Abdel-Masieh v. U.S. I.N.S.

• Decision Date: 15 January 1996
• Docket Number: P,No. 94-41155,ABDEL-MASIE,94-41155
• Parties: Mamdouh L.etitioner, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 579

73 F.3d 579

Mamdouh L. ABDEL-MASIEH, Petitioner, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 94-41155.

United States Court of Appeals Fifth Circuit.

Jan. 15, 1996.

Brian K. Bates, Houston, TX, for petitioner.

Janet Reno, Atty. Gen., U.S. Dept. of Justice, Washington, DC, Nelda C. Reyna, David J. Kline, Robert L. Bombough, Director, Office of Immigration Litigation, Civil Div., Washington, DC, for respondent.

John B.Z. Caplinger, INS Dist. Director, New Orleans, LA Attn: Joseph Aguilar, Frank Strapp, Dist. Counsel, INS, Dallas, TX, for other interested parties.

Petition for Review of and Order of the Immigration and Naturalization Service.

Before WISDOM, GARWOOD and JONES, Circuit Judges.

GARWOOD, Circuit Judge:

The Immigration and Naturalization Service (INS) initiated deportation proceedings against Mamdouh Abdel-Masieh (Abdel) on December 4, 1990. The immigration judge found Abdel to be ineligible for asylum and for withholding of deportation under the Immigration and Nationality Act. The Board of Immigration Appeals (BIA) affirmed the immigration judge's decision and dismissed Abdel's appeal. Abdel brings this petition to review the final order of deportation pursuant to 8 U.S.C. Sec. 1105a(a). We vacate the order of deportation and remand to the BIA.

Facts and Proceedings Below

Petitioner Abdel is a thirty-two year old native and citizen of Sudan. He was employed in Sudan as an aircraft mechanic and engineer, an occupation which he has characterized as well-paying. Abdel is a member of the Coptic faith, a Christian denomination comprising a small fraction of the Christian minority residing in the predominantly Muslim nation of Sudan. In the aggregate, ten percent of Sudanese citizens are Christians. Prior to leaving Sudan for the United States, Abdel resided in Sudan most of his life, leaving only for a two and one-half year period of study in India from 1985 to 1987.

In June 1989, the democratically elected government of Sudan was overthrown in a military coup and replaced by a military government heavily influenced by the National Islamic Front (NIF). The new government quickly instituted a drive to Islamicize Sudan, replacing secular judges with Islamic ones, and imposing the Islamic Shari'a laws on all Sudanese people, Muslim and non-Muslim alike. ¹ The imposition of the Shari'a on non-Muslim Sudanese, which provides for such harsh penalties as amputation, stoning, and lashes, has raised a volatile issue in that nation, an issue which is important in the civil war raging in the southern portion of Sudan.

In August 1989, soon after the NIF government seized power, Abdel participated in a demonstration against the government's efforts to apply the Shari'a to all Sudanese citizens. From a group of two hundred protesters, twenty-five to thirty were arrested, including Abdel. During his three-hour detention, Abdel was interrogated and beaten. Before releasing Abdel, the officials recorded his name and other identifying information, but filed no charges against him.

Then, in late December 1989 or early January 1990, one of Abdel's cousins was arrested and ultimately executed by the government for allegedly carrying United States currency in an airport. This cousin was the son of a Coptic priest who was a leader in the Sudanese Coptic community. Trials of the sort afforded to Abdel's cousin were summarily conducted by military tribunals, and the accused were denied representation by counsel. In January 1990, the funeral procession for Abdel's cousin evolved into a large demonstration against this perceived religious persecution. ² In an effort to prevent the funeral procession, comprised of an estimated 10,000 protestors, from passing in front of the United States embassy in Khartoum, security forces arrested approximately 20 demonstrators, including Abdel. He was again detained for three hours, during which time he was interrogated and beaten. After his release, Abdel was picked up again for an additional two hours. As was the case with his August 1989 arrest, Abdel was not charged upon his release. He was able to return to work after each of these episodes involving the police, and ultimately left his employment voluntarily in February 1990.

On February 24, 1990, Abdel entered the United States as an "M-1" nonimmigrant student pursuant to 8 U.S.C. Sec. 1101(a)(15)(M). He testified that he left Sudan for the United States for two reasons: first, he sought to advance his education and obtain a permit related to his aircraft engineering vocation; second, he hoped to escape his conflict with the government of Sudan. He further testified that he was able to obtain his passport renewal--on January 6, 1990--and visa only through the help of a brother-in-law with American connections. It is clear that many Sudanese in suspect classifications have great difficulty obtaining passports and exit visas. Since his arrival in the United States, Abdel has worked as a cash register attendant in a gas station.

