SIBRUN
(2) A motion for a continuance is within the sound discretion of the immigration judge, and his decision denying such a motion will not be reversed on appeal unless the alien establishes—by a full and specific articulation of the particular facts involved or evidenсe which he would have presented—that the denial caused him actual prejudice and harm, and materially affected the outcome of his case.
By: Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members
This matter is before the Board on appeal from the immigration judge‘s decision of July 7, 1982, finding the applicant excludаble from admission to the United States under section 212(a)(20) of the Immigration and Nationality Act,
The applicant is a 35-year-old native and citizen of Haiti who arrived in the United States on August 9, 1981, by boat near Miami, Florida. He had no documents with which to enter the United States and was held in
At the hearing on July 7, 1982, the applicant conceded that he is a citizen of Haiti, that he intends to stay indefinitely in the United States, and that he had no documents with which to enter the United States. Therefore, the immigration judge properly found the applicant tо be excludable from the United States under section 212(a)(20) of the Act, a finding which is not contested on appeal. However, counsel then informed the immigration judge that she was unprepared to present the applicant‘s case for asylum and she moved for a continuance of the hearing. The immigration judge denied that motion. Cоunsel then advised the applicant to give no testimony regarding his persecution claim and she refused to conduct any examination of the applicant or submit any evidence in support of his asylum application. Therefore, the immigration judge proceeded to examine in detail the only evidence of record pertaining to the applicant‘s persecution claim, that being his asylum application. The only claims advanced therein are that the applicant fears persecution because he, like “almost everyone else in my country lives under the same oppressive conditions,” i.e., arbitrary arrest by the government authorities, аnd because he left Haiti without permission. The immigration judge concluded this did not establish a well-founded fear of persecution under the Act, and he denied the asylum application.
Turning first to the applicant‘s motion for continuance, we observe that an immigration judge may grant an alien‘s request for adjournment of a deportation hearing only for “good cause.” See
It should be emphasized that the full panoply of procedural protections accorded criminal defendants arе not constitutionally mandated for aliens in these civil, administrative proceedings. See e.g., United States v. Gasca-Kraft, 522 F.2d 149, 152 (9 Cir. 1975); Barthold v. INS, 517 F.2d 689 (5 Cir. 1975); Jolley v. INS, 441 F.2d 1245 (5 Cir. 1971). All that is required here is that the hearing be fundamentally fair. See Matter of Exilus, 18 I&N Dec. 276 (BIA 1982). Prejudice is the sine qua non for establishing that a hearing was unfair. Id. Accordingly, where federal criminal procedure standards are satisfied, the less rigorous requirements applicable to civil, administrative proceedings clearly will have been fulfilled as well.
We conclude there are two elements which must be examined with regard to a motion for continuance based upon an asserted lack of preparation and a request for opportunity to obtain and present additional evidence. First, while the motion is within the sound discretion of the immigration judge, an alien at leаst must make a reasonable showing that the lack of preparation occurred despite a diligent good faith effort to be ready to proceed and that any additional evidence he seeks to present is probative, noncumulative, and significantly favorable to the alien. Second, for purposes of appeal, even where an alien has made this minimum required showing, an immigration judge‘s decision denying the motion for continuance will not be reversed unless the alien establishes that that denial caused him actual prejudice and harm and materi
Counsel has advanced three principal reasons in support of the motion for continuance: failure to receive certain “written material” from the local Bar Association until one day before the hearing; failure to receive the translation of a letter by the applicant from a translating service; and the failure of an employee of the translating service to appear for a meeting with counsel to provide “some pertinent information regarding the hearing as to witnesses and allegations of facts, etc.” (Tr. at 4-5). In light of the above standards, we find that these reasons are insufficient to have warranted granting of the motion for continuance by the immigration judge or to require reversal of that decision in this appeal. While the Bar Association materials may not have been received until the 11th hour, nonetheless they were in counsel‘s possession at the time of the hearing. Thus, she was not precluded from submitting into the record any pertinent evidence contained in that “written