                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-9-1996

Marincas v. Lewis
Precedential or Non-Precedential:

Docket 95-5424




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                                   UNITED STATES COURT 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 Court
                   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 (ARGUED)
                                Robert A. Perkins &
                                     Associates
                                213 Institute Place, Suite 501
                                Chicago, IL 60610-3125

                                Attorney for appellant

                                Daniel J. Gibbons (ARGUED)
                                Assistant U.S. Attorney
                                Faith S. Hochberg
                                United States Attorney
                                970 Broad Street, Room 502
                                Newark, New Jersey 07102

                                Attorneys for appelleees

                                Judy Rabinovitz (ARGUED)
                                 Lucas Guttentag
                                 Ann Parrent
                                 Immigrants' Rights Project
                                 American Civil Liberties Union
                                   Foundation
                                 132 West 43rd Street
                                 New York, New York 10036

                                 Attorneys for amici curiae

                                 Marsha Wenk
                                 American Civil Liberties 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 political 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 review of the BIA
decision by filing a petition for a writ of habeas corpus and a
complaint for injunctive and declaratory relief. The 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 and questioned
the legitimacy of the new Romanian government installed after the
overthrow of the Communist-totalitarian government of Nicolae
Ceausescu. Mr. Marincas asserts that he was arrested, severely
beaten, and threatened by Romanian authorities after he
criticized the new government, which is apparently comprised
almost entirely of former members of the old Communist regime.
He claims that he fled Romania when he realized that he could not
be safe in his homeland.
              Mr. Marincas eventually arrived in the United
States as a stowaway with a group of Romanian nationals on April
14, 1994, aboard a ship called the M/V Innovation. Mr. Marincas
requested asylum immediately upon his arrival in the United
States, claiming he fled Romania because of political
persecution. He was detained as an excludable alien 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 application for
political asylum on April 17, 1994. At that time he was not
informed of his right to be represented by counsel in his asylum
interview or of the availability of free legal services. An INS
official interviewed Petitioner, and his asylum claim 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 was 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 officer who had
previously denied his claim. Petitioner was represented by
counsel at the second interview, but his counsel was only allowed
several minutes to question Petitioner and to advocate 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 allegedly documented
the persecution he suffered in Romania. His application was
again denied.
              On April 7, 1995, Petitioner filed another appeal
with the BIA and requested time in which to file a brief. On May
4, 1995, the BIA denied the appeal without having accepted
Petitioner's brief. The BIA entered a final order of deportation
for Mr. Marincas. Petitioner then initiated this action. The
district court reviewed the deportation order pursuant to 8
U.S.C. § 1105a(a)(10), which permits habeas review of deportation
orders. Petitioner asserted that he was denied meaningful
administrative review of his application because his application
was considered by an INS official instead of a neutral
immigration judge and that the BIA improperly affirmed the denial
of his asylum without giving him an opportunity to submit a
brief. The district court denied Mr. Marincas' petition for a
writ of habeas corpus. Deferring to the BIA's interpretation of
the applicable immigration statutes, the district court found Mr.
Marincas was provided all of the process due him on his claim for
asylum. The court also found that reasonable evidence supported
the INS's denial of Mr. Marincas' asylum application.
              We have appellate jurisdiction to review a final
order of deportation. 28 U.S.C. § 1291. Petitioner is currently
in INS custody at York County Prison in York, Pennsylvania. 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 pendency of this
appeal.

II.  United States Treaty Obligations
         The United States is a signatory to the United Nations
Protocol Relating to the Status of Refugees (U.N. Protocol),
which incorporated the 1951 Convention Relating to the Status of
Refugees. The U.N. Protocol provides:
                    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
                    on account of his race, religion,
                    nationality, membership in a particular
                    social group or political opinion.

