LEON-OROSCO AND RODRIGUEZ-COLAS

Interim Decision #2974

MATTER OF LEON OROSCO AND RODRIGUEZ COLAS

- -

In Exclusion Proceedings

A-23215742

A-24790678

• Decided by Board November 30, 1983

Decided by Attorney General July 27, 1984

(1) A motion to reopen exclusion proceedings for the purpose of applying for asylum

and withholding of deportation will not be granted where a prima facie case of

eligibility for such relief has not been established, the alien has not reasonably

explained his failure to assert his asylum claim prior to completion of his exclu-

sion hearing, or the immigration judge is not satisfied that the evidence sought to

be offered is material, was not available, and could not have been discovered or

presented at the time of the original hearing.

(2) Notwithstanding a clear showing of prima facie eligibility for the underlying

relief sought, a motion to reopen proceedings can be denied for discretionary rea-

sons where, for example, the record reflects little likelihood of success on the

merits if reopening is permitted.

(3) Notwithstanding the submission of extensive documentation in support of the

motion to reopen proceedings and assuming arguendo, that as a Mariel partici-

pant, the applicant is a member of a "particular social group," he has not made a

prima facie showing that his life or freedom would be threatened or that he will

be persecuted or has a well-founded fear of persecution if returned to Cuba based

on that membership.

(4) The refusal of a country to accept the return of its nationals does not, by itself,

provide the basis for an asylum claim

(5) Recognizing that a failure to address the effect of a stipulation between the par-

ties is not a rejection of it, the Attorney General found nothing in the Board of

Immigration Appeals' statement which precluded the parties from abiding by the

stipulation and permitting it to govern their conduct; inasmuch as the stipulation

dealt with the subsequent effect of test cases on other parties not presently before

the Board, the Attorney General determined that it was not necessary for the

Board to discuss the stipulation's effect and not inappropriate to defer doing so

until it was faced with a case in which the terms of the stipulation were material

to the resolution of a controversy.

(6) The Attorney General found no error in the Board's refusal to provide an exege-

sis on the phrase "membership in a particular social group," where reaching that

issue was not necessary in resolving the case and would have, under the circum-

stances, represented an advisory opinion on an issue that, while important, did

not need to be resolved by the Board.

136

Interim Decision #2974

EXCLUDABLE: Act of 1952—Sec. 212(aX9) [8 U.S.C. § 1182(aX9))—Crime involving

moral turpitude (both applicants)

Sec. 212(aX20) [8 U.S.C. § 1182(aX20))—No valid immi-

grant visa (both applicants)

ON BEHALF OF APPLICANTS: ON BEHALF OF SERVICE:

Deborah S. Ebel, Esquire Michael J. Heilman

1131 Capitol Avenue, S.W. Deputy General Counsel

Atlanta, Georgia 30315

(Leon-Orosco)

Dale Schwartz, Esquire Kendall Warren

Myron Kramer, Esquire Acting Appellate

Troutman, Sanders, Lockerman & Ashmore Trial Attorney

Chandler Building, Suite 1400

127 Peachtree Street, N.E.

Atlanta, Georgia 30305

(Rodriguez-Colas)

BEFORE THE BOARD

(November 30, 1983)

BY: Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members

MATTER OF LEON-OROSCO

The applicant appeals from the August 16, 1982, decision of the

immigration judge denying his motion to reopen exclusion proceed-

ings. Oral argument was heard before the Board on March 16,

1983. The appeal will be dismissed.'

The applicant is a 41-year-old native and citizen of Cuba. He was

part of the massive exodus from that country in the spring of 1980,

arriving at Key West, Florida, on May 31, 1980. At an exclusion

hearing conducted on December 4, 1980, an immigration judge

found the applicant excludable tinder section 212(a)(20) of the Im-

migration and Nationality Act, 8 U.S.C. § 1182(a)(20) (1982), denied

The applicant in the present case and the applicant in a companion case, Pas-

cual Rodriguez-Colas (A24 790 678), decided this date, are members of a designated

class of Martel Cubans. See Fernandez-Rogue v. Smith, 539 F. Supp. 925 (N.D. Ga.

1982). Counsel for the Immigration and Naturalization Service and the applicants

have stipulated that the Board's decisions in these cases shall be binding on all such

similarly situated Maxiel Cubans with respect to asylum clairoo based on member-

ship in a particular social group. The effect of this stipulation on the Board or immi-

gration judges need not be addressed in the matter now before us. Jurisdiction over

such motions to reopen, however, is clearly with the Board or the immigration

judges. 8 C.F.R. §§ 3.2, 24222 (1984).

en

Interim Decision #2974

his request for asylum, and ordered him excluded and deported. No

appeal was taken from this decision.

On June 15, 1982, the applicant filed a motion to reopen exclu-

sion proceedings for the purpose of applying for asylum 2 based on

his claim that as a participant in the 1980 Mariel Freedom Flotilla

he is a member of a "particular social group," with a well-founded

fear of being persecuted as a result of that membership if returned

to Cuba. The motion was supported by documentary evidence, in-

cluding affidavits, statements, and publications issued by United

States Government agencies and officials, and the deposition of

Jorge L Dominguez, a professor of government at Harvard Univer-

sity.

