*2 TUTTLE, Before WISDOM and COLE- MAN, Judges. Circuit TUTTLE, Judge: Communist, another one Circuit Louis Pierre. Pierre subsequently jailed and disap- Willy Bonannee Raymond Coriolan peared. police, secret stated, concededly who are nationals Haitian to Coriolan’s house to came arrest him. Co- country.1 many Like from this deportable it was policy riolan averred that however, compatriots, they contend government persecute Haitian re- *3 persecution on they will face turning exiles the country illegal- who fled If claims are Haiti. their return to their ly- correct, mercy and stat- both sentiments deporta- would block their he utory provisions day request filed this asy- On for and Naturalization Immigration lum, The Coriolan was tion. interviewed by INS that deportation has concluded investigator. reported He Service he had nev- We, however, conclude proceed. suspected should being Communist, been er .thus far failed to ade- the INS has police never come and to his house claims, aliens’ and we evaluate the quately Though him. he twice to arrest said he had light proceedings for further remand left Haiti out of fear of the Tonton Mac- opinion. that “In outes —and contended Haiti one have to do anything, just doesn’t can BEFORE THE PROCEEDINGS I. you you During look scared.” and —ah — THE AGENCY he questioning ultimately said he had come States to work deportation hearing convened to the United but that he Petitioners’ 13,1975. petitioners stipulated problems” had “small with police. The July on assert, however, applied politi- for deportability, He he was ac- their Pierre, deporta- relief with who a form of was asylum, quainted about cal by Pierre was “a granted problem po- which is denied arrested. tion lice,” not, though said, de- directors. The district director Coriolan now a Com- district sought The requests. aliens then munist. also for the first time their nied 243(h) Immigra- cousin, his fate of under Section described mother’s relief Nationality years Act of 8 U.S.C. some before had who fallen afoul of tion (1970), permits Attor- when he 1253(h) which the Tonton Macoutes refused to § piece “withhold as deportation” give them of cloth. At the final ney General2 if the would be necessary deportation hearing, alien Coriolan reiterated long as allegation de- political persecution when of his relative’s murder. subject occasion, in his This too was denied.3 And on written re- ported. jail he declared that he feared quest, proceedings, these In the course return, his apparently on at least in death evi- opportunity present had an aliens illegal departure. because his They their behalf. offered on dence case, proceeded In statements. Coriolan’s Bonannee’s at the same own sharply request asylum, In his for were self-contradic- Bonannee statements time. his father, painted rosy picture. that his whose was though none first name tory, stated Belizaire,4 had asylum, suspected he stated involve- request sworn In a police (presumably the Tonton in an anti-Duvalier movement in ment that secret Macoutes) being him of a Com- had had flee to Cuba. father’s suspected His talking to he munist, lucky: ap- he had been seen less had been brother country points appeal aspects surreptitiously attack entered 3. raised Each man 1. Miami, boat, (though 243(h) during decision by the Section and the refusal at or near both asylum. light day). disposition of our Their entries rendered the same not on case, 1251(a)(2). any questions deportable we do not reach under U.S.C. them asylum request. concerning the immigra- responsibility is now carried 2. This explained adopted judges, his decisions turn are review- 4. Bonannee whose he (Bonannee) Appeals. to avoid detec- last name the Board mother’s able by the Tontons. again in hearing, and never heard from Earlier in the Bonannee also prehended testi- had been arrested (in Bonannee himself his “wife” fied that parlance, Haitian 1973, and held until or December simply a woman with he perhaps whom was declared, “The Ton February 1974. He jail was in living) one month after he my breed as I was same Tons said left. change . . .
father.
[sic]
Immigration judge
peti-
denied the
against
government.
I don’t
speaking
requests,
in an
tioners’
we
also,
Bonannee
for release.”
know reason
shortly.
analy-
will consider
detail
Our
Coriolan,
ille-
feared
his
like
sis, however,
begin
must
with a discussion
expected
jailed
he
to be
departure, and
gal
the treaty
statute —and
cre-
—which
to Haiti. Bonannee’s
shot if he returned
the framework for
perse-
ate
evaluation of
essentially the
claims remained
same
his
cution claims.
supplemented
He also
interview.
oral
*4
respects.
in some
For ex-
request
written
II. THE GOVERNING LAW
1973, two
he attributed his arrest in
ample,
claims,
regulating persecution
law
involving
the incident
his fa-
after
years
although humane in concept,
gener-
is not
ther,
“becoming Major
Adult”
to his
—an
wording
of the
statutory
basic
ous.
