708 F.2d 77
UNITED STATES of America, Plaintiff-Appellee,v.Mary Frances CARRIER, Defendant-Appellant.
No. 1182, Docket 82-1432.
United States Court of Appeals,Second Circuit.
Submitted April 26, 1983.Decided May 20, 1983.

Frederick J. Scullin, Jr., U.S. Atty., N.D.N.Y., Gary L. Sharpe, Asst. U.S. Atty., Syracuse, N.Y., for plaintiff-appellee.
Ronald R. Benjamin, Binghamton, N.Y., for defendant-appellant.
Before KEARSE, PIERCE and PECK,* Circuit Judges.
PER CURIAM:

1
Defendant Mary Frances Carrier appeals from a judgment of conviction entered in the United States District Court for the Northern District of New York, Roger J. Miner, Judge, 517 F.Supp. 644, after a jury verdict finding her guilty of threatening the life of the President of the United States, in violation of 18 U.S.C. Sec. 871(a) (1976).  Carrier was sentenced to five years' imprisonment.  On appeal she contends principally that the evidence was insufficient to support her conviction.  We find her contention without merit1 and we affirm the judgment.

2
Section 871(a) makes it unlawful "knowingly and willfully" to make "any threat to take the life of or to inflict bodily harm upon the President of the United States."2   In a prior opinion in this case, United States v. Carrier, 672 F.2d 300 (2d Cir.), cert. denied, --- U.S. ----, 102 S.Ct. 2972, 73 L.Ed.2d 1359 (1982), familiarity with which is assumed, we considered the district court's dismissal of the indictment on the ground that the words allegedly uttered by Carrier could not under any circumstances constitute "threats" within the meaning of Sec. 871(a).  Recognizing that Sec. 871(a) reaches only "true threats" and not mere political hyperbole that is protected by the First Amendment, see Watts v. United States, 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969), we reversed the judgment of dismissal and ruled that, since the indictment was sufficient on its face, the question whether the words used were a true threat should be left to the triers of fact.

3
Following the remand, Carrier was tried, and evidence of her alleged statements and of the circumstances in which they were made was presented to the jury.  Viewed in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), the evidence showed, inter alia, that Carrier was arrested on state charges and was found to have in her possession an envelope that bore several phrases demonstrating an antipathy toward the President and others, including the phrase "Murder the President."    This information was given to Secret Service Special Agent Kevin Mitchell, who sought to interview Carrier in the Broome County, New York, jail in which she was being held.  As Mitchell displayed his credentials and the envelope to Carrier and attempted to introduce himself, Carrier interrupted, stating, " 'Yes, I know why you are here.  The President should be murdered.  Yes, I wrote that--' .... 'Yes, I threatened the President.' "    (Tr. 106.)    Carrier remained in the interview room for approximately two minutes, during which she repeated these statements over and over and insulted Mitchell several times.  She was neither laughing nor smiling and did not appear jocular;  rather she appeared to be upset and antagonistic.

4
At a subsequent interview, at which Mitchell advised Carrier that it was unlawful to threaten the life of the President, Carrier appeared to be calm, courteous, and friendly and answered some of Mitchell's questions.  She stated that she was very familiar with the use of firearms, that she was a successful hunter, and that she owned rifles, shotguns, and a .32 caliber pistol.  She refused, however, to discuss the location or purpose of the .32 caliber pistol.  Finally, when Mitchell asked about the envelope, bearing the phrase "Murder the President," Carrier became impatient and stated, " 'It is too bad Hinkley wasn't successful in killing that son of a bitch.  He deserved what he got.' "    (Tr. 116.)    Thereafter, while Mitchell was transporting Carrier to the federal courthouse, Carrier repeatedly stated, "[I]t was too bad that Hinkley wasn't successful in killing that son of a bitch";  "[I]f need be I would shoot him";  and "He deserved what he got."    (Tr. 119.)    After her court appearance--at which her statements to the judge and others were vituperative and profane--when she was prevented from leaving a room, Carrier stated that " 'The only thing I will do is blow the [P]resident's head off, the President of the United States.' "    (Tr. 121-22.)

5
Mitchell's investigation of Carrier disclosed, inter alia, that Carrier traveled extensively, had no permanent address, and lived out of her car, and that she had traveled to Dumfries, Virginia, a location where President Reagan rides horses.  After Carrier's release from county jail, the Secret Service received a letter written by Carrier referring to Dumfries, Ronald Reagan, and a gun.

6
Carrier argues that none of the evidence showed that she had any kind of a plan to carry out her alleged threats, and, hence, they could not have been found "true" threats.  This argument is misplaced:

7
A threat made with no present intention of carrying it out may still restrict the President's movements and require a reaction from those charged with protecting the President.  Because Sec. 871 was intended to prevent not simply attempts on the President's life, but also the harm associated with the threat itself, ... the statute should be construed to proscribe all threats that the speaker intends to be interpreted as expressions of an intent to kill or injure the President.

8
Rogers v. United States, 422 U.S. 35, 47, 95 S.Ct. 2091, 2098, 45 L.Ed.2d 1 (1975) (Marshall, J., concurring).

9
From all the evidence the jury was entitled to infer that Carrier intentionally and knowingly made the statements attributed to her and that she intended that they be understood by others as a serious threat to the President.  She repeatedly stated that the President should be killed, bearing an unvaryingly serious demeanor while making those statements to a person having responsibility for ensuring the safety of the President.  She possessed an arsenal of weapons.  And she had traveled to a location where the President was known to ride horses.  The evidence was sufficient to support Carrier's conviction under Sec. 871.

10
The judgment is affirmed.

*
 Honorable John W. Peck, Senior Judge of the United States Court of Appeals for the Sixth Circuit, sitting by designation

1
 We have also considered Carrier's other arguments and find them to be without merit

2
 The pertinent portions of 18 U.S.C. Sec. 871 are as follows:
(a) Whoever knowingly and willfully deposits for conveyance in the mail or for a delivery from any post office or by any letter carrier any letter, paper, writing, print, missive, or document containing any threat to take the life of or to inflict bodily harm upon the President of the United States ... or knowingly and willfully otherwise makes any such threat against the President ... shall be fined not more than $1,000 or imprisoned not more than five years, or both.


795 F.2d 77
Jartuv.I.N.S.
86-1370
United States Court of Appeals,First Circuit.
5/20/86

1
D.Mass.

VACATED AND REMANDED


16-2006, 16-2326
Celltrace Communications Limited v. Acacia Research Corporation

                                   UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                          SUMMARY ORDER
        Rulings by summary order do not have precedential effect. Citation to a summary
order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of
Appellate Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in
a document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 25th day of April, two thousand seventeen.

PRESENT:            AMALYA L. KEARSE,
                    GUIDO CALABRESI,
                    JOSÉ A. CABRANES,
                                 Circuit Judges.

CELLTRACE COMMUNICATIONS LIMITED, WAYNE
MICHAELS,

                              Plaintiffs-Appellants,                             16-2006, 16-2326

                              v.

ACACIA RESEARCH CORPORATION, ACACIA
RESEARCH GROUP, LLC,

                              Defendants-Appellees.*

FOR PLAINTIFFS-APPELLANTS:                                            REAGAN W. SIMPSON (Collin J. Cox,
                                                                      Christian J. Ward, April L. Farris, on the
                                                                      brief), Yetter Coleman LLP, Houston, TX.

