RUIZ-MASSIEU

Interim Decision #3400

In re Mario Salvador RUIZ-MASSIEU, Respondent

File A74 163 285 - Newark

Decided as Amended June 10, 1999

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) In order to establish deportability under section 241(a)(4)(C)(i) of the Immigration and

Nationality Act, 8 U.S.C. § 1251(a)(4)(C)(i) (1994), the Immigration and Naturalization

Service has the burden of proving by clear, unequivocal, and convincing evidence that the

Secretary of State has made a facially reasonable and bona fide determination that an alien’s

presence or activities in the United States would have potentially serious adverse foreign pol-

icy consequences for the United States.

(2) A letter from the Secretary of State conveying the Secretary’s determination that an

alien’s presence in this country would have potentially serious adverse foreign policy con-

sequences for the United States, and stating facially reasonable and bona fide reasons for

that determination, is presumptive and sufficient evidence that the alien is deportable under

section 241(a)(4)(C)(i) of the Act, and the Service is not required to present additional evi-

dence of deportability.

(3) The Government is not required to permit an alien who is deemed to be deportable under

section 241(a)(4)(C)(i) of the Act to depart the United States voluntarily prior to the initiation

of deportation proceedings where the alien’s presence is pursuant to his voluntary decision

to enter or seek admission to this country. Matter of Badalamenti, 19 I&N Dec. 623 (BIA

1988); Matter of Yam, 16 I&N Dec. 535 (BIA 1978); and Matter of C-C-, 3 I&N Dec. 221

(BIA 1948), distinguished.

(4) Extradition proceedings are separate and apart from deportation proceedings and the

Government’s success or failure in obtaining an order of extradition has no effect on depor-

tation proceedings. Matter of McMullen, 17 I&N Dec. 542 (BIA 1980), rev’d on other

grounds, 658 F.2d 1312 (9th Cir. 1981), on remand, Matter of McMullen, 19 I&N Dec. 90

(BIA 1984), aff’d, 788 F.2d 591 (9th Cir. 1986), followed.

Robert Frank, Esquire, Newark, New Jersey, for respondent

David Martin, of counsel, for the Immigration and Naturalization Service

Before: Board En Banc: DUNNE, Vice Chairman; VACCA, HEILMAN, HOLMES,

HURWITZ, VILLAGELIU, COLE, MATHON, GUENDELSBERGER, JONES,

GRANT, and MOSCATO, Board Members. Dissenting Opinion: ROSENBERG,

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Board Member, joined by SCHMIDT, Chairman.1

GRANT, Board Member:

In a decision dated May 30, 1997, the Immigration Judge found the

respondent not deportable under section 241(a)(4)(C)(i) of the Immigration

and Nationality Act, 8 U.S.C. § 1251(a)(4)(C)(i) (1994), and terminated

proceedings. The Immigration and Naturalization Service appealed. Oral

argument was held at the Board of Immigration Appeals on May 27, 1998.

The appeal will be sustained and the record will be remanded.

I. FACTS AND PROCEDURAL HISTORY

The respondent is a native and citizen of Mexico, who served as the

Deputy Attorney General of Mexico in 1993 and from May 1994 until he

resigned that position on November 23, 1994. He was admitted to the United

States as a nonimmigrant visitor for pleasure on March 2, 1995. Later that

same day, he was arrested by the United States Customs Service, as he

attempted to leave the United States, on account of his alleged failure to

declare approximately $26,000 in currency. Charges in that case were subse-

quently dropped. An Order to Show Cause and Notice of Hearing (Form I-

221) was issued on December 22, 1995. The respondent was charged with

being deportable under section 241(a)(4)(C)(i) of the Act, based on a deter-

mination by the United States Secretary of State, Warren Christopher, dated

October 2, 1995, that, in his opinion, the presence of the respondent in the

United States may have serious adverse foreign policy consequences. The

determination states that the failure to return the respondent

would jeopardize our ability to work with Mexico on law enforcement matters. It

might also cast a potentially chilling effect on other issues our two governments are

addressing. . . . Should the U.S. Government not return Mr. Ruiz Massieu to Mexico,

our support of such reforms [of the Mexican judicial system] would be seen as hollow

and self-serving and would be a major setback for President Zedillo and our combined

efforts to chart a new and effective course of U.S.-Mexican relations.

See Appendix.

Deportation proceedings were enjoined by a district court judge, who

found the statutory provision at issue to be unconstitutional, but the United

States Court of Appeals for the Third Circuit dissolved the injunction, rul-

ing that the respondent was required first to exhaust his administrative

1

On our own motion, we amend the June 10, 1999, order in this case to correct the list

of Board Members who participated.

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Interim Decision #3400

remedies. Massieu v. Reno, 915 F. Supp. 681 (D.N.J.), rev’d and remanded,

91 F.3d 416, 420 (3d Cir. 1996). According to the Service, the respondent

faces charges of money laundering, criminal unjust enrichment, embezzle-

ment, obstruction of justice, accessory after the fact, intimidation, and tor-

ture in Mexico. The Government has tried unsuccessfully four times to

extradite the respondent on the basis of embezzlement and obstruction of

justice charges brought in Mexico. See generally Massieu v. Reno, 915 F.

Supp. 681.2 In its appeal, the Service maintains that the Secretary of State’s

October 2, 1995, determination should be conclusive for the purpose of

deportability under section 241(a)(4)(C)(i) of the Act. It requests that the

Board reverse the decision of the Immigration Judge, find the respondent

deportable, and remand the proceedings to allow the respondent the oppor-

tunity to apply for any applicable relief from deportation.

II. GROUNDS OF DEPORTABILITY AND IMMIGRATION

JUDGE’S DECISION

Pursuant to the statute, “an alien whose presence or activities in the

United States the Secretary of State has reasonable ground to believe would

have potentially serious adverse foreign policy consequences for the United

States is deportable.” Section 241(a)(4)(C)(i) of the Act.3 The Service con-

tends that the letter of the Secretary of State is sufficient to render the

respondent deportable as charged. In the alternative, the Service contends

that the Secretary gave in his letter facially valid reasons for his opinion,

which is all that is required under the statute. See Kleindienst v. Mandel, 408

U.S. 753 (1972) (finding bona fide and facially legitimate reasons sufficient

to deny a waiver for a nonimmigrant visa).

The Immigration Judge found that the Service failed to carry its burden

of proof to show that the respondent is deportable by clear, unequivocal,

and convincing evidence. Woodby v. INS, 385 U.S. 276 (1966). In particu-

2

In an unrelated action, the United States Court of Appeals for the Fifth Circuit has

affirmed a district court’s judgment of forfeiture of United States currency held in a bank

account in the respondent’s name at the Texas Commerce Bank. See United States v.

$9,041,598.68, 163 F.3d 238 (5th Cir. 1998), aff’g 976 F. Supp. 642 (S.D. Tex. 1997).

However, we need not address this matter for purposes of this decision.

3

The two exceptions to excludability set forth under section 212(a)(3)(C) of the Act, 8

U.S.C. § 1182(a)(3)(C) (1994), for government officials and those sought to be excluded on

account of beliefs, statements, or associations apply also to deportation under section

241(a)(4)(C) of the Act, but the respondent does not claim that either exception applies to him.

See section 241(a)(4)(C)(ii) of the Act. Section 241(a)(4)(C) was recodified without amend-

ment as section 237(a)(4)(C) of the Act, 8 U.S.C. § 1227(a)(4)(C) (Supp. II 1996), by section

305(a)(2) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996,

Division C of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-598 (“IIRIRA”). The amend-

ment does not affect this case, which was initiated prior to the effective date of the IIRIRA.

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lar, the Immigration Judge found that the Service failed to show by clear,

unequivocal, and convincing evidence that the opinion of the Secretary of

State was reasonable. She found that the determination of the Secretary of

State alone was insufficient to demonstrate that the presence of the respon-

dent could potentially produce serious adverse foreign policy conse-

quences.

According to the Immigration Judge, the Service has failed to show

what it is about the respondent’s presence here that caused the Secretary to

believe that our foreign policy will be affected; for example, there is no evi-

dence in the record of a pending criminal case in Mexico. Furthermore, she

noted, his presence here is involuntary. Finally, the Immigration Judge

rejected as unsupported the argument that the letter from the Secretary of

State is a certification binding on the Immigration Court and that its mere

existence requires that the alien be found deportable.

III. STATUTORY HISTORY

The authority of the Congress and executive branch to regulate the

admission and status of aliens in the United States is virtually unrestricted.

Fiallo v. Bell, 430 U.S. 787, 792 (1977); Shaughnessy v. United States ex

rel. Mezei, 345 U.S. 206, 210 (1953). The federal courts have long recog-

nized that the political branches of the Federal Government have plenary

authority to establish and implement substantive and procedural rules gov-

erning the admission of aliens to this country. See Jean v. Nelson, 727 F.2d

957, 964 (11th Cir. 1984) (en banc) (citing Chae Chan Ping v. United States

(The Chinese Exclusion Case), 130 U.S. 581 (1889)); see also Reno v.

Flores, 507 U.S. 292 (1993). “The power to expel aliens, being essentially

a power of the political branches of government, the legislative and execu-

tive, may be exercised entirely through executive officers, ‘with such oppor-

tunity for judicial review of their action as Congress may see fit to author-

ize or permit.’” Carlson v. Landon, 342 U.S. 524, 537 (1952) (quoting Fong

Yue Ting v. United States, 149 U.S. 698, 713-15 (1893)).

