EL RESCATE LEGAL SERV. v. EXEC. OFF. FOR IMM. REV.

• Decision Date: 14 December 1989
• Docket Number: No. CV 88-1201-WPG.,CV 88-1201-WPG.
• Citation: 727 F. Supp. 557
• Parties: EL RESCATE LEGAL SERVICES, INC., Central American Refugee Center, Shamila Ramin, Fereshteh Etemadi, Maria Antonia Gamero Colocho, Walter Octaviano Nochez Flores and Maria Dolores Parada, Plaintiffs, v. EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, David Milhollan, William R. Robie, Ernest R. Gustafson, Joseph Turnage, Immigration and Naturalization Service and Richard Thornburgh, Defendants.
• Court: U.S. District Court — Central District of California

727 F. Supp. 557

EL RESCATE LEGAL SERVICES, INC., Central American Refugee Center, Shamila Ramin, Fereshteh Etemadi, Maria Antonia Gamero Colocho, Walter Octaviano Nochez Flores and Maria Dolores Parada, Plaintiffs, v. EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, David Milhollan, William R. Robie, Ernest R. Gustafson, Joseph Turnage, Immigration and Naturalization Service and Richard Thornburgh, Defendants.

No. CV 88-1201-WPG.

United States District Court, C.D. California.

December 14, 1989.

Sandra Pettit, Legal Aid Found. of Los Angeles, Steven A. Nissen, Niels Frenzen, Public Counsel, Michael J. Ortiz, Darline Alvarez, Immigrants' Rights Office, Legal Aid Found. of Los Angeles, Los Angeles, Cal., for plaintiffs.

Robert L. Brosio, U.S. Atty., Frederick M. Brosio, Jr., Chief, Civ. Div., Ian Fan, Asst. U.S. Attys., Los Angeles, Cal., Stuart M. Gerson, Asst. Atty. Gen., Allen W. Hausman, Sr. Trial Counsel, Francesco Isgo, Office of Immigration Litigation Civ. Div., Dept. of Justice, Washington, D.C., for defendants.

MEMORANDUM OF DECISION

GRAY, District Judge.

The plaintiffs, on behalf of themselves and their class, have moved for partial summary judgment. Plaintiffs alleged that the Executive Office for Immigration Review (hereinafter "EOIR") fails to require full interpretation of immigration court proceedings for the benefit of the alien respondents, depriving the plaintiffs and their class of the guarantees of due process under the law.¹ This matter has been briefed and argued thoroughly and was submitted to this court for decision. On November 9, 1989, this court signed an order granting the plaintiffs' motion for partial summary judgment, holding that due process requires interpretation of an entire immigration court proceeding when the immigration judge concludes that an interpreter is necessary. The bases for partial summary judgment are contained in this Memorandum.

I.

Congress has created two types of proceedings in which aliens can be denied the "hospitality" of the United States: deportation hearings and exclusion hearings (jointly referred to as "immigration court proceedings"). Landon v. Plasencia, 459 U.S. 21, 25, 103 S.Ct. 321, 325, 74 L.Ed.2d 21 (1982); see generally, Leng May Ma v. Barber, 357 U.S. 185, 187, 78 S.Ct. 1072, 1073-74, 2 L.Ed.2d 1246 (1958). In most cases, the deportation hearing is the means of proceeding against an alien already physically in the United States, while the exclusion hearing is the means of proceeding against an alien seeking admission.²

This court acknowledges that constitutional safeguards differ for excludable or unadmitted aliens and those aliens who have gained entry into the United States. See, e.g., Leng May Ma, 357 U.S. 185, 78 S.Ct. 1072; Nishimura Ekui v. United States, 142 U.S. 651, 659-60, 12 S.Ct. 336, 338-39, 35 L.Ed. 1146 (1892). The Supreme Court continues to hold that aliens who apply for initial admission into the United States have no constitutional rights by virtue of their application. See, e.g., Plasencia, 459 U.S. at 25, 103 S.Ct. at 325 (1982); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542, 70 S.Ct. 309, 312, 94 L.Ed. 317 (1950); Nishimura Ekui, 142 U.S. at 659-60, 12 S.Ct. at 338-39. However, once aliens have gained entry, even if their presence is brief or illegal, a limited right to due process attaches. Mathews v. Diaz, 426 U.S. 67, 77, 96 S.Ct. 1883, 1890, 48 L.Ed.2d 478 (1976).

Notwithstanding the judicial distinction between the rights of excludable aliens and those of deportable aliens, Congress and the Commissioner of Immigration and Naturalization have chosen to confer procedural due process rights on both classes of aliens. In deportation proceedings:

1) the alien shall be given notice, reasonable under all the circumstances, of the nature of the charges against him and of the time and place at which the proceeding will be held;

2) the aliens shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose;

3) the alien shall have a reasonable opportunity to examine the evidence against him, to present evidence in his own behalf, and to cross-examine witnesses presented by the Government;

4) no decision of deportability shall be valid unless it is based upon reasonable, substantial, and probative evidence.