1941).
he said he was born in
He
(though
243(h)
Section
of
provision,
release,
that after his
which
testified
1952,
Nationality
Act of
8 U.S.C.
he went
part
amnesty,
of
apparently
1253(h) (1970), emphasizes the discretion-
§
hiding for six months to avoid re-arrest
into
ary
stay deporta-
nature of
decision to
then came to the United States.
of
persecution:
tion because
the risk of
however, the
received
Subsequently,
INS
Attorney
“The
General is authorized to
letter
Department
of State a
deportation
any
withhold
of
alien within
addressed Bonannee’s
This
which
claims.5
the United States
country in
acknowledged
“ap-
that his claim
letter
opinion
in his
which
alien would be
have some substance.” But the
peared to
subject
race,
on account of
inci-
reported
of
that the
Department
State
political
religion,
opinion
or
and for such
Bonannee attributed his fa-
dent to which
period of time as he deems to be neces-
actually
troubles would
ther’s
sary for such reason.”6
1950’s,
Depart-
place in
taken
grant
to believe that
this incident
ment declined
This broad
of discretion no
recently
led to his father’s arrest. Ulti-
doubt rested on both the
senti
deportation hearing,
prevailing
the final
in the
mately,
ments
1950’s and on the
recognition
confirmed that
the incident took
permanent
Congress’
Bonannee
in
power
immigration.
and testified that his father’s
vast
the field of
place
discretion,
flight
year.
sweep
grant
also occurred in that
of this
how
Cuba
ever,
the events
must now be
light
went on
describe
measured in
Bonannee
fight
his own arrest. He had a
Nations
leading
Relating
United
Protocol
to the
dance,
Refugees,
militiaman at a
and the mili-
to which the
with a
Status
recognized
family
him as
adhered
1968. The Protocol incor
tiaman
States
money (apparently
porated provisions
took Duvalier
of the 1951
United Na
offense)
him.
Relating
the father’s
and arrested
tions Convention
to the
Status
(1977)
laws,
regulations,
6. Other sections of the
8 C.F.R.
108.2
re-
§
case,
present
provide
quire
Director to seek the
in the
the District
involved
can
simi-
Department
1153(a)(7)
(1970)
whenever he denies a
See 8
of the State
lar relief.
U.S.C.
“clearly lacking
(“conditional entry”
“adjustment
asylum
request
in sub-
or
as
of status”
fleeing
District Director wrote a letter to
Communist-dominated
stance.” The
aliens
or
Bonannee,
effect,
states);
referring
1182(d)(5)
to the claims of
Middle Eastern
8 U.S.C. §
others,
(1970)
(“parole”
of aliens
into
and numerous
on December
the United
emergent
Department
until
reasons or for
1975. The State
took
States “for
reasons
strictly
public interest”).
April
respond.
in the
1976 to
deemed
33, which
We
including
suggest
Article
re-
do not
that the
Refugees,
pro-
Protocol
foundly
that:
quires
refugee
alters American
law. We
our
Contracting
expel
shall
believe that
adherence to the
“1.
State
do
Proto-
No
refugee
(‘refouler’) a
return
or even
augments
col reflects
serious-
to the frontiers of
whatsoever
manner
country’s
ness of this
commitment
to hu-
his life or
freedom
where
territories
concerns,
manitarian
even in this stern field
on account
be threatened
may be
law.
appropriate
to add that
race,
membership of
nationality,
religion,
policy of
foreign
the United
has
States
group
political opin-
social
particular
recently
more dramatically
become
focused
ion.
protection
rights
human
around
provision
present
2. The benefit
world.
however,
not,
by
be claimed
a refu-
grounds
there
reasonable
gee whom
THE
III.