United Nations Protocol Relating to the Status of Refugees, 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, nationality,
membership in a particular social group or political opinion, is
outside the country of his nationality and is unable or, owing to
such fear, is unwilling to avail himself of the protection of
that country." Id. art. 1.
              The purpose of the Refugee Act of 1980, which
amended the Immigration and Nationality Act, was "to provide a
permanent and systematic procedure for the admission 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 Refugees, Jan.
31, 1967, 19 U.S.T. 6223, T.I.A.S. No. 6577. See INS 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 governing the
admission of refugees into the United States. Pub. L. No. 96-
212, tit. I, § 101, 94 Stat. 102 (1980). In this respect, the
Supreme Court explained:
                        Deportation is always a harsh 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 persecution if forced
                    to return to his or her home country. In
                    enacting the Refugee Act of 1980 Congress
                    sought to "give the United States sufficient
                    flexibility to respond to situations
                    involving political or religious dissidents
                    and detainees throughout the world."

INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987) (citation
omitted). Thus, the Refugee Act was enacted to fulfill our
treaty obligations under the U.N. Protocol for the benefit of
aliens, such as Mr. Marincas in this case, who claim 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 Act and the
Refugee Act of 1980, concluded that the stowaways are not
entitled to immigration court hearings on their asylum claims.
We reverse the district court because the BIA's construction of
the applicable immigration statutes are contrary to clear and
unambiguous congressional intent.

A.       The Immigration and Nationality Act and the Refugee Act
         of 1980

              Aliens who arrive in the United States but are
refused entry by an immigration officer are generally entitled to
an exclusion hearing under the Immigration and Nationality 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 hearing, an
immigration judge decides whether or not the alien should be
admitted. 8 U.S.C. § 1226(a). If the alien asserts an asylum
claim, he is entitled to an asylum hearing before an immigration
judge. 8 C.F.R. § 236.3(c).
              Stowaways, however, have a distinct status. Under
the INA they are excludable aliens who are not entitled 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 exclusion
hearing. 8 U.S.C. § 1323(d). Section 1323(d) states, "The
[exclusion hearing] provisions . . . shall not apply to aliens
who arrive as stowaways and no such alien shall be permitted to
land in the United States, except temporarily for medical
treatment, or pursuant to such regulations as the Attorney
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 pursuant to
regulations prescribed for the ultimate departure, removal or
deportation of the alien.
              The Refugee Act mandated for the first time that
uniform procedures be established by the Attorney General for
granting asylum to aliens arriving in the United States. The
Refugee Act amended the INA by providing:
                        The Attorney General shall establish a
                    procedure for an alien physically present in
                    the United States or at a land border or port
                    of entry, irrespective of such alien's
                    status, to apply for asylum, and the alien
                    may be granted asylum in the discretion of
                    the Attorney General if the Attorney General
                    determines that such alien is a refugee
                    within the meaning of section 1101(a)(42)(A)
                    of this title.
          8 U.S.C. § 1158(a). We are asked to review whether the Attorney
General correctly interpreted the INA and the Refugee Act in
promulgating the current asylum procedures.