The applicant states in his motion that he has a well-founded

fear of being subject to persecution should he be returned to Cuba,

solely because he is a member of the 1980 Freedom Flotilla. His

claim is based on the Castro regime's attitudes and policies direct-

ed at the Mariel participants as a group. He explains that "once

the vast number of Cubans came forward and expressed their

desire to leave Cuba via Mariel, their status in the eyes of the

Cuban Government became identical." They were viewed as

"scum" and responsible for the failure of the Government's eco-

nomic and social programs. He further states that the treatment of

the Mariel participants, both those who departed Cuba and those

left behind, the pnniRlunent of those nationals who sought to volun-

tarily return, and the testimony of Professor Dominguez clearly es-

tablish the existence of a "particular social group," the applicant's

membership in that group, and a well-founded fear of persecution

based on that membership if returned to Cuba.

The immigration judge concluded that the applicant had not es-

tablished prima facie that the Mariel Cubans constituted a particu-

lar social group or his membership in such a group. On appeal, the

applicant submits that the immigration judge's denial of the

motion is contrary to the law and that he erroneously concluded

that the Freedom Flotilla was not a particular social group for

asylum purposes. He also submits that it was error to conclude

that the applicant would not suffer the same degree of persecution

experienced by the Cuban nationals who sought to voluntarily

return to Cuba.

2 An application for asylum under section 208(a) of the Act, 8 U.S.C. § 11C8(a)

(1982), shall also be considered as a request for withholding of exclusion or deporta-

tion pursuant to section 243(h) of the Act, 8 U.S.C. § 1253(h) (1982). 8 C.F.R.

§ 208.3(b) (1983).

138

Interim Decision *2974

A party seeking to reopen exclusion proceedings must state the

new facts which he intends to establish, supported. by affidavits or

other evidentiary material. 8 C.F.R. § 103.5 (1983). A motion to

reopen for the purpose of applying for asylum and withholding of

deportation will not be granted where a prima facie case of eligibil-

ity for such relief has not been established or the alien has not rea-

sonably explained his failure to assert his asylum claim prior to

the completion_ of his exclusion hearing. Nor will it be granted

unless the immigration judge is satisfied that the evidence sought

to be offered is material, was not available, and could not have

been discovered or presented at the time of the original hearing. 8

C.F.R. § 208.11 (1983); INS v. Wang 450 U.S. 139 (1981); Matter of

Martinez Romero, 18 I&N Dec. 75 (3IA. 1981). Even where a prima

facie showing of eligibility for the underlying relief is clearly dem-

onstrated, a motion to reopen can be denied for discretionary rea-

sons, where, fox example, the record reflects little likelihood of suc-

cess on the merits if reopening is permitted. Matter of Reyes, 18

I&N Dec. 249 (BIA 1982); Matter of Rodriguez-Vera, 17 I&N Dec.

105 (BIA 1979).

In order to demonstrate prima facie eligibility for asylum, the

applicant bears the burden of showing that he has a well -founded

fear of persecution if returned to his native land. See Haitian Refu-

gee Center v. Smith, 676 F.2d 1023 (5th Cir. 1982); .Fleurinor v. INS,

585 F.2d 129 (5th Cir. 1978). This language refers to more than the

alien's subjective state of mind. He must demonstrate a realistic

likelihood that he will be persecuted on account of his race, reli-

gion, nationality, membership in a particular social group, or politi-

cal opinion. For the reasons stated below, we are satisfied that re-

opening is not warranted and that the motion was properly denied.

Our conclusion as to the applicant's underlying asylum claim is the

same whether we apply a standard of "clear probability," "good

reason," or "realistic likelihood." See Rejaie v. INS, 691 F.2d 139

(3d Cir. 1982).

At the outs et, we would note that this appeal comes to the Board

under unusual circumstances, including a stipulation that the

Board's decision be binding on more than 2,000 possibly similarly

situated Mariel Cubans. The applicant's motion to reopen, support-

ed by a lengthy brief and 20 exhibits, contains more than 300

pages, including the 90-page deposition of Professor Dominguez.

The parties were granted extensive oral argument both before the

immigration judge and this Board on appeal. The record reflects

that every opportunity to fully brief and present the motion has

been given. Except for the possible live testimony of those wit-

nesses whose affidavits and depositions are contained in the record,

Interim Decision #2974

the applicant has not suggested that additional evidence will be

submitted should the proceedings be reopened. Nor is there any in-

dication that the testimony of those witnesses would differ from

their sworn statements presently a part of the record.

The record contains the affidavits of 13 Cuban nationals who par-

ticipated in the exodus from that country in the spring of 1980,

were paroled into the United States and released to the communi-

ty, and subsequently attempted to return to Cuba on their own.

