RUIZ-MASSIEU
(2) A letter from the Secretary of State conveying the Secretary‘s determination that an alien‘s presence in this country would have potentially serious adverse foreign policy consequences for the United States, and stating facially reasonable and bona fide reasons for that determination, is presumptive and sufficient evidence that the alien is deportable under section 241(a)(4)(C)(i) of the Act, and the Service is not required to present additional evidence of deportability.
(3) The Government is not required to permit an alien who is deemed to be deportable under section 241(a)(4)(C)(i) of the Act to depart the United States voluntarily prior to the initiation of deportation proceedings where the alien‘s presence is pursuant to his voluntary decision to enter or seek аdmission to this country. Matter of Badalamenti, 19 I&N Dec. 623 (BIA 1988); Matter of Yam, 16 I&N Dec. 535 (BIA 1978); and Matter of C-C-, 3 I&N Dec. 221 (BIA 1948), distinguished.
(4) Extradition proceedings are separate and apart from deportation proceedings and the Government‘s success or failure in obtaining an order of extradition has no effect on deportation proceedings. Matter of McMullen, 17 I&N Dec. 542 (BIA 1980), rev‘d on other grounds, 658 F.2d 1312 (9th Cir. 1981), on remand, Matter of McMullen, 19 I&N Dec. 90 (BIA 1984), aff‘d, 788 F.2d 591 (9th Cir. 1986), followed.
In a decision dated May 30, 1997, the Immigration Judge found the respondent not deportable under section 241(a)(4)(C)(i) of the Immigration and Nationality Act,
I. FACTS AND PROCEDURAL HISTORY
The respondent is a native and citizen of Mexico, who served as the Deputy Attorney General of Mexico in 1993 and from May 1994 until he resigned that position on November 23, 1994. He was admitted to the United States as a nonimmigrant visitor for pleasure on March 2, 1995. Later that same day, he was arrested by the United States Customs Service, as he attempted to leave the United States, on account of his alleged failure to declare approximately $26,000 in currency. Charges in that case were subsequently dropped. An Order to Show Cause and Notice of Hearing (Form I-221) was issued on December 22, 1995. The respondent was charged with being deportable under section 241(a)(4)(C)(i) of the Act, based on a determination by the United States Secretary of State, Warren Christopher, dated October 2, 1995, that, in his opinion, the presence of the respondent in the United States may have serious adverse foreign policy consequences. The determination states that the failure to return the respondent
would jeopardize our ability to work with Mexico on law enforcement matters. It might also cast a potentially chilling effect on other issues our two governments are addressing. . . . Should the U.S. Government not return Mr. Ruiz Massieu to Mexico, our support of such reforms [of the Mexican judicial system] would be seen as hollow and self-serving and would be a major setback for President Zedillo and our combined efforts to chart a new and effective course of U.S.-Mexican relations.
See Appendix.
Deportation proceedings were enjoined by a district court judge, who found the statutory provision at issue to be unconstitutional, but the United States Court of Appeals for the Third Circuit dissolved the injunction, ruling that the respondent was required first to exhaust his administrative
II. GROUNDS OF DEPORTABILITY AND IMMIGRATION JUDGE‘S DECISION
Pursuant to the statute, “an alien whose presence or activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States is deportable.” Section 241(a)(4)(C)(i) of the Act.3 The Service contends that the letter of the Secretary of State is sufficient to render the respondent deportable as charged. In the alternative, the Service contends that the Secretary gave in his letter facially valid reasons for his opinion, which is all that is required under the statute. See Kleindienst v. Mandel, 408 U.S. 753 (1972) (finding bona fide and facially legitimate reasons sufficient to deny a waiver for a nonimmigrant visa).
The Immigration Judge found that the Service failed to carry its burden of proof to show that the respondent is deportable by clear, unequivocal, and convincing evidence. Woodby v. INS, 385 U.S. 276 (1966). In particu
According to the Immigration Judge, the Service has failed to show what it is about the respondent‘s presence here that caused the Secretary to believe that our foreign policy will be affected; for example, there is no evidence in the record of a pending criminal case in Mexico. Furthermore, she noted, his presence here is involuntary. Finally, the Immigration Judge rejected as unsupported the argument that the letter from the Secretary of State is a certification binding on the Immigration Court and that its mere existence requires that the alien be found deportable.
III. STATUTORY HISTORY
The authority of the Congress and executive branch to regulate the admission and status of aliens in the United States is virtually unrestricted. Fiallo v. Bell, 430 U.S. 787, 792 (1977); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 210 (1953). The federal courts have long recognized that the political branches of the Federal Government have plenary authority to establish and implement substantive and procedural rules governing the admission of aliens to this country. See Jean v. Nelson, 727 F.2d 957, 964 (11th Cir. 1984) (en banc) (citing Chae Chan Ping v. United States (The Chinese Exclusion Case), 130 U.S. 581 (1889)); see also Reno v. Flores, 507 U.S. 292 (1993). “The power to expel aliens, being essentially a power of the political branches of government, the legislative and executive, may be exercised entirely through executive officers, ‘with such opportunity for judicial review of their action as Congress may see fit to authorize or permit.‘” Carlson v. Landon, 342 U.S. 524, 537 (1952) (quoting Fong Yue Ting v. United States, 149 U.S. 698, 713-15 (1893)).
