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McLeod v. Immigration and Naturalization Service

filed: October 1, 1986.

LYNDON ERICKSON MCLEOD, PETITIONER,
v.
IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT



Petition for Review, Board of Immigration Appeals No. A23 459 075.

Author: Becker

Before: BECKER and MANSMANN, Circuit Judges and TEITELBAUM, District Judge*fn*

BECKER, Circuit Judge

Opinion OF THE COURT

This is a petition for review of an order of the Board of Immigration Appeals ("BIA") which denied the request of petitioner Lyndon McLeod for asylum and withholding of deportation under Sections 208 and 243(h) of the Immigration and Naturalization Act, 8 U.S.C. §§ 1158, 1253(h). McLeod alleges principally that (1) he met the burden of proof required to establish eligibility for relief from deportation and (2) the proceedings before the BIA were tainted by procedural flaws, including a woefully deficient transcript which renders it impossible to review the case fairly. Although this Court has previously registered its discontent with the quality of transcripts provided us by the Immigration and Naturalization Service and views that matter most seriously, for the reasons that follow the petition for review will be denied.

I.

McLeod is a 30-year-old native and citizen of Grenada. On July 1, 1980, he entered the United States as a non-immigrant business visitor. He overstayed his visa, which expired on September 1, 1980, and continues to reside in the U.S. Virgin Islands. In December 1982, the INS served McLeod with an order to show cause why he should not be deported, alleging that he had remained in the United States longer than authorized. McLeod conceded deportability and sought relief through an application for asylum pursuant to 8 U.S.C. § 1158. The Code of Federal Regulations provides that an application for asylum also constitutes a request for withholding of deportation under 8 U.S.C. § 1253(h), 8 C.F.R. § 208.3(b).

McLeod's request for relief stems from his opposition to the Grenadian governments of Sir Eric Gairy, who controlled the country from 1974 to 1979, and Maurice Bishop, who rose to power in 1979. In his application for asylum, McLeod stated that he feared imprisonment and torture by the Bishop government because of his political opinions and his affiliation with one James Herry, who was exiled from Grenada by the Bishop government. His fears of persecution were aroused by friends in Grenada and the United States, who suggested to him in 1981 and 1982 that he would be persecuted by the Bishop government if he returned to Grenada.

In September 1983, Maurice Bishop was stripped of most of his powers by the Central Committee of his party, the New Jersey Movement. The events that followed are well known. In mid-October, during a coup attempt by a group known as the Revolutionary Military Council, Bishop was put under house arrest and eventually murdered. In the midst of these events, Governor-General Sir Paul Scoon, the legal head of state of Grenada, appealed for help to the leaders of the six other members of the Organization of Eastern Caribbean States. That organization invoked the security provisions of its 1981 agreement and called on Barbados, Jamaica, and the United States for assistance.

On October 25, 1983, United States and Caribbean military forces landed on the island and detained the forces of the Revolutionary Military Council. On November 15, Governor-General Scoon appointed an Advisory Council to serve as an interim government until elections could be held. In the parliamentary elections, which were conducted in 1984, the New National Party won 14 of 15 parliamentary seats and the Grenada United Labor Party won one seat. On December 4, 1984, Herbert Blaize of the New National Party was sworn in as Grenada's Prime Minister, and he remains in that position today. See generally U.S. Department of State, Country Reports on Human Rights Practices for 1983.

After Bishop was assassinated and his government overthrown, McLeod continued to press his claims for relief from deportation on the ground that elements of the Gairy and Bishop regimes continued to persecute their former opponents. In a hearing before an immigration judge in August, 1984, McLeod testified that while in Grenada, he had expressed his political opinions about Gairy's government and Bishop's Peoples Revolutionary Government among small gatherings of friends. He stated that he feared that factions loyal to Gairy and Bishop would retaliate against him because of his political views. He also contended that the current Grenadian government continues to hold nineteen political prisoners whom it identifies as suspects in the murder of Maurice Bishop.

In an oral decision in October 1984, the immigration judge concluded that McLeod had not established a well-founded fear of persecution or shown that his life or freedom would be threatened upon return to Grenada. He noted that McLeod had never spoken in public against the government of Gairy or Bishop and had never been persecuted by either government. The judge observed further that there had been a change of government in Grenada since McLeod filed his application for asylum and that McLeod was unable to articulate what would happen to him if he were to return to Grenada in 1984.

On December 13, 1985, the BIA dismissed McLeod's appeal from the decision of the immigration judge, concluding that McLeod had not submitted evidence sufficient to establish a well-founded fear of persecution by the current government in Grenada or any other segment of Grenadian society. ...


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