The affiants neither sought nor obtained permission from the

Cuban authorities to return to Cuba. The affidavits reflect that

upon arriving in Cuba the affiants were arrested and held incom-

municado for 5 months, during which period they were interrogat-

ed daily and threatened with physical force. The affiants were ulti-

mately convicted of illegally entering the country. They were then

placed in the small boats they had used to travel to Cuba, towed 40

miles from Cuba in the direction of the United States, and set

adrift without food, water, or navigational equipment. They were

told. that they were traitors and enemies of the State and that if

they attempted to return to Cuba, they would be imprisoned or ex-

ecuted.

Included in the record are the State Department's 1980 and

19814 Country Reports on Human Rights Practices ("Country Re-

ports") for Cuba. Between April and September 1980, more than

125,000 Cubans arrived in the United States via an illegal sealift

originating from the port of Mariel. The reports indicate that while

awaiting permission to depart from Mariel many Cuban nationals

were harassed by mobs, subjected to inhumane treatment, and

forced to endure severe physical deprivation at the holding camps.

These abuses did not continue after authorities suspended the

Mariel sealift operation in September 1980. According to Professor

Dominguez, Cuban nationals who emigrate are required to termi-

nate their employment, turn in their ration cards, and allow their

homes to revert to the government before they can receive an exit

permit. The abrupt closure of Mariel in September stranded ap-

proximately 200,000 Cubans who had received exit permits but had

not yet departed, leaving many of them without jobs, places to live,

and dependent on family and friends for their support. The reports

also confirm that the Cuban Government has refused to permit the

3 1980 Country Reports on Human Rights Practices at 397-408, Joint Committee

of the Senate and House of Representatives, 97th Congress,. lst Session (1981).

4 1981 Country Reports on Human Rights Practices at 396-406, Joint Committee

of the Senate and House of Representatives, 97th Congress, 2nd Session (1982)..

140

Interim Decision #2974

reentry of Mariel Cubans who have changed their minds and

sought to return to Cuba.

Also submitted in support of the applicant's motion was the No-

vember 12, 1981, deposition of Professor Dominguez, an expert on

Latin American affairs with a special expertise in contemporary

Cuban political and military policies. He is a consultant for the

State Department regarding Cuba and other Latin American

projects and visited Cuba irk January 1979 and again in August

1980 as a guest of the Cuban_ Government. He testified that an in-

tensive crackdown by the Government against opponents of the

regime began in December 1979 and that the Mariel sealift took

place during this state of repression. He testified that those partici-

pating in the Freedom Flotilla provided a useful scapegoat for the

Government's economic and social failures during the 70's. He

stated that the Government's position was that those who sought to

depart via Mariel were "scum," not worthy of being considered

Cubans, and had been responsible for the failure of the Govern-

ment's programs for the last 10 years. It was his opinion that those

Cubans who departed via Mariel were deemed enemies of the state

and would not be allowed to return. He testified that by August

1980 the intense public verbal and physical abuse previously direct-

ed at the Mariel participants was diminishing.

Professor Dominguez further testified that if an agreement was

achieved with the Castro regime for the return of the Mariel par-

ticipants, in his opinion, those so returned would be classified "peli-

grosiclad" (state of dangerousness) and that although most would be

guaranteed work, it would not necessarily be consistent with a per-

son's skills or training but rather with what was needed by society.

In his view, it would take these so returned 4 to 5 years to be fully

integrated into Cuban society and cleansed of the "enemy" taint.

He further testified that those Mariel participants who had been

released from prison would have to complete, at a minimum, their

original sentences upon return to Cuba. Professor Dominguez also

stated that the severest penalties and charges of treason were di-

rected towards those nationals who sought to return without gov-

ernment authority rather than Mariel participants who might be

returned pursuant to an agreement.

Assuming arguendo, that as a Mariel participant, the applicant

is a member of a particular social group, we are not persuaded that

the applicant has shown prima facie that he will be persecuted if

returned to Cuba based on that membership. Notwithstanding the

State Department's Country Reports, the applicant has never

claimed, at his exclusion hearing, at his hearing on the motion, or

before us on appeal, that he was ever subjected to inhumane treat-

141

Interim Decision #2974

ment while living in Cuba or at the time of his departure from that

country. Moreover, the reports and testimony of Professor Domin-

guez indicate that such treatment abated by August to September

1980. We conclude that the refusal of a country to accept the

return of its nationals does not, by itself, provide the basis for an

asylum claim. There has been no showing that the applicant's

return to Cuba would result in treatment similar to that experi-

enced by the Cuban nationals who sought to enter Cuba's territory

without first obtaining its permission in compliance with that

country's immigration and customs laws. On the contrary, the tes-

timony of Professor Dominguez clearly suggests that Mariel partici-

pants who are returned pursuant to an agreement would not expe-

rience treatment similar to those nationals who attempted to ille-

gally reenter Cuba. His testimony further suggests that while

Mariel participants so returned would not be comfortable, it would

be primarily the result of the economic and social upheaval taking

place in Cuba, which affects the entire population, rather than a

specifically directed course of persecution.

