1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-9-1996

Marincas v. Lewis

Precedential or Non-Precedential:

Docket 95-5424

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Recommended Citation

"Marincas v. Lewis" (1996). 1996 Decisions. Paper 87.

http://digitalcommons.law.villanova.edu/thirdcircuit_1996/87
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

 ____________ 

 No. 95-5424 

 _____________ 

 

 MIRCEA MARINCAS, 

 Appellant 

 v. 

 

 WARREN LEWIS, District Director 

 of the United States Immigration 

 and Naturalization Service; U.S. 

 DEPARTMENT OF JUSTICE; IMMIGRATION 

 AND NATURALIZATION SERVICE; JANET 

 RENO, Attorney General; DORIS 

 MEISSNER, Commissioner; JOHN LIMA, 

 Director of ESMOR Detention Facility; 

 SEA-LAND SERVICES, INC. 

 

 __________________________ 

 

 On Appeal from the United States District Court 

 for the District of New Jersey 

 D.C. Civil Action No. 95-cv-02533 

 ___________________________ 

 

 Argued: March 19, 1996 

Before: BECKER, McKEE and McKAY, Circuit Judges 

(Filed August 9, 1996) 

 Robert A. Perkins (ARGUED) 

 Robert A. Perkins & 

 Associates 

 213 Institute Place, Suite 501 

 Chicago, IL 60610-3125 

 Attorney for appellant 

 Daniel J. Gibbons (ARGUED) 

 Assistant U.S. Attorney 

 Faith S. Hochberg 

 United States Attorney 

 970 Broad Street, Room 502 

 Newark, New Jersey 07102 

 Attorneys for appelleees 

 Judy Rabinovitz (ARGUED) 
 Lucas Guttentag 

 Ann Parrent 

 Immigrants' Rights Project 

 American Civil Liberties Union 

 Foundation 

 132 West 43rd Street

 New York, New York 10036 

 Attorneys for amici curiae 

 Marsha Wenk 

 American Civil Liberties Union 

 of New Jersey 

 2 Washington Place 

 Newark, New Jersey 07102 

 Of counsel 

 ____________ 

 

 OPINION OF THE COURT 

 ____________ 

 

McKAY, Circuit Judge. 

 Petitioner-Appellant Mircea Marincas, an alien 

with stowaway status, applied for and was denied political asylum 

by the Immigration and Naturalization Service (INS). The Board 

of Immigration Appeals (BIA) affirmed the denial of his 

application. Mr. Marincas then sought judicial review of the BIA 

decision by filing a petition for a writ of habeas corpus and a 

complaint for injunctive and declaratory relief. The district 

court denied relief. We reverse. 

I. Factual and Procedural Background 

 Petitioner is a former soldier in the Romanian 

Army. He claims that he expressed opposition to and questioned 

the legitimacy of the new Romanian government installed after the 

overthrow of the Communist-totalitarian government of Nicolae 

Ceausescu. Mr. Marincas asserts that he was arrested, severely 

beaten, and threatened by Romanian authorities after he 

criticized the new government, which is apparently comprised 

almost entirely of former members of the old Communist regime. 

He claims that he fled Romania when he realized that he could not 

be safe in his homeland. 

 Mr. Marincas eventually arrived in the United 

States as a stowaway with a group of Romanian nationals on April 

14, 1994, aboard a ship called the M/V Innovation. Mr. Marincas 

requested asylum immediately upon his arrival in the United 

States, claiming he fled Romania because of political 

persecution. He was detained as an excludable alien because of 

his stowaway status, and the INS required the owner of the M/V 

Innovation, Sea Land Services, Inc., to keep him in physical 

custody. 
 Mr. Marincas completed his first application for 

political asylum on April 17, 1994. At that time he was not 

informed of his right to be represented by counsel in his asylum 

interview or of the availability of free legal services. An INS 

official interviewed Petitioner, and his asylum claim was denied. 

Petitioner appealed to the BIA, which affirmed the INS's denial 

of asylum. 