     *
         The Clerk is directed to alter the caption of this case to read as indicated above.

                                                                  1
FOR DEFENDANTS-APPELLEES:                                    MARC J. SCHNEIDER (Travis P. Brennan,
                                                             Justin Klaeb, on the brief), Stradling Yocca
                                                             Carlson & Rauth, P.C., Newport Beach,
                                                             CA.

       Appeal from an order of the United States District Court for the Southern District of New
York (Alison J. Nathan, Judge).

       UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the order of the District Court be and hereby is
AFFIRMED IN PART, VACATED IN PART, and the cause is REMANDED for the entry of
an order STAYING the proceedings.

         We expect appeals such as this one to grow increasingly rare and soon become extinct. The
District Court granted defendants’ motion to compel arbitration and dismissed, rather than stayed,
the case. On appeal, both parties agree that the District Court erred in dismissing, rather than
staying, the action. “[W]hen all claims are referred to arbitration and a stay requested,” as happened
here, “the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), requires a stay of proceedings.” Katz v.
Cellco P’ship, 794 F.3d 341, 343 (2d Cir.), cert. denied, 136 S. Ct. 596 (2015) (emphasis added). Had the
District Court entered a stay, moreover, this appeal would not exist. See id. at 346 (“[T]he FAA
explicitly denies the right to an immediate appeal from an interlocutory order that compels
arbitration or stays proceedings.” (citing 9 U.S.C. § 16(b)(1)–(2)). While we are not thereby deprived
of jurisdiction over the merits of this appeal, those merits require little discussion. Substantially for
the reasons given by the District Court in its memorandum decision, we conclude that the parties
agreed that, prior to litigating in court, they had “to try in good faith to settle [any] dispute” through
a particular mechanism—“formal arbitration under the Rules of Arbitration of the International
Chamber of Commerce”—and that this condition has not been met. Thus we need not disturb the
District Court’s ruling other than to vacate its order of dismissal and remand for entry of a stay.

       Accordingly, the judgment of the District Court is AFFIRMED IN PART, VACATED
IN PART, insofar as it dismissed this action, and the cause is REMANDED for the entry of an
order STAYING the proceedings.

                                                         FOR THE COURT:
                                                         Catherine O’Hagan Wolfe, Clerk

                                                    2


834 P.2d 290 (1992)
122 Idaho 288
Inquiry Concerning: Judge Phillip M. Becker.
IDAHO JUDICIAL COUNCIL, Petitioner,
v.
Judge Phillip M. BECKER, District Judge, Fifth Judicial District, State of Idaho, Respondent.
No. 19720.
Supreme Court of Idaho, Boise, April 1992 Term.
April 30, 1992.
On Denial of Motion for Leave to Produce Additional Evidence and Petition for Rehearing June 11, 1992.
R. Keith Roark, Special Examiner for petitioner, of the firm of Roark, Donovan, Praggastis, Rivers & Phillips, in Hailey, argued.
Hollifield, Tolman & Bevan, Twin Falls, for respondent. William R. Hollifield argued.
JOHNSON, Justice.
This is a judicial discipline case. The primary issues presented are: (1) whether District Judge Phillip M. Becker of the Fifth Judicial District violated Canon 2(A) of the Idaho Code of Judicial Conduct (the Code) by conduct that detracts from public confidence in the integrity of the judiciary, and (2) if so, what sanction the Court should impose because of the violation.
We find that Judge Becker violated Canon 2(A) by his habitual intemperance, abuse of alcohol, and operation of a motor vehicle while he was under the influence of alcohol. We suspend Judge Becker from his duties as a district judge for three months, without salary, and subject to conditions during the suspension and during the balance of his current term in office, which expires on the first Monday in January 1995.

*291 I.

THE BACKGROUND AND PRIOR PROCEEDINGS.
In 1983, Judge Becker became a district judge in the Fifth Judicial District after serving seven years as a magistrate judge. Until 1989, Judge Becker was considered to be a qualified, fair judge whose demeanor and professionalism complied with the standards set for the Idaho judiciary in the Code.
Beginning in 1989, Judge Becker's behavior in the performance of his judicial duties changed. Other judges in the Fifth Judicial District as well as Judge Becker's court clerk and court reporter observed that he became withdrawn and exhibited episodes of bizarre behavior. He began having mood swings and became less tolerant.
Prior to March 1991, a magistrate judge in the Fifth Judicial District and Judge Becker's law clerk each confronted Judge Becker concerning his use of alcohol. Judge Becker told them he did not have a problem with alcohol.
For at least five years prior to March 1991, Judge Becker's family knew he had an alcohol problem and tried unsuccessfully to have Judge Becker control his use of alcohol.
On several occasions after November 1990, court personnel, law enforcement officers, and other judges smelled alcohol on Judge Becker's breath while Judge Becker was in the courthouses in Gooding County and Jerome County. On one occasion, in the presence of his court reporter and at least two attorneys, Judge Becker took a bottle of alcoholic beverage out of his desk drawer in his chambers, offered the attorneys a drink, which they declined, and then took a drink directly from the bottle. On another occasion during working hours, Judge Becker took a bottle of alcoholic beverage from under the seat of the county vehicle assigned to him and took a drink directly from the bottle in the presence of his court reporter, stating to the reporter, "You didn't see this."
In March 1991, Judge Becker's conduct was investigated by the Idaho Judicial Council (the Council). The Council investigated a complaint by the Twin Falls County prosecuting attorney concerning an incident in December 1990 in which Judge Becker made a derogatory comment to local law enforcement officers. The Council also investigated a general allegation that Judge Becker had abused the use of alcohol.
In March 1991, after the Council had commenced its investigations, Judge Becker's family and friends engaged in an "intervention." As a result of the intervention, Judge Becker agreed to participate in a thirty-day inpatient alcohol abuse treatment program at a facility outside the state. Following his completion of this program, Judge Becker returned to Idaho in April 1991. Judge Becker admitted that he resumed drinking after this inpatient treatment.
In June 1991, the Council sent Judge Becker a letter stating that the Council had determined that Judge Becker's conduct toward law enforcement personnel in December 1990 appeared to violate Canon 2(A) of the Code. The Council offered to dispose of the complaint with an informal reprimand if Judge Becker agreed to refrain from this type of conduct in the future, and if he would write letters of apology to the prosecutor and the law enforcement officers involved.
With regard to the allegation that Judge Becker had abused the use of alcohol, the Council's letter stated that the Council would hold the file open for at least one year if Judge Becker would: (1) furnish the Council with the discharge report from the inpatient treatment center, (2) do all recommended follow-up, and (3) send periodic reports from his sponsor to the Council describing Judge Becker's recovery. The Council stated that if after one year the Council received an evaluation from an independent practitioner that Judge Becker's recovery was stable, the Council would close the file with an informal admonition.
Judge Becker signed and returned a copy of the letter from the Council, stating:

*292 I hereby acknowledge the above-described violations of the Code of Judicial Conduct and accept an informal admonition for my actions. I also acknowledge and agree that the file on the allegation of abuse of alcohol will remain open for at least one year.
Judge Becker admitted that he continued to drink after signing this acknowledgment. Within two weeks after signing the acknowledgment, Judge Becker was arrested and charged with driving while under the influence of alcohol. Judge Becker's blood alcohol content at the time of the arrest was .22 percent.
Immediately following his arrest, Judge Becker entered the Walker Center, an alcohol treatment facility in Gooding, Idaho, for a twenty-two day inpatient treatment program. During his stay at the Walker Center, this Court entered an order placing Judge Becker on administrative leave, with pay and entitlements, because of the charges pending against him. This order also required Judge Becker to refrain from performing any judicial acts, to stay away from all state court facilities unless he received specific permission from the Chief Justice, and to have no further contact with any official or court personnel of the court system, including clerical personnel, without specific permission from the administrative district judge of the Fifth Judicial District.
Following his release from the Walker Center, Judge Becker pleaded guilty to the charge of driving under the influence and received a withheld judgment and a one-year probation. The conditions of his probation required Judge Becker to: (1) pay a $750.00 fine plus $47.50 in various costs, (2) serve thirty days in jail, of which twenty-eight were suspended, (3) have his driving privileges suspended for one hundred eighty days, and (4) comply with all after care requirements specified in an alcohol evaluation submitted to the court by Howard Carroll, a licensed professional counselor.
During September 1991, Judge Becker contacted his court clerk by telephone four times without the permission of the administrative district judge in his district. During one of these conversations, Judge Becker told the clerk not to tell anybody about the conversation. The clerk testified that Judge Becker "said he was going to AA and therapy, but he really didn't need it. He was just doing it for the Judicial Council."
On October 1, 1991, the Council served Judge Becker with a notice of charges alleging that Judge Becker had violated Canon 2(A) of the Code by: (1) operating a motor vehicle while under the influence of alcohol, and (2) habitually abusing alcohol in 1988, 1989, 1990, and 1991. The Council specifically alleged that Judge Becker consumed alcohol during official working hours and was, or appeared to be, under the influence of alcohol while he was in his official chambers and in and around the Gooding and Jerome County courthouses.
Judge Becker answered the Council's charges, admitting that he was guilty of driving under the influence, that he was addicted to alcohol, and that the addiction became progressively worse during the latter part of 1990 and the first part of 1991. Judge Becker also alleged that he was pursuing a treatment program for his addiction.
The Council scheduled a hearing on the charges against Judge Becker for early November 1991. Approximately one week before the hearing, Judge Becker told a sheriff that he didn't believe he was weaving when he was arrested for driving under the influence, because he had driven under the influence before and knew how to do it.
At the hearing before the Council, there was testimony from other judges, law enforcement officers, and prosecuting attorneys in the Fifth Judicial District indicating that Judge Becker's problem with alcohol has tended to detract from the public's confidence in the integrity of the judiciary. Other judges in the Fifth Judicial District also testified that Judge Becker would be a good judge if he did not have a problem with alcohol. A former law clerk for Judge Becker testified that Judge Becker's use of alcohol affected his judicial performance. Judge Becker himself admitted that his *293 conduct had probably seriously wounded the integrity of the judiciary.
During the hearing, there was evidence concerning Judge Becker's efforts to recover from his alcohol problem, including attendance and participation in AA, aftercare at the Walker Center, and relapse prevention therapy with Howard Carroll, a counselor.
The Council found that Judge Becker had not made an adequate commitment to recovery and was still denying the extent of his alcohol problem. The Council also found that there was a high risk that Judge Becker would use and abuse alcohol in the future. The Council concluded that Judge Becker's habitual intemperance, abuse of alcohol, and driving while under the influence of alcohol had tended to detract from public confidence in the integrity of the judiciary in violation of Canon 2(A) of the Code. The Council recommended to this Court that Judge Becker be removed from office as a district judge.
Prior to the hearing before this Court, the Court determined the issues presented in this proceeding. The Court determined these issues and notified the special examiner for the Council and counsel for Judge Becker pursuant to Rule 44(e) of the Council's Rules for the Removal, Discipline or Retirement of Judges. The Court approved Rule 44 in 1969. The issues determined by the Court are:
1. Was Judge Becker habitually intemperate?
The Council found that Judge Becker had abused alcohol. Judge Becker has admitted that he is addicted to alcohol. Therefore, we do not believe it is necessary to address the question of whether Judge Becker abused alcohol. Judge Becker has questioned, however, whether he was habitually intemperate, as the Council also found.
2. Did Judge Becker's conduct, including his conviction for driving under the influence, tend to detract from public confidence in the integrity of the judiciary?
While Judge Becker correctly points out that he received a withheld judgment instead of a judgment of conviction, we do not believe this distinction is relevant for the purposes of determining whether his conduct tended to detract from public confidence in the integrity of the judiciary. The withheld judgment indicates that Judge Becker pleaded guilty to driving under the influence.
3. What sanction should the Court impose on Judge Becker?
This assumes that some sanction is necessary. Because Judge Becker's attorney proposed to the Council rather strict conditions that would accompany Judge Becker's reinstatement to his judicial duties, we have accepted that some form of sanction is necessary to deal with Judge Becker's admitted addiction to alcohol and his driving while under the influence.
4. Does the fact that Judge Becker is an alcoholic affect what sanction the Court should impose on him?
5. Should the Court consider any prognosis for Judge Becker's recovery from alcoholism in fashioning a sanction?
At the hearing before this Court, the Court permitted Judge Becker and his relapse prevention therapist, Howard Carroll, to testify on the limited issue of Judge Becker's progress in his alcohol recovery program since the Council's hearing in November 1991. The testimony of Judge Becker and Howard Carroll indicated that Judge Becker had progressed in his recovery from alcohol addiction and that he had remained sober since his arrest for driving under the influence in July 1991. This testimony also indicated that Judge Becker still has much to do to overcome his addiction.

II.

