Paul v. U.S. Immigration and Naturalization Service

• Decision Date: 17 October 1975
• Docket Number: No. 74-2089,74-2089
• Citation: 521 F.2d 194
• Parties: Joseph PAUL et al., Petitioners, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 194

521 F.2d 194

Joseph PAUL et al., Petitioners, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 74-2089.

United States Court of Appeals Fifth Circuit.

Oct. 17, 1975.

Margaret A. Benton, James C. Burke, Miami, Fla., for petitioners.

William B. Saxbe, Atty. Gen., U. S. Dept. of Justice, Washington, D. C., Robert W. Rust, U. S. Atty., Dist. Director, U. S. Dept. of Justice, I.N.S., Miami, Fla., Troy A. Adams, Jr., Dist. Director, I.N.S., New Orleans, La., Rex Young, Atty., Gov. Reg. Sec., Crim. Div., John L. Murphy, Chief, Crim. Div., Dept. of Justice, Washington, D. C., for respondent.

Petition for review of an order of the Immigration and Naturalization Service (Florida Case).

Before AINSWORTH, GODBOLD and SIMPSON, Circuit Judges.

SIMPSON, Circuit Judge:

Petitioners, nine Haitian nationals, ¹ seek vacation and remand of an order of deportation entered by the Immigration and Naturalization Service (INS) pursuant to Title 8, U.S.C., Sec. 1251(a)(2) for entry without inspection, and of the denial of the discretionary withholding of deportation authorized by Title 8, U.S.C., Sec. 1253(h), so that they may adduce additional evidence before the INS. They ask also for an order permitting them to propound interrogatories to the United States Department of State. Finding that the petitioners are not entitled to the requested relief, we deny the petition.

Petitioners entered the United States by boat on October 17, 1973, landing near Boca Raton on the east coast of Florida. They failed to present themselves to INS officials for inspection. They concede, as they must, their deportability on these admitted facts, but challenge the discretionary denial of their applications for political asylum, relief which is available under Sec. 1253(h) when, in the opinion of the Attorney General, deportation to a particular country would subject the alien to "persecution on account of . . . political opinion." ²

The District Director considered their claims that they would be subject to political persecution if returned to Haiti and, on the basis of statements they made to INS investigators shortly after their apprehension, and after consultation with the State Department, ³ denied relief.

A hearing was then held before an Immigration Judge. Petitioners were represented by counsel, who stipulated to the admissibility but not the weight of the statements they made to INS investigators shortly after their apprehension. Counsel, however, did not seek additional information by further questions, did not clarify that already given in support of their initial statements, and introduced no additional evidence on their behalf. Neither did he object to the introduction of the State Department recommendation or of letters notifying petitioners of the denial of their applications. The Immigration Judge held that petitioners failed to meet their burden of proving "Beyond a troubling doubt" that they had a valid fear of persecution if returned to Haiti.

On appeal, the Board of Immigration Appeals, while recognizing that the Immigration Judge had demanded that petitioners meet an impermissibly strenuous burden of proof, nonetheless determined that petitioners had failed to prove their case by a preponderance of the evidence and dismissed their appeal. ⁴

In order to qualify for discretionary withholding of deportation, the applicants must prove their departure from Haiti was politically motivated and that on return they face persecution for reasons political in nature. Matter of Janus and Janek, Int. Dec. No. 1900, decided July 25, 1968; see Gena v. INS, 5 Cir. 1970, 424 F.2d 227, 232; Kovac v. INS, 9 Cir. 1969,407 F.2d 102, 104-105, 107. We review the conclusion below that petitioners did not meet their burden of proof under a restricted standard:

"Judicial review of discretionary administrative action is limited to the questions of whether the applicant has been accorded procedural due process and whether the decision has been reached in accordance with the applicable rules of law. Furthermore, the inquiry goes to the question whether or not there has been an exercise of administrative discretion and, if so, whether or not the manner of exercise has been arbitrary or capricious."

Jarecha v. INS, 5 Cir. 1969, 417 F.2d 220, 224, Quoting Kam Ng v. Pilliod, 7 Cir. 1960, 279 F.2d 207, 210, cert. denied, 1961, 365 U.S. 860, 81 S.Ct. 828, 5 L.Ed.2d 823. On the basis of proofs presented, we agree that petitioners failed to make their case. The denial of discretionary relief was not arbitrary or capricious. ⁵

Petitioners, however, request a second hearing on other grounds. They allege that they were denied their right to a fair hearing, and also claim entitlement under Title 28, Sec. 2347(c). ⁶ We find these claims to be without merit.