 Petitioner then filed a habeas corpus petition 

seeking a stay of his deportation. The petition was dismissed 

after the INS conceded the inadequacy of the first proceeding and 

remanded the case for new proceedings. In November 1994, 

Petitioner was interviewed by the same asylum officer who had 

previously denied his claim. Petitioner was represented by 

counsel at the second interview, but his counsel was only allowed 

several minutes to question Petitioner and to advocate on his 

behalf. A third interview was conducted by another asylum 

officer after Petitioner's counsel objected to the INS about the 

second interview being conducted by the same asylum officer. 

Also, Petitioner submitted a supplemental statement in support of 

his application and numerous exhibits that allegedly documented 

the persecution he suffered in Romania. His application was 

again denied. 

 On April 7, 1995, Petitioner filed another appeal 

with the BIA and requested time in which to file a brief. On May 

4, 1995, the BIA denied the appeal without having accepted 

Petitioner's brief. The BIA entered a final order of deportation 

for Mr. Marincas. Petitioner then initiated this action. The 

district court reviewed the deportation order pursuant to 8 

U.S.C. § 1105a(a)(10), which permits habeas review of deportation 

orders. Petitioner asserted that he was denied meaningful 

administrative review of his application because his application 

was considered by an INS official instead of a neutral 

immigration judge and that the BIA improperly affirmed the denial 

of his asylum without giving him an opportunity to submit a 

brief. The district court denied Mr. Marincas' petition for a 

writ of habeas corpus. Deferring to the BIA's interpretation of 

the applicable immigration statutes, the district court found Mr. 

Marincas was provided all of the process due him on his claim for 

asylum. The court also found that reasonable evidence supported 

the INS's denial of Mr. Marincas' asylum application. 

 We have appellate jurisdiction to review a final 

order of deportation. 28 U.S.C. § 1291. Petitioner is currently 

in INS custody at York County Prison in York, Pennsylvania. We 

have not issued a formal order staying Petitioner's deportation, 

but the Department of Justice has agreed to comply with our 

request not to deport Petitioner during the pendency of this 

appeal. 

II. United States Treaty Obligations 

 The United States is a signatory to the United Nations 

Protocol Relating to the Status of Refugees (U.N. Protocol), 

which incorporated the 1951 Convention Relating to the Status of 

Refugees. The U.N. Protocol provides: 

 No Contracting State shall expel or return 
 ("refouler") a refugee in any manner 

 whatsoever to the frontiers of territories 

 where his life or freedom would be threatened 

 on account of his race, religion, 

 nationality, membership in a particular 

 social group or political opinion. 

 

United Nations Protocol Relating to the Status of Refugees, art. 

33(1), Jan. 31, 1967, 19 U.S.T. 6223, T.I.A.S. No. 6577. 

Refugees are defined as "a person who owing to well-founded fear 

of being persecuted for reason of race, religion, nationality, 

membership in a particular social group or political opinion, is 

outside the country of his nationality and is unable or, owing to 

such fear, is unwilling to avail himself of the protection of 

that country." Id. art. 1. 

 The purpose of the Refugee Act of 1980, which 

amended the Immigration and Nationality Act, was "to provide a 

permanent and systematic procedure for the admission to this 

country of refugees of special humanitarian concern to the United 

States." Pub. L. 96-212, tit. I, § 101(b), 94 Stat. 102 (1980). 

Also, the Refugee Act brought the domestic laws of the United 

States into conformity with its treaty obligations under the 

United Nations Protocol Relating to the Status of Refugees, Jan. 

31, 1967, 19 U.S.T. 6223, T.I.A.S. No. 6577. See INS v. Stevic, 

467 U.S. 407, 421, 427 (1984). In response to the urgent needs 

of those subject to persecution in their homelands, the Refugee 

Act revised and regularized the procedures governing the 

admission of refugees into the United States. Pub. L. No. 96- 

212, tit. I, § 101, 94 Stat. 102 (1980). In this respect, the 

Supreme Court explained: 

 Deportation is always a harsh measure; 

 it is all the more replete with danger when 

 the alien makes a claim that he or she will 

 be subject to death or persecution if forced 

 to return to his or her home country. In 

 enacting the Refugee Act of 1980 Congress 

 sought to "give the United States sufficient 

 flexibility to respond to situations 

 involving political or religious dissidents 

 and detainees throughout the world." 