United States immigration law has long allowed the exclusion of aliens

whose activities would be detrimental to the United States or whom the

Secretary of State had reason to believe would engage in certain illegal

activities, or who belonged or had belonged to certain organizations.

Former section 212(a)(27) of the Act, 8 U.S.C. § 1182(a)(27) (1988), barred

the entry of aliens whom the consular officer or the Attorney General knew

or had reason to believe were seeking entry “solely, principally, or inciden-

tally” to engage in activities which would be prejudicial to the public inter-

est or endanger the welfare, safety, or security of the United States. Former

section 241(a)(7) of the Act, 8 U.S.C. § 1251(a)(7) (1988), provided for

deportation of an alien who was engaged, had engaged, or at any time after

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entry had a purpose to engage in any of the activities described in sections

212(a)(27) or (29) of the Act.4 In interpreting these provisions, the federal

courts generally held that an alien has no standing to object to his or her

exclusion under these provisions on the ground that an unadmitted nonres-

ident alien has no constitutional right of entry into the United States. See,

e.g., Kleindienst v. Mandel, supra (Marxist). The courts further held that an

alien may be denied entrance on grounds which would be constitutionally

suspect or impermissible in the context of domestic legislation. Fiallo v.

Levi, 406 F. Supp. 162 (E.D.N.Y. 1975), aff’d sub nom. Fiallo v. Bell, supra;

see also Jean v. Nelson, 727 F.2d 957 (11th Cir. 1984), aff’d, 472 U.S. 846

(1985); accord Mathews v. Diaz, 426 U.S. 67, 80 (1976); cf. Adams v.

Baker, 909 F.2d 643 (1st Cir. 1990); Rafeedie v. INS, 795 F. Supp. 13

(D.D.C. 1992). However, two courts of appeals held that the Department of

State could not prevent persons from entering the United States on the

belief that their mere presence or speeches would pose a threat to United

States interests. Allende v. Schultz, 845 F.2d 1111 (1st Cir. 1988); Abourezk

v. Reagan, 785 F.2d 1043 (D.C. Cir. 1986), aff’d, 484 U.S. 1 (1987) (per

curiam).

The Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978

(“IMMACT 90”), repealed sections 212(a)(27) and 241(a)(7) of the Act and

replaced them with new provisions designed to address the concerns pre-

sented in cases such as Abourezk v. Reagan, supra, and Allende v. Schultz,

supra.5 Under these new provisions, the standard for exclusion or deporta-

tion was squarely focused on a foreign policy determination entrusted to the

Secretary of State. The Secretary must have reasonable ground to believe

that the alien’s entry or proposed activities, in the case of the exclusion pro-

vision, or presence or activities in the United States, in the case of the

4

See, e.g., Adams v. Baker, 909 F.2d 643 (1st Cir. 1990) (Irish Republican Army). But

see Allende v. Schultz, 845 F.2d 1111 (1st Cir. 1988) (Communist party); Rafeedie v. INS, 688

F. Supp. 729 (D.D.C. 1988), modified, 880 F.2d 506 (D.C. Cir. 1989), on remand, 795 F.

Supp. 13 (D.D.C. 1992) (Palestine Liberation Organization).

5

Under current law there is some ambiguity as to the authority of the Executive Branch

to exclude aliens on foreign policy grounds. . . . The foreign policy provision in this title

would establish a single clear standard for foreign policy exclusions (which is designated as

212(a)(3)(C) of the INA). The conferees believe that granting an alien admission to the

United States is not a sign of approval or agreement and the conferees therefore expect that,

with the enactment of this provision, aliens will be excluded not merely because of the poten-

tial signal that might be sent because of their admission, but when there would be a clear neg-

ative foreign policy impact associated with their admission. . . . Specifically, under this pro-

vision, an alien could be excluded only if the Secretary of State has reasonable ground to

believe an alien’s entry or proposed activities within the United States would have potential-

ly serious adverse foreign policy consequences.

H.R. Conf. Rep. No. 101-955, at 128-29 (1990), reprinted in 1990 U.S.C.C.A.N. 6784,

6793-94.

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deportation provision, “would have potentially serious adverse foreign pol-

icy consequences.” Sections 212(a)(3)(C)(i), 241(a)(4)(C)(i) of the Act, 8

U.S.C. §§ 1182(a)(3)(C)(i), 1251(a)(4)(C)(i) (Supp. II 1990). Furthermore,

specific exceptions were provided to protect against the exclusion or depor-

tation of aliens solely on the grounds of beliefs, statements, or associations

which would be lawful if performed within the United States. In such cases,

the alien may not be excluded or deported unless the Secretary personally

determines that the alien’s admission or presence would compromise a

compelling United States foreign policy interest, and such determination is

communicated to the appropriate committees of the House of

Representatives and the Senate. See sections 212(a)(3)(C)(ii)-(iv),

241(a)(4)(C)(ii) of the Act. The conference report for the IMMACT 90

emphasized that only a “potential” for serious foreign policy consequences

is required under the exclusion provision (as opposed to the more stringent

finding of compelling foreign policy interest required under the exception

to that provision). H.R. Conf. Rep. No. 101-955, at 129 (1990), reprinted in

1990 U.S.C.C.A.N. 6784, 6794.

In the present case, no allegations have been made regarding the

respondent’s activities. The issue of deportability turns solely on his pres-

ence in this country. Therefore, the respondent makes no claim to be eligi-

ble for the exception in section 241(a)(4)(C)(ii) of the Act for beliefs, state-

ments, or associations which would be lawful within the United States.

The provision of the revised statute at issue here has been used very

rarely. In Matter of Khalifah, 21 I&N Dec. 107 (BIA 1995), the only pub-

lished Board case involving section 241(a)(4)(C) of the Act, the Board

upheld the Immigration Judge, who denied release on bond to an alien fac-

ing deportation under section 241(a)(4)(C) of the Act. The only discussion

of the provision of the Act before us in the federal courts is to be found in

the decisions of the district court and the court of appeals in this matter. See

Massieu v. Reno, supra. In the absence of direct precedent, the Immigration

Judge and the respondent have cited to cases which predate the Immigration

Act of 1990. These cases considered the provisions of the Act allowing the

Government to bar the entry of one whose activities in the United States

would be detrimental to United States interests. See sections 212(a)(27),

(28) of the Act; Allende v. Schultz, supra; see also Abourezk v. Reagan,

supra; City of New York v. Baker, 878 F.2d 507 (D.C. Cir. 1989) (same case).

However, these cases are of limited relevance for two reasons. First, we are

without jurisdiction to entertain a constitutional challenge such as those

adjudicated in the cited cases.6 Second, the provision at issue in this case

6

The parties agree that the Board has no jurisdiction to consider allegations of the

unconstitutionality of the statute it administers, such as those allegations which were sus-

tained by the district court in Massieu v. Reno, 915 F. Supp. 681. See Matter of C-, 20 I&N

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Interim Decision #3400

differs substantially from the former exclusion grounds. Accordingly, our

interpretation of section 241(a)(4)(C) of the Act is not bound by prior judicial

or administrative determinations regarding related, but distinct, provisions.

IV. POSITIONS OF THE PARTIES

The Service argues that the Attorney General has no authority to

inquire into the reasonableness of the Secretary of State’s determination,

pursuant to section 241(a)(4)(C)(i) of the Act, that there is a “reasonable

ground to believe” that a particular alien’s presence in the United States

poses potentially serious adverse foreign policy consequences. The Service

contends that the language employed in section 241(a)(4)(C)(i), read

together with section 103 of the Act, 8 U.S.C. § 1103 (1994), “divests the

Attorney General, and, therefore, the Immigration Judge, of jurisdiction to

review determinations made by the Secretary of State” pursuant to section

241(a)(4)(C)(i). This is so because the Secretary’s determination is prima-

rily a foreign relations issue within the expertise of the Secretary of State,

and not a question of legal interpretation within the Attorney General’s

expertise; therefore, the Attorney General or her agents have no jurisdiction

to review determinations made by the Secretary of State pursuant to the

authority delegated to the Secretary under section 241(a)(4)(C) of the Act.

See section 103 of the Act.7

The decision of the Immigration Judge, according to the Service, effec-

tively rewrote this provision to eliminate the determinative role of the

Secretary of State and to require the Service to prove to the Immigration

Judge’s satisfaction, by clear, unequivocal, and convincing evidence, that

there are reasonable grounds to believe that the alien’s presence could harm

the nation’s foreign policy interests. On the contrary, the Service argues,

review of the Secretary of State’s determination by the Immigration Judge

should be “ministerial,” and limited to matters such as “form and origin.”

Dec. 529, 532 (BIA 1992); Matter of Hernandez-Puente, 20 I&N Dec. 335, 339 (BIA 1991);

Matter of Fede, 20 I&N Dec. 35, 36 (BIA 1989); Matter of Valdovinos, 18 I&N Dec. 343, 345

(BIA 1982); Matter of Cenatice, 16 I&N Dec. 162, 166 (BIA 1977); Matter of L-, 4 I&N Dec.

556, 557 (BIA 1951).

7

The Attorney General shall be charged with the administration and enforcement of this Act

and all other laws relating to the immigration and naturalization of aliens, except insofar as

this Act or such laws relate to the powers, functions, and duties conferred upon the President,

the Secretary of State, the officers of the Department of State, or diplomatic or consular offi-

cers: Provided, however, That determination and ruling by the Attorney General with respect

to all questions of law shall be controlling.

