Marincas v. Lewis

nothing We have to add to the district opinion point except

court’s on this to ob-

serve that it would be remarkable to hold reproduc-

that a state’s failure to subsidize a short,

tive choice burdens that choice. implications

there are no constitutional when pay parents

the state does not a benefit to pay

who have a child that it would

parents who did not have a child. Rather burdening procreative

than choice class,

plaintiff section 3.5 is neutral with re-

spect to that choice.

Lastly, Jersey’s the court found that New

welfare rationally reform efforts are related legitimate

to the “altering state interests of cycle dependency of welfare that it has engenders recipi-

determined AFDC in its promoting

ents as responsi- well as individual

bility family stability.” Id. at 1015. We

see no reason to holdings disturb these court,

district and will therefore affirm its

decision as described herein.

V. CONCLUSION reasons, foregoing

For all the we will af- judgment

firm the of the district court. MARINCAS, Appellant,

Mircea LEWIS,

Warren District Director of the Immigration and Natural Service; Department

ization U.S. of Jus

tice; Immigration and Naturalization

Service; Reno, Attorney General; Janet Meissner, Commissioner;

Doris John

Lima, Director of Esmor Detention Fa

cility; Services, Sea-Land Inc.

No. 95-5424. Appeals,

United States Court of

Third Circuit.

Argued March 1996. Aug.

Decided (argued), A. Robert

Robert A. Perkins IL, Associates, appel- Chicago, for Perkins & lant. (argued), Assistant U.S.

Daniel J. Gibbons Attorney, Hochberg, United States Faith S. Newark, NJ, appellees. for Attorney, Judy (argued), Lucas Gutten- Rabinovitz Parrent, Rights Immigrants Pro- tag, Ann Liberties Union Foun- ject, American Civil curiae, dation, City, amici York for New Wenk, Liberties Un- American Civil Marsha Newark, NJ, Jersey, of counsel. ion of New McKAY,* BECKER, McKEE and Before: Judges. Circuit COURT OPINION OF THE McKAY, Judge. Circuit Marineas, Petitioner-Appellant Mircea an status, stowaway and for asylum by Immigra- political was denied (INS). The tion and Naturalization Service (BIA) Immigration Appeals af- Board of application. Mr. firmed the denial of his sought judicial Marineas then review of the by filing petition for a writ of BIA decision complaint injunctive corpus and a habeas declaratory relief. The district court We reverse. denied relief. Background

I. Factual Procedural is a former soldier the Roma- Petitioner Army. expressed nian He claims that he opposition questioned legitimacy to and government the new Romanian installed after the overthrow of the Communist-totali- government of Nicolae Ceausescu. tarian arrested, Mr. Marineas asserts that he was beaten, severely threatened Romani- after he criticized the new authorities apparently comprised government, which is entirely of former members of the old almost regime. He claims that he fled Communist Romania when he realized that he could not be safe in his homeland.

* Circuit, sitting by designation. McKay, Judge G. The Honorable Monroe Appeals United States Court of Tenth eventually