Petitioners present four basic grounds in support of their claim that they were denied a reasonable opportunity to develop their case: (1) the alleged ineffective assistance of privately retained counsel; ⁷ (2) the failure of the Immigration Judge to elicit information from them on failure of counsel to do so; (3) the failure of the INS to take administrative notice of conditions in Haiti, which would automatically entitle petitioners to the requested relief; and (4) inability to propound interrogatories to the State Department in order to discover the basis of the recommended denial of their applications, thereby rendering it impossible for them to challenge effectively its weight or admissibility.

Deportation hearings are deemed to be civil, not criminal, proceedings. Jolley v. INS, 5 Cir. 1971, 441 F.2d 1245, cert. denied,404 U.S. 946, 92 S.Ct. 302, 30 L.Ed.2d 262; Barthold v. INS, 5 Cir. 1975,517 F.2d 689 and cases therein cited. Petitioners, therefore, do not contend, nor could they, that the sixth amendment right to counsel applies. " It is clear that any right an alien may have in this regard is grounded in the fifth amendment guarantee of due process rather than the sixth amendment right to counsel." Id. at 690. Yet, "(t)he existence, let alone the nature and scope, of such a right has not been established." Id. at 690.

But deportation proceedings, however labelled, entail drastic consequences for an alien, especially one who seeks to invoke the protections afforded by Sec. 1253(h).

Aliens have a statutory right to the presence of counsel, but not at government expense. Title 8, U.S.C., Sec. 1362. Petitioners received the benefit of this statutory provision. In this court, they do not assert an independent "right to counsel," to be judged in accordance with standards set out in MacKenna v. Ellis, ⁸ 5 Cir. 1960, 280 F.2d 592, 599, cert. denied, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78. They argue only that the representation afforded them was so deficient as to impinge upon the fundamental fairness of the hearing, in violation of the fifth amendment due process clause. Accordingly, we follow Barthold in analyzing the proceedings in terms of their fundamental fairness.

In support of this contention, petitioners point out that counsel stipulated to the admissibility of their statements to INS investigators made in counsel's absence. But these statements would have been admissible without stipulation, unless their admission made the proceedings unfair. ⁹ Since no question is raised as to their voluntariness or their accuracy, it did not.

Letter notifications of the denial of asylum were admitted without objection. Petitioners do not suggest, however, that these letters were inadmissible. Counsel can not be found ineffective for failure to raise meritless objections. See Burston v. Caldwell, 5 Cir. 1975, 506 F.2d 24.

Petitioners also criticize counsel's failure to object to the introduction into evidence of the State Department's recommendation. The Immigration Judge removed any basis to find counsel ineffective in this regard when he stated, prior to any proffer by the government attorney:

There is one thing I will insist on at this time And I do want offered into evidence and I will ask for it On my own motion, the letter or a cable or whatever notification was sent by the Department of State on the initial request made for asylum. (emphasis added)

Further, petitioner's attorney did challenge admissibility of the recommendation on appeal to the Board of Immigration Appeals, and the Board, while noting that counsel had failed to object before the Immigration Judge, nevertheless considered the challenge to the propriety of its receipt into evidence on the merits. Whatever error counsel made initially, therefore, which would undermine the "fundamental fairness" of the hearing was cured by his subsequent appeal and the Board's ruling on the merits of this claim. ¹⁰

The basic thrust of petitioners' challenge to their attorney's conduct, as we understand it, is that counsel, by not questioning them and instead relying solely upon their prior self-serving and summary allegations of (a) their opposition to the Haitian government, (b) their participation in altercations with the Haitian authorities, and (c) punishment of their family members, failed to develop fully the basis of their fears of persecution for political reasons if returned to Haiti. Their new attorney argues in his brief to this court that, had counsel questioned them,

No doubt, further testimony from him (Joseph Paul) and the remaining petitioners would bring forth material evidence of politically motivated escapes, and their real fear of death or imprisonment. (emphasis added)

This "material evidence" is not detailed to Any extent, nor is its content even hinted at.

A claim of the denial of due process because of ineffective assistance of counsel must allege sufficient facts to allow this court to infer that competent counsel would have acted otherwise. Petitioners' claims are totally deficient in this regard. Their generalized allegations are insufficient to support an inference that they...