THE PROCEDURES AND STANDARDS.
This is the first occasion the Court has had to address the procedures and standards the Court follows in considering the discipline, removal, or retirement of a judge since the enactment of I.C. § 1-2103 *294 in 1967 and the ratification of art. 5, § 28 of the Idaho Constitution in 1968. Cf. Pittam v. Maynard, 103 Idaho 177, 179, 646 P.2d 419, 421 (1982) (discussing the implicit repeal of I.C. § 19-4115  the procedure for removal of civil officers  insofar as this statute relates to district judges, by the adoption of art. 5, § 28, Idaho Const., and enactment of ch. 21, Title 1, I.C.).
Art. 5, § 28 states: "Provisions for the retirement, discipline and removal from office of justices and judges shall be as provided by law."
I.C. § 1-2103 provides:
Removal, disciplining, or retirement of judges or justices  Procedure [Effective until July 1, 1993].  A justice of the Supreme Court or judge of any district court, in accordance with the procedure prescribed in this section, may be disciplined or removed for wilful misconduct in office or wilful and persistent failure to perform his [or her] duties or habitual intemperance or conduct prejudicial to the administration of justice that brings judicial office into disrepute, or he [or she] may be retired for disability seriously interfering with the performance of his [or her] duties, which is, or is likely to become of a permanent character. The judicial council may, after such investigation as the council deems necessary, order a hearing to be held before it concerning the removal, discipline or retirement of a justice or a judge, or the council may in its discretion request the Supreme Court to appoint three (3) special masters, who shall be justices or judges, to hear and take evidence in any such matters, and to report their findings to the council. If, after hearing, or after considering the record and the findings and report of the masters, the council finds good cause therefor, it shall recommend to the Supreme Court the removal, discipline or retirement, as the case may be, of the justice or judge.
The Supreme Court shall review the record of the proceedings on the law and facts and in its discretion may permit the introduction of additional evidence and shall order removal, discipline or retirement, as it finds just and proper, or wholly reject the recommendation. Upon an order for retirement, the justice or judge shall thereby be retired with the same rights and privileges as if he [or she] retired pursuant to other provisions of law. Upon an order for removal, the justice or judge shall thereby be removed from office, and his [or her] salary shall cease from the date of such order.
All papers filed with and the proceedings before the judicial council or masters appointed by the Supreme Court, pursuant to this section, shall be confidential, provided, however, that if allegations against a judge are made public by the complainant, judge or third persons, the judicial council may, in its discretion, comment on the existence, nature, and status of any investigation. The filing of papers with and the giving of testimony before the council or the masters shall be privileged; but no other publication of such papers or proceedings shall be privileged in any action for defamation except that (a) the record filed by the council in the Supreme Court continues privileged and upon such filing loses its confidential character and (b) a writing which was privileged prior to its filing with the council or the masters does not lose such privilege by such filing. The judicial council shall by rule provide for procedures under this section, including the exercise of requisite process and subpoena powers. A justice or judge who is a member of the council or Supreme Court shall not participate in any proceedings involving his [or her] own removal, discipline or retirement.
This section is alternative to, and cumulative with, the removal of justices and judges by impeachment, and the original supervisory control of members of the judicial system by the Supreme Court.
The last sentence of I.C. § 1-2103 acknowledges that the Court has original supervisory control of judges. This authority arises by virtue of the judicial power that is vested in the Court by art. 5, § 2 of the Idaho Constitution. ("The courts shall constitute a unified and integrated judicial system *295 for administration and supervision by the Supreme Court.") Art. 5, § 13 of our constitution prohibits the legislature from depriving the Court of this supervisory power. ("The legislature shall have no power to deprive the judicial department of any power or jurisdiction which rightly pertains to it as a coordinate department of the government; ....")
As we view the intent and meaning of I.C. § 1-2103 in light of the ultimate authority of the Court, the statute provides the means by which the Council may initiate investigations of judicial conduct and make recommendations to the Court for discipline, removal, or disability retirement of judges. As the statute itself recognizes, the Court has the final authority to accept or reject the recommendation. The statute recognizes that the Court has the discretion to "order removal, discipline or retirement, as it finds just and proper." While the Council fills an important role in the process for considering the discipline, removal, or retirement of judges, this Court has the ultimate authority and responsibility to decide what should be done in each case based on our weighing of the evidence presented to the Council and any additional evidence the Court permits.
In assessing the evidence presented in this proceeding, we apply a clear and convincing burden of proof standard. Cf. Matter of Jenkins, 120 Idaho 379, 384, 816 P.2d 335, 340 (1991) (applying clear and convincing burden of proof standard in attorney disbarment and disciplinary actions). Both the Council and Judge Becker have agreed that this is the correct standard, and we concur.

III.

THE VIOLATION OF CANON 2(A).
In 1976, the Court adopted the Idaho Code of Judicial Conduct "to guide and govern the conduct of judges at all levels of the judicial system in the State of Idaho." Canon 2(A) of the Code states:
A judge should respect and comply with the law and should conduct himself [or herself] at all times in a manner that does not detract from public confidence in the integrity and impartiality of the judiciary.
In addition to Judge Becker's admitted addiction to alcohol and his driving while under the influence, the evidence is clear and convincing that Judge Becker has been habitually intemperate. The Council addressed the question of whether Judge Becker was habitually intemperate because of the provisions of I.C. § 1-2103. ("A justice of the Supreme Court or judge of any district court ... may be disciplined or removed for ... habitual intemperance. ...") Judge Becker's counsel has questioned whether this term is too vague for us to apply.
In the context of divorce cases, the legislature has defined "habitual intemperance" as "that degree of intemperance from the use of intoxicating drinks which disqualifies the person a great portion of the time from properly attending to business,...." I.C. § 32-608. Interpreting this statutory definition in De Cloedt v. De Cloedt, 24 Idaho 277, 133 P. 664 (1913), the Court stated that habitual intemperance "does not mean that a person would have to be drunk all the time, neither does it provide that [the person] shall be incapacitated from pursuing [the person's] usual labors during any particular hours, or any time, but does mean one who has a fixed habit of frequently getting drunk,.... It is sufficient that [the person] have the habit and that the habit is firmly fixed upon [the person]; that [the person] gets drunk with recurring frequency periodically, or that [the person] is unable to resist when opportunity and temptation is presented." Id. at 285, 133 P. at 666. The evidence demonstrates clearly and convincingly that Judge Becker was habitually intemperate during at least the latter part of 1990 and the early part of 1991.
After an independent review of the evidence presented to the Council, we find clear and convincing proof that Judge Becker's habitual intemperance, abuse of alcohol, and driving under the influence has detracted from public confidence in the integrity of the judiciary. This was confirmed *296 by the testimony of other judges in the Fifth Judicial District, as well as law enforcement officers and two prosecutors. Even Judge Becker admitted that his alcohol-related conduct probably seriously wounded the integrity of the judiciary.

IV.

THE JUST AND PROPER SANCTION.
After carefully considering the evidence presented to the Council and the additional evidence presented to the Court, we conclude that Judge Becker's removal is not the just and proper sanction in this case.
We have carefully studied the evidence presented to the Council, as well as the additional evidence presented to the Court. We have also carefully considered the recommendation of the Council. We are convinced that while Judge Becker's conduct detracted from the integrity of the judiciary, Judge Becker's addiction to alcohol, which has been the source of his misconduct, is a disease. It is a disease that cannot be cured, but it is a disease that can be treated and controlled.
The evidence before us convinces us that we must severely sanction Judge Becker to demonstrate that this Court places the integrity of the judiciary foremost among its concerns in exercising supervisory control of judges. We are also convinced that Judge Becker's removal would deprive the judicial system of an experienced judge who was elected by the voters in the Fifth Judicial District, and someone who can be a good judge if he can control his addiction to alcohol.
We believe it is just and proper, however, that our action include conditions that will assist Judge Becker in avoiding a relapse in his efforts to control his alcoholism and remain sober.
In this spirit, we suspend Judge Becker from his duties as a district judge, without salary, for a period of three months. During the suspension and the balance of his current term in office, Judge Becker shall comply with the following conditions:
1. Judge Becker shall not consume any alcohol.
2. Judge Becker shall submit himself to periodic blood tests, at his own expense, to determine whether he has consumed any alcohol. These blood tests shall be performed by a physician designated by the Court. Judge Becker shall report to this physician four times each week on a schedule established by the physician. The physician may require Judge Becker to submit to a blood test on each of these occasions, or on only selected occasions. In any event, the physician shall require Judge Becker to submit to a blood test at least once each week, and shall randomly vary the occasions when Judge Becker is tested. Immediately following each blood test, the physician shall give the Court written notice, signed by the physician, stating whether the blood test indicates that Judge Becker has consumed any alcohol.
3. Judge Becker shall attend and participate in at least two Alcoholics Anonymous sessions each week. Each month Judge Becker shall provide the Court written verification, signed by the chairperson or secretary of each session, of his attendance and participation in these sessions.
4. Judge Becker shall attend and participate in relapse prevention therapy with Howard Carroll, or another counselor who is at least as well qualified, at least once each week. Each month Judge Becker shall provide the Court written verification from the counselor of his attendance and participation in this therapy.
5. Judge Becker shall attend and participate in the aftercare program at the Walker Center once a week. Each month Judge Becker shall provide the Court written verification from the Walker Center of his attendance and participation in this program.
If, by means of any blood test administered pursuant to condition 2 above or by any other reliable means, Judge Becker is determined by the Court to have consumed any alcohol, the Court shall immediately *297 order his removal from office, without further proceedings before the Council or this Court. If Judge Becker fails, without good cause, to comply with conditions 2, 3, 4, or 5 above, the Court may immediately order his removal from office without further proceedings before the Council or this Court.
IT IS SO ORDERED.
BISTLINE, J., and WALTERS and TROUT, JJ., Pro Tem., concur.
McDEVITT, Justice, dissenting:
The gravamen of this proceeding is not a DUI charge or conviction, it is a knowing and willful violation of an order of this Court.
Judge Becker contacted a witness to the Judicial Council disciplinary proceedings and attempted to change or alter that person's testimony. This action by him strikes at the heart of our system. Removal is the only appropriate sanction.
Therefore, I dissent and permitte divis cetera.
ON DENIAL OF MOTION FOR LEAVE TO PRODUCE ADDITIONAL EVIDENCE AND PETITION FOR REHEARING
JOHNSON, Justice.
The Council has filed a motion for leave to produce additional evidence and a petition for rehearing.