Mr. Marineas arrived final deportation order of for Mr. Marineas. a group of Petitioner then initiated this action. The 14,1994, Romanian April nationals on aboard district court reviewed the deportation order ship called the Innovation. Mr. Ma- pursuant M/V 1105a(a)(10), 8 U.S.C. requested asylum rineas immediately upon permits habeas of deportation review orders. States, his arrival in the United claiming he Petitioner asserted that he was denied mean- political fled Romania persecution. because of ingful administrative review of application his He was detained as an excludable alien be- application his because by was considered status, cause of his and the INS INS official instead of a neutral immigration required Innovation, of owner judge M/V and that the BIA improperly affirmed Services, Inc., Sea Land keep phys- in him asylum denial of his without giving him custody.1 ical an opportunity to submit a brief. The dis- trict court denied Mr. petition Marineas’ Mr. Marineas completed applica- his first a writ of corpus. habeas Deferring to the political asylum tion for April on 1994. BIA’s interpretation applicable immi- At that time he was not right informed of his statutes, gration the district court found Mr. represented to be by counsel his provided Marineas was all of the interview availability or of the legal of free him on asylum. his claim for The court also services. An INS official Peti- interviewed found that supported reasonable evidence tioner, and his claim denied. was INS’s of denial Mr. Marineas’ appli- BIA, appealed Petitioner to the which af- cation. firmed the asylum. denial of INS’s appellate jurisdiction We have to review a Petitioner corpus then filed a peti- habeas final deportation. order of 28 U.S.C. 1291. seeking stay tion a deportation. of his currently Petitioner is custody in INS petition was dismissed after the INS con- County York York, Prison in Pennsylvania. ceded the inadequacy of the proceeding first We have issued a formal order staying and remanded the proceedings. ease for new deportation, Petitioner’s Department but November Petitioner was inter- of Justice agreed has comply with our viewed the same officer who had request deport not to Petitioner during the previously denied his claim. Petitioner was pendency appeal. of this represented by counsel at the second inter- view, but his counsel was allowed sever- Treaty II. Obligations question al minutes to Petitioner and to ad- vocate on his A behalf. third interview The United signatory was States is a to the conducted another officer after Relating Protocol to the Sta objected Petitioner’s counsel Refugees (U.N.Protocol), tus of which incor about the porated interview being second the 1951 conducted Relating Convention to the Also, the same Refugees. officer. Status Petitioner of pro The U.N. Protocol submitted a supplemental sup- statement vides:

port application of his and numerous exhibits Contracting No expel State shall or return allegedly persecution documented the he (“refouler”) refugee any manner what- suffered in Romania. application His to the soever frontiers of territories where again denied. his or life freedom be would threatened on race, religion, account of his nationality, 7, 1995, April On Petitioner filed another membership in particular group social or appeal with the BIA requested time in political opinion. 4, 1995, which to file a May brief. On BIA appeal denied having without ac- United Nations Relating Protocol to the Sta- cepted Petitioner’s brief. The BIA Refugees, 33(1), entered tus of art. Jan. 1. Soon we thereafter invalidated legislative INS's rule re- rule nature defective quiring shipping companies to bear the burden promulgated it was because without the notice detaining stowaways of asylum. who have requirements and comment of Administrative Navigation Dia Co. v. Pomeroy, 34 F.3d Act. Procedure Id. at 1265-66. (3d Cir.1994). We found the INS Refugee Act of Meaning of the III. are Refugees No. 6577. T.I.A.S. U.S.T. owing to well- person who “a defined for reason being persecuted of fear founded BIA’s court, deferring The district membership ain nationality, race, religion, of and Na- Immigration of interpretation opinion, is group political or social particular Refugee Act of tionality Act and the nationality and country outside not enti- concluded fear, unwilling to or, owing to such unable on their hearings immigration court tled to that coun- protection himself avail court the district reverse asylum claims. We try.” art. Id. appli- BIA’s construction because Refugee Act of purpose contrary to immigration statutes cable and Nation Immigration amended congressional intent. unambiguous clear and and permanent provide a “to ality was admission for the systematic Nationality Act Immigration and A. The special humanitar refugees of country of this Refugee Act of 1980 the Pub.L. States.” to the United ian concern (1980). 101(b), I, 102 96-212, § 94 Stat. tit. but States in the United arrive Aliens who domestic brought the Also, Refugee Act immigration officer entry by an are refused conformity into States the United laws of hearing to an exclusion generally entitled United under the treaty obligations its Nationality Act Immigration and under the Relating to the Status Protocol 4, II, 27, 1952, ch. tit. (INA). Act of June 6223, 19 U.S.T. Refugees, Jan. (codified 8 U.S.C. § 66 Stat. 198 Stevic, 467 v. See INS No. 6577. T.I.A.S. (1988)). immi- 1225(b) an hearing, § At 2496, 2499, 421, 427, 104 S.Ct. U.S. not the whether or judge decides gration (1984). response to In L.Ed.2d 321 U.S.C. admitted. be should alien persecution subject to of those urgent needs 1226(a). an If the asserts § alien homelands, Refugee Act revised in their hearing claim, to an is he governing procedures regularized the judge. 8 C.F.R. immigration an refugees into the United the admission 236.3(c). § I, 96-212, § tit. Pub.L. No. States. (1980). respect, the Su In this Stat. however, sta- have a Stowaways, distinct explained: preme Court they are excludable Under INA tus. measure; always harsh Deportation is to an exclusion are not entitled who aliens danger replete states, when is “Any more who it all the INA hearing. is The will that he or she a claim alien makes 8 U.S.C. is excludable.” if persecution forced subject to death or 1182(a)(6)(D). provides be INA further § The country. his or her home to return to an exclu- entitled to are not 1323(d). of 1980 enacting Act § Section hearing.2 8 U.S.C. sion sufficient “give the States sought to United hearing] pro- 1323(d) states, “The [exclusion involving respond to flexibility situations who apply to aliens ... shall not visions detain- religious political or dissidents alien shall stowaways and no such arrive throughout the world.” States, ees in the United permitted land be treatment, or medical except temporarily for Cardoza-Fonseco, INS Attorney as the (1987) regulations to such pursuant 94 L.Ed.2d de- for the ultimate may prescribe omitted). Thus, Refugee Act General (citation deportation of such or or removal parture treaty obligations fulfill our was enacted stow- States.” While alien from the benefit of Protocol for the U.N. under hear- to an exclusion case, aways are not entitled in this who aliens, Mr. Marineas such as land in stowaways to permits ing, statute in their home fleeing persecution to be claim regulations pursuant the United States lands. 1226(a). 1182(a), §§ aliens" are entitled of "excludable classes Most hearing. See U.S.C. an exclusion prescribed (1988). departure, for the ultimate re- adjudica- nonadversarial or deportation moval of the alien. by officials, tion however, INS explicitly regulations retained in the for stowaway asy- Act mandated for the first applicants.5 (1988). lum 53 Fed.Reg. 11.310 time that uniform be established Attorney General granting asylum Under procedures, current INS an applica- arriving to aliens in the United States. The tion for initially handled an Refugee Act amended the INA providing: 208.9(a). § officer. 