Selgeka v. CarrollSelgeka v. Carroll
Lead Opinion
Vacated and remanded by published opinion. Senior Judge BUTZNER wrote the majority opinion, in which Judge ERVIN joined. Judge LUTTIG wrote a dissenting opinion.
OPINION
Besnik Selgeka, a stowaway, appeals the district court’s denial of his petition for writ of habeas corpus. In his petition he challenges the denial of a full and fair opportunity to present his claim for asylum. He seeks to have his asylum application heard by an immigration judge instead of an INS asylum officer who merely conducted an informal interview. In support of his claim he relies on statutory grounds and the Due Process Clause of the Fifth Amendment. The district court decided that the Board of Immigration Appeals (BIA) properly affirmed the denial of Selgeka’s application for asylum and withholding of deportation. The government contends that this court lacks jurisdiction over Selgeka’s appeal. We hold that we have jurisdiction, vacate the district court’s judgment and the BIA decision, and remand this case to the appellees for a hearing before an immigration judge.
I
Selgeka is an ethnic Albanian who is a native of the province of Kosovo. In Janu
I fear persecution if I return to Koso-va.... [T]he Serbs put the Albanians in the front lines, and the Albanians are not sure if they are killed by the Bosni-ans in the front or the Ser[b]ians behind them.... The Serbs have commi[t]ted horrible acts which I do not believe in.... To be forced to serve in the army is against my political beliefs.
Selgeka also stated that ethnic Albanians are punished more severely than other draft evaders. His brother was drafted and killed under unknown circumstances. His father, a vocal advocate for Albanians, was shot and left to die.
The atrocities by the Serbian government in Kosovo have been well documented:
There were approximately 2,400 cases of arbitrary arrests of Albanians by Serbian authorities, and thousands more summoned for “informative talks.” Many of these individuals were beaten by the police.... Serbian police continued to raid Albanian villages, conduct indiscriminate and brutal house raids ... and arbitrarily arrest and imprison individuals. Excessive force and torture during detention were often reported.
Human Rights Watch, Human Rights Watch World Report 1996, 250-51 (1996). Needless to say, the State Department considers the conditions poor. For example, the Department of State country report declared that “[w]hile the law prohibits torture, police routinely beat people severely when holding them under detention or stopping them at police checkpoints, especially targeting ethnic Albanians in Kosovo.” App. 171.
Selgeka’s application for asylum was referred to an asylum officer, not a judge, who conducted an interview and denied the application on June 18, 1996. The asylum officer made an “adverse credibility” finding and decided that Selgeka was
unable to offer more than veiy generalized details about the problems the Ko-sovar Albanians have been experiencing under [the] Serbian government over the past few years ... [and Selgeka’s] contention that Kosovar Albanians are forcibly recruited into the Yugoslav army to fight in Bosnia is not supported by independent sources.
App. 136. No court reporter was present, and a transcript was not made. Instead, the asylum officer condensed the four-hour interview into a nine-page handwritten report.
Reviewing the asylum officer’s “adverse credibility finding,” the BIA stated that Selgeka’s “testimony is consistent, logical, and supported by the corroborative evidence submitted in rebuttal of the director’s notice of intent to deny.” App. 102.
The BIA emphasized, however, that a government has the right to require military service and to enforce this requirement with reasonable penalties. To this well-established ground for denying asylum there are two exceptions:
(1) the alien would be associated with a military whose acts are condemned by the international community as contrary to the basic rules of human conduct, or (2) refusal to serve in the military results not in normal draft evasion penalties, but rather in disproportionately severe punishment on account of one of the five grounds enumerated in section 1101(a)(42)(A) of the Refugee Act.
M.A. v. United States INS,
Selgeka sought a writ of habeas corpus in the United States District Court for the Eastern District of Virginia to assert his claim that he was denied due process because an asylum officer interviewed him instead of allowing him a hearing before an immigration judge. The district court denied Selgeka’s habeas petition on June 9, 1997, holding he had waived his constitutional due process claim by not raising it before the BIA and because the BIA’s opinion was supported by substantial evidence. Based on
II
Selgeka relies on
The government now contends that Selgeka’s appeal should be dismissed because the Immigration and Nationality Act (INA),
Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.