 

INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987) (citation 

omitted). Thus, the Refugee Act was enacted to fulfill our 

treaty obligations under the U.N. Protocol for the benefit of 

aliens, such as Mr. Marincas in this case, who claim to be 

fleeing persecution in their homelands. 

III. The Meaning of the Refugee Act of 1980 

 The district court, deferring to the BIA's 

interpretation of the Immigration and Nationality Act and the 

Refugee Act of 1980, concluded that the stowaways are not 

entitled to immigration court hearings on their asylum claims. 

We reverse the district court because the BIA's construction of 

the applicable immigration statutes are contrary to clear and 
unambiguous congressional intent. 

A. The Immigration and Nationality Act and the Refugee Act 

 of 1980 

 Aliens who arrive in the United States but are 

refused entry by an immigration officer are generally entitled to 

an exclusion hearing under the Immigration and Nationality Act 

(INA). Act of June 27, 1952, tit. II, ch. 4, § 235, 66 Stat. 198 

(codified at 8 U.S.C. § 1225(b) (1988)). At the hearing, an 

immigration judge decides whether or not the alien should be 

admitted. 8 U.S.C. § 1226(a). If the alien asserts an asylum 

claim, he is entitled to an asylum hearing before an immigration 

judge. 8 C.F.R. § 236.3(c). 

 Stowaways, however, have a distinct status. Under 

the INA they are excludable aliens who are not entitled to an 

exclusion hearing. The INA states, "Any alien who is a stowaway 

is excludable." 8 U.S.C. § 1182(a)(6)(D). The INA further 

provides that stowaways are not entitled to an exclusion 

hearing. 8 U.S.C. § 1323(d). Section 1323(d) states, "The 

[exclusion hearing] provisions . . . shall not apply to aliens 

who arrive as stowaways and no such alien shall be permitted to 

land in the United States, except temporarily for medical 

treatment, or pursuant to such regulations as the Attorney 

General may prescribe for the ultimate departure or removal or 

deportation of such alien from the United States." While 

stowaways are not entitled to an exclusion hearing, the statute 

permits stowaways to land in the United States pursuant to 

regulations prescribed for the ultimate departure, removal or 

deportation of the alien. 

 The Refugee Act mandated for the first time that 

uniform procedures be established by the Attorney General for 

granting asylum to aliens arriving in the United States. The 

Refugee Act amended the INA by providing: 

 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, and the alien 

 may be granted asylum in the discretion of 

 the Attorney General if the Attorney General 

 determines that such alien is a refugee 

 within the meaning of section 1101(a)(42)(A) 

 of this title. 

 8 U.S.C. § 1158(a). We are asked to review whether the Attorney 

General correctly interpreted the INA and the Refugee Act in 

promulgating the current asylum procedures. 

B. INS's Regulations and Asylum Procedures 

 The INS regulations initially promulgated by the 

Attorney General pursuant to the Refugee Act made no explicit 

distinction between stowaways and other asylum applicants. See Yui Sing 

Chun v. Sava, 708 F.2d 869, 874 (2d Cir. 1983). 

Instead, the INS applied the regulations differently to 
stowaways. See id. The INS proposed regulations in 1987 that 

would have provided a nonadversarial procedure as the sole method 

of adjudicating the asylum claims of all applicants. 52 Fed. 

Reg. 32552-61 (1987). The INS withdrew the proposed regulations 

after receiving widespread criticism that such a process was 

inherently inadequate as the sole adjudication of an asylum 

claim. Instead, the INS issued new regulations in 1988 which 

provided asylum applicants an adversarial adjudication of their 

asylum claims through an immigration court hearing. 53 Fed. Reg. 