Section 103(a) of the Act.

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At oral argument, the Service stated that the requirement in section

241(a)(4)(C)(i) that there be a reasonable ground to believe that an alien’s

presence would have potentially serious adverse foreign policy conse-

quences is intended to guide the decisions of the Secretary of State and con-

stitutes a direction by Congress for the Secretary to apply a higher standard

than the previous “prejudice to the public interest” standard set forth in for-

mer section 212(a)(27) of the Act. The “reasonable ground” standard does

not constitute an independent basis for review of the Secretary’s determina-

tion within the executive branch, and that determination is binding on the

Service and the Executive Office for Immigration Review.8 At most, the

Service contends, any review by the Immigration Judge must be highly def-

erential and thus limited to a determination whether there is a facially legit-

imate and bona fide reason for the Secretary’s determination.9

The respondent argues that, just as in other deportation proceedings, the

Service has the burden of establishing deportability by clear, unequivocal,

and convincing evidence. In this case, the Immigration Judge correctly

inquired into whether the Secretary of State had reasonable ground for his

belief and found that the Service has failed to demonstrate reasonable

ground for that belief. For example, the Service failed to support its case by

providing any evidence other than the Secretary of State’s letter, which pro-

vided no opportunity for the respondent to challenge the determination. In

cases involving security issues, the Service has provided significant evi-

dence in support of its contentions. See, e.g., Adams v. Baker, supra.

The respondent further asserts that the letter of the Secretary of State is

also stale. The Service has not demonstrated that intervening events have

not superseded the opinion expressed in 1995 by the then Secretary.

According to the respondent, application of this standard of review does not

violate the required deference to the opinion of the Secretary of State. The

statute contemplates that the Attorney General will have the final word in

matters of law. See section 103 of the Act. If the Immigration Judge has no

role in deciding the issue of deportability, Congress would not have placed

this provision in the section of the Act dealing with deportation after a hear-

ing before an Immigration Judge. Furthermore, the Secretary of State

should not be allowed to achieve indirectly the extradition of the respondent

to Mexico where federal magistrates have denied extradition four times

based on a lack of probable cause.

V. DISCUSSION

8

The Service indicated at oral argument that cabinet-level discussion would be the

appropriate forum for the Attorney General to address any concerns she may have regarding

a specific determination by the Secretary of State.

9

The Service did not argue that judicial review of such a determination is precluded, but

indicated that any such review would have to be highly deferential to the Secretary’s foreign

policy determination.

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A. Nature of Respondent’s Presence

We find that the respondent is present in the United States by virtue of his

voluntary entry. The Government, therefore, is not required to allow him the

option to leave the United States voluntarily, if the Government decides that

his presence here may potentially have adverse foreign policy consequences

pursuant to section 241(a)(4)(C)(i) of the Act. Section 244(e)(1) of the Act, 8

U.S.C. § 1254(e)(1) (1994), specifically precludes the privilege of voluntary

departure in lieu of deportation after a hearing to aliens deportable under sec-

tion 241(a)(4) of the Act. Cf. section 244(a)(2) of the Act.

The Immigration Judge has cited to cases holding that an alien held in

the United States must be allowed the opportunity to leave before proceed-

ings are initiated. These cases are clearly distinguishable from this case on

the facts. Matter of Badalamenti, 19 I&N Dec. 623 (BIA 1988), involved an

alien who was brought to the United States for prosecution. His entry was

involuntary. Matter of C-C-, 3 I&N Dec. 221 (BIA 1948), involved an alien

who was held in custody pending trial for a criminal charge past the time of

his authorized stay. The Board held that he was not deportable as an over-

stay under the principle that the law does not compel the impossible. Id. at

222. The respondent in this case has not been charged with being deportable

as an overstay. Finally, in Matter of Yam, 16 I&N Dec. 535 (BIA 1978), the

alien also did not enter the United States voluntarily. In fact, the Board

found that he should have been in exclusion proceedings. Id. at 537.

The respondent in this case entered the United States voluntarily and

for his own private reasons. Accordingly, he subjected himself to our juris-

diction and our laws. It is the judgment of the Secretary of State that his

presence here has potentially serious adverse foreign policy consequences

for the United States. His entry into the United States is, by itself, the “pres-

ence” required for deportability under section 241(a)(4)(C) of the Act.

B. Standard of Review and Burden of Proof

This case presents a clear contrast. The respondent contends that the

Immigration Judge was correct to require that the Service prove independ-

ently that the Secretary of State had a valid basis for his determination that

the respondent’s presence would have potentially serious adverse foreign

policy consequences. This logically would require a presentation of evi-

dence and independent review by the Immigration Judge regarding whether

that evidence was sufficient to support the Secretary’s determination. The

Service contends that once the Secretary has issued such a determination,

the role of the Immigration Judge, and indeed that of the Attorney General

herself, is purely ministerial: to confirm that the respondent is an alien and

that the Secretary’s letter is genuine and pertains to the respondent.

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We conclude that Congress’ decision to require a specific determination

by the Secretary of State, based on foreign policy interests, to establish

deportability under section 241(a)(4)(C)(i) of the Act, coupled with the

division of authority in section 103 of the Act between the Attorney General

and the Secretary of State, make it clear that the Secretary of State’s rea-

sonable determination in this case should be treated as conclusive evidence

of the respondent’s deportability. The Immigration Judge thus erred in hold-

ing that the Service is obliged to present clear, unequivocal, and convincing

evidence in support of the Secretary of State’s belief. The requirement that

the Service demonstrate that the respondent is deportable by clear, unequiv-

ocal, and convincing evidence, Woodby v. INS, supra, and 8 C.F.R. §

242.14(a) (1997), is met by the Secretary’s facially reasonable and bona

fide determination that the respondent’s presence here would cause poten-

tially serious adverse foreign policy consequences for the United States.

The respondent’s position would, as the Service has argued, funda-

mentally rewrite the text of section 241(a)(4)(C)(i) of the Act. A two-step

inquiry would be required: first, evidence that the Secretary of State has

made a determination based on foreign policy interests, and second, that

there is clear, unequivocal, and convincing evidence that this determination

is based on a reasonable ground. The second inquiry would necessarily

require an evaluation of what, in fact, are the foreign policy interests of the

United States, and thus leave open the possibility that aliens such as the

respondent could contest, before an Immigration Judge, whether such for-

eign policy interests are themselves reasonable.

Such review is not contemplated by section 241(a)(4)(C)(i) of the Act.

This provision grants exclusive authority to the Secretary of State to deter-

mine whether there is a “reasonable ground” to believe that the alien’s pres-

ence could have the requisite adverse foreign policy impact. Neither the

Attorney General nor her delegates have a role in that basic determination.

Otherwise, an alien could be deported under this provision if the Attorney

General had reasonable ground to believe that the alien’s presence would

cause the requisite foreign policy consequences. This is not how the provi-

sion reads.

We are further persuaded in this position by several facts. First, the

Attorney General did have authority, before the IMMACT 90, to determine

independently that an alien’s admission to the United States would be prej-

udicial to the public interest or endanger the security or the welfare of the

United States. No participation by the Secretary of State was required either

to exclude an alien under section 212(a)(27) or to deport an alien under sec-

tion 241(a)(7) of the Act. Under the provisions enacted in the IMMACT 90,

however, Congress has explicitly and deliberately carved out a provision

that requires a foreign policy determination by the Secretary of State before

an alien can be excluded or removed.

Second, the role of the Secretary of State under section 241(a)(4)(C)(i)

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of the Act is sui generis. In no other deportation provision is the Secretary

assigned such authority. Even within the cluster of deportation grounds in

section 237(a)(4) of the Act, 8 U.S.C. § 1227(a)(4) (Supp. II 1996), identi-

fied as “Security and Related Grounds,” subparagraph (C) is the only

ground that provides a role for the Secretary of State. For all other grounds,

including those that involve espionage, threats to the national security, or

violent opposition to or overthrow of the Government of the United States,

the role of the Attorney General is exclusive and paramount. See sections

237(a)(4)(A)(i)-(iii) of the Act.

Third, absent a determination by the Secretary of State that an alien’s

activities or presence in the United States would cause potentially serious

adverse foreign policy consequences, the Service cannot initiate deportation

proceedings under section 241(a)(4)(C)(i) of the Act. The Immigration

Judge would have no jurisdiction over such proceedings, other than to order

their termination. It is unlikely that Congress, having made the Secretary’s

foreign policy determination essential for such proceedings to be initiated,

would then grant an Immigration Judge and this Board authority to question

the validity of that determination.

The argument that deportability under section 241(a)(4)(C)(i) of the

Act should be decided in the same manner as other grounds of deportation

is unavailing.10 No other ground of deportation assigns a specific and essen-

tial role to the Secretary of State. The fact that this ground has been includ-

ed in the same section as other grounds of deportation that do require a

more active fact-finding role by the Immigration Judge is irrelevant: this is

a ground of deportability, and regardless of who is responsible for making

the determination of deportability, and under what standard of proof, it was

perfectly reasonable for Congress to include it among the other grounds of

deportability. Furthermore, the fact that Congress did not provide special

procedures for the handling of such cases, as it has in the case of criminal

aliens or alien terrorists, does not diminish the conclusive effect of the

Secretary of State’s determination. Under the plain terms of section

241(a)(4)(C)(i) of the Act, deportability is established in a manner different

from many other grounds of deportation. The fact that Congress did not pro-

vide a special form of proceeding in such cases is not determinative.