United States immigration law has long allowed the exclusion of aliens whose activities would be detrimental to the United States or whom the Secretary of State had reason to believe would engage in certain illegal activities, or who belonged or had belonged to certain organizations. Former section 212(a)(27) of the Act,
The Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978 (“IMMACT 90“), repealed sections 212(a)(27) and 241(a)(7) of the Act and replaced them with new provisions designed to address the concerns presented in cases such as Abourezk v. Reagan, supra, and Allende v. Schultz, supra.5 Under these new provisions, the standard for exclusion or deportation was squarely focused on a foreign policy determination entrusted to the Secretary of State. The Secretary must have reasonable ground to believe that the alien‘s entry or proposed activities, in the case of the exclusion provision, or presence or activities in the United States, in the case of the
In the present case, no allegations have been made regarding the respondent‘s activities. The issue of deportability turns solely on his presence in this country. Therefore, the respondent makes no claim to be eligible for the exception in section 241(a)(4)(C)(ii) of the Act for beliefs, statements, or associations which would be lawful within the United States.
The provision of the revised statute at issue here has been used very rarely. In Matter of Khalifah, 21 I&N Dec. 107 (BIA 1995), the only published Board case involving section 241(a)(4)(C) of the Act, the Board upheld the Immigration Judge, who denied release on bond to an alien facing deportation under section 241(a)(4)(C) of the Act. The only discussion of the provision of the Act before us in the federal courts is to be found in the decisions of the district court and the court of appeals in this matter. See Massieu v. Reno, supra. In the absence of direct precedent, the Immigration Judge and the respondent have cited to cases which predate the Immigration Act of 1990. These cases considered the provisions of the Act allowing the Government to bar the entry of one whose activities in the United States would be detrimental to United States interests. See sections 212(a)(27), (28) of the Act; Allende v. Schultz, supra; see also Abourezk v. Reagan, supra; City of New York v. Baker, 878 F.2d 507 (D.C. Cir. 1989) (same case). However, these cases are of limited relevance for two reasons. First, we are without jurisdiction to entertain a constitutional challenge such as those adjudicated in the cited cases.6 Second, the provision at issue in this case
IV. POSITIONS OF THE PARTIES
The Service argues that the Attorney General has no authority to inquire into the reasonableness of the Secretary of State‘s determination, pursuant to section 241(a)(4)(C)(i) of the Act, that there is a “reasonable ground to believe” that a particular alien‘s presence in the United States poses potentially serious adverse foreign policy consequences. The Service contends that the language employed in section 241(a)(4)(C)(i), read together with section 103 of the Act,
The decision of the Immigration Judge, according to the Service, effectively rewrote this provision to eliminate the determinative role of the Secretary of State and to require the Service to prove to the Immigration Judge‘s satisfaction, by clear, unequivocal, and convincing evidence, that there are reasonable grounds to believe that the alien‘s presence could harm the nation‘s foreign policy interests. On the contrary, the Service argues, review of the Secretary of State‘s determination by the Immigration Judge should be “ministerial,” and limited to matters such as “form and origin.”
The respondent argues that, just as in other deportation proceedings, the Service has the burden of establishing deportability by clear, unequivocal, and convincing evidence. In this case, the Immigration Judge correctly inquired into whether the Secretary of State had reasonable ground for his belief and found that the Service has failed to demonstrate reasonable ground for that belief. For example, the Service failed to support its case by providing any evidence other than the Secretary of State‘s letter, which provided no opportunity for the respondent to challenge the determination. In cases involving security issues, the Service has provided significant evidence in support of its contentions. See, e.g., Adams v. Baker, supra.
The respondent further asserts that the letter of the Secretary of State is also stale. The Service has not demonstrated that intervening events have not superseded the opinion expressed in 1995 by the then Secretary. According to the respondent, application of this standard of review does not violate the required deference to the opinion of the Secretary of State. The statute contemplates that the Attorney General will have the final word in matters of law. See section 103 of the Act. If the Immigration Judge has no role in deciding the issue of deportability, Congress would not have placed this provision in the section of the Act dealing with deportation after a hearing before an Immigration Judge. Furthermore, the Secretary of State should not be allowed to achieve indirectly the extradition of the respondent to Mexico where federal magistrates have denied extradition four times based on a lack of probable cause.
V. DISCUSSION
A. Nature of Respondent‘s Presence
The Immigration Judge has cited to cases holding that an alien held in the United States must be allowed the opportunity to leave before proceedings are initiated. These cases are clearly distinguishable from this case on the facts. Matter of Badalamenti, 19 I&N Dec. 623 (BIA 1988), involved an alien who was brought to the United States for prosecution. His entry was involuntary. Matter of C-C-, 3 I&N Dec. 221 (BIA 1948), involved an alien who was held in custody pending trial for a criminal charge past the time of his authorized stay. The Board held that he was not deportable as an overstay under the principle that the law does not compel the impossible. Id. at 222. The respondent in this case has not been charged with being deportable as an overstay. Finally, in Matter of Yam, 16 I&N Dec. 535 (BIA 1978), the alien also did not enter the United States voluntarily. In fact, the Board found that he should have been in exclusion proceedings. Id. at 537.
The respondent in this case entered the United States voluntarily and for his own private reasons. Accordingly, he subjected himself to our jurisdiction and our laws. It is the judgment of the Secretary of State that his presence here has potentially serious adverse foreign policy consequences for the United States. His entry into the United States is, by itself, the “presence” required for deportability under section 241(a)(4)(C) of the Act.
B. Standard of Review and Burden of Proof
This case presents a clear contrast. The respondent contends that the Immigration Judge was correct to require that the Service prove independently that the Secretary of State had a valid basis for his determination that the respondent‘s presence would have potentially serious adverse foreign policy consequences. This logically would require a presentation of evidence and independent review by the Immigration Judge regarding whether that evidence was sufficient to support the Secretary‘s determination. The Service contends that once the Secretary has issued such a determination, the role of the Immigration Judge, and indeed that of the Attorney General herself, is purely ministerial: to confirm that the respondent is an alien and that the Secretary‘s letter is genuine and pertains to the respondent.