Our review of the record satisfies us that the applicant has not

shown prima facie that his life or freedom would be threatened or

that he will be persecuted or has a well-founded fear of persecu-

tion. We agree with the applicant that it would be improper to

evaluate his motion to reopen based on the possible lawful return

of the Mariel participants in the future, and we have not done so.

Nor is it appropriate to base the motion, as the applicant has done,

on the treatment received by those Cuban nationals who illegally

returned to Cuba and on the assumption that any further return of

Mariel participants would be without the Cuban Government's con-

sent. Neither the lawful nor unlawful return of the Mariel partici-

pants is a present reality. The applicant's motion fails to demon-

strate prima facie a present realistic likelihood of persecution. The

decision of the immigration judge to deny the motion was proper.

Accordingly, the appeal will be dismissed.

ORDER: The appeal is dismissed.

MATTER OF RODRIGUEZ-COLAS

The applicant moves to reopen the exclusion proceedings for the

purpose of applying for asylum. Oral argument was heard before

the Board on March 16, 1983. The Service opposes the motion. The

motion will be denied.'

The applicant in the present case and the applicant in a companion case, Reyn-

aldo Leon-Orosco (A23 215 742), decided this date, are members of a designated class

Continued

142

Interim Decision *2974

The applicant is a 23-year-old native and citizen of Cuba. He was

part of the massive exodus from that country in the spring of 1980,

arriving at Key West, Florida, on May 27, 1980. In a decision dated

August 5, 1980, an immigration judge found the applicant excluda-

ble under sections 212(a)(9) and (20) of the Immigration and Nation-

ality Act, 8 U.S.C. §§ 1182(aX9) and (20) (1982), denied his request

for asylum, and ordered him excluded and deported. On April 9,

1981, this Board dismissed the applicant's appeal with regard to his

excludability under section 212(a)(20) and his request for asylum

but sustained the appeal as to his excludability under section

212(a)(9) of the Act.

On June 15, 1982, the applicant filed a motion to reopen exclu-

sion proceedings for the purpose of applying for asylum 2 based on

his claim that, as a participant in the 1980 Mariel Freedom Flotil-

la, he is a member of a "particular social group," with a well-

founded fear of being persecuted as a result of that membership if

returned to Cuba. The motion is supported. by documentary evi-

dence, including affidavits, statcmonts, and publications issued by

United States Government agencies and officials, and the deposi-

tion of Jorge I. Dominguez, a professor of government at Harvard

University.

The applicant states in his motion that he has a well-founded

fear of being subject to persecution should he be returned to Cuba,

solely because he is a member of the 1980 Freedom Flotilla. His

claim is based on the Castro regime's attitudes and policies direct-

ed at the Mariel participants as a group. He explains that "once

the vast number of Cubans came forward and expressed their

desire to leave Cuba via Mariel, their status in the eyes of the

Cuban Government became identical." They were viewed as

"scum" and responsible for the failure of the Government's eco-

nomic and social programs. He further states that the treatment of

the Mariel participants, both those who departed Cuba and those

left behind, the punishment of those nationals who sought to volun-

of Martel Cubans. See Fernandez Roque v. 9nuth, 559 F. Supp. 925 (N.D. Ga. 1982).

Counsel for the Service and the applicants have stipulated that the Board's deci-

sions in these cases shall be binding on all such similarly situated Mariel Cubans

with respect to asylum claim based on membership in a particular social group.

The effect of this stipulation on the Board or immigration judges need not be ad-

dressed in the matter now before us. Jurisdiction over such motions to reopen, how-

ever, is clearly with the Board or the immigration. judges. 8 C.F.R. § 3.2, 242.22

(19831

2 An application for asylum under section 208(a) of the Act, 8 U.S.C. §11b8(a)

(1982), shall also be considered as a request for withholding of exclusion or deporta-

tion pursuant to section 243(h) of the Act, 8 U.S.C. § 1253(h) (1982). 8 C.F.R.

§ 208.8(b) (1983).

143

Interim Decision # 2974

tarily return, and the testimony of Professor Dominguez clearly es-

tablish the existence of a "particular social group," the applicant's

membership in that group, and a well-founded fear of persecution

based on that membership if returned to Cuba.

A party seeking to reopen exclusion proceedings must state, the

new facts which he intends to establish, supported by affidavits or

other evidentiary material. 8 C.F.R. § 103.5 (1983). A motion to

reopen for the purpose of applying for asylum and withholding of

deportation will not be granted where a prima facie case of eligibil-

ity for such relief has not been established or the alien has not rea-

sonably explained his failure to assert his asylum claim prior to

the completion of his exclusion hearing. Nor will it be granted

unless the immigration judge is satisfied that the evidence sought

to be offered is material, was not available, and could not have

been discovered or presented at the time of the original hearing. 8

C.F.R. § 208.11 (1983); INS v. Wang, 450 U.S. 139 (1981); Matter of

Martinez-Romero, 18 I&N Dec. 75 (B1A 1981). Even where a prima

fade showing of eligibility for the underlying relief is clearly dem-

onstrated, a motion to reopen can be denied for discretionary rea-

sons, where, for example, the record reflects little likelihood of suc-

cess on the merits if reopening is permitted. Matter of Reyes, 18

I&NI Dec. 249 (MA 1982); Matter of Rodriguez-Vera, 17 I&N Dec.

