Gormley v. Ashcroft

Decision Date22 April 2004
Docket NumberNo. 02-74091.,02-74091.
Citation364 F.3d 1172
PartiesMichael Andrew GORMLEY; Edith Carol Gormley, Petitioners, v. John ASHCROFT, Attorney General, Respondent.
CourtU.S. Court of Appeals — Ninth Circuit

Carol L. Edward and Eric P. Lin, Seattle, WA, for the petitioners.

Blair T. O'Connor, United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency Nos. A77-855-502, A77-855-503.

Before: CANBY, WARDLAW, and GOULD, Circuit Judges.

WARDLAW, Circuit Judge:

Michael and Edith Gormley, natives and citizens of South Africa, petition for review of the Board of Immigration Appeals' ("BIA") final order affirming without opinion the Immigration Judge's ("IJ") denial of their applications for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). The Gormleys do not contest the BIA's CAT ruling, but argue that the implementation of South Africa's Employment Equity Act 55 of 1998 ("the Act"), designed to ameliorate past discrimination against the country's black population, has resulted in their economic persecution on account of their race by causing them to lose their longtime jobs and rendering them unable to secure new ones. Mr. Gormley additionally claims that he experienced criminal persecution on account of his race when he was twice robbed by black men, and both he and his wife contend that they fear further criminal attacks if forced to return to South Africa. Because substantial evidence supports the BIA's decision, we deny the Gormleys' petition.

BACKGROUND

Michael and Edith Gormley entered the United States as non-immigrant "B-2" visitors for pleasure on June 4, 1999, and received authorization to remain in the country until November 3, 1999. On August 6, 1999, Mr. Gormley filed an Application for Asylum and Withholding of Removal with the former Immigration and Naturalization Service ("INS"), and included his wife on the application. In an affidavit attached to the asylum application, Mr. Gormley claimed a fear of persecution "because of an actual and imputed political opinion ... because [he and his wife] are white." Specifically, Mr. Gormley stated that the new South African government "adopted a constitution which gives job preferences to blacks and, therefore, discriminates against whites solely because of their race." He further claimed that, due to the South African government's "aggressive implementation" of the "new constitutional affirmative action requirements," he is unable to "obtain, and hold, proper employment such that [he] could support [his] family because [he is white]."

In addition to advancing this claim of economic persecution, Mr. Gormley noted that since the fall of apartheid "crime in South Africa has escalated at an alarming rate," and stated that "[i]t is because of this violent, rampant crime that [he] believe[s] that [he] would be in danger of being persecuted if [he] were returned to South Africa." Mr. Gormley recounted two crimes from which he suffered, purportedly due to the fact that he is white. The first occurred in December 1998, and involved the theft of his cell phone by three black men. The second crime took place six months later and was perpetrated by "six black teenage youths armed with steak knifes" who stole his cell phone and his watch. Mr. Gormley also stated that in June 1999, he was nearly the victim of a third crime at the hands of two black men, but "they were deterred by an approaching car guard" (an unemployed person who watches others' cars for tips).

On January 3, 2000, the INS commenced removal proceedings against the Gormleys by filing Notices to Appear in immigration court. The INS alleged that the Gormleys were subject to removal under 8 U.S.C. § 1227(a)(1)(B), as aliens who had remained in the United States beyond the time permitted. At their removal hearings, the Gormleys admitted the factual allegations against them, conceded removability, and renewed their applications for asylum, withholding of removal, and protection under CAT.

On May 4, 2000, the Gormleys testified before the IJ regarding their alleged persecution in South Africa. Mr. Gormley stated that after graduating from high school he worked as a scaffolding contract supervisor for 27 years. In October 1998, he "was laid-off because [his] company had adopted a[n] affirmative action production policy[pursuant to the Act] and [he] was told that [he] needed to leave to make way for a black man." Mr. Gormley's employer provided him with severance pay equal to nine months' salary, as well as his life-time pension fund contributions. He also received government-disbursed unemployment compensation for nine months.

Like Mr. Gormley, Mrs. Gormley stated that she had been laid-off from her longtime job due to the race-based discrimination wrought by the Act. Before losing her job in March 1995, Mrs. Gormley had worked at Parcel Express, a government department, for 14 years. Mrs. Gormley stated that she had been laid-off "because we had to make way ... for black people because of affirmative action." She also received unemployment benefits from the government, but for only six months.

