Appeal from a judgment entered in the Eastern District of New York, Eugene H. Nickerson, District Judge, denying a petition for a writ of habeas corpus which sought judicial review of an order of exclusion and deportation. Reversed and remanded.
Timbers, Newman and Kearse, Circuit Judges.
Haitian refugee Basseter Augustin appeals from two orders entered on July 15, 1983 and August 26, 1983, and from the judgment entered thereon, in the Eastern District of New York, Eugene H. Nickerson, District Judge, denying his petition for a writ of habeas corpus which sought judicial review of an order of exclusion and deportation.
The district court, in rejecting appellant's claim that his due process rights had been violated, held that entering aliens have few, if any, due process rights; that in this case a meaningful application for asylum was not made "utterly impossible"; and that the Immigration Judge (IJ) did not abuse his discretion in denying a continuance. The court also rejected appellant's claim that he should have been placed in deportation proceedings rather than exclusion proceedings, holding that such claim had not been presented to the IJ or the Board of Immigration Appeals (BIA) and therefore had been waived.
This appeal raises important issues with respect to the procedural rights of aliens, including particularly the judicial duty to scrutinize the scope and accuracy of translations of immigration administrative proceedings. We hold that Augustin's procedural rights were violated by the inadequate translation of his hearing before the IJ. We remand to the district court with instructions to grant the writ unless a renewed asylum request is properly processed.
Haitians began to arrive in the United States in the early 1970s. Over the last ten years, around 40,000 have come to the United States, some fleeing political persecution and some fleeing destitution. Attempting to sort out the genuine claims of persecution which justify political asylum has been a difficult task. The attempt has generated much litigation.
Augustin claims that he came to this country to escape political persecution directed at himself and his family by paramilitary forces of the Haitian government. He alleges that his cousin, Benjamin Janvier, angered the Tonton Macoutes by having one of their members arrested for the suspected poisoning of his father (Augustin's uncle).*fn1 Janvier was severely beaten during his six month imprisonment. He further angered the government by refusing, upon his release, to return to his former post with the Leopards, another paramilitary group.
Thereafter, Augustin's entire family was placed under surveillance, threatened, and periodically arrested. In response, Augustin and Janvier initiated political activities against the Duvalier regime. They formed a local opposition group which challenged the Tonton Macoutes and they participated in secret martial arts classes. Augustin was detained and interrogated at Casearnes Arsenal on February 8, 1981. He went into hiding several months after his release because he learned that the Haitian Army had arrested three other members of his family and was looking for him and Janvier. The Army located Janvier and had him arrested.
On August 25, 1981, Augustin left Haiti in a small boat. The boat sank off the Florida coast on October 26, 1981. Thirty-three passengers (including Augustin's sister) drowned. Augustin was carried by the current to the beach. He attempted to help others involved in the sinking and then began walking into town. He was arrested as he approached a Miami sidewalk with others from the boat. After his arrest and initial processing by the Immigration and Naturalization Service (INS), he was taken to Krome Detention Center near Miami where he was held for nine months pursuant to an INS detention program. Pro bono counsel Magda Montiel Davis was assigned to Augustin pursuant to a consent decree forbidding exclusion or deportation of Haitian refugees not represented by counsel. Louis v. Meissner, 530 F. Supp. 924, 930 (S.D. Fla. 1981).
Since Ms. Davis spoke no Creole and Augustin spoke no English, preparation for the hearing and the asylum petition required the services of a translator. According to Ms. Davis, the INS promised to provide translating services but failed to do so at critical times.*fn2 At other times it provided a translator who appears to have been inadequate. The asylum form filed by Augustin and relied upon by the IJ, the BIA, and the State Department reflects the translator's misinterpretation that Augustin fled Haiti for fear of arrest because his uncle had a "disease". Further interrogation of Augustin following the BIA hearing and his affidavit of April 13, 1983, however, make it clear that this "disease" theory was not the substance of his claim.
At the exclusion hearing held on July 7, 1982, Ms. Davis requested a continuance to allow her to obtain the material she needed from the translating service and adequately to prepare the petition for asylum. She recited the failure of the translating service to send the translated letter or answers and its failure to appear for a meeting with her and Augustin as justification for the continuance.*fn3 INS did not oppose the continuance application.
The IJ, however, denied the application, stating to Ms. Davis that "the Court will not be a party to keeping [Augustin] in further incarceration, and that is all I would be doing by putting this off." He told Ms. Davis that she could question her client before him and that his answers would be made a part of the record. Ms. Davis stated that she did not know who to call as witnesses to substantiate the political persecution claim. The IJ responded that perhaps there were no witnesses to call.*fn ...