The respondent‘s position would, as the Service has argued, fundamentally rewrite the text of section 241(a)(4)(C)(i) of the Act. A two-step inquiry would be required: first, evidence that the Secretary of State has made a determination based on foreign policy interests, and second, that there is clear, unequivocal, and convincing evidence that this determination is based on a reasonable ground. The second inquiry would necessarily require an evaluation of what, in fact, are the foreign policy interests of the United States, and thus leave open thе possibility that aliens such as the respondent could contest, before an Immigration Judge, whether such foreign policy interests are themselves reasonable.
Such review is not contemplated by section 241(a)(4)(C)(i) of the Act. This provision grants exclusive authority to the Secretary of State to determine whether there is a “reasonable ground” to believe that the alien‘s presence could have the requisite adverse foreign policy impact. Neither the Attorney General nor her delegates have a role in that basic determination. Otherwise, an alien could be deported under this provision if the Attorney General had reasonable ground to believe that the alien‘s presence would cause the requisite foreign policy consequences. This is not how the provision reads.
We are further persuaded in this position by several facts. First, the Attorney General did have authority, before the IMMACT 90, to determine independently that an alien‘s admission to the United States would be prejudicial to the public interest or endanger the security or the welfare of the United States. No participation by the Secretary of State was required either to exclude an alien under section 212(a)(27) or to deport an alien under section 241(a)(7) of the Act. Under the provisions enacted in the IMMACT 90, however, Congress has explicitly and deliberately carved out a provision that requires a foreign policy determination by the Secretary of State before an alien can be excluded or removed.
Second, the role of the Secretary of State under section 241(a)(4)(C)(i)
Third, absent a determination by the Secretary of State that an alien‘s activities or presence in the United States would cause potentially serious adverse foreign policy consequences, the Service cannot initiate deportation proceedings under section 241(a)(4)(C)(i) of the Act. The Immigration Judge would have no jurisdiction over such proceedings, other than to order their termination. It is unlikely that Congress, having made the Secretary‘s foreign policy determination essential for such proceedings to be initiated, would then grant an Immigration Judge and this Board authority to question the validity of that determination.
The argument that deportability under section 241(a)(4)(C)(i) of the Act should be decided in the same manner as other grounds of deportation is unavailing.10 No other ground of deportation assigns a specific and essential role to the Secretary of State. The fact that this ground has been included in the same section as other grounds of deportation that do require a more active fact-finding role by the Immigration Judge is irrelevant: this is a ground of deportability, and regardless of who is responsible for making the determination of deportability, and under what standard of proof, it was perfectly reasonable for Congress to include it among the other grounds of deportability. Furthermore, the fact that Congress did not provide special procedures for the handling of such cases, as it has in the case of criminal aliens or alien terrorists, does not diminish the conclusive effect of the Secretary of State‘s determination. Under the plain terms of section 241(a)(4)(C)(i) of the Act, deportability is established in a manner different from many other grounds of deportation. The fact that Congress did not provide a special form of proceeding in such cases is not determinative.
Finally, the respondent‘s argument that the Service‘s burden in this case should apply equally to all elements of the charge, as in other deportation
It might be argued that a record of criminal conviction presents a different case because it is based on a determination of guilt following a formal judicial proceeding, as opposed to the Secretary of State‘s unilateral judgment regarding adverse foreign policy consequences. That argument, however, is properly directed at Congress’ decision to assign authority under section 241(a)(4)(C)(i) of the Act to the Secretary of State. We are obliged to apply the laws as written by Congress and are without jurisdiction to entertain challenges to the validity of such laws under the Constitution. See Matter of Punu, 22 I&N Dec. 3364, at 8 (BIA 1998); Matter of Hernandez-Puente, 20 I&N Dec. 335 (BIA 1991); Matter of Fede, 20 I&N Dec. 35 (BIA 1989); Matter of Valdovinos, 18 I&N Dec. 343 (BIA 1982); Matter of Cenatice, 16 I&N Dec. 162 (BIA 1977); Matter of L-, 4 I&N Dec. 556 (BIA 1951). In the scheme adopted by Congress, the Secretary of State‘s determination as outlined in section 241(a)(4)(C)(i) of the Act is equivalent to a duly certified record of criminal conviction by a state or federal court. The requirements of administrative due process are satisfied once the alien is notified that the basis for the charges against him is a determination by the Secretary under section 241(a)(4)(C)(i) of the Act.
Adopting the respondent‘s argument would necessarily require the Immigration Judge and this Board to intrude into the realm of foreign policy. The Secretary of State has the responsibility to implement the foreign policy of the United States.
For an example, we need only look to the opinion in the present case. The Immigration Judge held that the Service must produce more than clear, unequivocal, and convincing evidence that the Secretary of State held a facially reasonable opinion that the alien‘s presence would have adverse foreign policy consequences. She required the Service to convince her by clear, unequivocal, and convincing evidence that the Secretary‘s opinion is reasonable. The Immigration Judge found that the Service had not shown that the opinion of the Secretary of State is reasonable.12 Consequently, in the absence of further evidence, she substituted her judgment for that of the Secretary of State. This standard of inquiry would entangle the Immigration Court in matters of foreign policy and involve that court in weighing the importance of various factors in an area in which it has no special expertise. Such an in-depth examination could well require the Service to proffer secret or confidential information and expert witnesses, or involve a deposition of the Secretary of State. There is no indication that Congress contemplated an Immigration Judge, or even the Attorney General, overruling the Secretary of State on a question of foreign policy.13
We also believe, however, that the language of section 241(a)(4)(C)(i) of the Act, together with the structure of responsibility set forth in section 103, require that the Secretary of State have set forth a facially reasonable and bona fide basis for a determination under section 241(a)(4)(C)(i). Section 103 of the Act provides that in the administration of the Act, the determinations and rulings of the Attorney General on all questions of law
Thus, we find that it is within the province of the Attorney General and her delegates to ensure that the Secretary of State‘s determination, on its face, rests on the Secretary‘s judgments regarding foreign policy. We apply the standard of facial reasonableness that was adopted by the Supreme Court in Kleindienst v. Mandel, supra, at 770:
[W]hen the Executive exercises this power [to exclude aliens] negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant.
