Dhine v. Slattery

• Citation: 3 F.3d 613
• Decision Date: 26 August 1993
• Docket Number: Nos. 1986,D,2055,s. 1986
• Parties: Lulseged DHINE, Petitioner-Appellee-Cross-Appellant, v. William SLATTERY, District Director, New York District, Immigration & Naturalization Service, Respondent-Appellant-Cross-Appellee. ockets 93-2326, 93-2352.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 613

3 F.3d 613

Lulseged DHINE, Petitioner-Appellee-Cross-Appellant, v. William SLATTERY, District Director, New York District,

Immigration & Naturalization Service,

Respondent-Appellant-Cross-Appellee.

Nos. 1986, 2055, Dockets 93-2326, 93-2352.

United States Court of Appeals, Second Circuit.

Argued July 16, 1993.

Decided Aug. 26, 1993.

Douglas W. Baruch, Washington, DC (Milton Eisenberg, Jordan S. Fried, Fried, Frank, Harris, Shriver & Jacobson, Washington DC, of counsel), for petitioner-appellee-cross-appellant.

Diogenes P. Kekatos, New York City (Mary Jo White, U.S. Atty., S.D.N.Y., James A. O'Brien, III, Sp. Asst. U.S. Atty., Gabriel W. Gorenstein, Asst. U.S. Atty., of counsel), for respondent-appellant-cross-appellee.

Before: MAHONEY, McLAUGHLIN and JACOBS, Circuit Judges.

JACOBS, Circuit Judge:

Following the denial of his application for asylum status, Lulseged Dhine successfully petitioned the United States District Court for the Southern District of New York (Haight, J.) for a writ of habeas corpus ordering the Immigration and Naturalization Service ("INS") to grant Dhine political asylum. 818 F.Supp. 671 (1993). The INS appeals from the grant of the petition. Dhine cross-appeals the district court's ruling that, because Dhine had never "entered" the country as that term is defined under the immigration laws, he was not entitled to the procedural advantages of a deportation hearing and his status was therefore properly determined by the INS in an exclusion hearing. We conclude, as did the district court, that Dhine is subject to exclusion rather than deportation; however, because the district court erred in holding that the INS abused its discretion in denying asylum, we reverse the order of the district court.

FACTS

Dhine is an Ethiopian national and citizen who came to this country in 1978. At that time, Dhine was admitted as a "conditional refugee" pursuant to section 207(a)(7) of the Immigration and Nationality Act of 1952 as amended, 8 U.S.C. Sec. 1153(a)(7) (1976), which then provided for the conditional entry of aliens who could demonstrate that they had escaped from a communist-controlled country and were unwilling to return because they feared persecution on the basis of one or more enumerated factors, including religion. Dhine, who is Jewish, had fled the communist dictatorship of Mengistu Haile Mariam and feared returning to Ethiopia because that regime persecuted members of the Jewish community.

Since coming to this country at age 16, Dhine has been convicted of seven crimes, most of them drug related. On November 22, 1982, he was convicted for possession of marijuana, and sentenced to six months probation. During that probation period, on April 27, 1983, he entered a plea of guilty to receiving stolen property, and was sentenced to time served. On February 26, 1988, he entered a plea of guilty to attempted distribution of marijuana, and was sentenced to 180 days imprisonment (120 days of which were suspended) and one year of probation. Probation was revoked on July 14, 1988, and he was sentenced to 120 days imprisonment. On November 3, 1988, Dhine entered a plea of guilty to attempted possession of cocaine, and was sentenced to 90 days imprisonment. On the same day, he entered a plea of guilty for failure to appear, and was sentenced to 180 days imprisonment. On January 12, 1989, he was again charged with a failure to appear; on conviction for that offense, he was sentenced to 180 days imprisonment. On March 6, 1990, Dhine entered a plea of guilty to possession of cocaine, and was sentenced to a year's imprisonment. All or most of these proceedings were conducted in the District of Columbia.

In September 1990, while Dhine was apparently still serving the sentence for his most recent conviction, the INS took Dhine into custody and charged him as being excludable under 8 U.S.C. Sec. 1182(a)(23) (1988). Dhine received a hearing in front of an Immigration Judge of the INS. At that hearing, Dhine conceded his excludability, but sought asylum based on his claimed fear of persecution by the Mengistu regime, and applied for "withholding of deportation or return" under 8 U.S.C. Sec. 1253(h)(1) (1988), which bars the INS from repatriating an alien if the INS determines that the alien's life or freedom would be threatened there on account of race, religion, nationality, membership in a particular social group, or political opinion. The INS contended that Dhine was not entitled to asylum, and that Dhine was subject to the exception under 8 U.S.C. Sec. 1253(h)(2) for aliens who are convicted of an "aggravated felony" or a "particularly serious crime."

