SIBRUN

Interim Decision #2932

MATTER OF SIBRIA.

In Exclusion Proceedings..

A-26008444

Decided by Board January 20, 1983

(1) An alien's motion for continuance of his exclusion hearing based upon an asserted lack

of preparation and a request for opportunity to obtain and present additional evidence

must be supported, at a minimum, by a reasonable showing that the lack of preparation

occurred despite a diligent good faith effort to be ready to proceed and that any additional

evidence which the alien seeks to present is probative, noncumulative, and significantly

favorable to him.

(2) A motion fora continuance is within the sound discretion of the immigration judge, and

his decision ,denying such a motion will not be reversed on appeal unless the alien

establishes—by a full and specific articulation otthe particular facts involved or evidence

which he would have presented—that the denial caused him actual prejudice and harm,

and materially effected the outcome of his case.

EXCLUDABLE: Act of 1952—Sec. 212(a)(20) (8 U.S.C. 1182(a)(20))—Immigrant not in pos-

session of valid immigrant visa

ON BEHALF OF APPLICANT: ON BEHALF OF SERVICE:

Magda Montle' Davis, Esquire Leonard A_ Rosenberg

One Biscayne Tower General Attorney

Suite 3230

Miami, Florida 33131

By: blilhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members

This matter is before the Board on appeal from the immigration judge's

decision of July 7, 1982, finding the applicant excludable from admission

to the United States under section 212(a)(20) of the Immigration and

Nationality Act, 8 U.S.C. 1182(a)(20), and denying his application for

asylum under section 208 of the Act, 8 U. S. C. 1158.' The appeal will be

dismissed.

The applicant is a 35-year-old native and citizen of Haiti who arrived

in the United States on August 9, 1981, by boat near Miami, Florida. He

had no documents with which to enter the United States and was held in

8 C.F.R. 208.2(b) provides that the filing of an application for asylum in exclusion

proceedings shall also be considered as a request for withholding of exclusion under

section 243(h)of the Act, 8 U.S.C. 1253(b).

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Interim Decision #2932

detention by the Service. On August 13, 1981, he was served with a

Form 1-122, "Notice to Applicant for Admission Detained for Hearing

Before Immigration Judge," alleging that he was excludable from admis-

sion to the United States under section 212(a)(20) of the Act as an

immigrant not in possession of a valid immigrant visa. However, the

Service was restrained by order of the Federal District Court for the

District of Southern Florida from proceeding to hearing with this and all

other Haitian applicants absent their representation by counsel. On

April 1, 1982, counsel entered her appearance on behalf of the instant

applicant. She was granted 35 days in which to file pre-trial motions

and/or an application for asylum. Thereafter, she submitted a Form

1-589, "Request for Asylum" for the applicant, which the Service for-

warded to the United States Department of State, Bureau of Human

Rights and Humanitarian Affairs (BHRHA) on May 12, 1982. 2 Upon

receipt of the BHRHA opinion dated May 20, 1982, advising that they

did not believe the applicant had established a well-founded fear of _

persecution, the Service notified counsel on June 3, 1982, that the

applicant's case would be heard on July 7, 19R2

At the hearing on July 7, 1982, the applicant conceded that he is a

citizen of Haiti, that he intends to stay indefinitely in the United States,

and that he had no documents with which to enter the United States.

Therefore, the immigration judge properly found the applicant to be

excludable from the United States under section 212(a)(20) of the Act, a

finding which is not contested on appeal. However, counsel then informed

the immigration judge that she was unprepared to present the applicant's

case for asylum and she moved for a continuance of the hearing. The

immigration judge denied that motion. Counsel then advised the appli-

cant to give no testimony regarding his persecution claim and she refused

to conduct.any examination of the applicant or submit any evidence in

support of his asylum application. Therefore, the immigration judge

.proceeded to examine in detail the only evidence of record pertaining to

the applicant's persecution claim, that being his asylum application. The

only claims advanced therein are that the applicant fears persecution

because he, like "almost everyone else in my country lives under the

same oppressive conditions," i.e., arbitrary arrest by the government

authorities, and because he left Haiti without permission. The immigra-

tion judge concluded this did not establish a well-founded fear of persecu-

tion under the Act, and he denied the asylum application.