105 (BIA 1979).

In order to demonstrate prima facie eligibility for asylum, the

applicant bears the burden of showing that he has a well-founded

fear of persecution if returned to his native land. See Haitian _Refu-

gee Center v. Smith, 676 F.2d 1023 (5th Cir. 1982); Fleurinor v. INS,

585 F.2d 129 (5th Cir. 1978). This language refers to' more than the

alien's subjective state of mind. He must demonstrate a realistic

likelihood that he will be persecuted on account of his race, reli-

gion, nationality, membership in a particular social group, or politi-

cal opinion. See section 101(a)(42) of the Act, 8 U.S.C. §1101(W(42)

(1982). For the reasons stated below, we are satisfied that reopen-

ing is not warranted and that the motion should be denied. Our

conclusion as to the applicant's underlying asylum claim is the

same whether we apply a standard of "clear probability," "good

reason," or "realistic likelihood." See Rejaie v. INS, 691 F.2d 139

(3d Cir. 1982).

At the outset, we would note that this motion comes to the Board

under unusual circumstances, including a stipulation that the

Board's decision be binding on more than 2,000 possibly similarly

situated Mariel Cubans. The applicant's motion to reopen, support-

ed by a lengthy brief and 20 exhibits, contains more than 300

pages, including the 90-page deposition of Professor Dominguez.

144

Interim Decision #2974

The parties were granted extensive oral argument both before the

immigration judge in the companion case, and this Board on

appeal. The record reflects that every opportunity to fully brief and

present the motion has been given. Except for the possible live tes-

timony of those witnesses whose affidavits and depositions are con-

tained in the record, the applicant has not suggested that addition..

al evidence will be submitted should the proceedings be reopened.

Nor is there any indication that the testimony of those witnesses

would differ from their sworn statements presently a part of the

record.

The record contains the affidavits of 13 Cuban nationals who par-

ticipated in the exodus from that country in the spring of 1980,

were paroled into the United States and released to the communi-

ty, and subsequently attempted to return to Cuba on their own.

The affiants neither sought nor obtained permission from the

Cuban authorities to return to Cuba. The affidavits reflect that

upon arriving in Cuba the affiants were arrested and held incom-

muniuddu for 5 months, during which period they were interrogat-

ed daily and threatened with physical force. The afflants were ulti-

mately convicted of illegally entering the country. They were then

placed in the small heats they had used to travel to Cuba, towed 40

miles from Cuba in the direction of the United States, and set

adrift without food, water, or navigational equipment. They were

told that they were traitors and enemies of the State and that if

they again attempted to return to Cuba they would be imprisoned

or executed.

Included in the record are the State Department's 1980 3 and

1981 4 Country Reports on Human Rights Practices ("Country Re-

ports") for Cuba. Between April and September 1980, more than

125,000 Cubans arrived in the United States via an illegal sealift

originating from the port of Meriel. The reports indicate that while

awaiting permission to depart from Mariel many Cuban nationals

were harassed by mobs, subjected to inhumane treatment, and

forced to endure severe physical deprivation at the holding camps.

These abuses did not continue after authorities suspended the

Mariel sealift operation in September 1980. According to Professor

Dominguez, Cuban nationals who emigrate are required to termi-

nate their employment, turn in their ration cards, and allow their

homes to revert to the government before they can receive an exit

z 1980 Country Reports on Human Rights Practices at 997-400, Joint Committee

of the Senate and House of Representatives, 97th Congress, 1st Session (1981).

4 1981 Country Reports on Human Rights Practices at 396-406, Joint Committee

of the Senate and House of Representatives, 97th Congress, 2nd Session (1982).

145

Interim Decision #2974

permit. The abrupt closure of Mariel in September stranded ap-

proximately 200,000 Cubans who had received exit permits but had

not yet departed, leaving many of them without jobs, places to live,

and dependent on family and friends for their support. The reports

confirm that the Cuban Government has refused to permit the re-

entry of Mariel Cubans who have changed their minds and sought

to return to Cuba.

Also submitted in support of the applicant's motion is the No-

vember 12, 1981, deposition of Professor Dominguez, an expert on

Latin American affairs with a. special expertise in contemporary

Cuban political and military policies. He is a consultant for the

State Department regarding Cuba and other Latin American

projects and visited Cuba in January 1979 and again in August

1980 as a guest of the Cuban Government. He testified that an in-

tensive crackdown by the Government against opponents of the

regime began in December 1979 and that the Mariel sealift took

place during this state of repression. He testified that those partici-

pating in the Freedom Flotilla provided a useful scapegoat for the

Government's economic and social failures during the 70's. lie

stated that the Government's position was that those who sought to

depart via Martel were "scum," not worthy of being considered

Cubans, and had been responsible for the failure of the Govern-

ment's programs for the last 10 years. It was his opinion that those

Cubans who departed via Mariel were deemed enemies of the State

and would not be allowed to return. He testified that by August

1980 the intense public verbal and physical abuse previously direct-

ed at the Mariel participants was diminishing.

