The opinion of the court was delivered by: BY THE COURT; HARVEY J. BARTLE, III
Before the court is a petition for habeas corpus filed by Alfred Joseph Mentor ("Mentor"), a citizen of Haiti. Petitioner is presently in the custody of the United States Immigration & Naturalization Service ("INS") and is scheduled for deportation as a result of a final exclusion order. Section 106(a) of the Immigration and Nationality Act ("INA"), 8 U.S.C. §§ 1105a(a)(10) provides that "any alien held in custody pursuant to an order of deportation may obtain judicial review thereof by habeas corpus proceedings."
Mentor entered the United States illegally on or about August 1, 1989 at Miami, Florida. At the time of his arrival, petitioner was in possession of two passports, one in his name and one in the name of another person. Immigration and Naturalization Services' Examiners in Miami charged him with excludability under then applicable §§ 212(a)(19) and (20) of the INA, 8 U.S.C. §§ 1182(a)(19) and (20).
Petitioner at that time applied for political asylum.
A hearing on the application for political asylum was held before an Immigration Judge on November 5, 1990. Petitioner was represented by counsel. Because petitioner's native language is Creole an official interpreter was provided. Upon conclusion of the hearing, the Immigration Judge decided that petitioner was excludable from the United States under 8 U.S.C. §§ 1182(a)(19) and (20), denied his application for asylum and withholding of deportation,
and ordered him excluded and deported to Haiti. In denying him asylum, the Immigration Judge found that petitioner was not credible and had failed to prove that his "life or freedom would be threatened...[in Haiti] on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1253(h). See Immigration & Naturalization Service v. Stevic, 467 U.S. 407, 81 L. Ed. 2d 321, 104 S. Ct. 2489 (1984).
Counsel for petitioner filed a timely appeal to the Board of Immigration Appeals (the "Board"). The Board affirmed the decision of the Immigration Judge on the merits and dismissed the appeal on September 16, 1992. On July 8, 1993 petitioner was ordered to surrender to the INS for deportation. He complied with the order and was taken into custody in Philadelphia. On July 30, 1993, petitioner, represented by new counsel, filed a motion with the Board to reopen and reconsider and for stay of deportation. While withholding a final ruling on the motion to reopen and reconsider, the Board denied the stay of deportation on August 12, 1993 on the ground that there was "little likelihood" the motion would be granted. Fearing that deportation was imminent, petitioner filed a with the Court a Petition for Writ of Habeas Corpus and an Application for a Temporary Restraining Order on August 30, 1993.
This court granted Petitioner's Application, pending a hearing which was held September 3, 1993.
Petitioner challenges the decisions of the Immigration Judge and the Board on the ground that he was denied a "full and fair" hearing before the Immigration Judge. He contends that his interpreter failed to provide a competent translation of the proceedings, in violation of his constitutional due process rights. He also claims ineffective assistance of counsel.
Before addressing the merits of these claims, the court must determine whether petitioner has exhausted his administrative remedies as required by 8 U.S.C. § 1105a(c). That subsection provides that orders of deportation or exclusion, "shall not be reviewed by any court if the alien has not exhausted the administrative remedies available to him as of right...."
Petitioner did not present before the Board either his claim that his interpreter was incompetent or his claim that his counsel was ineffective. This court is generally precluded from reviewing issues which were not first raised in an appeal to the Board. Alleyne v. U.S. I.N.S., 879 F.2d 1177, 1182 (3d Cir. 1989); Vargas v. U.S. Dept. of Immigration & Naturalization Service, 831 F.2d 906, 907-908 (9th Cir. 1987). However, there is an exception. Petitioner may bring for the first time before the Court due process claims which the Board does not have the power to correct. Marrero v. I.N.S., 990 F.2d 772, 778 (3d Cir. 1993). In reviewing these claims, the Court of Appeals in Marrero has cautioned:
[a] petitioner cannot obtain review over procedural errors in the administrative process that were not raised before the agency merely by alleging that every such error violates due process. 'Due Process' is not a talismanic term which guarantees review in this court of procedural errors correctable by the administrative tribunal.
Marrero, 990 F.2d at 778, citing Vargas, 831 F.2d at 908.
We agree that petitioner's allegation concerning an incompetent interpreter implicates due process concerns. A person subject to deportation is entitled to a full and fair deportation hearing. Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S. Ct. 445, 454, 94 L. Ed. 616 (1950). Due process in this context requires that petitioner receive timely notice, that he have an opportunity to be heard, to cross-examine witnesses against him, and to produce evidence. U.S. v. Gasca-Kraft, 522 F.2d 149, 152 (9th Cir. 1975). The right of a person subject to deportation to be able to participate meaningfully by having the proceedings translated into a language he or she understands is fundamental. Otherwise, a hearing is really no hearing at all. See Tejeda-Mata v. Immigration and Naturalization Service, 626 F.2d 721 (9th Cir. 1980), cert. denied, 456 U.S. 994, 73 L. Ed. 2d 1291, 102 S. Ct. 2280 (1982).
This court, therefore, must decide whether the claim of an incompetent interpreter is the type of correctable procedural error that should have first been brought before the Board. Research has disclosed no case from our Court of Appeals which addresses the question. However, several unpublished opinions from the Ninth Circuit have held that it is a procedural question which must first be raised before the Board. For example, in Bajoa v. U.S. Dept of Immigration and Naturalization, 855 F.2d 860, 1988 WL 82814 (9th Cir. 1988), the court held that petitioner's due process claim that he was denied the assistance of an interpreter alleged a "procedural error that could have been corrected by the agency." This court agrees. The Board had the power to order a new hearing if the translation was materially deficient. Indeed, in In the Matter of Tomas, 19 I. & N. Dec. 464 (BIA 1987), the Board did just that. It reversed the decision of the Immigration Judge who had denied the request for a translator and left the alien with the inadequate interpretative skills of his daughter. Petitioner here has not exhausted his administrative remedies with respect to the incompetence of his interpreter. Accordingly, this Court is without habeas corpus jurisdiction to review that claim.
Petitioner also contends, in his habeas corpus petition, that counsel who represented him at the original hearing was ineffective for failing to present affidavits on his behalf or to call witnesses to testify to his fear of persecution and to his character. Petitioner further argues that his original counsel ...