*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 552 F.2d 130 Cir. (2d INS, 1967). capricious discretion) Cf. Foti 239 217, Cir. v. 375 U.S. exercise of with Tuan n.15, 306, INS, (5th 1976) 228-29 S.Ct. (applying 84 11 L.Ed.2d 281 F.2d v. 531 1337 Cir. (1963). leading of a The authors treatise on substantial evidence test review of denial of immigration approach discretionary relief). law consider mis- another form of taken, ambiguity treat the entire decision to We not resolve this need here. stay, stay deportation recognize judicial enough or not to aas discretion- review of one, ary reviewable abuse discretion INS decisions claims is deferen- Rosenfield, tial, only. Immigra- C. H. Gordon & the same and at time remember (Supp. ought altogether & 8.17b perfunctory. § tion Law Procedure at 8-116 not review to be immigration actually the convinced that Bonannee opinion was ar- signifi all; a view of facts reflects at judge point rested at another in the same urged by now from that cantly different judge wrote that “Bonannee paragraph His conclusions and Bonannee. his arrest politically has not established any under standard sustainable may well be Perhaps motivated.” us is difficult times for But it review. judge original that Bonannee’s felt —and immigra on which the the basis discern that his father’s false —assertion Supreme Court proceeded. The judge 1971, had occurred in rather troubles than clear, sure, it “will made 1956,justified discounting all of his testimo- if clarity less ideal than decision uphold judge did say not this. Per- ny —but be dis path may reasonably agency’s instead, judge simply did haps, not be- v. cerned”, Transportation, Inc. Bowman the misdeeds of Bonannee’s fa- lieve Freight System, 419 U.S. Arkansas-Best in 1956 could have ther caused Bonannee’s 286, 438, 442, 42 L.Ed.2d 447 95 S.Ct. but, again, judge arrest did 1973— principle it is also familiar (1974). But the judge might so Or not state. reviewing that a court law administrative that while events in 1956 could decided agency basis for supply not a reasoned will Haiti, an arrest real cause not articu agency itself did action fight this arrest was a cause of with Chenery 332 U.S. Corp., late. SEC militiaman, which Bonannee admitted took (1947). 1025, 90 L.Ed. 66 S.Ct. activity. rather than place, much less acute Coriol- problem is This would treat the results This view Bonannee’s, it is not case than in an’s the militiaman as con- encounter absent even in former. altogether 243(h) persecution. That stituting inter- judge’s con- point is troublesome most might of the statute’s scope pretation arrest- had never been that Coriolan clusion B.2, Part might not sustainable. See law trouble with Haitian been in ed however, immigration judge, infra. Surprisingly, officials. enforcement expressly adopt it. evidence that there judge asserted problems not decide whether the We need despite sworn contrary, Coriolan’s analysis become visible on a close to his police come declaration agency discussion of evidence would he had been arrest him because house Rather, justify a remand. we in themselves But Coriolan’s with a Communist. seen problems significant these be- believe testimony provided contradictory certainly presence possible errors of cause that much of first evidence substantial as well. law Hence, probably was false. statement immigration judge’s to read appropriate Legal Principles Application B. failing to discounting rather than *7 claim.10 of Coriolan’s note take However controversial the review be, factfindings may better of Bonannee’s treatment judge’s The the agency’s may actions established sure, his ambiguous. To be more claim for errors of law. See Paul be scrutinized subject to attack. But the credibility was 194, INS, (5th 1975), F.2d 197 Cir. v. 521 actually Bo- judge did not find immigration Pilliod, 207, Ng v. 210 partic- Kan testimony quoting unbelievable. In nannee’s 1960), denied, 860, un- Cir. cert. 365 U.S. 81 ular, point judge appeared (7th the at one prospects. judge’s response immigration cousin said little about Coriolan’s It to Coriol The observe, however, disappear testimony fair the rela the arrest seems an’s about piece problematic. hand for refusal over cousin is also tive’s death of his mother’s ance story question Though judge relevant to the of whether mentioned Coriolan’s cloth was the that, incident, no conclusions about are such he stated Haitian conditions testified, expressly any conclude that Coriolan’s “In one doesn’t have to He Haiti do it. did you family they just you thing, resided in Haiti unmolested. look at can immediate and —ah — Presumably, an as comment reflected this scared.” relatively sumption fate distant (1961); v. 828, judge 828 Kovac credibility 5 L.Ed.2d resolved the question in S.Ct. (9th 1969). Cir. Cf. INS, 407 104 direction. F.2d either 80, 94, 66 Chenery Corp., v. 318 U.S. SEC Perhaps immigration judge accepted (1943). gener 90 L.Ed. See S.Ct. possibility of prosecution rejected but Note, Review, supra 85-89. at ally Judicial claims because did not these he believe that judge in the The government’s prosecu- reason for the on im may before us have erred two political. (It would be political tions is not legal questions. portant instance, punish for persecution, for vio- fairly passport lation of a administered and Persecution for 1. Prosecution law). record, On this there was little to the Illegal Departure contrary. But judge never articulated immediately puzzling position most reasoning. this line of immigration judge is his by the adopted The immigration judge’s opinion might they of the aliens’ claims view on be based conclusion that the aliens persecuted, and thus for ille- prosecuted, from depart political Haiti for rea- departure they Haiti if were re- gal sons. Under Janus and INS’ Janek immigration judge there. turned decision, supra, the political lack mo- wrote, for departure might tive be fatal to the “Illegal departure might possibly result claims, even aliens’ if the motive prosecution. Prosecution cannot be response