Amicus Curiae Brief — Immigration & Naturalization Service v. Cardoza-Fonseca

er

Supreme Court, US

Fl

No. 85-782 JUL

Ls D

“4 we

ois gE pH E- SPANIOL, JR

CLERK

In The |

Supreme Court of the United States

October Term, 1985

ra.

V

IMMIGRATION AND NATURALIZATION SERVICE,

Petiiicner,

LUZ MARINA CARDOZA-FONSECA,

Respondent.

—{) —

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

—O

BRIEF OF AMICUS CURIAZ

THE AMERICAN IMMIGRATION

LAWYERS ASSOCIATION

0-- =

DersoranH ANKER, Eso. Counsel of Record

1545 Massachusetts Ave.. . .

- Ira J. Kurzpsan, Eso.

L-160 K urzBAN. KUuRZBAN

. na190 {ZBAN, {ZBAN,

Cambridge, MA 02138 - |

\" .NGER AND HoLTSBERG

CHERYL LITTLE Pia7a 2650, Second Floor

NrELs FRENZEN, Esa. 2650 S.W. 27th Avenue

Haitian Refugee Center, Miami, FL 33133

Ine. (305) 444-0060

32 N.E. 54th Street

Miami, FL 33137

COCKLE LAW BRIEF PRINTING CO., (800) 228-8845 (tone) 75

or ca'l collect (402) 342-2831

TABLE OF CONTENTS

Page

STATEMENT OF INTEREST a cea eae

INTRODUCTION AND SUMMARY OF ARGUMENT 1

BOGUT MIND eccecccencnccnnexemsnnncconsnemnenenssoneessnsononsessnenensnnesnnnnnecensnunumnnnccnennnnne 4

A. The Private Interest Affected 5

B. The Risk Of Anu Erroneous Deprivation Of

Such Interests Through The Procedures Used 7

“ The Government’s Interest lee oa

CONCLUSION . i cena ae

TABLE OF AUTHORITIES

Pages

CASES

Addington v. Texas, 441 U.S. 418 (1979) nnn nnn 2, 4

Arguetta v. 1.N.S., 759 F.2d 1395 (9th Cir. 1989) 12

Augustin v. Sava, 735 F.2d 32 (2d Cir. 1984) 16

Bridges v. Wixon, 326 U.S. 135 (1940) ne 2,6

Cafeteria Workers v. McElroy, 367 U.S. 886 (1961)... 1,4

Coriolan v. I.N.S., 559 F.2d 993 (5th Cir. 1977)... 5,11, 12

Damaize-J ob v. I.N.S., 787 F.2d 1332 (9th Cir. 1986)..2, 12

H.R.C. v. Civiletti, 503 F. Supp. 442 (S.D. Fla. 1980),

aff’d as modified sub nom H.R.C. v. Smith, 676 F.

2d 1023 (5th Cir. 1982) ..... | CA % SS

Hossein Mardi v. I.N.S., 405 F.2d 25 (9th Cir. 1968)... 10

I.N.S. v. Lopez-Mendoza, 104 S.Ct. 3479 (1984) —

In Re: Winship, 397 U.S. 358 (1970) 4

Kasravi v. INS, 400 F.2d 673 (9ta Cir. 1968) 10)

Mathews v. Eldridge, 424 U.S. 319 (1976) 1, 3,5, 7, 18

Matter of Benitez, i.D. #2979 (BIA 1984) 17

Matter of Exilus, 18 1&N Dee. 276 (BLA 1982) 16

Matter of Martinez-Romero, 18 I&N Dee. 75 (BIA

SD entstite atemaienpmmmans 11

Morrissey v. Brewer, 408 U.S. 471 (1972) 1,4

Nunez v. Bolden, 537 F.Supp. 578 (S.D. Tex.)

appeal dismissed, 6$2 F.2d 755 (Sth Cir. 1982) ’

Orantes-Hernandez v. Smith, 541 F.Supp. 301

(C.D. Cal. 1982) a

Seltzer v. Foley, 502 F.Supp. 600 (S.D.N.Y. 1980) 15

TABLE OF AUTHORITIES—Continued

Pages

Spetser v. Randall, 357 U.S. 513 (1958) sacaiscccilliden a a7

Wong Yang Sung v. McGrath, 339 U.S. 33 (1950) 7

Woodby v. I.N.S., 385 U.S. 276 (1966) 6

Zamora v. I.N.S,, 534 F.2d 1055 (2d Cir. 1976) oe

BOOKS, ARTICLES, TREATISES

Aleinikoff, Political Asylum in the Federal Republic

of Germany and the Republic of France: Lessons

for the United States, 17 U. Mich. J.L. Ref. 183

Anker & Posner, The Forty Year Crisis: A Legts-

lative History of the Refugee Act of 1980, 19 San

Diego L. Rev. 9 (1981) . niall 10

Annot., Right of Accused to Have Evidence or

Court Proceedings Inter, reted, 36 ALR 3rd 276

a iabeliisivociibadiiiiataniiacinhalaiteiea lias bitenticttani 16

Argyle, Furnham and Graham, Social Situations,

344 (1981) . 14

Austerlitz, The Use of Psychological Evaluations

wm Political Asylum Hearings, 15 Immigration

Newsletter No. 3 (1986) 14

C. Charles, A Panorama of Haitian Culture. Paper

presented to Bilingual Program Dade County,

Florida Puble Schools (June 1986) 15

Comment, Ecumenical, Munwtpal and Legal Chal

lenges to United States Refugee Policy, 21 Harv.

