Matter of Chumpitazi
| Decision Date | 20 November 1978 |
| Docket Number | A-19654637,Interim Decision Number 2679 |
| Citation | 16 I&N Dec. 629 |
| Parties | MATTER OF CHUMPITAZI In Deportation Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated May 1, 1978, an immigration judge granted the respondent's request for asylum and certified his decisions to us for review. The Service has also filed an appeal from the decision. We will sustain the Service's appeal, and reverse the immigration judge's decision.
The respondent is a 31-year-old native and citizen of Peru who entered the United States on October 16, 1967, as a nonimmigrant visitor. On June 11, 1976, an Order to Show Cause was issued, charging the respondent with deportability under section 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C. 1251(a)(2), as a nonimmigrant who had remained beyond the period of his authorized stay. At a deportation hearing held on June 22, 1976, and March 30, 1977, the respondent conceded deportability as charged in the Order to Show Cause, and applied for suspension of deportation under section 244(a)(1) of the Act, 8 U.S.C. 1254(a)(1), and/or withholding of deportation under section 243(h) of the Act, 8 U.S.C. 1253(h). On May 17, 1977, the immigration judge denied both applications, and the respondent appealed to this Board.
In a decision dated January 26, 1978, we remanded the record for further consideration of the respondent's 243(h) claim in light of the immigration judge's failure to examine the respondent under oath as required by 8 C.F.R. 242.17(c). On April 14, 1978, a new hearing was held, at which the immigration judge granted the respondent asylum if deportation to Guatemala, the country designated by the respondent for deportation as provided in 8 C.F.R. 242.17(c), was not possible. The immigration judge then certified his decision to us for review.
In his decision, the immigration judge referred to Article 33 of the United Nations Convention Relating to the Status of Refugees.1 He interpreted Article 33 as allowing the grant of asylum to aliens whose life or freedom would be threatened on account of their race, religion, nationality, membership in a particular social group, or political opinion. He then stated that he would grant the respondent asylum if his deportation to Peru became imminent, i.e., if the country designated by the respondent, Guatemala, did not accept him into its territory or failed to notify the Attorney General within 90 days whether it would or would not accept him.
8 C.F.R. 242.8(a) provides, in part:
In any proceeding conducted under this part the special inquiry officer shall have the authority ... to consider claims for relief from deportation under Articles 32 and 33 of the Convention Relating to the Status of Refugees, as amended by the Protocol Relating to the Status of Refugees ... [[and] to order temporary withholding of deportation pursuant to section 243(h) of the Act.....
The text of Articles 32 and 33 of the Convention was stated in full in Matter of Dunar, 14 I. & N. Dec. 310 (BIA 1973). There, we reviewed the provisions of the Convention and found that they did not significantly change the immigration laws of the United States. Specifically, we found that Article 32 was limited by its terms to aliens "lawfully" within the United States. Thus, an alien refugee who entered lawfully as a nonimmigrant and remained unlawfully could not claim the relief of Article 32. This result has also been reached by the courts which have considered the issue. See, e.g., Yan Wo Cheng v. Rinaldi, 389 F.Supp. 583 (D.N.J.1975); Chim Ming v. Marks, 367 F.Supp. 673 (S.D.N.Y.1973), aff'd, 505 F.2d 1170 (2 Cir.1974), cert. denied, 421 U.S. 911 (1975); Kan Kam Lin v. Rinaldi, 361 F.Supp. 177 (D.N.J.1973), aff'd, 493 F.2d 1229 (3 Cir.1974), cert. denied, 419 U.S. 874 (1974). Therefore, the finding that the respondent is deportable as an overstayed visitor precludes him from establishing lawful presence for the purposes of Article 32 relief.
In determining the effect of Article 33 on our immigration laws, we carefully reviewed the history of the Convention's adoption by the United States in Matter of Dunar, supra. We there held that there is no substantial difference in the coverage of section 243(h) of the Act and Article 33, and that any distinctions in terminology2 were insignificant and could be handled on a case-by-case basis. We reaffirm our holding in Matter of Dunar and find that the provisions of Article 33 of the Convention have not changed the rights and remedies of an alien in deportation proceedings who believes that deportation to a particular country would cause him to suffer persecution on the basis of race, religion, or political opinion. See also Matter of Francois, Interim Decision 2458 (BIA 1975).
There is no provision in the Immigration and Nationality Act of 1952, as amended, 8 U.S.C. 1101 et. seq., for the granting of "asylum" to aliens who are seeking to enter or have entered the United States. Nor does the Refugee Convention declare that a contracting government must grant asylum to an alien refugee. The Convention goes no farther than to prohibit a contracting government from sending that alien back to a particular place where he will be persecuted. Since the alien could be deported immediately to any other territory that would accept him, it is inappropriate to characterize relief under Article 33 as a grant of asylum, which connotes governmental consent for some period of time to the alien's continued presence in the United States. The only provision expressly allowing an alien subject to expulsion to seek asylum is 8 C.F.R. 108.1, which provides, in part, that3:
... An application for asylum by any ... alien who is within the United States ... shall be submitted on Form I-589 to the district director having jurisdiction over his place of residence....
Moreover, 8 C.F.R. 108.2 does not permit an appeal from the District Director's decision. These regulations, as well as the Operations Instructions implementing them, were discussed in our decision in Matter of Exantus and Pierre, Interim Decision 2622 (BIA 1977). There, we held that where an alien requested asylum during the pendency of a deportation hearing, the immigration judge was required, under the provisions of Operations Instructions 242.134 and 108.1(f)(2)5, to adjourn the deportation proceedings until after a decision had been rendered on the asylum request by the District Director. See generally Yan Wo Cheng v. Rinaldi, supra.
In dictum, Matter of Exantus and Pierre stated that an application for relief from deportation under Articles 32 and 33 of the Convention Relating to the Status of Refugees constitutes an application for "asylum" within the meaning of 8 C.F.R. 108. However, nothing contained in 8 C.F.R. 242.8(a), the regulation setting forth the specific and general powers of decision conferred on immigration judges in deportation proceedings, has given them the authority to grant or deny asylum requests. Since the regulations vest the sole power to grant asylum in the District Director, an immigration judge lacks the power to rule upon applications for asylum as that term is used in 8 C.F.R. 108. We expressly disapprove of any language to the contrary in Matter of Exantus and Pierre, id.
Proceeding to consideration of the case before us, the immigration judge purported to grant the respondent "asylum" if deportation to Peru became imminent. This, however, was incorrect. As we have previously stated, the immigration judge has no authority to grant asylum to an alien in deportation proceedings....
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