Scheerer v. U.S. Atty. Gen., 04-16231.

• Decision Date: 13 April 2006
• Docket Number: No. 04-16231.,No. 05-11303.,04-16231.,05-11303.
• Citation: 445 F.3d 1311
• Parties: Germar SCHEERER, Petitioner, v. UNITED STATES ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

445 F.3d 1311

Germar SCHEERER, Petitioner, v. UNITED STATES ATTORNEY GENERAL, Respondent.

No. 04-16231.

No. 05-11303.

United States Court of Appeals, Eleventh Circuit.

April 13, 2006.

COPYRIGHT MATERIAL OMITTED

Robert Scott Oswald, Noto & Oswald, P.C., Washington, DC, for Scheerer.

Russell J.E. Verby, David V. Bernal, S. Nicole Nardone, U.S. Dept. of Justice, OIL, Washington, DC, for Respondent.

Petition for Review of a Decision of the Board of Immigration Appeals.

Before BLACK, HULL and FARRIS^*,

Circuit Judges.

BLACK, Circuit Judge:

Germar Scheerer petitions this Court for review of two Board of Immigration Appeals (BIA) decisions. First, Scheerer seeks review of the BIA's decision affirming, without opinion, an immigration judge's (IJ's) order (1) denying his application for asylum and withholding of removal under the Immigration and Nationality Act (INA), 8 U.S.C. §§ 1158, 1231(b)(3), as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104-208, 110 Stat. 3009 (1996) (amended by the REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 302 (2005)),¹ and (2) finding his application frivolous. Second, Scheerer challenges the BIA's determination that, as an arriving alien in removal proceedings, he was ineligible to reopen his proceedings for an adjustment of status pursuant to 8 C.F.R. § 1245.1(c)(8). After review, we grant the petitions in part, and deny in part.

I. BACKGROUND

Scheerer, a native and citizen of Germany, fled his homeland in 1995 after he was convicted and sentenced to 14 months' imprisonment for inciting racial hatred in violation of the German Penal Code, Strafgesetzbuch [StGB] art. 130, §§ 3-5 (F.R.G.) (Section 130).² A chemist, Scheerer published a report, based on samples taken from the site of the Auschwitz concentration camp, which alleged the gas and delousing chambers in which mass killings occurred manifested no residual chemical signs of Zyklon B use. From this, Scheerer inferred the mass killings that occurred during the Holocaust could not have happened as is commonly believed. The highest court in Germany upheld his conviction and sentence.

To avoid his sentence and likely future prosecution in Germany, Scheerer fled to Spain in March 1996, and, fearing extradition, to England in June 1996. After a series of newspaper articles urged his extradition, Scheerer fled to the United States, entering this country on August 9, 2000, as a conditional parolee with a departure date of no later than November 18, 2000.

Scheerer filed an application for asylum on October 17, 2000. On February 1, 2001, the Immigration and Naturalization Service (INS, now the Department of Homeland Security (DHS)) issued him a Referral Notice, informing Scheerer that his application was being referred to an IJ, to whom he could again direct his asylum request. On April 2, 2001, the INS issued Scheerer a Notice to Appear, finding him removable pursuant to 8 U.S.C. § 1182(a)(7)(A)(i)(I) for failure to possess a valid entry document.

An IJ conducted several hearings on Scheerer's asylum application from September 2001 until June 2003, ultimately issuing a decision finding, in relevant part: (1) Scheerer was removable as charged in the Notice to Appear; (2) Scheerer presented no cognizable claim of past persecution or a well-founded fear of future persecution entitling him to asylum or withholding of removal;³ and (3) Scheerer's asylum application was frivolous. Scheerer appealed the IJ's order, and the BIA affirmed without opinion on November 8, 2004.⁴

On December 7, 2004, Scheerer moved the BIA to reopen his case for an adjustment of status to that of a lawful permanent resident alien based on his September 11, 2004, marriage to a United States citizen. The BIA denied his motion on March 3, 2005, finding Scheerer, an arriving alien in removal proceedings, was subject to a regulatory bar, 8 C.F.R. § 1245.1(c)(8), which rendered him ineligible to apply for adjustment of status. Scheerer then filed two timely petitions for review of both BIA decisions with this Court, which we consolidated and docketed for oral argument.

In November 2005, Scheerer was removed to Germany after this Court denied his emergency motion to stay removal pending this appeal. Despite his removal, Scheerer's appeal continues unabated⁵ and raises three issues: (1) whether the BIA erred in denying his petition for asylum and withholding of removal; (2) whether the BIA erred in finding his asylum application was frivolous; and (3) whether the Attorney General exceeded his authority in promulgating 8 C.F.R. § 1245.1(c)(8).