After being laid-off, Mrs. Gormley sought other employment, including as a street hot-dog vendor, but was told that "there was no work available for the white." Mr. Gormley looked for work as a moving person, a dishwasher, a janitor, and a car guard. He also attempted to start his own business. Mr. Gormley testified that in each instance he was unable to gain employment, or small business funding, because he is white. He opined that if he was forced to return to South Africa, he would not be able to secure himself a home due to his inability to find work.

Mr. Gormley further testified that his brother, James, had been laid-off from his job despite 25 years of employment and had not been able to obtain another one. Although Mr. Gormley's two sons were employed in South Africa at the time of the removal hearing, he indicated that both had been told they might be required to forfeit their positions due to the Act. Also, Mr. Gormley stated that "[a] lot of[his white friends in South Africa] ha[d] lost their jobs," and that "[m]ost of them have not been able to secure new jobs." "Some" of Mr. Gormley's black friends had also lost their jobs, "but many are still employed."

In addition to testifying about his purported economic persecution, Mr. Gormley recounted the two criminal attacks to which he was subjected, as well as the botched third attempt to which he nearly fell victim. He stated his opinion that he was singled out for these crimes because he is "a white person and a soft target." By "soft target," Mr. Gormley indicated that he meant a target who had "lived a pretty sheltered life [under apartheid] and [who had become] soft as a result of this." Mrs. Gormley testified that, although she has never been the victim of a crime, she believed that she would be if forced to return to South Africa.

After hearing from the Gormleys, the IJ entered an oral decision denying their petition for asylum, withholding of removal, and protection under CAT. The IJ accepted the Gormleys' factual statements, but rejected their opinion testimony regarding the race-based motives for Mr. Gormley's criminal attacks and their belief that, if returned to South Africa, they would be unable to obtain employment and be subjected to further criminal attacks. The IJ found that the Gormleys failed to establish an objective basis for their claim. First, the IJ determined that nothing in the administrative record indicated that the assailants in Mr. Gormley's criminal attacks "were motivated by anything other than the opportunity to enrich themselves[;] ... the fact that Mr. Gormley [is] a white man was not the factor which led to their actions." Second, the IJ found that the Gormleys had not suffered economic persecution on the basis of their race. In making its ruling, the IJ noted that the Gormleys had received both severance pay and unemployment benefits, and cited as evidence contravening their economic persecution claim the State Department's assessment that the post-apartheid distribution of wealth "remains highly skewed among racial lines," Bureau of Democracy, Human Rights, and Labor, United States Dep't of State, 1999 Country Report on Human Rights Practices — South Africa, 1 (Feb. 25, 2000) ("1999 South Africa Country Report"). In addition to this report, the IJ admitted into evidence a letter from Kwa-Zulu Natal state legislator Constance Galea, which stated that "the new [South African] government has had to install work and labor legislation to rectify the imbalances of the past and to create a program of upliftment for the previously disadvantaged sections of the South African community, i.e., the black community." Galea further indicated that, due to a poor economy and an unemployment rate of 38 to 40 percent, there have been many lay-offs and finding a replacement job is "extremely difficult." The BIA affirmed the IJ's decision without opinion.

JURISDICTION

Because the Gormleys' removal proceedings began after April 1, 1997, their petition is governed by the permanent rules of the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), as amended, Pub.L. No. 104-302, 110 Stat. 3656 (Oct. 11, 1996). See Kalaw v. INS, 133 F.3d 1147, 1149-50 (9th Cir.1997). We, therefore, have jurisdiction over the Gormleys' final removal order pursuant to 8 U.S.C. § 1252(a)(1).

STANDARD OF REVIEW

Where, as here, the BIA affirms the IJ's decision without issuing an opinion, the IJ's decision becomes the BIA's decision. See Thomas v. Ashcroft, 359 F.3d 1169, 1174 (9th Cir.2004); 8 C.F.R. § 1003.1(a)(7). Because the IJ found the Gormleys' factual testimony to be credible and the BIA made no contrary...

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