Young v. U.S. Dept. of Justice, I.N.S.

• Citation: 759 F.2d 450
• Decision Date: 02 May 1985
• Docket Number: No. 84-4506,84-4506
• Parties: Raul Quan YOUNG and Grace Larrad de Quan, Petitioners, v. The UNITED STATES DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 450

759 F.2d 450

Raul Quan YOUNG and Grace Larrad de Quan, Petitioners, v. The UNITED STATES DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 84-4506.

United States Court of Appeals, Fifth Circuit.

May 2, 1985.

Loyola Law School Clinic, Evangeline G. Abriel, David Ware, New Orleans, La., for petitioners.

Wm. F. Smith, Atty. Gen., Dept. of Justice, Robert L. Bombough, Dir., Office of Immigration & Madelyn E. Johnson, Litigation, Civil Division, Allen W. Hausman, Washington, D.C., for respondent.

David H. Lambert, Dist. Dir., I.N.S., New Orleans, La., for other interested parties.

Joint Petition for Review of Orders of the Board of Immigration Appeals.

Before GOLDBERG, JOHNSON and DAVIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Petitioners, Raul Quan Young and Grace Larrad de Quan, who are husband and wife and citizens of Guatemala, seek review of deportation orders issued by an immigration judge of the Department of Justice. The immigration judge found that the Quans were deportable aliens who were not eligible for asylum or withholding of deportation as political refugees. The Board of Immigration Appeals dismissed the Quans' appeal of this order; we affirm. The Quans also sought to reopen their bond determination hearings. The immigration judge declined to reopen the proceedings; the Board of Immigration Appeals affirmed. Finding no jurisdiction to review the Board's determination, we dismiss this portion of the Quans' petition.

I.

Mr. Quan is a civil engineer and the former chief of the Department of Studies and Design at the Guatemalan Institute of Municipal Development, an agency of the Guatemalan government. In January 1982, Mr. Quan was dismissed from his position at the Institute, allegedly without notice or explanation. Mr. Quan then sought other employment as a civil engineer in Guatemala but was unable to obtain a position.

Mr. Quan attributes his loss of employment and his inability to obtain new employment to the political activities of his son, Raul. During 1980 and 1981, Raul was a student at the University of San Carlos and a member of an organization with both charitable and political objectives. Raul testified that in November 1981, he and a number of other student members of this organization were seized by the Guatemalan secret police during a meeting in a classroom at the university and were taken to a municipal building in the center of Guatemala City, where they were beaten and accused of being subversives and communists. According to Mr. Quan, he quickly learned of his son's detention and, with the assistance of a personal friend in the Ministry of the Interior, was able to have Raul released. Raul, who held a valid passport and visa, immediately departed for the United States. Raul testified that at least two of the students who were detained with him were later found murdered with marks of torture on their bodies.

Mr. Quan testified to additional incidents in support of his claim of political persecution. Mr. Quan asserted that approximately a week after Raul's flight to the United States, several men armed with the type of weapons issued to the Guatemalan secret police attempted to kidnap him, without success, on a street in Guatemala City. Mr. Quan contends that before his employment with the Guatemalan government was terminated, he received several threatening telephone calls warning him to be "careful in his job."

In November 1982, Mr. Quan came to the United States with a valid passport and multiple entry tourist visa. After arrival in this country, Mr. Quan applied to a district director of the Immigration and Naturalization Service (INS) for asylum, 8 U.S.C. Sec. 1158, and was granted work authorization. Mrs. Quan remained in Guatemala but made frequent trips to the United States. She last entered the United States on June 11, 1983, on a tourist visa which was extended to permit her to remain until December 11, 1983. ¹

Between July 8 and November 2, 1983, the INS and the United States Department of Justice received several telexes from the United States embassy in Guatemala and from the Guatemalan office of Interpol. These telexes relayed an accusation by the Guatemalan government that Mrs. Quan had engaged in baby smuggling and had ordered the murder of four people in Guatemala. These telexes also accused Mr. Quan of fraudulently obtaining $13,000,000. The Guatemalan government initially expressed an interest in extraditing the Quans but did not complete formal extradition requests for either of them.