Professor Dominguez further testified that if an agreement was

achieved with the Castro regime for the return of the Mariel par-

ticipants, in his opinion, those so returned would be classified "peli-

grosidad" (state of dangerousness) and that although most would be

guaranteed work, it would not necessarily be consistent with a per-

son's skills or training but rather with what was needed by society.

In his view, it would. take those so returned 4 to 5 years to be fully

integrated into Cuban society and cleansed of the "enemy" taint.

He further testified that those Mariel participants who had been

released from prison would have to complete, at a minimum, their

original sentences upon return to Cuba. Professor Dominguez also

stated that the severest penalties and charges of treason were di-

rected towards those nationals who sought to return without gov-

ernment authority rather than Mariel participants who might be

returned pursuant to an agreement.

Assuming arguendo, that as a Mariel participant, the applicant

is a member of a particular social group, we are not persuaded that

146

Interim Decision #2974

the applicant has shown prima facie that he will be persecuted if

returned to Cuba based on that membership. Notwithstanding the

State Departnaent's Country Reports, the applicant has never

claimed, at his exclusion hearing or before us on appeal, that he

was ever subjected to inhumane treatment while living in Cuba or

at the time of his departure from that country. Moreover, the re-

ports and testimony of Professor Dominguez indicate that such

treatment abated by August to September 1980. We conclude that

the refusal of a country to accept the return of its nationals does

not, by itself, provide the basis for an asylum claim. There has

been no showing that the applicant's return to Cuba would result

in treatment limiter to that experienced by the Cuban nationals

who sought to enter Cuba's territory without first obtaining its per-

mission in compliance with that country's immigration and cus-

toms laws. On the contrary, the testimony of Professor Dominguez

clearly suggests that Mariel participants who are returned pursu-

ant to an agreement would not experience treatment similar to

those nationals who attempted to illegally reenter Cuba. His testi-

mony further suggests that while Mariel participants so returned

would not be comfortable, it would primarily be the result of the

economic and social upheaval taking place in Cuba, which affects

the entire population, rather than a specifically directed course of

persecution.

Our review of the record satisfies us that the applicant has not

shown prima facie that his life or freedom would be threatened or

that he will be persecuted or has a well-founded fear of persecu-

tion. We agree with the applicant that it would be improper to

evaluate his motion to reopen based on the possible lawful return

of the Mariel participants in the future, and we have not done so.

Nor is it appropriate to base the motion, as the applicant has done,

on the treatment received by those Cuban nationals who sought to

illegally return to Cuba and on the assumption that the return of

the Mariel participants would be without the Cuban Government's

consent. Neither the lawful nor unlawful return of the Muriel par-

ticipants is a present reality. The applicant's motion fails to dem-

onstrate prima facie a present realistic likelihood of persecution.

We conclude that reopening is not warranted. Accordingly, the

motion to reopen will be denied.

ORDER: The motion is denied.

147

Interim Decision #2974

BEFORE THE ATTORNEY GENERAL

(July 27, 1984)

The Board of Immigration. Appeals (Board) has referred these

companion cases to the Attorney General for review at the request

of the Commissioner of the Immigration and Naturalization Serv-

ice (INS). 8 C.F.R. § 3.1(h)(1)(iii) (1984). INS has requested the Attor-

ney General to review two issues raised by both decisions—first,

whether the Board improperly rejected certain stipulations entered

into by the parties and second, whether the Board should have pro-

vided an interpretation of the term "membership in a particular

social group," 8 U.S.C. § 1101(a)(42), for the future guidance of the

parties. Based on a complete review of the record, the Board's

action on both of these issues is approved.

I. Background

The aliens involved in these two cases are Cuban citizens who ar-

rived in the United States during the Spring of 1980 as part of an

exodus of over 120,000 people from the port of Marie', Cuba. Both

were detained upon arrival by INS and are now being held at the

Atlanta Penitentiary.'

Mr. Leon-Orosca was originally found to be excludable in Decem-

ber, 1980 because he lacked valid entry documents. 8. U.S.C.

§ 1182(aX20). His application for asylum was rejected at the same

time. He did not appeal his final order of exclusion and deporta-

tion. Mr. Rodriguez-Colas was ordered excluded and deported in

August, 1980. His request for asylum was also denied. On appeal,

the Board affirmed his exclusion under 8 U.S.C. § 1182(a)(20), and

the denial of his request for asylum.

By early 1982, attorneys for the detainees believed that they had

new evidence indicating that individuals who had participated in

the boatlift from Mariel in 1980 were subject to persecution by the

Cuban Government. Therefore, in June, 1982, motions were filed in

both cases to reopen the exclusion proceedings so that applications

could be made for asylum. 8 U.S.C. § 1158(a); 8 C.F.R. §§ 208.3(b)-.11

(1984). The claims were based on the asserted ground that the de-

tainees had "a well-founded fear of persecution" by the Cuban Gov-

ernment based on "membership in a particular social group." 8

The detained Cubans, now numbering over a thousand, have sought their re-

lease on a number of grounds. Fernandez Roque v. Smith, 567 F. Supp. 1115 (N.D.

