Shahandeh-Pey v. I.N.S., SHAHANDEH-PE

• Decision Date: 28 October 1987
• Docket Number: P,No. 86-2890,SHAHANDEH-PE,86-2890
• Citation: 831 F.2d 1384
• Parties: Abdul Hamidetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1384

831 F.2d 1384

Abdul Hamid SHAHANDEH-PEY, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 86-2890.

United States Court of Appeals Seventh Circuit.

Argued April 20, 1987.

Decided Oct. 28, 1987.

David Rubman, Legal Assistance Foundation of Chicago, Chicago, Ill., for petitioner.

Jane A. Williams, Atty., Office of Immigration Litigation, Civil Div. Dept. of Justice, Washington, D.C., for respondent.

Before BAUER, Chief Judge, and POSNER, Circuit Judge, and WILL, Senior District Judge. ^*

WILL, Senior District Judge.

Abdul Hamid Shahandeh-Pey ("Shahandeh") petitions for review of a final decision of the Board of Immigration Appeals ("board") denying his application for political asylum under Sec. 208 of the Immigration and Nationality Act ("INA"), 8 U.S.C. Sec. 1158 (1982), and ordering him deported from the United States. For the reasons stated below, we reverse the Board's decision and remand for further proceedings.

I.

Shahandeh is an Iranian citizen. He was born on December 25, 1956 to a wealthy and prominent Iranian family. Shahandeh resided in Iran until the age of eighteen at which time his parents sent him abroad to study. He attended high school in Lebanon from 1974 to 1976 and language school in Sweden from 1976 to 1978. Shahandeh returned briefly to Iran in 1978. Shahandeh's family was worried about the stability of the Shah's regime at that time, and they thought it best for him to leave the country again. In early 1978, Shahandeh applied for and received a student visa authorizing him to stay in the United States until August 1979. He has remained in this country beyond that date in violation of Sec. 241(a)(2) of the INA, which prohibits the overstaying of a visa. In March of 1984, Shahandeh married Rhonda Brown, a United States citizen; the couple have two children, ages 5 and 4.

Since his arrival in the United States, Shahandeh has amassed an extensive criminal record. In January of 1981, he was convicted of burglary and sentenced to two years probation. One year later, Shahandeh was convicted of theft and sentenced to three years in prison. On June 16, 1983, the Immigration and Naturalization Service ("INS") began deportation proceedings against Shahandeh charging him with deportability on the grounds that he had overstayed his visa and that he had been convicted of two crimes. Shortly thereafter, Shahandeh was yet again convicted, this time for possession of heroin with intent to deliver and possession of pentazocine with intent to deliver. He was sentenced to a total of 3 years on each of these felony convictions, the sentences to run concurrently with that imposed for his conviction for theft.

At a June 14, 1984 hearing, the immigration judge found Shahandeh deportable, but he adjourned the hearing to allow Shahandeh to submit an application for political asylum. Shahandeh's deportation hearing was reconvened on March 26, 1986. At that time, the INS further charged him with deportability under Sec. 241(a)(11) of the INA. That provision authorizes the deportation of an alien "who at any time has been convicted of a violation of ... any law relating to the illicit possession of or traffic in drugs or marihuana" Id. Shahandeh conceded deportability on the new charge. The judge, however, granted him additional time to file an updated application for political asylum.

Shahandeh filed his updated application for political asylum approximately one week later, and the immigration judge forwarded the application to the Bureau of Human Rights and Humanitarian Affairs of the Department of State for an advisory opinion.

In his asylum application, Shahandeh cited his many years in the west and his father's role in the Shah's government and he expressed his fear that he would be executed if forced to return to Iran. The application stated that in 1982 the Khomeini regime executed Shahandeh's father, a colonel in the Shah's Ministry of War, even though he had cooperated with the Khomeini forces after the Shah's downfall. The application further described how Khomeini's soldiers ransacked Shahandeh's family home in Iran and jailed and interrogated his mother, a politician who ran for parliament during the Shah's reign. Approximately three months after her arrest and subsequent detention, Shahandeh's mother escaped to Spain. She then continued on to Austria where, the application stated, she now lives with Shahandeh's sister. Shahandeh's asylum application also included three letters written by his mother in Persian (with certified translations) describing the above events, and a State Department report that described the Khomeini regime as having one of the worst human rights records in the world.

