92 F.

3d 195
1997 A.M.C. 2994

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.
No. 95-5424.

United States Court of Appeals,

Third Circuit.
Argued March 19, 1996.
Decided Aug. 9, 1996.

Robert A. Perkins (argued), Robert A. Perkins & Associates, Chicago, IL,

for appellant.
Daniel J. Gibbons (argued), Assistant U.S. Attorney, Faith S. Hochberg,
United States Attorney, Newark, NJ, for appellees.
Judy Rabinovitz (argued), Lucas Guttentag, Ann Parrent, Immigrants
Rights Project, American Civil Liberties Union Foundation, New York
City, for amici curiae, Marsha Wenk, American Civil Liberties Union of
New Jersey, Newark, NJ, of counsel.
Before: BECKER, McKEE and McKAY, * Circuit Judges.
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
2

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.1

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

8

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:

9 Contracting State shall expel or return ("refouler") a refugee in any manner

No
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.
10

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.

11

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, 104 S.Ct. 2489, 2496, 2499, 81 L.Ed.2d 321
(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:
12

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."

13

INS v. Cardoza-Fonseca, 480 U.S. 421, 449, 107 S.Ct. 1207, 1222, 94 L.Ed.2d
434 (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

14

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
15
16

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).

17

Stowaways, however, have a distinct status. Under the INA they are excludable

17

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.2 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.

18

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:

19

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.

20

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

21

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 Yiu Sing Chun v. Sava, 708 F.2d 869, 874 (2d
Cir.1983). Instead, the INS applied the regulations differently to stowaways.3
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.4 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.5 53 Fed.Reg. 11310 (1988).

22

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.

23

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
24

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, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (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, 104 S.Ct. at 2781-82. 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:
25

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.

26

Chevron, 467 U.S. at 843 n. 9, 104 S.Ct. at 2781-82 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.

27

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.6 See INS v. Cardoza-Fonseca, 480 U.S.
421, 449, 107 S.Ct. 1207, 1222, 94 L.Ed.2d 434 (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, 107 S.Ct. at 1222.

28

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.
29

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.

30

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.

31 The Second Circuit's Pre-Chevron Construction of Stowaways under the Refugee

D.
Act
32

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:

33
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.
34

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, Yiu 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

35

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." Yiu Sing Chun v.
Sava, 708 F.2d 869, 876 (2d Cir.1983). The BIA declined to follow Yiu 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
Waldei the 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.

36

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."7 Am. Stipulated J.A.,
No. 55 (In re Mircea Marincas, No. Awe-fpo-vor, 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:
37

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.

38

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.

39

Am. Stipulated J.A., No. 61 (In re Chila, No. Afx-jln-rbb, 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.

40

In INS v. Cardoza-Fonseca, 480 U.S. 421, 107 S.Ct. 1207, 94 L.Ed.2d 434
(1987), the Court stated:

41 additional reason for rejecting the INS's request for heightened deference to its
An
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.

42

Id. at 446 n. 30, 107 S.Ct. at 1221 n. 30 (quoting Watt v. Alaska, 451 U.S. 259,
273, 101 S.Ct. 1673, 1681, 68 L.Ed.2d 80 (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

43
44

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, 103 S.Ct. 321, 329, 74 L.Ed.2d 21 (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, 99 S.Ct. 2545,
2553-54, 61 L.Ed.2d 176 (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, 96 S.Ct. 2532, 2539, 49 L.Ed.2d 451
(1976) (explaining that under Wolff v. McDonnell, 418 U.S. 539, 557-58, 94
S.Ct. 2963, 2975-76, 41 L.Ed.2d 935 (1974), minimum due process rights
attach to statutory rights).8 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.

45

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, 103 S.Ct. 864, 871-72, 74 L.Ed.2d 675 (1983); Meachum v.
Fano, 427 U.S. 215, 227, 96 S.Ct. 2532, 2539-40, 49 L.Ed.2d 451 (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.9 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.
46

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.

47

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, 102 S.Ct. 2280, 73 L.Ed.2d 1291 (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.10 The

United Nations Handbook "provides significant guidance in construing the
[1967] Protocol, to which Congress sought to conform." INS v. CardozaFonseca, 480 U.S. 421, 439 n. 22, 107 S.Ct. 1207, 1217 n. 22, 94 L.Ed.2d 434
(1987).11 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.
48

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

49
50

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.

51

The judgment of the district court will be reversed and remanded for further
proceedings in accord with this opinion.