C.R.-C.L.L, Rev, 493 (1986) 12

Danet, Language and the Leqal Process, 14 Law &

Soe’y Rev., 447 (1979) 13

iv

TABLE OF AUTHORITIES—Continued

Pages

Danet, Language in the Courtroom, Language, Social

and Psychological Perspectives 367-376 (Giles ed.

1980) 13

Davis, Administrative Law: Cases-Teaxt-Problems

I :cecichectnioeshshitaceictteibiantiadiattebiadiadl TR el sl s

Developments in Law: Immigration Pclicy and

the Rights of Aliens, 96 Harv. L. Rev. 1286

jr siesilainsietibaaaciadinbsiaila tatiehiailaiibee ita 8

Furnham & Bochner, Séciai Difficulty in a Foreign

Culture: An Empirical Analysis of Culture Shock,

Cuitares in Contact 190 (Bochner ed. 1982) 000... 13, 14

Geertz, The Interpretation of Cultures, 59 (1973)........... 15

Gumperz, Discourse Strategies (1982) oon 13

Haines, Refugees in the United States (1985) .................... 14

Kaelin, Troubled Communication: Cross-Cultural

Misunderstandings in the Asylum Hearing, No. 2,

20 Int’] Migration Rev. 234) (1986) 2c cseeceeenee 12

Kunz, The Refugee in Flight: Kinettc Models and

Forms of Dispiacement, 7 Int’l] Migration Rev.

126-146 (1973) .——___._.. EELS nS PE — 14

Kurzban, Restructuring the Asylum Process, 19

San Diego L. Rev., 91, 98-110 (1981)

Latin-American Bureau, Haitt: wea Business

(1985) . seceeiailia —

Lind and QO’ )’Barr, The Soc ial Signific ance or pa"

In the Courtroom, Language and Social] Psychol-

ogy (H. Giles & R. St. Clair eds., 1979) 0. : 3 |

Lourie, The Mental Health of the Vietnam Refugees:

Memorandum to Rear Admiral S.G. Morrison,

Washington, D.C.: U.S. Department of Health,

Education and Welfare, National Institute of Men-

ES AE Ae Cee 14

Martin, Refugee Act of 1980, Its Post € Future, 1982

Mich. Y.B. Int’] Legal Stud., 115 (1982) | 1]

~]

Vv

TABLE OF AUTHORITIES—Continued

Pages

Mir-Djalali, The Fatlure of Language to Communi-

cate: A U.S.-lranian Comparatwe Study, 4 Int’!

J. of Intercultural Relations 307 (1980) 000 13

Pousada, Interpreting For Language Minorities in

the Court, Language in Public Life 186 (Alatis

RE RTE NR eR ye Tce 14

Roberts, The Exercise of Administrative Discre-

tion Under the Immigration Laws, 13 San Diego

L. Rev. 144 (1975) 7 iaiiatiekiainn

Sofaer, Judictal Control of Informal Discretionary

Adjudication and Enforcement, 72 Colum. L. Rev.

1293, 1341 (1972) ............

United Nations High Commissioner for Refugees,

UNHCR Handbook on Producedures and Cri-

teria for Determining Refugee Status {fj 189-194 .. 11

STATUTES AND CONGRESSIONAL REPORTS

Immigration and Nationality Act, § 243(h) sain 17

Immigration Reform and Contro! Act of 1983,

H.R. 1510, 98th Cong.. Ist Sess., 129 Cong. Rec.

lace 9

ee rine 17

28 U.S.C. § 1827 et seq. jaciaabeniaesiiigaieaiimninadiieaiatehiniiil 16

P.L. 95-539 § 1827(b) (Oct. 28, 1978) | ied 16

8 C.F.R. § 208.10(b) (1986) .... 9

8 C.F.R. § 208.5 (1985) eae es | 7

Select Committee on Immigration and Refugee

Policy, 96th Cong., 2d Sess., Semiannual Report

to Congress 202 (Comm. Print 1980) J

Subcomm, on Immigration, Citizenship and Inter-

national Law of the House Comm. on the Judi

eiary. Report on Haitian Emigration, 94th

Cong. 2d Sess. 5-9 (Comm. Print 1976) 9

STATEMENT OF INTEREST

The American Immigration Lawyers Association is a

national organization of practicing lawyers and law school

professors who practice and teach in the fields of Immigra-

tion and Nationality law. The Association has a direct

and serious interest in the development of Immigration

and Nationality law and in the case presently before the

Court. The standard of proof to be applied in imm‘gration

hearings concerning asylum under § 208 of the J-rmigration

and Nationality Act directly affects many of the Associa-

tion’s members and clients. The Association is submitting

its brief in support of the respondent’s position. All par-

ties have consented to the filing of the brief.