INS DECISION
security
to the
regarding
danger
is,
who,
country in which he
course,
Of
these broad concerns do not
judg-
a final
having
convicted
compel
acceptance
an over-credulous
of an
crime, con-
serious
particularly
ment
claims, nor
judicial
alien’s
sanction
interfer-
danger
community
stitutes a
proper
ence with
exercise of discretion
country.”
principles
With these
INS.
mind
yet
decided whether
This
Court
petition-
we turn to the INS’ treatment of
Attorney
Gener
Protocol restricts
contentions. The petitioners’
ers’
claims
*5
stay deportation
refuse to
discretion to
al’s
were first considered
an immigration
that an
he
determined
alien
has
when
judge;
stay deportation
his refusal to
was
deported.
persecution if
See
face
the
of
Ap-
affirmed
Board
States,
1281, 1289
Pierre
United
Board’s
peals. The
decision
only
declared
Immigra
the
1977). But
Board of
(5th Cir.
the
“had
to show
that
aliens
failed
a well-
declared that
it knows of
Appeals has
that
founded fear
their lives or freedom
1253(h)
relief
in
under §
case which
no
would be threatened in Haiti on account of
the alien had established
denied when
race, religion, nationality,
their
membership
of persecution. Mat
probability
clear
particular
group
political opin-
in a
social
Dunar,
# 2192 at
Interim Decision
ter of
gives
obviously
ion.”8 This conclusion
us
17,1973).7
Immigration and
(April
indication of whether
it rests upon
a
in Dunar de
Service’s brief
Naturalization
evaluation,
credibility
a decision
contingency
“If such
were
clared
testimony
if
petitioners’
credited—
arise,
it could arise
it is inconceivable that
—even
persecution,
reveals no reason
fear
or a
permit
other than the
anything
in
context
law
pen-
construction of
which excludes the
2 of Article
name
paragraph
under
ted
petitioners fear
alties
ambit of the
security
danger
com
national
ly,
“persecution.”
322 n.20.
munity.”
Id. at
term
Liao,
17, 1973)
2192,April
Int.
I N.
Dec. #
cf.
of
11 &
Dec. 113
considered the
7. But
Matter
(1965)
denial of
in
one basis for
relief
of this
which
consonance
standard with
formula-
require
before,
prevalent
required
that this statute does
was
view
finding
probability
the likelihood or unlikelihood of
persecu-
as to
a “clear
of
alien to show
regards
persecution.
Dunar
as dictum relat-
in
tion.” The Board concluded
Dunar
Ar-
Liao,
point
an “intimation
.
.
in
ed
ticle
this Protocol effected no
33 of
substantial
243(h) withholding
be denied in
could
section
changes
proof
in the burden of
under section
discretion on the basis
factors
the exercise of
Dunar,
243(h),
But its discussion
id. at 323.
in
persecution
related to the
other
than those
subsequent use of the
and its
Protocol’s termi-
Dunar, supra at
n.22.
claim.”
nology
case and in at least
in our
one other
Francois,
proceeding, Matter
Dec.
Int.
failing
faulting
to “show a
the aliens for
1975),
(Dec.
suggest
at least a
#
persecution,
the Board
fear”
well-founded
slight
proof
in
diminution
the alien’s burden of
utilizing
standard of the
Na-
Board.
before the
Dunar,
The Board in Matter
tion’s Protocol.
this were the
indication
turned there.
Illegal departure
If
might
reasoning, surely
jus-
we would be
result
in
agency’s
possibly
prosecution. Prosecu-
remanding
an
considered,
in
elucidation of
tified
tion cannot
such
under
cir-
cumstances,
Fortunately,
we
rationale.
the actual
one’s
recourse,
immigration
opinions.
for the
not without
petitioner’s
who
considered
case
judge
first
careful
After
consideration
all
opinion setting
out
substantial
his
wrote
record,
evidence
is concluded the
appropriate
for decision.
seems
grounds
have failed to
respondents
show well-
reasoning
can sup-
whether
to consider
fear that
founded
their lives or freedom
the result both he
the Board
port
would be
in
threatened
Haiti on account
reached.
race, religion, nationality,
their
mem-
particular
in a
bership
group
social
portion
critical
of his
deter-
opinion;
Dunar,
Matter of
Int.
that:
mined
(BIA 1973). Therefore,
Dec. 2192
they
“Respondents never
in the
served
Arm-
have failed to
eligibili-
establish statutory
Haiti,
they
Forces of
nor
ed
were
ever
ty for
their
withholding
deportation to
by the Haitian
employed
Government in
Haiti and the
facts
do
capacity.
exception
any
With
of Bo-
a grant
warrant
of the relief requested as
nannee, they have never been arrested or
a matter of administrative
discretion.
any trouble with the law
enforcement
application
Their
will be denied.”
country
there
officials
is no
belonged
ever
evidence
A. Findings of Fact
political organizations or
politically
were
Perhaps the most
straightforward
manner
involved
whatsoever
task is to examine
country.
judge’s
their
Bonannee has not estab-
evaluation
politically
his arrest
evidence before him. It
lished
motivated.