material” or from offering a specific explanation as to why its recent receipt adversely аffected her ability to go forward in her representation of the applicant.3 As for the stated failure to receive a translation of the applicant‘s letter, counsel presumably could have obtained a translation of the letter elsewhere when difficulties developed with the original translating service; alternativеly, the applicant‘s letter could have been translated and read into the record at the hearing by the Service translator, or the applicant simply could have testified directly as to its contents. Concerning the nonappearance of the translating service employee with information regarding “witnesses and allegations of fact,” if the applicant himself is the source of these “allegations of fact,” he was not precluded from testifying to such “facts” at the hearing. Moreover, counsel has failed to demonstrate that these alleged but unnamed witnesses would have tendered substantial favorable testimony, that they were available and willing to testify, and that the absence of these witnesses materially prejudiced the applicant‘s case. See United States v. Medina-Arellano, supra. Finally, all three reasons which counsel advances suffer a common defect: they are but bare, unsupported allegations lacking the required specific articulation of particularized facts and evidenсe. Accordingly, we find that counsel has failed to establish that after more
Even assuming, arguendo, that the applicant‘s motion for continuance were adequately supported, we find no need to reverse the immigration judge‘s denial of the motion. Although it is now several months since the hearing, the applicant, through counsel, has yet to substantively identify any evidеnce which he was precluded from submitting nor has he proffered any explanation of how denial of his motion materially affected the outcome of his asylum application and caused him actual prejudice or harm.4 Therefore, the applicant has failed to satisfy the standards set forth earlier, and we will not disturb the immigration judge‘s denial of the applicant‘s motion for continuance.
Turning to the applicant‘s asylum application, under section 208(a) of the Act, an alien may be granted asylum in the exercise of discretion, if he qualifies as a “refugee” within the meaning of section 101(a)(42)(A) of the Act,
The instant record contains merely the applicant‘s own unsubstantiated and conclusory statements in support of his persecution claim. Therefore, the record does not contain at least some objective evidence which is significantly probative of a realistic likelihood of persecution to this applicant, necessary to establish a well-founded fear of persecution. Moreover, even if we accept all of the applicant‘s factual allegations as true, we find him to be ineligible for asylum.
The applicant claims that he will be persecuted because he left Haiti illegally. However, he has never beеn arrested or imprisoned in Haiti and makes no claim to having been a member of any organization hostile to his government or to have expressed a political opinion adverse to the authorities of that government. It is uncontested that departure from Haiti without permission is a violation of Haitian law. Nevertheless, the possibility that the applicant may be subjected to criminal prosecution and perhaps severe punishment as a result of his illegal departure from Haiti does not demonstrate a likelihood of persecution under the Act. See Henry v. INS, 552 F.2d 130 (5 Cir. 1977); Matter of Nagy, 11 I&N Dec. 888 (BIA 1966); Matter of Williams, 16 I&N Dec. 697 (BIA 1979); Matter of Matelot, 18 I&N Dec. 334 (BIA 1982). The record establishes no motivation of the Haitian authorities for seeking to prevent the aрplicant‘s illegal departure or punish him upon his return apart from the fact that such departure constitutes a crime in Haiti; no motivation based on political opinion for this prospective criminal prosecution and punishment is persuasively demonstrated in the record. Accordingly, the applicant‘s claim that he left Haiti illegally does not satisfy his burden of proof in establishing a well-founded fear of persecution. Id.
The applicant also states that he fears persecution because all Haitians live under terrible oppression and in constant fear of the Haitian authorities subjecting them to arbitrary arrest, torture, and perhaps death. Even if truе, such deplorable actions do not come within the specified grounds of persecution prescribed by section 101(a)(42) of the Act, i.e., that they be imposed “on account of race, religion, nationality, membership in a particular social group, or political opinion.” The type of persecution upon which asylum еligibility may be predicated is not merely that which threatens life or freedom generally; the Act requires that this qualifying persecution derive solely on account of one of the five prescribed grounds in the statute. Generalized oppression by a government of virtually its entire populace does not come within those specified grounds.
ORDER:
The appeal is dismissed.