-O

INTRODUCTION AND SUMMARY OF ARGUMENT

This Court’s analysis in Mathews v. Eldridge, 424

U.S. 319 (1976) should be applied to establish the appro-

priate standard of proof for asylum claims under § 208

of the Immigration and Nationality Act. in Mathews,

this Court recognized that ‘‘ ‘[d]ue process, unlike some

legal rules, is not a technical conception with a fixed

content unrelated to time, place and circumstances.’ Caf-

eterta Workers v. McElroy, 367 U.S. 886, 895 (1961) ....

‘Due process is flexible and calls for such procedural pro-

tections as the particular situation deman 's.’ Morrissey

v. Brewer, 408 U.S. 471, 481 (1972).’’ Mathews, 424 U.S.

at 334.

This Court’s sensitivity to these concerns has resulted

in an analysis that recognizes the importance of minimiz-

2

ing the risk of erroneous decisions in cases with drastic

consequences. Addington v. Texas, 441 U.S. 418 (1979) ;

In Re: Winship, 397 U.S. 358 (1970); and Spetser v. Ran-

dall, 357 U.S. 513 (1958). Although immigration cases have

been characterized as civil proceedings, I.N.S. v. Lopez-

Mendoza, 104 S.Ct. 3479, 3484 (1984), this Court has rec-

ognized that fundamental liberty interests may be impli-

eated because deportation may lead to ‘‘persecution or

even death.’’ Bridges v. Wixon, 326 U.S. 135, 164 (1945).

Asylum determinations pose drastic consequences for an

applicant if the decisionmaker errs. Indeed, asylum pro-

ceedings are more akin to death penalty cases in their con-

sequences for erroneous decisionmaking than they are to

routine immigration proceedings.

The consequence of an erroneous decision in asylum

must be considered in the context of the likelihood that

such error would be committed. Both institutiona) and

cultural factors in the asylum process substantially in-

crease the likelihood of an erroneous decision. Among the

institutional factors which increase the likelihood of an

erroneous decision in asylum proceedings are the methods

for decisionmaking used by the immigration judges and

the State Department, the applicant’s difficulty in estab-

lishing his claim, and the politicization of the asylum

process. Cultural and linguistic factors also enhance the

potential for erroneous decisions. Perhaps more than any

other legal proceeding, the asylum decision critically rests

on an evaluation of the applicant’s credibility. Damaize-

Job v. I.N.S.. 787 F.2d 1332, 1336-37 (9th Cir. 1986). Yet

eultural differences so central to that credibility assess-

ment could not be greater than those between an immigra-

tion judge and a recently arrived applicant. The inter-

play between the asylum applicant’s culture and the court’s

perception of credibility, in both verbal and nonverbal

communication and conceptualization, increases the risk

of erroneous decisions.

In reaching its decision, the Court below recognized

that the burden of proof continues to remain with the

applicant. The potentially drastic effects of an erroneous

decision in asylum are mitigated, however, if this Court

provides a less onerous standard of proof which can com-

pensate for the institutional and cultural problems inher-

ent in the asylum process. The more generous standard

advanced by the court below is consistent with this Court’s

analysis in Mathews and its concern for minimizing the

risk of erroneous decisionmaking. The three pronged

Mathews test supports a more generous standard in the

asylum context. The asylum applicant’s interest is of

the highest order and may involve life itself. The risk of

an erroneous deprivation, by virtue of a higher standard

of proof, is considerable given the institutional and cultural

problems inherent in the asylum process. The government

will suffer no greater fiscal or administrative burden by

the use of a burden more sensitive to the special eviden-

tiary and cultural problems of proof faced by the asylum

applicant. The decision of the lower court, therefore, is

supported by this Court’s determination in Mathews and

its continuing coucern for the suppression of error in the

administrative process, particularly when the consequences

of an erroneous decision are so substantial.

co)

ARGUMENT

This Court has repeatedly expreszed its concern that

the standard, as well as, the burden of proof should be

allocated in a manner consistent with the risk and conse-

quence of error in the decisionmaking process. <Adding-

ton v. Texas, 441 U.S. 418 (1979); In Re: Winshin, 397

U.S. 358 (1970); Speiser v. Randall, 357 U.S. 513 (1958).

In Addington, this Court recognized that:

The function of a stancard of proof... is to ‘instruct

the fact-finder concerning the degree of confidence

our society thinks he should ‘ave in the correctness

of factual conclusions for a particular type of adjudi-

eation.’ In Re: Winship, 397 U.S. 358, 370 (1970)

(Harlan, J., coneurring). The standard serves to al-

locate the risk of error between the litigants and to

indicate the relative importance attached to the ulti-

mate decision.

Addington, 441 U.S. at 423.