The evidence of record which consist
clear that
evaluation of
agency’s
en-
tirely
testimony
treatment of the
and statements of
evidence is a
of re
respondents,
fails to
view
discretionary agency
establish that
action. See
political opinions
Transportation,
differ from
Bowman
those
Inc. v. Arkansas-
*6
majority
Inc.,
the vast
of
Freight System,
281,
of
citizens who re- Best
285,
419 U.S.
in
Respondents’
438,
Haiti.
side
immediate
42
(1974).
95 S.Ct.
447
L.Ed.2d
least,
families reside there unmolested.
practice,
There
at
some review of the facts
respondents,
is no evidence the
with the
appears
to be common even in- section
Bonannee,
possible exception
cases,
Note,
of
243(h)
were
see
Judicial Review of
harassed, molested
ever
or troubled
Stays
Deportation:
Administrative
of
Sec
the Haitian
they
243(h)
authorities before
left
the
and Nation
country. They
1952,
that
claim to have
ality
left
Washington U.L.Q.
Act
1976
country illegally
59,
now
(1976),9
would
be
93
Note, Judicial
[hereinafter
that
persecuted
if
Review],
reason
re-
Appeals
1976).
INS'agrees.
least two
have
At
Courts
held that
October
The
Matter of
findings
Dunar,
2192,
immigration
(April 17,
of fact
the
authorities
Int. Dec. #
at 322-23
1973).
under
should be reviewed
the substantial
evi-
INS,
U.S.App.
v.
137
dence standard. Hamad
position
question
The
of our court on this
77,
645,
(1969);
INS,
cloudy. Compare
76-3994,
D.C.
420 F.2d
646
Henry v.
Nos.
232,
Esperdy,
76-3829,
(5th
v.
1977) (arbitrary
States ex rel. Kordic
1001
prima
be-
her claim at least
facie credibility,
Bonannee had ever
that Coriolan
reopen
held the INS’ refusal
to
its
organizations in Hai-
and
any political
longed to
to consider
arbitrary
the claim
proceedings
judge was not convinced
Similarly, the
ti.
Mercer’s
capricious.
allegations of dan-
from
opinions differed
political
that
from the Duvalier
ger
government were
majority of Haitians.
vast
of the
those
case, however,
is striking
extensive.
imply
premise:
observations
These
reason as well.
for another
The district
political activity, or
overt
without
people
judicial
took
notice “that
the present
court
opinions,
unlikely
minority political
may
Haiti
well
regime
represent
a dan-
persecution.
political
of
the victims
persecution
physical
persons
of
ger
such
sounds,
proposition
is not
Solid
Mercer,
F.Supp.
234
as”
at 616. The court
be,
fact, in stone.
graven
Haiti,
discussed conditions in
citing
then
can become
focus
citizens
Haitian
extensively
reports
New York Times
without ever tak-
persecution
government
“widely
affairs. These facts
Haitian
known
conventionally “political” action
ing any
press” amounted,
in the
reported
Coriolan has testified
Petitioner
all.
felt,
changed
circumstances
court
arrested, and never heard
cousin
his
necessary
justify
request
reopen
give
refused to
a Ton-
after he
again,
hearing. Hence the
finally
court
con-
INS
piece
member a
of cloth. Oth-
ton Macoute
special
inquiry
cluded
officer’s12
allegations.
similar
contained
cases have
er
of these
disregard
conditions and his conse-
Pierre,
(Int.Dec.
15 I & N Dec.
Matter of
reopen
refusal to
quent
proceedings consti-
16, 1975),
alleged
a Haitian
Sept.
#
tuted an abuse
discretion.
father,
supporter
pre-Du-
of the
Joseph,
13 I.
In Matter
& N. Dec. 70
sergeant
and a
government
valier
approached
(1968),
perse-
INS
a Haitian
forces,
attempted
had
armed
Haitian
spirit.
claim in a similar
Joseph’s
cution
had
forces
the armed
leave
fearing persecution were, again,
reasons
burnt,
murdered,
family
and the
home
strong.
extremely
But the Board
Joseph
Other members of
politics.
of his
judicial
invoked the
notice taken by
murdered,
allegedly had been
family
“
of the ‘suppression
court
of human
Mercer
243(h) claim).
