Julio Cisternas-Estay and Doris Cisternas-Estay v. Immigration and Naturalization Service

OPINION OF THE COURT

Cisternas-Estay petitions for review of an order by the Board of Immigration Appeals dismissing an appeal of Cisternas-Estay and his wife, in which it was contended that they were entitled to suspension of deportation under section 243(h) of the Immigration and Nationality Act of 1952, (INA), 8 U.S.C. § 1253(h). Four issues of law present themselves. The first goes to the applicability of the Administrative Procedure Act of 1966, (APA), 5 U.S.C. § 500 et seq., to the review by the Board of a section 242 deportation determination. The second concerns whether the determination that the Cisternas-Estays did not carry their burden under section 243(h) was an abuse of discretion. The third goes to whether the immigration judge and the Board were in error because they did not consider an amendment to regulation 8 CFR § 242.8, “authorizing” them to take into account in section 242 deportation proceedings articles 32 and 33 of the United Nations Convention Relating to the Status of Refugees, 1967 Protocol, Jan. 31,1967 [1967] 19 U.S.T. 6223, T.I.A.S. No. 6577. The amendment occurred three months prior to the filing of the immigration judge’s opinion. Finally, there is a question whether the couple were granted de facto asylum due to the approximately two and one-half years delay in processing their request for asylum.

FACTS

Cisternas-Estay and his wife, citizens of Chile, were married within one day of their entry into the United States on a visitor for pleasure visa on March 13, 1971. Their passports indicated they were single persons.1 Cisternas-Estay was authorized to stay approximately five and one-half months; his wife for one and one-half months. In August of 1971, near the end of the stay permitted by his visa, Cisternas-Estay applied for asylum for both.2 This application was denied by the Immigration and Naturalization Service in February of 1974, approximately two and one-half years after it was filed and five months after the fall of the Allende government, which, the Cisternas-Estays argued in their request, would persecute them on their return to Chile.3

The district director of the Service in making this determination relied in part on a letter from the Office of Refugee and Migration Affairs of the Department of State dated on November 26, 1973.4 Commenting on this and three other asylum requests, that letter noted that the Allende government in Chile had been removed from power. The letter argued there was no basis for granting political asylum. The letter closed, “We hope the Service will be sympathetic to individual hardship cases such as those where an American citizen child is involved.” The Cisternas-Estays have one child, born in the United States, approximately one month after visa expired and before the request for asylum and the Service’s decision.

The basis of the Cisternas-Estays’ request for asylum was an unspecified “political problem” with the Allende government. However, a month and one-half after the Service denied the asylum request and sixteen days before the Cisternas-Estays’ deportation hearing on April 10, 1974, they and their counsel held a press conference, where Cisternas-Estay read a very brief statement attacking the denial of liberties in Chile under the regime succeeding the Allende government. It is this statement that the aliens claim will result in a loss of Chilean citizenship and leave them open to criminal action on return under a junta proclamation forbidding crimes against the “essential interests” of Chile by nationals living abroad. At the hearing Cisternas-Estay introduced secondary material in support of his general claim that the current government in Chile is repressive. There is no evidence as to any manifestation of hostility by this government toward the Cisternas-Estays.

After the hearing, but three months before the filing of the judge’s opinion, 8 CFR § 242.8 was amended by the Attorney General, giving the “special inquiry officer,” the immigration judge,5 the authority “to consider claims for relief from deportation under Articles 32 and 33 of the Convention Relating to the Status of Refugees, as amended by the Protocol Relating to the Status of Refugees. . .. .”6 No mention of the articles was made in the immigration judge’s opinion, nor in the decision of the Board dismissing appeal. The immigration judge made reference to the letter from the Department of State, which did not treat the articles. The counsel for the Cisternas-Estays did not raise this defense in argument before the Board. Administrative Record, pp. 9-16.

On February 18, 1975 the Board dismissed the appeal from the immigration judge’s denial of the request for withholding of deportation. Sitting on the Board was David Milhollan, Esq., and Irving Appleman, Esq., who at the time of argument before the Board, were attorneys in the office of the Service’s general counsel. Mr. Appleman disqualified himself.7 Mr. Milhollan helped decide the instant case. There is no showing that he had anything to do with the case when he was with the Service; his affidavit to that effect is attached to the government’s brief. Further, he indicates that he did not discuss the case with other members of the Board.

Cisternas-Estay has filed a timely petition for review with this court. We have jurisdiction under section 106 of the INA, 8 U.S.C. § 1105a.

I.

Reaching the APA issue first, we hold that Giambanco v. Immigration and Naturalization Service, 531 F.2d 141 (3d Cir.), controls. There we held that the APA did not apply to Board section 245, 8 U.S.C. § 1255, and section 212(h), 8 U.S.C. *159§ 1182(h), proceedings, involving adjustment of status and waiver of a ground of excludability. The only factor distinguishing the Giambaneo case from that of Cisternas-Estay is that Cistemas-Estays’ action is under section 243(h)8 and seeks suspension of deportation. However this distinction should not affect the application of the APA.