Turning first to the applicant's motion for continuance, we observe

that an immigration judge may grant an alien's request for adjournment

of a deportation hearing only for "good cause." See 8 C.F. R. 242.13. No

comparable provision exists for exclusion proceedings. Given the appar-

See 8 C.F.R. 208.7 and 208.10(b).

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Interim Decision #2932

ent paucity of any exposition of standards regarding motions to continue,

it may be instructive to examine those standards which have evolved in

federal criminal procedure—recognizing, of course, that they do not

control in these administrative proceedings. Under federal criminal

procedure, the denial of a motion for continuance is within the discretion

of the trial court and will not be disturbed without a showing of actual

prejudice or harm. United States v. Clements, 484 F.2d 928 (5 Cir. 1973),

cert. denied, 415 U.S. 991 (1974); United States v. Lustig, 555 F.2d

737 (9 Cir. 1977), cert. denied, 434 U.S. 1045 (1978); United States v.

Aviles, 623 F.2d 1192 (7. Cir. 1980); United States v. Moore, 419 F.2d

810 (6 Cir. 1969). A motion for continuance based upon inadequate time

for counsel to examine evidence is properly denied where such additional

time would not have affected the outcome. United States v. Medina-

Arelktno, 569 F.2d 349 (5 Cir. 1978). In addition, the bare allegation

that had a continuance been granted the defendant could have located

unnamed witnesses for his defense is insufficient to cause reversal of the

denial of his motion for continuance; the movant is required to show that

substantial favorable testimony would be tendered by the witness, that

the witness was available and willing to testify, and that denial of the

continuance materially prejudiced the defendant. Id.

It should be emphasized that the full panoply of procedural protec-

tions accorded criminal defendants are not constitutionally mandated

for aliens in these civil, administrative proceedings. See e.g., United

States v. &ma-Kraft, 522 P.2d 149, 152 (9 Cir. 1975); Rarthold v.

INS, 517 F.2d 689 (5 Cir. 1975); Jolley v. INS, 441 F.2d 1245 (4

Cir. 1971). All that is required here is that the hearing be -fundamentally

fair. See Matter of Exilus, 18 I&N Dec. 276 (BIA 1982). Prejudice

is the sine- qua non for establishing that a hearing was unfair. Id.

Accordingly, where federal criminal procedure standards are satisfied,

the less rigorous requirements applidable to civil, administrative pro-

ceedings clearly will have been fulfilled as well.

We conclude there are two elements which must be examined with

regard to a motion for continuance based upon an asserted lack of prepa-

ration and a request for opportunity to obtain and present additional

evidence. First, while the motion is within the sound discretion of the

immigration judge, an alien at least must make a reasonable showing

that the lack of preparation occurred despite a diligent good faith effort

to be ready to proceed and that any additional evidence he seeks to

present is probative, noncumulative, and significantly favorable to the

alien. Second, for purposes of appeal, even where an alien has made this

minimum required showing, an immigration judge's decision denying

the motion for continuance will not be reversed unless the alien estab-

lishes that that denial caused him actual prejudice and harm and materi-

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Interim Decision #2932

ally affected the outcome of his case. Bare, unsupported allegations are

insufficient; the alien must specifically articulate the particular facts

involved or evidence which he would have presented And otherwise

fully explain how denial of his motion fundamentally changed the result

reached.

