Interim Decision #2458 

MATTER OF FRANCOIS 

In Deportation Proceedings 

A-20200819 

Decided by Board December 15, 1975 

(1) Correspondence from the Department of State pertaining to a persecution claim 

relative to respondent's application for asylum is properly admissible in evidence in 

deportation proceedings in connection with his application for withholding of deportation under section 243 (h) of the Immigration and Nationality Act, as amended. 

(2) Since Article .33 of the United Nations Convention of 1951 Relating to the Status of 

Refugees does not require that the refugee's presence in the contracting state be 

"lawful," respoadent who has been found deportable on an entry without inspection 

charge under section 241(a)(2) of the Act, is not precluded from applying for any relief 

under the Convention because of his unlawful presence in the United States. 

(3) Respondent's section 243(h) application is denied for failure to show a well-founded 

fear that, if deported to Haiti, he would be subject to persecution on account of race, 

religion, nationality, political opinion, or membership of a particular social group, since 

he was a young boy, approximately 13 years of age, at the time of the alleged murder in 

Haiti of his father because of the father's political opinion; respondent's mother took 

respondent to the Bahamas shortly thereafter and he has had virtually no contact with 

his native country since that time; he has not been politically active; his father, a 

sergeant in the army, was not a high-ranking official; and respondent has not demonstrated any reason why the government of Haiti might be interested in him at this time. 

CHARGE: 

Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)1—Entered without inspection. 

ON BEHALF OF RESPONDENT: LaVern E. Kendra, Esquire 

1403 Ainsley Building 

. Miami, Florida 33132 

In a decision dated July 21, 1975, the immigration judge found the 

respondent deportable, denied the respondent's application for withholding of deportation under section 243(h) of the Immigration and 

Nationality Act, but granted the respondent the privilege of voluntary 

departure. The respondent has appealed from the denial of his section 

243(h) claim. The appeal will be dismissed. 

The respondent is a native and citizen of Haiti who entered the United 

States without inspection in July of 1974. Deportability is not in issue 

and the only questions presented on appeal involve the respondent's 

contention that he would be persecuted if returned to Haiti. 

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THE ADMISSIBILITY OF DEPARTMENT OF STATE 

LETTERS RELATING TO PERSECUTION CLAIMS 

The respondent was initially unrepresented at the hearing below. At 

that time he expressed his fear of being returned to Haiti, and the 

immigration judge adjourned the hearing in order to permit the respondent an opportunity to prepare and submit an application for withholding of deportation. The respondent then secured representation and 

submitted his section 243(h) claim. 

Prior to the recommencement of the hearing, the Service considered 

the respondent's section 243(h) application as a claim to asylum, apparently under 8 CFR 108. After consultation with the Office of Refugee 

and Migration Affairs of the Department of State, the Service denied 

asylum to the respondent, and the respondent was left to pursue his 

section 243(h) claim before the immigration judge. 

When the hearing was resumed, the Service sought to introduce into 

evidence both its decision denying asylum to the respondent and the 

correspondence from the Department of State. Counsel for the respondent objected to the receipt of this evidence, and the immigration judge 

sustained the objection and refused to accept this material into evidence. 

The immigration judge ruled that the denial of asylum was a decision 

which he has no authority to review, and that the receipt into evidence 

of the Service's determination could only be prejudicial to the respondent's interests. The immigration judge further indicated that he 

viewed the attempted introduction of the Service's asylum denial as a 

means to try to persuade him that a denial of the section 243(h) claim 

was warranted. 

We agree with the immigration judge that he lacks jurisdiction to 

review a denial of asylum, and that he must make his own independent 

determination on the section 243(h) application. Nevertheless, the introduction into evidence of the Service's decision denying asylum would 

have been proper for the limited purpose of showing that the Service 

had considered the respondent's claim. This would eliminate any question in connection with the application of Service policy regarding claims 

to asylum. See Tan Wo Cheng v. Rinaldi, 389 F. Supp. 583 (D. N. J., 

1975). 

However, we find no error in the immigration judge's exclusion of the 

Service's decision. By itself the Service's decision is not evidence of the 

merits of the section 243(h) claim, but merely evidence of the Service's 

evaluation of an analogous claim. 

