Matter of Exame

• Citation: 18 I&N Dec. 303
• Decision Date: 03 September 1982
• Docket Number: A-26007788,Interim Decision Number 2920
• Parties: MATTER OF EXAME In Exclusion Proceedings
• Court: U.S. DOJ Board of Immigration Appeals

18 I&N Dec. 303

MATTER OF EXAME

In Exclusion Proceedings

Interim Decision Number 2920

A-26007788

Board of Immigration Appeals

Decided by Board September 3, 1982

(1) Background evidence relating to general or specific conditions in the country to which an alien's persecution claim is directed is admissible in proceedings to adjudicate an asylum application so long as it is relevant, material, and noncumulative. Accordingly, the immigration judge's categorical rejection of background evidence relating to general conditions in Haiti improperly precluded the applicant from making a full and fair presentation of his persecution claim, thus necessitating a remand for further proceedings and further consideration of the applicant's asylum application.

(2) While an alien is entitled to have a persecution claim evaluated in the context of whatever admissible evidence he desires to submit, such general background evidence is usually not sufficient per se to establish a claim of persecution. The ultimate test is whether objective evidence of record is significantly probative of the likelihood of persecution to this particular alien, sufficient to establish a well-founded fear of persecution.

(3) Recusal of an immigration judge in exclusion proceedings is mandated by section 236 of the Immigration and Nationality Act. 8 U.S.C. 1226, only where the immigration judge has previously participated in investigative or prosecuting functions involving the particular alien applicant presently before him. The immigration judge's past participation as an Immigration and Naturalization Service general (trial) attorney in other Haitian asylum cases or as co-counsel for the Government in federal court proceedings involving similar Haitian asylum applicants does not require his disqualification in these proceedings because the applicant has not established that the immigration judge participated in previous investigative or prosecuting functions involving this particular applicant, nor that the manner in which the immigration judge conducted this proceeding demonstrates bias or prejudice against the applicant such that he was deprived of a constitutionality fair hearing.

EXCLUDABLE: Act of 1952—Sec. 212(a)(20) [8 U.S.C. 1182(a)(20)]—Immigrant not in possession of valid immigrant visa

ON BEHALF OF APPLICANT: Vera Weisz, Esquire Haitian Refugee Center, Inc.

ON BEHALF F SERVICE: Gerald S. Hurwitz Appellate Trial Attorney.

BY: Milhollan, Chairman, Maniatis, Dunne, Morris, and Vacca, Board Members

This matter is before the Board on appeal from the immigration judge's decision of November 3, 1981, finding the applicant excludable from admission to the United States under section 212(a)(20) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(20), and denying his application for asylum under section 208 of the Act, 8 U.S.C. 1158.¹ The record will be remanded.

The applicant is a 50-year-old native and citizen of Haiti who arrived in the United States on July 27, 1981, by boat near Miami, Florida. He had no documents with which to enter the United States and was held in detention by the Service. On July 29, 1981, he was served with a Form 1-122, "Notice to Applicant for Admission Detained for Hearing Before Immigration Judge," alleging that he was excludable from admission to the United States under section 212(a)(20) of the Act as an immigrant not in possession of a valid immigrant visa. Following his initial two hearings before the immigration judge which were continued to permit the applicant to have counsel present and to submit an asylum application, the applicant filed a Form I-589, "Request for Asylum in the United States," on September 21, 1981.² Upon receipt of an advisory opinion from the United States Department of State, Bureau of Human Rights and Humanitarian Affairs (BHRHA),³ the exclusion hearing was resumed on November 3, 1981. The immigration judge found the applicant excludable as indicated above and denied his asylum application.

The record clearly establishes and the applicant does not contend otherwise that, inasmuch as he has no documents with which to legally enter the United States, he is excludable under section 212(a)(20) of the Act. The only issue presented on appeal is whether the applicant's asylum application was properly denied.

It should be emphasized that a principal focus of our consideration of this appeal is whether the applicant was afforded a full and fair opportunity to present the merits of his asylum application and establish his claim of having a well-founded fear of persecution in Haiti. After review of the record, we are persuaded that the applicant has not had such an opportunity and therefore a remand for further proceedings is required.

We base our conclusion that the applicant was denied the opportunity to fully present his asylum claim upon the immigration judge's categorical rejection of background information relating to general conditions in Haiti. The applicant offered such evidence as various reports by Amnesty International and the Lawyers Committee for International Human Rights, Country Reports on Human Rights Practices from the United States Department of State, transcripts of court testimony of expert witnesses and Haitian individuals, and the testimony or affidavits of alleged corroborative witnesses and/or experts on conditions in Haiti. The immigration judge denied admission of this evidence reasoning that it did not specifically identify or name the applicant. We find this categorical exclusion of background evidence to have been in error.

Background evidence relating to general or specific conditions in the country to which an alien's persecution claim is directed is admissible in proceedings to adjudicate his asylum application so long as it is relevant, material, and noncumulative. See Matter of Martinez-Romero, 18 I&N Dec. 75 (BIA 1981); Matter of McMullen, 17 I&N Dec. 542 (BIA 1980), rev'd on other grounds, 658 F.2d 1312 (9 Cir. 1981); Matter of Williams, 16 I&N Dec. 697 (BIA 1979); Matter of Chumpitazi, 16 I&N Dec. 629 (BIA 1978); Matter of Joseph, 13 I&N Dec. 70 (BIA 1968); see also 8 C.F.R. 208.10; Coriolan v. INS, 559 F.2d 993 (5 Cir. 1977). While such general background material usually would not be sufficient per se to establish the applicant's persecution claim,⁴ nevertheless, he is entitled to have that claim evaluated in the context of whatever admissible evidence he desires to submit. Inasmuch as the immigration judge improperly denied admission of the background evidence described above and thereby precluded the applicant from making a full and...