The IIRIRA did not take effect until April 1, 1997, and the transitional rules of the IIRIRA preclude it from applying to pending cases, such as Selgeka’s. IIRIRA § 309(c). Section 306(c)(1), however, carves out an exception to the transitional rules by providing that
We held this case in abeyance pending the decision of Reno v. American-Arab Anti-Discrimination Committee, — U.S. —,
The Court did' not decide the question whether
Section 1252(g) seems clearly designed to give some measure of protection to “no deferred action” decisions and similar discretionary determinations, providing that if they are reviewable at all, they at least will not be made the bases for separate rounds of judicial intervention outside the streamlined process that Congress has designed, (footnote omitted)
Id.
The Court’s interpretation of
We conclude that jurisdiction is founded on
Ill
We review de novo the district court’s denial of the writ and its interpretation of the Refugee Act. The district court’s conclusion that the BIA’s decision is supported by substantial evidence is reviewed de novo, but the BIA’s factual findings may not be reversed unless the evidence compels a contrary conclusion. Chen Zhou Chai v. Carroll,
Selgeka does not ask us to reverse the BIA and grant him asylum. Instead, he alleges he was denied procedural due ■ process. He seeks the minimum procedures of due process—the opportunity to have his claim of asylum heard by an impartial immigration judge together with the incidents of such a hearing. In assessing his claim, we follow generally the Third and Second Circuits—Marincas v. Lewis,
It is clearly established that aliens have only those rights Congress sees fit to provide. Aliens have no independent constitutional rights in an asylum procedure. Landon v. Plasencia,
[8] The linchpin of Selgeka’s case is
Congress has stated that the purpose of the 1980 Refugee Act, which includes
any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion....
Generally under the INA, aliens are entitled to either an exclusion or deportation hearing before being excluded or deported from the United States.
All asylum applications are first given to an asylum officer for an interview.
Unlike asylum officers who are employees of the INS, immigration judges are independent of the INS. See Marineas,
At the hearing before the immigration judge, the applicant has the right to present evidence and witnesses on his own behalf, to examine and object to adverse evidence, to cross-examine witnesses presented by the INS, to compel testimony of witnesses by subpoena, to a transcript and record of the entire proceeding, and to administrative review.
Marineas,
In Marineas, a stowaway petitioned for writ of habeas corpus based on the treatment he received under the Attorney General’s regulations. Id. at 200-01. The Third Circuit held that the Attorney General’s regulations, which denied stowaways the rights of other asylum applicants, were inconsistent with
Our construction of the Refugee Act is consistent with§ 1323(d) because the Attorney General can establish a uniform asylum procedure separate from the exclusion hearing. The Refugee Act mandates a uniform asylum procedure for all asylum applicants; for stowaways, the resulting hearing can be limited solely to the issue of asylum eligibility.
Id. at 201.
The Second Circuit has also held that a refugee is entitled to some due process and that the Refugee Act limits the effect of
The Refugee Act limits the effect of§ 1323(d) by “otherwise providing]” that aliens applying for asylum may do so “irrespective of status.” Whatever procedural limitations§ 1323(d) might impose in the absence of§ 1158 , we hold that these limitations are not applicable in the asylum context to the extent and only to the extent that an asylum determination is involved.
[0]ur construction of the statute and the regulations is aided to some extent, if not guided, by what we, perceive to be the dictates of procedural due process.
Yiu Sing Chun,
The government maintains, however, that Selgeka waived his constitutional claim. It relies on the district court’s opinion which held that Selgeka waived his due process argument by failing to raise it in his appeal to the BIA. The district court, however, predicated its ruling upon the mistaken impression' that Selgeka was represented by an attorney at both the interview and before the BIA.
Generally, any claim not raised before the BIA is waived. Farrokhi v. United States INS,
IV
' The standard for review of the BIA decision is whether it is supported by reasonable, substantial, and probative evi-dénee. INS v. Elias-Zacarias,
With these due process concerns in the forefront, to hold that an asylum applicant is entitled to a fair proceeding before an impartial judge is not a great leap of faith. An interview is hardly the forum to adjudicate human rights.
In concert with the Second and Third Circuits and the District of Maryland, we hold that a stowaway is entitled to an asylum hearing conducted by an immigration judge together with the incidents of such a hearing. We are unaware of any case to the contrary except the case before us; the government has cited none.
