4th Circuit: Stowaway Entitled to Asylum Hearing Before IJ (Selgeka v. Carroll, et al.)

IMMIGRATION LAW & POLICY

Judicial Review of Immigration Decisions

FOURTH CIRCUIT: STOWAWAY ENTITLED TO ASYLUM HEARING BEFORE IJ (SELGEKA V. CARROLL, ET AL.)
Immigrants' Rights Update, Vol. 13, No. 4, June 30, 1999

In the case of an ethnic Albanian who fled Kosovo by stowing away on a ship, the Fourth Circuit Court of Appeals has ruled that stowaways are entitled to make asylum claims before an immigration judge.

Under regulations established by the attorney general that "place great significance" on the Immigration and Nationality Act’s distinction between the rights of stowaways and nonstowaway aliens, the appellant had been denied an exclusion or deportation hearing. Because nonstowaway aliens are entitled to such hearings, asylum claims they might make are adjudicated by an IJ. Such treatment, the court held, runs contrary to congressional intent articulated in INA section 208(a). In the court’s view, that provision obligates the attorney general to "establish a single procedure for asylum claims that apply to all applicants without distinction."

Fearing persecution and conscription into the Serbian army, the appellant, Besnik Selgeka, fled his native Kosovo Province in January 1996. Upon arrival in the United States, he applied for asylum based on the brutal oppression to which ethnic Albanians are subject under Serbian rule, specifically the Serbian Army’s practice of forcibly conscripting them and the severe punishment meted out to Albanians who evade the draft. The asylum officer who interviewed Selgeka made an adverse credibility finding and denied the application.

On appeal, despite finding Selgeka’s testimony "consistent" and "logical," the Board of Immigration Appeals affirmed the asylum officer’s denial, finding that governments have the right to require military service and to "enforce this requirement with reasonable penalties." It also found evidence that Selgeka presented regarding the especially harsh treatment ethnic Albanians receive when they evade military service insufficient to establish his asylum eligibility.

Selgeka then filed a petition for writ of habeas corpus in the U.S. District Court for the Eastern District of Virginia, claiming that he was denied due process because an asylum officer, and not an IJ, adjudicated his asylum application. The district court denied his habeas petition, ruling that he had waived his constitutional due process claim because he failed to raise it before the BIA. It also found that the BIA’s opinion was supported by substantial evidence. The lower court concluded its judgment by ruling that based on INA section 273(d), the provision that excludes stowaways from exclusion or deportation hearings, Selgeka was not entitled to a hearing before an IJ.

Before reviewing the district court’s denial of the habeas petition, the Fourth Circuit first affirmed its jurisdiction to rule on the matter. Although the INS did not contest the district court’s jurisdiction, it raised the issue on appeal, contending that INA section 252(g), as amended by section 306(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), deprives federal courts jurisdiction to hear the petitioner’s case. Relying on guidance the Supreme Court provided in Reno v. American-Arab Anti-Discrimination Committee, 119 S.Ct. 936 (1999), the Fourth Circuit held that section 252(g) does not preclude Selgeka’s claim because his plea for an asylum hearing before an IJ does not challenge the attorney general’s authority to adjudicate cases.

The appeals court then turned to a de novo review of the district court’s denial of the habeas writ, its interpretation of the Refugee Act of 1980, and its conclusion that substantial evidence supports the BIA’s opinion. The Fourth Circuit noted that while aliens have only those rights that Congress "sees fit to provide" and that aliens have no independent constitutional rights in asylum proceedings, when Congress directs an agency to establish a procedure, it can be assumed that Congress intends the procedure to be a fair one. Marcinas v. Lewis, 92 F.3d 195 (3rd Cir. 1996). Under INA section 208(a), which is contained in the Refugee Act, Congress directed the attorney general to "establish a procedure for an alien physically present in the U.S. . . . irrespective of such alien’s status, to apply for asylum." A reading of that provision guided by an examination of the literal and plain language of the statute leads, the appeals court held, to the conclusion that Congress authorized the attorney general to establish a single procedure applying equally to all asylum applicants. The Fourth Circuit concluded that because the practice of linking asylum hearings before IJs to formal exclusion or deportation hearings cuts off stowaways’ access to such hearings, the attorney general’s procedures violate section 208(a).

The appeals court noted that its interpretation of the Refugee Act is consistent with INA section 273(d) because the attorney general can establish uniform asylum procedures that are separate from the exclusion or deportation hearing. Under the Refugee Act’s mandate that uniform asylum procedures be applied to all aliens asserting the claim, the resulting hearing for stowaways can be limited strictly to determining asylum eligibility.

The Fourth Circuit next rejected the government’s argument that Selgeka waived his constitutional claim because he had failed to raise it before the BIA. Although the appeals court recognized that any claim not raised before the BIA is considered waived, it noted that failure to do so acts as a waiver only when it is done knowingly and voluntarily. The appeals court ruled that nothing in the record suggests that Selgeka made a knowing and voluntary decision to waive his claim, especially since he was represented by a nonattorney who likely was unfamiliar with the Due Process Clause or with the implications of failing to raise a claim before the BIA.

The appeals court closed its opinion by stating that the standard for reviews of BIA decisions is whether they are supported by "reasonable, substantial, and probative evidence." Because the adjudication of Selgeka’s asylum claim was limited by deficient procedures and occurred outside the confines of a formal hearing, no written transcript was produced. The absence of such a record, the court held, makes it "impossible to fairly determine whether the BIA’s decision is supported by reasonable, substantial, probative evidence." In remanding the matter and ordering that Selgeka receive an asylum hearing that will produce a reviewable record, the appeals court observed that an informal interview with an asylum officer "is hardly the forum to adjudicate human rights."

Selgeka v. Carroll, et al., __ F.3d __, 1999 U.S. App. LEXIS 11732 (4th Cir. June 7, 1999).