his statements were sharply self-contradictory, though none painted a rosy picture. In a sworn request for asylum, he stated that secret police (presumably the Tonton Macoutes) suspected him of being a Communist, because he had been seen talking to another Communist, one Louis Pierre. Pierre subsequently was jailed and disappeared. The secret police, Coriolan stated, came to Coriolan's house to arrest him. Coriolan also averred that it was the policy of the Haitian government to persecute returning exiles who fled the country illegally.

On the day he filed this request for asylum, Coriolan was interviewed by an INS investigator. He reported that he had never been suspected of being a Communist, and that police had never come to his house to arrest him. Though he twice said he had left Haiti out of fear of the Tonton Macoutes and contended that "In Haiti one doesn't have to do anything, they can just look at you and ah you scared." During questioning he ultimately said he had come to the United States to work but that he also had "small problems" with the police. He did assert, however, that he was acquainted with Pierre, who was about to be arrested. Pierre was "a problem with police," though not, Coriolan now said, a Communist. Coriolan also for the first time described the fate of his mother's cousin, who some years before had fallen afoul of the Tonton Macoutes when he refused to give them a piece of cloth. At the final deportation hearing, Coriolan reiterated this allegation of his relative's murder. And on this occasion, as in his written request, he declared that he feared jail or death on his return, apparently at least in part because of his illegal departure.

Bonannee's case proceeded at the same time. In his request for asylum, Bonannee stated that his father, whose first name was Belizaire, ⁴ had been suspected of involvement in an anti-Duvalier movement in 1971, and had had to flee to Cuba. His father's brother was less lucky: he had been apprehended and never heard from again in 1973. Bonannee himself had been arrested in 1974 or December 1973, and held until February 1974. He declared, "The Ton Tons said I was the same breed as my father. . . . The change (sic) was speaking against the government. I don't know reason for release." Bonannee also, like Coriolan, feared persecution for his illegal departure, and he expected to be jailed or shot if he returned to Haiti. Bonannee's claims remained essentially the same in his oral interview. He also supplemented his written request in some respects. For example, he attributed his arrest in 1973, two years after the incident involving his father, to his "becoming a Major an Adult" (though he said he was born in 1941). He also testified that after his release, which apparently was part of an amnesty, he went into hiding for six months to avoid re-arrest and then came to the United States.

Subsequently, however, the INS received from the Department of State a letter which addressed Bonannee's claims. ⁵ This letter acknowledged that his claim "appeared to have some substance." But the Department of State reported that the incident to which Bonannee attributed his father's political troubles would actually have taken place in the 1950's, and the Department declined to believe that this incident had recently led to his father's arrest. Ultimately, at the final deportation hearing, Bonannee confirmed that the incident took place in 1956, and testified that his father's flight to Cuba also occurred in that year. Bonannee went on to describe the events leading to his own arrest. He had a fight with a militiaman at a dance, and the militiaman recognized him as part of the family which took Duvalier money (apparently this was the father's offense) and arrested him. Earlier in the hearing, Bonannee also testified that his "wife" (in Haitian parlance, perhaps simply a woman with whom he was living) was in jail for one month after he left.

The Immigration judge denied the petitioners' requests, in an opinion which we will consider in detail shortly. Our analysis, however, must begin with a discussion of the statute and the treaty which create the framework for evaluation of persecution claims.

II. THE GOVERNING LAW

The law regulating persecution claims, although humane in concept, is not generous. The wording of the basic statutory provision, Section 243(h) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1253(h) (1970), emphasizes the discretionary nature of the decision to stay deportation because of the risk of persecution:

"The Attorney General is authorized to withhold deportation of any alien within the United States to any country in which in his opinion the alien would be subject to persecution on account of race, religion, or political opinion and for such period of time as he deems to be necessary for such reason." ⁶

This broad grant of discretion no doubt rested on both the political sentiments prevailing in the 1950's and on the more permanent recognition of Congress' vast power in the field of immigration. The sweep of this grant of discretion, however, must now be measured in light of the United Nations Protocol Relating to the Status of Refugees, to which the United States adhered in 1968. The Protocol incorporated provisions of the 1951 United Nations Convention Relating to the Status of Refugees, including Article 33, which requires that:

"1. No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country."

This Court has not yet decided whether the Protocol restricts the Attorney General's discretion to refuse to stay deportation when he has determined that an alien would face persecution if deported. See Pierre v. United States, 547 F.2d 1281, 1289 (5th Cir. 1977). But the Board of Immigration Appeals has declared that it knows of no case in which relief under § 1253(h) has been denied when the alien had established the clear probability of persecution. Matter of Dunar, Interim Decision # 2192 at 322 (April 17, 1973). ⁷ The Immigration and Naturalization Service's brief in Dunar declared that "If such a contingency were to arise, it is inconceivable that it could arise in anything other than the context permitted under paragraph 2 of Article 33, namely, national security or danger to the community." Id. at 322 n.20.

We do not suggest that the Protocol profoundly alters American refugee law. We do believe that our adherence to the Protocol reflects or even augments the seriousness of this country's commitment to humanitarian concerns, even in this stern field of law. It may be appropriate to add that the foreign policy of the United States has recently become more dramatically focused in the protection of human rights around the world.

III. THE INS DECISION

Of course, these broad concerns do not compel an over-credulous acceptance of an alien's claims, nor sanction judicial interference with the proper exercise of discretion by the INS. With these principles in mind we turn to the INS' treatment of petitioners' contentions. The petitioners' claims were first considered by an immigration judge; his refusal to stay deportation was affirmed by the Board of Immigration Appeals. The Board's decision declared only that the aliens "had failed to show a well-founded fear that their lives or freedom would be threatened in Haiti on account of their race, religion, nationality, membership in a particular social group or political opinion." ⁸ This conclusion...