Interim Decision #2927 

MATTER OF MATELOT 

In Exclusion Proceedings 

A-26007558 

Decided by Board November 1, 1982 

(1) An immigration judge's refusal to admit as evidence findings of fact that are contained' 

in a reported federal decision does not deprive an alien of the opportunity to fully present 

an asylum claim. 

CHARGE: 

Orden Act of 1952—Sec. 212(a)(20) [8 U.S.C. 1182(a)(20)]—Immigrant not in possession 

of valid unexpired immigrant visa or other valid entry document 

ON BEHALF OP APPLICANT: 

James W. Gardner, Esquire 

Brown, Bucalos, and Gardner 

, 712 Lexington Building 

201 West Short Street 

Lexington, Eentucky 40507 

ON BEHALF OF SERVICE: 

Debra Gordon 

General Attorney 

BY: Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members 

This matter is before the Board on appeal from the immigration judge's 

decision of December 9, 1981, finding the applicant excludable from 

admission to the United States under section 212(a)(20) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(20), and denying his application for asylum under section 208 of the Act.' The appeal will be 

dismissed. 

The applicant is a 27-year-old native and citizen of Haiti who arrived 

in the United States on July 14, 1981, by boat near Miami, Florida. He 

hafino documents with which to enter the United States and was held in 

detention by the Service. On September 1, 1951, he was served with 

Form 1-122, "Notice to Applicant for Admission Detained for Hearing 

Before Immigration Judge," alleging that he was excludable from admisThe filing of an application for asylum in exclusion proceedings shall also be considered 

as a request for withholding of exclusion or deportation under section 243(h) of the Immigration and Nationality Act, 8 U.S.C. 1253(h). 8 C.F.R. 208.3(b); see Mailer of Exilits, 18 

I&N Dec. WO (NIA 1982); matter of Portales, 16 I&N Dee. 239 USIA 1982); matter of 

Castellon, 17 l&N Dec: 616 (BIA 1981). 

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Interim Decision #2927 

sion to the United States under section 212(a)(20) of the Act as an 

immigrant not in possession of a valid immigrant visa. Following his 

initial two hearings before the immigration judge which were continued 

to permit the applicant to have counsel prepared and to submit an 

asylum application, the applicant filed Form 1-589, "Request for Asylum 

in the United States," on October 16, 1981. 2Upon receipt of an advisory 

opinion from the United States Department of State, Bureau of Human 

Rights and Humanitarian Affairs (BHRHA), 3the exclusion hearing was 

resumed on December 9, 1981. The immigration judge found the applicant excludable as indicated above and denied his asylum application. 

On appeal, the applicant submits that the Service has the burden of 

proving that exclusion proceedings are proper. He alleges it was error 

to deny his request to have the government's primary inspector verify 

that exclusion proceedings are appropriate. The applicapt's argument is 

misplaced.. It is clear that an applicant in exclusion proceedings has the 

burden of establishing that exclusion proceedings are improper. See 

section 291 of the Act; Matter of Phelisna, 18 I&N Dec. 272 (BIA 

.1982); Matter of Lie La Nues, 18 1&N Dec. 140 (BIA 1981); Matter of 

Pierre, 14 I&N Dec. 467 (BIA 1973); but cf. Matter of Salazar, 17 I&N 

Dec. 167 (BIA 1979) (colorable claim to lawful permanent resident status). 

The applicant has not alleged that he "entered" the United States, but. 

rather, testified that he intended to work in the United States, that he 

intended to live here permanently and that he had no document which 

would permit him to reside in this country. Thus, the record clearly 

establishes that the applicant is excludable under section 212(a)(20) of 

the Act as an immigrant without a valid immigrant visa or other valid 

entry document. 

The applicant also raises various other arguments. He objects to the 

denial of his motion for "simultaneous translation" of the exclusion 

hearing. We find no error in the denial of this motion. See Matter of 

Exilus, 18-I&N Dec. 276 (BIA 1982). 

Although the applicant apparently filed an incomplete 1-589 with the District Director, 

he states that he advised the District Director that a thorough 1-589 would be submitted 

within 45 days. Because the District Director presumably denied the asylum application in 

2 letter received by the applicant an November :40, 1981, the applicant submits that he 

was never given the opportunity to file:a thorough 1-589. 