We need not consider at this time the purely speculative hypothetical in which the Secretary of State gives no reason whatsoever for his or her determination under section 241(a)(4)(C)(i) of the Act, or a situation where the reasons given are clearly unreasonable.14
The reasons given in the October 5, 1995, letter of the Secretary of State are facially legitimate and bona fide. There is no question, and no contrary allegation has been made on this record, that the reasons stated therein do not proceed from a judgment involving the foreign policy interests of the United States. We find that the October 5, 1995, letter of the Secretary of State explaining his determination that the respondent‘s presence here has potentially serious adverse foreign policy consequences for the United States, and setting forth his reasons for so concluding, meets the Service‘s burden to establish by clear, unequivocal, and convincing evidence that the respondent is deportable under section 241(a)(4)(C)(i) of the Act.
C. Other Issues
The respondent argues that the Attorney General should not be allowed to deport him, having failed in her attempt to comply with the Mexican Government‘s attempt to extradite him to Mexico. Extradition proceedings are separate and apart from any immigration proceeding. Matter of McMullen, 17 I&N Dec. 542, 548 (BIA 1980), rev‘d on other grounds, 658 F.2d 1312 (9th Cir. 1981), on remand, Matter of McMullen, 19 I&N Dec. 90 (BIA 1984), aff‘d, 788 F.2d 591 (9th Cir. 1986). The standards of proof are different. As the Service has pointed out, not all of the charges brought in Mexico were cited as a basis for extradition. Also, the existence of criminal charges is not the only possible basis for a determination that the respondent‘s presence may have adverse foreign policy consequences. We note that other aliens have been deported after extradition requests were denied by the courts. In Matter of McMullen, 17 I&N Dec. 542, the Government petition for extradition was denied. The respondent was nevertheless found deportable. The Board stated:
Decisions resulting from extradition proceedings are not entitled to res judicata effect in later proceedings. Hooker v. Klein, 573 F.2d 1360 (9th Cir. 1978). See also Jhirad v. Ferrandina, 536 F.2d 478 (2d Cir. 1976). . . . Moreover, the res judicata bar goes into effect only where a valid, final judgment has been rendered on the merits (Hooker, supra), and it is well established that decisions and orders regarding extraditability “embody no judgment on the guilt or innocence of the accused . . . .” Jhirad, supra, at 482. . . . The issues involved in a deportation hearing differ from those involved in an extradition case, and resolution of even a common issue in one proceeding is not binding in the other.
Id. at 548; see also Matter of Perez-Jimenez, 10 I&N Dec. 309 (BIA 1963).
In Matter of Doherty, 599 F. Supp. 270 (S.D.N.Y. 1984), the respondent was not extradited because the judge, sitting as a magistrate, found that the crimes he committed were political; nevertheless, Doherty was found deportable based on his own concession of deportability. The Attorney General rejected his designation of a country of deportation under section 243(a) of the Act,
D. Further Proceedings
Section 243(a) of the Act (now section 241(b)(2) of the Act,
ORDER: The appeal of the Immigration and Naturalization Service is sustained.
FURTHER ORDER: The Immigration Judge‘s order of May 30, 1997, is vacated, and the record is remanded to the Immigration Court for further proceedings consistent with the foregoing opinion.
Board Members Lauri S. Filppu and Lori L. Scialabba did not participate in the decision in this case.
APPENDIX
THE SECRETARY OF STATE
WASHINGTON
OCTOBER 2, 1995
Dear Madam Attorney General:
I am writing to inform you that, pursuant to Section 241(a)(4)(C) of the Immigration and Nationality Act, 8 U.S.C. section 1251(a)(4)(C), I have concluded that the presence of Mario Ruiz Massieu in the United States would have potentially serious foreign policy consequences for the United States. Accordingly, I request that you take all steps possible, consistent with the Immigration and Nationality Act and other relevant law, to effect his deportation to Mexico.
My decision to invoke INA section 241(a)(4)(C) with respect to Mr. Ruiz Massieu is based on the following considerations: As you are well aware, the United States and Mexico have made tremendous progress in the past five years in strengthening one of our most important bilateral relationships. The range of issues that unite our two nations — from combating international drug trafficking, to addressing vexing problems of legal and illegal migration, to fortifying trade and investment in one of the world‘s largest and fastest growing markets — is complex and varied.
One aspect of our relationship that has received the utmost attention from both governments is our ability to cooperate to confront criminality on
Furthermore, the case in question involves charges against the former second ranking law enforcement authority in Mexico and a man connected through his circle of family and friends to the center of power in Mexican politics. Serious allegations against such a high former official are unprecedented in modern Mexico. The case against Mr. Ruiz Massieu and the arrest and trial for related crimes of Mr. Raul Salinas, brother of the former President, were the dramatic and unequivocal signs of the determination of President Zedillo and his Attorney General to break the so-called “culture of impunity” that long protected corrupt politicians, officials and other powerful elite from being held accountable for their actions and crimes. President Zedillo‘s anti-corruption drive has resonated throughout Mexico and continues to receive strong support from the Mexican people.