52

BECKER, Circuit Judge, concurring.

53

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.1

The Honorable Monroe G. McKay, Judge of the United States Court of

Appeals for the Tenth Circuit, sitting by designation

Soon thereafter we invalidated INS's rule requiring shipping companies to bear

the burden of detaining stowaways who have applied for asylum. Dia
Navigation Co. v. Pomeroy, 34 F.3d 1255, 1266 (3d Cir.1994). We found the
INS rule to be legislative in nature and defective because it was promulgated
without the notice and comment requirements of the Administrative Procedure
Act. Id. at 1265-66

Most classes of "excludable aliens" are entitled to an exclusion hearing. See 8

U.S.C. 1182(a), 1226(a)

The INS's application of its regulations to stowaways was rejected by the

Second Circuit. Yiu Sing Chun, 708 F.2d at 876. The INS and the BIA,
however, declined to follow Yiu Sing Chun outside the Second Circuit. Matter
of Waldei, 19 I & N Dec. 189 (BIA 1984)

53 Fed.Reg. 11300 (1988) ("This modification is in response to numerous and

diverse comments received on the proposed rule, in particular a substantial
number objecting to the original proposal to require that all asylum and
withholding of deportation claims be adjudicated in a nonadversarial setting by
Asylum Officers within the INS.")

The nonadversarial interview procedure used for stowaway asylum applicants

is used as the initial step in the asylum process for all asylum applicants

It is noteworthy that the Court also acknowledged a special canon of statutory

construction whereby ambiguities in deportation statutes are to be construed in
favor of the alien. Cardoza-Fonseca, 480 U.S. 421, 449, 107 S.Ct. 1207, 1222,
94 L.Ed.2d 434 (1987) ("We find these ordinary canons of statutory
construction compelling, even without regard to the longstanding principle of
construing any lingering ambiguities in deportation statutes in favor of the
alien.")

Petitioner's claims of due process deficiencies are bolstered by the BIA's

performance in this case. The BIA affirmed the INS's first denial of Petitioner's
asylum application--a denial which the INS later admitted was procedurally
deficient. See Am. Stipulated J. A., No. 30 (Zabona v. Lewis, No. CV-94-0996,
at 1-2 (M.D.Pa. Sept. 14, 1994)); id., No. 38 (In re Mircea Marincas, No. Akehli-rsd (June 17, 1994)). Petitioner then repeated the same procedure, which the
BIA again affirmed. Id., No. 55 (In re Mircea Marincas, No. Abh-ide-blt, at 2
(BIA May 4, 1995)). Also, the BIA affirmed the second denial while denying
Petitioner the ability to brief his case. Id.; Appellant's Br. at 13-14. It is
disturbing that the BIA appears to have acted as a mere rubber-stamp in this
case

Courts have recognized that aliens seeking asylum are entitled to some due
process protection. See, e.g., Augustin v. Sava, 735 F.2d 32, 37 (2d Cir.1984)
(holding that aliens seeking asylum have a due process right to a translator in
their hearings); Yiu Sing Chun, 708 F.2d at 877 (stating, "[A] refugee who has
a 'well-founded fear of persecution' in his homeland has a protectable interest
recognized by both treaty and statute, and his interest in not being returned may
well enjoy some due process protection not available to an alien claiming only
admission.")

In McNary v. Haitian Refugee Center, 498 U.S. 479, 496-97, 111 S.Ct. 888,
898-99, 112 L.Ed.2d 1005 (1991), the Court recognized that the INS's failure to
record the interviews of special agricultural worker applicants deprived the
federal courts of a meaningful basis upon which to review the INS's
determinations

10

Office of the United Nations High Commissioner for Refugees, Handbook on

Procedures and Criteria for Determining Refugee Status, p 192 (Geneva, 1979)

11

As we explained above in part II.A., Congress enacted the Refugee Act of

1980, at least in part, as a mechanism for implementing United States treaty
obligations under the 1967 Protocol. See S.Rep. No. 96-256, 96th Cong., 1st
Sess. 4 (1979); H.R.Rep. No. 96-608, 96th Cong., 1st Sess. 9 (1979), reprinted
in 1980 U.S.C.C.A.N. 141

While I endorse Judge McKay's decision not to reach the merits of the
plaintiff's asylum claim at this juncture, I feel constrained to note that the INS,
in its papers, seems to have adopted a rather crabbed notion of what is
"political," in the face of what seems to be a quite strong case for asylum