11300 (1988). The nonadversarial adjudication by INS officials, 

however, was explicitly retained in the regulations for stowaway 

asylum applicants. 53 Fed. Reg. 11310 (1988). 

 Under current INS procedures, an application for 

asylum is initially handled by an asylum officer. 8 C.F.R. 

§ 208.9(a). An immigration judge acquires jurisdiction over the 

asylum application if the applicant has been placed in an 

exclusion or deportation hearing. 8 C.F.R. §§ 208.2(b), 

208.4(c). Consequently, asylum applicants who are not stowaways 

cannot be removed from the United States without having their 

asylum claims adjudicated in an adversarial hearing before an 

immigration judge who is independent of the INS. The immigration 

judge is required to advise the applicant that he has a right to 

counsel and that free legal services are available. 8 C.F.R. 

§ 236.2(a). At the hearing before the immigration judge, the 

applicant has the right to present evidence and witnesses on his 

own behalf, 8 C.F.R. §§ 236.2(a), 236.3(c)(3); to examine and 

object to adverse evidence, 8 C.F.R. § 236.2(a); to cross-examine 

witnesses presented by the INS, 8 C.F.R. § 236.2(a); to compel 

testimony of witnesses by subpoena, 8 C.F.R. § 3.35; to a 

transcript and record of the entire proceeding, 8 C.F.R. 

§ 236.2(e); and to administrative review, 8 C.F.R. §§ 3.38, 

236.7. 

 In contrast, the asylum applications of stowaways 

are decided in a nonadversarial interview procedure conducted by 

an asylum officer who is an INS employee. 8 C.F.R. §§ 208.2(a), 

208.9, 253.1(f). The stowaway applicant may have counsel 

present, but the regulations do not require the asylum officer to 

advise the applicant of his right to counsel or of the 

availability of free legal services. 8 C.F.R. § 208.9(b). The 

stowaway applicant may present witnesses and may submit 

affidavits of witnesses and other evidence. 8 C.F.R. § 208.9(b). 

The regulations do not require that the interview be recorded, 

and they require the applicant to provide his own interpreter. 8 

C.F.R. § 208.9(g). If denied asylum, the stowaway applicant may 

appeal his denial to the BIA. 8 C.F.R. § 253.1(f)(4). Thus, the 

INS and BIA construe the INA and the Refugee Act as entitling 

stowaways only to a nonadversarial interview conducted by an INS 

asylum officer with limited due process safeguards, while all 

other aliens are entitled to an adversarial asylum hearing before 

a neutral immigration judge with a full panoply of due process 

safeguards. Petitioner contends, however, that Congress intended 

stowaways to be afforded the same asylum procedures as other 

aliens. 
C. Congressional Intent 

 The district court deferred to the BIA's 

construction of the INA and the Refugee Act of 1980. In Chevron, 

U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 

843 (1984), the Supreme Court established a two-step approach to 

judicial review of agency interpretations of acts of Congress. 

First, the reviewing court must determine whether there is a 

clear and unambiguous congressional intent concerning the precise 

question in issue. If congressional intent is clear and 

unambiguous, then that intent is the law and must be given 

effect. A reviewing court proceeds to the second step "if the 

statute is silent or ambiguous with respect to the specific 

issue." Id. at 843. Then, "the question for the court is 

whether the agency's answer is based on a permissible 

construction of the statute." Id. The Court noted: 

 The judiciary is the final authority on 

 issues of statutory construction and must 

 reject administrative constructions which are 

 contrary to clear congressional 

 intent . . . . If a court, employing 

 traditional tools of statutory construction, 

 ascertains that Congress had an intention on 

 the precise question at issue, that intention 

 is the law and must be given effect. 

 Chevron, 467 U.S. at 843 n.9 (citations omitted). In this case, 

we do not reach the second step of Chevron because Congress 

expressed a clear and unambiguous intent with regard to the 

precise question at issue. 