On June 9, 1998, the Attorney General permitted eligible residents of Ko-sovo to apply for Temporary Protected Status (TPS). 63 Fed. Reg. 31,527 (June 9, 1998). The INA authorizes the Attorney General to grant TPS to eligible nationals of foreign states that are experiencing ongoing civil strife. Id. An alien may apply for TPS even if he is considered a “nonimmigrant” or has an “unlawful status.” Id. at 31,528. In allowing Kosovo aliens to apply for TPS the Attorney General stated:
There exists an ongoing armed conflict in the Province of Kosovo in the Republic of Serbia ... and, due to such conflict, the return of aliens who are residents of Kosovo Province ... would pose a serious threat to their personal safety as a result of the armed conflict in that province;
There exists extraordinary and temporary conditions in Kosovo Province that prevent aliens who are residents of Ko-sovo Province ... from returning to Ko-sovo Province in safety.
Id. at 31,527. TPS does not preclude or adversely affect an application for asylum. Nor does this proceeding adversely affect Selgeka’s opportunity to apply for TPS. Id. It does, however, corroborate to a certain extent Selgeka’s “credible fear of persecution.”
VI
In sum, we hold that we have jurisdiction to review Selgeka’s application for habeas corpus and that Selgeka is entitled to a hearing before an immigration judge. We vacate the district court’s judgment and the decision of the BIA. We remand this case to the appellees for proceedings consistent with this opinion.
VACATED AND REMANDED
Dissenting Opinion
dissenting:
In concluding that the INS was required to provide appellant with an asylum hearing before an immigration judge, the majority misinterprets the statute in force at the time of appellant’s asylum application. That statute read:
The Attorney General shall establish a procedure for an alien physically present in the United States or at a land border or port of entry, irrespective of such alien’s status, to apply for asylum. ...
The majority offers no explanation for this interpretation; instead,it simply asserts, in ipse dixit, that the “proper interpretation” of this provision requires a “single procedure” for “all applicants.” Ante at 343. From its “note” and emphases, see id. at 343, the majority appears to believe that its interpretation is compelled because Congress employed in the statute the singular “procedure,” rather than the plural “procedures,” although the majority’s thinking is less than clear because it ultimately directs our attention not so much to Congress’ usage of the singular (as its emphases forecast that it would do) but instead to the definition of “procedure”—a definition which (like the also-recited definition of “status”) has no evident bearing on the question of whether multiple procedures are permissible under the statute. If this were the majority’s belief, then it would seem fairly obviously incorrect. That Congress directed the Attorney Gen
Presumably, then, the majority actually believes that its interpretation is compelled not because Congress. used the singular word “procedure,” but rather because Congress required the Attorney General to establish “a procedure,” rather than “procedures.” See ante at 343 (apparently drawing inference from use of the singular phrase “a procedure” that Congress obligated the Attorney General to establish “a single procediere for asylum claims that apply to all applicants without distinction.”); id. at 344 (asserting that
That the majority has fundamentally erred in its interpretation of the statute need not be the subject of conjecture: in the very passage in which it summarizes its understanding of the statute, the majority states, in obvious but mistaken belief that it is simply reciting the language of the statute, that
The majority’s reading of
[The dual-track procedure] violatessection 1158(a) , which allows aliens, irrespective of “status,” to apply for asylum and directs the Attorney General to establish a “procedure” for asylum claims.
The government maintains, however, that Selgeka waived his constitutional claim.
Ante at 344 (emphases added).
I am confident that the INS’ decision not to afford appellant an asylum hearing before an immigration judge did not deprive appellant of any constitutional rights. For its contrary conclusion, the majority provides no serious constitutional analysis, but instead simply makes a series of bald assertions: first, that appellant’s failure to exhaust his constitutional claims before the BIA was excused because he did not knowingly and voluntarily waive those claims (on the ground that there was no affirmative evidence of such a waiver in the record, beyond his failure to raise the claim despite his representation by experienced counsel); second, that appellant’s failure to exhaust was excused because it would have been futile to raise such claims before the BIA (on the ground that the BIA “consistently” rejects the claims of stowaways); and third, that appellant’s due process rights were violated (on the ground that “[a]n interview is hardly the forum to adjudicate human rights”). It seems to me that, in this circumstance, to recite the majority’s constitutional analysis is sufficient to expose it for its inadequacy.
I respectfully dissent.