8 C.F.R. An im- Attorney General shall establish a migration judge acquires jurisdiction over physically for an alien present asylum application if applicant has in the United States or at a land border or placed been in an exclusion deportation or port entry, irrespective of such alien’s hearing. 208.4(c). 208.2(b), §§ 8 C.F.R. status, apply asylum, and the alien Consequently, asylum applicants who may granted asylum be in the discretion of cannot removed from the Unit- General if Gen- ed States having without their claims eral determines that such refugee alien is a adjudicated in an adversarial hearing before within meaning section immigration judge who independent 1101(a)(42)(A)of this title. immigration INS. The judge is required 1158(a). 8 U.S.C. We are asked to review to advise the applicant that he has a right to whether the correctly General in- counsel and legal that free services are avail- terpreted the Refugee INA and the Act in 236.2(a). § able. 8 C.F.R. hearing At the promulgating asylum procedures. the current immigration before the judge, the applicant right has present the to evidence and wit- Regulations Asylum B. INS’s and Proce- nesses on his behalf, own 8 C.F.R. dures 236.2(a), §§ 236.3(c)(3); to examine and ob- regulations The initially INS promulgated ject evidence, to adverse 236.2(a); § 8 C.F.R. the pursuant General to the presented cross-examine witnesses by the Refugee Act explicit made no distinction be- INS, 236.2(a); § 8 C.F.R. to compel testimo- stowaways tween asylum and appli- other ny of subpoena, 3.35; witnesses § 8 C.F.R. Sava, cants. Sing See Yiu Chun v. 708 F.2d to a transcript and record of pro- the entire (2d Cir.1983). Instead, 874 the INS ceeding, 236.2(e); § 8 C.F.R. and to adminis- regulations the differently to stow- review, 3.38, trative §§ 8 C.F.R. 236.7. aways.3 See id. proposed regula- The INS tions in 1987 that provided would contrast, have In asylum the applications of procedure nonadversarial as sole stowaways method in decided a nonadversarial adjudicating of asylum appli- of all claims interview conducted asylum an (1987). cants. 52 Fed.Reg. 32552-61 The officer who is an employee. INS 8 C.F.R. proposed INS withdrew the regulations 208.2(a), 208.9, 253.1(f). §§ after stowaway The receiving widespread criticism that applicant may such a present, have counsel but the process inherently was inadequate as the regulations sole require do not asylum officer adjudication of an Instead, claim.4 to advise the of applicant right counsel the INS regulations issued new in 1988which or of availability of legal free services. 8 provided asylum applicants 208.9(b). an § adversarial C.F.R. applicant adjudication of their through may claims present witnesses and may submit affi- immigration court hearing. Fed.Reg. davits of and witnesses other evidence. 8 application 3. The regulations INS's of its lar a original objecting substantial number to the stowaways rejected by proposal the Second Circuit. require that all and withhold- Chun, Sing BIA, however, Yiu 708 F.2d at ing deportation 876. The INS and of claims be adjudicated in a Sing declined to follow Yiu setting by Asylum nonadversarial Officers within INS."). Chun outside Second Circuit. Matter Waldei, (BIA 1984). 19 I & N Dec. 189 5.The nonadversarial interview used (1988) ("This Fed.Reg. stowaway asylum applicants modification used as the response is in to numerous step asylum process and diverse com- initial applicants. in the for all rule, ments proposed particu- received on the issue, intention is that question at precise 208.9(b). regulations do § C.F.R. given effect. be recorded, law and must and interview require that own provide his applicant they require the Chevron, n. 104 S.Ct. at 843 467 U.S. 208.9(g). If denied § 8 C.F.R. interpreter. omitted). case, (citations In this n. 9 2781-82 may appeal stowaway applicant asylum, the step of Chevron the second we do not reach 253.1(f)(4). 