[196]*196SIMPSON, Circuit Judge:
Petitioners, nine Haitian nationals,1 seek vacation and remand of an order of deportation entered by the Immigration and Naturalization Service (INS) pursuant to Title 8, U.S.C., Sec. 1251(a)(2) for entry without inspection, and of the denial of the discretionary withholding of deportation authorized by Title 8, U.S.C., Sec. 1253(h), so that they may adduce additional evidence before the INS. They ask also for an order permitting them to propound interrogatories to the United States Department of State. Finding that the petitioners are not entitled to the requested relief, we deny the petition.
Petitioners entered the United States by boat on October 17, 1973, landing near Boca Raton on the east coast of Florida. They failed to present themselves to INS officials for inspection. They concede, as they must, their de-portability on these admitted facts, but challenge the discretionary denial of their applications for political asylum, relief which is available under Sec. 1253(h) when, in the opinion of the Attorney General, deportation to a particular country would subject the alien to “persecution on account of . . political opinion,”2
The District Director considered their claims that they would be subject to political persecution if returned to Haiti and, on the basis of statements they made to INS investigators shortly after their apprehension, and after consultation with the State Department,3 denied relief.
A hearing was then held before an Immigration Judge. Petitioners were represented by counsel, who stipulated to the admissibility but not the weight of the statements they made to INS investigators shortly after their apprehension. Counsel, however, did not seek additional information by further questions, did not clarify that already given in support of their initial statements, and introduced no additional evidence on their behalf. Neither did he object to the introduction of the State Department recommendation or of letters notifying petitioners of the denial of their applications. The Immigration Judge held that petitioners failed to meet their burden of proving “beyond a troubling doubt’ that they had a valid fear of persecution if returned to Haiti.
On appeal, the Board of Immigration Appeals, while recognizing that the Immigration Judge had demanded that petitioners meet an impermissibly strenuous burden of proof, nonetheless determined that petitioners had failed to prove their case by a preponderance of the evidence and dismissed their appeal.4
In order to qualify for discretionary withholding of deportation, the applicants must prove their departure from Haiti was politically motivated and [197]*197that on return they face persecution for reasons political in nature. Matter of Janus and Janek, Int. Dec. No. 1900, decided July 25, 1968; see Gena v. INS, 5 Cir. 1970, 424 F.2d 227, 232; Kovac v. INS, 9 Cir. 1969, 407 F.2d 102, 104-105, 107. We review the conclusion below that petitioners did not meet their burden of proof under a restricted standard:
“Judicial review of discretionary administrative action is limited to the questions of whether the applicant has been accorded procedural due process and whether the decision has been reached in accordance with the applicable rules of law. Furthermore, the inquiry goes to the question whether or not there has been an exercise of administrative discretion and, if so, whether or not the manner of exercise has been arbitrary or capricious.”
Jarecha v. INS, 5 Cir. 1969, 417 F.2d 220, 224, quoting Kam Ng v. Pilliod, 7 Cir. 1960, 279 F.2d 207, 210, cert. denied, 1961, 365 U.S. 860, 81 S.Ct. 828, 5 L.Ed.2d 823. On the basis of proofs presented, we agree that petitioners failed to make their case. The denial of discretionary relief was not arbitrary or capricious.5
Petitioners, however, request a second hearing on other grounds. They allege that they were denied their right to a fair hearing, and also claim entitlement under Title 28, Sec. 2347(c).6 We find these claims to be without merit.
Petitioners present four basic grounds in support of their claim that they were denied a reasonable opportunity to develop their case: (1) the alleged ineffective assistance of privately retained counsel;7 (2) the failure of the Immigration Judge to elicit information from them on failure of counsel to do so; (3) the failure of the INS to take administrative notice of conditions in Haiti, which would automatically entitle petitioners to the requested relief; and (4) inability to propound interrogatories to the State Department in order to discover the basis of the recommended denial of their applications, thereby rendering it impossible for them to challenge effectively its weight or admissibility.