The U.S. Government has consistently urged Mexico to take the steps towards reform in its justice system that President Zedillo is so forcefully pursuing. The ability to prosecute Mr. Ruiz Massieu and other powerful individuals in Mexico for the crimes of which they are accused is key to the success of Zedillo‘s pledge to transform totally the judicial and law enforcement system and to rid Mexico of corruption and abuse of power. Should the U.S. Government not return Mr. Ruiz Massieu to Mexico, our support of such reforms would be seen as hollow and self-serving and would be a major setback for President Zedillo and our combined efforts to chart a new and effective course of U.S.-Mexican relations.
Our efforts to remove Mr. Ruiz Massieu from the United States should be directed at achieving his direct return to Mexico. When apprehended in New Jersey, Mr. Ruiz Massieu was attempting to depart the United States just days after being called for questioning in Mexicо with regard to the crimes with which he was subsequently charged. If our efforts to remove him from the United States result in his ability to depart to a destination other than Mexico, the U.S. Government will almost certainly be viewed by Mexican officials and the Mexican public as not only permitting, but also aiding his successful escape from justice.
Accordingly, I have concluded that Mr. Ruiz Massieu‘s presence in the United States would have potentially serious adverse foreign policy consequences for the United States, as provided for in INA section 241(a)(4)(C). I request that you take all reasonable efforts to ensure Mr. Ruiz Massieu‘s expeditious deportation from the United States. Further, in light of the
Sincerely,
/s/ Warren Christopher
Warren Christopher
DISSENTING OPINION: Lory D. Rosenberg, Board Member, in which Paul W. Schmidt, Chairman, joined
I respectfully dissent.
“The facts of this case read more like a best-selling novel than a typical deportation proceeding,” stated the District Court for the District of New Jersey, in Massieu v. Reno, 915 F. Supp. 681, 686 (D.N.J.), rev‘d and remanded, 91 F.3d 416 (3d Cir. 1996).1 I agree.
The respondent, a prominent international figure, has been detained by the Immigration and Naturalization Service for nearly 4 years, and his situation raises constitutional questions that have engendered significant federal court litigation to date. Although the federal court decisions that have been issued in relation to his predicament are not dispositive of the principal issue before us on appeal, they do inform that issue, and the factual matters they describe have some bearing on our ultimate disposition of his appeal. Consequently, I find that the factual evaluation by the district court
The district court found:
Mr. Ruiz Massieu entered this country legally and is not alleged to have committed any act within this country which requires his deportation. Nor, on the state of this record, can it be said that there exists probable cause to believe that Mr. Ruiz Massieu has committed any act outside of this country which warrants his extradition, for the government has failed in four separate proceedings before two Magistrate Judges to establish probable cause.
Massieu v. Reno, 915 F. Supp. at 686. As the district court explained,
The issue before the court is not whether plaintiff has the right to remain in this country beyond the period for which he was lawfully admitted; indeed, as a “non-immigrant visitor” he had only a limited right to remain here but the right to then go on his way to wherever he wished to go. The issue, rather, is whether an alien who is in this country legally can, merely because he is here, have his liberty restrained and be forcibly removed to a specific country in the unfettered discretion of the Secretary of State and without any meaningful opportunity to be heard. The answer is a ringing “no“.
Id. (emphasis added).
Critical to our determination on appeal is whether the Service is relieved of its burden of proving deportability by evidence that is clear, unequivocal, and convincing. The majority adopts the position advocated by the Service that the role of the Immigration Judge and, indeed, this Board, in cases involving deportation charges brought under section 241(a)(4)(C)(i) of the Immigration and Nationality Act,
Instead, I agree with the approach followed by the Immigration Judge. She ruled that the plain language of section 241(a)(4)(C)(i) requires that the Service prove (1) the Secretary‘s belief; (2) the Secretary‘s concern regarding the respondent‘s presence in this country; and (3) the “reasonable ground to believe” that the respondent‘s presence would have serious adverse foreign policy consequences. Therefore, I would affirm the decision of the Immigration Judge, and consequently, I dissent.
I. ISSUE
This case presents the broad question of the allocation of authority between the Secretary of State and the Attorney General relevant to determining the ground of deportability codified at section 241(a)(4)(C)(i) of the Act. In practice, the case raises the specific issue of whether the Service shall be relieved of the burden it ordinarily bears in cases of deportability where the Secretary of State indicates that a respondent‘s presence or activities in the United States “would have potentially serious adverse foreign policy consequences.” Section 241(a)(4)(C)(i) of the Act.
II. FACTUAL BACKGROUND
According to the district court, whose findings are not contradicted by the record before us, the respondent is a citizen of Mexico and a member of one of Mexico‘s most influential and politically active families. Over the past 20 years, the respondent lived an academic life, both as a professor and director of the National University of Mexico. In addition, in recent years, he has been appointed by the Institutional Revolutionary Party (“PRI“), Mexico‘s only established ruling party, to several positions at the uppermost echelons of the Mexican Government, including Deputy Attorney General in 1993, Under Secretary for the Department of Government in 1994, and Deputy Attorney General, again, in May 1994. Massieu v. Reno, 915 F. Supp. at 687.