THE MOTION FOR LEAVE TO PRODUCE ADDITIONAL EVIDENCE.
The motion requests leave to present the "new and additional testimony" of a witness "upon the grounds and for the reason that such testimony is critical to a proper determination of the issues in this action and was not known nor available to [the Council] until after this Court took testimony on April 14, 1992, regarding Judge Becker's alcohol recovery progress." The Council supports its motion with the affidavit of Gregory Shipman dated May 13, 1992. Shipman is the court reporter for District Judge James J. May of the Fifth Judicial District. Judge May is a member of the Council, but recused himself from the proceedings before the Council concerning Judge Becker. Judge Becker has objected to the introduction of this new evidence by the Council and has proposed to offer rebuttal evidence if the new evidence is permitted.
We first point out, as we did in our initial opinion, that the Court's authority in this proceeding derives from the Court's original supervisory control of judges vested in the Court by art. 5, § 2 of our state constitution. This is not an appeal from the Council. This Court has the ultimate authority and responsibility to decide what should be done in each case based on our weighing of the evidence presented to the Council and any additional evidence the Court permits.
As our initial opinion indicates, at the hearing before this Court, the Court permitted Judge Becker and his relapse prevention therapist to testify on the limited issue of Judge Becker's progress in his alcohol recovery program since the Council's hearing in November 1991. Although the Court invited the special examiner for the Council to present rebuttal evidence, the special examiner said he had none to offer.
This Court has consistently adhered to the rule that when a party seeks a new trial based on newly discovered evidence, "it is essential ... that such evidence has been discovered since the trial and that it could not have been discovered before or during the progress of the trial by the exercise of due diligence." Fredericksen v. Luthy, 72 Idaho 164, 168, 238 P.2d 430, 432 (1951); cf. I.R.C.P. 59(a)(4) (A new trial may be granted based on "[n]ewly discovered evidence, material for the party making the application, which [the party] could not, with reasonable diligence, have discovered and produced at the trial.") The party seeking a new trial on the grounds of newly discovered evidence bears the burden of establishing that the party could not have discovered the evidence before the trial by the exercise of due diligence. Grasser v. *298 First Security Bank of Idaho, 96 Idaho 754, 757, 536 P.2d 749, 752 (1975).
Although neither the prior decisions of this Court nor the rules promulgated by the Court concerning new trial motions govern this proceeding, we believe the principles embodied in our decisions and rules are appropriate to apply in this situation. Here, there is no showing that by the exercise of due diligence prior to this Court's hearing on April 14, 1992, the Special Examiner for the Council could not have discovered the new evidence the Council wishes to present. Therefore, we deny the motion for leave to produce additional evidence.

THE PETITION FOR REHEARING.
The Council filed its petition for rehearing pursuant to Rule 42 of the Idaho Appellate Rules. We first point out that because this is not an appeal, Rule 42 does not technically apply in this proceeding. We do, however, have inherent authority to consider the petition as a request for reconsideration of our decision.
Before issuing our initial opinion in this proceeding, we considered all of the issues the Council raises in the brief in support of its petition, except the request to present additional evidence, which we deny above. After reviewing the other issues presented in the Council's brief, we are not convinced to reconsider our decision. Therefore, we deny the petition.
IT IS SO ORDERED.
BISTLINE and McDEVITT, JJ. and WALTERS and TROUT, JJ. Pro Tem., concur.


735 F.2d 32
Basseter AUGUSTIN, Petitioner-Appellant,v.Charles C. SAVA, District Director of the New York Districtof the Immigration and Naturalization Service, and KevinDoyle, Deputy Assistant Director For Detention andDeportation of the Immigration and Naturalization Service,Respondents-Appellees.
No. 815, Docket 83-2326.
United States Court of Appeals,Second Circuit.
Argued Feb. 23, 1984.Decided May 22, 1984.

Robert B. Calihan, New York City (Richard E. Simpson, New York City, on the brief), for petitioner-appellant.
Michael P. DiRaimondo, Sp. Asst. U.S. Atty., Brooklyn, N.Y.  (Raymond J. Dearie, U.S. Atty., and Miles M. Tepper, Asst. U.S. Atty., Brooklyn, N.Y., on the brief), for respondents-appellees.
Before TIMBERS, NEWMAN and KEARSE, Circuit Judges.
TIMBERS, Circuit Judge:

1
Haitian refugee Basseter Augustin appeals from two orders entered on July 15, 1983 and August 26, 1983, and from the judgment entered thereon, in the Eastern District of New York, Eugene H. Nickerson, District Judge, denying his petition for a writ of habeas corpus which sought judicial review of an order of exclusion and deportation.

2
The district court, in rejecting appellant's claim that his due process rights had been violated, held that entering aliens have few, if any, due process rights;  that in this case a meaningful application for asylum was not made "utterly impossible";  and that the Immigration Judge (IJ) did not abuse his discretion in denying a continuance.  The court also rejected appellant's claim that he should have been placed in deportation proceedings rather than exclusion proceedings, holding that such claim had not been presented to the IJ or the Board of Immigration Appeals (BIA) and therefore had been waived.

3
This appeal raises important issues with respect to the procedural rights of aliens, including particularly the judicial duty to scrutinize the scope and accuracy of translations of immigration administrative proceedings.  We hold that Augustin's procedural rights were violated by the inadequate translation of his hearing before the IJ.  We remand to the district court with instructions to grant the writ unless a renewed asylum request is properly processed.

I.

4
Haitians began to arrive in the United States in the early 1970s.  Over the last ten years, around 40,000 have come to the United States, some fleeing political persecution and some fleeing destitution.  Attempting to sort out the genuine claims of persecution which justify political asylum has been a difficult task.  The attempt has generated much litigation.