On October 21, 1983, the INS made a warrantless arrest of the Quans and their children (aged fourteen, nine and three) at the Quans' home in New Orleans. The INS served Mr. Quan an order to show cause why he should not be deported for having overstayed his non-immigrant visa, 8 U.S.C. Secs. 1251(a)(2), 1201(a)(2). Mrs. Quan was served a similar order alleging that she entered the United States with the unlawful intention of remaining indefinitely, 8 U.S.C. Secs. 1251(a)(1), 1182(a)(20). Over the twelve days following their arrest, the Quans were detained and interrogated. The Quans assert that they were not informed of the charges against them and were not permitted to consult an attorney until November 2, 1983.

A deportation hearing was held November 2 and 4, 1983, on the charges made against the Quans in the orders to show cause. On November 4, both Mr. and Mrs. Quan, with the assistance of counsel, responded to questions posed by the immigration judge, admitted the charges against them, conceded that they were deportable, and requested deportation to Costa Rica. Costa Rica, however, refused to accept the Quans. Pursuant to a stipulation with the INS, the Quans were permitted to reopen their hearings to request asylum or, in the alternative, withholding of deportation. The stipulation did not allow the Quans to withdraw their concessions of deportability but did permit them to avoid deportation if they could establish that they would be subject to persecution if deported to Guatemala. Nevertheless, at Mrs. Quan's reopened hearing, she attempted to retract her admission of the charges against her and her concession of deportability on grounds that these admissions had been coerced. The immigration judge refused to permit this retraction holding that the admissions had been made knowingly and voluntarily.

At the reopened hearings, the immigration judge heard testimony from Mr. Quan and his son Raul regarding their experiences in Guatemala, and received evidence regarding the general climate of political repression and violence in that country. The immigration judge found that Mr. Quan failed to establish that his economic difficulties in Guatemala were the product of retribution for his political opinions or that he would be persecuted on account of his political opinions if he were returned to Guatemala. The Quans' request for asylum or withholding of deportation was denied and they were ordered deported; an appeal from this decision was dismissed by the Board of Immigration Appeals.

Following their arrest on October 21, 1983, the Quans were held without bond. On November 2, 1983, a hearing was held at which bond was set at $15,000 for Mr. Quan and for $30,000 for Mrs. Quan. By joint stipulation, Mr. Quan's bond was then reduced to $5,000. The Quans later moved to reopen their bond proceedings on the ground that the Guatemalan government's abandonment of any attempt to extradite them rendered the relatively high bonds unnecessary. The immigration judge refused to reopen the proceedings; the Board of Immigration Appeals affirmed.

On petition for review to this court, the Quans request that their deportation orders be vacated, asserting that coerced concessions of deportability were improperly received at their deportation hearings and that the Board of Immigration Appeals erred in concluding that they were ineligible for asylum or withholding as political refugees; alternatively, the Quans seek an order reopening their deportation hearings for the reception of new evidence. As a separate matter, the Quans seek review of the Board of Immigration Appeals' refusal to reopen their bond hearings.

II.

Mrs. Quan alleges that the immigration judge erred in concluding from the record that her concession of deportability was voluntary, in refusing to permit her to retract her concession of deportability, and in declining to terminate her deportation proceedings. ² Mrs. Quan asserts that her concession was illegally obtained through coercive tactics of the INS, including her warrantless arrest, denial of counsel for twelve days, and abusive interrogation. Mrs. Quan asserts that the admission of a concession obtained by such means violates constitutional rights secured by the fourth and fifth amendments, statutory provisions prohibiting warrantless arrests of aliens for any cause other than certain violations of the immigration laws, 8 U.S.C. Sec. 1357(a)(2), (4), ³ and provisions assuring notice of charges and access to counsel, 8 U.S.C. Sec. 1252(b)(1), (2); implemented by 8 C.F.R. Secs. 242.1(b), 287.3. Since Mrs. Quan's concession of deportability was the sole evidentiary basis for her deportation order, Mrs. Quan argues that the deportation order is not supported by "reasonable, substantial, and probative evidence", 8 U.S.C. Sec. 1105a(a)(4), and, hence, must be vacated.

Deportation hearings are civil actions to determine an alien's eligibility to remain in this country and do not have the character of criminal proceedings. INS v. Lopez-Mendoza, --- U.S. ----, 104 S.Ct. 3479, 3484, 82 L.Ed.2d 778 (1984). The full range of constitutional rights available in criminal proceedings is not afforded defendants in deportation proceedings. Id. 104 S.Ct. at 3490. Lopez-Mendoza teaches that, in general, a fourth amendment challenge to an evidentiary offering is effective only if the evidence is obtained by means which "might...