B.       INS's Regulations and Asylum Procedures
              The INS regulations initially promulgated by the
Attorney General pursuant to the Refugee Act made no explicit
distinction between stowaways and other asylum applicants. See Yui Sing
Chun v. Sava, 708 F.2d 869, 874 (2d Cir. 1983).
Instead, the INS applied the regulations differently to
stowaways. See id. The INS proposed regulations in 1987 that
would have provided a nonadversarial procedure as the sole method
of adjudicating the asylum claims of all applicants. 52 Fed.
Reg. 32552-61 (1987). The INS withdrew the proposed regulations
after receiving widespread criticism that such a process was
inherently inadequate as the sole adjudication of an asylum
claim. Instead, the INS issued new regulations in 1988 which
provided asylum applicants an adversarial adjudication of their
asylum claims through an immigration court hearing. 53 Fed. Reg.
11300 (1988). The nonadversarial adjudication by INS officials,
however, was explicitly retained in the regulations for stowaway
asylum applicants. 53 Fed. Reg. 11310 (1988).
              Under current INS procedures, an application for
asylum is initially handled by an asylum officer. 8 C.F.R.
§ 208.9(a). An immigration judge acquires jurisdiction 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 having their
asylum claims adjudicated in an adversarial hearing before an
immigration judge who is independent of the INS. The immigration
judge is required to advise the applicant that he has 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 witnesses on his
own behalf, 8 C.F.R. §§ 236.2(a), 236.3(c)(3); to examine 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 counsel
present, but the regulations do not require the asylum officer to
advise the applicant of his right to counsel or of the
availability of free legal services. 8 C.F.R. § 208.9(b). The
stowaway applicant may present witnesses and may submit
affidavits of witnesses and other evidence. 8 C.F.R. § 208.9(b).
The regulations do not require that the interview be recorded,
and they require the applicant to provide his own interpreter. 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 conducted 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 Congress intended
stowaways to be afforded the same asylum procedures as other
aliens.
C.       Congressional Intent
              The district court deferred to the BIA'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-step approach to
judicial review of agency interpretations of acts of Congress.
First, the reviewing court must determine whether there is a
clear and unambiguous congressional intent concerning the precise
question in issue. If congressional intent is clear and
unambiguous, then that intent is the law and must be given
effect. A reviewing court proceeds to the second step "if the
statute is silent or ambiguous with respect to the specific
issue." Id. at 843. Then, "the question for the court is
whether the agency's answer is based on a permissible
construction of the statute." Id.    The Court noted:
                       The judiciary is the final authority on
                  issues of statutory construction and must
                  reject administrative constructions which are
                  contrary to clear congressional
                  intent . . . . If a court, employing
                  traditional tools of statutory construction,
                  ascertains that Congress had an intention on
                  the precise question at issue, that intention
                  is the law and must be given effect.
         Chevron, 467 U.S. at 843 n.9 (citations omitted). In this case,
we do not reach the second step of Chevron because Congress
expressed a clear and unambiguous intent with regard to the
precise question at issue.
              In construing the meaning of the Refugee Act of
1980, the Supreme Court has examined the plain meaning of the
Act, its symmetry with the United Nations Protocol, and its
legislative history. See INS v. Cardoza-Fonseca, 480 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 construed? At issue
in Cardoza-Fonseca was whether eligibility for asylum should be
based on the "persecution or well-founded fear of persecution"
standard in the Refugee Act of 1980, or on the more stringent
"life or freedom would be threatened" standard originally
provided in the INA. Under the Chevron framework, the Court used
traditional tools of statutory construction and examined
legislative history and the United Nations protocol in
determining that Congress had expressed a clear intent 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 the Refugee Act
is clear and unambiguous. The Act provides, "The Attorney
General shall establish a procedure for an alien physically
present in the United States or at a land border or port of
entry, irrespective of such alien's status, to apply for
asylum . . . ." 8 U.S.C. § 1158(a) (emphasis added). The
government argues that the Attorney General fulfilled this
mandate by establishing one asylum procedure for stowaways and
another asylum procedure for other aliens. The plain language of
the Refugee Act leaves no room for a construction permitting
differing asylum procedures for aliens based on their status:
Congress plainly stated that the "Attorney General shall
establish a procedure." 8 U.S.C. § 1158(a) (emphasis added); see
also Yiu Sing Chun v. Sava, 708 F.2d 869, 872 (2d Cir. 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. No. 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 procedure for
asylum applicants, Congress plainly stated in the Refugee Act
that a uniform asylum hearing shall apply "irrespective of such
alien's status." Section 1182(a)(6)(D) classifies stowaways as
"excludable aliens," and § 1323(d) exempts stowaways from
exclusion hearings. Section 1158(a), however, mandates that the
asylum procedure established by the Attorney General be applied
irrespective of an alien's status, which clearly would 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 procedure that is
to be applied irrespective of an alien's status as a stowaway.
              Our construction of the Refugee Act is consistent
with § 1323(d) because the Attorney General can establish a
uniform asylum procedure separate from the exclusion hearing.
The Refugee Act mandates a uniform asylum procedure for all
asylum applicants; for stowaways, the resulting hearing can be
limited solely to the issue of asylum eligibility. This
preserves the basic thrust of § 1323(d), which commands that
stowaways are not entitled to an exclusion hearing. Yiu Sing
Chun, 708 F.2d at 876.

