Francisco Lucas Rodriguez-Roman v. Immigration and Naturalization Service

Opinion by Judge REINHARDT; Concurrence by Judge KOZINSKI; Special Concurrence by Judge REINHARDT and Judge HAWKINS.

Francisco Lucas Rodriguez-Roman, a native and citizen of Cuba, asserts that he left Cuba for political reasons and that, if deported, he would be subjected to prolonged incarceration, and possibly even death, for his unauthorized departure. He seeks review of the Board of Immigration Appeals (BIA) decision denying his requests for withholding of deportation and asylum under sections 243(h) and 208(a) of the Immigration and Nationality Act, 8 U.S.C. §§ 1253 (h) and 1158(a) (1995). Adopting the decision of the Immigration Judge (IJ), the BIA determined that *419 because Rodriguez would be punished pursuant to Cuban criminal law, the punishment, no matter how severe, could not constitute persecution. We disagree and grant his petition.

I

Rodriguez, a 36-year-old native and citizen of Cuba who harbored life-long anticommunist beliefs, fled Cuba and entered the United States without inspection in October of 1982. He was born in Havana, where he received a college education and became a teacher. He later joined the merchant marine so that he could plan his escape from…

concurring.

Judge Reinhardt’s opinion, with which I generally agree, demonstrates the importance of independent judicial review in an area where administrative decisions can mean the difference between freedom and oppression and, quite possibly, life and death.

What happened in this case at the administrative level is chilling. Rodriguez, a refugee from Communist Cuba, established that, if returned to his country, he might be shot, imprisoned for many years or simply made to “disappear.” These are not fantasies. Communist countries are known for their brutality in stemming emigration; this brutality is inevitable because Communism so undermines human dignity and economic prosperity that any Communist country that opened its borders would soon be depopulated. Vicious punishment for emigration offenses is thus a means of enforcing political allegiance to governments unable to inspire loyalty by more conventional means.

None of this is new or controversial; the West has known of this seamy practice at least since the early 1960’s, when East Germany was first observed shooting its citizens for trying to scale the Berlin Wall.

Where the Immigration Judge and the BIA went astray is…

specially concurring.

Judge Kozinski’s concurrence contains much that is personal and that reflects his experience as an immigrant who came to this nation in order to seek freedom and a better way of life. The concurrence focuses on a particular form of authoritarianism with which Judge Kozinski is most familiar. Given the circumstances of this case, it is certainly appropriate for him to express his own individual views on the subjects of Communism and the Cuban government in a separate concurrence.

There is one part of the concurrence, however, which is not personal and which we feel compelled to join. Judge Kozinski emphasizes “the importance of independent judicial review” in asylum cases. We agree wholeheartedly. In the absence of judicial review, grave injustices could take place for which our government and our people would have to bear the moral responsibility. These injustices might, as Judge Kozinski suggests, ordinarily be few in number, but, in some periods of history they could be many indeed.

Those of us who are familiar with the infamous episode in which we turned away hundreds, if not thousands, of Jewish refugees crowded on the decks of the Saint Louis, many of…

98 F.3d 416 65 USLW 2241 , 96 Cal. Daily Op. Serv. 7509 , 96 Daily Journal D.A.R. 12 ,361 Francisco Lucas RODRIGUEZ-ROMAN, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 95-70230. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 7, 1996. * Decided Oct. 9, 1996. Nicole Hampton and Sherri L. Honer (law students), Western State University College of Law, Irvine, CA, for petitioner. Carl H. McIntyre, Jr. (on the brief), and David M. McConnell (argued), Office of Immigration Litigation, United States Department of Justice, Washington, DC, for respondent. Petition to Review a Decision of the Board of Immigration Appeals. Before REINHARDT, KOZINSKI, and HAWKINS, Circuit Judges. Opinion by Judge REINHARDT; Concurrence by Judge KOZINSKI; Special Concurrence by Judge REINHARDT and Judge HAWKINS. REINHARDT, Circuit Judge: 1 Francisco Lucas Rodriguez-Roman, a native and citizen of Cuba, asserts that he left Cuba for political reasons and that, if deported, he would be subjected to prolonged incarceration, and possibly even death, for his unauthorized departure. He seeks review of the Board of Immigration Appeals (BIA) decision denying his…