MATELOT

Interim Decision #2927

MATTER OF MATELOT

In Exclusion Proceedings

A-26007558

Decided by Board November 1, 1982

(1) An immigration judge's refusal to admit as evidence findings of fact that are contained'

in a reported federal decision does not deprive an alien of the opportunity to fully present

an asylum claim.

CHARGE:

Orden Act of 1952—Sec. 212(a)(20) [8 U.S.C. 1182(a)(20)]—Immigrant not in possession

of valid unexpired immigrant visa or other valid entry document

ON BEHALF OP APPLICANT: ON BEHALF OF SERVICE:

James W. Gardner, Esquire Debra Gordon

Brown, Bucalos, and Gardner General Attorney

, 712 Lexington Building

201 West Short Street

Lexington, Eentucky 40507

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

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

decision of December 9, 1981, finding the applicant excludable from

admission to the United States under section 212(a)(20) of the Immigra-

tion and Nationality Act, 8 U.S.C. 1182(a)(20), and denying his applica-

tion for asylum under section 208 of the Act.' The appeal will be

dismissed.

The applicant is a 27-year-old native and citizen of Haiti who arrived

in the United States on July 14, 1981, by boat near Miami, Florida. He

hafino documents with which to enter the United States and was held in

detention by the Service. On September 1, 1951, he was served with

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

-

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

The filing of an application for asylum in exclusion proceedings shall also be considered

as a request for withholding of exclusion or deportation under section 243(h) of the Immi-

gration and Nationality Act, 8 U.S.C. 1253(h). 8 C.F.R. 208.3(b); see Mailer of Exilits, 18

I&N Dec. WO (NIA 1982); matter of Portales, 16 I&N Dee. 239 USIA 1982); matter of

Castellon, 17 l&N Dec: 616 (BIA 1981).

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Interim Decision #2927

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

immigrant not in possession of a valid immigrant visa. Following his

initial two hearings before the immigration judge which were continued

to permit the applicant to have counsel prepared and to submit an

asylum application, the applicant filed Form 1-589, "Request for Asylum

in the United States," on October 16, 1981. 2 Upon receipt of an advisory

opinion from the United States Department of State, Bureau of Human

Rights and Humanitarian Affairs (BHRHA), 3 the exclusion hearing was

resumed on December 9, 1981. The immigration judge found the appli-

cant excludable as indicated above and denied his asylum application.

On appeal, the applicant submits that the Service has the burden of

proving that exclusion proceedings are proper. He alleges it was error

to deny his request to have the government's primary inspector verify

that exclusion proceedings are appropriate. The applicapt's argument is

misplaced.. It is clear that an applicant in exclusion proceedings has the

burden of establishing that exclusion proceedings are improper. See

section 291 of the Act; Matter of Phelisna, 18 I&N Dec. 272 (BIA

.1982); Matter of Lie La Nues, 18 1&N Dec. 140 (BIA 1981); Matter of

Pierre, 14 I&N Dec. 467 (BIA 1973); but cf. Matter of Salazar, 17 I&N

Dec. 167 (BIA 1979) (colorable claim to lawful permanent resident status).

The applicant has not alleged that he "entered" the United States, but.

rather, testified that he intended to work in the United States, that he

intended to live here permanently and that he had no document which

would permit him to reside in this country. Thus, the record clearly

establishes that the applicant is excludable under section 212(a)(20) of

the Act as an immigrant without a valid immigrant visa or other valid

entry document.

The applicant also raises various other arguments. He objects to the

denial of his motion for "simultaneous translation" of the exclusion

hearing. We find no error in the denial of this motion. See Matter of

Exilus, 18-I&N Dec. 276 (BIA 1982).

Although the applicant apparently filed an incomplete 1-589 with the District Director,

he states that he advised the District Director that a thorough 1-589 would be submitted

within 45 days. Because the District Director presumably denied the asylum application in

2 letter received by the applicant an November :40, 1981, the applicant submits that he

was never given the opportunity to file:a thorough 1-589.