II. DISCUSSION

A. Claim for Asylum and Withholding of Removal

Where the BIA summarily affirms the IJ's decision, we review the IJ's decision as if it were the BIA's. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). We review the IJ's denial of an asylum application under a "substantial evidence" standard. "The [IJ's] factual determination that [an alien] is removable and not entitled to asylum must be upheld if it is supported by substantial evidence." Mazariegos v. U.S. Att'y Gen., 241 F.3d 1320, 1323 (11th Cir.2001). "[A] denial of asylum may be reversed only if the evidence presented by the applicant is so powerful that a reasonable factfinder would have to conclude the requisite fear of persecution exists." Id.

To be eligible for asylum, the applicant bears the burden of proving statutory "refugee" status. See 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 208.13(a). That is, the alien must, with specific and credible evidence, establish (1) past persecution on account of race, religion, nationality, membership in a particular social group, or political opinion; or (2) a well-founded fear of future persecution on account of a statutorily-protected ground. See 8 C.F.R. § 208.13(b).

An alien may establish past persecution or a well-founded fear of future persecution under a theory of imputed political opinion where he shows a political opinion was correctly or incorrectly attributed to him and he was persecuted because of that opinion. See Al Najjar, 257 F.3d at 1289. Fear of prosecution under fairly administered laws, on the other hand, does not ordinarily entitle an alien to asylum or withholding of removal. See, e.g., Barreto-Claro v. U.S. Att'y Gen., 275 F.3d 1334, 1340 (11th Cir.2001) (citing Janusiak v. INS, 947 F.2d 46 (3d Cir.1991)). If, however, the alien shows the prosecution is based on a statutorily-protected ground, and if the punishment under that law is sufficiently extreme to constitute persecution, the law may provide the basis for asylum or withholding of removal even if the law is generally applicable. See Chang v. INS, 119 F.3d 1055, 1060-61 (3d Cir.1997); Abedini v. INS, 971 F.2d 188, 191-92 (9th Cir.1992); Behzadpour v. United States, 946 F.2d 1351, 1353 (8th Cir.1991).

Scheerer relies on two theories to argue the IJ erred in holding he failed to establish statutory "refugee" status. First, characterizing his report as purely scientific, historical, and factual, Scheerer contends the German government ascribed an anti-Semitic ideology to his research, thereby persecuting him under Section 130 for an imputed political opinion. Second, Scheerer argues he was persecuted under a generally-applicable law because his prosecution under Section 130 was politically motivated and resulted in disproportionately severe punishment. We reject both arguments.

As to Scheerer's first argument, the administrative record is devoid of any evidence that the German government ascribed a political opinion to him and then punished him for that imputed belief. Rather, as the IJ held, the evidence only reflects that Scheerer was "held to account by a highly developed and sophisticated legal system, ... received due process, was convicted, and sentenced to a term well below the statutorily established maximum." Substantial evidence thus supports the IJ's conclusion that the only inference to be drawn from the record is that "[Scheerer] has been subjected to legitimate prosecution" in Germany. Scheerer has, therefore, failed to produce sufficient evidence to compel a finding that he suffered past persecution, or has a well-founded fear of future persecution, on account of an imputed political opinion.

Turning to his second argument, substantial evidence supports the IJ's conclusion that Scheerer cannot establish past persecution, or a well-founded fear of future persecution, under a generally-applicable law. We need not address whether Scheerer's prosecution under Section 130 was politically motivated because he failed to establish his sentence to 14 months' imprisonment was, as he argues, "extreme and disproportionate" punishment rising to the level of persecution. Scheerer offers no substantive argument on this point, relying instead on conclusory speculation from the lawyer who defended him in his German prosecution that "the sentence appears to be inappropriately high." The record simply does not support this assertion. As the IJ emphasized, Scheerer's sentence was well below the statutory maximum of 5 years' imprisonment and others convicted of the same crime have received significantly harsher sentences.⁶ We thus agree with the IJ that "[t]he totality of the record does not reveal any substantial basis for finding [Scheerer's] 14-month sentence to be disproportionate, and either especially unconscionable or merely a pretext."⁷ As a result, Scheerer has failed to carry his burden of establishing past persecution, or a well-founded fear of future persecution, due to his prosecution under a generally-applicable German law.

On this record, substantial evidence supports the IJ's conclusions that Scheerer was unable to establish past persecution, or a well-founded fear of future persecution, either on account of an imputed political opinion or under a generally-applicable law. We accordingly affirm the denial of Scheerer's claim for asylum and...