We do not, however, endorse the immigration judge's exclusion from 

evidence of the correspondence from the Department of State. We 

recognize that the reliability of Department of State letters regarding 

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Interim Decision #2458 

claims to persecution has been questioned by the United States Court of 

Appeals for the Ninth Circuit. Khalil v. District Director, 457 F.2d 1276 

(C.A. 9, 11)72); Hossein.mardi v. INS, 405 F.2d 25, 28 (C.A. 9, 1969); 

Kasravi v. INS, 400 F.2d 675 (C.A. 9, 1968). See also Paul v. INS, 521 

F.2d 194 (C.A. 5, 1975). Nevertheless, the Department of State may 

have access to information regarding the conditions in a foreign country 

which may not be available from any other source. These letters can be 

particularly useful if they contain specific information relating directly 

to the alien whose case is being adjudicated. In addition, Department of 

State letters can contain information favorable to an alien. We, therefore, canna; approve the universal exclusion of these letters from deportation proceedings. 

In Matter of Dunar, 14 I. & N. Dec. 310 (BIA 1973), we pointed out 

that the discretionary nature of a section 248(h) determination is related 

primarily to the manner in which the adjudicating officer arrives at his 

opinion and to the limited scope of judicial review, not to whether a 

qualifying alien "deserves" the relief. See generally Muskardin v. INS, 

415 F.2d 865 (C.A. 2, 1969); Kasravi v. INS, supra; Namkung v. Boyd, 

226 F.2d 385 (C.A. 9, 1955); U.S. ex rel. Dolenz v. Shaughnessy, 206 

F.2d 392 (C.A. 2, 1953). In exercising that discretion, potentially useful 

sources of information cannot be ignored simply because their reliability 

may be less than perfect. It is the function of the immigration judge and 

this Board to evaluate the weight to be assigned all the evidence in each 

case as it arises. 

The Department of State letter excluded by the immigration judge 

may or may not have had much probative value. The immigration judge, 

however, should have admitted the letter into evidence and then assessed its value. In making that evaluation, it would also be useful to 

have the Service's letter requesting the Department of State's views, 

because in the absence of that transmittal letter it is difficult to ascertain 

the posture in which the Department of State considered the claim. 

We have determined that the immigration judge erroneously refused 

to admit the Department of State letter into evidence. This, however, 

does not require a remand of the record. Counsel for the respondent 

raised an objection to the admission of the letter into evidence. We, 

therefore, may safely assume that the immigration judge's action of 

excluding the letter has not prevented us from considering evidence 

favorable to the respondent. 

THE RELATIONSHIP. BETWEEN SECTION 243(h) 

AND ARTICLES 32 AND 33 OF THE UNITED NATIONS 

CONVENTION RELATING TO THE STATUS OF REFUGEES 

In his decision, the immigration judge held that the respondent was 

not eligible to apply for relief from deportation under the 1951 United 

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Interim Decision #2458 

Nations Convention Relating to the Status of Refugees, 1because the 

respondent was not "lawfully" within the United States. In so holding 

the immigration judge relied on Kan Kam Lin v. Rinaldi, 361 F. Supp. 

177 (D. N.J., 1973), aff'd, 493 F.2d 1229 (CA. 3, 1974), cert. denied, 419 

U.S. 874 (1974), and on Chim, Ming v. Marks, 367 F. Supp. 673 

(S.D.N.Y., 1973), aff'd 505 F.2d 1170 (C.A. 2, 1974), cert. denied, 421 

U.S. 911 (1975). The immigration judge, however, has misread the 

scope of these cases. 

Within the context of a deportation proceeding there are at least two 

articles of the Convention which arguably could have a direct bearing on 

the outcome of a case. See generally 8 CFR 242.8. Article 32 of, the 

Convention provides in part that: 

1. The Contracting States shall not expel a refugee lawfully in their territory save on 

grounds of national security or public order. (Emphasis added.) 

It has been argued that Article 32 is a blanket .prohibition against the 

expulsion of refugees, and that, in effect, it makes a refugee a permanent resident of the contracting state in which he resides. The cases 

relied upon by the immigration judge addressed the effect of Article 32, 

and indicated that the lawfulness of an alien's presence in the United 

States is to be determined in accordance with our existing immigration 

laws. 

In Matter of Dunar, supra, we discussed the history behind the 

adoption of the Convention by the United States, and we held that an 

alien who entered as a nonimmigrant and remained beyond the authorized length of his stay was not "lawfully" within the United States. 