On September 28, 1994, within 6 months of the assassination of Luis Donaldo Colosio, the then PRI presidential candidate, the respondent‘s brother, Jose Francisco Ruiz-Massieu—Secretary General of the PRI and an outspoken critic of the Mexican political system —was assassinated. Within hours, the respondent, who then held the position of Deputy Attorney General, began an investigation into his brother‘s murder. As the district court tells it, “In the ensuing weeks, fourteen people were apprehended and indicted as part of a conspiracy uncovered through Mr. Ruiz Massieu‘s investigatory efforts. Many . . . named Manuel Munoz Rocha, a
In a “dramatic and widely publicized speech” on November 23, 1994, the respondent announced that he was resigning from both his office and his party because of efforts by very high ranking members of the PRI—including those who might have ordered former Deputy Munoz Rocha, to act—to frustrate his investigation into his brother‘s murder. Id. In February 1995, after the respondent published a book entitled Yo Accuso: Denuncia De Un Crimen Politico (“I Accuse: Denunciation of a Political Crime“), which elaborated on his resignation address, Mexican authorities alleged that the respondent committed the crimes of intimidation, concealment, and “against the administration of justice” (a crime analogous to obstruction of justice in this country) in connection with the investigation of his brother‘s assassination. The district court noted that “[c]ontemporaneously, Mr. Ruiz Massieu claimed that he and his family began to receive both death and kidnapping threats. On March 2, 1995, he appeared for an official interrogation before Mexican authorities concerning the allegations of his criminal activity committed while in office.” Massieu v. Reno, 915 F. Supp. at 687.
I recount the factors underlying the respondent‘s entry to, and attempted departure from, this country, not merely because they make a compelling story of mystery and suspense, but because they are relevant to our resolution of the appeal before us. The respondent left Mexico with his family the same day he was interrogated and threatened by the government that he believed to be covering up the assassination of his brother at the hands of one of its officials. According to the findings of the district court, on March 2, 1995, he and his family lawfully entered the United States as nonimmigrant visitors at Houston, Texas, where they have owned a home since October 1994. After remaining at their Houston home for a night, the family boarded a plane en route to Spain. When the plane touched down at Newark Airport on March 3, 1995, the respondent was arrested by United States Customs officials, pursuant to
As the district court recounts, “The government had lost its case, but not its will.” Id. In a subsequent extradition proceeding, the Government sought and lost its request for extradition based on Mexico‘s newly filed charges of embezzlement. The court found that “the government had failed to demonstrate probable cause, or present any evidence whatsoever, that the funds had been illegally obtained or disbursed.” Id. “Undeterred, on August 31, 1995, the government refiled its initial request for extradition based on the charge of ‘against the administration of justice,‘” which was rejected on the basis that despite nine new statements allegedly incriminating the respondent, there was no probable cause to believe that he had committed the acts alleged. Id.
A fourth extradition proceeding, premised on the Government‘s prior application relating to the previously rejected embezzlement charges, was heard аnd dismissed by a different district court judge. According to the district court, at this hearing, “[T]he government produced evidence which ‘clearly establishe[d]’ that 800,000 of the alleged 2.5 million pesos embezzled were not, in fact, proceeds of the alleged embezzlement.” Id. “Thereafter, the United States Attorney‘s Office for the District of New Jersey withdrew from further representation of the Mexican government. . . . [However,] the United States Department of Justice stepped in and continued to press for . . . extradition on the embezzlement charges . . . [which was denied because] Magistrate Judge Chesler stated that ‘the bottom line is that the government‘s efforts to establish an inference of criminality on the basis of unexplained wealth fails because it does not rise to the level where any nexus between those funds and the funds which Mr. Massieu is alleged to have embezzled has been established.‘” Id. Indeed, “[o]n January 11, 1996, a Mexican court dismissed the embezzlement charges.” Id.
As the district court found, “It was then, however, that this case took a turn toward the truly Kafkaesque.” Id. at 689. On December 22, 1995, immediately after Magistrate Judge Chesler issued his opinion, the respondent was taken into custody by the Service pursuant to a previously unserved and unannounced detainer dated September 29, 1995. In addition, he was served with an Order to Show Cause and Notice of Hearing (Form I-221) by the Service. The notice advised the respondent that he was ordered to show cause as to why he should not be deported because
[t]he Secretary of State has made a determination that, pursuant to Section 241(a)(4)(C) of the Immigration and Nationality [sic] Act,
8 U.S.C. § 1251(a)(4)(C) , there is reаsonable ground to believe your presence or activities in the United States would have potentially serious adverse foreign policy consequences for the United States.
Id. Following the events recounted above, the Service
produced an October 2, 1995 letter addressed to Attorney General Janet Reno from Secretary of State Warren Christopher . . . . The letter urged the Attorney General to effect Mr. Ruiz Massieu‘s “expeditious deportation” “to Mexico” based on the Secretary‘s conclusion that Mr. Ruiz Massieu‘s presence in the United States will have potentially serious adverse foreign policy consequences for the United States. . . . The letter referenced the “serious allegations” that are pending in Mexico against Mr. Ruiz Massieu and the recent strides that both governments have taken in “our ability to cooperate and confront criminality on both sides of the border.” . . . At bottom, the Secretary‘s request was premised on the proposition that “[o]ur inability to return to Mexico Mr. Ruiz Massieu—a case the Mexican Presidency has told us is of the highest importance—would jeopardize our ability to work with Mexico on law enforcement matters. It might also cast a potentially chilling effect on other issues our two governments are addressing.”
I reproduce these excerpts from the district court opinion not because they are binding on the Attorney General, and not because either the grounds or standards applicable to extradition are the same as those applicable to determinations of deportability, over which we have authority, but because they bear on two issues relevant tо our determination of deportability. First, they are relevant to a determination whether the Service has met its burden of proving deportability under Woodby v. INS, 385 U.S. 276 (1966), and
III. DEPORTABILITY UNDER SECTION 241(a)(4)(C) OF THE ACT
The decision of the Immigration Judge properly refutes many of the assertions advanced by the majority, and I need not reiterate that decision in its entirety. However, it is important to state clearly that evidence of forced
Here, there is no question but that the respondent entered. Nevertheless, his presence here is compulsory, not voluntary. He has been seeking to depart the United States for over 4 years, since the initial 24-hour time period in which he fled Mexico and first entered the United States lawfully on a temporary visa. He has been held in custody at the behest of the United States Government despite his desire to leave the country. I find it disingenuous to contend that his presence causes the United States foreign policy concerns when the United States is compelling his presence. I also note that the letter of the Secretary of State is dated, and relates back to, 1995, 4 years ago. I note further that the Secretary of State‘s letter preceded the denial of four extradition proceedings in which the Government sought to return the respondent to Mexico. To the extent that his presence causes any reasonable concern today, it is the United States Government, and not any effort or desire of the respondent, that is perpetuating the basis for such concerns.