Finally, the respondent’s argument that the Service’s burden in this case

should apply equally to all elements of the charge, as in other deportation

10

For example, the respondent argues that while the issues in this case are similar to those

in Adams v. Baker, supra, the Government here has provided far less evidence, thus rendering

the record deficient. The issue in Adams, however, was significantly different: the Service, in

seeking to establish excludability under former section 212(a)(28)(F) of the Act, was required

to show that the applicant was a member of, or affiliated with, an organization which advo-

cated terrorism. No determination by the Secretary of State was involved. Id. at 648-49.

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proceedings, ignores the fundamentally ministerial aspect of the

Immigration Judge’s role in many such proceedings. For example, it is well

settled that an alien charged with deportability on criminal grounds cannot

relitigate the basis of a conviction before the Immigration Judge. Matter of

Roberts, 20 I&N Dec. 294 (BIA 1991); Matter of Fortis, 14 I&N Dec. 576

(BIA 1974); see also Matter of Mendez, 21 I&N Dec. 296 (BIA 1996);

Matter of Reyes, 20 I&N Dec. 789 (BIA 1994). An alien duly convicted by

a federal or state court, and thus rendered deportable, cannot force the

Service to establish that the conviction was “proper” or “reasonable.” The

record of conviction is determinative. 8 C.F.R. § 3.41 (1997); Contreras v.

Schiltgen, 122 F.3d 30, 32 (9th Cir. 1997), aff’d, 151 F.3d 906, 908 (9th Cir.

1998); Pablo v. INS, 72 F.3d 110, 113 (9th Cir. 1995); Zinnanti v. INS, 651

F.2d 420, 421 (5th Cir. 1981); see also Matter of Mendez, supra; Matter of

Reyes, supra.

It might be argued that a record of criminal conviction presents a dif-

ferent case because it is based on a determination of guilt following a for-

mal judicial proceeding, as opposed to the Secretary of State’s unilateral

judgment regarding adverse foreign policy consequences. That argument,

however, is properly directed at Congress’ decision to assign authority

under section 241(a)(4)(C)(i) of the Act to the Secretary of State. We are

obliged to apply the laws as written by Congress and are without jurisdic-

tion to entertain challenges to the validity of such laws under the

Constitution. See Matter of Punu, 22 I&N Dec. 3364, at 8 (BIA 1998);

Matter of Hernandez-Puente, 20 I&N Dec. 335 (BIA 1991); Matter of

Fede, 20 I&N Dec. 35 (BIA 1989); Matter of Valdovinos, 18 I&N Dec. 343

(BIA 1982); Matter of Cenatice, 16 I&N Dec. 162 (BIA 1977); Matter of L-,

4 I&N Dec. 556 (BIA 1951). In the scheme adopted by Congress, the

Secretary of State’s determination as outlined in section 241(a)(4)(C)(i) of

the Act is equivalent to a duly certified record of criminal conviction by a

state or federal court. The requirements of administrative due process are

satisfied once the alien is notified that the basis for the charges against him

is a determination by the Secretary under section 241(a)(4)(C)(i) of the Act.

Adopting the respondent’s argument would necessarily require the

Immigration Judge and this Board to intrude into the realm of foreign pol-

icy. The Secretary of State has the responsibility to implement the foreign

policy of the United States. 22 U.S.C. § 2656 (1994). He has the power

under the Immigration and Nationality Act to act independently of the

Attorney General, where authorized to do so. Section 103(a)(1) of the Act.

Section 241(a)(4)(C) of the Act specifically entrusts to the Secretary of

State the determination of the potentially serious adverse foreign policy

consequences of an alien’s presence here. No other person is given the

responsibility to make this determination and presumably no one would be

in a better position to decide whether United States foreign policy would be

adversely affected.11 We have before us a letter stating that the Secretary of

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State has made this determination. As noted, it would be impossible to ques-

tion or alter this decision without proceeding to an examination of the for-

eign policy of the United States and balancing the various considerations of

that policy against alternative competing policies. For these and similar rea-

sons, questions concerning foreign relations are often considered nonjusti-

ciable “political questions.” See Mathews v. Diaz, supra, at 82 n.21 (citing

Baker v. Carr, 369 U.S. 186 (1962)); Shaughnessy v. United States ex rel.

Mezei, supra; Harisiades v. Shaughnessy, 342 U.S. 580, 588-89 (1952);

Fong Yue Ting v. United States, supra, at 712.

For an example, we need only look to the opinion in the present case.

The Immigration Judge held that the Service must produce more than clear,

unequivocal, and convincing evidence that the Secretary of State held a

facially reasonable opinion that the alien’s presence would have adverse

foreign policy consequences. She required the Service to convince her by

clear, unequivocal, and convincing evidence that the Secretary’s opinion is

reasonable. The Immigration Judge found that the Service had not shown

that the opinion of the Secretary of State is reasonable.12 Consequently, in

the absence of further evidence, she substituted her judgment for that of the

Secretary of State. This standard of inquiry would entangle the Immigration

Court in matters of foreign policy and involve that court in weighing the

importance of various factors in an area in which it has no special expert-

ise. Such an in-depth examination could well require the Service to proffer

secret or confidential information and expert witnesses, or involve a depo-

sition of the Secretary of State. There is no indication that Congress con-

templated an Immigration Judge, or even the Attorney General, overruling

the Secretary of State on a question of foreign policy.13

We also believe, however, that the language of section 241(a)(4)(C)(i)

of the Act, together with the structure of responsibility set forth in section

103, require that the Secretary of State have set forth a facially reasonable

and bona fide basis for a determination under section 241(a)(4)(C)(i).

Section 103 of the Act provides that in the administration of the Act, the

determinations and rulings of the Attorney General on all questions of law

11

See Timothy P. McIlmail, The General, the Secretary, and the alien candidate: The

operation of the “potentially serious foreign policy risk” grounds of deportability and exclud-

ability under the Immigration and Nationality Act, 10 Geo. Immigr. L.J. 657 (1996).

12

According to the Immigration Judge, “If the Secretary of State relies upon some other

ground, a ground that this court might find reasonable, his letter fails to refer to it and the

Service fails to present evidence of [what] it might be.”

13

Because it is the opinion of the Secretary of State that decides the issue, there is no prej-

udice to the respondent if he is not allowed to cross-examine the Secretary regarding the con-

tents of the letter. We need not consider at this time potential prejudice in other situations,

such as where the respondent challenges whether the Secretary signed the letter, or whether

he is the person named.

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are controlling. Despite being urged to do so by the respondent, we will not

expand this authority over legal questions to subsume the independent

authority over powers, functions, and duties expressly assigned to the

Secretary of State in the realm of foreign policy. Nevertheless, the law is

equally clear that the Secretary must state that he or she has a “reasonable

ground” in making the determination under section 241(a)(4)(C)(i).

Thus, we find that it is within the province of the Attorney General and

her delegates to ensure that the Secretary of State’s determination, on its

face, rests on the Secretary’s judgments regarding foreign policy. We apply

the standard of facial reasonableness that was adopted by the Supreme

Court in Kleindienst v. Mandel, supra, at 770:

[W]hen the Executive exercises this power [to exclude aliens] negatively on the basis

of a facially legitimate and bona fide reason, the courts will neither look behind the

exercise of that discretion, nor test it by balancing its justification against the First

Amendment interests of those who seek personal communication with the applicant.

We need not consider at this time the purely speculative hypothetical in

which the Secretary of State gives no reason whatsoever for his or her deter-

mination under section 241(a)(4)(C)(i) of the Act, or a situation where the

reasons given are clearly unreasonable.14

The reasons given in the October 5, 1995, letter of the Secretary of

State are facially legitimate and bona fide. There is no question, and no con-

trary allegation has been made on this record, that the reasons stated there-

in do not proceed from a judgment involving the foreign policy interests of

the United States. We find that the October 5, 1995, letter of the Secretary

of State explaining his determination that the respondent’s presence here

has potentially serious adverse foreign policy consequences for the United

States, and setting forth his reasons for so concluding, meets the Service’s

burden to establish by clear, unequivocal, and convincing evidence that the

respondent is deportable under section 241(a)(4)(C)(i) of the Act.

C. Other Issues

The respondent argues that the Attorney General should not be allowed

to deport him, having failed in her attempt to comply with the Mexican

Government’s attempt to extradite him to Mexico. Extradition proceedings

are separate and apart from any immigration proceeding. Matter of

McMullen, 17 I&N Dec. 542, 548 (BIA 1980), rev’d on other grounds, 658

F.2d 1312 (9th Cir. 1981), on remand, Matter of McMullen, 19 I&N Dec.

14

The Court in Kleindienst v. Mandel, supra, at 769-70, also reserved judgment as to

whether “any reason or no reason may be given,” because the reason given was “facially legit-

imate and bona fide.”