Haitian political. stern was considered, circumstances, under such Whether this would be the view taken by of one’s persecution because is more Court doubtful. Compare Hen- opinions.” INS, supra INS, v. with ry Paul v. test, supra all, at 196-97. The motive after immigration judge meant If the its face does not test on whether prosecution to assert that for the statement motive government’s po- illegal never departure can offense litical. a useful device for distin- persecution, view amount his probable guishing less, claims from was inconsistent decisions both of it is not at all clear that that virtue Henry courts of the INS itself. See outweighs potential this test’s excluding 76-3994, 76-3829, INS, Nos. 552 F.2d at 131 apparently claims within the ambit of the INS, 1977) (dictum); (5th Cir. Berdo v. departure statute. If the alien’s motive for (6th INS, 1970); Cir. Kovac v. F.2d attention, judge’s focus Janek, N supra; Matter of Janus & 12 I & finding apparent as to their motive is sub- (1968). Dec. questions ject same that we have authority, In face of this we doubt already raised above as whole. immigration judge that the fact meant to short, great we would have difficulty political persecution all exclude claims effectively reviewing immigration’s punishment the threat of for ille- based petitioner’s dismissal of judge’s of per- fear not, however, departure. If gal then we for their illegal departure. secution But speculate as to the actual basis for his must adequately failure to evaluate the sig- claim. rejection judge could illegal departure nificance of the is over- refused to credit claims aliens’ by a more shadowed fundamental omission. prosecution. faced It is true that of prosecution sup- the asserted fear *8 2. The INS’ View of Haitian ported by general allegations as to the Conditions Political policy. nature of Haitian These did believed, although they to be Many though certainly not all —of the — have to be disbelieved either. But the im- suggest factual conclusions of the judge that migration judge assumptions conceded the aliens unstated about the nature of possibly” prosecution; face it is not “might political example, Haitian life. For his apparent language from this whether opinion observed that there was no evidence

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. 521 F.2d at 202-03 See J., dissenting). (Godbold, *9 not task for courts are relevant a nation —a to the broad-gauge judgment of But worth that in noting it is well-suited. Haitian conditions which needs to be made. case, immigra an recent Haitian another This material report consists of a by Am- view of took bleak Haitian life. judge International, nesty an organization evi- immigration judge declared “The dently devoting plight its efforts to the any government properly is nature prisoners around the world. At . . of notice. . Under el subject point this report observes, one Duvalier, government exercised ex der especially “It true that since Jean- leadership, sup of alternative tirpation (the Claude Duvalier son first liberties, legisla civil rendered the pressed Duvalier) President was declared Presi- and forced subservience of impotent tive (life-long President) Vie dent and change court. No has been the bar regime enjoyed has less severe criti- younger noted to date under the Duvalier. from abroad. . . It cism . is true persona grata A man considered be non more sensational violence of engaged not by an absolute ruler need have Papa days Doc’s is no longer apparent— conduct to earn that specific dubious gun such scenes as Guillaumette, battles in Port-au- distinction.” Matter of Files or 18, 1974). A-20 124 313 Prince bodies tied to (April A-20 123 chairs lining the way on roadside to the airport. How- Coriolan and Bonannee themselves did ever, under the surface the repression is at present evidence their deportation not strong as still efficient as ever it given hearing immigra- could have was.” a substantial overview judge of Haiti- record, on a an life. Even limited report Elsewhere the discusses Haitian however, though and even it is clear that law enforcement. asserting the alien claim has “Arrests often take the form of disap- proof, do the burden of we not believe that pearances kidnappings. The families authorities properly could may subsequently be unable to find taking alien’s fate without decide an note of their missing trace relative. In other conditions in the country, alien’s cases, police ap- Tonton-Macoutes an extent awareness of these condi- ply operation,’ the ‘moulinin which con- exper- become a tions had INS’ blocking neighborhood sists entire Indeed, the the past appar- tise. INS proceeding to arrest indiscriminately ently groups deferred decision of claims many as hundreds of citizens. Follow- Yugoslav Chinese until nationals interrogations, severe agencies ing governmental compiled com- some are re- leased, on their plete information countries. C. others are tortured and remain in Rosenfield, H. supra, & 5.166 Gordon at prison. Nevertheless, may 5.185 n. well be should pointed out term immigration judge abuse prisoners’ ‘political has to interpreted viewing his discretion before record possible the widest sense in the Haitian raising essentially allega- him as normal context. There have politi- been no INS, persecution. tions Paul v. See activity whatsoever, cal large as a num- (5th 1975). Cir. We F.2d need imprisoned ber indiscriminately, due however, point, addi- decide mistakes, technical per- as a result of tional evidence has now been Peti- offered. grudges, simply very sonal minor us tioners ask to remand their case to the As in most offences. cases there are reopening to re- proceedings judicial procedures whatsoever and as ceive this evidence. systematic, torture these prisoners are Amnesty well within International’s area IV. THE PROFFER OF ADDITIONAL concern.” EVIDENCE court, say, Before Coriolan and Bonannee Needless Amnesty which are least offered materials International upon conclusive neither

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.