found excludable on the basis of a drug related offense under 8 U.S.C. § 1182(a)(2)(A)(i)(II), the criminal conviction will provide a basis for exclusion unless there is a discretionary basis for relief from exclusion. If this Court were to adopt Petitioner's interpretation of Section 235(b), any ancillary proceedings, including criminal trials, that may ultimately form a basis for exclusion must be litigated and decided by an Immigration Judge. No such legislative intent can be inferred from the statute or its background.
Based on the foregoing, the Court concludes that the Immigration and Naturalization Service complied fully with Regulation 246.1 and Regulation 235.7. These regulations do not bar the institution of a rescission proceeding during the deferred inspection period and the commencement of the proceeding in this case did not constitute reversible error under Montilla-Waldron, nor any error.
Petitioner also complains that the District Director, in rescinding his permanent resident status, failed to comply with Immigration & Naturalization Service's regulations regarding the right to assistance of counsel and the right to a rescission hearing before an Immigration Judge. Petitioner's Memorandum, at 3. Specifically, Petitioner argues that the District Director failed to comply with Regulation 246.1 and Regulation 246.3. Petitioner's Memorandum, at 3, 8; Petitioner's Reply Memorandum, at 2. Petitioner maintains that these alleged failures also constitute reversible error under Montilla-Waldron. Thus, this Court must determine whether these regulations are for the benefit of aliens and, if so, whether the Immigration & Naturalization Service complied with them.
There can be no doubt that both of these regulations are for the benefit of aliens. Regulation 246.1 provides, among other things, that an alien served with a Notice of Intention to Rescind shall "be informed that he may have the assistance of counsel or be represented by counsel or representative of his choice . . ., without expense to the Government, in preparation of his answer or in connection with his hearing. . . ." 8 C.F.R. § 246.1. Regulation 246.3 provides that "if, within the prescribed time following service of the notice [of intention to rescind] pursuant to § 246.1, the respondent has filed an answer which contests or denies any allegation in the notice, or a hearing is requested, a hearing . . . shall be conducted by a special inquiry officer . . . ." 8 C.F.R. § 246.3. The plain language of these regulations reveals that they were intended to provide aliens with notice of their right to have assistance of counsel in preparing an answer to the charges and a right to have a hearing before an Immigration Judge, if an answer complying with the requirements of Regulation 246.1 is filed or if they simply request a hearing.
Read literally, Regulation 246.1 requires only that the notice inform the alien that he may have the assistance of counsel in preparation of his answer or in connection with a hearing. Clearly, the Petitioner was given written notice on January 16, 1992 of his right to counsel.
But, he contends that when his first attorney withdrew from the case, some forty days after the notice was sent, and after the expiration of the time allowed to respond, the District Director was "then obligated to inform Petitioner again of his right to an attorney." Petitioner's Memorandum, at 3. There is no discernible basis for concluding that Regulation 246.1 required that more than one such notice to be sent. The notice that was provided complied with the letter and the spirit of Regulation 246.1.
With respect to Regulation 246.3, Petitioner argues that the District Director's decision rescinding his permanent resident status was invalid for lack of a hearing. The right to a hearing before an Immigration Judge in Regulation 246.3, however, is triggered only if an answer or a request for a hearing is filed pursuant to Regulation 246.1. If no answer is filed and no hearing is requested, the District Director must rescind the alien's status. 8 C.F.R. § 246.2. Thus, any right to a hearing to which Petitioner may have been entitled as a returning resident alien, was lost when Petitioner failed either to answer or request a hearing pursuant to Regulation 246.3, and not because of any failure by the INS to comply with its own regulations.
Petitioner attempts to avoid this result by arguing that the January 17, 1992 "letter written by the first of his two former attorneys was the functional equivalent of an answer which, under 8 CFR 246.3, mandated a hearing before an Immigration Judge and was not a default warranting rescission without a hearing." Petitioner's Reply Memorandum, at 2. This argument is inconsistent with present counsel's concession that Petitioner's first attorney failed to answer the charges in the notice of intent to rescind and with his second attorney's similar concession, Record, at 13, 121-22. In any event, the District Director rejected this argument on the ground that a request for an extension of time and a request for the production of documents
is not the functional equivalent of an answer in writing under oath setting forth the reasons why a rescission should not be made, nor is it a request for a hearing. See District Director's Decision on Reconsideration, Court File No. 93 Civ. 4683, Doc. No. 1, Ex. 7.
Petitioner, nonetheless, maintains that Regulation 246.3 was "obviously intended for those situations where an alien ignored the rescission notice or conceded the allegations against him." Reply Memo, at 3. To this Court, this point is by no means obvious, and represents a tortured interpretation of the Regulation 246.1. An alien in a rescission proceeding may not decide, unilaterally, to dispense with the regulation's requirements that the answer setting forth the reasons why the rescission should not be granted, be in writing under oath and filed within 30 days, or that a hearing be requested in writing within that time limitation.
