Saleh v. U.S. Dept. of Justice, 251

• Citation: 962 F.2d 234
• Decision Date: 29 April 1992
• Docket Number: D,No. 251,251
• Parties: Sofyan Ali SALEH, Petitioner, v. UNITED STATES DEPARTMENT OF JUSTICE, Immigration and Naturalization Service, Respondents. ocket 91-4041.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 234

962 F.2d 234

Sofyan Ali SALEH, Petitioner, v. UNITED STATES DEPARTMENT OF JUSTICE, Immigration and Naturalization Service, Respondents.

No. 251, Docket 91-4041.

United States Court of Appeals, Second Circuit.

Argued Sept. 16, 1991.

Decided April 29, 1992.

Paul I. Freedman, New York City, for petitioner.

Timothy MacFall, Special Asst. U.S. Atty., S.D.N.Y., New York City (Otto G. Obermaier, U.S. Atty., S.D.N.Y., Diogenes P. Kekatos, Thomas A. Zaccaro, Asst. U.S. Attys., S.D.N.Y., New York City, of counsel), for respondents.

Before: MESKILL, PIERCE, and MAHONEY, Circuit Judges.

MAHONEY, Circuit Judge:

Sofyan Ali Saleh petitions for review of an order of the Board of Immigration Appeals ("BIA") dated September 27, 1990 that dismissed an appeal from a decision of Immigration Judge ("IJ") Patricia A. Rohan dated June 5, 1990. The IJ's decision denied Saleh's applications for asylum pursuant to 8 U.S.C. § 1158(a) (1988), ¹ withholding of deportation to the Yemen Arab Republic pursuant to 8 U.S.C. § 1253(h) (1988 & Supp. II 1990), ² and a waiver of excludability pursuant to 8 U.S.C. § 1182(c) (1988 & Supp. II 1990). ³

Saleh claims that the BIA and IJ erred in concluding that he had failed to meet the statutory requirements for asylum and withholding of deportation. Saleh contends that because he is under a death sentence imposed by an Islamic court in Yemen for a homicide which he committed in the United States that has already resulted in his imprisonment here, he has established a "well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion" within the meaning of 8 U.S.C. § 1101(a)(42) (1988), and thus qualifies for asylum and withholding of deportation. He also seeks a discretionary waiver of excludability.

Agreeing with the BIA and IJ that Saleh's claims are not supported by the applicable law, we deny his petition for review.

Background

Saleh, a Yemeni citizen, became a permanent resident alien through marriage to a U.S. citizen in 1982. On February 4, 1983, while living in New York City, he shot and killed Abdulla Elhosheshi, another Yemeni national. Saleh pled guilty to first degree manslaughter and commenced serving a sentence of 8 1/3 to 25 years. Based on the same occurrence, Saleh was also tried and convicted in absentia in Yemen and sentenced to death by a "Sharia" (Islamic) court. Jurisdiction existed because Saleh and the victim were both Yemeni Moslems.

On January 12, 1989, the Immigration and Naturalization Service ("INS") issued an order to show cause and notice of hearing to seek Saleh's deportation pursuant to 8 U.S.C. § 1251(a)(4) (1988) ⁴ because he had been "convicted of a crime involving moral turpitude committed within five years after entry and ... confined therefore in a prison or corrective institution, for a year or more...." Id. The deportation hearing commenced on May 11, 1989, and was adjourned at Saleh's request to allow him to apply for asylum, withholding of deportation, and waiver of excludability.

On May 22, 1989, Saleh filed applications for: (1) asylum in the United States pursuant to § 1158(a); (2) withholding of deportation to Yemen pursuant to § 1253(h); ⁵ and (3) a discretionary waiver of excludability pursuant to § 1182(c). The IJ referred Saleh's application for asylum to the State Department's Bureau of Human Rights and Humanitarian Affairs ("BHRHA") for its assessment of Saleh's claims. See 8 C.F.R. §§ 236.3(b), 242.17(c)(3) (1991). The BHRHA responded by letter dated June 9, 1989 stating its opinion that, assuming the existence of the reported Sharia court judgment, Saleh had "not established a well-founded fear of persecution upon return to" Yemen on any of the statutorily recognized grounds.

The deportation hearing resumed on September 14, 1989. Saleh was represented by counsel. At the outset, Saleh designated England as the country for deportation (in the event his several applications were denied), and the government designated Yemen "as an alternate." The IJ noted that an Arabic interpreter had been requested and would be available if necessary, but that the hearing would initially proceed without an interpreter because Saleh's counsel had advised the IJ that Saleh spoke English "fluently." Saleh also represented that he spoke English, and testified at length throughout the hearing, responding to questions put to him in English.