 In construing the meaning of the Refugee Act of 

1980, the Supreme Court has examined the plain meaning of the 

Act, its symmetry with the United Nations Protocol, and its 

legislative history. See INS v. Cardoza-Fonseca, 480 U.S. 421, 

449 (1987). The analytical problem in this case is similar to 

that in Cardoza-Fonseca: how should changes to the INA made by 

Congress through the Refugee Act of 1980 be construed? At issue 

in Cardoza-Fonseca was whether eligibility for asylum should be 

based on the "persecution or well-founded fear of persecution" 

standard in the Refugee Act of 1980, or on the more stringent 

"life or freedom would be threatened" standard originally 

provided in the INA. Under the Chevron framework, the Court used 

traditional tools of statutory construction and examined 

legislative history and the United Nations protocol in 

determining that Congress had expressed a clear intent on the 

eligibility standard in enacting the Refugee Act of 1980. 

Cardoza-Fonseca, 480 U.S. at 449. 

 In this case, the plain meaning of the Refugee Act 

is clear and unambiguous. The Act provides, "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 . . . ." 8 U.S.C. § 1158(a) (emphasis added). The 

government argues that the Attorney General fulfilled this 

mandate by establishing one asylum procedure for stowaways and 

another asylum procedure for other aliens. The plain language of 
the Refugee Act leaves no room for a construction permitting 

differing asylum procedures for aliens based on their status: 

Congress plainly stated that the "Attorney General shall 

establish a procedure." 8 U.S.C. § 1158(a) (emphasis added); see 

also Yiu Sing Chun v. Sava, 708 F.2d 869, 872 (2d Cir. 1983) 

(finding in the legislative history of the Refugee Act that 

Congress directed the Attorney General to establish "‘a new 

uniform asylum procedure'") (citing H. Conf. Rep. No. 781, 96th 

Cong., 2d Sess. 20 (1980), reprinted in 1980 U.S.C.C.A.N. 160, 

161). Congress clearly intended a single, uniform procedure be 

established to satisfy our treaty obligation under the U.N. 

Protocol. 

 In mandating the establishment of a procedure for 

asylum applicants, Congress plainly stated in the Refugee Act 

that a uniform asylum hearing shall apply "irrespective of such 

alien's status." Section 1182(a)(6)(D) classifies stowaways as 

"excludable aliens," and § 1323(d) exempts stowaways from 

exclusion hearings. Section 1158(a), however, mandates that the 

asylum procedure established by the Attorney General be applied 

irrespective of an alien's status, which clearly would include 

aliens with stowaway status. Thus, under the plain meaning of 

the Refugee Act, Congress clearly and unambiguously intended that 

the Attorney General establish a uniform asylum procedure that is 

to be applied irrespective of an alien's status as a stowaway. 

 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. This 

preserves the basic thrust of § 1323(d), which commands that 

stowaways are not entitled to an exclusion hearing. Yiu Sing 

Chun, 708 F.2d at 876. 

D. The Second Circuit's Pre-Chevron Construction of 

 Stowaways under the Refugee Act 

 Prior to the Supreme Court's decision in Chevron, 

this very issue was addressed by the Second Circuit Court of 

Appeals in Yiu Sing Chun v. Sava, 708 F.2d 869 (2d Cir. 1983). 

In Yiu Sing Chun, the court examined Congress's intent in 

enacting the Refugee Act of 1980 and concluded that stowaways' 

"procedural rights as asylum applicants derive from the Refugee 

Act of 1980." Id. at 874. The court explained and held: 

 Section 1323(d) is a specific provision 

 detailing the treatment afforded alien 

 stowaways. This provision must be read in 

 light of § 1182 which defines "general 

 classes" of "[e]xcludable aliens." Although 

 § 1182(a)(18) lists "[a]liens who are 

 stowaways" as an excludable class, § 1182(a) 

 contains a proviso stating that its 

 definitions are applicable "[e]xcept as 

 otherwise provided in this chapter." The 
 Refugee Act limits the effect of § 1323(d) by 

 "otherwise provid[ing]" that aliens applying 

 for asylum may do so "irrespective of . . . 

 status." 8 U.S.C. § 1158(a). 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. 