The applicant's contention is without merit. Although harmless, it was error for the

District Director to rule on the 1-589. Where an applicant for admission to the United

States files an 1-589 after being placed in exclusion proceedings, jurisdiction over his

asylum claim lies exclusively with the immigration judge. See Matter of Dee, 18 l&N Dec.

269 (BIA 1982). The applicant was placed in exclusion proceedings on Septemlier 1, 1981,

with the service of Form 1-122. His asylum application was subsequently filed on October

16, 1981. Therefore, as the District Director had no authority to rule on the original 1-589,

the applicant has no basis upon which to submit an amended 1-589 to the District Director

fiir adjudication.

3 See 8 C.F.R. 208.7 and 208.10(b). •

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Interim Decision #2927

The applicant contests the'denial of his motion for parole. We find no

error in the denial of this motion. The District Director has exclusive

jurisdiction to parole an alien into the United States pursuant to 8

C.F.R. 212.5(a). Neither the immigration judge nor this Board has

jurisdiction to exercise parole power. Matter of Castellon, 17 I&N Dec.

616 (BIA 1981); Matter of Niayesh, 17 I&N Dec. 231 (BIA 1980); Matter

of Lepofsky, 14 I&N Dec. 718 (BIA 1974); Matter of Conceiro, 14 I&N

Dec. 278 (BIA), affd, Conceiro v. Marks, 360 F. Supp. 454 (S.D.N.Y.

1973).

The applicant argues that the denial of background information relat-

ing to conditions in Haiti deprived him of the opportunity to fully pres-

ent his asylum claim. In Matter of Exame, 18 I&N Dec. 303 (BIA

1982), we found that the applicant was not afforded a full and fair oppor-

tunity to present his persecution> claim because the immigration judge

categorically refused to admit background evidence pertaining to condi-

tions in Haiti. These proceedings are distinguishable from Exame,

however, in that the applicant's counsel admitted that he did not have

the documents which he wished to present to the immigration judge for

consideration (fr. p. 20). Under the circumstances of these proceedings,

we find no error in the immigration judge's refusal to receive unsubmitted

documents. Moreover, some of the documents which the applicant sought

to introduce were attached to his amended asylum application and were

received into evidence.

In addition, we fmd no error in the immigration judge's refusal to

admit the findings of fact in Haitian Refugee Center v. Civiletti, 503 F.

Supp. 442 (S.D. Fla. 1980). These findings were made in proceedings

separate and distinct from those in the instant case. Further, it is not

necessary to introduce federal decisions into the proceedings inasmuch

as the findings and conclusions set forth therein are a matter of record

and can be cited. Moreover, on appeal, the Fifth Circuit agreed in part

with the government's contention that the district court erred in enter-

ing findings of fact on life in Haiti and found that the district judge

exceeded his authority to the extent he implied by his findings and

conclusions that the plaintiffs' claims of fear of persecution merited the

granting of asylum. See Haitian Refugee Center v. Smith, 676 F.2d

1023, 1042 (5 Cir. 1982).

The applicant alleges that he was denied effective assistance of coun-

sel because his present counsel was not competent to handle this case,

having no prior experience in immigration law. After reviewing the

proceedings and the brief on appeal, we are unpersuaded that the appli-

cant has sustained his burden of establishing that he was denied effec-

tive assistance of counsel.

Similarly, the applicant alleges that the immigration judge erred in

refusing to grant a continuance because his counsel only had 9-days'

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Interim Decision #2927

notice to prepare for the hearing and because he had received the State

Department's advisory opinion immediately before the hearing. This

argument is without merit. The record reflects that counsel's partner

was present and had represented the applicant at his original hearing on

September 1, 1981. Further,•the record contains Form G-28, "Notice of

Entry of Appearance as Attorney or Representative," which was filed

by the applicant's counsel and which was received into evidence by the

immigration judge on September 29, 1981. Therefore, at a minimum,

the applicant's counsel had over two months and, more likely, had over

three months to prepare for this else. The 9-day notice in advance of the

continued hearing held on December 9, 1981, was not insufficient notice

inasmuch as the applicant's counsel actually had a substantially greater

period of time in which to prepare for the proceedings.