The applicant's contention is without merit. Although harmless, it was error for the 

District Director to rule on the 1-589. Where an applicant for admission to the United 

States files an 1-589 after being placed in exclusion proceedings, jurisdiction over his 

asylum claim lies exclusively with the immigration judge. See Matter of Dee, 18 l&N Dec. 

269 (BIA 1982). The applicant was placed in exclusion proceedings on Septemlier 1, 1981, 

with the service of Form 1-122. His asylum application was subsequently filed on October 

16, 1981. Therefore, as the District Director had no authority to rule on the original 1-589, 

the applicant has no basis upon which to submit an amended 1-589 to the District Director 

fiir adjudication. 

3 See 8 C.F.R. 208.7 and 208.10(b). • 

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Interim Decision #2927 

The applicant contests the'denial of his motion for parole. We find no 

error in the denial of this motion. The District Director has exclusive 

jurisdiction to parole an alien into the United States pursuant to 8 

C.F.R. 212.5(a). Neither the immigration judge nor this Board has 

jurisdiction to exercise parole power. Matter of Castellon, 17 I&N Dec. 

616 (BIA 1981); Matter of Niayesh, 17 I&N Dec. 231 (BIA 1980); Matter 

of Lepofsky, 14 I&N Dec. 718 (BIA 1974); Matter of Conceiro, 14 I&N 

Dec. 278 (BIA), affd, Conceiro v. Marks, 360 F. Supp. 454 (S.D.N.Y. 

1973). 

The applicant argues that the denial of background information relating to conditions in Haiti deprived him of the opportunity to fully present his asylum claim. In Matter of Exame, 18 I&N Dec. 303 (BIA 

1982), we found that the applicant was not afforded a full and fair opportunity to present his persecution> claim because the immigration judge 

categorically refused to admit background evidence pertaining to conditions in Haiti. These proceedings are distinguishable from Exame, 

however, in that the applicant's counsel admitted that he did not have 

the documents which he wished to present to the immigration judge for 

consideration (fr. p. 20). Under the circumstances of these proceedings, 

we find no error in the immigration judge's refusal to receive unsubmitted 

documents. Moreover, some of the documents which the applicant sought 

to introduce were attached to his amended asylum application and were 

received into evidence. 

In addition, we fmd no error in the immigration judge's refusal to 

admit the findings of fact in Haitian Refugee Center v. Civiletti, 503 F. 

Supp. 442 (S.D. Fla. 1980). These findings were made in proceedings 

separate and distinct from those in the instant case. Further, it is not 

necessary to introduce federal decisions into the proceedings inasmuch 

as the findings and conclusions set forth therein are a matter of record 

and can be cited. Moreover, on appeal, the Fifth Circuit agreed in part 

with the government's contention that the district court erred in entering findings of fact on life in Haiti and found that the district judge 

exceeded his authority to the extent he implied by his findings and 

conclusions that the plaintiffs' claims of fear of persecution merited the 

granting of asylum. See Haitian Refugee Center v. Smith, 676 F.2d 

1023, 1042 (5 Cir. 1982). 

The applicant alleges that he was denied effective assistance of counsel because his present counsel was not competent to handle this case, 

having no prior experience in immigration law. After reviewing the 

proceedings and the brief on appeal, we are unpersuaded that the applicant has sustained his burden of establishing that he was denied effective assistance of counsel. 

Similarly, the applicant alleges that the immigration judge erred in 

refusing to grant a continuance because his counsel only had 9-days' 

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Interim Decision #2927 

notice to prepare for the hearing and because he had received the State 

Department's advisory opinion immediately before the hearing. This 

argument is without merit. The record reflects that counsel's partner 

was present and had represented the applicant at his original hearing on 

September 1, 1981. Further,•the record contains Form G-28, "Notice of 

Entry of Appearance as Attorney or Representative," which was filed 

by the applicant's counsel and which was received into evidence by the 

immigration judge on September 29, 1981. Therefore, at a minimum, 

the applicant's counsel had over two months and, more likely, had over 

three months to prepare for this else. The 9-day notice in advance of the 

continued hearing held on December 9, 1981, was not insufficient notice 

inasmuch as the applicant's counsel actually had a substantially greater 

period of time in which to prepare for the proceedings. 

