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. e du/thir dc ir c uit_1996/87UNITED STATES COUR T 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 C ourt 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 (A RGUED)
Robert A. Perkins &
Associates 213 Institute Place, Suite 501 Chicago, IL 60610-3 125

Attorney for appella nt

Daniel J. Gibbons (A RGUED)
Assistant U.S. Attor ney Faith S. Hochberg
United States Attorn ey 970 Broad Street, Ro om 502 Newark, New Jersey 07102

Attorneys for appell eees

Judy Rabinovitz (ARG UED)Lucas Guttentag

Ann Parrent Immigrants' Rights P roject
American Civil Liber ties Union
Foundation

132 West 43rd Street New York, New York 10036

Attorneys for amici curiae

Marsha Wenk
American Civil Liber ties 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 po litical 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 rev iew of the BIA decision by filing a petition for a writ of habeas corpus and a complaint for injunctive and declaratory relief. T he 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 an d questioned the legitimacy of the new Romanian government insta lled after the overthrow of the Communist-totalitarian government of Nicolae
Ceausescu. Mr. Marincas asserts that he was arrest ed, severely beaten, and threatened by Romanian authorities afte r he criticized the new government, which is apparently comprised almost entirely of former members of the old Commun ist regime.
He claims that he fled Romania when he realized tha t he could not
be safe in his homeland. Mr. Marincas eventually arrived in th e United States as a stowaway with a group of Romanian natio nals on April 14, 1994, aboard a ship called the M/V Innovation. Mr. Marincas requested asylum immediately upon his arrival in th e United States, claiming he fled Romania because of politic al persecution. He was detained as an excludable alie n 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 appl ication for

political asylum on April 17, 1994. At that time h e was not informed of his right to be represented by counsel in his asylum interview or of the availability of free legal serv ices. An INS official interviewed Petitioner, and his asylum cla im 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 wa s 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 offic er who had previously denied his claim. Petitioner was repres ented by counsel at the second interview, but his counsel wa s only allowed several minutes to question Petitioner and to advoc ate 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 allegedl y documented the persecution he suffered in Romania. His applic ation was again denied. On April 7, 1995, Petitioner filed an other appeal with the BIA and requested time in which to file a brief. On May 4, 1995, the BIA denied the appeal without having a ccepted
Petitioner's brief. The BIA entered a final order of deportation
for Mr. Marincas. Petitioner then initiated this a ction. The district court reviewed the deportation order pursu ant to 8 U.S.C. § 1105a(a)(10), which permits habeas review of deportation
orders. Petitioner asserted that he was denied mea ningful administrative review of his application because hi s application was considered by an INS official instead of a neut ral immigration judge and that the BIA improperly affir med the denial of his asylum without giving him an opportunity to submit a brief. The district court denied Mr. Marincas' pet ition for a writ of habeas corpus. Deferring to the BIA's inte rpretation of the applicable immigration statutes, the district c ourt found Mr. Marincas was provided all of the process due him on his claim for asylum. The court also found that reasonable evide nce supported the INS's denial of Mr. Marincas' asylum applicatio n. We have appellate jurisdiction to rev iew a final order of deportation. 28 U.S.C. § 1291. Petitione r is currently in INS custody at York County Prison in York, Penns ylvania. 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 pendenc y of this appeal.

II. United States Treaty Obligations The United States is a signatory to the Un ited Nations Protocol Relating to the Status of Refugees (U.N. P rotocol), which incorporated the 1951 Convention Relating to the Status of Refugees. The U.N. Protocol provides: No Contracting State shall expe l or return("refouler") a refugee in any m anner

whatsoever to the frontiers of territories
where his life or freedom would be threatened on account of his race, religio n, nationality, membership in a pa rticular social group or political opini on.