8 C.F.R. BIA. to the his denial and un- expressed a clear Congress because the INA construe Thus, BIA precise regard to with ambiguous intent entitling as Refugee Act at issue. question conducted interview only to nonadversarial meaning construing the In limited officer with by an INS has exam Supreme Court Act aliens while all other safeguards, process symme its meaning of the plain ined asylum hearing an adversarial Protocol, and its try judge immigration a neutral v. Cardoza- history.6 See INS legislative safeguards. Peti- panoply of due full Fonseca, 107 S.Ct. however, in- contends, tioner (1987). analytical L.Ed.2d the same afforded to be tended ease is similar problem in this other aliens. changes to how should Cardozar-Fonseca: through the Ref by Congress made the INA Congressional Intent C. At issue construed? Act of 1980 be ugee eligibility for was whether Cardozar-Fonseca BIA’s to the court deferred The district “persecution on the be based asylum should Refugee Act the INA construction persecution” standard fear or well-founded Chevron, U.S.A., v. Natural Inc. of 1980. on the more Act of or in the Council, U.S. Resources Defense threat would be stringent “life or freedom 2778, 2781-82, L.Ed.2d 694 provided originally standard ened” (1984), a two- Supreme Court established the framework, the Chevron INA. Under agency judicial of review step approach statutory con tools of used traditional Court First, Congress. of of acts interpretations history legislative and examined struction whether must determine reviewing court in determin protocol and congres- unambiguous and a clear there is expressed a clear had ing Congress that precise question concerning the sional intent enacting eligibility standard intent on the clear and intent is congressional If in issue. Cardoza-Fonseca, of 1980. Refugee Act law and intent is the that unambiguous, then 449, 107 at 1222. at S.Ct. 480 U.S. reviewing A court given effect. be must step the statute second “if proceeds to the case, meaning of the plain In this respect spe- ambiguous silent or unambiguous. The Refugee Act is clear at 2781-82. cific issue.” Id. Attorney shall General provides, “The Act Then, is whether for the court question “the physically for an alien a establish permissi- a is based on agency’s answer or at a land States present in the United The Id. of the statute.” ble construction entry, irrespective such ” port of border or of Court noted: status, asylum.... apply alien’s added). 1158(a) The (emphasis § authority on U.S.C. judiciary is the final Attorney Gener that the government argues and must statutory construction of issues establishing one mandate al fulfilled this which reject constructions administrative another stowaways and asylum procedure for in- congressional to clear contrary plain for other asylum procedure aliens. court, employing traditional ... If a tent. Act no room construction, Refugee language leaves ascertains statutory tools differing asy- permitting for a construction on the had an Congress intention (1987) ("We find these noteworthy also acknowl- L.Ed.2d that the It is Court statutory com- ordinary statutory construction canons edged special construction canon longstanding regard to pelling, even without deportation statutes are whereby ambiguities in ambiguities any lingering construing principle of favor of the be alien. Cardoza- construed alien.”). deportation in favor of Fonseca, statutes S.Ct. lum for aliens based on Sing Sava, their Yiu (2d Chun v. 708 F.2d 869 Congress plainly Cir.1983). status: stated that the “At- In Chun, Sing Yiu the court torney shall procedure.” General establish Congress’s examined intent in enacting the 1158(a) added); § (emphasis 8 U.S.C. see Refugee Act of 1980 and concluded that Sava, Sing also Yiu Chun v. 708 F.2d stowaways’ “procedural rights as (2d Cir.1983) (finding legislative in the applicants derive from Refugee Act of history Refugee Act that 1980.” Id. at 874. explained The court directed the “ General establish and held: ”) ‘a asylum procedure’ new uniform (citing 1323(d) Section specific ais provision de- H. Conf. No. Rep. Cong., 96th 2d Sess. tailing the treatment afforded alien stow- (1980), reprinted in 1980 U.S.C.C.A.N. aways. provision This must be read in 161). Congress clearly intended sin- light §of 1182 which “general defines gle, uniform be established to sat- classes” of “[excludable aliens.” Although isfy treaty obligation our under the U.N. 1182(a)(18) § lists “[a]liens who are stow- Protocol. aways” class, 1182(a) as an § excludable mandating In proce- establishment of a proviso contains a stating that its defini- dure for applicants, Congress plainly applicable tions are “[e]xcept as otherwise stated in Act that a provided uniform in this chapter.” asylum hearing apply shall “irrespective of 1323(d) Act limits the § effect of by “oth- 1182(a)(6)(D) such alien’s status.” Section erwise provid[ing]” that aliens applying for aliens,” classifies “excludable may do “irrespective so of ... 1323(d) § exempts stowaways from ex- 1158(a). § status.” 8 U.S.C. Whatever hearings. 