Fleurinor v. Immigration and Naturalization Service, 78-1485

• Decision Date: 30 November 1978
• Docket Number: No. 78-1485,78-1485
• Citation: 585 F.2d 129
• Parties: Leconte FLEURINOR, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 129

585 F.2d 129

Leconte FLEURINOR, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 78-1485.

United States Court of Appeals,

Fifth Circuit.

Nov. 30, 1978.

Bierman, Sonnett, Beiley, Shohat & Osman, Edward R. Shohat, Lawrence E. Besser, Miami, Fla., for petitioner.

Griffin B. Bell, Atty. Gen., Philip Wilens, Chief, Govt. Reg. & Labor Section, James P. Morris, Atty., Lawrence W. Chamblee, Dept. of Justice, Washington, D. C., for respondent.

Edward T. Sweeney, Dist. Dir., U. S. Dept. of Justice, Immig. & Nat. Ser., Miami, Fla., Troy A. Adams, Jr., Dist. Dir., Immig. & Nat. Ser., New Orleans, La., for other interested parties.

On Petition for Review of An Order of the Immigration and Naturalization Service.

Before GOLDBERG, Circuit Judge, SKELTON ^*, Senior Judge, and FAY, Circuit Judge.

FAY, Circuit Judge:

Petitioner appealed a denial by the Immigration Judge of a petition to withhold deportation. The Board of Immigration Appeals affirmed that denial. This Court has jurisdiction to review the Board's affirmance under 8 U.S.C. § 1105a(a).

In this appeal, petitioner raises three points. First, petitioner asks this Court to remand this cause to the Immigration and Naturalization Service (INS) for the purpose of considering additional "material" evidence, to wit: the latest report of Amnesty International concerning political conditions in Haiti. Second, petitioner asserts that in light of the evidence offered at the deportation hearing, the Board's affirmance of the Immigration Judge's refusal to withhold deportation constituted an abuse of discretion. Lastly, petitioner claims that the Immigration Judge abused his discretion when, after denial of political asylum by the District Director of INS, the judge refused to remand the case to INS for further consideration of petitioner's claim of impending persecution upon his return to Haiti. For the reasons set forth below, we affirm.

FACTS

Leconte Fleurinor, petitioner-appellant herein, is a native and citizen of Haiti. He entered the United States at Miami, Florida in June 1971 aboard the Liberian M/V "Freeport I" without presenting himself for inspection by a United States Immigration Officer. ¹ Deportation proceedings commenced on May 3, 1972. Fleurinor conceded deportability as charged, but like many of his compatriots, alleges that he will face persecution on his return to Haiti. Accordingly, his deportation hearing was adjourned to give him an opportunity to apply to the District Director for political asylum and temporary refuge in the United States. His request was denied in January of 1976.

Respondent then filed an application to withhold his deportation to Haiti under Section 243(h) of the Immigration and Nationality Act, 8 U.S.C. § 1253(h), which provides:

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. ²

The Immigration Judge denied the application holding that petitioner failed to show a well-founded fear that his life or freedom would be threatened in Haiti on account of his political opinion. However, the Immigration Judge did grant petitioner thirty days to voluntarily depart the United States in lieu of forced deportation.

At the deportation hearing, petitioner's evidence consisted of his own testimony and that of two others. In support of his application, the petitioner testified that he had left Haiti for the Bahamas in 1963 in order to seek employment. He returned briefly in 1968 to visit his family. In 1970, he again returned to Haiti from the Bahamas. Upon arriving at the airport in Port au Prince in May of 1970, the petitioner testified that he was immediately arrested by the Ton Ton Macoute (the semi-official secret police of former President Francois "Papa Doc" Duvalier's government), and taken to jail at Fort Dimanche. Petitioner further testified that he was told by the police at the time of his arrest that he had been accused by officials at the Haitian consulate in the Bahamas of taking part in the invasion of Haiti, apparently originating in the Bahamas. Petitioner also testified that he remained incarcerated for ten days, during which time he was beaten by jail guards and robbed of his money and other personal property. Fleurinor also testified that he managed to bribe his way out of prison and escape to the Bahamas. He testified that he fears for his life and liberty if forced to return to Haiti.