United Nations Protocol Relating to the Status of R efugees, 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, n ationality, membership in a particular social group or politica l opinion, is outside the country of his nationality and is unabl e or, owing to such fear, is unwilling to avail himself of the pro tection of that country." Id. art. 1. The purpose of the Refugee Act of 198 0, which amended the Immigration and Nationality Act, was "t o provide a permanent and systematic procedure for the admissio n 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 R efugees, Jan. 31, 1967, 19 U.S.T. 6223, T.I.A.S. No. 6577. See I NS 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 governin g the admission of refugees into the United States. Pub. L. No. 96- 212, tit. I, § 101, 94 Stat. 102 (1980). In this r espect, the Supreme Court explained: Deportation is always a har sh 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 persecut ion if forced
to return to his or her home co untry. In enacting the Refugee Act of 198 0 Congress sought to "give the United Stat es sufficient flexibility to respond to situa tions involving political or religiou s dissidents and detainees throughout the wo rld."

INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987) (c itation omitted). Thus, the Refugee Act was enacted to ful fill our treaty obligations under the U.N. Protocol for the benefit of aliens, such as Mr. Marincas in this case, who clai m 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 A ct and the Refugee Act of 1980, concluded that the stowaways a re not entitled to immigration court hearings on their asy lum claims.
We reverse the district court because the BIA's con struction of the applicable immigration statutes are contrary to clear andunambiguous congressional intent.

A. The Immigration and Nationality Act and th e Refugee Act
of 1980

Aliens who arrive in the United State s but are refused entry by an immigration officer are general ly entitled to an exclusion hearing under the Immigration and Nati onality 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 he aring, an immigration judge decides whether or not the alien should be admitted. 8 U.S.C. § 1226(a). If the alien assert s an asylum claim, he is entitled to an asylum hearing before a n immigration judge. 8 C.F.R. § 236.3(c). Stowaways, however, have a distinct s tatus. Under the INA they are excludable aliens who are not enti tled 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 excl usion hearing. 8 U.S.C. § 1323(d). Section 1323(d) stat es, "The [exclusion hearing] provisions . . . shall not appl y to aliens who arrive as stowaways and no such alien shall be permitted to land in the United States, except temporarily for m edical treatment, or pursuant to such regulations as the A ttorney 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 purs uant to regulations prescribed for the ultimate departure, removal or deportation of the alien. The Refugee Act mandated for the firs t time that uniform procedures be established by the Attorney G eneral for granting asylum to aliens arriving in the United St ates. The Refugee Act amended the INA by providing: The Attorney General shall establish a procedure for an alien physical ly present in
the United States or at a land border or port of entry, irrespective of such alien's status, to apply for asylum, an d the alien may be granted asylum in the di scretion of the Attorney General if the Att orney General
determines that such alien is a refugee within the meaning of section 1 101(a)(42)(A)
of this title. 8 U.S.C. § 1158(a). We are asked to revi ew whether the Attorney General correctly interpreted the INA and the Refug ee Act in promulgating the current asylum procedures.

B. INS's Regulations and Asylum Procedures The INS regulations initially promulg ated by the Attorney General pursuant to the Refugee Act made n o explicit distinction between stowaways and other asylum appl icants. See Yui Sing Chun v. Sava, 708 F.2d 869, 874 (2d Cir. 1983). Instead, the INS applied the regulations differentl y tostowaways. See id. The INS proposed regulations i n 1987 that

would have provided a nonadversarial procedure as t he sole method of adjudicating the asylum claims of all applicants . 52 Fed. Reg. 32552-61 (1987). The INS withdrew the propose d regulations after receiving widespread criticism that such a pr ocess was inherently inadequate as the sole adjudication of a n asylum claim. Instead, the INS issued new regulations in 1988 which provided asylum applicants an adversarial adjudicat ion of their asylum claims through an immigration court hearing. 53 Fed. Reg. 11300 (1988). The nonadversarial adjudication by I NS officials, however, was explicitly retained in the regulations for stowaway asylum applicants. 53 Fed. Reg. 11310 (1988). Under current INS procedures, an appl ication for asylum is initially handled by an asylum officer. 8 C.F.R. § 208.9(a). An immigration judge acquires jurisdic tion 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 ha ving their asylum claims adjudicated in an adversarial hearing before an immigration judge who is independent of the INS. T he immigration judge is required to advise the applicant that he h as 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 wit nesses on his own behalf, 8 C.F.R. §§ 236.2(a), 236.3(c)(3); to e xamine 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 c ounsel present, but the regulations do not require the asy lum officer to advise the applicant of his right to counsel or of the availability of free legal services. 8 C.F.R. § 20 8.9(b). The stowaway applicant may present witnesses and may su bmit
affidavits of witnesses and other evidence. 8 C.F. R. § 208.9(b). The regulations do not require that the interview b e recorded, and they require the applicant to provide his own i nterpreter. 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 conduc ted 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 Con gress intended stowaways to be afforded the same asylum procedures as other
aliens.C. Congressional Intent

