58 F.3d 1425 (9th Cir. 1995), 93-70926, Ghaly v. I.N.S.

Docket Nº:93-70926.
Citation:58 F.3d 1425
Party Name:Farid Faham Gamal GHALY, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
Case Date:July 06, 1995
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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58 F.3d 1425 (9th Cir. 1995)

Farid Faham Gamal GHALY, Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 93-70926.

United States Court of Appeals, Ninth Circuit

July 6, 1995

Argued and Submitted March 9, 1995.

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Ronald H. Bonaparte, Bonaparte & Joannes, Los Angeles, CA, for petitioner.

Mark C. Walters and Anthony W. Norwood, Office of Immigration Litigation, U.S. Dept. of Justice, Washington, DC, for respondent.

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

Before: WALLACE, Chief Judge, HUG, and HAWKINS, Circuit Judges.

WALLACE, Chief Judge:

Ghaly petitions for review of the Board of Immigration Appeals's (Board) decision denying his applications for asylum and withholding of deportation. We have jurisdiction over this timely petition pursuant to 8 U.S.C. Sec. 1105a(a). The petition is denied.

I

Ghaly is a native and citizen of Egypt and a member of the Coptic Christian faith. He entered the United States in 1981 on a J-1 Exchange Visitor Visa, which was issued in order to permit him to participate in a special program funded by the United States Agency for International Development (Agency).

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The Agency paid for him to obtain a Masters Degree in public health from the University of California at Berkeley, subject to the condition that he return to Egypt. After receiving his degree, however, Ghaly chose not to return despite the expiration of his visa and his commitment to the Agency.

In 1985, deportation proceedings were initiated and Ghaly filed an application for asylum and withholding of deportation pursuant to 8 U.S.C. Secs. 1158(a), 1253(h). At an October 1987 hearing, Ghaly and others testified that Christians are subject to discrimination and even violence in Egypt due to their faith, and that Ghaly's medical career would suffer as a result. The immigration judge (IJ) admitted a March 1986 opinion of the State Department's Bureau of Human Rights and Humanitarian Affairs (Bureau), which described in some detail the situation in Egypt with respect to the treatment of religious minorities, and Coptic Christians in particular. The opinion stated that although Coptic Christians "face prejudice and occasional acts of individual discrimination from Egypt's Islamic majority, there is no evidence these acts are systematic, or that they are officially inspired or sanctioned." It further explained that although sectarian violence between Coptic Christians and Moslems flared in 1981, the Egyptian government responded by arresting about 1,400 Moslems and 100 Coptic Christians. After pointing out that the Egyptian government has tried and convicted persons accused of offenses against Coptic Christians and has attempted to ease tensions between Coptic Christians and Moslems, it went on to conclude that there is "no reason to believe that [Ghaly] would be subjected to official or any other form of persecution upon returning to Egypt ... or that such discrimination as the applicant might encounter would be so serious as to constitute persecution."

The IJ denied the request for asylum and withholding of deportation, but granted voluntary departure. The IJ found that Ghaly did not have a well-founded fear of persecution and did not face a clear probability of persecution, thereby making him ineligible for asylum and withholding of deportation, but refused to consider certain exhibits introduced by Ghaly to rebut the conclusions contained in the Bureau opinion.

Ghaly appealed to the Board. After six years of inexplicable delay, the Board also concluded in 1993 that Ghaly was ineligible for asylum and withholding of deportation, but granted voluntary departure. The Board relied heavily on the March 1986 Bureau opinion to conclude that Ghaly did not have a well-founded fear of persecution and did not face a clear probability of persecution if returned to Egypt. Unlike the IJ, however, the Board did consider the exhibits offered by Ghaly to rebut the conclusions contained in the Bureau opinion. The Board identified each document and concluded that the source of the information contained in them was unclear and stated that the Board has "given them the weight we deem appropriate under the circumstances."

II

Section 208(a) of the Immigration and Nationality Act (Act), 8 U.S.C. Sec. 1158(a), gives the Attorney General discretion to allow political asylum to any alien the Attorney General determines to be a "refugee" within the meaning of section 101(a)(42)(A) of the Act, 8 U.S.C. Sec. 1101(a)(42)(A). A refugee is defined as an alien unwilling to return to his or her country of origin "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." Id. To establish eligibility on the basis of a "well-founded fear of persecution," the alien's fear of persecution must be both subjectively genuine and objectively reasonable. Arriaga-Barrientos v. INS, 925 F.2d 1177, 1178 (9th Cir.1991) (Arriaga-Barrientos ). "The objective component requires a showing by credible, direct, and specific evidence in the record, of facts that would support a reasonable fear of persecution." Id. at 1178-79. The applicant has the burden of making this showing. Fisher v. INS, 37 F.3d 1371, 1376 (9th Cir.1994) (Fisher ).

Section 243(h) of the Act, 8 U.S.C. Sec. 1253(h), requires the Attorney General, subject to certain exceptions not relevant here, to withhold deportation "if the Attorney General determines that such alien's life or

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freedom would be threatened ... on account of race, religion, nationality, membership in a particular social group, or political opinion." We have held that an alien is statutorily eligible for such relief if he or she demonstrates a "clear probability of persecution." Arriaga-Barrientos, 925 F.2d at 1178. This standard is generally more stringent than the "well-founded fear" standard applicable to requests for asylum, and can be met only by showing that it is more likely than not that the alien will be persecuted if deported. Acewicz v. INS, 984 F.2d 1056, 1062 (9th Cir.1993). Therefore, failure to satisfy the lesser standard of proof required to establish eligibility for asylum necessarily results in a failure to demonstrate eligibility for withholding of deportation as well. Arriaga-Barrientos, 925 F.2d at 1180. Thus, for purposes of this opinion, we will focus on whether Ghaly proved he was eligible for asylum.

The Board's factual determinations, including its finding of whether an applicant has demonstrated a "well-founded fear of persecution," are reviewed for substantial evidence. INS v. Elias-Zacarias, 502 U.S. 478, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (Elias-Zacarias ). We will reverse the Board only where the evidence is such that a reasonable factfinder would be compelled to conclude that the requisite fear of persecution existed. Id. at 481 & n. 7, 112 S.Ct. at 815 & n. 7. The Board's purely legal interpretations of the Act are reviewed de novo, but are generally entitled to deference under Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Fisher, 37 F.3d at 1376.

III

Ghaly contends that the Board erred by relying on the March 1986 Bureau opinion. At the time of his hearing, the IJ was required to request a Bureau opinion on all asylum applications. 8 C.F.R. Secs. 208.7, 208.10 (repealed). In 1990, the regulations were amended to provide that "[a]t its option, the [Bureau] may comment on an application [for asylum]." 8 C.F.R. Sec. 208.11(a) (1990). If the Bureau chooses to comment on the application, it...

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