Counsel has advanced three principal reasons in support of the motion

for continuance: failure to receive certain "written material" from the

local Bar Association until one day before the hearing failure to receive

the translation of a letter by the applicant from a translating service;

and the failure of an employee of the translating service to appear for a

meeting with counsel.to provide "some pertinent information regarding

the hearing as to witnesses and allegations of facts, etc." (Tr. at 4-5). In

light of the above standards, we find that these reasons are insufficient

to have warranted granting of the motion for continuance by the immi-

gration judge or to require reversal of that decision in this appeal. While

the Bar Association materials may not have been received until the Ilth

hour, nonetheless they were in counsel's possession at the time of the

hearing. 'Thus, she was not precluded from submitting into the record

any pertinent evidence contained in that "written material" or from

offering a specific explanation as to why its recent receipt adversely

affected her ability to- go forward in her representation of the applicant. 3

Asfortheadilucvtransofheplict'r,

counsel plesumably could have obtained a translation of the letter else-

where when difficulties" developed with the original translating service;

alternatively, the applicant's letter could have been translated and read

into the record at the hearing by the Service translator, or the applicant

simply could have testified directly as to it contents. Concerning the

nonappearance of the translating service employee with information

regarding :`witnesses and allegations of fact," if the applicant himself is

the source of these "allegations of fact," he was not precluded from

testifying to such "facts" at the hearing. Moreover, counsel has failed to

demonstrate that these alleged but unnamed witnesses would have ten-

dered substantial favorable testimony, that they were available and

willing to -testify, and that the absence of these witnesses materially

prejudiced the applicant's case. See United States v. Medina-Arellano,

supra. Finally, all three reasons which counsel advances suffer a com-

mon defect: they are but bare, unsupported allegations lacking the

required specific articulation of particularized facts and evidence.

Accordingly, we find that counsel has failed to establish that after more

3 Counsel asserts that this Bar Association material she received one day before the

hearing left hei insufficient time in which to prepare that information. However, she

herself apparently elected to prepare for the hearing by sehednling_a meeting with the

translating service employee in order to learn of alleged new facts and Witnesses on that

very same day before the hearing. See M at 4-5.

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Interim Decision #2932

than 3 months of representing the applicant she reasonably could not

have been prepared to proceed nor that the alleged additional evi-

dence she sought to obtain and submit was probative, noncumulative,

and significantly favorable to the applicant, so as to justify a continu-

ance of the hearing.

Even assuming, arguendo, that the applicant's motion for continu-

ance were adequately supported, we find no need to reverse the immi-

gration judge's denial of the motion. Although it is now several months

since the hearing, the applicant, through counsel, has yet to substan-

tively identify any evidence which he was precluded from submitting

nor has he proffered any explanation of how denial of his motion materi-

ally affected the outcome of his asylum application and caused him actual

prejudice or harm.' Therefore, the applicant has failed lo satisfy the

standards set forth earlier, and we will not disturb the immigration

judge's denial of the applicant's motion for continuance.

Turning to the applicant's asylum application, under section 208(a) of

the Act, an alien may be granted asylum in the exercise of discretion, if

he qualifies as a "refugee" within the meaning of section 101(a)(42)(A) of

the Act, 1101(a)(42)(A). That section defines "refugee" as an alien who is

unable or unwilling to return to his home country "because of persecu-

tion or a well-founded fear of persecution on account of race, religion,

nationality, membership in a particular social group, or political opinion."

The alien hears the burden of proof to establish a well-founded fear of

persecution. Matter of Exiles, supra; 8 C.F.R. 236.3(a)(2) and 242.17(c);

Haitian. Refugee Center v. Smith, 676 F.2d 1023, 1046 (5 (113 Cir.

1982). The alien must demonstrate a likelihood that he individually will

be singled out and subjected to,persecution. See, e.g., Cheng Kai Fu v.

INS, 386 F.2d 750 (2 Cir. 1967), cert. denied, 390 U.S. 1003 (1968);

Fleurinor v. INS, 585 F.2d 129, 133 (5 Cir. 1978). The showing of a

"well-founded fear of persecution" requires that the alien present some

objective evidence which establishes, a realistic likelihood of persecution

in his homeland; an alien's own speculations and conclusional statements,

unsupported by independent corroborative evidence, will not suffice.