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90 (BIA 1984), aff’d, 788 F.2d 591 (9th Cir. 1986). The standards of proof

are different. As the Service has pointed out, not all of the charges brought

in Mexico were cited as a basis for extradition. Also, the existence of crim-

inal charges is not the only possible basis for a determination that the

respondent’s presence may have adverse foreign policy consequences. We

note that other aliens have been deported after extradition requests were

denied by the courts. In Matter of McMullen, 17 I&N Dec. 542, the

Government petition for extradition was denied. The respondent was never-

theless found deportable. The Board stated:

Decisions resulting from extradition proceedings are not entitled to res judicata effect

in later proceedings. Hooker v. Klein, 573 F.2d 1360 (9th Cir. 1978). See also Jhirad

v. Ferrandina, 536 F.2d 478 (2d Cir. 1976). . . . Moreover, the res judicata bar goes into

effect only where a valid, final judgment has been rendered on the merits (Hooker,

supra), and it is well established that decisions and orders regarding extraditability

“embody no judgment on the guilt or innocence of the accused . . . .” Jhirad, supra,

at 482. . . . The issues involved in a deportation hearing differ from those involved in

an extradition case, and resolution of even a common issue in one proceeding is not

binding in the other.

Id. at 548; see also Matter of Perez-Jimenez, 10 I&N Dec. 309 (BIA 1963).

In Matter of Doherty, 599 F. Supp. 270 (S.D.N.Y. 1984), the respondent

was not extradited because the judge, sitting as a magistrate, found that the

crimes he committed were political; nevertheless, Doherty was found

deportable based on his own concession of deportability. The Attorney

General rejected his designation of a country of deportation under section

243(a) of the Act, 8 U.S.C. § 1253(a) (1982), as prejudicial to the interests

of the United States. The United States Court of Appeals for the Second

Circuit found that section 243(a) gives the Attorney General broad discre-

tion to determine what constitutes prejudice to national interests. Doherty v.

United States Dep’t of Justice, 908 F.2d 1108 (2d Cir. 1990), rev’d on other

grounds, INS v. Doherty, 502 U.S. 314 (1992); see also Doherty v. Meese,

808 F.2d 938, 943 (2d Cir. 1986); Linnas v. INS, 790 F.2d 1024 (2d Cir.

1986), cert. denied, 479 U.S. 995 (1987).

D. Further Proceedings

Section 243(a) of the Act (now section 241(b)(2) of the Act, 8 U.S.C. §

1231(b)(2) (Supp. II 1996)) allows the alien to name one country to which

he may be deported. Because the Immigration Judge terminated proceed-

ings, the respondent was not asked to name a country of deportation pur-

suant to section 243(a) of the Act. That provision (now at section

241(b)(2)(C)(iv) of the Act) also allows the Attorney General to disregard

the designation if the Attorney General decides that removing the alien to

the country named is prejudicial to the interests of the United States. The

Attorney General took such action in Matter of Doherty, supra. Doherty v.

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United States Dep’t of Justice, supra, at 1112. On remand, the respondent

should be given the opportunity to name a country of deportation and to

apply for any relief for which he may be eligible under the Act. Finally, the

record indicates that if the case is remanded for further proceedings, the

respondent may submit an application for asylum. At oral argument, the

Service agreed that neither the statute nor the regulations preclude such an

application.

ORDER: The appeal of the Immigration and Naturalization Service

is sustained.

FURTHER ORDER: The Immigration Judge’s order of May 30,

1997, is vacated, and the record is remanded to the Immigration Court for

further proceedings consistent with the foregoing opinion.

Board Members Lauri S. Filppu and Lori L. Scialabba did not partici-

pate in the decision in this case.

APPENDIX

THE SECRETARY OF STATE

WASHINGTON

OCTOBER 2, 1995

Dear Madam Attorney General:

I am writing to inform you that, pursuant to Section 241(a)(4)(C) of the

Immigration and Nationality Act, 8 U.S.C. section 1251(a)(4)(C), I have

concluded that the presence of Mario Ruiz Massieu in the United States

would have potentially serious foreign policy consequences for the United

States. Accordingly, I request that you take all steps possible, consistent

with the Immigration and Nationality Act and other relevant law, to effect

his deportation to Mexico.

My decision to invoke INA section 241(a)(4)(C) with respect to Mr.

Ruiz Massieu is based on the following considerations: As you are well

aware, the United States and Mexico have made tremendous progress in the

past five years in strengthening one of our most important bilateral rela-

tionships. The range of issues that unite our two nations — from combating

international drug trafficking, to addressing vexing problems of legal and

illegal migration, to fortifying trade and investment in one of the world’s

largest and fastest growing markets — is complex and varied.

One aspect of our relationship that has received the utmost attention

from both governments is our ability to cooperate to confront criminality on

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both sides of the border. We have seen successes on this front, but we con-

tinue to seek enhanced cooperation. With easy transit between the United

States and Mexico and extensive and ever-increasing ties, this is an area of

vital importance to the United States. Our inability to return to Mexico Mr.

Ruiz Massieu — a case the Mexican Presidency has told us is of the high-

est importance — would jeopardize our ability to work with Mexico on law

enforcement matters. It might also cast a potentially chilling effect on other

issues our two governments are addressing.

Furthermore, the case in question involves charges against the former

second ranking law enforcement authority in Mexico and a man connected

through his circle of family and friends to the center of power in Mexican

politics. Serious allegations against such a high former official are unprece-

dented in modern Mexico. The case against Mr. Ruiz Massieu and the arrest

and trial for related crimes of Mr. Raul Salinas, brother of the former

President, were the dramatic and unequivocal signs of the determination of

President Zedillo and his Attorney General to break the so-called “culture

of impunity” that long protected corrupt politicians, officials and other pow-

erful elite from being held accountable for their actions and crimes.

President Zedillo’s anti-corruption drive has resonated throughout Mexico

and continues to receive strong support from the Mexican people.

The U.S. Government has consistently urged Mexico to take the steps

towards reform in its justice system that President Zedillo is so forcefully

pursuing. The ability to prosecute Mr. Ruiz Massieu and other powerful

individuals in Mexico for the crimes of which they are accused is key to the

success of Zedillo’s pledge to transform totally the judicial and law enforce-

ment system and to rid Mexico of corruption and abuse of power. Should

the U.S. Government not return Mr. Ruiz Massieu to Mexico, our support

of such reforms would be seen as hollow and self-serving and would be a

major setback for President Zedillo and our combined efforts to chart a new

and effective course of U.S.-Mexican relations.

Our efforts to remove Mr. Ruiz Massieu from the United States should

be directed at achieving his direct return to Mexico. When apprehended in

New Jersey, Mr. Ruiz Massieu was attempting to depart the United States

just days after being called for questioning in Mexico with regard to the

crimes with which he was subsequently charged. If our efforts to remove

him from the United States result in his ability to depart to a destination

other than Mexico, the U.S. Government will almost certainly be viewed by

Mexican officials and the Mexican public as not only permitting, but also

aiding his successful escape from justice.

Accordingly, I have concluded that Mr. Ruiz Massieu’s presence in the

United States would have potentially serious adverse foreign policy conse-

quences for the United States, as provided for in INA section 241(a)(4)(C).

I request that you take all reasonable efforts to ensure Mr. Ruiz Massieu’s

expeditious deportation from the United States. Further, in light of the

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Mexican Government’s interest in having Mr. Ruiz Massieu returned to

Mexico, I also request that you do everything possible, consistent with the

Immigration and Nationality Act, to effect his deportation to Mexico.

Sincerely,

/s/ Warren Christopher

Warren Christopher

DISSENTING OPINION: Lory D. Rosenberg, Board Member, in which

Paul W. Schmidt, Chairman, joined

I respectfully dissent.

“The facts of this case read more like a best-selling novel than a typi-

cal deportation proceeding,” stated the District Court for the District of New

Jersey, in Massieu v. Reno, 915 F. Supp. 681, 686 (D.N.J.), rev’d and

remanded, 91 F.3d 416 (3d Cir. 1996).1 I agree.

The respondent, a prominent international figure, has been detained by

the Immigration and Naturalization Service for nearly 4 years, and his situ-

ation raises constitutional questions that have engendered significant fed-

eral court litigation to date. Although the federal court decisions that have

been issued in relation to his predicament are not dispositive of the princi-

pal issue before us on appeal, they do inform that issue, and the factual mat-

ters they describe have some bearing on our ultimate disposition of his

appeal. Consequently, I find that the factual evaluation by the district court

1

See Massieu v. Reno, 91 F.3d 416 (3d Cir. 1996) (quoting Massieu v. Reno, 915 F.

Supp. 681 (D.N.J. 1996)).

On February 28, 1996, the district court issued an order declaring §

241(a)(4)(C)(i) unconstitutional on three separate grounds. First, the court held

that the provision is void for vagueness because it does not provide adequate

notice to aliens of the standards with which they must conform and does not fur-

nish adequate guidelines for law enforcement. Second, the court held that §

241(a)(4)(C)(i) violates procedural due process; the court reasoned that the pro-

vision deprives an alien of a meaningful opportunity to be heard since the

Secretary of State’s determination that he falls within the statutory standard is

allegedly unreviewable. Finally, the court held that § 241(a)(4)(C)(i) represents

an unconstitutional delegation of legislative power because it lacks “sufficiently

intelligible standards to direct the Secretary’s exercise of discretion and to enable

the court to review the exercise thereof.”

Id. at 418 (footnote omitted).

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of the complex circumstances resulting in the respondent’s case coming

before us is pertinent to our consideration of his appeal. In addition, I rec-

ognize that the United States Court of Appeals for the Third Circuit did not

reach the merits of the constitutional questions decided by the district court,

but held that “the district lacked jurisdiction to entertain plaintiff’s claims .