A. Statutory Language and Congressional Intent
The ambiguities contained in section 241(a)(4)(C) of the Act cannot be disputed. The Immigration Judge and the respondent took one position regarding its interpretation and application. The Service took another position, which the majority has adopted as its own. I disagree and am filing this dissenting opinion. Certainly, the statutory language is not clear, and it does not resolve the question before us regarding the effect of thе letter submitted by the Secretary of State, in relation either to the respondent‘s due process rights or to the statutory and regulatory requirements that govern deportation hearings.
There is a paucity of legislative history on section 241(a)(4)(C) of the Act. The Congressional Record suggests that the provision was added after both versions of the legislation had been approved by the United States Senate and House of Representatives. The Congressional Record reflects that the parameters of the 1990 amendment resulting in section 241(a)(4)(C) were neither fully debated nor clearly understood in practical terms:
Mrs. Kassebaum. Mr. President, I rise today to express concern about a provision in
the 1990 immigration legislation, giving the Secretary of State expanded authority to prohibit aliens from entering the United States. . . . I am also concerned about the procedure used to adopt this proposal. This expansion of the Secretary‘s discretion was not part of either the Senate or House versions of this legislation. It was not debated or discussed by either body or by the committees of jurisdiction.
136 Cong. Rec. 17,106, 17,114 (1990).2
Where there is doubt as to Congress’ intent, deportation statutes must be construed in favor of the alien. INS v. Errico, 385 U.S. 214, 225 (1966); Lennon v. INS, 527 F.2d 187 (2d Cir. 1975). “Even if there were some doubt as to the correct construction of the statute, the doubt should be resolved in favor of the alien. . . . [E]ven where a punitive section is being construed: ‘We resolve the doubts in favor of that construction because deportation is a drastic measure and at times the equivalent of banishment or exile.‘” INS v. Errico, supra, at 225 (quoting Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948)). In addition, when discretionary enforcement implicаtes a liberty interest, courts will hesitate to “impute to Congress . . . [an intention] to give [the Secretary of State] unbridled discretion.” Kent v. Dulles, 357 U.S. 116, 128 (1958) (finding that the Secretary of State was not authorized to deny passports to United States citizens).
In Greene v. McElroy, 360 U.S. 474, 504 (1959), the Supreme Court refused to infer that Congress or the President intended to authorize the Department of Defense to create a clearance program, which would have denied procedural due process to employees by permitting the Defense Department the discretion to deny or revoke security clearances without revealing the derogatory information to the employee. Without clear delegation by Congress, the Court declined to assume that Congress intended to deny due process procedures by implication. Id. Similarly, in the immigration context, the courts have made it clear that, although Congress has broad power to legislate, it cannot authorize the denial of due process. See, e.g., Rafeedie v. INS, 880 F.2d 506, 523 (D.C. Cir. 1989).
In Doe v. Casey, 796 F.2d 1508 (D.C. Cir. 1986) aff‘d in part, rev‘d in part sub nom. Webster v. Doe, 486 U.S. 592 (1988), the D.C. Circuit considered whether a statute that authorized the Central Intelligence Agency (“CIA“) to terminate employment precluded judicial review, by providing that “the Director of Central Intelligence may, in his discretion, terminate the employment of any officer or employee of the Agency whenever he shall deem such termination necessary or advisable in the interests of the United States.” Id. at 1513 (citing section 102(c) of the National Security
The D.C. Circuit also rebuffed the CIA‘s argument that the sensitive nature of its work precludes judicial review. The court stated that it must abide by what Congress intended, not by what the agency finds preferable. If Congress had intended to preclude review, it would have done so expressly. Id. at 1516. The court stated:
Congress could have explicitly precluded judicial review; it did not do so. Or, Congress could have written section 102(c) narrowly to state that “the director may, in his sole discretion, terminate the employment of any officer or employee of the Agency” (omitting any reference to “necessary or advisable in the interests of the United States“); it did not so limit the language of the statute.
In enacting section 241(a)(4)(C) of the Act, Congress stated that, in order for an alien to be found deportable, the Secretary of State must have a reasonable ground to believe that the alien‘s presence or activities could have potentially serious adverse foreign policy consequences. There is no indication that Congress intended to give unbridled discretion to the Secretary of State to determine—without any hearing or review—that an alien is deportable. Rather, the language of the statute provides limitations on the Secretary‘s discretion and provides a meaningful framework in which to conduct a hearing on deportability.
B. Due Process and Burden of Proof
The Supreme Court has held that due process guarantees cannot be abandoned lightly, stating that “[t]he requirement of ‘due process’ is not a fair-weather or timid assurance. It must be respected in periods of calm and in times of trouble; it protects aliens as well as citizens.” Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 162 (1951). In Greene v. McElroy, supra, the Court upheld this principle in practice, stating:
One of these [immutable principles] is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government‘s case must be disclosed to the individual so that he has the opportunity to show that it is untrue.
Id. at 496 (emphasis added).