5
Augustin claims that he came to this country to escape political persecution directed at himself and his family by paramilitary forces of the Haitian government.  He alleges that his cousin, Benjamin Janvier, angered the Tonton Macoutes by having one of their members arrested for the suspected poisoning of his father (Augustin's uncle).1   Janvier was severely beaten during his six month imprisonment.  He further angered the government by refusing, upon his release, to return to his former post with the Leopards, another paramilitary group.

6
Thereafter, Augustin's entire family was placed under surveillance, threatened, and periodically arrested.  In response, Augustin and Janvier initiated political activities against the Duvalier regime.  They formed a local opposition group which challenged the Tonton Macoutes and they participated in secret martial arts classes.  Augustin was detained and interrogated at Casearnes Arsenal on February 8, 1981.  He went into hiding several months after his release because he learned that the Haitian Army had arrested three other members of his family and was looking for him and Janvier.  The Army located Janvier and had him arrested.

7
On August 25, 1981, Augustin left Haiti in a small boat.  The boat sank off the Florida coast on October 26, 1981.  Thirty-three passengers (including Augustin's sister) drowned.  Augustin was carried by the current to the beach.  He attempted to help others involved in the sinking and then began walking into town.  He was arrested as he approached a Miami sidewalk with others from the boat.  After his arrest and initial processing by the Immigration and Naturalization Service (INS), he was taken to Krome Detention Center near Miami where he was held for nine months pursuant to an INS detention program.  Pro bono counsel Magda Montiel Davis was assigned to Augustin pursuant to a consent decree forbidding exclusion or deportation of Haitian refugees not represented by counsel.    Louis v. Meissner, 530 F.Supp. 924, 930 (S.D.Fla.1981).

8
Since Ms. Davis spoke no Creole and Augustin spoke no English, preparation for the hearing and the asylum petition required the services of a translator.  According to Ms. Davis, the INS promised to provide translating services but failed to do so at critical times.2   At other times it provided a translator who appears to have been inadequate.  The asylum form filed by Augustin and relied upon by the IJ, the BIA, and the State Department reflects the translator's misinterpretation that Augustin fled Haiti for fear of arrest because his uncle had a "disease".  Further interrogation of Augustin following the BIA hearing and his affidavit of April 13, 1983, however, make it clear that this "disease" theory was not the substance of his claim.

9
At the exclusion hearing held on July 7, 1982, Ms. Davis requested a continuance to allow her to obtain the material she needed from the translating service and adequately to prepare the petition for asylum.  She recited the failure of the translating service to send the translated letter or answers and its failure to appear for a meeting with her and Augustin as justification for the continuance.3   INS did not oppose the continuance application.

10
The IJ, however, denied the application, stating to Ms. Davis that "the Court will not be a party to keeping [Augustin] in further incarceration, and that is all I would be doing by putting this off."    He told Ms. Davis that she could question her client before him and that his answers would be made a part of the record.  Ms. Davis stated that she did not know who to call as witnesses to substantiate the political persecution claim.  The IJ responded that perhaps there were no witnesses to call.4   Faced with this situation, Ms. Davis announced that she was withdrawing from representing Augustin at the exclusion hearing.

11
The IJ proceeded to question Augustin about his excludability.  He asked him if he was a citizen of Haiti, when he arrived, how he arrived, whether he intended to remain in the United States for an indefinite period of time, and whether he had any papers issued by the United States.  For aught that appears in the record before us, only these questions and Augustin's answers, together with some statements from the IJ to Augustin, were translated into Creole.  The withdrawal of counsel and the denial of the continuance were not translated.  In addition to the limited scope of the translation, there is evidence of deficiencies in the translator's ability to translate.5   The translator's inattention toward translating became so apparent that the IJ directly questioned the translator as to whether he was repeating the IJ's words.  When Augustin was asked if he was a native of Haiti, the translator translated his answer as "I am not married yet, but I know I am the Haitian."    When Augustin was asked if he had anything to add, the translated response was "He said because I said everything before and then I have nothing to say today.  I will come back again here to call me for the other hearing."    The IJ, through the translator, could not make Augustin understand that this was the final hearing.  Indeed, it is difficult to assess the extent of the translator's accuracy because many long and complex questions by the IJ were answered by Augustin with an ambiguous "yes".6

12
The IJ also asked about the asylum claim.  At this point, Ms. Davis told the IJ that she had instructed Augustin not to answer.  The IJ announced that he would rely solely on material already in the record with respect to the asylum claim.

13
In an oral decision at the conclusion of the hearing on July 7, 1982, the IJ denied appellant's petition for political asylum on the ground that he had not established a well-founded fear of persecution within the meaning of 8 U.S.C. Sec. 1253(h)(1) (1982).  On January 28, 1983, the BIA affirmed.  It rejected Augustin's claim that he had been denied effective assistance of counsel and the right to present evidence.  It held that denial of the continuance was justified because Ms. Davis had not shown that she could not have been prepared to proceed with Augustin's claim by the time of the exclusion hearing and that she had not shown actual prejudice.

14
On March 22, 1983, appellant was served with a notice requiring him to surrender on April 14, 1983.  He filed a petition for a writ of habeas corpus in the Eastern District of New York on April 13, 1983, seeking judicial review of the order of exclusion and deportation.7

15
On June 24, 1983, in a written decision and order, Judge Nickerson denied the petition.  He held that the IJ did not abuse his discretion or deny appellant due process by denying his request for a continuance, and that Augustin had waived his claim that he should have been placed in deportation proceedings rather than exclusion proceedings by failing to raise that claim before the IJ or BIA.  A motion to amend that decision and order was denied on August 19, 1983 except for a minor correction.

16
From the judgment entered on the district court's orders, the instant appeal has been taken.  Appellant claims that his statutory and due process rights have been violated.

II.

17
The power to admit or exclude8 aliens is a fundamental sovereign attribute.9   An alien who petitions for initial admission to the United States is requesting a privilege.    E.g., Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 216 (1953).  But an alien who is present in the United States, even illegally, is entitled to constitutional protections.10   See, e.g., Mathews v. Diaz, 426 U.S. 67, 77 (1976).  Rather than forcing an alien to remain outside the United States while a petition for admission is pending, the courts, although unwilling to grant constitutional protection to such petitioners, have created an "entry doctrine" fiction.  An unofficial entry is permitted which has no effect on the "unadmitted" alien's status, because it does not constitute a legal entry even though the alien is physically present in the United States.    Leng May Ma v. Barber, 357 U.S. 185, 188 (1958).11

18
Although aliens who petition for admission have no constitutional rights regarding their applications,12 they do have such statutory rights as Congress grants.  The Immigration and Nationality Act, as amended by the Refugee Act of 1980, 8 U.S.C. Sec. 1101 et seq.  (1982), and federal regulations promulgated thereunder, afford certain procedural and substantive entitlements to excludable aliens.  Under 8 U.S.C. Sec. 1226(a), an alien who seeks entry is entitled to a hearing before an Immigration Judge on the validity of his application.  At the hearing the alien has the right to present evidence, to cross-examine witnesses, and to examine and object to evidence offered against him.  8 C.F.R. Sec. 236.2(a) (1983).  He has the right to counsel.  8 U.S.C. Sec. 1362.  Most pertinent to Augustin's case, the INS regulations contemplate that proceedings and documents in a foreign language will be accurately translated.  8 C.F.R. Sec. 242.12 ("Any person acting as interpreter ... shall ... translate accurately");  id. Sec. 103.2 ("A foreign document must be accompanied by an English translation ....  The translator must certify ... that the translation is accurate").  These procedural protections plainly apply to hearings on applications for asylum.  Although a grant of asylum is discretionary,13 the Act creates a right to petition for such relief.14   Congress clearly intended to " 'grant aliens the right to submit and the opportunity to substantiate their claim for asylum.' "    Jean v. Nelson, supra note 5, 727 F.2d at 982, (quoting Haitian Refugee Center v. Smith, supra, 676 F.2d at 1038).

