Matter of Exame
18 I&N Dec. 303
Decision date: 1982-09-03
Interim Decision #2920
MATTER OF EXAME
In Exclusion Proceedings
A-26007788
Decided by Board September 3, 1982
(1) Background evidence relating to general or specific conditions in the country to which
an alien's persecution claim is directed is 'admissible in proceedings to adjudicate an
asylum application so long as it is relevant, material, and noncumulative. Accordingly,
the immigration judge's categorical rejection of background evidence relating to general
conditions in Haiti improperly precluded the applicant from making a full and fair
presentation of his persecution claim, thus necessitating a remand for further proceed-
ings and further consideration of the applicant's asylum application.
(2) While an alien is entitled to have a persecution claim evaluated in the context of
whatever admissible evidence he desires to submit, such general background evidence
is usually not sufficient per se to establish a claim of persecution. The ultimate test is
whether objective evidence of record is significantly probative of the likelihood of
persecution to this particular alien, sufficient to establish a well-founded fear of per-
secution.
(3) Recusal of an immigration judge in exclusion proceedings is mandated by section 236
of the Immigration and Nationality Act. 8 U.S.C. 1226, only where the immigration
judge has previously participated in investigative or prosecuting functions involving the
particular alien applicant presently before him. The immigration judge's past partici-
pation as an Immigration and Naturalization Service general (trial) attorney in other
Haitian asylum cases or as co-counsel for the Government in federal court proceedings
involving similar Haitian asylum applicants does not require his disqualification in these
proceedings because the applicant has not established that the immigration judge par-
ticipated in previous investigative or prosecuting functions involving this particular ap-
plicant, nor that the manner in which the immigration judge conducted this proceeding
demonstrates bias or prejudice against the applicant such that he was deprived of a
constitutionality fair hearing.
ExchtlhaRLE: Act of 1952—Sec. 312(a)(20) 18 U.S.C. I182(aX20)1--Immigrant not in
possession of valid immigrant visa
"
ON BEHALF OF APPL1cANT:
Vera Weisz, Esquire
Haitian Refugee Center, Inc.
ON BEHALF F SKI:AWE:
Gerald Hurwitz
Appellate Ti ial Attorney
BY: Milhollan, Chairman, Maniatis, Dunne. Mon-is. and .Vacca. Board Members
This matter is before the Board on appeal from the immigimtionjudge's
decision of November 3, 1981, finding the applicant excludable from
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Interim Decision #2920
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, 8 U.S.C. 1158.' The record
will be remanded.
The applicant is a 50-year-old native and citizen of Haiti who arrived
in the United States on July 27, 1981, by boat near Miami, Florida. Ile
had no documents with which to enter the United States and was held in
detention by the Service. On July 29, 1981, he was served with a Form
I-122, "Notice to Applicant for Admission Detained for Hearing Before
Immigration Judge," alleging that he was exchidable from admission to
the United States under section 212(a)(20) of the Act as an immigrant
not in possession ofa valid immigrant visa. Following his initial two
hearings before the immigration judge which were continued to permit
the applicantjto have counsel present and to submit an asylum application,
the applicant filed a Farm 1-589, "Request for Asylum in the United
States," on September 21, 1981.' Upon receipt of an advisory opinion
from the United States Department of State, Bureau of Human Rights
and Humanitarian Affairs (131IRHA), 3 the exclusion hearing was resumed
on November 3, 1981. The immigration judge found the applicant exclud-
able as indicated above and denied his asylum application.
The record clearly establishes and the applicant does nbt contend
otherwise that, inasmuch as he has no documents with which to legally
enter the United States, he is excludable under section 212(a)(20) of the
Act. The only issue presented on appeal is whether the applicant's asy-
lum application was properly denied.
It should be emphasized that a principal focus of our consideration of
' this appeal is whether the applicant was afforded a full and fair opportu-
nity to present the merits of his asylum application and establish his
claim of having a well -founded fear of persecution in Haiti. After reviexv
of the record, we are persuaded that the applicant has not had such an
opportunity and therefore a remand for further proceedings is required.
We base our conclusion that the applicant was denied the opportunity
to fully present his asylum claim upon the immigration judge's categori-
cal rejection of background information relating to general conditions in
Haiti. The applicant offered such evidence as various reports by Amnesty
International and the Lawyers Committee for International Human
Rights, Country Reports on Human Rights Practices from the United
' 8 C.F.R. 208.3(6) 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.& C. 1253(h).
Accordingly, jurisdiction over the applicant's asylum request lies properly and exclu-
sively with the immigration judge in these exclusion proceedings. See Matter of Dee,
Interim Decision 2512 (BIA 1582).
SeiS
OAT and 208110(b).
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Interim Decision #2920
States Department of State, transcripts of court testimony of expert
witnesses and Haitian individuals, and the testimony or affidavits of
alleged corroborative witnesses and/or experts on conditions in Haiti.
The immigration judge denied admission of this evidence, reasoning
that it did not specifically identify or name the applicant. We find this
categorical exclusion of background evidence to have been in error. '
Background evidence relating to general or specific conditions in the
country to which an alien's persecution claim is directed is admissible in
proceedings to adjudicate his asylum application so long as it is relevant,
Material, and noncumulative. See Matter of Martinez-Romero, 18 I&N
Dec. 75 (BIA 1981); Matter of McMullen, 17 I&N Dec. 542 (BIA 1980),
rev'd on. other grounds, 658 F.2d 1312 (9 Cir. 1981); Matter of
Williams, 16 I&N Dec. 697 (BIA 1979); Matter of Chumpitazi, 16 I&N
Dec. 629 (BIA 1978); Matter of Joseph, 13 I&N Dec. 70 (BIA 1968); see
also 8 C.F.R. 208.10; Coriolan v. INS, 559 F.2d 993 (5 Cir. 1977).