The district court deferred to the BI A'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-ste p approach to judicial review of agency interpretations of acts o f Congress. First, the reviewing court must determine whether t here is a clear and unambiguous congressional intent concerni ng the precise question in issue. If congressional intent is clea r and unambiguous, then that intent is the law and must b e given effect. A reviewing court proceeds to the second s tep "if the statute is silent or ambiguous with respect to the specific issue." Id. at 843. Then, "the question for the c ourt is whether the agency's answer is based on a permissib le
construction of the statute." Id. The Court note d: The judiciary is the final a uthority on issues of statutory construction and must reject administrative constructio ns which are contrary to clear congressional intent . . . . If a court, emplo ying traditional tools of statutory co nstruction, ascertains that Congress had an i ntention on the precise question at issue, th at intention is the law and must be given effe ct. Chevron, 467 U.S. at 843 n.9 (citations om itted). In this case, we do not reach the second step of Chevron because Congress expressed a clear and unambiguous intent with regar d to the precise question at issue. In construing the meaning of the Refu gee Act of 1980, the Supreme Court has examined the plain mean ing of the Act, its symmetry with the United Nations Protocol, and its legislative history. See INS v. Cardoza-Fonseca, 4 80 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 constru ed? At issue in Cardoza-Fonseca was whether eligibility for asyl um should be based on the "persecution or well-founded fear of p ersecution" standard in the Refugee Act of 1980, or on the more stringent "life or freedom would be threatened" standard orig inally provided in the INA. Under the Chevron framework, the Court used traditional tools of statutory construction and exa mined legislative history and the United Nations protocol in determining that Congress had expressed a clear int ent 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 th e Refugee Act is clear and unambiguous. The Act provides, "The A ttorney General shall establish a procedure for an alien ph ysically present in the United States or at a land border or port of entry, irrespective of such alien's status, to appl y for asylum . . . ." 8 U.S.C. § 1158(a) (emphasis added ). The government argues that the Attorney General fulfill ed this mandate by establishing one asylum procedure for st owaways and another asylum procedure for other aliens. The pla in language ofthe Refugee Act leaves no room for a construction p ermitting

differing asylum procedures for aliens based on the ir status: Congress plainly stated that the "Attorney General shall establish a procedure." 8 U.S.C. § 1158(a) (emphas is added); see also Yiu Sing Chun v. Sava, 708 F.2d 869, 872 (2d C ir. 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. N o. 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 p rocedure for asylum applicants, Congress plainly stated in the R efugee Act that a uniform asylum hearing shall apply "irrespec tive of such alien's status." Section 1182(a)(6)(D) classifies stowaways as "excludable aliens," and § 1323(d) exempts stowaway s from exclusion hearings. Section 1158(a), however, mand ates that the asylum procedure established by the Attorney Genera l be applied irrespective of an alien's status, which clearly wo uld 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 pro cedure that is to be applied irrespective of an alien's status as a stowaway. Our construction of the Refugee Act i s consistent with § 1323(d) because the Attorney General can est ablish a uniform asylum procedure separate from the exclusio n hearing. The Refugee Act mandates a uniform asylum procedure for all asylum applicants; for stowaways, the resulting hea ring can be limited solely to the issue of asylum eligibility. This preserves the basic thrust of § 1323(d), which comm ands that stowaways are not entitled to an exclusion hearing. Yiu Sing Chun, 708 F.2d at 876.