1158(a), clusion however, Section procedural 1323(d) § limitations might im- mandates asylum procedure that the pose estab- the absence of we hold that lished General be these limitations applicable are not in the irrespective status, anof alien’s clearly asylum context to the extent and would include aliens status. extent that an determination is Thus, plain under the meaning of the Refu- involved. gee Congress clearly unambiguously Chun, Sing Yiu 708 F.2d at 874-75. intended that the Attorney General establish ascertaining “congressional intent a uniform procedure that ‘Attorney General ... establish a uniform applied irrespective of an alien’s status as a procedure passing for upon an asylum appli- stowaway. Act,” cation’ under the Refugee the Second Our construction of the isAct employed Circuit traditional tools statuto- 1323(d) § consistent with because the Attor- ry construction, examined pro- internal INS ney General can establish a asylum uniform cedures, legislative history and the United procedure separate from the exclusion hear- Protocol, and considered the “dic- ing. The Act mandates a uniform procedural tates of process.” 872, due Id. at asylum procedure asylum for all applicants; 874, 875, 876, 877 n. 25. Although not ana- for stowaways, the resulting hearing can be lyzed within framework, the Chevron Yiu limited to solely the issue of eligibili- Sing supports Chun our that conclusion Con- ty. preserves This the basic thrust of gress clearly and unambiguously intended 1323(d), that stowaways commands that the by established are not entitled to an hearing. exclusion Yiu the applied irrespective General be Chun, Sing 708 F.2d at 876. of an alien’s status aas stowaway. E. Interpretations BIA’s D. Inconsistent The Second Circuit’s Pre-Chevron Stowaways Construction of under the rejected Second Circuit the man Refugee Act ner which in the regulations INS its Prior Supreme to the Court’s decision to held that were Chevron, very this issue was addressed procedural “whatever other rights the Second Circuit Appeals Court of applicants other are afforded.” Yiu summary of the (2d However, transcript or no Sava, F.2d Sing v. Chun in the is contained assertions applicant’s Yiu Cir.1983). to follow BIA declined in the Rather, forth facts set the Circuit. See record. the Second outside Sing Chun (BIA deny constitute the Waldei, of intent I N Dec. notice 19 & Matter of with the that interview Waldei, applicant’s concluded 1984). BIA the In record the rec- deprived of contained in not is officer that “[t]he facts disputes claim consid- applicant have his file. The ord opportunity under status ered, of his in view in the notice. but reflected Id. at limited.” opportunity that [INA] fairly a fully review order to In its BIA reaffirmed Thus, in Waldei ease, must this Board a entered in decision inter- nonadversarial the INS’s approval of evidentiary primary it have before stowaways, despite the for procedure view adjudica- by the initial upon relied matters require the not did procedure fact that case, transcript of the tor, a in this either recorded. to be interview sup- applicant made statements acknowledged meaning- subsequently or a persecution The BIA has claim port of his stowaway asy- summary those ful, clear, complete occasions on several adequate an produce not interviewing does lum prepared statements asy- INS vacated and has for review record The Board needs asylum officer.... inadequate record. to the applicant, lum decisions as an questions asked know the stated, “This Board was BIA In this case the can evalu- responses, before we well as transcript of statements provided with deny intent whether notice ate his interviews applicant in by the made what thoroughly reflects accurately and meaningful sum- asylum officer or proceedings transpired in the and, statements, consequently, mary of those applicant’s and whether asylum officer any testimony evaluating no basis has adequately devel- persecution claim Stipu- Am. interviews.”7 presented at the espe- This is proceedings. oped in those Marineas, (In J.A., Mircea re No. 55 lated where, here, applicant cially true 1995)). (BIA May 2at A70 867 No. deny that the notice intent contends case, has held BIA published In a accurately his claims. reflect does not stowaway' by the created the record (In Chila, J.A., No. re Stipulated No. 61 Am. inadequate basis “provides (cita- 1993) (BIA May A72 fairly therefore credibility and determining omitted)). BIA has fact that the tions persecution applicant’s adjudicating provided stow- asylum procedure held the S-S-, Interim Dec. Applicant, claim.” In re supports our inadequate further aways is 1995). (BIA (BIA) The BIA Nov. misconstruing the BIA is that the conclusion the case to S-S-, remand had Applicant Refugee Act. pro- could be record so a suitable Cardoza-Fonseca, INS case, BIA stated Id. In another duced. (1987), 94 L.Ed.2d part: in relevant Court stated: in this a decision to enter are unable We rejecting the for additional An reason us. record of the on the basis case to heightened request for deference January INS’s deny dated of intent In a to notice inconsistency posi- of the is the position its upon 27, 1993, relied commissioner through years. BIA has tions the taken applicant allegedly made statements pro- of a agency interpretation relevant An asylum officer. in his interview