 

 Yiu Sing Chun, 708 F.2d at 874-75. In ascertaining 

"congressional intent that the ‘Attorney General . . . establish 

a uniform procedure for passing upon an asylum application' under 

the Refugee Act," the Second Circuit employed traditional tools 

of statutory construction, examined internal INS procedures, 

legislative history and the United Nations Protocol, and 

considered the "dictates of procedural due process." Id. at 872, 

874, 875, 876, 877 n.25. Although not analyzed within the 

Chevron framework, Yui Sing Chun supports our conclusion that 

Congress clearly and unambiguously intended that the asylum 

procedures established by the Attorney General be applied 

irrespective of an alien's status as a stowaway. 

E. BIA's Inconsistent Interpretations 

 The Second Circuit rejected the manner in which 

the INS applied its regulations to stowaways and held that 

stowaways were entitled to "whatever other procedural rights 

other asylum applicants are afforded." Yui Sing Chun v. Sava, 

708 F.2d 869, 876 (2d Cir. 1983). The BIA declined to follow Yui 

Sing Chun outside the Second Circuit. See Matter of Waldei, 19 I 

& N Dec. 189 (BIA 1984). In Waldei, the BIA concluded that 

"[t]he alien stowaway is not deprived of the opportunity to have 

his asylum claim considered, but in view of his status under the 

[INA] that opportunity is limited." Id. at 193. Thus, in Waldeithe BIA 

reaffirmed its approval of the INS's nonadversarial

interview procedure for stowaways, despite the fact that the 

procedure did not require the interview to be recorded. 

 The BIA has subsequently acknowledged on several 

occasions that the stowaway asylum procedure does not produce an 

adequate record for review and has vacated INS asylum decisions 

due to the inadequate record. In this case the BIA stated, "This 

Board was not provided with a transcript of statements made by 

the applicant in his interviews with the asylum officer or with a 

meaningful summary of those statements, and, consequently, has no 

basis for evaluating any testimony presented at the interviews." 

Am. Stipulated J.A., No. 55 (In re Mircea Marincas, No. A70 867 

421, at 2 (BIA May 4, 1995)). In a published case, the BIA has 

held that the record created by the stowaway asylum procedure 

"provides an inadequate basis for determining credibility and 

therefore fairly adjudicating the applicant's persecution claim." 

In re S-S-, Applicant, Interim Dec. (BIA) 3257 (BIA Nov. 8, 

1995). The BIA in S-S-, Applicant had to remand the case to the 

INS so a suitable record could be produced. Id. In another 

case, the BIA stated in relevant part: 
 We are unable to enter a decision in 

 this case on the basis of the record before 

 us. In a notice of intent to deny dated 

 January 27, 1993, the commissioner relied 

 upon statements allegedly made by the 

 applicant in his interview with the asylum 

 officer. However, no transcript or summary 

 of the applicant's assertions is contained in 

 the record. Rather, the facts set forth in 

 the notice of intent to deny constitute the 

 only record of the applicant's interview with 

 the asylum officer that is contained in the 

 record file. The applicant disputes the 

 facts reflected in the notice. 

 

 In order to fully and fairly review a 

 decision entered in a case, this Board must 

 have before it the primary evidentiary 

 matters relied upon by the initial 

 adjudicator, in this case, either a 

 transcript of the statements made by the 

 applicant in support of his persecution claim 

 or a meaningful, clear, and complete summary 

 of those statements prepared by the 

 interviewing asylum officer. . . . The Board 

 needs to know the questions asked an 

 applicant, as well as his responses, before 

 we can evaluate whether a notice of intent to 

 deny accurately and thoroughly reflects what 

 transpired in the proceedings before the 

 asylum officer and whether the applicant's 

 persecution claim was adequately developed in 

 those proceedings. This is especially true 

 where, as here, the applicant contends that 

 the notice of intent to deny does not 

 accurately reflect his claims. 