Saleh testified that he had shot Elhosheshi because of a verbal provocation, and that he feared for his life if he returned to Yemen. He submitted a memorandum of law arguing that his Yemeni conviction entitled him to asylum. He argued that he was being persecuted on account of his religion--because he would be punished in Yemen under the "fanatical interpretation of age old [religious] laws and customs," and that he was being persecuted because of his membership in a particular social group--Yemeni Moslems residing outside of Yemen, "upon whom the Islamic authorities in Yemen are attempting to exert their power and control."

The IJ requested that the BHRHA investigate the status of Saleh's Yemeni conviction. By letter dated March 26, 1990, the BHRHA responded that the conviction had not yet been reviewed by the provincial appellate court or the High Court of Sanaa in Yemen. The appellate courts, however, would not review the sentence, but only the facts of the case, i.e., whether Saleh intentionally caused the death of Elhosheshi. If the death sentence were affirmed, it could be waived by the Yemeni President on recommendation of the Presidential Office of Appeals. Also, under Islamic law, the victim's family could waive the death sentence by electing to receive "blood money" from Saleh in lieu of his execution. In this case, the amount of "blood money" could range from $186,000 to $360,000.

On June 5, 1990, the IJ rendered a decision that denied Saleh's applications and ordered his deportation. The IJ concluded that Saleh's conviction in Yemen did not constitute statutory "persecution" because Saleh had simply been " 'prosecut[ed] for a common law offense' " (quoting United Nations Handbook on Procedures and Criteria for Determining Refugee Status, ch. II, p 56 (1979)), i.e., murder or manslaughter. The IJ noted in this regard that Saleh had made no showing that: (1) he would be punished for his crime in a discriminatory fashion, (2) the Yemeni punishment that he faced was arbitrary or excessive, or (3) the Yemeni court lacked jurisdiction to punish him on double jeopardy or other grounds.

The IJ further ruled that even assuming persecution, it would not have been premised upon either religion or membership in a particular social group, the statutory grounds invoked by Saleh. As to religion, the judge noted that although Saleh was prosecuted in an Islamic court, a death sentence for intentional killing of a human being is common in many secular courts. As to membership in a particular social group, the IJ explained that expatriate Yemeni Moslems do not manifest the sort of "common, immutable characteristic" that is required to satisfy this criterion.

Saleh was thus deemed not entitled to asylum under § 1158(a) or withholding of deportation under § 1253(h). The IJ additionally concluded that Saleh was disqualified from withholding of deportation under § 1253(h)(2)(B) because he had been convicted of a "particularly serious crime" within the meaning of that provision. Finally, the judge denied Saleh's application for discretionary waiver of excludability under § 1182(c) because his serious criminal conviction outweighed any positive factors in his favor.

Saleh appealed to the BIA. In addition to the arguments he had previously advanced, Saleh contended that he was being persecuted on account of his membership in the "particular social group" of poor Yemenis who could not afford to pay "blood money" to buy their way out of a death sentence. The BIA found no persecution on this basis because the "blood money" payment was facially neutral, was discretionary with the victim's family, and a presidential waiver was possible regardless of wealth. The BIA dismissed Saleh's appeal on September 27, 1990, and Saleh timely petitioned this court to review the BIA's order of dismissal.

Saleh was granted parole from state prison in May 1991, and was released into the custody of the INS.

Discussion

The government contends on appeal that Saleh has conceded deportability, and does not appeal from the denial of his application for a discretionary waiver of excludability pursuant to § 1182(c). In any event, deportability is beyond question, see supra text accompanying note 4, and a 1990 amendment to § 1182(c) precludes the application of that provision to this case. ⁶ Accordingly, the issues presented on appeal are Saleh's claims to asylum pursuant to § 1158(a) and to withholding of deportation pursuant to § 1253(h), and his further contention that his counsel in the immigration proceedings was ineffective.

An alien seeking political asylum or withholding of deportation bears the burden of establishing eligibility. 8 C.F.R. §§ 208.13(a), 208.16(b) (1991). On appeal, "findings of fact, if supported by reasonable, substantial, and probative evidence on the record considered as a whole, shall be conclusive." 8 U.S.C. § 1105a(a)(4) (1988); see Maikovskis v. INS, 773 F.2d 435, 446 (2d Cir.1985), cert. denied, 476 U.S. 1182, 106 S.Ct. 2915, 91 L.Ed.2d 544 (1986). Thus, the factual findings regarding Saleh's eligibility for asylum or withholding of deportation must be upheld if they are supported by substantial evidence. See Melendez v. United States Dep't of Justice, 926 F.2d 211, 216-18 (2d Cir.1991). The ultimate denial of asylum in applications brought pursuant to § 1158(a) is reviewed for abuse of discretion, because the § 1158(a) decision is discretionary. Id. at 218; see supra note 1. The ultimate denial of withholding of deportation pursuant to ...