Ga. 1983) and Fernandez Roque v. Smith, 557 F. Supp. 690 (N.D. Ga. 1982), rev'd,

Nos. 83-8065, 83-8628 (11th Cir. June 1, 1984). See also Fernandez-Roque v. Smith,

539 F. Supp. 925 (N.D. Ga. 1982).

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Interim Decision *2974

U.S.C. § 1101(a)(42). The social group was identified as all Marieli-

tos.

The immigration judge reviewing Mr. Leon-Orosco's case found

that he had not met the burden of establishing that he was a

member of a particular social group or that he would be persecuted

upon his return to Cuba 2 The Board affirmed on the ground that

he had failed to demonstrate a realistic likelihood of persecution

and dismissed the appeal.° The Board denied Mr. Rodriguez-Colas'

motion to reopen on the same ground. 4

INS thus prevailed before the Board on the central issue in-

volved in both of these decisions—whether the applicants had pre-

sented sufficient evidence on the issue of persecution to warrant re-

opening their exclusion hearings. 5 Nevertheless, INS has petitioned

the Attorney General to review these cases to resolve two issues.

First, INS complains that the Board should have approved a stipu-

lation agreed to by the parties regarding the effect of the Board's

decision on subsequent cases. Second, it argues that the Board

should have provided a full interpretation of the term "member-

ship in a particular social group," 8 U.S.C. §1101(a)(42), "because

the issue was ripe and because of the significance of the issue in

the cases at hand." INS Statement in Support of Certification of

Decision, at 4. For the reasons discussed below, the Board's action

on both of these issues is approved.

Stipulation

There are over a thousand Cuban detainees at the Atlanta Peni-

tentiary whose attorneys believe they may be eligible for asylum in

this country. In order to facilitate determination of the validity of

the detainees' claim that Marielitos were a "social group," 8 U.S.C.

1101(a)(42), that would be persecuted in Cuba, INS and the detain-

ees' attorneys agreed by stipulation that the Leon-Orosco and Ro-

driguez-Colas cases would be test cases. Both sides agreed that the

Board's decision in these cases would be binding on. all other de-

tainees.°

2 In re Leon-Orosco, No. A23 215 742—Atlanta (Aug. 16, 1982).

3 In re Reynaldo Leon-Orosco, No. A23 215 742—Atlanta (Nov. 30, 1983).

4 In re Pascual Rodriguez-Colas, No. A24 790 678—Atlanta (Nov. 30, 1983).

Attorneys for the applicants have not requested review of this issue by asking

the Atinrney General to direct that the Board refer the case to him, 8 C.F.R.

§3.1(hX1)(0. Thus, the Board's finding on this matter has not been challenged by

either side.

e The stipulation provides, in relevant part:

Continued

11d

Interim Decision *2974

INS apparently believes that the Board has rejected this stipula-

tion. "Because the Board has declined to accept the stipulations,

the decisions in the two cases apply only to the individuals in-

volved. This means that the issue will have to be reconsidered on a

case-by-case basis." INS Statement in Support of Certification of

Decision, at 3.7 A review of the Board's decisions, however, indi-

cates that INS' reading is incorrect. In the first footnote in both

cases, the Board says:

Counsel for the Service and the applicants have stipulated that the Board's deci-

sions in these cases shall be binding on all similarly situated IVIariel Cubans with

respect to asylum claims based on membership in a particular social group. The

effect of this stipulation on the Board or immigration judges need not be ad-

dressed in the matter now before us.

Failing to discuss the effect of a stipulation is not a rejection of it.

Nothing in the Board's statement precludes the parties from abid-

ing by the stipulation and permitting it to govern their conduct. 8

AlthaeBordsiwtnecghswoaitd

not need to discuss the effect the stipulation would have on other

cases not then before it. This is perfectly proper since enforcement

of the stipulation will occur in subsequent cases and then only if

INS or the detainees' attorneys attempt to ignore or circumvent it.

There is no reason to believe that either side will fail to honor the

stipulation or that the stipulation will not be enforced if one side

That the decision rendered by the [Board] on applicant's motion to reopen and

the decision rendered on the reopening hearing, should the motion be granted,

will be binding on all asylum/withholding of deportation issues relating to mem-

bership in the Freedom Flotilla as a social group, ... on the following class of per-

sons: all Cuban nationals who are presently incarcerated at the Atlanta Federal

Penitentiary,. or who were in the past or will in the future be incarcerated there

and who arrived in the United States from Cuba as part of the Freedom Flotilla,

and a) who have had final orders of exclusion entered against them by an Immi-

gration Judge, and who have appealed to the BIA, and whose final orders of ex-

clusion have been affirmed on appeal, or b) who have had final orders of exclusion

entered against them by an IJ, who have appealed to the BIA and who are wait-

ing for a decision.