Where, as here, no answer has been filed pursuant to 246.1, the District Director has jurisdiction to rescind an alien's status without a hearing pursuant to Regulation 246.2, and Regulation 246.3 is plainly inapplicable. Indeed, if the District Director had referred this matter to the Immigration Judge or the Board of Immigration Appeals, any decision by those bodies would have been reversed for lack of jurisdiction. In re Rodriguez-Esteban, 1989 BIA LEXIS 24 (BIA 1989) (Immigration Judge and Board of Immigration Appeals lack jurisdiction to reconsider a District Director's rescission order in deportation proceeding).
Based on the foregoing, the Court concludes that there has been no showing whatsoever that the District Director failed to comply with any of the applicable regulations in rescinding Petitioner's permanent resident status. As such, this Court concludes that the District Director's March 6, 1992 Order rescinding Petitioner's lawful resident status, and his May 28, 1992 reconsideration of the same, is valid.
This Court, having decided the "core" issue, next considers Petitioner's argument that he was deprived of due process and a fair hearing in connection with his application for political asylum and withholding of deportation to Egypt. 8 U.S.C. §§ 1158(a), 1253(h) (1970 & Supp. 1993). Petitioner complains that the Immigration Judge, in deciding whether to grant or deny Petitioner's request for asylum and withholding of deportation, failed to consider all the evidence in the record, received classified documents into the record in violation of Regulation 208.10(c), reviewed classified documents despite his representation on the record to the effect that he would not do so, and denied the Petitioner a meaningful opportunity to rebut the accusations contained in the Department of State's advisory opinion by denying Petitioner's request to serve interrogatories and a demand for documents.
An alien seeking political asylum has the burden of demonstrating that he is a refugee as defined in Section 101(a)(42)(A) of the Act, 8 U.S.C. § 1101(a)(42)(A). See Gomez v. I.N.S., 947 F.2d 660, 663 (2d Cir. 1991). A refugee is:
Any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.. . .
8 U.S.C. § 1101(a)(42)(A) (emphasis added).
Once an alien has demonstrated that he has a "well-founded fear of persecution based on one of the enumerated factors," qualifying that person for refugee status, then the Attorney General in her discretion may grant asylum. 8 U.S.C. § 1158(a); Melendez v. I.N.S., 926 F.2d 211, 214 (2d Cir. 1991) (applicant must show that a reasonable person in his situation would fear persecution). To succeed under Section 243(h) of the Act, the mandatory withholding of deportation provision, an alien must establish by a clear probability "that such alien's life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1253 (h)(1) (1970 & Supp. 1993).
If the Attorney General determines, however, that "there are reasonable grounds for regarding the alien as a danger to the security of the United States," then an otherwise meritorious application for asylum and withholding of deportation, must be denied. 8 C.F.R. § 208.14(c)(3) (asylum); 8 U.S.C. § 1253(h)(2)(D) (withholding of deportation).
In this case, the Board of Immigration Appeals affirmed the Immigration Judge's denial of Petitioner's application on the ground that the Petitioner had not met his burden of proof for either asylum or withholding of deportation. The Board also affirmed the Immigration Judge's conclusion that even if Petitioner had met his burden of proving statutory and discretionary eligibility for the relief requested, the application should be denied because "there are reasonable grounds for deeming the applicant to be a danger to the security of the United States." Record, at 113, 115-16; See also Record, at 8.
In reviewing that aspect of the Board of Immigration Appeals decision which upheld the Immigration Judge's factual findings that the Petitioner had not established statutory eligibility for asylum or withholding of deportation, this Court applies the substantial evidence test. Melendez v. I.N.S., 926 F.2d 211, 215-217 (2d Cir. 1991). The discretionary denial of asylum is reviewed for an abuse of discretion. Melendez, 926 F.2d at 217; Saleh v. I.N.S., 962 F.2d 234, 238 (2d Cir. 1992).
Petitioner asserts, without any further explanation, that the Immigration Judge and the Board of Immigration Appeals "almost totally ignored the evidence presented by the petitioner, not even bothering to mention it or evalute [sic] it. . . ." Petitioner's Memorandum, at 12. In a twenty-five page opinion, the Immigration Judge summarized and evaluated all the evidence with painstaking detail, including the testimony of plaintiff and the documentary proof offered by plaintiff. Also, the Immigration Judge found that Petitioner's testimony was not "sufficiently detailed, coherent or wholly believable." Record, at 114. The Board of Immigration Appeals agreed.
Based on this Court's review of the administrative record, this Court concludes that the Board of Immigration Appeals decision, as well as that of the Immigration Judge, on the application for asylum and withholding of deportation is supported by substantial evidence in the record. Fear of persecution, the basis for asylum, is not to be equated with an expectation or fear of prosecution. The latter is not a ground for asylum. The unclassified summary opinion of the State Department Office of Asylum Affairs, Bureau of Human Rights and Humanitarian Affairs notes that.
We think that his acquittal in Egypt [in the Anwar Sadat assassination trial] reflects the practice of the Egyptian courts whose judges we respected and enjoy a reputation for independence and their wish to hold the government to a high standard in bringing charges against individuals for security breaches and for fomenting sectarian violence.