(The
denied
INS
too.
and a total nonexistence of
rule
rights
INS,
(5th
194
v.
Cir.
Paul
See
suspension
law’
.
.
.
of ‘all
[and]
allegations
government
1975) (extensive
guaranteeing
the Constitution
articles
(§ 243(h)
murders, beatings
jailings)
rights, among
being
them
free
individual
INS,
refused);11
v.
382
Hyppolite
relief
police
freedom from arrest and
speech,
bru-
1967).
(Haitian alleged
(7th Cir.
98
F.2d
.
.
. It is a matter of
tality’
.
common
father,
reports
her
and friends’
murder
knowledge and this Board takes administra-
whereabouts)
inquiries as to her
police
that conditions in Haiti have not
notice
tive
INS,
refused);
424
243(h) relief
Gena
(§
improved to
extent since 1964.” Id. at
1970) (alien alleged fear
(5th
Cir.
F.2d
stemming from the interest
Tontons
of the
Joseph
apparent
case manifests an
wife) (§ 243(h)
in his
relief
one Tonton
recognition by
exceptionally
of the
denied).
conditions in
oppressive
Haitian life. Have
243(h)
all
Hai-
Although almost
claims
improved since 1968?
matters
We have
aliens,
tians,
appear to be unsuc-
and other
knowing a definitive
way of
answer.
In-
cessful,
exceptions.
such was
there are
One
deed,
vesting
persuasive
basis for
substan-
Esperdy,
rel. Mercer v.
ex
in the
is that
States
discretion
Service
tial
(S.D.N.Y.1964). There the dis-
claims involves
evaluation
F.Supp.
evidence lent
evaluation
conditions of
that Mercer’s
felt
trict court
time,
function,
specifically
12. At
the trial
now the
petitioners
in Paul
11. One of
immigration judges,
opposition
responsibility
motive
described
by “special
inquiry
performed
n.
officers.”
illegal departures.
1003 reads too Immigration and Natu- The Service much into the this re- upon nor Court Sig- striction administrative record. But the evaluation Service. ralization nificantly, the cites cases adopt- Service no leading A certainly relevant. report is this construction, ing this nor are we aware of appears to assume law treatise Indeed, this any. Court re- entertained a clippings or letters newspaper reopening, presented to the Court quest to demon- can be admissible townspeople 2347(c), INS, Paul under § persecution, although probable strate 1975). The (5th Cir. Paul court 194 denied a satisfac- to make out may be insufficient request, suggestion the but made Rosenfield, C. & M. showing. Gordon tory 2347(c) simply inapplicable to INS § 5.16b at Immigration Law & Procedure § 1 Moreover, (8 the review statute cases. In (1977). Matter of Siha- to 5-187 5-186 1105a(a)(4)) given can be a less U.S.C. § (1966) the sale, Dec. 531 Board of 111. & N. meaning undercutting without sweeping Appeals persecu- remanded safeguard intent to Congress’ evident INS case, an opportunity to afford the alien provisions of Under the discretion. 2347 § evi- pertinent obtainable present to applicable agencies, to some the Court of Board the alien The observed dence. Appeals proper in a can transfer the for discover- has no better means typically to the district proceeding court a hear- the av- conditions abroad than ing political genuine ing and determination issues her testimony and, and that erage person; — 2347(b)(3) (1970). We § fact. U.S.C. get as evidence well —must the surely other agree without is hesitation this possible, light evaluation most careful beyond powers.14 our knowledge. Id. at 532- official acceptable the presentation Amnesty With of the even prepared The Board is to take 33.13 report, petitioners International have clear- notice of nation’s administrative placed question in issue the ly of whether conditions, Joseph in the case which we political conditions are so specially Haitian above. considered oppressive that a wider range of claims of ap- background this that we It is given persecution must be credence. Sec- attempt by petitioners proach 2347(c) authorizes Court to order a reopening an order from Court obtain if the additional is remand evidence materi- receipt below for the proceedings were grounds al and there reasonable asserts, how- evidence. Service new to adduce the evidence before the failure ever, request merits materiality agency. Amnesty of the provi- scrutiny because of the beyond our report surely beyond is International dis- statute, the review 8 U.S.C. sion of pute. The reasonableness of the failure (1970) us 1105a(a)(4) directing to review § agency adduce evidence before the solely on the administrative INS’ action doubtful, particularly peti- since the statute, effect of this as the record. sought could re- presumably tioners it, reviewing court from bar sees INS opening proceedings INS of the even after power granted to remand making filing use appeal this Court. 