Deportation hearings are deemed to be civil, not criminal, proceedings. Jolley v. INS, 5 Cir. 1971, 441 F.2d 1245, cert. denied, 404 U.S. 946, 92 S.Ct. 302, 30 L.Ed.2d 262; Barthold v. INS, 5 Cir. 1975, 517 F.2d 689 and cases therein cited. Petitioners, therefore, do not contend, nor could they, that the sixth amendment right to counsel applies. “It is clear that any right an alien may have in this regard is grounded in the fifth amendment guarantee of due process rather than the sixth amendment right to counsel.” Id. at 690. Yet, “[t]he existence, let alone the nature and scope, of such a right has not been established.” Id. at 690.
But deportation proceedings, however labelled, entail drastic consequences for an alien, especially one who seeks to invoke the protections afforded by Sec. 1253(h).
Aliens have a statutory right to the presence of counsel, but not at [198]*198government expense. Title 8, U.S.C., Sec. 1362. Petitioners received the benefit of this statutory provision. In this court, they do not assert an independent “right to counsel,” to be judged in accordance with standards set out in MacKenna v. Ellis,8 5 Cir. 1960, 280 F.2d 592, 599, cert. denied, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78. They argue only that the representation afforded them was so deficient as to impinge upon the fundamental fairness of the hearing, in violation of the fifth amendment due process clause. Accordingly, we follow Barthold in analyzing the proceedings in terms of their fundamental fairness.
In support of this contention, petitioners point out that counsel stipulated to the admissibility of their statements to INS investigators made in counsel’s absence.
Free access — add to your briefcase to read the full text and ask questions with AI
[196]*196SIMPSON, Circuit Judge:
Petitioners, nine Haitian nationals,1 seek vacation and remand of an order of deportation entered by the Immigration and Naturalization Service (INS) pursuant to Title 8, U.S.C., Sec. 1251(a)(2) for entry without inspection, and of the denial of the discretionary withholding of deportation authorized by Title 8, U.S.C., Sec. 1253(h), so that they may adduce additional evidence before the INS. They ask also for an order permitting them to propound interrogatories to the United States Department of State. Finding that the petitioners are not entitled to the requested relief, we deny the petition.
Petitioners entered the United States by boat on October 17, 1973, landing near Boca Raton on the east coast of Florida. They failed to present themselves to INS officials for inspection. They concede, as they must, their de-portability on these admitted facts, but challenge the discretionary denial of their applications for political asylum, relief which is available under Sec. 1253(h) when, in the opinion of the Attorney General, deportation to a particular country would subject the alien to “persecution on account of . . political opinion,”2
The District Director considered their claims that they would be subject to political persecution if returned to Haiti and, on the basis of statements they made to INS investigators shortly after their apprehension, and after consultation with the State Department,3 denied relief.
A hearing was then held before an Immigration Judge. Petitioners were represented by counsel, who stipulated to the admissibility but not the weight of the statements they made to INS investigators shortly after their apprehension. Counsel, however, did not seek additional information by further questions, did not clarify that already given in support of their initial statements, and introduced no additional evidence on their behalf. Neither did he object to the introduction of the State Department recommendation or of letters notifying petitioners of the denial of their applications. The Immigration Judge held that petitioners failed to meet their burden of proving “beyond a troubling doubt’ that they had a valid fear of persecution if returned to Haiti.
On appeal, the Board of Immigration Appeals, while recognizing that the Immigration Judge had demanded that petitioners meet an impermissibly strenuous burden of proof, nonetheless determined that petitioners had failed to prove their case by a preponderance of the evidence and dismissed their appeal.4
In order to qualify for discretionary withholding of deportation, the applicants must prove their departure from Haiti was politically motivated and [197]*197that on return they face persecution for reasons political in nature. Matter of Janus and Janek, Int. Dec. No. 1900, decided July 25, 1968; see Gena v. INS, 5 Cir. 1970, 424 F.2d 227, 232; Kovac v. INS, 9 Cir. 1969, 407 F.2d 102, 104-105, 107. We review the conclusion below that petitioners did not meet their burden of proof under a restricted standard:
“Judicial review of discretionary administrative action is limited to the questions of whether the applicant has been accorded procedural due process and whether the decision has been reached in accordance with the applicable rules of law. Furthermore, the inquiry goes to the question whether or not there has been an exercise of administrative discretion and, if so, whether or not the manner of exercise has been arbitrary or capricious.”