On April 25, 1986, the State Department issued an advisory opinion concluding that Shahandeh had established a well-founded fear of persecution.

The immigration judge reconvened Shahandeh's deportation hearing on May 22, 1986, in order to consider his application for political asylum. Before Shahandeh was permitted to introduce any favorable evidence into the record on the merits of his application, however, the immigration judge summarily determined that Shahandeh's drug conviction rendered him statutorily ineligible for both political asylum and withholding of deportation. The judge ordered him deported to Austria, and if Austria would not accept him, to Iran.

On appeal, the board affirmed the immigration judge's finding that Shahandeh was ineligible for withholding of deportation due to the statutory bar for persons convicted of serious crimes. However, the board reversed the immigration judge's holding that the same bar precluded Shahandeh's eligibility for political asylum. Rather, the board held that it has discretion to grant political asylum to a person who is statutorily barred from withholding of deportation. Nevertheless, the board, exercising its discretion, denied the application for political asylum on the ground that Shahandeh's drug conviction represented criminal behavior constituting "a danger to the community of the United States."

Shahandeh filed this petition for review shortly after he was notified that Austria would not accept him. He challenges the board's decision on three grounds. First, he contends the board failed to consider and weigh all relevant factors, especially his well-founded fear of persecution. Second, Shahandeh argues that the board reached its decision on an incomplete record. This resulted, he alleges, from the board's failure to remand the case after reversing the immigration judge's decision on Shahandeh's ineligibility for political asylum. Shahandeh thus claims he was denied political asylum without ever having had an opportunity to present evidence on his behalf before an immigration judge. Finally, Shahandeh argues that the board's failure to remand deprived him of a hearing in violation of the due process clause of the fifth amendment.

II.

Section 208(a) of the INA, 8 U.S.C. 1158, provides in relevant part that an alien applicant "may be granted asylum in the discretion of the Attorney General if the Attorney General determines that such alien is a refugee within the meaning of section 101(a)(42)(A) of the Act...." The Attorney General has delegated to the Board of Immigration Appeals authority to make these discretionary asylum decisions as to aliens under deportation proceedings. 8 C.R.F. Sec. 3.1(b)(2) (1986). Although our review of the board's findings is limited, see 8 U.S.C. Sec. 1105a(a)(4), if we find the board's denial of an application for a discretionary grant of political asylum is arbitrary, capricious, or an abuse of discretion, or if it violates procedural rights required by law, we must reverse. Carvajal-Munoz v. INS, 743 F.2d 562, 568 (7th Cir.1984). This circuit has adopted the following standard to determine when the board can be charged with an abuse of discretion:

[The board's decision] will be upheld unless "it was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination against a particular race or group."

Achacoso-Sanchez v. INS, 779 F.2d 1260, 1265-66 (7th Cir.1985) (citations omitted).

Here Shahandeh argues that the board's denial of political asylum was an abuse of discretion because (1) although the board claimed to exercise its discretion by balancing adverse factors against favorable factors, the board failed to balance all of the "central" factors, and (2) the board exercised its discretion on an incomplete record.

The balancing test to which Shahandeh and the board's opinion refer, requires that "upon review of the record as a whole, the immigration judge ... balance the positive and adverse matters to determine whether discretion should be favorably exercised." Matter of Marin, 16 I & N Dec. 581, 586 (BIA 1978).

Factors which the board has deemed favorable to applicants for asylum include: (1) family ties within the United States; (2) residence of long duration in United States; (3) evidence of hardship to alien and family if deportation occurs; (4) service in this country's armed forces; (5) history of employment; (6) existence of property or business ties or evidence of value and service to the community; (7) proof of genuine rehabilitation if a criminal record exists; and (8) evidence attesting to the alien's good character (i.e., affidavits from family, friends, and responsible community representatives). Matter of Marin, 16 I & N...