. . [because] [u]nder § 106 of the INA, 8 U.S.C. § 1105a, if plaintiff wished

to challenge the efforts to deport him, he was required to exhaust available

administrative remedies and then petition for review in this court.” Massieu

v. Reno, 91 F.3d at 417. However, I note that the Third Circuit anticipated

that “[t]here are certainly issues to which the immigration judge and the

Board of Immigration Appeals will be able to apply their expertise, and the

resolution of a number of those issues could well resolve this matter with-

out the need for any involvement by the federal courts.” Id. at 426.

The district court found:

Mr. Ruiz Massieu entered this country legally and is not alleged to have committed any

act within this country which requires his deportation. Nor, on the state of this record,

can it be said that there exists probable cause to believe that Mr. Ruiz Massieu has

committed any act outside of this country which warrants his extradition, for the gov-

ernment has failed in four separate proceedings before two Magistrate Judges to estab-

lish probable cause.

Massieu v. Reno, 915 F. Supp. at 686. As the district court explained,

The issue before the court is not whether plaintiff has the right to remain in this country

beyond the period for which he was lawfully admitted; indeed, as a “non-immigrant vis-

itor” he had only a limited right to remain here but the right to then go on his way to

wherever he wished to go. The issue, rather, is whether an alien who is in this country

legally can, merely because he is here, have his liberty restrained and be forcibly

removed to a specific country in the unfettered discretion of the Secretary of State and

without any meaningful opportunity to be heard. The answer is a ringing “no”.

Id. (emphasis added).

Critical to our determination on appeal is whether the Service is

relieved of its burden of proving deportability by evidence that is clear,

unequivocal, and convincing. The majority adopts the position advocated

by the Service that the role of the Immigration Judge and, indeed, this

Board, in cases involving deportation charges brought under section

241(a)(4)(C)(i) of the Immigration and Nationality Act, 8 U.S.C. §

1251(a)(4)(C)(i) (1994), is merely “ministerial.” Matter of Ruiz-Massieu,

22 I&N Dec. 3400 (BIA 1999). The majority insists that the letter of the

Secretary of State alone is conclusive and dispositive on the issue of

deportability, and that the Immigration Judge erred in requiring the Service

to provide something more than the Secretary’s letter to satisfy its burden

of proving, according to the language of the statute, that “the Secretary of

State has reasonable ground to believe [that the respondent’s presence]

would have potentially serious adverse policy consequences.” Id. at 4. I

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disagree.

Instead, I agree with the approach followed by the Immigration Judge.

She ruled that the plain language of section 241(a)(4)(C)(i) requires that the

Service prove (1) the Secretary’s belief; (2) the Secretary’s concern regard-

ing the respondent’s presence in this country; and (3) the “reasonable

ground to believe” that the respondent’s presence would have serious

adverse foreign policy consequences. Therefore, I would affirm the decision

of the Immigration Judge, and consequently, I dissent.

I. ISSUE

This case presents the broad question of the allocation of authority

between the Secretary of State and the Attorney General relevant to deter-

mining the ground of deportability codified at section 241(a)(4)(C)(i) of the

Act. In practice, the case raises the specific issue of whether the Service

shall be relieved of the burden it ordinarily bears in cases of deportability

where the Secretary of State indicates that a respondent’s presence or activ-

ities in the United States “would have potentially serious adverse foreign

policy consequences.” Section 241(a)(4)(C)(i) of the Act.

II. FACTUAL BACKGROUND

According to the district court, whose findings are not contradicted by

the record before us, the respondent is a citizen of Mexico and a member of

one of Mexico’s most influential and politically active families. Over the

past 20 years, the respondent lived an academic life, both as a professor and

director of the National University of Mexico. In addition, in recent years,

he has been appointed by the Institutional Revolutionary Party (“PRI”),

Mexico’s only established ruling party, to several positions at the upper-

most echelons of the Mexican Government, including Deputy Attorney

General in 1993, Under Secretary for the Department of Government in

1994, and Deputy Attorney General, again, in May 1994. Massieu v. Reno,

915 F. Supp. at 687.

On September 28, 1994, within 6 months of the assassination of Luis

Donaldo Colosio, the then PRI presidential candidate, the respondent’s

brother, Jose Francisco Ruiz-Massieu—Secretary General of the PRI and

an outspoken critic of the Mexican political system —was assassinated.

Within hours, the respondent, who then held the position of Deputy

Attorney General, began an investigation into his brother’s murder. As the

district court tells it, “In the ensuing weeks, fourteen people were appre-

hended and indicted as part of a conspiracy uncovered through Mr. Ruiz

Massieu’s investigatory efforts. Many . . . named Manuel Munoz Rocha, a

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PRI official, as the architect of the conspiracy.” Id. When the respondent

requested that President Carlos Salinas de Gortari waive the immunity that

shielded Rocha from prosecution, his request was vigorously opposed by

the PRI. By the time the immunity was waived, Mr. Munoz Rocha had dis-

appeared and was never interviewed, apprehended, or arrested.

In a “dramatic and widely publicized speech” on November 23, 1994,

the respondent announced that he was resigning from both his office and his

party because of efforts by very high ranking members of the PRI—includ-

ing those who might have ordered former Deputy Munoz Rocha, to act—to

frustrate his investigation into his brother’s murder. Id. In February 1995,

after the respondent published a book entitled Yo Accuso: Denuncia De Un

Crimen Politico (“I Accuse: Denunciation of a Political Crime”), which

elaborated on his resignation address, Mexican authorities alleged that the

respondent committed the crimes of intimidation, concealment, and

“against the administration of justice” (a crime analogous to obstruction of

justice in this country) in connection with the investigation of his brother’s

assassination. The district court noted that “[c]ontemporaneously, Mr. Ruiz

Massieu claimed that he and his family began to receive both death and kid-

napping threats. On March 2, 1995, he appeared for an official interrogation

before Mexican authorities concerning the allegations of his criminal activ-

ity committed while in office.” Massieu v. Reno, 915 F. Supp. at 687.

I recount the factors underlying the respondent’s entry to, and attempt-

ed departure from, this country, not merely because they make a compelling

story of mystery and suspense, but because they are relevant to our resolu-

tion of the appeal before us. The respondent left Mexico with his family the

same day he was interrogated and threatened by the government that he

believed to be covering up the assassination of his brother at the hands of

one of its officials. According to the findings of the district court, on March

2, 1995, he and his family lawfully entered the United States as nonimmi-

grant visitors at Houston, Texas, where they have owned a home since

October 1994. After remaining at their Houston home for a night, the fam-

ily boarded a plane en route to Spain. When the plane touched down at

Newark Airport on March 3, 1995, the respondent was arrested by United

States Customs officials, pursuant to 31 U.S.C. § 5316 (1994), on a charge

of reporting only approximately $18,000 of the $44,322 in his possession.

This charge was never pursued and was subsequently dismissed at the

Government’s request. However, 2 days after his arrest in Newark, a

Mexican court issued an arrest warrant for the respondent, charging him

with intimidation, concealment, and “against the administration of justice.”

The following day, at Mexico’s request, the United States presented a com-

plaint for the respondent’s provisional arrest and sought his extradition to

face the charges set forth in the Mexican arrest warrant. On June 9, 1995, a

Mexican court consolidated the allegations into a single charge of “against

the administration of justice.” Id.

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Subsequently, four extradition hearings were conducted, none of which

was successful. At the first extradition hearing in this case, the magistrate

“also found that many of the statements submitted by the government were

‘incredible and unreliable’ [ ] and might have been altered to remove cer-

tain recantations and exculpatory statements.” Id. at 688. Significant for our

resolution of this case, “he found, and the government did not deny, that

multiple statements were procured by torture inflicted by the Mexican

authorities, including the inculpatory testimony of one of the government’s

primary affiants.” Id.

As the district court recounts, “The government had lost its case, but

not its will.” Id. In a subsequent extradition proceeding, the Government

sought and lost its request for extradition based on Mexico’s newly filed

charges of embezzlement. The court found that “the government had failed

to demonstrate probable cause, or present any evidence whatsoever, that the

funds had been illegally obtained or disbursed.” Id. “Undeterred, on August

31, 1995, the government refiled its initial request for extradition based on

the charge of ‘against the administration of justice,’” which was rejected on

the basis that despite nine new statements allegedly incriminating the

respondent, there was no probable cause to believe that he had committed

the acts alleged. Id.

A fourth extradition proceeding, premised on the Government’s prior

application relating to the previously rejected embezzlement charges, was

heard and dismissed by a different district court judge. According to the dis-

trict court, at this hearing, “[T]he government produced evidence which

‘clearly establishe[d]’ that 800,000 of the alleged 2.5 million pesos embez-

zled were not, in fact, proceeds of the alleged embezzlement.” Id.

“Thereafter, the United States Attorney’s Office for the District of New

Jersey withdrew from further representation of the Mexican government. . .

. [However,] the United States Department of Justice stepped in and con-

tinued to press for . . . extradition on the embezzlement charges . . . [which

was denied because] Magistrate Judge Chesler stated that ‘the bottom line

is that the government’s efforts to establish an inference of criminality on

the basis of unexplained wealth fails because it does not rise to the level

where any nexus between those funds and the funds which Mr. Massieu is

alleged to have embezzled has been established.’” Id. Indeed, “[o]n January

11, 1996, a Mexican court dismissed the embezzlement charges.” Id.