Jarecha v. INS, 5 Cir. 1969, 417 F.2d 220, 224, quoting Kam Ng v. Pilliod, 7 Cir. 1960, 279 F.2d 207, 210, cert. denied, 1961, 365 U.S. 860, 81 S.Ct. 828, 5 L.Ed.2d 823. On the basis of proofs presented, we agree that petitioners failed to make their case. The denial of discretionary relief was not arbitrary or capricious.5
Petitioners, however, request a second hearing on other grounds. They allege that they were denied their right to a fair hearing, and also claim entitlement under Title 28, Sec. 2347(c).6 We find these claims to be without merit.
Petitioners present four basic grounds in support of their claim that they were denied a reasonable opportunity to develop their case: (1) the alleged ineffective assistance of privately retained counsel;7 (2) the failure of the Immigration Judge to elicit information from them on failure of counsel to do so; (3) the failure of the INS to take administrative notice of conditions in Haiti, which would automatically entitle petitioners to the requested relief; and (4) inability to propound interrogatories to the State Department in order to discover the basis of the recommended denial of their applications, thereby rendering it impossible for them to challenge effectively its weight or admissibility.
Deportation hearings are deemed to be civil, not criminal, proceedings. Jolley v. INS, 5 Cir. 1971, 441 F.2d 1245, cert. denied, 404 U.S. 946, 92 S.Ct. 302, 30 L.Ed.2d 262; Barthold v. INS, 5 Cir. 1975, 517 F.2d 689 and cases therein cited. Petitioners, therefore, do not contend, nor could they, that the sixth amendment right to counsel applies. “It is clear that any right an alien may have in this regard is grounded in the fifth amendment guarantee of due process rather than the sixth amendment right to counsel.” Id. at 690. Yet, “[t]he existence, let alone the nature and scope, of such a right has not been established.” Id. at 690.
But deportation proceedings, however labelled, entail drastic consequences for an alien, especially one who seeks to invoke the protections afforded by Sec. 1253(h).
Aliens have a statutory right to the presence of counsel, but not at [198]*198government expense. Title 8, U.S.C., Sec. 1362. Petitioners received the benefit of this statutory provision. In this court, they do not assert an independent “right to counsel,” to be judged in accordance with standards set out in MacKenna v. Ellis,8 5 Cir. 1960, 280 F.2d 592, 599, cert. denied, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78. They argue only that the representation afforded them was so deficient as to impinge upon the fundamental fairness of the hearing, in violation of the fifth amendment due process clause. Accordingly, we follow Barthold in analyzing the proceedings in terms of their fundamental fairness.
In support of this contention, petitioners point out that counsel stipulated to the admissibility of their statements to INS investigators made in counsel’s absence. But these statements would have been admissible without stipulation, unless their admission made the proceedings unfair.9 Since no question is raised as to their voluntariness or their accuracy, it did not.
Letter notifications of the denial of asylum were admitted without objection. Petitioners do not suggest, however, that these letters were inadmissible. Counsel can not be found ineffective for failure to raise meritless objections. See Burston v. Caldwell, 5 Cir. 1975, 506 F.2d 24.
Petitioners also criticize counsel’s failure to object to the introduction into evidence of the State Department’s recommendation. The Immigration Judge removed any basis to find counsel ineffective in this regard when he stated, prior to any proffer by the government attorney:
There is one thing I will insist on at this time and I do want offered into evidence and I will ask for it on my own motion, the letter or a cable or whatever notification was sent by the Department of State on the initial request made for asylum, (emphasis added)
Further, petitioner’s attorney did challenge admissibility of the recommendation on appeal to the Board of Immigration Appeals, and the Board, while noting that counsel had failed to object before the Immigration Judge, nevertheless considered the challenge to the propriety of its receipt into evidence on the merits. Whatever error counsel made initially, therefore, which would undermine the “fundamental fairness” of the hearing was cured by his subsequent appeal and the Board’s ruling on the merits of this claim.10
The basic thrust of petitioners’ challenge to their attorney’s conduct, as we understand it, is that counsel, by not questioning them and instead relying solely upon their prior self-serving and summary allegations of (a) their opposition to the Haitian government, (b) their participation in altercations with the Haitian authorities, and (c) punishment of their family members, failed to develop fully the basis of their fears of persecution for political reasons if returned to Haiti. Their new attorney argues in his brief to this court that, had counsel questioned them,
No doubt, further testimony from him [Joseph Paul] and the remaining petitioners would bring forth material evidence of politically motivated escapes, and their real fear of death or imprisonment. (emphasis added)
[199]*199This “material evidence” is not detailed to any extent, nor is its content even hinted at.