In addition, we find no error with the denial of a continuance to rebut 

the State Department's advisory opinion. The applicant does not allege 

what evidence would have been forthcoming if the continuance 11111 been 

granted. Further, the applicant was given the opportunity to rebut the 

opinion expressed by the State Department and, in fact, did su by 

testifying and submitting an amended asylum application in support of 

his position. Moreover, the opinion is not binding on the immigration 

judge or this Board. 

Finally, the applicant asserts that he has established his asylum claim,' 

based on his rationale for escaping from Haiti and belief of the consequences of his return to that country. The applicant also contends that 

there is no evidence to show why he is not entitled to asylum inasmuch 

as the Service did not call any witnesses or present any proof to rebut 

his case. - 

An applicant for asylum or withholding of deportation must show 

that, if deported, he would be subject to persecution or that he has a 

well-founded fear of persecution based on his race, religion, nationality,- 

membership in a particular social group, or political opinion. Section 

208(a) of the Act. See section 243(h) of the Act; Rejai© v. INS, 691 F.2d 

139 (3 Cir. 1982); McMullen v_ INS, 658 F.2d 1312 (9 Cir. 1981); Kashani 

v. INS, 547 F.2d 376 (7 Cir. 1977); Matter of Portales, 18 I&N Dec. 239 

(BIA 1982); Matter of Martinez-Romero, 18 I&N Dec. 75 (BIA 1981); 

Matter of Dunar, 14 I&N Dec. 310 (BIA 1973). See also Stem v. Sava, 

678 F.2d 401 (2 Cir. 1982). It is clear that, when presenting a claim, the 

applicant has the burden of proof in such proceedings. See 8 C.F.R. 

208.5; Haitian Refugee Center v. Smith, supra at 1042-43; McMullen v. 

INS, supra; Matter of Exiles, supra. Moreover, an alien.who makes an 

illegal departure from Haiti does not necessarily establish a well-founded 

fear of persecution under the Act. See Matter of Exiles, supra. See also 

Matter of Nagy, 11 I&N Dec. 8 (BIA 1966); Matter of Liao, 11 I&N Dec. 

113 (BIA 1965). 

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Interim Decision #2927 

Liao, 11 I&N Dec. 113 (BIA 1965). 

The applicant believes that his claim should be granted because of his 

,problems xxith the Ton Ton Macoutes and because he departed from 

Haiti without authorization. In essence, the applicant states that his 

father was imprisoned by the Ton Ton Macoutes for an unknown reason, 

but was released upon the payment of $60.00. The applicant further 

states that because he was responsible for his father's release, he was 

questioned many times by the Ton Ton Macoutes. After a friend told 

him that tile Ton Ton Macoutes were looking for him, the applicant 

decided to leave Haiti. 

The applicant has not established that he will be persecuted or that he 

has a well-founded fear of persecution within the contemplation of 

section 20a(a) or 243(h) of the Act, regardless of whether his claim is 

assessed in terms of whether he has demonstrated a "clear probability," 

a "good reason," or a "realistic likelihood.' The applicant states that he 

departed from Haiti without permission. However, if returned, he has 

not shown how his perceived treatment will be different from other 

Haitians whio departed from that country without authorization or that 

the penalty, if any, imposed by the Haitian government is within the 

meaning of the Act. Further, on this record we are unable to conclude 

that the questioning and possible arrest of the applicant by the Ton Ton 

Macoutes qualifies the applicant for asylum and section 243(h) relief, 

particularly when the contents of the questioning and reason for the 

perceived arrest are not a matter of record. 

Accordingly, the appeal will be dismissed. 

ORDER:The appeal is dismissed. 

4Therefore, we find no error with the zefueal of the immigration judge to outunit the 

amended asylum application to the BHRHA of the Department of State for a second 

advisory opinion. See 8 C.F.R. 208.10(b). 

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