Matter of Exilus
| Decision Date | 03 August 1982 |
| Docket Number | Interim Decision Number 2914,A-24720564 |
| Citation | 18 I&N Dec. 276 |
| Parties | MATTER OF EXILUS In Exclusion Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
This case is before us on appeal from a decision of the immigration judge dated November 18, 1981, finding the applicant excludable and denying her application for asylum and withholding of exclusion and deportation. The appeal will be dismissed.
The applicant is a 21-year-old native and citizen of Haiti. The record reflects that she sought admission to the United States on September 7 1981. The Service charged her with excludability under sections 212(a)(19) and (20) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(19) and (20).
At exclusion proceedings, the applicant conceded excludability on the advice of counsel. However, she sought relief from exclusion by submitting an application for asylum and withholding of exclusion and deportation.1 In conjunction therewith, she made two motions to the immigration judge. She requested that she be permitted to submit interrogatories to the person at the Bureau of Human Rights and Humanitarian Affairs of the Department of State who rendered an advisory opinion on her asylum claim. She also moved that the interpreter for the Service give a simultaneous translation of the entire proceedings, including all testimony, argument of counsel, and rulings and statements of the immigration judge. The immigration judge denied both motions. He further concluded that the applicant failed to establish that she has a well-founded fear of persecution if she returns to Haiti. Thus he found that she was not entitled to asylum or withholding of exclusion and deportation.
On appeal, the applicant contends that the immigration judge erred in refusing to permit her to submit the requested interrogatories and in denying her motion for simultaneous translation of the proceedings. She further argues that the immigration judge improperly denied her application for asylum and withholding of exclusion and deportation.
We shall address first the merits of the applicant's persecution claim. The law is well settled that an applicant for asylum or for withholding of exclusion and deportation bears the burden of proving that he has a well-founded fear of persecution if he returns to his native land. Fleurinor v. INS, 585 F.2d 129 (5 Cir. 1978); Martineau v. INS, 556 F.2d 306 (5 Cir. 1977); Henry v. INS, 552 F.2d 130 (5 Cir. 1977); Daniel v. INS, 528 F.2d 1278 (5 Cir. 1976). This language refers to more than the alien's subjective state of mind. He must establish that he is likely to be persecuted on account of his race, religion, nationality, membership in a particular social group, or political opinion. See Kashani v. INS, 547 F.2d 376, 379 (7 Cir. 1977); see also McMullen v. INS, 658 F.2d 1312 (9 Cir. 1981).
The applicant claims only that she will be persecuted because she left Haiti illegally. She admits she has never been arrested or imprisoned and makes no claim to have ever been a member of an organization hostile to her country's government or to have expressed a political opinion adverse to the authorities of that government. Although the applicant has submitted numerous magazine and newspaper articles, none relate to her individually or specifically support her claim that her illegal departure would result in persecution upon her return to Haiti. Furthermore, similar claims have been addressed and rejected as insufficient to establish a likelihood of persecution in Haiti without further substantial evidence that prosecution for an illegal departure would occur or would be politically motivated. Henry v. INS, supra; Matter of Williams, 16 I&N Dec. 697 (BIA 1979); cf. Coriolan v. INS, 559 F.2d 993 (5 Cir. 1977). We are not convinced by the applicant's bare allegations and the evidence presented that she would be persecuted in Haiti. Inasmuch as the applicant has failed to meet her burden of establishing the likelihood of persecution, we conclude that the immigration judge properly denied her application for asylum and witholding of exclusion and deportation.
The applicant argues that she was severely prejudiced by the immigration judge's refusal to allow submission of interrogatories. She asserts that the immigration judge's actions effectively denied her the opportunity to inspect, explain, and rebut the adverse evidence against her because she was precluded from determining how the State Department arrived at the conclusions in its advisory opinion. Thus the applicant claims that she was deprived of her due process right to a fair hearing.
Due process in an administrative proceeding is not defined by inflexible rules which are universally applied, but rather varies according to the nature of the case and the relative importance of the governmental and private interests involved. Mathews v. Eldridge, 424 U.S. 319 (1976); Richardson v. Perales, 402 U.S. 389 (1971); Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886 (1961); Blackwell College of Business v. Attorney General, 454 F.2d 928 (D.C. Cir. 1971); Matter of Swissair "Flight SR 168," 15 I&N Dec. 372 (BIA 1975). The constitutional requirements of due process are satisfied in an administrative hearing if the proceeding is found to be fair. See Martin-Mendoza v. INS, 499 F.2d 918 (9 Cir. 1974); Navarette-Navarette v. Landon, 223 F.2d 234 (9 Cir. 1955), cert. denied, 351 U.S. 911 (1956); Matter of De Vera, 16 I&N Dec. 266 (BIA 1977). In order to establish that he has been denied a fair hearing, an alien must show that he has suffered prejudice. Nicholas v. INS, 590 F.2d 802 (9 Cir. 1979).
We do not find that this applicant was denied a full and fair hearing as a result of her inability to submit interrogatories to the State Department. She complains only that she was precluded from determining how the State Department arrived at its conclusions. However, the letter itself clearly states that the opinion was based on the evidence she had submitted and the fact that the State Department had no other information to support her claim. The applicant was provided an opportunity to explain and rebut the conclusion in the State Department letter that she failed to establish a well-founded fear of persecution, yet she did not submit any evidence in rebuttal to the advisory opinion. Further, she has not specified any particular prejudice which resulted from the immigration judge's refusal to permit interrogatories, nor has she indicated how the submission of interrogatories would have advanced her claim of persecution. Consequently, we conclude that her exclusion hearing was fair.
Furthermore, as a general rule, we do not find that the refusal of an immigration judge to permit submission of interrogatories to the State Department constitutes a denial of due process. The regulations require that the advisory opinion rendered by the State Department must be included in the record and that the applicant for asylum must be given an opportunity to inspect, explain, or rebut it. See 8 C.F.R. 208.10(b); Matter of Saban, 18 I&N Dec. 70 (BIA 1981); Matter of Francois, 15 I&N Dec. 534 (BIA 1975). The purpose in admitting the advisory opinion of the State Department into evidence at a hearing on an asylum claim is three-fold: (1) to establish compliance with the regulatory requirement of 8 C.F.R. 208.10(b); (2) to bring forth any information available to the State Department which supports the applicant's claim; and (3) to indicate the State Department's opinion regarding the likelihood of persecution given the specific facts presented by the applicant. We recognize that these opinions are ex parte declarations which are submitted without the traditional safeguards required of admissible evidence in judicial proceedings and that they are frequently general in nature.2 However, the opinion is not binding on the immigration judge and the Board and these factors are considered in determining the significance, if any, to be accorded an advisory opinion and in weighing its evidentiary value in relation to the evidence presented by the alien. See Matter of Williams, supra; Matter of Francois, supra.
The inclusion of the State Department opinion in the record was not intended to...
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