As the district court found, “It was then, however, that this case took a

turn toward the truly Kafkaesque.” Id. at 689. On December 22, 1995,

immediately after Magistrate Judge Chesler issued his opinion, the respon-

dent was taken into custody by the Service pursuant to a previously

unserved and unannounced detainer dated September 29, 1995. In addition,

he was served with an Order to Show Cause and Notice of Hearing (Form

I-221) by the Service. The notice advised the respondent that he was

ordered to show cause as to why he should not be deported because

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[t]he Secretary of State has made a determination that, pursuant to Section 241(a)(4)(C)

of the Immigration and Nationality [sic] Act, 8 U.S.C. § 1251(a)(4)(C), there is reason-

able ground to believe your presence or activities in the United States would have poten-

tially serious adverse foreign policy consequences for the United States.

Id. Following the events recounted above, the Service

produced an October 2, 1995 letter addressed to Attorney General Janet Reno from

Secretary of State Warren Christopher . . . . The letter urged the Attorney General to

effect Mr. Ruiz Massieu’s “expeditious deportation” “to Mexico” based on the

Secretary’s conclusion that Mr. Ruiz Massieu’s presence in the United States will have

potentially serious adverse foreign policy consequences for the United States. . . . The

letter referenced the “serious allegations” that are pending in Mexico against Mr. Ruiz

Massieu and the recent strides that both governments have taken in “our ability to

cooperate and confront criminality on both sides of the border.” . . . At bottom, the

Secretary’s request was premised on the proposition that “[o]ur inability to return to

Mexico Mr. Ruiz Massieu—a case the Mexican Presidency has told us is of the high-

est importance—would jeopardize our ability to work with Mexico on law enforce-

ment matters. It might also cast a potentially chilling effect on other issues our two

governments are addressing.”

Id.

I reproduce these excerpts from the district court opinion not because

they are binding on the Attorney General, and not because either the

grounds or standards applicable to extradition are the same as those appli-

cable to determinations of deportability, over which we have authority, but

because they bear on two issues relevant to our determination of deporta-

bility. First, they are relevant to a determination whether the Service has met

its burden of proving deportability under Woodby v. INS, 385 U.S. 276

(1966), and 8 C.F.R. § 242.14(a) (1997). Second, even assuming that the

Service’s position is correct and that the Immigration Judge and we are

nothing more than highly paid clerks assigned to rubber-stamp a determi-

nation of the Secretary of State, the tale recounted above is relevant to our

decision on whether the United States must afford the respondent an oppor-

tunity to seek protection under the Convention against Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment, adopted and

opened for signature Dec. 10, 1984, G.A. Res. 39/46, annex, 39 U.N.

GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984) (entered into force

June 26, 1987; for the United States Apr. 18, 1988) (“Convention against

Torture”), rather than deporting him to Mexico.

III. DEPORTABILITY UNDER SECTION 241(a)(4)(C) OF THE ACT

The decision of the Immigration Judge properly refutes many of the

assertions advanced by the majority, and I need not reiterate that decision in

its entirety. However, it is important to state clearly that evidence of forced

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presence or an inability to depart, such as exists in the respondent’s case,

warrants our invoking deportation proceedings only after the alien is given

an opportunity to depart. See Matter of Baldalmenti, 19 I&N Dec. 623 (BIA

1988). Although the majority attempts to distinguish the applicable prece-

dent cited by the Immigration Judge, certainly, citing a case does not sug-

gest that each and every aspect of the case cited is comparable to the case

in which the citation is invoked. See Matter of Yam, 16 I&N Dec. 535 (BIA

1978) (involving a respondent who was about to depart when arrested). It

does suggest, however, that the principle for which the cited case is invoked

has some bearing on the instant case.

Here, there is no question but that the respondent entered. Nevertheless,

his presence here is compulsory, not voluntary. He has been seeking to

depart the United States for over 4 years, since the initial 24-hour time peri-

od in which he fled Mexico and first entered the United States lawfully on a

temporary visa. He has been held in custody at the behest of the United

States Government despite his desire to leave the country. I find it disingen-

uous to contend that his presence causes the United States foreign policy

concerns when the United States is compelling his presence. I also note that

the letter of the Secretary of State is dated, and relates back to, 1995, 4 years

ago. I note further that the Secretary of State’s letter preceded the denial of

four extradition proceedings in which the Government sought to return the

respondent to Mexico. To the extent that his presence causes any reasonable

concern today, it is the United States Government, and not any effort or

desire of the respondent, that is perpetuating the basis for such concerns.

A. Statutory Language and Congressional Intent

The ambiguities contained in section 241(a)(4)(C) of the Act cannot be

disputed. The Immigration Judge and the respondent took one position

regarding its interpretation and application. The Service took another posi-

tion, which the majority has adopted as its own. I disagree and am filing this

dissenting opinion. Certainly, the statutory language is not clear, and it does

not resolve the question before us regarding the effect of the letter submit-

ted by the Secretary of State, in relation either to the respondent’s due

process rights or to the statutory and regulatory requirements that govern

deportation hearings.

There is a paucity of legislative history on section 241(a)(4)(C) of the

Act. The Congressional Record suggests that the provision was added after

both versions of the legislation had been approved by the United States

Senate and House of Representatives. The Congressional Record reflects

that the parameters of the 1990 amendment resulting in section

241(a)(4)(C) were neither fully debated nor clearly understood in practical

terms:

Mrs. Kassebaum. Mr. President, I rise today to express concern about a provision in

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the 1990 immigration legislation, giving the Secretary of State expanded authority to

prohibit aliens from entering the United States. . . . I am also concerned about the pro-

cedure used to adopt this proposal. This expansion of the Secretary’s discretion was

not part of either the Senate or House versions of this legislation. It was not debated

or discussed by either body or by the committees of jurisdiction.

136 Cong. Rec. 17,106, 17,114 (1990).2

Where there is doubt as to Congress’ intent, deportation statutes must

be construed in favor of the alien. INS v. Errico, 385 U.S. 214, 225 (1966);

Lennon v. INS, 527 F.2d 187 (2d Cir. 1975). “Even if there were some doubt

as to the correct construction of the statute, the doubt should be resolved in

favor of the alien. . . . [E]ven where a punitive section is being construed:

‘We resolve the doubts in favor of that construction because deportation is

a drastic measure and at times the equivalent of banishment or exile.’” INS

v. Errico, supra, at 225 (quoting Fong Haw Tan v. Phelan, 333 U.S. 6, 10

(1948)). In addition, when discretionary enforcement implicates a liberty

interest, courts will hesitate to “impute to Congress . . . [an intention] to give

[the Secretary of State] unbridled discretion.” Kent v. Dulles, 357 U.S. 116,

128 (1958) (finding that the Secretary of State was not authorized to deny

passports to United States citizens).

In Greene v. McElroy, 360 U.S. 474, 504 (1959), the Supreme Court

refused to infer that Congress or the President intended to authorize the

Department of Defense to create a clearance program, which would have

denied procedural due process to employees by permitting the Defense

Department the discretion to deny or revoke security clearances without

revealing the derogatory information to the employee. Without clear dele-

gation by Congress, the Court declined to assume that Congress intended to

deny due process procedures by implication. Id. Similarly, in the immigra-

tion context, the courts have made it clear that, although Congress has broad

power to legislate, it cannot authorize the denial of due process. See, e.g.,

Rafeedie v. INS, 880 F.2d 506, 523 (D.C. Cir. 1989).

In Doe v. Casey, 796 F.2d 1508 (D.C. Cir. 1986) aff’d in part, rev’d in

part sub nom. Webster v. Doe, 486 U.S. 592 (1988), the D.C. Circuit con-

sidered whether a statute that authorized the Central Intelligence Agency

(“CIA”) to terminate employment precluded judicial review, by providing

that “the Director of Central Intelligence may, in his discretion, terminate

the employment of any officer or employee of the Agency whenever he

shall deem such termination necessary or advisable in the interests of the

United States.” Id. at 1513 (citing section 102(c) of the National Security

2

Senator Kassebaum was referring specifically to the provision of the Act which allows

the Secretary of State to exclude aliens if the “alien’s admission would compromise a com-

pelling United States foreign policy interest.” 136 Cong. Rec. at 17,114.

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Act, 50 U.S.C. § 403(c) (1980)). The court held that this statute clearly did

not preclude judicial review because it provided a standard for review; that

is, the termination must be “necessary and advisable in the interests of the

United States.” Id. at 1512-13.

The D.C. Circuit also rebuffed the CIA’s argument that the sensitive

nature of its work precludes judicial review. The court stated that it must

abide by what Congress intended, not by what the agency finds preferable.

If Congress had intended to preclude review, it would have done so express-

ly. Id. at 1516. The court stated:

Congress could have explicitly precluded judicial review; it did not do so. Or,

Congress could have written section 102(c) narrowly to state that “the director may, in

his sole discretion, terminate the employment of any officer or employee of the

Agency” (omitting any reference to “necessary or advisable in the interests of the

United States”); it did not so limit the language of the statute.

Id.

In enacting section 241(a)(4)(C) of the Act, Congress stated that, in

order for an alien to be found deportable, the Secretary of State must have

a reasonable ground to believe that the alien’s presence or activities could

have potentially serious adverse foreign policy consequences. There is no

indication that Congress intended to give unbridled discretion to the

Secretary of State to determine—without any hearing or review—that an

alien is deportable. Rather, the language of the statute provides limitations

on the Secretary’s discretion and provides a meaningful framework in

which to conduct a hearing on deportability.

B. Due Process and Burden of Proof

The Supreme Court has held that due process guarantees cannot be

abandoned lightly, stating that “[t]he requirement of ‘due process’ is not a

fair-weather or timid assurance. It must be respected in periods of calm and

in times of trouble; it protects aliens as well as citizens.” Joint Anti-Fascist

Refugee Comm. v. McGrath, 341 U.S. 123, 162 (1951). In Greene v.