In addition, we find no error with the denial of a continuance to rebut

the State Department's advisory opinion. The applicant does not allege

what evidence would have been forthcoming if the continuance 11111 been

granted. Further, the applicant was given the opportunity to rebut the

opinion expressed by the State Department and, in fact, did su by

testifying and submitting an amended asylum application in support of

his position. Moreover, the opinion is not binding on the immigration

judge or this Board.

Finally, the applicant asserts that he has established his asylum claim,'

based on his rationale for escaping from Haiti and belief of the conse-

quences of his return to that country. The applicant also contends that

there is no evidence to show why he is not entitled to asylum inasmuch

as the Service did not call any witnesses or present any proof to rebut

his case. -

An applicant for asylum or withholding of deportation must show

that, if deported, he would be subject to persecution or that he has a

well-founded fear of persecution based on his race, religion, nationality,-

membership in a particular social group, or political opinion. Section

208(a) of the Act. See section 243(h) of the Act; Rejai© v. INS, 691 F.2d

139 (3 Cir. 1982); McMullen v_ INS, 658 F.2d 1312 (9 Cir. 1981); Kashani

v. INS, 547 F.2d 376 (7 Cir. 1977); Matter of Portales, 18 I&N Dec. 239

(BIA 1982); Matter of Martinez-Romero, 18 I&N Dec. 75 (BIA 1981);

Matter of Dunar, 14 I&N Dec. 310 (BIA 1973). See also Stem v. Sava,

678 F.2d 401 (2 Cir. 1982). It is clear that, when presenting a claim, the

applicant has the burden of proof in such proceedings. See 8 C.F.R.

208.5; Haitian Refugee Center v. Smith, supra at 1042-43; McMullen v.

INS, supra; Matter of Exiles, supra. Moreover, an alien.who makes an

illegal departure from Haiti does not necessarily establish a well-founded

fear of persecution under the Act. See Matter of Exiles, supra. See also

Matter of Nagy, 11 I&N Dec. 8 (BIA 1966); Matter of Liao, 11 I&N Dec.

113 (BIA 1965).

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Interim Decision #2927

Liao, 11 I&N Dec. 113 (BIA 1965).

The applicant believes that his claim should be granted because of his

,problems xxith the Ton Ton Macoutes and because he departed from

Haiti without authorization. In essence, the applicant states that his

father was imprisoned by the Ton Ton Macoutes for an unknown reason,

but was released upon the payment of $60.00. The applicant further

states that because he was responsible for his father's release, he was

questioned many times by the Ton Ton Macoutes. After a friend told

him that tile Ton Ton Macoutes were looking for him, the applicant

decided to leave Haiti.

The applicant has not established that he will be persecuted or that he

has a well-founded fear of persecution within the contemplation of

section 20a(a) or 243(h) of the Act, regardless of whether his claim is

assessed in terms of whether he has demonstrated a "clear probability,"

a "good reason," or a "realistic likelihood.' The applicant states that he

departed from Haiti without permission. However, if returned, he has

not shown how his perceived treatment will be different from other

Haitians whio departed from that country without authorization or that

the penalty, if any, imposed by the Haitian government is within the

meaning of the Act. Further, on this record we are unable to conclude

that the questioning and possible arrest of the applicant by the Ton Ton

Macoutes qualifies the applicant for asylum and section 243(h) relief,

particularly when the contents of the questioning and reason for the

perceived arrest are not a matter of record.

Accordingly, the appeal will be dismissed.

ORDER:The appeal is dismissed.

4 Therefore, we find no error with the zefueal of the immigration judge to outunit the

amended asylum application to the BHRHA of the Department of State for a second

advisory opinion. See 8 C.F.R. 208.10(b).

338