Matter of Sibrun
| Decision Date | 20 January 1983 |
| Docket Number | A-26008444,Interim Decision Number 2932 |
| Citation | 18 I&N Dec. 354 |
| Parties | MATTER OF SIBRUN In Exclusion Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
This matter is before the Board on appeal from the immigration judge's decision of July 7, 1982, 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 appeal will be dismissed.
The applicant is a 35-year-old native and citizen of Haiti who arrived in the United States on August 9, 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 August 13, 1981, he was served with a Form I-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. However, the Service was restrained by order of the Federal District Court for the District of Southern Florida from proceeding to hearing with this and all other Haitian applicants absent their representation by counsel. On April 1, 1982, counsel entered her appearance on behalf of the instant applicant. She was granted 35 days in which to file pre-trial motions and/or an application for asylum. Thereafter, she submitted a Form I-589, "Request for Asylum" for the applicant, which the Service forwarded to the United States Department of State, Bureau of Human Rights and Humanitarian Affairs (BHRHA) on May 12, 1982.2 Upon receipt of the BHRHA opinion dated May 20, 1982, advising that they did not believe the applicant had established a well-founded fear of persecution, the Service notified counsel on June 3, 1982, that the applicant's case would be heard on July 7, 1982.
At the hearing on July 7, 1982, the applicant conceded that he is a citizen of Haiti, that he intends to stay indefinitely in the United States, and that he had no documents with which to enter the United States. Therefore, the immigration judge properly found the applicant to be excludable from the United States under section 212(a)(20) of the Act, a finding which is not contested on appeal. However, counsel then informed the immigration judge that she was unprepared to present the applicant's case for asylum and she moved for a continuance of the hearing. The immigration judge denied that motion. Counsel then advised the applicant to give no testimony regarding his persecution claim and she refused to conduct any examination of the applicant or submit any evidence in support of his asylum application. Therefore, the immigration judge proceeded to examine in detail the only evidence of record pertaining to the applicant's persecution claim, that being his asylum application. The only claims advanced therein are that the applicant fears persecution because he, like "almost everyone else in my country lives under the same oppressive conditions," i.e., arbitrary arrest by the government authorities, and because he left Haiti without permission. The immigration judge concluded this did not establish a well-founded fear of persecution under the Act, and he denied the asylum application.
Turning first to the applicant's motion for continuance, we observe that an immigration judge may grant an alien's request for adjournment of a deportation hearing only for "good cause." See 8 C.F.R. 242.13. No comparable provision exists for exclusion proceedings. Given the apparent paucity of any exposition of standards regarding motions to continue, it may be instructive to examine those standards which have evolved in federal criminal procedure — recognizing, of course, that they do not control in these administrative proceedings. Under federal criminal procedure, the denial of a motion for continuance is within the discretion of the trial court and will not be disturbed without a showing of actual prejudice or harm. United States v. Clements, 484 F.2d 928 (5 Cir. 1973), cert. denied, 415 U.S. 991 (1974); United States v. Lustig, 555 F.2d 737 (9 Cir. 1977), cert. denied, 434 U.S. 1045 (1978); United States v. Aviles, 623 F.2d 1192 (7 Cir. 1980); United States v. Moore, 419 F.2d 810 (6 Cir. 1969). A motion for continuance based upon inadequate time for counsel to examine evidence is properly denied where such additional time would not have affected the outcome. United States v. Medina-Arellano, 569 F.2d 349 (5 Cir. 1978). In addition, the bare allegation that had a continuance been granted the defendant could have located unnamed witnesses for his defense is insufficient to cause reversal of the denial of his motion for continuance; the movant is required to show that substantial favorable testimony would be tendered by the witness, that the witness was available and willing to testify, and that denial of the continuance materially prejudiced the defendant. Id.
It should be emphasized that the full panoply of procedural protections accorded criminal defendants are not constitutionally mandated for aliens in these civil, administrative proceedings. See e.g., United States v. Gasca-Kraft, 522 F.2d 149, 152 (9 Cir. 1975); Barthold v. INS, 517 F.2d 689 (5 Cir. 1975); Jolley v. INS, 441 F.2d 1245 (5 Cir. 1971). All that is required here is that the hearing be fundamentally fair. See Matter of Exilus, 18 I&N Dec. 276 (BIA 1982). Prejudice is the sine qua non for establishing that a hearing was unfair. Id. Accordingly, where federal criminal procedure standards are satisfied, the less rigorous requirements applicable to civil, administrative proceedings clearly will have been fulfilled as well.
We conclude there are two elements which must be examined with regard to a motion for continuance based upon an asserted lack of preparation and a request for opportunity to obtain and present additional evidence. First, while the motion is within the sound discretion of the immigration judge, an alien at least must make a reasonable showing that the lack of preparation occurred despite a diligent good faith effort to be ready to proceed and that any additional evidence he seeks to present is probative, noncumulative, and significantly favorable to the alien. Second, for purposes of appeal, even where an alien has made this minimum required showing, an immigration judge's decision denying the motion for continuance will not be reversed unless the alien establishes that that denial caused him actual prejudice and harm and materially affected the outcome of his case. Bare, unsupported allegations are insufficient; the alien must specifically articulate the particular facts involved or evidence which he would have presented and otherwise fully explain how denial of his motion fundamentally changed the result reached.
Counsel has advanced three principal reasons in support of the motion for continuance: failure to receive certain "written material" from the local Bar Association until one day before the hearing; failure to receive the translation of a letter by the applicant from a translating service; and the failure of an employee of the translating service to appear for a meeting with counsel to provide "some pertinent information regarding the hearing as to witnesses and allegations of facts, etc." (Tr. at 4-5). In light of the above standards, we find that these reasons are insufficient to have warranted granting of the motion for continuance by the immigration judge or to require reversal of that decision in this appeal. While the Bar Association materials may not have been received until the 11th hour, nonetheless they were in counsel's possession at the time of the hearing. Thus, she was not precluded from submitting into the record any pertinent evidence contained in that "written material" or from offering a specific explanation as to why its recent receipt adversely affected her ability to go forward in her representation of the applicant.3 As for the stated failure to receive a translation of the applicant's letter, counsel presumably could have obtained a translation of the letter elsewhere when difficulties developed with the original translating service; alternatively, the applicant's letter could have been translated and read into the record at the hearing by the Service translator, or the applicant simply could have testified directly as to it contents. Concerning the nonappearance of the translating service employee with information regarding "witnesses and allegations of fact," if the applicant himself...
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