Two witnesses, petitioner's brother and a friend testified in his behalf. Their testimony was substantially the same as that of the petitioner. However, the petitioner's brother admitted that he was not in Haiti at the time of the petitioner's purported incarceration and that he learned of that event from correspondence with his mother and father, who reside in Haiti. The petitioner's friend also admitted that he did not have personal knowledge of Fleurinor's incarceration in Haiti. The witnesses and the petitioner testified that the petitioner and his family were not participants in political activities in Haiti and that, specifically, the petitioner did not participate in an invasion of Haiti. It appears from the collective testimony of the witnesses that members of the petitioner's family who presently reside in Haiti have not been arrested or harmed by the government of that country.

I. The Amnesty International Report

Petitioner's first claim is that this Court should vacate the decision of the Board of Immigration Appeals and remand this cause in order that the latest report of Amnesty International, concerning political conditions in Haiti, be considered. Our authority to do this is 28 U.S.C. § 2347(c) which provides in relevant part:

(c) If a party to a proceeding to review applies to the court of appeals in which the proceeding is pending for leave to adduce additional evidence and shows to the satisfaction of the court that

(1) the additional evidence is material; and,

(2) there were reasonable grounds for failure to adduce the evidence before the agency;

the court may order the additional evidence and any counterevidence the opposite party desires to offer to be taken by the agency.

This statute has been held applicable to INS decisions despite the charge to this court in the Immigration Act to review INS action solely on the administrative record. 8 U.S.C. § 1105a(a)(4) (1970). See Coriolan v. Immigration And Naturalization Service, 559 F.2d 993, 1003 (5th Cir. 1977). Accordingly, in order for this court to order receipt of additional evidence, Fleurinor must show: 1) that the evidence is "material," and 2) that there were reasonable grounds for failure to produce the evidence before the agency.

We decline to vacate and remand this action pursuant to 2347(c) as Fleurinor has failed to satisfy either condition. As to the issue of materiality, petitioner cites Coriolan v. INS, 559 F.2d 993 (5th Cir. 1977), a recent opinion of this Court which petitioner claims established the materiality of the Amnesty International Report. However, the Coriolan decision does not establish the universal materiality of this report. In order for evidence to be "material" within the meaning of Section 2347(c), the evidence must be probative on the issue of the likelihood of This alien being subject to persecution in the event of deportation. Nothing in Coriolan is to the contrary. We have read the Amnesty International Report, and while we are repulsed by the wholesale disregard of fundamental human rights by Jean Claude (Baby Doc) Duvalier's government, we do not see how the Report adds anything to Fleurinor's claim that He will be subject to persecution upon his return to Haiti. Thus, it is not "material" to this cause and the first prong of the two-pronged 2347(c) test is not satisfied.

However, even if we were to rule that the Report is material to this cause, we could not exercise our 2347(c) option in that petitioner has not shown reasonable grounds for failure to produce the evidence before the agency and has therefore also failed to satisfy the second prong of the 2347(c) test. Three months after petitioner's counsel filed the appeal with the Board of Immigration Appeals he was in receipt of the Amnesty International Report. It must be noted that receipt of this Report was over a year before the Board affirmed the Immigration Judge's decision. It is undisputed that petitioner could have petitioned the Board to reopen the case for consideration of the Report. 8 C.F.R. § 3.8(a) (1978). However, to this date petitioner has declined to pursue this avenue. Rather, petitioner has waited almost two years before first mentioning the possible materiality of this Report. While this Court has entertained requests for reopening, under § 2347(c), See, e. g., Coriolan v. INS, 559 F.2d 993 (5th Cir. 1977); Paul v. INS, 521 F.2d 194 (5th Cir. 1975), we will not encourage dilatory tactics. In that spirit, this Court has found the continued availability of a reopening of the INS proceedings a central factor showing the unreasonableness of a petitioner's failure to produce the evidence before the agency. Paul v. INS, 521 F.2d 194, 201 (5th Cir. 1975).

In this respect, this case is unlike Coriolan. In Coriolan, the Report was released after both the original hearing and the affirmance by the Board of Immigration Appeals. 559 F.2d at 1004. With that in mind, no claim of dilatory tactics could be sustained. Indeed, our decision to order additional evidence in Coriolan was substantially motivated by a desire to avoid launching that case on a lengthy procedural voyage. Id. Thus, the factors which led to the result in Coriolan are not present here.

II. Abuse of Discretion

Having disposed of petitioner's request to vacate and remand this action for consideration of the...