2347(c) (1970) INS, supra, otherwise this Court by 28 U.S.C. Paul v. found § availability of a INS cases. applicable reopening continued by hearing we think it him another should have considered 13. Sihasale obtained her claim, Sihasale, again failed obtain but it was worth.” Matter for what (1966). appeal, the Board affirmed I. On a second & N.Dec. relief. officer, again inquiry special criticized Speaking Sihasale’s evidence. genuine treatment of issue fact 14. Where a as to newspaper exists, nationality step, articles offered petitioner’s this instance even this Sihasale, that, court, by declared “The evi- expressly Board to a district transfer pertain reviewing here under consideration dence to courts INS deci- made available hand; apparently 1105a(a)(5)(B) (1970). best issue at But 8 U.S.C. sions. respondent; procedure it was made obtainable situation where this this is the officer; special inquiry adopted. the record least central tioners’ could factor claims proceedings successful even *11 peti- showing unreasonableness the the conditions in Haiti unique. if are This adduce the be- failure to evidence the would be case tioners’ if these claims are F.2d at 201. agency. the 521 by fore either legal by barred flaws or evidentia- ry weaknesses so acute as to be irremedia- Paul, however, the court conclud- In ble. additional evidence petitioners’ that the ed Id. the not material. Since aliens was It argued could be that although Bonan- their evi- proffered that not demonstrate likely nee and Coriolan are victims of moreover, material, their asser- was dence persecution, government what face is present failure to it earlier in that their persecution for their “political opinion” not was excusable also ran into proceeding the requires. believe, as the statute We cannot they pointed The excuse difficulty. to however, Congress would have refused counsel, assistance of alleged ineffective sanctuary to people whose misfortune it present to evi- the failure immaterial the a government was to be victims of assistance, hardly be ineffective could dence not require political which did activity or a would not bolster claim of hence trigger to its oppression. excuse. potential validity If the of their claims as case, again, materiality present In conceded, matter of law a is the weakness addition, In an seems clearcut. affidavit the evidence supporting those claims accompanying Amnesty International might be preclude still said to a conclusion report may indicates that this report reconsideration necessary. public available for use and have become clear, however, seems that Bonannee’s brief) (according petitioners’ to was not might fare claim better on a fuller look. A present counsel,15 their the hands of until recognition of severity capri- hearing the original both and the af- after ciousness of Haitian life well might Immigration Ap- the Board of by firmance support Bonannee’s claim that he paying context, accept In this a refusal to peals. the sins of his for father in 1956. Coriolan’s petitioners’ excuse as would reasonable of trouble with authorities, claim al- virtually provision read this remand out of though undermined his own contradicto- Surely every agency the statute. almost testimony, conceivably might ry appear in a provision reopening proceed- for its has light as well. different Both aliens’ allega- also, ings; surely, provisions those all penalty of fear of for illegal tions petitioners even after case available departures from might Haiti also deserve come the courts on If appeal. failure sympathetic consideration. provisions reopening utilize the for We therefore must reverse and remand 2347(c), relief claim for under fatal for a reconsideration of the claims Bo- it would then seem there could never nannee and Coriolan in light the Amnes- such be relief. report. International ty light of this Moreover, if we refuse to entertain this we disposition, do not petitioners’ reach the claim, the will petitioners still be able attacks additional on the proceedings below. an for administrative petition reopening. reopen INS refusal to An would be review- COLEMAN, Judge, dissenting. Circuit able abuse discretion. If refusal to matter, discretion, judicial As a reopen be an abuse I am disappointed would we majority be remiss to launch on a decides this appeal would this case lengthy procedural voyage directly contrary teachings to reach that manner impact report in two decision. The on the Court cases decided within months, past of Haitian conditions so Henry evaluation seems few see v. Immi- significant reopen Service, a refusal gration Cir., & Naturalization discretion, 130; peti- an abuse unless these F.2d Martineau v. Immigra- attorney proceedings agency. represented another before petitioners were 15. Service, Cir., 1977, being now on purely Naturalization remanded &tion con- petitioners