19
Moreover, these elemental procedural protections may well be required not only by the pertinent statutes and regulations but also by the due process clause of the Fifth Amendment.  In the absence of protected interests which originate in the Constitution itself, constitutionally protected liberty or property interests may have their source in positive rules of law creating a substantive entitlement to a particular government benefit.    E.g., Meachum v. Fano, 427 U.S. 215, 226 (1976).  In such a case, limited due process rights attach.    E.g., Wolff v. McDonnell, 418 U.S. 539, 577 (1974).  8 U.S.C. Sec. 1253(h) prohibits the Attorney General from deporting or returning an alien to a country in which his life or freedom would be jeopardized.  This statute creates a substantive entitlement to relief from deportation or return to such a country.  Thus, despite the unavailability of due process protections in most exclusion proceedings, see Landon v. Plasencia, supra, and whether or not due process protections apply to an application for a discretionary grant of asylum, which secures admission to this country, compare Jean v. Nelson, supra note 5 (no due process rights) with id. at 989-90 (Kravitch, J., dissenting in part) (some due process rights), it appears likely that some due process protection surrounds the determination of whether an alien has sufficiently shown that return to a particular country will jeopardize his life or freedom so as to invoke the mandatory prohibition against his return to that country.  As we recently observed, an alien's "interest is not being returned [to a country where he fears persecution] may well enjoy some due process protection not available to an alien claiming only admission."    Chun v. Sava, 708 F.2d 869, 877 (2 Cir.1983).

20
The requirements of the due process clause are flexible and dependent on the circumstances of the particular situation examined.    E.g., Hewitt v. Helms, 459 U.S. 460, 472 (1983).  Without attempting precisely to map the contours of due process in the immigration area, we think that the protected right to avoid deportation or return to a country where the alien will be persecuted warrants a hearing where the likelihood of persecution can be fairly evaluated.  Since Congress intended this right to be equally available to all worthy claimants without regard to language skills, we think that an applicant for relief under Sec. 1253(h) must be furnished with an accurate and complete translation of official proceedings.  As a sequel to this right, translation services must be sufficient to enable the applicant to place his claim before the judge.  A hearing is of no value when the alien and the judge are not understood.    Gonzales v. Zurbrick, 45 F.2d 934, 937 (6 Cir.1930).15   The very essence of due process is a "meaningful opportunity to be heard".    Hewitt, supra, 459 U.S. at 490 (Stevens, J., dissenting).  To erect barriers by requiring comprehension of English would frustrate the inclusive aim of the UN Protocol and the intent of Congress.

21
If Augustin understood English, he would have realized that his asylum application did not state his true claim.  This in turn might well have induced him to place his complete claim on the record, particularly if he had understood that this was the final hearing and his last opportunity to substantiate his claim.16   Knowledge that his attorney had "withdrawn" from the proceeding because the IJ failed to grant a continuance also might have shaped his conduct differently.

22
We hold that appellant was denied procedural rights protected by statute and INS regulations and very likely by due process as well where the translation of the asylum application was nonsensical, the accuracy and scope of the hearing translation are subject to grave doubt, appellant misunderstood the nature and finality of the proceeding, and a credible claim which developed following translation was not reviewed.    See Gonzales v. Zurbrick, supra (inadequate translation in deportation hearing);  see also United States ex rel. Negron v. New York, 434 F.2d 386 (2 Cir.1970) (inadequate translation in state court criminal trial).  Augustin's true claim has not been given any scrutiny, either by the Board of Immigration Appeals or the State Department.  We agree with the Ninth Circuit that "[i]t is particularly important that an applicant for relief under 243(h) have a reasonable opportunity to present his proofs, for the stakes are high."    Kovac v. INS, 407 F.2d 102, 108 (9 Cir.1969).

23
We reverse and remand to the district court with instructions to release Augustin from custody unless within sixty days the INS affords him an opportunity to initiate a new asylum application and affords him a hearing, with counsel, in conformity with applicable statutes and regulations and in accordance with this opinion.

24
The mandate shall issue forthwith.

25
Reversed and remanded.

1
 The Tonton Macoutes (Volontaires de la Securite Nationale) are paramilitary forces supporting Haitian President Jean Claude Duvalier.  They frequently are held responsible for illegal arrests and extrajudicial executions.  As one court has stated, the Tonton Macoutes "did indeed make persons disappear.  The bad persons visited by the Macoutes, however, were not criminals, but enemies of Duvalier....  [V]irtually any encounter with a member of the security forces is a political encounter."    Haitian Refugee Center v. Civiletti, 503 F.Supp. 442, 497, 500 (S.D.Fla.1980), modified sub nom.  Haitian Refugee Center v. Smith, 676 F.2d 1023 (5 Cir.1982)

2
 Ms. Davis claims that twice before the exclusion hearing she gave the translator a set of written questions for Augustin, to be returned with his answers.  The service repeatedly promised (up to the day before the hearing) to send Ms. Davis the translated answers, but never did so.  The service also failed to deliver to Ms. Davis its translation of a letter from Augustin providing information relevant to the asylum claim

3
 Ms. Davis also says that her ability to prepare was impaired because background materials which the Dade County Bar Association (sponsor of the pro bono representation program) had promised to send arrived only the day before the scheduled hearing

4
 Appellant has since produced a list of witnesses presently in the United States

5
 Our Court is not the first to be concerned with the ability of Creole translators in Haitian immigration proceedings.  In Jean v. Nelson, 711 F.2d 1455, 1463 (11 Cir.1983), vacated, 727 F.2d 957 (11 Cir.1984) (en banc), the Eleventh Circuit stated that "[o]verwhelming evidence established that Creole translators were so inadequate that Haitians could not understand the proceedings nor be informed of their rights."    See Louis v. Meissner, supra, 530 F.Supp. at 927

6
 To compound our difficulty, we are unable to verify the accuracy of the translations because apparently there are no tapes or Creole transcriptions

7
 An alien may challenge a final order of exclusion in a United States District Court by filing a petition for a writ of habeas corpus.  8 U.S.C. Sec. 1105a(b) (1982)

8
 Aliens who have reached the United States border but have not been formally admitted (even though they in fact may be physically present in the United States) are "excludable" or "unadmitted" aliens and are processed in exclusion proceedings.  The fiction that aliens present in the United States have not "entered" is called the "entry doctrine".  Aliens who have effected an entry, whether legal or illegal, are "deportable" or "resident" aliens and are processed in deportation proceedings

9
 Although courts hesitate to intervene in this area, judicial review nevertheless is appropriate to determine "whether the statutory procedures which govern exclusions have been observed and whether [petitioner] has been accorded a fair hearing thereunder."    United States ex rel. Shung v. Murff, 176 F.Supp. 253, 257 (S.D.N.Y.1959), affirmed per curiam, 274 F.2d 667 (2 Cir.1960)

10
 Since Augustin effected an illegal entry in Florida before he was detained, he arguably is a member of this class.  Immigration officials placed him in an exclusion proceeding, however, and counsel failed to raise this argument before the IJ or the BIA.  Thus it has been waived.    Der-Rong Chour v. INS, 578 F.2d 464, 468 (2 Cir.1978), cert. denied, 440 U.S. 980 (1979)

11
 The ironic result of this "entry doctrine" fiction is that illegal entrants are accorded many more procedural and substantive rights than aliens who properly petition for entry

12
 See Landon v. Plasencia, 459 U.S. 21, 32, (1982)

13
 8 U.S.C. Sec. 1158(a) provides that an 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 [8 U.S.C. Sec. 1101(a)(42)(A) ]."