McElroy, supra, the Court upheld this principle in practice, stating:

One of these [immutable principles] is that where governmental action seriously

injures an individual, and the reasonableness of the action depends on fact findings,

the evidence used to prove the Government’s case must be disclosed to the individual

so that he has the opportunity to show that it is untrue.

Id. at 496 (emphasis added).

This constitutional protection not only attaches to criminal trials but to

“all types of cases where administrative and regulatory actions were under

scrutiny.” Id. at 497. Although evidentiary rules are relaxed in deportation

proceedings, the requirement of fundamental fairness is extended to an

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alien in deportation proceedings, who is protected by due process under the

Constitution. Id.; see also 8 C.F.R. § 242.14 (1997). In Greene v. McElroy,

supra, rejecting the Navy’s revocation of a security clearance, the Court

held that executive agencies, although given responsibility to establish their

own system for controlling the dissemination of classified information,

could not fashion security programs whereby persons were deprived of their

civilian employment without the opportunity to effectively challenge the

adverse evidence and testimony against them. Id. at 497-80 (requiring an

opportunity for the affected individual to confront and question persons

whose statements reflected adversely on him, or to confront the government

investigators who took such statements).3

Unproven allegations are not sufficient to find an alien deportable. The

Government must always prove the basis for deportation by introducing

evidence of the allegations into the record. See, e.g., Matter of M-, 5 I&N

Dec. 484 (BIA 1953) (requiring testimony and cross-examination to estab-

lish an alien’s deportability under the Act of 1918 as a “member of the

Communist Party of the United States after entry”).

In fact, the statute’s language gives far less authority to the Secretary of

State than did the statute in Doe v. Casey, supra, vis-a-vis the Director of

the CIA. A failure to require the Government to prove that there is a rea-

sonable ground to conclude that the respondent’s presence or activities in

this country would have potentially serious adverse foreign policy conse-

quences ignores and eviscerates clear language in the deportation statute,

and deprives the respondent of his due process rights to a meaningful hear-

ing. There is no question that, under the statute, the Immigration Judge—

not the Secretary of State—must make the determination of deportability.

As the Supreme Court stated in Bridges v. Wixon, supra:

It is the action of the deciding body, not the recommendation of the inspector, which

determines whether the alien will be deported. The rules afford protection at that crucial

stage of the proceedings or not at all. The person to whom the power to deport has been

entrusted is he Attorney General or such agency as he designates . . . . He is the origi-

nal trier of fact. It is his decision to deport an alien that Congress has made “final.”

Id. at 152 (emphasis added).

Thus, in the instant case, although the Secretary of State conveys his

opinion to this tribunal in the form of a 1995 letter stating his beliefs, the

Immigration Judge below, and the Board on review, must determine based

3

The Supreme Court long ago held that unsworn hearsay statements cannot be used to

prove deportability and remove an individual, as “[m]eticulous care must be exercised lest the

procedure by which he is deprived of that liberty not meet the essential standards of fairness.”

Bridges v. Wixon, 326 U.S. 135, 152, 154 (1945) (holding that an alien was denied due

process where the Service used unsworn statements to prove the alien’s membership in the

Communist Party)

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on clear, unequivocal, and convincing evidence that the assertions of the

Secretary of State—both as to the alleged presence of the respondent and as

to the alleged potentially serious adverse foreign policy consequences that

flow from his presence—are reasonably grounded. Just as the D.C. Circuit

reasoned in Doe v. Casey, supra, if Congress had intended to give unbridled

discretion to the Secretary of State under section 241(a)(4)(C) of the Act, it

would have worded the statute differently.

This suggests that the Service must bear its ordinary burden of proving

deportability under the applicable standard. The letter of the Secretary of

State is what it is. It may or may not be adequate to sustain a finding of

deportability. The Service is not relieved of its obligation to make out a case

establishing that the respondent is deportable as charged.

In fact, when Congress has intended to give wider discretion to the

executive branch in implementing provisions within the Act, it has done so

specifically in the wording of the statute. Cf. section 243(a) of the Act, 8

U.S.C. § 1253(a) (1994). Moreover, Congress clearly was able to authorize

the issuance of deportation orders without a hearing before the Immigration

Judge, and without review by the Board. See section 238 of the Act, 8

U.S.C. § 1228 (Supp. II 1996). There is no reason to presume that in the

case of deportability charged under section 241(a)(4)(C), Congress was not

able to separately categorize determinations of deportability, if it wished to

make the Service immune to its ordinary burden of proof. However, it did

not do so. Instead, in the very same enactments that contained the amend-

ment and recodification of section 241(a)(4)(C), but retained the provision

as a matter subject to a hearing before an Immigration Judge, Congress iso-

lated specific circumstances—such as those involving lawful residents con-

victed of an aggravated felony and those involving aliens previously

removed —and precluded both a hearing before an Immigration Judge and

review before the Board in those cases. See sections 236(c), 238 of the Act.

Congress did not separate out from normal deportation hearing standards

or procedures those cases in which the Secretary of State had submitted a

statement of reasonable grounds to believe that the respondent’s presence

constituted a basis for potentially serious adverse foreign policy conse-

quences. Limiting deportation or removal hearings, as the majority suggests,

abrogates all of the statutory and regulatory rights that have been extended to

affected aliens by Congress. The action taken by the majority today unrea-

sonably relieves the Service of its obligation to satisfy the burden of proving

an alien deportable and compromises the rights of the affected aliens.

C. Section 241(a)(4)(C)(ii) Exception

Finally, although the majority contends that the respondent did not seek

to establish an exception to the provision under the statute, the Third Circuit

found to the contrary, stating:

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Also, plaintiff argued in the district court that he came within the statutory exception

contained in § 241(a)(4)(C)(ii). Under that exception, an alien who shows that he is

being deported because of past statements that would be lawful within the United

States shall not be deportable unless the Secretary of State personally determines that

non-deportation would compromise a compelling United States foreign policy interest.

See § 241(a)(4)(C)(ii), 8 U.S.C. § 1251(a)(4)(C)(ii) (incorporating 8 U.S.C. §

1182(a)(3)(C)(ii) & (iii)). Plaintiff’s statutory exception argument is not frivolous, and

we have no way of knowing whether the Secretary would have made the necessary

statutory finding. These issues could and should have been litigated before the immi-

gration judge and the Board of Immigration Appeals.

Massieu v. Reno, 91 F.3d at 426. Significantly, the Third Circuit noted, “In

light of the above, we cannot agree with the district court’s statement that

‘[n]ot one of the purposes underlying the doctrine would be served by

requiring exhaustion.’ 915 F. Supp. at 697.” Id. Thus, in finding that the

respondent had not exhausted his administrative remedies, the Third Circuit

appears to anticipate that the Immigration Judge and the Board would play

a role that is more than ministerial. Id. (stating that “[t]here are certainly

issues to which the immigration judge and the Board of Immigration

Appeals will be able to apply their expertise, and the resolution of a num-

ber of those issues could well resolve this matter without the need for any

involvement by the federal courts”).

IV. ASYLUM AND CONVENTION AGAINST TORTURE

In its opinion reversing the finding of the district court that the provi-

sion invoked against the respondent is unconstitutional, the Third Circuit

noted the following:

Plaintiff has at numerous times in this proceeding indicated an intention to seek asylum

in this country. . . . While the asylum claim is within the discretion of the Attorney

General, withholding of deportation shall be granted if the alien satisfies the relevant

standards. 8 U.S.C. § 1253(h)(1). Moreover, despite plaintiff’s claim that the Attorney

General has predetermined the asylum issue, we have no way of determining whether

the Attorney General will change her mind regarding plaintiff’s deportation after plain-

tiff presents the evidence supporting his asylum and withholding-of-deportation claims.

Massieu v. Reno, 91 F.3d at 425-26 (citations omitted).

The respondent’s circumstances present a situation in which a close

family member was assassinated for political reasons. The respondent him-

self was driven out of his country as a result of explicitly political pressures

and threats made against him and his family, because of the respondent’s

opinions and actions contrary to the government position. Even if the

respondent was ineligible or opted not to apply for asylum and withholding

of deportation, he would be a candidate for protection under the Convention

against Torture.

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V. CONCLUSION

I cannot join an opinion that places the respondent in an impossible sit-

uation. Having entered the United States in flight from life-threatening con-

ditions, and almost immediately seeking to leave, the respondent was appre-

hended and placed in custody. After such actions on the part of our govern-

ment, the Service, supported by a 4-year-old letter from the Secretary of

State, contends that the respondent is deportable because his presence—

which we have compelled—constitutes a potentially serious adverse foreign

policy consequence. Yet the basis for this supposed potentially serious for-

eign policy consequence has been rejected four times by two federal judges

in the context of extradition proceedings. The factual allegations contained

in the letter of the Secretary of State provide no information that has not

been thoroughly questioned and rejected by judges of our federal courts,

albeit for a slightly different purpose, extradition.

I find it pure obstinacy to insist that the Secretary of State’s letter is dis-

positive, when Congress did not designate this ground of deportability as

subject only to nonadversary or other limited proceedings, as it so readily

did in other cases. There is no statutory indication that the Service was to

be relieved of proving deportability in this case. It should be held to that

burden, just as it is, or should be, in any other deportation case.

862