D.       The Second Circuit's Pre-Chevron Construction 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 intent 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 provision
                    detailing the treatment afforded alien
                    stowaways. This provision must be read in
                    light of § 1182 which defines "general
                    classes" of "[e]xcludable aliens." Although
                    § 1182(a)(18) lists "[a]liens who are
                    stowaways" as an excludable class, § 1182(a)
                    contains a proviso stating that its
                    definitions are applicable "[e]xcept as
                    otherwise provided in this chapter." The
                    Refugee Act limits the effect of § 1323(d) by
                    "otherwise provid[ing]" that aliens applying
                    for asylum may do so "irrespective of . . .
                    status." 8 U.S.C. § 1158(a). Whatever
                    procedural limitations § 1323(d) might impose
                    in the absence of § 1158, we hold 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 ascertaining
"congressional intent that the ‘Attorney General . . . establish
a uniform procedure for passing upon an asylum application' under
the Refugee Act," the Second Circuit employed traditional tools
of statutory construction, examined internal INS procedures,
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 within the
Chevron framework, Yui Sing Chun supports our conclusion that
Congress clearly and unambiguously intended that the asylum
procedures established by the Attorney General be applied
irrespective of an alien's status as a stowaway.

E.       BIA's Inconsistent Interpretations
              The Second Circuit rejected the manner in which
the INS applied its regulations to stowaways and held that
stowaways were entitled to "whatever other procedural rights
other asylum applicants are afforded." Yui Sing Chun v. Sava,
708 F.2d 869, 876 (2d Cir. 1983). The BIA declined to follow Yui
Sing Chun outside the Second Circuit. See Matter of Waldei, 19 I
& N Dec. 189 (BIA 1984). In Waldei, the BIA concluded that
"[t]he alien stowaway is not deprived of the opportunity to have
his asylum claim considered, but in view of his status under the
[INA] that opportunity is limited." Id. at 193. Thus, 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 recorded.
              The BIA has subsequently acknowledged on several
occasions that the stowaway asylum procedure does not produce an
adequate record for review and has vacated INS asylum decisions
due to the inadequate record. In this case the BIA stated, "This
Board was not provided with a transcript of statements made by
the applicant in his interviews with the asylum officer or with a
meaningful summary of those statements, and, consequently, 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 credibility and
therefore fairly adjudicating the applicant's persecution claim."
In re S-S-, Applicant, Interim Dec. (BIA) 3257 (BIA Nov. 8,
1995). The BIA in S-S-, Applicant had to remand the case to the
INS so a suitable record could be produced. Id. In another
case, the BIA stated in relevant part:
                        We are unable to enter a decision in
                    this case on the basis of the record before
                    us. In a notice of intent to deny dated
                    January 27, 1993, the commissioner relied
                    upon statements allegedly made by the
                    applicant in his interview with the asylum
                    officer. However, no transcript or summary
                    of the applicant's assertions is contained in
                    the record. Rather, the facts set forth in
                    the notice of intent to deny constitute the
                    only record of the applicant's interview with
                    the asylum officer that is contained in the
                    record file. The applicant disputes the
                    facts reflected in the notice.