14
 In Haitian Refugee Center v. Smith, supra, the Fifth Circuit held that due process protection attached to the right to petition for asylum.  676 F.2d at 1038.    But see Jean v. Nelson, supra note 5, 727 F.2d  at 982 n. 34.  (disavowing any language in Haitian Refugee Center that might be read to suggest that excludable aliens have constitutional rights under the Fifth Amendment with regard to applications for admission or asylum)

15
 But see Kaoru Yamataya v. Fisher [The Japanese Immigrant Case], 189 U.S. 86, 101-02 (1903)

16
 The INS argues that Augustin was given every opportunity to present his asylum claim, but that he and his counsel strategically decided that they would not attempt to prove the merits of that claim.  We are not persuaded by this argument.  First, it is difficult to fathom what strategic purpose there could be in silence.  The burden of substantiating a claim for asylum rests on the petitioner.  The instant asylum application clearly was insufficient to meet that burden.  Second, Augustin's ability to make such a strategic judgment clearly was jeopardized when his attorney had "withdrawn," and her discussion with the IJ and his denial of a continuance were not translated into Creole


258 N.W.2d 155 (1977)
Sharon K. GILLIAM, Appellant,
v.
William James GILLIAM, Appellee.
No. 2-57012.
Supreme Court of Iowa.
October 19, 1977.
Patterson, Lorentzen, Duffield, Timmons, Irish & Becker, Des Moines, for appellant.
Maurer & Jones, Ames, for appellee.
Submitted to MOORE, C. J., and RAWLINGS, REES, HARRIS and McCORMICK, JJ.
RAWLINGS, Justice.
On plaintiff-initiated contempt citation for nonpayment by defendant of divorce decree required child support, trial court cancelled past due arrearages and granted defendant credit for the plaintiff-obtained cash value of insurance coverage on defendant's life. Plaintiff appeals. We reverse.
Plaintiff (Sharon) and defendant (William) were divorced January 30, 1968, and by the decree entered William was required to make fixed child support payments to Sharon.
May 7, 1970, the aforesaid decree was modified in such manner as to release William from his previous obligation to maintain health and accident coverage for benefit of the children, and existing insurance on his life wherein the children were named beneficiaries. This modification provided, however, that in event William should choose to have benefit of release from his duty to pay premiums on the life policy, or otherwise cancel same, then Sharon could electively assume ownership of the policy. *156 Sequentially the policy was effectively given by William to Sharon and she later obtained $703.26, the cash surrender value thereof. In the interim Sharon paid premiums owing.
From January 11, 1968, until commencement of the instant contempt proceeding, William repeatedly failed to pay all child support owing by him. Although several proceedings were started in an effort to compel payment they never reached the hearing stage because of Sharon's reliance upon William's evasive promises. Finally on May 16, 1973, Sharon caused issuance of an order requiring William to show cause why he should not be punished for contempt. July 21, 1973, hearing was had and at close thereof trial court found William not in contempt. As a preface thereto the court cancelled William's obligation regarding support money accrued and owing by him prior to March 21, 1972. Additionally, trial court credited the above noted cash surrender value of William's life insurance coverage, obtained by Sharon, against accumulated support money due.
These are the issues presently raised by Sharon:
(1) Did trial court err in barring Sharon's recovery rights as to past due support money owing by William?
(2) Did trial court erroneously credit the cash surrender value of a policy owned by Sharon on William's life against child support owing by him under terms of the divorce decree?
I. Initially entertained is the last above stated issue.
By process of a modification of the original divorce decree Sharon, as aforesaid, acquired the policy of insurance on William's life and he, in exchange, was relieved of all responsibility for payment of attendant premiums. This means that if William had thereafter died leaving a substantial estate but owing accrued child support, the children as named beneficiaries would have been entitled to the insurance proceeds. Further, in such event, Sharon could still recover from William's estate all past due child support arrearages absent any offset for proceeds derived from the policy on William's life. It therefore follows that trial court, as an adjunct of the contempt proceeding, essentially modified the divorce decree by revesting in William all rights in the insurance proceeds realized from the same insurance policy of which he had fully divested himself.
But the court below was not confronted with a proceeding under the last sentence of section 598.21, The Code 1973, for modification of any prior decree. Consequently, disregarding substantive and procedural due process requirements not presently raised, trial court overreached in converting a contempt citation into a modification proceeding. Roach v. Oliver, 215 Iowa 800, 804-805, 244 N.W. 899, 901-902 (1932). See also Jennings v. Jennings, 56 Iowa 288, 291, 9 N.W. 222, 223 (1881). On this issue alone equity dictates a reversal.
II. The same precept, precluding modification in a contempt hearing alone, comes into play with equally dispositive force as to trial court's unjustifiable cancellation of past due child support owing by William. Briefly stated, Anthony v. Anthony, 204 N.W.2d 829, 834 (Iowa 1973), relied upon by William, is factually inapposite.
Furthermore, had this appeal stemmed from a modification of decree proceeding, trial court possessed no authority to exonerate liability for any or all then past due and accrued decretal support payments. As aptly articulated in Wren v. Wren, 256 Iowa 484, 489, 127 N.W.2d 643, 646 (1964):
"Modification of a decree for support payments operates prospectively and not retrospectively. The right to modify does not authorize the court to divest the parties of rights accrued under the original decree. Delbridge v. Sears, 179 Iowa 526, 530-533, 160 N.W. 218; Kell v. Kell, 179 Iowa 647, 651, 161 N.W. 634. Even where a decree is modified and a change is made the payments that have accrued up to that time cannot thereby be affected. Walters v. Walters, 231 Iowa 1267, *157 1270, 3 N.W.2d 595; Kell v. Kell, supra; Horn v. Horn, 221 Iowa 190, 197, 265 N.W. 148."
See also Pucci v. Pucci, 259 Iowa 427, 431, 143 N.W.2d 353, 356 (1966); Guthrie v. Guthrie, 429 S.W.2d 32, 36 (Ky.1968); Kinsella v. Kinsella, 181 N.W.2d 764, 770 (N.D. 1970).
Here again error attended the presently controverted portion of trial court's adjudication.
III. Sharon also asks that fair and reasonable attorney's fees be awarded for the preparation and presentation of the instant appeal.
This matter is passed for the moment. But if on remand William shall be adjudged in contempt then trial court may, pursuant to Code § 598.24, fix and award reasonable attorney's fees for plaintiff in connection with all involved contempt proceedings, including this appeal. Of course, we do not intimate what, if any, attorney's fee allowance shall be thus made.
This case is reversed and remanded with instructions to strike the adjudication from which appeal is taken and for further appropriate proceedings not inconsistent with the above holdings.
Reversed and remanded with instructions.