Ramirez-Osorio v. I.N.S.

Decision Date23 October 1984
Docket NumberNos. 83-4545,83-4546,P,RAMIREZ-OSORI,s. 83-4545
Citation745 F.2d 937
PartiesJose Ireneetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Jose Ismael RUBIO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
CourtU.S. Court of Appeals — Fifth Circuit

Lisa S. Brodyaga, Harlingen, Tex., Michael J. Jacobsen, Houston, Tex., for Ramirez-Osorio.

Proyecto Libertad, Lisa S. Brodyaga, Harlingen, Tex., Michael J. Jacobsen, Houston, Tex., for Rubio.

William French Smith, Atty. Gen., Richard K. Willard, Acting Asst. Atty. Gen., Lawrence Lippe, Chief, Gen. Lit. and Legal Advice Sec., Crim. Div., Charles E. Hamilton, III, Millicent Y. Clarke, James A. Hunolt, Francesco Isgro, Dept. of Justice, Civ. Div., Washington, D.C., Hal Boldin, Dist. Dir., I.N.S., Harlingen, Tex., David H. Lambert, Dist. Dir., I.N.S., New Orleans, La., for I.N.S.

Consolidated Petitions for Review of Orders of the Board of Immigration Appeals.

Before GARZA, GARWOOD and HIGGINBOTHAM, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

We are asked to hold that the Immigration and Naturalization Service in all deportation proceedings must inform each alien of his "right" to petition for asylum and inform him that filing a petition for asylum automatically stays deportation until the request is answered. We are told that not giving such notice frustrates congressional will as expressed in the Refugee Act of 1980, Pub.L. No. 96-212, 94 Stat. 102 (1980), and that, regardless, constitutional due process mandates such notice. Despite this argument's humanitarian tug, we are unable to find the asserted congressional purpose or claimed due process deprivation. We affirm the two orders of deportation before us.

I

Without inspection, Jose Irene Ramirez-Osorio and Jose Ismael Rubio, natives and citizens of El Salvador, entered the United States in the respective areas of Hidalgo and Brownsville, Texas. Both were ordered to appear before immigration judges at the Los Fresnos Service Processing Center and show cause why they should not be deported from the United States for entry without inspection, pursuant to Section 242 of the Immigration and Nationality Act, 8 U.S.C. Sec. 1252. Before immigration judges, each conceded his deportability after substantially similar advice regarding his right to counsel.

Rubio's hearing was with two other aliens. At the hearing the immigration judge informed all three aliens of their right to counsel in these words:

Immigration Judge:

Q. Now, each of you has certain rights in the proceeding. If you wish it, you have the right to be represented. You don't have to be represented, you can waive that and speak for yourself.

Respondents:

A. Without representation.

Ramirez-Osorio's hearing was with eleven other aliens. The immigration judge informed them of their right to counsel in more detail than in Rubio's case, telling them not only of their right to counsel, but also that he would continue the proceedings if they wished counsel, and reminding them they had been provided with a list of legal aid offices that might take their cases. All twelve repeatedly signaled by raising their hands that they wished to proceed without counsel.

Rubio and Ramirez-Osorio admitted all the allegations against them, and in answer to questioning stated that they wished to be deported to El Salvador. At no point did either Rubio or Ramirez-Osorio express any fear of persecution upon return to El Salvador. Neither of the immigration judges told petitioners that they could apply for asylum and withholding of deportation and they were ordered to be deported to El Salvador. Petitioners' present counsel was retained shortly after the hearing in each case; she immediately appealed the deportation orders to the Board of Immigration Appeals, thereby automatically staying the orders. See 8 C.F.R. Sec. 3.6(a).

Petitioners' argument before the BIA was solely procedural. They argued that the immigration judges should have informed them of their right to apply for asylum, and inadequately informed them of the significance of their right to counsel. Besides rejecting both of these arguments on the merits, the BIA supported the dismissal of the appeals on the ground that petitioners had never submitted applications for asylum, despite the retention of counsel and the passage of significant periods of time--over one year since Ramirez-Osorio's deportation hearing, and over nine months in Rubio's case. Following the BIA's dismissal, these petitions for review were filed, again automatically staying the orders of deportation. See 8 U.S.C. Sec. 1105a(a)(3). Petitioners have not filed motions to reopen with the BIA since the dismissal of their appeal.