While such general background material usually would not be sufficient
per se to establish the applicant's persecution claim,' nevertheless, he is
entitled to have that claim evaluated in the context of whatever admissi-
ble evidence he desires to submit. Inasmuch as the immigration judge
improperly denied admission of the background evidence described above
and thereby precluded the applicant from making a full and fair presen-
tation of his persecution claim, the record must be remanded,to the
immigration judge for a new hearing and further consideration of the
applicant's asylum application.'
The applicant also has raised numerous other objections to the pro-
ceedings below. In view of our decision to remand the record, however,
we need not reach the merits of all of these other objections. Such issues
pertaining to the adequacy of the opportunity to prepare and present
the request for asylum are rendered moot by this disposition. Neverthe-
less, we do find it necessary to address the following few matters.
The applicant argues that the4immigration judge erred by, failing to
recuse or disqualify himself because at one time he served as a General
Attorney (Trial Attorney) for the Service and participated in earlier
Haitian asylum cases and/or served as co-counsel for the Government in
4 The immigration judge should give this and all other evidence its appropriate weight.
The ultimate test remains, of course,whether objective evidence of record is significantly
probative of the likelihood of persecution to this particular individual alien, sufficient
to establish a well-founded fear of persecution in Haiti. See sections 101(a)(42)(A) and 208
of the Act.
We are aware that this background evidence is extremely voluminous. It also appears
that most if-not all of this evidence has been sought to be introduced in many other imses
involving Haitian asylum applicants, which number in the hundreds. For the convenience
of both the aliens and the Service, as well so to facilitate appellate review, should such be
necessary, we express the hope that the parties can agree to , a mechanism to simplify the
admissie and consideration of this common background evidence.
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Interim Decision #2920
federal court proceedings involving similar Haitian applicants, and
because the immigration judge was otherwise biased against the
applicant. We do not so find.
In exclusion proceedings, motions for recusal are governed by section
236(a) of the Act, 8 U.S.C: 1226, and the constitutional due process
requirement that the hearing be before a fair and impartial arbiter.
Section 226(a) provides, in pertinent part, that no immigration judge
"shall conduct [an exclusion] proceeding in any case . . . in which he shall
have participated in investigative functions or in which he shall have
participated . . . in prosecuting functions." We interpret this section as
precluding an immigration judge from hearing a, case involving a specific
applicant for admission if the immigration judge has participated in
investigative or prosecuting functions involving that particular case.
The words "in any case" may not be construed as referring generally to
cases similar to those in which an immigration judge may have been
previously involved in investigative or prosecuting functions. Inasmuch
as it has not been established that the immigration judge participated in
any previous investigative or prosecuting functions involving the case
before us, we do not find that he was precluded from hearing this case
by the provisions of section 236(a) of the Act.
As to whether the applicant has demonstrated that he was deprived
of a constitutionally fair proceeding, we note initially that an immigra-
tion judge's rulings in the same or similar cases do not ordinarily form a
basis upon which to allege bias. Moreover, an applicant is not denied a
fair hearing merely because the immigration judge has a point of view
about a question of law or policy. Nor does the fact that the immigration
judge may have previously participated in investigative or prosecuting
functions in similar proceedings prior to becoming an immigration judge
provide a basis upon which to establish a disqualifying bias. As a general
rule, in order to warrant a finding that an immigration judge is disquali-
fied from hearing a case it must be demonstrated that the immigration
judge had a personal, rather than judicial, bias stemming from an
"extrajudicial') source which resulted in an opinion on the merits on
some basis other than what the immigration judge learned from his
participation in the case. An exception to the general rule that bias must
stem from an "extrajudicial" source may arise where "such pervasive
bias and prejudice is shown by otherwise judicial conduct as would con-
stitute bias against a party." Davis v. Board of School Comm'rs, 517
F.2d 1044(5 Cir. 1975), cert; denied, 425 I.J.S. 944 (1976).
We have reviewed the record in its entirety and do not find sufficient
support for the applicant's claim of bias by the immigration judge to
warrant the conclusion that a fair hearing required his disqualification.
We do not find that the immigration judge's previous involvement in
similar cases as a Government attorney prior to his appointment as an
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Interim Decision #2920
immigration judge or the manner in which he conducted the proceedings
in this case demonstrates a bias or prejudice mandating his recusal.
The applicant also objects to the denial of his motions for "simultaneous
translation" of the exclusion hearing and for the taking of interrogato-
ries or depositions from BEIRHA officials. We find no error in the denial
of thege motions. See Matter of Exilus, 18 I&N Dec. 276 (BIA 1982).
Similarly, we find that the immigration judge's denial of the motion to
change venue was correct. See Matter of Alphonse, 18 I&N Dec. 178
(BIA 1981).
In conclusion, we find that the applicant was not afforded a full and
fair opportunity to present his persecution claim because of the immigra-
tion judge's categorical refusal to admit background evidence pertaining
to conditions in Haiti. Therefore, the record will be remanded for fur-
ther proceedings and further consideration of the applicant's asylum
application to determine whether he has established a well-founded fear
of persecution in Haiti.
-
ORDER: The record is remanded to the immigration judge for
further proceedings and further consideration of the applicant's applica-
tion for asylum under section 208 of the Act and for entry of a new
decision.
307