Abdel points to several events which have occurred since his departure from Sudan in support of his contention that he will face persecution if he returns to that nation. He indicated in his application for asylum that his mother, formerly a department director of a textile factory, was fired because of her religious beliefs. Abdel's brother, who operates his own business, was arrested, detained, and beaten by Sudanese security forces in an effort to obtain information regarding Abdel. Abdel's brother and a co-worker have warned Abdel not to return to Sudan under any circumstances. Abdel testified that he is on a "wanted list" at the Khartoum airport, although he concedes that he has never seen this list and does not explain how he knows he is on it. Additionally, individuals assumed by Abdel to be government agents have on several occasions made inquiries at his former place of employment regarding his whereabouts and the duration of his stay in the United States. Finally, Abdel has indicated that his family's telephone conversations and mail have been monitored, a practice which the United States Department of State has characterized as pervasive in Sudan.

Abdel's student visa expired on March 26, 1990, and deportation proceedings were commenced against him on November 26, 1990. Abdel conceded deportability in these proceedings, and the immigration judge denied his application for asylum or temporary withholding of deportation. Pursuant to 8 U.S.C. Sec. 1254(e), Abdel was given two months to voluntarily depart the United States.

Abdel appealed this decision to the BIA, and the BIA dismissed Abdel's appeal on October 5, 1994. Abdel timely brought the present petition before this Court to review the BIA's final order of deportation pursuant to 8 U.S.C. Sec. 1105a(a).

Discussion

Abdel seeks asylum pursuant to 8 U.S.C. Sec. 1158(a). This section of the Immigration and Nationality Act (INA) affords asylum to aliens who are "refugees", defined by the INA as:

"[A]ny person who is outside any country of such person's nationality ... who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country 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 ..." 8 U.S.C. Sec. 1101(a)(42)(A).

We review the BIA's factual determination that Abdel is not a "refugee" within this definition, and therefore that Abdel is not eligible for asylum nor for withholding of deportation, under the substantial evidence standard. Ozdemir v. INS, 46 F.3d 6, 7 (5th Cir.1994) (citations omitted); Adebisi v. INS, 952 F.2d 910, 912 (5th Cir.1992) (citations omitted). The errors or other failings of the immigration judge's opinion are considered only if they have some impact on the BIA's decision. 952 F.2d at 912.

I. Past Persecution

The BIA agreed with the immigration judge's finding that Abdel's two arrests did not rise to the level of "persecution" contemplated by the INA. After reviewing the facts surrounding Abdel's two arrests, the BIA cited three cases to support its finding that these arrests did not constitute persecution. However, in all three of these cases, the prisoners were not mistreated during their respective detentions. See Zalega v. INS, 916 F.2d 1257, 1260 (7th Cir.1990) (Zalega, though arrested and interrogated five times, with detentions of up to thirty-six hours, "was not mistreated while incarcerated"); Mendez-Efrain v. INS, 813 F.2d 279, 283 (9th Cir.1987) (four days' detention; "There is no indication that [Mendez] was tortured or molested while in detention"); Kubon v. INS, 913 F.2d 386, 388 (7th Cir.1990) (no evidence that Kubon was mistreated during his five-day detention). Additionally, in Zalega and Kubon, the Seventh Circuit also relied on the improving political situation in Poland to justify its affirmance of the BIA's denial of asylum in both cases. 913 F.2d at 388; 916 F.2d at 1261 n. 5. None of the evidence in the present case suggests a similar "improvement" is on the horizon in Sudan. On the other hand, in each of those cases the detention was for substantially longer than here.

While the term "persecution" under the INA is by no means well-defined, the BIA has provided some insight into the working parameters of this term:

"[T]he infliction of suffering or harm, under government sanction, upon persons who differ in a way regarded as offensive (e.g., race, religion, political opinion, etc.), in a manner condemned by civilized governments. The harm or suffering need not be physical, but may take other forms, such as the deliberate imposition of severe economic disadvantage or the deprivation of liberty, food, housing, employment or other essentials of life." Matter of Laipenieks, 18 I & N Dec. 433, 456-457 (BIA 1983), rev'd on other grounds, 750 F.2d 1427 (9th Cir.1985). ³

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