procedure, repeated the same process then deficiencies of due claims 7. Petitioner’s (In Id., again 55 re Mircea performance in this affirmed. No. BIA the BIA’s are bolstered 4, 421, (BIA Marineas, May INS’s first denial 2 affirmed the case. BIA No. A70 867 application denial which asylum 1995)). Also, Petitioner's denial affirmed second BIA —a procedurally defi- later admitted ability brief his denying Petitioner while A., (Zabona Stipulated No. 30 J. cient. Am. See Id.; It is dis- Appellant's Br. at 13-14. case. CV-94-0996, (M.D.Pa. Lewis, Sept. at 1-2 v. No. appears turbing to have as that the BIA acted Marineas, id., 14, 1994)); (In Mircea re No. rubber-stamp case. this mere 17, 1994)). (June Petitioner 867 421 No. A70 Yamasaki, vision agency’s which conflicts with the 682, 693, 442 U.S. 99 S.Ct. interpretation earlier 2553-54, is “entitled to (1979) consid- 61 L.Ed.2d 176 (assuming “a erably consistently less deference” than a congressional solicitude for procedure, fair agency held view. absent explicit statutory language to the con- trary”); see Fano, also Meachum v. U.S. Id. at 446 n. at 1221 S.Ct. n. 30 215, 226, 2532, 2539, 96 S.Ct. Alaska, L.Ed.2d 451 (quoting v. Watt 451 U.S. (1976) (explaining that under 1673, 1681, (1981)). v. 101 S.Ct. 68 L.Ed.2d 80 Wolff McDonnell, 539, 557-58, 418 U.S. 94 S.Ct. We Waldei, believe the BIA’s decisions in S- 2963, 2975-76, 41 (1974), L.Ed.2d 935 S-, mini- Applicant, and Chila reflect an inherent mum process due rights attach statutory inconsistency in the interpretation BIA’s rights).8 In this Congress case instructed Refugee Act. In Waldei BIA held General to asylum establish an stowaways were ato non- procedure, and treaty United States’ obli- procedure adversarial interview conducted gations and fairness mandate that the officer, an INS it implicitly ap procedure promulgated by Gen- proved procedure an INS that does not re provide, eral the most basic of process. due quire the interview to be recorded. In cases after BIA Waldei the has held asy that the Precisely what procedures minimum lum stowaways is so deficient are due statutory under a right depends on that it effectively cannot be reviewed. We the circumstances of particular situation. cannot defer the BIA’s construction of the See, e.g., Helms, Hewitt v. 459 U.S. Refugee which approves of the INS’s 864, 871-72, (1983); L.Ed.2d 675 asylum procedure stowaways while con Fano, Meachum v. 215, 227, 427 U.S. demning that same creating 2532, 2539-40, S.Ct. (1976). 49 L.Ed.2d 451 inadequate record for review. procedural The basic rights Congress intend F. Due Process Concerns under the Refu- ed to provide asylum applicants under the gee Act Refugee’Act particularly are important be Finally, we believe the INS and applicant cause an erroneously asy denied BIA misconstruing Act be lum subject could be persecution death or Congress cause we doubt intended the Attor if forced return to his or her home coun ney General to establish an proce try. do attempt We precisely detail dure for that fails to provide basic here all procedures basic mandated process. “[A]n seeking initial ad under Act for applicants. mission to the requests a privi The current procedure for stow lege and has no rights aways, however, constitutional regard provide fails to two ing application, power for the to admit or most basic of due process protections —a e exclude sovereign aliens is a prerogative.” judge neutral and a complete record of th Plasencia, Landon v. proceeding. inadequacies These asy (1982). S.Ct. 74 L.Ed.2d 21 Aliens lum par afforded only have those statutory rights granted by ticularly trohbling they because insulate the Congress. Congress When an agen directs INS’s denial of from effective admin cy procedure, however, establish can judicial it istrative Although asy review.9 assumed pro intends that lum applicants do not have constitutional due cedure to be a fair See one. protections, we believe that in accord Califano recognized 8. Courts seeking asy- have that aliens enjoy process protection some due not available lum are process to protection. some claiming admission."). to an alien See, e.g., Sava, 32, Augustin (2d v. 735 F.2d 37 Cir.1984) (holding seeking asylum that aliens Center, McNary Refugee v. Haitian 9. 498 U.S. process right have a due ato translator their in 479, 496-97, 888, 898-99, 111 S.Ct. L.Ed.2d 112 Chun, hearings); Sing (stat- Yiu 708 F.2d at 877 (1991), recognized 1005 the Court that the INS's ing, refugee "[A] who has a 'well-founded fear of special agricul- failure record the interviews of persecution' protectable homeland has a tural applicants deprived worker the federal recognized statute, by treaty interest both meaningful upon of a courts basis which to re- being and his interest in not may returned well view the INS's determinations. 204 very of due essence Protocol, stood.... Congress intended