This constitutional protection not only attaches to criminal trials but to “all types of cases where administrative and regulatory actions were under scrutiny.” Id. at 497. Although evidentiary rules are relaxed in deportation proceedings, the requirement of fundamental fairness is extended to an
Unproven allegations are not sufficient to find an alien deportable. The Government must always prove the basis for deportation by introducing evidence of the allegations into the record. See, e.g., Matter of M-, 5 I&N Dec. 484 (BIA 1953) (requiring testimony and cross-examination to establish an alien‘s deportability under the Act of 1918 as a “member of the Communist Party of the United States аfter entry“).
In fact, the statute‘s language gives far less authority to the Secretary of State than did the statute in Doe v. Casey, supra, vis-a-vis the Director of the CIA. A failure to require the Government to prove that there is a reasonable ground to conclude that the respondent‘s presence or activities in this country would have potentially serious adverse foreign policy consequences ignores and eviscerates clear language in the deportation statute, and deprives the respondent of his due process rights to a meaningful hearing. There is no question that, under the statute, the Immigration Judge—not the Secretary of State—must make the determination of deportability. As the Supreme Court stated in Bridges v. Wixon, supra:
It is the action of the deciding body, not the recommendation of the inspector, which determines whether the alien will be deported. The rules afford protection at that crucial stage of the proceedings or not at all. The person to whom the power to deport has been entrusted is he Attorney General or such agency as he designates . . . . He is the original trier of fact. It is his decision to deport an alien that Congress has made “final.”
Id. at 152 (emphasis added).
Thus, in the instant case, although the Secretary of State conveys his opinion to this tribunal in the form of a 1995 letter stating his beliefs, the Immigration Judge below, and the Board on review, must determine based
This suggests that the Service must bear its ordinary burden of proving deportability under the applicable standard. The letter of the Secretary of State is what it is. It may or may not be adequate to sustain a finding of deportability. The Service is not relieved of its obligation to make out a case establishing that the respondent is deportable as charged.
In fact, when Congress has intended to give wider discretion to the executive branch in implementing provisions within the Act, it has done so specifically in the wording of the statute. Cf. section 243(a) of the Act,
C. Section 241(a)(4)(C)(ii) Exception
Finally, although the majority contends that the respondent did not seek to establish an exception to the provision under the statute, the Third Circuit found to the contrary, stating:
Also, plaintiff argued in the district court that he came within the statutory exception contained in § 241(a)(4)(C)(ii). Under that exception, an alien who shows that he is being deported because of past statements that would be lawful within the United States shall not be deportable unless the Secretary of State personally determines that non-deportation would compromise a compelling United States foreign policy interest. See § 241(a)(4)(C)(ii),
8 U.S.C. § 1251(a)(4)(C)(ii) (incorporating8 U.S.C. § 1182(a)(3)(C)(ii) & (iii)). Plaintiff‘s statutory exception argument is not frivolous, and we have no way of knowing whether the Secretary would have made the necessary statutory finding. These issues could and should have been litigated before the immigration judge and the Board of Immigration Appeals.
Massieu v. Reno, 91 F.3d at 426. Significantly, the Third Circuit noted, “In light of the above, we cannot agree with the district court‘s statement that ‘[n]ot one of the purposes underlying the doctrine would be served by requiring exhaustion.’ 915 F. Supp. at 697.” Id. Thus, in finding that the respondent had not exhausted his administrative remedies, the Third Circuit appears to anticipate that the Immigration Judge and the Board would play a role that is more than ministerial. Id. (stating that “[t]here are certainly issues to which the immigration judge and the Board of Immigration Appeals will be able to apply their expertise, and the resolution of a number of those issues could well resolve this matter without the need for any involvement by the federal courts“).
IV. ASYLUM AND CONVENTION AGAINST TORTURE
In its opinion reversing the finding of the district court that the provision invoked against the respondent is unconstitutional, the Third Circuit noted the following:
Plaintiff has at numerous times in this proceeding indicated an intention to seek asylum in this country. . . . While the asylum claim is within the discretion of the Attorney General, withholding of deportation shall be granted if the alien satisfies the relevant standards.
8 U.S.C. § 1253(h)(1) . Moreover, despite plaintiff‘s claim that the Attorney General has predetermined the asylum issue, we have no way of determining whether the Attorney General will change her mind regarding plaintiff‘s deportation after plaintiff presents the evidence supporting his asylum and withholding-of-deportation claims.
Massieu v. Reno, 91 F.3d at 425-26 (citations omitted).
The respondent‘s circumstances present a situation in which a close family member was assassinated for political reasons. The respondent himself was driven out of his country as а result of explicitly political pressures and threats made against him and his family, because of the respondent‘s opinions and actions contrary to the government position. Even if the respondent was ineligible or opted not to apply for asylum and withholding of deportation, he would be a candidate for protection under the Convention against Torture.
V. CONCLUSION
I cannot join an opinion that places the respondent in an impossible situation. Having entered the United States in flight from life-threatening conditions, and almost immediately seeking to leave, the respondent was apprehended and placed in custody. After such actions on the part of our government, the Service, supported by a 4-year-old letter from the Secretary of State, contends that the respondent is deportable because his presence—which we have compelled—constitutes a potentially serious adverse foreign policy consequence. Yet the basis for this supposed potentially serious foreign policy consequence has been rejected four times by two federal judges in the context of extradition proceedings. The factual allegations contained in the letter of the Secretary of State provide no information that has not been thoroughly questioned and rejected by judges of our federal courts, albeit for a slightly different purpose, extradition.
I find it pure obstinacy to insist that the Secretary of State‘s letter is dispositive, when Congress did not designate this ground of deportability as subject only to nonadversary or other limited proceedings, as it so readily did in other cases. There is no statutory indication that the Service was to be relieved of proving deportability in this case. It should be held to that burden, just as it is, or should be, in any other deportation case.