See Rejaie v. INS, 691 F,2d 139 (3 Cir. 1982); Kashani v. INS, 547

F.2d 376, 379 (7 Cir. 1977); Rosa v. INS, 440 F.2d 100 (1 Cir. 1971);

Matter of Dunar, 14 I&N Dec. 310, 319 (BIA 1973); see also, e.g.,

Moghanian v. BIA, 577 F.2d 141, 142 (9 Cir. 1978); Pereira-Diaz v.

We note the record reflects that the applicant was released from detention and paroled

into the United States on August 19, 1982. Although counsel's brief on appeal was filed

some time after the applicant's parole, neither therein nor otherwise during the several

months that the applicant now has been free from restraint and thus has been fully

available to consult with counsel has oho endeavored to enlighten us regarding the exis-

tence and substance of any additional evidence in this case or to elaborate further on the

substance of applicant's persecution claim.

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INS, 551 F.2d 1149, 1154 (9 Cir. 1977); Khali/ v. INS, 457 F.2d 1276,

1278 (9 Cir.1972). Otherwise stated, the test is whether objective qvi r

deucofrisgnatlyprobvefhikdoprsecu-

tion to this particular alien, sufficient to establish a well founded fear of -

persecution in Haiti. Matter of Exatie, 18 I&N Dec. (BIA 1982). an

Theinstant record contains merely the applicant's ownunsubstantiated

and conclusory statements in support of his persecution claim_ There-

fore, the record does not contain at least some objective evidence which

is significantly probative of a realistic likelihood of persecution to this

applicant, necessary to establish a well-founded fear of persecution.

Moreover,. even if we accept all of the applicant's factual allegations as

true, we find him to be ineligible for asylum.

The applicant claims that he will be persecuted because he left Haiti

illegally. However, he has never been arrested or imprisoned in Haiti

and makes no claim to having been a member of any organization hostile

to his government or to have expressed a political opinion adverse to the

authorities of that government. It is uncontested that departure from

Haiti without permission is a violation of Haitian law. Nevertheless, the

possibility that the applicant may be subjected to criminal prosecution

and perhaps severe punishment as a result of his illegal departure from

Haiti does not demonstrate a likelihood of persecution under the Act.

See Henry v. INS, 552 F.2d 130 (5 Cir. 1977); Matter of Nagy, 11 1&N

Dec. 888 (BIA 1966); Matter of Williams, 16 I&N Dec. 697 (BIA 1979);

Matter of Matelot, 18 I&N Dec. 334 (BIA 1982). The record estab-

lishes no motivation of the Haitian authorities for seeking to prevent the

applicant's illegal departure or punish him upon his return apart from

the•fact that such departure constitutes a crime in Haiti; no motivation

based on political opinion for this prospective criminal prosecution and

punishment is persuasively demonstrated in the record. Accordingly,

the applicant's claim that he left Haiti illegally does not satisfy his

- burden of proof in• establishing a well-founded fear of persecution. Id.

The applicant also states that he fears persecution because all Hai-

tians live under terrible oppression and in constant fear of the Haitian

authorities subjecting them to arbitrary arrest, torture, and perhaps

.death. Even if true, such deplorable actions do not come within the

specified grounds Of persecution prescribed by section 101(a)(42) of the

Act, i.e., tht they be imposed "on account of race, religion, nationality,

membership in a particular social group, or political opinion." The type

of persecution upon which asylum eligibility may be predicated is not

merely that which threatens life or freedom generally; the Act requires

that this qualifying persecution derive solely on account of one of the

five prescribed grounds in the statute. Generalized oppression by a

government of virtually its entire populace dues not come within those

specified grounds.

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Interim Decision #2932

In conclusion, we find that the applicant has not demonstrated a

sufficient basis for us to disturb the immigration judge's denial of the

motion for continuance, and that he has failed to establish a well founded

-

fear of persecution within the meaning of the Act.

• ORDER The appeal is dismissed.

• 360