The Court further observed that ‘‘'i]n considering

what standard should govern in a civil commitment pro-

ceeding, we must assess both the extent of the individual’s

interest .. aad the state’s interest .... More-ver, we

must be mindful that the function of the legal process is

to minimize the risk of erroneous decisions.’’ Jd. at 425.

The Court’s consideration of the questions of risk

and consequence of error is consistent with the long-stand-

ing view that ‘‘[d]ue precess ... is not a technical con-

ception with a fixed content unrelated ‘o time, place ani

circumstances,’’ Cafeteria Workers v. McHKlroy, 367 U.S.

at 895, and that due process ‘‘calls for such procedural

protections as the particular situation demands.’’ Mor

rissey v. Brewer, 408 U.S. at 481. This view of due pro

AR ew ow

5

cess and the concern that the standard of and procedures

for review consider the possibilities of erroneous depriva-

tions have been crystalized in Mathews v. Eldridge, 424

U.S. 319 (1976). To determine the content of due process,

including the appropriate standard of proof in the admin-

istrative context, the Court must consider three factors:

First, the private interest thai will be affected by the

official action; secoxvd, the risk of an erroneous de-

privation of such interest through the procedures

used, and the probable value, if any, of additional or

substitute procedural safeguards; and finally, the

Government’s interest, including the function involved

and the fiscal and administrative burdens that the

additional or substitute procedural requirement would

entail.

Mathews v. Eldridge, 424 U.S. at 335.

A. The Private Interest Affected.

The private interest at stake is paramount. Other

than capital cases where the death penalty is a potential

outcome, no other litigation, except asylum, subjects an

individual to such drastic consequences if an erroneous

decision is made. In asylzm adjudication, the private in-

terest factor implicates life or de: th stakes that are the

highest possible,' No other ‘‘civit’’ litigation potentic!.,

'H.R.C. v. Civiletti, 503 F. Supp. 442 (S.D. Fla. 1980), aff’d as

modified sub nom 4.R.C. v. Smith, 676 F.2d 1023 ‘Sth Cir.

1982); Orantes-Hernandez v. Smith, 541 F.Supp. 351, 377 (C.D.

Cal. 1982); Nunez v. Bolden, 537 F.Supp. 578, 586 (S.D. Tex.),

appeal dismissed, 692 F.2d 755 (5th Cir. 1982); See also, Coriolan

v. I.N.S., 559 F.2d 993 (5th Cir. 1977); ABA Section of Individual

Rights and Responsibilities, Report to the House of Delegates,

3-13 (Mimeo Aug. 1982). (Seeking ABA efforts to assure that im-

migration reform legislation would provide extensive procedural

protection for asylum applicants based on observation that asv-

lum may be a “life or death” matter).

subjects an individual to torture or summary execution

if a case is wrongfully denied. The courts have repeat-

ealy recognized che drastic consequences of an erroneous

decision. H.R.C. v. Civiletti, 503 F.Supp. 442, 454-455

(S.D. Fle. 1980), aff’d as modified sub nom. H.R.C. v.

Smith, 676 F.2d 1023 (5th Cir. 1982).

In the immigration context, this Court has not hesi-

tatea to adjust the standard of proof to the potential

drastic consequences of an erroneous decision. Althor rh

deportation proceedings are generally civil in nature,

N.S. v. Lopeze-Mendoza, 104 S.Ct. 3479, 3484 (1981),

this Court has required the government to meet a higher

standard of proof even in deportation proceedings, zecog-

nizing the serious implications of deportation. In Woodby

v. I.N.S., 385 U.S. 276 (1966), the Court established the

requirement that the INS must prove deportebility by

‘‘clear, unequivocal and convincing evidence.’’ This Court

reasoned that while a deportation proceeding is noi a

criminal prosecution:

iI lt does not syllogistically follow that a person may

be banished from this country upon no higher degree

of proof than applies in a negligence case. This Court

has not closed its eyes to the drastic deprivations that

mav follow when a resident of this country is com-

pelled by our Government to forsake all the bonds

formed here and go to a foreign land where he often

has no contempovary identification.

Wvodby, 385 U.S. at 285.

Moreover, this (ourt has recognized that special due

process interests are at stake in deportation cases were

‘‘Tr]Jeturn to [one’s] native land may result in.. . perse-

cution and even death.’’ Bridges v. Wiaxon, 326 U.S. loo,

164 (1945). See also, Wong Yang Sung v. McGrath, 339

U5. 33, 49 (1950); H.R.C. v. Civilett’, 503 F.Supp. 442,

459 (S.D. Fla. 1980) .°‘Tn a very graphic sense the politi-

cal asylum applicant who fears to return to his homeland

because of persecution has raised the spectre of truly se-

vere deprivation of life, liberty and property; in this case

harassment, imprisonment, beating, torture and death.)

Because the private interest that will be affected by

an erroneous decision is so substantial, the first prong of

the Mathews test supports a more generous standard than

that of ‘‘clear probability.’ ”

B. The Risk Of An Erroneous Deprivation Of Such

Interests Through The Procedures Used.

