C.F.R. §§ 208.3(a) and (b). In either case, the local district director or the immigration judge must seek an advisory opinion from BHRHA. 8 C.F.R. §§ 208.7 and 208.10(b). If the application is submitted to the district director, his decision is not subject to review. 8 C.F.R. § 208.8(c). However, the application may be renewed upon the institution of deportation proceedings. If submitted to an immigration judge, the applicant is entitled to a hearing at which both he and the INS may introduce evidence. 8 C.F.R. § 208.10(c) and (d). A decision on asylum adverse to the applicant may be appealed, along with an order of deportation or exclusion, to the Board of Immigration Appeals. 8 C.F.R. §§ 236.7 and 242.21. Finally, the decision of the Board of Immigration Appeals may be appealed to the United States Circuit Courts of Appeals. 8 U.S.C. § 1105a(a).
The core issue under plaintiff's asylum count is the procedure used by BHRHA in issuing advisory opinions. The office within BHRHA primarily responsible for issuing advisory opinions is the Office of Asylum Affairs (OAA). Mr. Jules Bassin, one of twelve DOS officials who review asylum applications, is responsible for reviewing applications submitted by aliens from Latin American, Central American and Caribbean countries, including El Salvador. In May of 1981, Mr. Bassin began evaluating all Salvadoran applications for asylum.
INS forwards to Mr. Bassin the actual application filled out by the alien or his attorney (INS Form I-589), any attachments submitted along with the application, the INS examiner's interview notes, if such is the practice of the particular district office, and a letter forwarding the application to BHRHA. Mr. Bassin then reviews each individual application and issues an advisory opinion based upon the materials before him. His decision is guided by the standards of the Refugee Act. Mr. Bassin then determines if, under the definition of "refugee" the applicant qualifies for asylum. Mr. Bassin occasionally requests further information and expertise from the DOS Desk Officer responsible for El Salvador. Mr. Bassin then prepares a form letter in most cases which states the opinion that the applicant is or is not qualified for asylum consideration.
Mr. Bassin's evaluation is then reviewed by Mr. Richard Belt, Public Policy Officer for the Bureau of Inter-American Affairs of DOS. Mr. Belt screens the application and the opinion issued by Mr. Bassin, and considers whether he agrees with the recommendation. If Mr. Belt agrees with the recommendation, the application is returned to Mr. Bassin and the opinion letter is then signed by the Director of the Office of Asylum Affairs, and forwarded to INS. INS then uses this advisory opinion in its evaluation and determination of Salvadoran asylum applications.
b) The advisory opinions used by the INS in determining political asylum applications are not improper due to the availability of expert advise on El Salvador, the sufficient training and guidance of the reviewing State Department official, and the reasonable amount of time given each individual application.
Plaintiff contends that Mr. Bassin, the official responsible for the initial review of asylum applications, and the subsequent issuance of advisory opinions related thereto, is inadequately trained and experienced, and therefore unqualified for making asylum recommendations. This contention is based upon deposition testimony which plaintiff claims shows Mr. Bassin to have an unclear understanding of the applicable standards relating to asylum applications. The Court finds, however, that this contention is without merit. Mr. Bassin has fifteen years of experience relating to the Foreign service which has required specific knowledge of the 1951 United Nations Convention and the 1967 Protocol relating to the status of refugees. First Bassin Dep., paras. 12-14. For the past ten years, Mr. Bassin has applied the principles of the Convention and Protocol in evaluating political asylum applications for the DOS. During that ten years, the last four have been spent evaluating Salvadoran applications for asylum. In fact, it appears that DOS would have a difficult time finding someone more experienced or well trained for the task of reviewing Salvadoran applications.
Plaintiff's argument that the deposition testimony of Mr. Bassin points out his lack of understanding of the standards to be applied in rendering advisory opinions is also without merit. The testimony in question involved Mr. Bassin's attempts to define the phrase "well-founded fear of persecution" as used in the Act's definition of refugee. This phrase is central to the determination of refugee status, and hence eligibility for asylum. The testimony in question (Transcript of Bassin deposition, Vol. I, page 11) was as follows:
Q: What do you understand to be the meaning of the term well founded fear of persecution?
A: I don't know, well it's not an arbitrary fear, its not a capricious fear. It would be a fear that's well founded. I would have to see the circumstances and look up the application, and then come to a judgment value as to whether it's well-founded or not.