8 U.S.C. § 1252(b) (1970 & Supp.1989).

Similarly, in exclusion hearings, to which an excludable alien is entitled under 8 U.S.C. § 1226(a) (1970), the official administrative regulations require the immigration judge to:

inform the applicant of the nature and purpose of the hearing; advise him of the privilege of being represented by an attorney of his own choice at no expense to the Government, and of the availability of free legal services programs qualified under Part 292a of this chapter and organizations recognized pursuant to § 292.2 of this chapter located in the district where his exclusion hearing is to be held; and shall ascertain that the applicant has received a list of such programs; and request him to ascertain then and there whether he desires representation; advise him that he will have a reasonable opportunity to present evidence in his own behalf, to examine and object to evidence against him, and to cross-examine witnesses presented by the Government; and place the applicant under oath.

8 C.F.R. § 236.2(a) (1989).

Although the Supreme Court held that an alien lacks constitutional rights in exclusion hearings³ Knauff, 338 U.S. at 542, 70 S.Ct. at 312, this court need not address the constitutional issue since it finds a violation of the plaintiffs' statutory due process rights in both exclusion hearings and deportation hearings.

II.

There is no genuine dispute that in the Los Angeles, San Diego and El Centro immigration courts, EOIR does not require interpretation of entire immigration court proceedings where it is determined that an interpreter is needed.⁴ Instead, the practice of EOIR and of the immigration judges is to require interpretation into English of any statement made in a foreign language for the purpose of establishing a record. Other portions of the proceedings may be interpreted at the individual immigration judge's discretion. The defendants' responses to the plaintiffs' interrogatories bear this out:

RESPONSE TO INTERROGATORY NO. 15.

EOIR has no written mandated policy on what parts of the proceedings are to be interpreted. The portions of the hearings interpreted depend on what is necessary to create a record for appellate review and to assure a fair hearing.

. . . . .

It should be stressed that the interpreter is interpreting primarily for the benefit of the immigration judge and the creation of the record. The interpreter is not an agent of the respondent and is not there for the primary use of the respondent. The interpreter interprets what is necessary for a fair hearing at the discretion of the immigration judge.

The following excerpt taken from the deposition of Chief Immigration Judge William Robie illustrates which portions of the hearings are interpreted:

Q: What is EOIR's policy regarding what portions of the proceedings are to be interpreted?

A: Our policy is that the portions of the proceeding that are related to a witness, whether it be a respondent or another witness needing language translation, will be interpreted consecutively for the record, and their primary purpose is to assure that the official record will be available for review in English.

. . . . .

Q: ... you do not interpret a witness' English testimony to Spanish for the benefit of the respondent?

A: That's correct.

Q: And why is that?

A: Because it is not needed for the function that interpreters perform in our system, which is to provide for the official record of the proceeding for review in English by the immigration judge who has to make the decision and ultimately for review by the Board of Immigration Appeals and the Court of Appeals or the District Court.

Q: What is the policy respecting the interpretation of argument of counsel?

A: There is no policy to require interpretation in that instance.

Q: And why is that?

A: It is not necessary for the official record unless it were being done by an attorney in Spanish, in which case then it would be interpreted for the record so that the judge would have the benefit of the argument and the appellate bodies would have that benefit.

. . . . .

Q: Is it your view that there is no need to interpret objections of counsel to the respondent?

A: Yes.

Q: And what's the justification for that?

A: It is not necessary in order to have the official record be in English so that the decision-makers can adequately review it in making their decision.

Q: What about the judge's decision? Should that be interpreted to the respondent?

A: It's not necessary to do that.

See Robie Deposition at 174-185.

III.

EOIR's failure to require full interpretation of immigration court proceedings seriously undermines the plaintiffs' statutory right to be present at their proceedings, their right to counsel, their right to examine evidence, and their right to confront and cross-examine witnesses.

Foremost, failure to interpret the full proceedings deprives the class members of their right to be present. To the aliens who possess little or no comprehension of English, a proceeding conducted without an interpreter is merely a "babble of voices." See, e.g., United States ex rel. Negron v. State of New York, 434 F.2d 386 (2d Cir. 1970). Unless they can hear in their own language what transpires, the aliens' ability to participate in and respond to the proceedings is doubtful and their right to be present is meaningless. As Judge Ferguson succinctly stated in his dissent in Tejeda-Mata v. INS, 626 F.2d 721, 728 (9th Cir.1980), cert. denied 456 U.S. 994, 102 S.Ct. 2280, 73 L.Ed.2d 1291 (1982) "presence can have no meaning absent comprehension."

In Negron, the defendant was...