The procedures employed in the adjudication of asy-

lum claims have notable institutional and cultural prob-

‘ems.’ She deficiencies in the asy!um process attributable

to institutional and cultural factors enhance the likelihood

of error in the asylum process.

Immigration hearings on asylum claims are fraught

with procedural difficulties. There are few operative evi-

dentiary rules governing immigration proceedings and, at

present, there are no rules of court. Immigration judges

have ‘‘broad .uthority for an active or inquisitorial role

.... The statute expressly authorizes them to present or

*Unlike the finding of deporiability itself, the burden to prove

asylum, even with the more generous standard argued for here,

will remain with the applicant. 8 C.F.R. § 208.5 (1986).

*Kurzban, Restructuring the Asylum Process, 19 San Diego t

Rev., 91, 98-110 (1981).

receive evidence, and also to interrogate, e. ne and

cross-examine witnesses, including the alien res,..ndent.’’

Aleinikoff and Martin, Immigration Process and Policy

88 (1985). This non-adversarial model has been criti-

cized particularly because it takes place in a setting where

the decisionmaker ‘‘by training and background may be

biased toward enforcement and skeptical of the alien’s

claim.’’ Jd.; See, Developments in the Law: Immigration

Policy and the Rights of Aliens, 96 Harv. L. Rev. 1286,

1363-66 (1983); M. Roberts, The Exercise of Administra-

tive Discretion Under the Immigration Laws, 13 San

Diego L. Rev. 144, 147-48 (1975). Furthermore, this ad-

judicatory process has been governed by a system of

‘‘secret law’ and ‘‘negative jurisprudence’ where no

cecisions of the immigration judges are officially pub-

lished and the vast majority of the Board of Immigration

Appeals decisions are unpublished. All these decisions,

therefore, are non-precedential.

The task of adjudicating an asylum claim is further

complicated for immigration judges because it requires

them to evaluate the political and economic conditions

that the applicant has fled. An inquiry of this sort ob-

viously calls for a type of judgment that exceeds the typi-

eal judicial function; it requires the making of moral and

political judgments for which there are no manageable

“Davis, Administrative Law: Cases-Text-Problems 86 (1965).

‘Sofaer, Judicial Control of Informal Discretionary Adjudication

and Enforcement, 72 Cclum. L. Rev. 1293, 1341 (1972).

standards. This problem is exacerbated by the lack of

training or the development of expertise by the adjudi-

eators on the political and social conditions in countries

or issues concerning international law and foreign af-

fairs.’

The procedural and institutional problems associated

with asylum adjudications are further complicated by re-

liance upon State Department recommendations concern-

ing political asylum. 8 C.F.R. § 208.10(b) (19°5) (BHRHA

opinion, unless classified . . . will be made part of the

record... ). Congress has recognized, howcver, the long-

standing inability of the State Department, even with

very limited numbers of applications, to make a mean-

ingful inquiry into an asylum claim.* The present system

theoretically relies upon American embassies throughout

the world to verify facts alleged by individual asylum

‘In recognition of this problem, the Select Commission on Im-

migration and Refugee Policy recommended that area experts

be appointed to provide information on conditions in the source

country and that carefully drawn profiles be used in order to

promote uniformity and equity of initial decisions. Select Com-

mittee on Immigration and Refugee Policy, 96th Cong., 2d Sess.,

Semiannual Report to Congress 202 (Comm. Print 1980) (herein-

after referred to as ‘Select Commission Report’) at 43.

‘Both the Senate and t.ouse in previous versions of the current

immigration reform legislation sought to alleviate this problem

by requiring soecial training for immigration judges. See lmmi-

gration Reform and Control Act of 1983, H.R. 1510, 98th Cong.,

Ist Sess., 129 Cong. Rec. 346-86 (1983). Current proposed legis-

lation, however, does not contain any provisions concerning

this issue; nor does it address any issues concerning political

asylum.

’Subcomm. on Immigration, Citizenship and International Law

of the House Comm. on the Judiciary. Report on Haitian Emi-

gration, 94th Cong., 2d Sess. 8-9 (Comm. Print 1976).

me 2

10

applicants. Due to limited resources, however, the de-

terminations are often left to the desk officer at the State

Department or the Bureau of Human Rights and Humani-

tarian Affairs, or turn on the vicissitudes of the State

Department’s general policy toward a particular country.

In short, the State Department’s recommendation often

reflects a political judgment, contrary to Congress’ in-

tent? rather than an investigation of individual facts.

Zamora v. I.N.S., 534 F.2d 1055, 1059 (2d Cir. 1976);

Aleinikoff, Political Asylum in the Federal Republic of

Germany and the Republic of France: Lessons for the

United S‘ates, 17 U. Mich. J.L. Ref. 183, 236 (1984).