                             In order to fully and fairly review a
                    decision entered in a case, this Board must
                    have before it the primary evidentiary
                    matters relied upon by the initial
                    adjudicator, in this case, either a
                    transcript of the statements made by the
                    applicant in support of his persecution claim
                    or a meaningful, clear, and complete summary
                    of those statements prepared by the
                    interviewing asylum officer. . . . The Board
                    needs to know the questions asked an
                    applicant, as well as his responses, before
                    we can evaluate whether a notice of intent to
                    deny accurately and thoroughly reflects what
                    transpired in the proceedings before the
                    asylum officer and whether the applicant's
                    persecution claim was adequately developed in
                    those proceedings. This is especially true
                    where, as here, the applicant contends that
                    the notice of intent to deny does 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 that the BIA
has held the asylum procedure provided stowaways is inadequate
further supports our conclusion that the BIA is misconstruing the
Refugee Act.
              In INS v. Cardoza-Fonseca, 480 U.S. 421 (1987),
the Court stated:
                    An additional reason for rejecting the INS's
                    request for heightened deference to its
                    position is the inconsistency of the
                    positions the BIA has taken through the
                    years. An agency interpretation of a
                    relevant provision which conflicts 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 inconsistency in the
BIA's interpretation of the Refugee Act. In Waldei the BIA held
that stowaways were only entitled to a nonadversarial interview
procedure conducted by an INS asylum officer, and it implicitly
approved an INS procedure that does not require the interview to
be recorded. In cases after Waldei the BIA has held 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 asylum 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 are
misconstruing the Refugee Act because we doubt Congress intended
the Attorney General to establish an asylum procedure for
stowaways that fails to provide basic due process. "[A]n alien
seeking initial admission to the United States requests a
privilege and has no constitutional rights regarding his
application, for the power to admit or exclude aliens is a
sovereign prerogative." Landon v. Plasencia, 459 U.S. 21, 32
(1982). Aliens only have those statutory rights granted by
Congress. When Congress directs an agency to establish a
procedure, however, it can be assumed that Congress intends that
procedure to be a fair one. See Califano v. Yamasaki, 442 U.S.
682, 693 (1979) (assuming "a congressional solicitude for fair
procedure, absent explicit statutory language to the 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 rights). In this
case Congress instructed the Attorney General to establish an
asylum procedure, and United States' treaty obligations and
fairness mandate that the asylum procedure promulgated by the
Attorney General provide the most basic of due process.
              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. 460, 472 (1983);
Meachum v. Fano, 427 U.S. 215, 227 (1976). The basic procedural
rights Congress intended to provide asylum applicants under the
Refugee Act are particularly important because an applicant
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 asylum applicants.
The current asylum procedure for stowaways, however, fails to
provide two of the most basic of due process protections--a
neutral judge and a complete record of the proceeding. These
inadequacies of the asylum procedures afforded stowaways are
particularly troubling because they insulate the INS's denial of
asylum from effective administrative and judicial review.
Although asylum applicants do not have constitutional 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 irrespective of
alien status. The existing INS asylum procedure for stowaways is
inherently unfair, and, therefore, the procedure is contrary to
the clear intent of Congress.
              Stowaway asylum applicants must be afforded the
same asylum procedures deemed necessary for other aliens. In
addition to a hearing before a neutral immigration judge and a
transcribed record of the proceeding, the INS regulations provide
non-stowaway asylum applicants the following procedural rights:
to be advised of their right to counsel and of the availability
of free legal services; to a public hearing; to examine 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 regulations do not
clearly delineate between the procedures provided aliens in
exclusion hearings and asylum hearings. The above procedures,
however, are provided by INS regulations to non-stowaway 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 or 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 Tejeda-Mata v.
INS, 626 F.2d 721, 726 (9th Cir. 1980), cert. denied, 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 Determining
Refugee Status (Geneva, 1979), appropriately characterizes access
to "the services of a competent interpreter" as a fundamental
requirement. The United Nations Handbook "provides significant
guidance in construing the [1967] Protocol, to which Congress
sought to conform." INS v. Cardoza-Fonseca, 480 U.S. 421, 439
n.22 (1987). Thus, in addition to requiring the INS to apply
to stowaways those procedures which are provided all asylum
applicants, we also hold that at a minimum those procedures must
also include the services of a translator. Otherwise, an asylum
applicant's procedural rights would be meaningless in cases where
the judge and asylum applicant cannot understand each other
during the hearing.
              We conclude that the Refugee Act of 1980 clearly
and unambiguously requires that the Attorney General promulgate
and apply to stowaways seeking asylum the same fair procedure as
other asylum applicants and that those procedures must include
the services of a translator.

IV.      Whether Reasonable Evidence Supported the Asylum
         Application

              Petitioner contends the district court erred in
finding that reasonable evidence supported the INS's denial of
Mr. Marincas' asylum application. We cannot address this issue
because the record is inadequate. The district court's findings
on this issue are necessarily vacated by our conclusion that
Petitioner's asylum hearing was procedurally deficient. On
remand Mr. Marincas should receive an asylum hearing which will
produce a reviewable record.
              The judgment of the district court will be
reversed and remanded for further proceedings in accord with this
opinion.


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