A claim of the denial of due process because of ineffective assistance of counsel must allege sufficient facts to allow this court to infer that competent counsel would have acted otherwise. Petitioners’ claims are totally deficient in this regard. Their generalized allegations are insufficient to support an inference that they possess material information not previously disclosed because of counsel’s incompetence, and thus afford no basis for concluding that prior counsel’s failure to inquire further fatally infected the fairness of the hearing. Put more simply, we are unable to conclude that counsel’s failure to inquire resulted from incompetence and not, as the government suggests, because petitioners possess no further evidence which would benefit them. We do not find that counsel’s inaction deprived petitioners of a fair hearing with a reasonable opportunity to develop their proof.
Petitioners’ second ground for challenging the adequacy of the hearing was the failure of the Immigration Judge to question them when counsel failed to do so. They cite Kovac, supra, 407 F.2d 102, as requiring that the Immigration Judge is under an affirmative burden to elicit information from aliens in order to insure a full and fair inquiry. This is an overbroad reading of Kovac. The petitioner in that case did not understand English, was questioned by the government attorney through an interpreter, and was not represented by counsel. The ostensible purpose of the hearing was to determine whether to grant a continuance to allow time to file a formal application for asylum, but it was inexplicably converted into a hearing on the merits. In these circumstances, Kovac’s later assertions that he did not fully understand the nature of the proceedings or the meaning of questions asked, supported on the record by his enigmatic answers to questions, fully justified a remand to give him a reasonable opportunity to present his proofs-proofs which, we might add, were laid out before the Court of Appeals in considerable detail. Kovac is thus distinguishable in this respect from our case. Finally these petitioners do not point out how they would conceivably have benefited from questioning by the Immigration Judge.
Petitioners also point to the failure of the Immigration Judge to take administrative notice of conditions in Haiti as prejudicial to their rights. But this did not deprive them of a fair hearing or constitute an abuse of discretion. Many Haitians seek refuge in this country, not for political reasons, but for economic ones. See Jervis Anderson, “A REPORTER AT LARGE, THE HAITIANS OF NEW YORK,” The New Yorker magazine, March 31, 1975, p. 50 et seq. We do not minimize the claims of those who in fact flee Haiti for political reasons and legitimately fear persecution on return. Nevertheless claims are easily made. To require the INS to take administrative notice of conditions in Haiti as petitioners define them would confer “blanket asylum status” upon those who are not in fact political refugees. See Id. at 60.
Petitioners challenge finally the fairness of the hearing because they had no opportunity to determine the basis of the State Department recommendation, either through interrogatories directed to or cross-examination of the author, and that its introduction into evidence without foundation was therefore arbitrary and capricious. Asghari v. INS, 9 Cir. 1968, 396 F.2d 391, was the case of an alien who contended that he was denied a fair hearing on his application for relief under Sec. 1253(h). The court held that advice received from the State Department was admissible, as coming from a “knowledgeable and competent source.” Id. at 392. In Kasravi v. INS, 9 Cir. 1968, 400 F.2d 675, 677, however, the court questioned the competency of these State Department letters:
Such letters from the State Department do not carry the guarantees of reliability which the law demands of [200]*200admissible evidence. A frank, but official, discussion of the political shortcomings of a friendly nation is not always compatible with the high duty to maintain advantageous diplomatic relations with nations throughout the world. The traditional foundation required of expert testimony is lacking; nor can official position be said to supply an acceptable substitute. No hearing officer or court has the means to know the diplomatic necessities of the moment, in the light of which the statements must be weighed.