As a result, the courts have routinely questioned and

criticized the impartiality and utility of State Department

reports in the asylum process." In Kasrave »v. I.N.S., 400

F.2d 675, 677 n. 1 (9th Cir. 1968), the Circuit Court found

the competency of the State Department reports highly

questionable in light of the politicization of the process:

Such letters from the State Departinent do not carry

the guaranties of reliability which the law demands

of admissible evidence. A frank, but official, discus-

sion of the political shortcomings of a friendly nation

is not always compatible with the high duty to main-

tain advantageous diplomatic relations with nations

throughout the world .... No hearing officer or

court has the means to know the diplomatic necessities

Anker & Posner, The Forty Year Crisis: A Legislative History

of the Refugee Act of 1980, 19 San Diego L. Rev. 9 (1981);

Helton, Political Asylum Under the 1980 Refugee Act: An Ur-

fulfilled Promise, 17 U. Mich. J.L. Ref. 243 (1984).

17amora v. I.N.S., 534 F.2d 1055, 1059 (2d Cir. 1976); Hossein

Mardi v. I.N.S., 405 F.2d 25, 27 (9th Cir. 1968); Kasravi v. I.N.S.,

400 F.2d 673, 677 n. 1 (9th Cir. 1968)

PCRS rer

11

of the moment, in the light of which the statements

must be weighed.

These institutional and procedural defects are par-

ticularly problematic because an asylum applicant suffers

under special disabilities that make it extremely difficult

te present effectively his claim. Both the United Nations

High Commissioner for Refugees (UNHCR)" and our

own federal courts’ have recognized the extreme problems

involved in establishing an asylum claim for an applicant

who finds himself ‘‘in an alien environment and may ex-

perience serious difficulties, technical and psychological

in submitting his case to the authorities .. . often in a lan-

ruage not his own.’’?

In addition to the institutional impediments to the

establishment of procedures which diminish the risk of

error in the immigration court syste.n, the fact-finder is

faced with serious cross-cultural obstacles in determining

asylum claims and, particularly, in assessing an appli-

eant’s credibility. Because of the inquisitorial nature of

the asylum process as well as the broad unguided dis-

cretion of the immigration judge, an asylum claim crit-

ically turns or the judge’s perception of the applicant’s

credibility."

"United Nations High Commissioner for Refugees, UNHCR

Handbook on Procedures and Criteria for Determining Refugee

Status |] 189-194 (hereinafter cited as “Handbook”).

'2Coriolan v. I.N.S., 559 F.2d 993, 1004 (5th Cir. 1977); Zamora v.

I.N.S., 534 F.2d at 1062; See, also, Matter of Martinez-Romero, 18

1&N Dec. 75, 78 (BIA 1981).

Handbook at 1790.

4Martin, Refugee Act of 1980, Its Past & Future, 1982 Mich. Y.B.

Int’l Legal Stud., 115 (1982) (“Bonafide applicants are unlikely

(Continued on following page)

An immigration judge’s comprehension of an appli-

eant’s testimony, however, is regularly hindered, and even

distorted, by cross-cultural differences that often work

to the asylum seeker’s disadvantage. Even under the best

circumstances, these problems can hinder the fact finding

proccss.'5 There are a number of obstacles to undistorted

interaction in the asylum adjudication process resulting

from cross-cultural misunderstandings, including ‘‘ power-

less speech,’’ the interpreter, different perceptions of time,

and the cultural relativity of concepts of truth and false-

hood.’® A finding of lack of credibility can result from,

for example, the applicant’s hesitation in speech. ‘‘Power-

less speech’’ often occurs among ‘‘former members of po-

litical parties and groups which [were] illegal in their

home countries and where acti ‘ities were largely covert.’’"’

Eye contact, demeanor, tone of voice, assertiveness, direct

‘Continued from previous page)

to have left their homelands with corroborating documentation

in hand or with supporting witnesses. Asylum determinations,

therefore, revolve critically around a determination of the ap-

plicant’s credibilit .") Comment, Ecumenical, Municipal and

Legal Challenges to United States Refugee Policy, 21 Harv. C.R.-

C.LL. Rev. 493, 532-535 (1986) (citing the credibility-based and

fact-dependent nature of asylum cases) ; Damaize-Job v. 1.N.S.,

787 F.2d 1332, 1336-37 (9th Cir. 1986); Arguetta v. I.N.S., 759

F.2d 1395 (9th Cir. 1985). See also, Coriolan v. I.N.S., 559 F.2d

993, 999 (Sth Cir. 1977).

SKaelin, Troubled Communication: Cross-Cultural Misunder-

standings in the Asylum Hearing, No. 2, 20 Int’! Migration Rev.

230 (1986).

16id. at 231. See also, Comment, Ecumenical, Municipal and

Legal Challenges to United States Refugee Policy, 21 Harv. C.R.-

C.L.L. Rev. 493, 528-29 (1986).

\7id. See generally Latin-American Bureau, Haiti: Family Bus-

iness (1985) (Danger of direct and open speech with govern-

mental authorities in dictatorial societies).

13

and unceremonious style of speech are all traits which

help establish credibility. All of these traits, however, are

culturally relative. E. Lind and W. O’Barr, The Social

Significance of Speech In the Courtroom, Language and

Social Psychology (H. Giles and R. St. Clair eds., 1979).