D. The Second Circuit's Pre-Chevron Construct ion 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 int ent 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 p rovision detailing the treatment afforde d alien stowaways. This provision must be read in light of § 1182 which defines " general classes" of "[e]xcludable alien s." Although § 1182(a)(18) lists "[a]liens w ho are stowaways" as an excludable cla ss, § 1182(a) contains a proviso stating that its definitions are applicable "[e] xcept as otherwise provided in this chap ter." TheRefugee Act limits the effect o f § 1323(d) by

"otherwise provid[ing]" that al iens applying for asylum may do so "irrespect ive of . . . status." 8 U.S.C. § 1158(a). Whatever procedural limitations § 1323(d ) might impose in the absence of § 1158, we ho ld 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 as certaining "congressional intent that the ‘Attorney General . . . establish a uniform procedure for passing upon an asylum appl ication' under the Refugee Act," the Second Circuit employed tradi tional tools of statutory construction, examined internal INS pr ocedures, 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 wit hin the Chevron framework, Yui Sing Chun supports our concl usion that Congress clearly and unambiguously intended that th e asylum procedures established by the Attorney General be a pplied irrespective of an alien's status as a stowaway.

E. BIA's Inconsistent Interpretations The Second Circuit rejected the manne r in which the INS applied its regulations to stowaways and he ld that stowaways were entitled to "whatever other procedur al rights other asylum applicants are afforded." Yui Sing Ch un v. Sava, 708 F.2d 869, 876 (2d Cir. 1983). The BIA declined to follow Yui Sing Chun outside the Second Circuit. See Matter o f Waldei, 19 I & N Dec. 189 (BIA 1984). In Waldei, the BIA conclu ded that "[t]he alien stowaway is not deprived of the opport unity to have his asylum claim considered, but in view of his sta tus under the [INA] that opportunity is limited." Id. at 193. T hus, 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 recor ded. The BIA has subsequently acknowledged on several occasions that the stowaway asylum procedure does n ot produce an adequate record for review and has vacated INS asyl um decisions due to the inadequate record. In this case the BIA stated, "This Board was not provided with a transcript of stateme nts made by the applicant in his interviews with the asylum off icer or with a meaningful summary of those statements, and, conseq uently, 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 credi bility and therefore fairly adjudicating the applicant's perse cution claim." In re S-S-, Applicant, Interim Dec. (BIA) 3257 (BIA Nov. 8, 1995). The BIA in S-S-, Applicant had to remand th e case to the INS so a suitable record could be produced. Id. I n another case, the BIA stated in relevant part:We are unable to enter a de cision in

this case on the basis of the r ecord before
us. In a notice of intent to d eny dated January 27, 1993, the commissio ner relied upon statements allegedly made by the applicant in his interview with the asylum officer. However, no transcrip t or summary of the applicant's assertions i s contained in the record. Rather, the facts set forth in the notice of intent to deny co nstitute the only record of the applicant's interview with the asylum officer that is cont ained in the record file. The applicant dis putes the
facts reflected in the notice.

In order to fully and fairly review a decision entered in a case, thi s Board must have before it the primary evid entiary matters relied upon by the init ial adjudicator, in this case, eith er a transcript of the statements ma de by the applicant in support of his per secution claim or a meaningful, clear, and com plete summary of those statements prepared by the interviewing asylum officer. . . . The Board needs to know the questions ask ed an applicant, as well as his respo nses, before
we can evaluate whether a notic e of intent to deny accurately and thoroughly reflects what transpired in the proceedings b efore the asylum officer and whether the applicant's persecution claim was adequatel y developed in those proceedings. This is esp ecially true where, as here, the applicant c ontends that the notice of intent to deny do es 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 t hat the BIA has held the asylum procedure provided stowaways is inadequate further supports our conclusion that the BIA is mis construing the Refugee Act. In INS v. Cardoza-Fonseca, 480 U.S. 4 21 (1987),