Id. at 677, n. 1. Nevertheless, because of the limited scope of review of discretionary denials of deportation and because of its belief that courts may not “insist that the Attorney General’s opinion be based solely on evidence which is disclosed to the alien,” Id. at 677, quoting United States ex rel. Dolenz v. Shaughnessy, 2 Cir. 1953, 206 F.2d 392, 394, (which found no denial of procedural due process where the Commissioner relied upon matters outside the record), the 9th Circuit affirmed the Board’s order in As-ghari.
The telegram complained of, quoted in n. 3, supra, stated that none of the petitioners claimed persecution, imprisonment, or political affiliation prior to leaving Haiti, but stated that they came to this country to find work. Our examination of the statements in the record, presumably the ones sent to the State Department, reveals the opposite. The telegram is nonresponsive to the claims of beatings and imprisonment, and to petitioners’ express disclaimer of economic motivation.
Petitioners’ challenge, in view of the potential unreliability of the recommendation and its nonresponsiveness, might be persuasive if it appeared from the record that the telegram influenced the decision of the Immigration Judge and the Board of Immigration Appeals, but such is not the case. Rather, the basis for the decisions below was the insufficiency (and/or unreliability) of petitioners’ own statements in discharging their burden of proving that they possessed a well-founded fear of political persecution if deported.11 See Hossein-mardi v. INS, 9 Cir. 1969, On Petition for Rehearing, 405 F.2d 28.
In sum from careful review of the entire record we conclude that petitioners were not denied their right to a full and fair hearing.
Petitioners also request a second hearing under Title 28, U.S.C., Sec. 2347(c), see n. 4, supra. To be entitled to Sec. 2347(c) relief, they must show “to the satisfaction of the court” that the additional evidence is material and explain in a satisfactory manner their failure to adduce it before the administrative agency.
The evidence alleged to be material is (1) the further testimony of petitioners, referred to earlier; (2) the fact that petitioners, because of their fear of persecution, voluntarily remained in INS custody for four months until their release on bond, despite their knowledge that they could secure release if they waived their applications to withhold deportation; (3) testimony from an official in charge of the detention facility that one Haitian committed suicide after receiving notice of impending deportation and after informing petitioners that he would kill himself rather than be returned to Haiti, that a second attempted [201]*201to starve himself to death until advised by counsel that his claim would be judicially reviewed, that the remainder threatened suicide rather than be deported, and that such official requested the INS to remove petitioners because he believed the threats were real; and (4) that arrangements were made for their removal but were obviated when they were released on bond.
Petitioners excuse their failure to present this evidence earlier by pointing to the alleged ineffective assistance of counsel. Acknowledging that the suicide, attempted suicide, and threats to commit suicide could not have been raised at the hearing they» fault their attorney for failing to request a reopening prior to the appeal to the Board.
We do not find the evidence which petitioners seek to adduce material, nor their excuse reasonable. As stated earlier, their intended testimony has not been delineated sufficiently to enable us to assess its importance or to fault counsel for not presenting it originally.12
That petitioners remained in custody for four months rather than face deportation indicates no more than that they wished to pursue every avenue open to them in order to remain in this country. The suicide of one and attempted suicide of another is not, without more, and contrary to petitioners’ contention, evidence of their fear or indicative that their fear is well-founded or politically motivated, see Kovac, supra, 407 F.2d at 105. This is especially true where so many Haitians come to this country seeking economic relief. No relationship has been alleged which would allow us to impute the consequences faced by one to the others. Their own threats are self-serving and no more than cumulative to the statements in evidence.
In view of the insubstantiality of this evidence we do not view former counsel’s failure to request a reopening as grounds for remand. Moreover, petitioners were free, during the pendency of the appeal before this court, to request a reopening before the Board and failed to do so. See 8 C.F.R. Secs. 3.2 and 103.5. Their excuse, that they believed they no longer had the right to petition the Board to reopen because the Board would then have “a discretionary right to grant or to reject the motion to reopen, which . . . , could overrule the United States Court of Appeals,” petitioners’ Reply Brief at pp. 5-6, merits no comment.
Petitioners have failed to demonstrate that they were denied a fair hearing or that a remand would serve any useful purpose.
Petition denied.