 

 Am. Stipulated J.A., No. 61 (In re Chila, No. A72 418 113, at 2 

(BIA May 6, 1993) (citations omitted)). The fact that the BIA 

has held the asylum procedure provided stowaways is inadequate 

further supports our conclusion that the BIA is misconstruing the 

Refugee Act. 

 In INS v. Cardoza-Fonseca, 480 U.S. 421 (1987), 

the Court stated: 

 An additional reason for rejecting the INS's 

 request for heightened deference to its 

 position is the inconsistency of the 

 positions the BIA has taken through the 

 years. An agency interpretation of a 

 relevant provision which conflicts with the 

 agency's earlier interpretation is "entitled 

 to considerably less deference" than a 

 consistently held agency view. 

 
 Id. at 446 n.30 (quoting Watt v. Alaska, 451 U.S. 259, 273 

(1981)). We believe the BIA's decisions in Waldei, S-S-, 

Applicant, and Chila reflect an inherent inconsistency in the 

BIA's interpretation of the Refugee Act. In Waldei the BIA held 

that stowaways were only entitled to a nonadversarial interview 

procedure conducted by an INS asylum officer, and it implicitly 

approved an INS procedure that does not require the interview to 

be recorded. In cases after Waldei the BIA has held that the 

asylum procedure for stowaways is so deficient that it cannot be 

effectively reviewed. We cannot defer to the BIA's construction 

of the Refugee Act, which approves of the INS's asylum procedure 

for stowaways while condemning that same procedure as creating an 

inadequate record for review. 

F. Due Process Concerns under the Refugee Act

 Finally, we believe the INS and BIA are 

misconstruing the Refugee Act because we doubt Congress intended 

the Attorney General to establish an asylum procedure for 

stowaways that fails to provide basic due process. "[A]n alien 

seeking initial admission to the United States requests a 

privilege and has no constitutional rights regarding his 

application, for the power to admit or exclude aliens is a 

sovereign prerogative." Landon v. Plasencia, 459 U.S. 21, 32 

(1982). Aliens only have those statutory rights granted by 

Congress. When Congress directs an agency to establish a 

procedure, however, it can be assumed that Congress intends that 

procedure to be a fair one. See Califano v. Yamasaki, 442 U.S. 

682, 693 (1979) (assuming "a congressional solicitude for fair 

procedure, absent explicit statutory language to the contrary"); 

see also Meachum v. Fano, 427 U.S. 215, 226 (1976) (explaining 

that under Wolff v. McDonnell, 418 U.S. 539, 557-58 (1974), 

minimum due process rights attach to statuory rights). In this 

case Congress instructed the Attorney General to establish an 

asylum procedure, and United States' treaty obligations and 

fairness mandate that the asylum procedure promulgated by the 

Attorney General provide the most basic of due process. 

 Precisely what minimum procedures are due under a 

statutory right depends on the circumstances of the particular 

situation. See, e.g., Hewitt v. Helms, 459 U.S. 460, 472 (1983); 

Meachum v. Fano, 427 U.S. 215, 227 (1976). The basic procedural 

rights Congress intended to provide asylum applicants under the 

Refugee Act are particularly important because an applicant 

erroneously denied asylum could be subject to death or 

persecution if forced to return to his or her home country. We 

do not attempt to precisely detail here all of the basic 

procedures mandated under the Refugee Act for asylum applicants. 

The current asylum procedure for stowaways, however, fails to 

provide two of the most basic of due process protections--a 

neutral judge and a complete record of the proceeding. These 

inadequacies of the asylum procedures afforded stowaways are 

particularly troubling because they insulate the INS's denial of 

asylum from effective administrative and judicial review. 

Although asylum applicants do not have constitutional due process 

protections, we believe that in accord with the U.N. Protocol, 
Congress intended the Attorney General to establish a uniform 

asylum procedure that is fair and that applies irrespective of 

alien status. The existing INS asylum procedure for stowaways is 

inherently unfair, and, therefore, the procedure is contrary to 

the clear intent of Congress. 