the Court stated: An additional reason for reject ing the INS's request for heightened deferenc e to its position is the inconsistency o f the positions the BIA has taken thr ough the years. An agency interpretatio n of a relevant provision which confli cts 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 inconsiste ncy in the BIA's interpretation of the Refugee Act. In Waldei the BIA held that stowaways were only entitled to a nonadversari al interview procedure conducted by an INS asylum officer, and i t implicitly approved an INS procedure that does not require the interview to
be recorded. In cases after Waldei the BIA has hel d 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 asy lum 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 a re misconstruing the Refugee Act because we doubt Cong ress intended the Attorney General to establish an asylum procedu re for stowaways that fails to provide basic due process. "[A]n alien seeking initial admission to the United States requ ests a privilege and has no constitutional rights regardin g his application, for the power to admit or exclude alie ns is a sovereign prerogative." Landon v. Plasencia, 459 U .S. 21, 32 (1982). Aliens only have those statutory rights gr anted by Congress. When Congress directs an agency to estab lish a procedure, however, it can be assumed that Congress intends that procedure to be a fair one. See Califano v. Yamasa ki, 442 U.S. 682, 693 (1979) (assuming "a congressional solicitu de for fair procedure, absent explicit statutory language to th e 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 right s). In this case Congress instructed the Attorney General to es tablish an asylum procedure, and United States' treaty obligat ions and fairness mandate that the asylum procedure promulga ted by the Attorney General provide the most basic of due proc ess. 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. 46 0, 472 (1983); Meachum v. Fano, 427 U.S. 215, 227 (1976). The bas ic procedural rights Congress intended to provide asylum applican ts under the Refugee Act are particularly important because an a pplicant 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 asylu m applicants. The current asylum procedure for stowaways, however , fails to provide two of the most basic of due process protec tions--a neutral judge and a complete record of the proceedi ng. These inadequacies of the asylum procedures afforded stow aways are particularly troubling because they insulate the IN S's denial of asylum from effective administrative and judicial r eview. Although asylum applicants do not have constitution al 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 irre spective of alien status. The existing INS asylum procedure fo r stowaways is inherently unfair, and, therefore, the procedure i s contrary to the clear intent of Congress. Stowaway asylum applicants must be af forded the same asylum procedures deemed necessary for other a liens. In addition to a hearing before a neutral immigration judge and a transcribed record of the proceeding, the INS regul ations provide non-stowaway asylum applicants the following proced ural rights: to be advised of their right to counsel and of the availability of free legal services; to a public hearing; to exa mine 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 regul ations do not clearly delineate between the procedures provided a liens in exclusion hearings and asylum hearings. The above procedures, however, are provided by INS regulations to non-sto waway 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 o r 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 T ejeda-Mata v. INS, 626 F.2d 721, 726 (9th Cir. 1980), cert. denie d, 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 D etermining Refugee Status (Geneva, 1979), appropriately charac terizes access to "the services of a competent interpreter" as a f undamental requirement. The United Nations Handbook "provides significant guidance in construing the [1967] Protocol, to whic h Congress sought to conform." INS v. Cardoza-Fonseca, 480 U. S. 421, 439 n.22 (1987). Thus, in addition to requiring the IN S to apply to stowaways those procedures which are provided al l asylum applicants, we also hold that at a minimum those pr ocedures must
also include the services of a translator. Otherwi se, an asylum applicant's procedural rights would be meaningless in cases where the judge and asylum applicant cannot understand ea ch other during the hearing. We conclude that the Refugee Act of 1 980 clearly and unambiguously requires that the Attorney Genera l promulgate and apply to stowaways seeking asylum the same fair procedure as other asylum applicants and that those procedures m ust includethe services of a translator.

IV. Whether Reasonable Evidence Supported the Asylum Application

Petitioner contends the district cour t erred in finding that reasonable evidence supported the INS' s denial of Mr. Marincas' asylum application. We cannot addres s this issue because the record is inadequate. The district cou rt's findings on this issue are necessarily vacated by our conclu sion that Petitioner's asylum hearing was procedurally defici ent. On remand Mr. Marincas should receive an asylum hearin g which will produce a reviewable record. The judgment of the district court wi ll be reversed and remanded for further proceedings in ac cord with this opinion.

No. 95-5424 BECKER, Circuit Judge, concurring. I join in Judge McKay's fine opinion on th e understanding that it is ultimately founded not on the due process clause but on congressional intent (i.e., t he intent that asylum claimants receive a uniform, fair process). However, I do not join in Judge McKay's discussion of the necessi ty of specific procedures, such as the need for an independent adj udicator or for a translator. I would prefer to let the INS de cide in the first instance what procedures best conform to this court's

mandate.