Dhine testified that, before he fled Ethiopia, he learned from neighbors that government officials killed his father, mother and brother because his father had refused to turn over his land and religious articles and to accept in return a book of sayings attributed to the late Chinese dictator Mao Tse-tung. Dhine testified that he then tried to escape the country, but was captured, beaten and jailed by the authorities. Dhine later made good his escape, by way of Sudan, Djibouti and France, and arrived in the United States under the sponsorship of a charitable organization.

In an oral decision rendered after the hearings, Immigration Judge Alan L. Page found that Dhine had a well-founded fear of persecution and was therefore eligible for asylum. The Immigration Judge nonetheless exercised discretion to deny Dhine's application chiefly on the ground of Dhine's criminal record:

Although I am satisfied that he has met this burden [as to a fear of persecution], as a matter of discretion I do not believe that he is entitled to [asylum]. He has no family in this country. His history of employment is totally uncorroborated. No tax returns were submitted. But most importantly, his criminal history is very severe and is a very adverse factor in this proceeding. As a matter of discretion, I will not grant him asylum.

The Immigration Judge also held that the INS need not withhold deportation or return to Ethiopia, regardless of any peril he may face there, because Dhine's convictions were for "serious crimes", a determination that renders unavailable the protection of 8 U.S.C. Sec. 1253(h)(1).

The Board of Immigration Appeals ("BIA") affirmed the Immigration Judge's decision on September 26, 1991, but remanded the case to the Immigration Judge for a finding as to whether Dhine's fear of persecution continued to be well founded in light of intervening events in Ethiopia, including the fall of the Mengistu regime, the airlift of thousands of Ethiopian Jews to Israel, and the installation of a new governing coalition that had promulgated a charter endorsing basic human rights. The BIA also held that Dhine was not eligible for protection under 8 U.S.C. Sec. 1253(h)(1) because he had been convicted of an "aggravated felony" within the meaning of Sec. 1253(h)(2). The BIA did not, however, decide whether Dhine's convictions were for "serious crimes," a finding that also would have defeated Dhine's efforts to avoid his return to Ethiopia.

On remand before the Immigration Judge, Dhine testified that the new regime in Ethiopia was "very dangerous to the Jewish community," and that if he returned to Ethiopia he would be imprisoned for practicing his religion and "could be murdered." On October 23, 1991, the Immigration Judge issued a further opinion, which considered the change of regime in Ethiopia, the array of issues bearing upon the exercise of discretion, and new submissions and arguments by Dhine concerning the efforts he had made while in INS custody since September 1990 to overcome his drug problem and otherwise reform himself. The Immigration Judge exercised discretion to deny asylum chiefly in light of Dhine's criminal history, notwithstanding potential risks facing Dhine in Ethiopia.

On the appeal following remand, the BIA affirmed but did so principally on different grounds. In its March 17, 1992 decision, the BIA held that the change of regime in Ethiopia required Dhine to make a new showing that he would face persecution if he were returned, but that Dhine "offered no documentary or testimonial evidence that the present government of Ethiopia has persecuted Jews." In addition, relying on a State Department publication, the BIA noted that the government of Ethiopia now espoused freedom of religion and was currently allowing free passage to Israel for Jews wishing to leave Ethiopia. In light of this evidence, the BIA ruled that, discretionary considerations aside, Dhine had failed to show that he was eligible for asylum. In the alternative, the BIA decided that it "would not grant asylum in the exercise of discretion even if [Dhine] established a well-founded fear of persecution."

The BIA also considered whether Dhine was entitled to withholding of deportation or return, under 8 U.S.C. Sec. 1253(h)(1). By reason of statutory changes, the BIA's previous designation of Dhine as an aggravated felon was no longer tenable; however, the BIA recited that it did not have to consider further the impact of 8 U.S.C. Sec. 1253(h)(1) because in any event Dhine had failed to demonstrate a well-founded fear of persecution under the new Ethiopian regime.

The petition for a writ of habeas corpus was filed on March 20, 1992. Dhine argued to the district court that he was eligible for asylum; that the BIA erred in holding otherwise; that the BIA had wrongly placed upon Dhine the burden of showing continued persecution of Jews under the new Ethiopian government; and that it was an abuse of discretion for the Attorney General to deny asylum. Dhine also contended that, in any event, he was entitled to have his application for asylum evaluated in a deportation proceeding, which is procedurally more advantageous to the alien than an exclusion proceeding. The district court held that the INS had properly conducted its proceeding as one for exclusion (rather...