In Giambaneo, we relied upon Marcello v. Bonds, 349 U.S. 302, 75 S.Ct. 757, 99 L.Ed. 1107 (1955), to find that review by the Board of section 245 and 212(h) orders affecting section 242 deportation was an integral part of the section 242 specialized hearing procedures found in Marcello not to be subject to the APA.

All the provisions of the IN A relied upon by both Giambaneo and Cisternas-Estay, sections 212, 243 and 245 relate to an adjustment of a section 242 determination. The section 242 keystone was drafted with a specialized procedure different from that of the APA, as Marcello tells us. When the Board sits in review of determinations under other INA sections ultimately relating to the correctness of section 242 deportation, it functions as an integral part of these specialized procedures. The Board is the oversight mechanism used by the Attorney General in fulfilling his duty to assure that the hearing requirements of the section are met. We refrain from promulgating a rule that, where an immigration judge, or special inquiry officer, is not accountable to the APA during a section 242 proceeding, the Board is subject to the APA when it sits in review of a section 245 order adjusting the section 242 determination. We find the APA not controlling in this adjustment of status context.

II.

The second issue in this controversy is whether the Board’s weighing of the equities under section 243(h) constitutes an abuse of discretion.

On these facts we cannot say that the Attorney General has abused his discretion. The government is quite right in pointing out that the Cistemas-Estays have shown no animus of the current government of Chile toward them. The record shows only some secondary materials on repression in Chile, a very brief and vague statement by Mr. Cisternas-Estay attacking the current government, perhaps prepared post litem motam, and a vague proclamation from the current junta referring to crimes against Chile’s “essential” interests, which could lead to loss of citizenship. There is nothing in the record to undermine the Board’s position that the press conference was “staged” to acquire section 243(h) relief. In these circumstances it has not been shown that there is a “clear probability” that the Cisternas-Estays will be subject to persecution if deported to Chile. Rosa v. Immigration and Naturalization Service, 440 F.2d 100, 102 (1st Cir. 1971); Lena v. Immigration and Naturalization Service, 379 F.2d 536, 538 (7th Cir. 1967). See also, Rassano v. Immigration Service, 492 F.2d 220, 227 (7th Cir. 1974) (“reasonable foundation” alternative test); Khalil v. Immigration and Naturalization Service, 457 F.2d 1276,1277-78 (9th Cir. 1972); Biggin v. Immigration and Naturalization Serv., 479 F.2d 569, 572 (3d Cir. 1973) (The general test for review of immigration decisions is whether the Service’s determination was “arbitrary, capricious, or illegal.”).

Nor was the use by the Service of the letter from the Department of State an abuse of discretion, as contended by Cisternas-Estay’s counsel. The Cisternas-Estays argue that the letter is completely irrelevant to their fears of persecution under the present government of Chile, since the letter concerned the Allende government. However, it is perfectly reasonable for the Service to assess the validity of the asylum request under both governments, since the request has hinged at one time or other on the aliens’ opposition to both. Thus, the Service has quite properly exercised its authority under 8 C.F.R. § 242.17 by determining that the letter was relevant. Finally, we note that the Cisternas-Estays’ counsel has failed to enlighten us with any precedent supporting this contention. We reject it.

III.

The arguments by the Cisternas-Estays on the last two questions, the Protocol and de facto asylum matters, suffer from the defect that they are raised for the first time on appeal. Thus the court does not have the benefit of a final order on these matters either from the immigration judge or from the Board. This court does not sit as an administrative agency and, if counsel wishes to preserve an issue on appeal, he must raise it in the proper administrative forum. Compare Chung Young Chew v. Boyd, 309 F.2d 857, 861 (9th Cir. 1962) (under 8 U.S.C. § 1105a); Chi Sheng Liu v. Holton, 297 F.2d 740, 744 (9th Cir. 1962) with Pilapil v. Immigration and Naturalization Service, 424 F.2d 6, 9 (10th Cir. 1970), cert. denied, 400 U.S. 908, 91 S.Ct. 152, 27 L.Ed.2d 147 (1970) (constitutional issue).

As to the applicability of articles 32 and 33 of the Protocol, counsel for the Cisternas-Estays had the opportunity to raise the issue before the Board after the regulation was promulgated and failed to do so. This is a substantial defect because it deprives us of the Service’s wisdom on whether the test under section 243(h) is substantially different from that under the language of the articles. See Kan Kam Lin v. Rinaldi, 361 F.Supp. 177, 184 (D.N.J. 1973), aff’d, 493 F.2d 1229 (3d Cir. 1974) (per curiam by Judges Aldisert, Gibbons, and Rosenn), cert. denied, 419 U.S. 874, 95 S.Ct. 136, 42 L.Ed.2d 113 (1974). The amended Service regulation 8 C.F.R. § 242.8 merely authorizes the Service to consider Protocol defenses to deportation. This language places the burden on the Cisternas-Estays’ counsel to raise the Protocol defense to deportation.9 Cf. Kan Kam Lin, 361 F.Supp. at 184.

We find none of the objections to the Service’s determinations meritorious and therefore will affirm the Board’s decision.