 Stowaway asylum applicants must be afforded the 

same asylum procedures deemed necessary for other aliens. In 

addition to a hearing before a neutral immigration judge and a 

transcribed record of the proceeding, the INS regulations provide 

non-stowaway asylum applicants the following procedural rights: 

to be advised of their right to counsel and of the availability 

of free legal services; to a public hearing; to examine and 

object to adverse evidence; to compel testimony of witnesses by 

subpoena; and to administrative review. See 8 C.F.R. §§ 3.12, 

3.35, 3.38, 236.2, 236.3, 236.7. Current INS regulations do not 

clearly delineate between the procedures provided aliens in 

exclusion hearings and asylum hearings. The above procedures, 

however, are provided by INS regulations to non-stowaway aliens 

in their asylum hearing. Under the Refugee Act, of course, the 

Attorney General may modify those procedures which go beyond the 

minimum due process rights required by fairness to which all 

asylum applicants are entitled. 

 Additionally, Petitioner asserts that the asylum 

procedures promulgated by the Attorney General are deficient 

because they fail to provide for a translator. It is difficult 

to imagine how any bona fide refugee, with little or no knowledge 

of English, could ever spontaneously convey a "well-founded fear 

of persecution" to an asylum officer. Courts have recognized the 

importance of a competent translator to ensure the fairness of 

proceedings to applicants who do not speak English. See, e.g., 

Augustin v. Sava, 735 F.2d 32, 37 (2d Cir. 1984) ("A hearing is 

of no value when the alien and the judge are not 

understood . . . . The very essence of due process is a 

‘meaningful opportunity to be heard.'"); see also Tejeda-Mata v. 

INS, 626 F.2d 721, 726 (9th Cir. 1980), cert. denied, 456 U.S. 

994 (1982); Niarchos v. INS, 393 F.2d 509, 511 (7th Cir. 1968). 

Moreover, the Office of the United Nations High Commissioner for 

Refugees, Handbook on Procedures and Criteria for Determining 

Refugee Status (Geneva, 1979), appropriately characterizes access 

to "the services of a competent interpreter" as a fundamental 

requirement. The United Nations Handbook "provides significant 

guidance in construing the [1967] Protocol, to which Congress 

sought to conform." INS v. Cardoza-Fonseca, 480 U.S. 421, 439 

n.22 (1987). Thus, in addition to requiring the INS to apply 

to stowaways those procedures which are provided all asylum 

applicants, we also hold that at a minimum those procedures must 

also include the services of a translator. Otherwise, an asylum 

applicant's procedural rights would be meaningless in cases where 

the judge and asylum applicant cannot understand each other 

during the hearing. 

 We conclude that the Refugee Act of 1980 clearly 

and unambiguously requires that the Attorney General promulgate 

and apply to stowaways seeking asylum the same fair procedure as 

other asylum applicants and that those procedures must include 
the services of a translator. 

IV. Whether Reasonable Evidence Supported the Asylum 

 Application 

 Petitioner contends the district court erred in 

finding that reasonable evidence supported the INS's denial of 

Mr. Marincas' asylum application. We cannot address this issue 

because the record is inadequate. The district court's findings 

on this issue are necessarily vacated by our conclusion that 

Petitioner's asylum hearing was procedurally deficient. On 

remand Mr. Marincas should receive an asylum hearing which will 

produce a reviewable record. 

 The judgment of the district court will be 

reversed and remanded for further proceedings in accord with this 

opinion. 

 

No. 95-5424 

BECKER, Circuit Judge, concurring. 

 I join in Judge McKay's fine opinion on the 

understanding that it is ultimately founded not on the due 

process clause but on congressional intent (i.e., the intent that 

asylum claimants receive a uniform, fair process). However, I do 

not join in Judge McKay's discussion of the necessity of specific 

procedures, such as the need for an independent adjudicator or 

for a translator. I would prefer to let the INS decide in the 

first instance what procedures best conform to this court's 

mandate.