clusory statements aliens Both cases involved report, in order that unauthenticated here from Haiti. illegally appeal, time for the first offered basis I astonished am considered. outstanding precedent is an disregard Judge Goldberg’s This reminds of words by pri- report distributed unauthenticated Henry, sadness circumscrip- “Our at all generally to deal group purports vate freedom, however, is no charter to tions Haiti, circum- conditions procedural disregard system created to petitioners themselves. stances *12 merit of such claims”. determine Moreover, report relevant even if this were the Henry appear opinion that It would appeal. first time on for the presented remarkably short life. had a has of demon- had the burden Petitioners probable persecution claims of Coriolan’s being probability” per- of strating a “clear ques- are without substantiation. When racial, religious, political rea- for secuted tioned, application asylum, on his for Coriol- Martineau, supra. Haiti, to deported if sons he that had never an said been arrested and itself reading majority opinion of A belonged never to any organi- had and Bonannee never that Coriolan shows said he He came to the zation. meeting shouting distance of within came because Tonton Macoutes States [Haiti- burden. police] semi-official secret scared him. Henry in more com- decision even his They had arrested mother’s cousin dur- result, only and one admits pelling ing reign the elder Duvalier [many these aliens deportation of who entered ago] because cousin years would not law, Country in deliberate violation of piece “give them cloth”. The cousin procedures Our for enforc- surreptitiously. from, heard not since been seen or but had laws are such a ing paper our no personal had connection what- deliberate violators have tiger these alleged ever with incident no other and and, years here for three thanks now been his own had family ever member been opinion, are destined to be majority to He had never talked openly arrested. longer. here much government had never and been against suspected being a Communist. No one Henry, Goldberg, Judge unani- to his home to ever come arrest him. had to panel, wrote that “The burden mous never Tontons had bothered or ha- by preponder- probable persecution prove any way. in was acquainted him He rassed squarely the evidence rested ance of and with Louis Pierre the Tontons were petitioners”. to arrest Pierre. Coriolan admitted about Henry further held (1) authority our to work came United States he petitioners’ the determination to review problems”. had he “small proof to meet their burden of failure mother, brothers, had a Bonannee four applicant has to whether the been limited living a sister in Port au Prince. He process procedural due and the accorded military in never been service had according applicable reached decision belonged any political organization. He (2) whether of law and the exercise rules he said that had never been arrested at first arbitrary capricious. has been discretion place time or and then said that he had enough, peti- Significantly some December, Haiti in arrested been Henry they claimed that since tioners father, Belizaire, Ofene Papa would regime had fled Doc funds for Duvalier handled hostility present be received “Dejoie Party”. At switched then pointed The Court out that government. he subsequent hearing admitted that his supported allegation had been been arrested in not 1973. father had personal conclusory knowl- if he returned to Haiti said that he He statements reports. This be shot. edge and unauthenticated would publicly that it It is no wonder position know by those in
asserted illegally millions aliens in this
there are taking jobs from those who com-
Country, bitterly job opportunity, lack
plain deficiency by lifting remedied abiding taxpayers, thereby, law
funds from effect, subsidizing illegal alien rack- thing is one major-
et. There sure—the going help is not
ity stemming
the tide. deportation
I affirm the these sentence,
petitioners citing Henry one Martineau, supra, authority as the doing.
so respectfully
I dissent. *13 MARSHALL,
Ray Secretary Labor, Department Labor, States
United
Plaintiff-Appellant, FARMS, corporation,
ABBOTT INC. a Abbott, Ralph H.
Defendants-Appellees.
No. 76-4512
Summary * Calendar Appeals, Court of States
Fifth Circuit.
Sept. Winston,
Norman G. Reg. Assoc. Solic- itor, Birmingham, Ala., Clauss, Carin Ann Labor, Dept, Labor, Solicitor Jacob I. Karro, Jr., Gerig, Acting W. Carl Assoc. Sol., Jr., Light, K. Atty., John Washington, C., plaintiff-appellant. D. Jones, Roger Monroe,
R. B. M. Birming- Ala., ham, for defendants-appellees. * 18, Cir.; Enterprises, Inc., Casualty Company York, see Isbell v. Citizens of New Rule et al., Cir., Part I.