These factors have been identified by anthropologists and

sociologists as generally characteristic of aliens and pro-

foundly affecting the outcome of either legal proceedings

or of cross-cultural communications.'® An asylum appli-

eant is at a distinct disadvantage when he is being judged

for credibility if he is unaware of the social customs of his

host society. Such an individual unwittingly communi-

cates a non-credible image solely because of his nonverbal

actions :

People who are new to a culture, or subculture—for-

eign students, tourists, immigrants, refugees, research-

ers—are at least for a period in the posi:ion of being

unskilled in their new environment. Though usually

socially skilled in their own culture, they are now

forced into the frustrating and embarrassing role of

being socially unskilled and inadequate in the new

culture. They often do not know the language, they

are bewildered by the different social routines... .

They are unaware of the implicit messages they give

or receive by their own or others’ nonverbal com-

munication; they are astounded by different conven-

tions of self-preservation, self-disclosure, assertive-

\8/d. Danet, Language in the Courtroom, Language, Social and

Psychological Perspectives 367-376 (Giles ed. 1980); Danet, Lan-

guage and the Legal Process, 14 Law & Soc’y Rev., 447 (1979);

Mir-Djalali, The Failure of Language to Communicate: A U.S.-

lranian Comparative Study, 4 Int'l J. of Intercultural Relations

307 (1980); Furnham & Bochner, Social Difficulty in a Foreign

Culture: An Empirical Analysis of Culture Shock, Cultures in

Contact 190 (Bochner ed. 1982); Gumperz, Discourse Strategies

(1982).

14

ness, and friendship formation. In other words they

suffer from what Oberg (1960) called ‘culture shock.’

M. Argyle, A. Furnham and J. Graham, Social Situations,

344 (1981).% Culture shock operates most potently ‘* [t]he

greater the disparity between the host society and the so-

journers culture...’’ A. Furnham and S. Bochner, supre

at 190. Such is the condition for the vast majority of

asylum applicants who come from the developing nations

and are applying for asylum in the West. Kaelin, note 15

at 232.

Linguistic and translation problems aisu enhance the

risk of an erroneous decision in the asylum context. Be-

cause of significant linguistic misunderstanding, officials

frequently decide an applicant is lying, covering up, or

exaggerating, although the applicant is doing his best to

honestly provide all the information which he thinks is

requested. A. Pousada, Interpreting For Language Minor-

19Asylee exodus alone is a traumatic experience. It often occurs

under complete panic conditions. Even when long-range plan-

ning occurs, exodus is stil! usually clandestine, dangerous, and

with family members left behind or lost en route. The result:

asylees are left “midway to nowhere.” Kunz, E.F., The Refugee

in Flight: Kinetic Models and Forms of Displacement, 7 Int'l

Migration Rev. 125-146 (1973). The emotional burdens carried

by the asylees are often reflected not only in a general sense of

malaise, fatigue and psychosomatic complaints, but as evidences

of lethargy, withdrawal and seclusion, huddling, expressions of

melancholy, and crying in private. Segal, Julius and Norman

Lourie, The Mental Health of the Vietnam Refugees: Memoran-

dum to Rear Admiral $.G. Morrison, Washington, D.C.: U.S.

Department of Health, Education and Welfare, National Institute

of Mental Health (1975). Such orientation problems can have

strong adverse consequences on the manner in which the ap-

plicant’s claim is perceived by the judge. See Austerlitz, The

Use of Psvchological Evaluations in Political Asylum Hearings,

15 Immigration Newsletter, No. 3 (1986). (Effects on asylees’

post-traumatic shock syndrome on claims for asylum.) See also

D. Haines, Refugees in the United States (1985).

15

ities in the Court, Language in Public Life 186 (Alatis and

Tucker eds. 1979). Additional confusion results from mis-

interpretation of concepts such as self” and family,”' and

the filtering of these concepts through different cultural

value systems.”

These linguistic problems are magnified by problems

of translation. One of the greatest misconceptions in the

field of linguistic translation is that if a person is bilingual

that person is able to interpret. Seltzer v. Foley. 502 F.

Supp. 600, 607 (S.D.N.Y. 1980). Interpreting in the courts

requires close attention to the specific forms of the words

as well as their meanings. Technical and legal terms for

which there may be no exact linguistic equivalents in the

other language have to be dealt with. Consistency of in-

terpretation of key words is vital to the understanding of

legal arguments. In addition, there are questions of lan-

guage and dialect variation. The interpreter must be able

to understand and communicate the subtlety of phonolog-

ical, lexical, and syntactic variation. Pousada, supra, at

199.

In recognition of the important role of translators in

the courtroom, Congress adopted the Court Interpreters

2°To westerners, the self is a dynamic center of motivation, judg-

ment and action. Conversely, many asylum applicants come

from group-oriented societies where the center of sccial life is

the family or community. C. Geertz, The Interpretation of Cul-

tures, 59 (1973).