See Kan Kam Lin v. Rinaldi, supra; Chim Ming v. Marks, swpra. In 

Dunar we also noted that many of the grounds of deportability set forth 

in section 241(a) relate to national security or public order. Thus, even if 

an alien refugee was held to be "lawfully" within the United States, he 

might not benefit from Article 32 of the Convention because of the 

"national security or public order" proviso to that Article. It therefore 

appears, with certain possible exceptions relating to deportability under 

section 241(a)(3) or (8), that the benefit of Article 82 is not available to an 

alien who has been found deportable. See generally Matter of Dunar, 

supra. 

The court eases relied upon by the immigration judge, however, did 

not directly address the question of the effect of Article 33 on an 

expulsion or deportation proceeding. Article 33 provides: 

1. 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 

The Convention became binding on the United States when it adhered to the Multilateral Protocol Relating to the Status of Refugees, done January 31, 1967. [1968] 5 U.S.T. 

6223, TIAS No. 6577 (effective November 1, 1968). 

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Interim Decision #2458 

on account of his race, religion, nationality, membership of a particular social group or 

political opinior.. 

2. The benefit of the present provision may not, however, be claimed by a refugee 

whom there are reasonable grounds for regarding as a danger to the security of the 

country ih which he is, or who, having been convicted by a final judgment of a 

particularly serious crime, constitutes a danger to the community of that country. 

As is readily apparent, Article 33 does not require that the refugee's 

presence in the contracting state be "lawful." 

In Matter of Dunar, supra, we confronted the effect of Article 33 on 

section 243(h) claims to persecution. In Dunar we concluded that 

‘`. . . Article 33 has effected no substantial changes in the application of 

section 243(h), either by way of burden of proof, coverage, or manner of 

arriving at decisions." Elsewhere in Dunar we indicated that any distinctions in terminology between section 243(h) and Article 33 could be 

resolved on a ease-by-case consideration as they arise. 

Although there are no significant differences in the coverage of section 243(h) and Article 33, the immigration judge was not correct in 

concluding that the respondent could not apply for any relief under the 

Convention because of the respondent's unlawful presence in the United 

States. Nevertheless, we agree with the result reached by the inunigration judge. 

THE RESPONDENT'S PERSECUTION CLAIM 

The respondent was born in 1947. He claims that his father was a 

member of the Haitian military prior to the time when the Duvalier 

government came into power, and that his father was a supporter of the 

government in power before Duvalier. The respondent alleges that his 

father attempted to leave the Haitian military in 1960, but that his 

father was murdered and the family home burned because of the father's 

political opinion. The respondent was then approximately 13 years of 

age. 

According to the respondent, shortly after the death of his father, his 

mother fled to the Bahamas with her children. The mother later married 

a Haitian refugee who also was murdered upon his return to Haiti in 

1968. The respondent alleges that his mother has informed him that 

other members of their family have been murdered in Haiti. He claims 

no personal knowledge of the events lie describes, but merely that he 

has been so informed by his mother. 

The immigration judge made no specific finding on credibility, and for 

the purposes of this appeal we shall assume that the respondent's 

mother did in fact communicate the alleged information to the respondent. Even further assuming that the respondent's mother accurately 

portrayed the alleged events to the respondent, we have concluded that 

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the respondent has failed to meet his burden of proof on the section 

243(h) claim. 

The respondent was a young boy at the time the alleged events took 

place, and he has had virtually no contact with his native country since 

his mother took him to the Bahamas. He has not been politically active 

(Tr. p. 28), and his father, a sergeant in the army (Tr. p. 36), was not a 

high-ranking official. The respondent has not demonstrated any reason 

why the government of Haiti might be interested in him at this time. 

We are satisfied that the respondent has failed to show a well-founded 

fear that his life or freedom will be threatened in Haiti on account of his 

race, religion, nationality, political opinion, or membership of a particular social group. We, therefore, conclude that he will not be subject to 

persecution if deported there. See Matter of Dunar, supra. 

The result reached by the immigration judge was correct. 

ORDER: The appeal is dismissed. 

Further order: Pursuant to the immigration, judge's order, the respondent is permitted to depart from the United States voluntarily 

within 19 days from the date of this order or any extension beyond that 

time as may be granted by the District Director; and in the event of 

failure so to depart, the respondent shall be deported as provided in the 

immigration judge's order. 

539