II

We turn first to the government's argument that petitioners have not exhausted administrative remedies. We will not review a deportation order "if the alien has not exhausted the administrative remedies available to him as of right under the immigration laws and regulations." 8 U.S.C. Sec. 1105a(c). Of course, exhaustion is not required when administrative remedies are inadequate. See, e.g., NLRB v. Industrial Union of Marine and Shipbuilding Workers of America, 391 U.S. 418, 426 n. 8, 88 S.Ct. 1717, 1723 n. 8, 20 L.Ed.2d 706 (1968); Camenisch v. University of Texas, 616 F.2d 127, 134 (5th Cir.1980); B. Mezines, J. Stein, & J. Gruff, 5 Administrative Law Sec. 49.02 (1983). The government argues that petitioners' failure to apply for asylum is fatal to this appeal, stating that the deportation orders might have been lifted if petitioners had proved they would be subject to persecution. Petitioners counter that there was no realistically available administrative channel by which they could have presented their applications for asylum once their deportation hearings were concluded. Because we find that the available administrative remedies would not be sufficiently effective in this case, we decline to require that they be pursued before appeal to this court.

There is a procedure available by which one who fails to present an asylum claim at his deportation hearing can, along with appealing the deportation decision, submit an application for asylum to the BIA either as a "motion to reopen," see Matter of Escobar, Interim Decision 2944 (June 28, 1983), or a "motion to remand," see 8 C.F.R. Sec. 3.1(d)(2); C. Gordon & H. Rosenfeld, 1A Immigration Law & Procedure, Sec. 3.22a (1984); Nat'l Lawyer's Guild, Immigration Law & Defense Sec. 9.2 (1983). See 8 C.F.R. Sec. 3.2. The regulations in effect make separate provision for a petition for asylum filed after a deportation hearing. 1 Pointing out that a motion to reopen requires new evidence unavailable at the deportation hearing, petitioners conceded they had no new evidence but rather only an explanation that they did not know they could apply for asylum.

Moreover, the government's argument would require petitioners to pursue before our review a remedy that would not assure any hearing before deportation. After deportation any asserted right to asylum would not be heard. 2 There is an unqualified "right" to petition for asylum only within the ten-day period for appeal following the decision of the immigration judge. After this ten-day period, a request for asylum is addressed to the discretion of the agency. There is no longer an automatic suspension of deportation pending the ruling upon the motion to reopen. See 8 C.F.R. Secs. 3.6, 3.8. A stay can be requested but its denial is not an appealable order. Bonilla v. INS, 711 F.2d 43 (5th Cir.1983). We are persuaded that motions to reopen the deportation hearings in order to petition for asylum are not here a sufficiently effective remedy that they must be pursued before an appeal to this court.

There is another dimension to the government's argument. With nothing in the record to show that petitioners can prove a clear probability of persecution, see INS v. Stevic, --- U.S. ----, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984), there is no showing that they were harmed by not being told of the right to petition for asylum.

The difficulty with this seemingly plausible argument is that it begs an important part of the question. 3 Taken to its end, the government's argument is that failing to show entitlement to asylum is fatal to petitioners' claim that not being told of the right deprived them of a meaningful opportunity to do so. In this sense, the answer to the exhaustion question answers also the proffered question of prudential standing. If there is a requirement that aliens be told of their right to petition for asylum, the limits placed on its untimely assertion are sufficient to demonstrate the impact of not being told. We turn to that question.

III

Since 1980, aliens have had two possible paths for seeking asylum within the United States, those seeking to immigrate to this country aside. An alien can apply for asylum with the local District Director of the INS. See 8 C.F.R. Sec. 208.3(a)(2). This petition addresses the discretion of the agency and is not subject to judicial review. 8 C.F.R. Sec. 208.8(c). If deportation proceedings under 8 C.F.R. Sec. 242.1 are commenced, or a reference under 8 C.F.R. Sec. 236.3 is made, exclusive jurisdiction to entertain an asylum petition lies with the immigration judge. See 8 C.F.R. Sec. 208.3(b). A petition for asylum filed with the immigration judge is simultaneously regarded as a request for the withholding of deportation under Section 243(h) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1253(h). See 8 C.F.R. Sec. 208.3(b). 4

Although under normal INS procedures, aliens are not routinely told of their right to petition for asylum, notice is required when the country of deportation is designated by the hearing officer. 8 C.F.R. Sec. 242.17(c). 5 In addition, the Attorney General has had the explicit power since at least 1950 to withhold the deportation of any alien ...

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