21C_ Charles, A Panorama of Haitian Culture Paper presented to

Bilingual Program Dade County, Florida Public Schools (June

1986).

See, e.g., C. Huntington, “Language of Jurisprudence,” Lan-

guage: Its Meaning and Function (R. Ashen ed. 1971); W. Good-

enough, Culture, Language and Society 63 (1981).

16

Act in 1978. 28 U.S.C. § 1827 et secq.”’ This Act took away

the trial judges’ ‘‘wide discretionary powers’’ in deter-

mining when and whom to appoint as an interpreter.% The

determination of language proficiency is a complex mat-

ter. On motion of counsel, a judge must appoint a certi-

fied interpreter whose qualifications have been determined

by objective standards. The Act, however, is directed

solely to proceedings in federal courts and does not in-

clude immigration proceedings and asylum hearings, 4a!-

though experts have acknowledged that competent inter-

pretation is most needed in civil and administrative pro-

ceedings. Pousada, supra at 121. In immigration pro-

ceedings there are no regulations governing selection of

translators. The result has been non-simultaneous,”*

flawed translations*® in asylum proceedings.

231 jnder Section 1827(b) of P.L. 95-539 (Oct. 28, 1978), the Di-

rector of Administrative Office of the United States Courts is

mandated to “prescribe, determine, and certify the qualifications

of persons who may serve as certified interpreters in courts of

ihe United States in bilingual proceedings . . .” The Act provides

that the presiding judicial officer shall use the services of a

certified interpreter in all criminal and civil actions initiated

by the United States in a United States district court.

Congressional Record-House: October, 1978, Pg. 34880. Con-

gressman Fred Richmond, author and sponsor of the bill, con-

cluded that it is not an unreasonable thing to guarantee a person

at trial the right to understand all the proceedings, adding that

“In this great country of ours, the fact that they must even make

this request is a disgrace.” See generally, Annot., Right of Ac-

cused to Have Evidence or Court Proceedings Interpreted, 36

ALR 3rd 276 (1971).

Matter of Exilus. 18 1&N Dec. 276 (BIA 1982) (Simultaneous

translations not required in asylum hearings).

26Augustin v. Sava, 735 F.2d 32, 35-37 (2d Cir. 1984).

Ee

ee a ne eee

7 Oe ET EY Se

The structural problems inherent in the current asy-

lum adjudication process, the cultural and linguistic diffi-

culties, the applicant’s own difficulty and frequent in-

ability to obtain information to support his claim for

asylum, all enhance the risk of an erroneous decisio1. ‘n

the asylum proceeding. The establishment of a more

generous standard in asylum will serve to allocate the

risk of error in a more balanced manner to compensate

for the numerous deficiencies in the present asylum process.

C. The Government’s Interest.

The utilization in an asylum proceeding of a less

onerous standard than that employed in other immigration

proceedings does no harm to any governmental interest.

Immigration judges already utilize different standards in

different types of hearings.2” Indeed, immigration judges

are familiar with the subtleties of shifting burdens of

proof.% The use of one standard for political asylum and

another for withholding of deportation under 4 243(h) of

the Immigration and Nationality Act wouid not, therefore,

pose any additional administrative burdens on the agency.

Financially, no additional costs would be imposed by

utilization of a more generous standard for asylum. More-

over, the utilization of a less onerous standard in this

eontext does not require the establishment of any new

21Compare, determination of deportability by the “clear, un-

equivocal and convincing” standard with the determination of

excludability where the excludable alien has the burden of

proving clearly and beyond a doubt that he is entitled to enter

the United States. 8 U.S.C. § 1325(b).

288 U.S.C. § 1361; Matter of Benitez, |.D. #2979 (BIA 1984).

18

procedures within the agency, the establishment of new

organizations or even hiring of any new personnel. In

short, it places no additional burdens on immigration judg-

es adjudicating asvlum claims.

ncdnnitiiemaimratn

CONCLUSION

This Court has repeatedly expressed its concern for

minimizing the risk of error when the consequences of

error are great. It is beyond cavil that an error in the

asylum adjudications context may result in the most serious

deprivation possible—life itself. The current procedures

employed in the asylum process and the standard of proof

urged by the government do not adequately safeguard

against the potential risk of error. he utilization of a

more generous standard in asylum will help to minimize

the risk of error and will not result in any additional fiscal

or administrative burdens. Under these circumstances,

this Court’s analysis in Mathews strongly suppor‘s the

use of a more generous standard of proof in asylum urged

by the lower court and advanced by the respendent here.

Respectfully submitted,

KurRZBAN, KurzBAN, WEINGER AND

HoLTSsBERG

aza 2650. Second Floor

2650 S.W. 27th Avenue

Miami. Florida 33133

(5.05) /444-0060

By: Ira J. KuRzBAN

DeBpoRAH ANKER, Esq.

1545 Massachusetts Ave., L-160

Cambridge. Massachusetts 02138

C .zeRYL LITTLE

Nrets FRENZEN, Esq.

Haitian Refugee Center, Ine

32 N.E. 54th Street

Migami. Florida 33137