In. Rodriguez•olas, Stipulations Attached to Applicant's Motion to. Reopen Deci-

sion of BIA, June 15, 1982, at 1. See also Letter to Immigration Judge Williams

from Debora' Ebel, Attorney for the Applicant, June 29, 1982, at 2; In is Leon-

Orosco, Applicant's Brief in Support of Appeal to BIA From Denial of Motion to

Reopen, Aug. 30, 1982, at 21 n. 1; In re Reynaldo Leon-Orosco, Stipulations At-

tached to Applicant's Motion to Reopen Decision of Immigration Judge, ¶13, June

15, 1982.

"[R.]ejectioni of the stipulation serves no useful purpose and is in fact calculated

to impose unnecessary and significant burdens on both the Service and the aliens

involved, as well as immigration judges and the Board itself." Id. at 2.

8 The stipula.tion will, it can be assumed, be effectuated by the detainees' attor-

neys when they abide by the Board's rejection of the applicants' motions.

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Interim Decision #2974

does attempt to renege. Donovan v. Eamm's Drive Inn, 661 F.2d

316, 317 (5th Cir. 1981); Brown v. Tennessee Gas Pipeline Co., 623

F.2d 450, 454 (6th Cir. 1980).

rnAmmuch as this stipulation is a bargain between the parties as

to the subsequent effect of test cases on other parties not before the

Board, and had no effect on the Board's adjudication of the rights

of either Mr. leon-Orosco or Mr. Rodriguez-Colas, it was not neces-

sary for the Board to discuss its effect and not inappropriate for it

to defer doing so until it was faced with a case in which the terms

of the stipula_tion were material to the resolution of a controversy.

The Board's action is approved.

III. Interpretcetion of "membership in a particular social group"

INS convinced the Board that neither applicant had met the

burden of proof necessary to permit reopening of his exclusion

hearing. Nevertheless, INS has also asked for review of these deci-

sions because the Board, in arriving at its conclusion, assumed ar-

guendo that the Cubans were members of a "particular social

group"—Marielitos—rather than deciding the issue. 9 Thus, the

Board did not discuss an issue the parties had debated hotly during

the course of this litigation—namely, whether Cubans whose only

connection with each other is that they left Mariel, Cuba in the

Spring of 1980 constitute a "particular social group" within the

meaning of 8 U.S.C. § 1101(a)(42).

The Board has therefore supplied no standard which may be used in considering

appeals and ructions by the affected persons. This means that the issue will have

to be considered on a case by case basis, to no useful purpose, as an interpretation

- -

of general applicability would enable the Service, the aliens involved, immigration

judges and the Board to consider the persecution claims of those similarly situat-

ed, without a perpetual re-examination of the issue. . . . The failure to provide an

interpretation moans that the issue remains open, although both the applicants

and the Service presented full arguments on this issue, and it could have, and

should have been resolved.

INS Statement in Support of Certification of Decisions, at 4-5.

One response to this entirely legitimate concern over the poten-

tial for endless relitigation of the issue whether the Marielitos con-

stitute a social group as defined in the statute is that, to the extent

that INS and the detainees' attorneys have entered into a stipula-

tion over the effect of these two cases, the Board's decisions are

'Assuming ctrguenclo that the Marielitos were a social group, the Board found

that the evidence presented on behalf of both applicants did not make out a prima

facie case that Cuba would persecute them. In re Leon-Orosco, No. A23 215 742-At-

lanta (Nov.sa, 1983), at 5; In re Rodriguez-Colas, No. A24 790 678-Atlanta (Nov. 30,

1983), at 5.

Interim Decision #2974

binding on all the detainees who might file for asylum on the

grounds of membership in a particular social group. Thus, even if

these individuals were said to be part of a social group, the repre-

sentative cases have failed to establish a statutory condition for

asylum status, i.e., a well-founded fear of persecution. The stipula-

tion and the record appear to reflect an intent to make the Board's

decisions in these cases completely dispositive of the detainees'

asylum claim on the basis of social group, in order to avoid burden-

some litigation. Unless I misread the record, therefore, there will

be no further motions and appeals by those similarly situated.

Even if the parties were not bound by the stipulation discussed

above, it would be awkward to insist that the Board articulate a

more detailed standard, especially at the behest of the prevailing

party, for determining what characteristics transform individuals

into particular social groups- The Board felt it unnecessary to

decide whether the Marielitos constitute a social group because of

its conclusion that the evidence presented that they would be per-

secuted if they were returned to Cuba was insufficient to justify re-

opening their exclusion hearings. I am reluctant to substitute my

judgment for that of the Board in order to insist that the Board

provide an exegesis on the phrase "membership in a particular

social group" when the Board did not feel that such was necessary

to the cases before it. Under the circumstances, such a discussion

would have the earmarks of an advisory opinion on an issue that,

while important, did not need to be resolved by the Board in arriv-

ing at its conclusion. The Board's decision to limit itself to resolv-

ing issues necessary for its conclusion is approved.

IV. Conclusion

For the reasons stated above, I hereby approve the Board's action

on both issues raised by INS in its referral of these cases. The

records in these cases will be returned to the Board.

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