with the U.N. ”); to be heard.’ ‘meaningful opportunity uniform is a a to establish Attorney General INS, 721, F.2d Tejeda-Mata v. 626 applies and that see also is fair that asylum procedure denied, (9th Cir.1980), 456 U.S. existing cert. 726 status. irrespective of (1982); in- L.Ed.2d for 102 S.Ct. INS (7th INS, therefore, 393 F.2d unfair, and, v. Niarchos herently right to counsel tion ine and legal procedural proceeding, to administrative pel The above their between by rent INS tion to deemed exclusion afforded the §§ contrary to the INS 3.12, 3.35, 3.38, testimony witnesses judge and services; Stowaway asylum a regulations to object to adverse necessary for other course, regulations do hearing procedures, hearings and asylum applicants rights: procedures hearing. to a and of a transcribed same clear intent 236.2, review. public to be advised regulations non-stowaway aliens however, asylum procedures not Under a applicants must 236.3, provided aliens hearing; evidence; to com availability of free by neutral clearly aliens. See 8 C.F.R. subpoena; and record General of provide non- 236.7. Cur Congress. hearings. immigra delineate following to exam provided of their Refugee In addi may which which fundamental tions Handbook translator. services Handbook Determining Refugee Status ed appropriately characterizes hearing. procedural ance in dures also hold cannot cases Cardoza-Fonseca, Cir.1968). Moreover, INS to (1987).11 Thus, where the must also include apply understand construing of a provided that at a High on Procedures rights would be Otherwise, requirement.10 competent sought to conform.” INS in addition 1217 n. judge and Commissioner “provides all each minimum those 22, 94 L.Ed.2d 434 ^[1967] Office asylum applicant’s interpreter” as other and Criteria those asylum applicant significant guid access (Geneva, 1979), meaningless in applicants, we services requiring for Protocol, to of the Unit during the procedures 439 n. Refugees, to “the proce Na for go beyond Refugee Act of 1980 modify that the those We conclude required process rights requires that the clearly unambiguously minimum due applicants are apply all promulgate to which fairness General pro- fair stowaways seeking entitled. the same asylum applicants and that cedure other Additionally, Petitioner asserts include the services procedures must those At- promulgated asylum procedures a translator. they fail because are deficient torney General It is difficult provide a translator. for Sup- Reasonable Evidence Whether IV. refugee, with any fide imagine how bona Asylum Application ported the English, could ever knowledge of little or no court erred the district Petitioner contends convey fear of a “well-founded spontaneously sup- finding reasonable evidence asylum officer. Courts to an persecution” Marineas’ of Mr. compe- ported the INS’s denial of a importance recognized the have address this asylum application. We cannot pro- fairness of to ensure the tent translator inadequate. The record is En- issue because the speak ceedings applicants who do Sava, findings are nec- court’s on this issue See, F.2d district Augustin v. glish. e.g., Cir.1984) (“A that Peti- (2d essarily vacated our conclusion hearing no value is of procedurally de- asylum hearing was tioner’s judge are not under- and the when the alien implementing High Commis- as mechanism Office the United Nations 10. treaty obligations Protocol. See Refugees, on Procedures under the 1967 Handbook sioner for Status, 96-256, Determining Cong., S.Rep. and ¶ 1st Sess. Criteria No. 96th (Geneva, 1979). 96-608, (1979); Cong., H.R.Rep. 1st No. 96th (1979), reprinted in U.S.C.C.A.N. Sess. 9 H.A., Congress part explained above in 11. As we part, at least in Act of enacted the ficient. On remand Mr. Marineas should

receive an hearing produce which will

a reviewable record. judgment of the district court will be

reversed and remanded proceed- for further

ings in opinion. accord with this

BECKER, Judge, Circuit concurring. join Judge

I McKay’s opinion fine on the

understanding ultimately that it is founded

not on the due congres- clause but on (i.e.,

sional intent intent uniform,

claimants receive a process). fair

However, I join do not in Judge McKay’s necessity

discussion of the specific proce-

dures, such as the need for an independent

adjudicator or for a I pre- translator. would

fer to let the INS decide in the first instance

what best conform to this court’s

mandate.1 Judge 1. While McKay's I endorse decision not to rather crabbed "political,” notion of what is plaintiff's reach the this merits of the claim at the face quite strong of what seems to be a case juncture, I feel constrained to note that the asylum. INS, papers, in its adopted seems to have

Case Details

Case Name: Marincas v. Lewis

Court Name: Court of Appeals for the Third Circuit

Date Published: Aug 9, 1996

Citation: 92 F.3d 195

Docket Number: 95-5424

Court Abbreviation: 3rd Cir.