Bastanipour v. I.N.S.

• Decision Date: 07 December 1992
• Docket Number: No. 92-1010,92-1010
• Citation: 980 F.2d 1129
• Parties: Mohammed A. BASTANIPOUR, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1129

980 F.2d 1129

61 USLW 2377

Mohammed A. BASTANIPOUR, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 92-1010.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 2, 1992.

Decided Dec. 7, 1992.

David Rubman (argued); and Susan Schreiber, Travelers & Immigrants Aid of Chicago, Chicago, Ill., for petitioner.

Fred Foreman, U.S. Atty., Office of the U.S. Atty., Crim. Div., Chicago, Ill.; William J. Howard, David J. Kline, Anthony W. Norwood (argued), Department of Justice, Office of Immigration Litigation; Richard L. Thornburg, U.S. Atty. Gen., Office of the U.S. Atty. Gen., Washington, D.C.; and A.D. Moyer, I.N.S., Chicago, Ill., for respondent.

Before POSNER and COFFEY, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

POSNER, Circuit Judge.

Mohammed Ali Bastanipour was born in Iran in 1944, came to the United States in 1974 to study, and became a permanent resident of this country in 1978. An accountant for Price Waterhouse, Bastanipour returned to Iran in 1979 for reasons that remain obscure. He flew back to the U.S. from Teheran in 1980--and upon arrival at O'Hare Airport in Chicago was promptly arrested for possession of almost nine pounds of heroin concealed in jars of caviar that he had brought back with him from Iran. We affirmed his conviction of violating federal narcotics laws in United States v. Bastanipour, 697 F.2d 170 (7th Cir.1982). Upon his release from prison in 1988 after serving almost nine years of his fifteen-year sentence, the Immigration and Naturalization Service began deportation proceedings. An immigration judge ordered Bastanipour deported to Iran. The Board of Immigration Appeals affirmed, rejecting Bastanipour's claims for political asylum and, in the alternative, for withholding of deportation. We have stayed his deportation pending this decision on his petition for review.

The Attorney General (here operating through his delegate, the Board of Immigration Appeals) may in his discretion grant political asylum to an alien who has a well-founded fear that should he be returned to his homeland he will suffer persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Immigration and Nationality Act, §§ 101(a)(42)(A), 208(a), 8 U.S.C. §§ 1101(a)(42)(A), 1158(a). A recent amendment forbids the granting of asylum to an alien who has committed an aggravated felony, as Bastanipour has, but the amendment does not apply to applications for asylum filed before November 29, 1990, as Bastanipour's was. Immigration Act of 1990, §§ 515(a)(1), (b)(1), 8 U.S.C. § 1158(d).

Bastanipour argues that the Board committed a clear error in finding that he did not have a well-founded fear of persecution should he be deported to Iran. The Board replies that the argument is moot because the Board had an independent alternative ground for denying his request for asylum: even if he had a well-founded fear of persecution, the Board would refuse to exercise its discretion favorably to him. We do not agree that the alternative ruling on discretion moots Bastanipour's challenge to the finding that he has no well-founded fear of persecution. The Board gave no reason for its contingent refusal to exercise discretion. All it said was: "We also find that the request for asylum should be denied in the exercise of discretion." A bare conclusion is not an adequate discharge of an administrative agency's responsibilities unless the ground or argument that it is rejecting is frivolous. See Bowen v. American Hospital Ass'n, 476 U.S. 610, 626-27, 106 S.Ct. 2101, 2112, 90 L.Ed.2d 584 (1986) (plurality opinion); Motor Vehicle Mfrs. Ass'n v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983); SEC v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943); Schurz Communications, Inc. v. FCC, 982 F.2d 1043, 1049-50 (7th Cir.1992), and International Union, UAW v. NLRB, 802 F.2d 969, 972 (7th Cir.1986), for the general principle, and Shahandeh-Pey v. INS, 831 F.2d 1384, 1389 (7th Cir.1987); Achacoso-Sanchez v. INS, 779 F.2d 1260, 1265 (7th Cir.1985); Zamora-Garcia v. INS, 737 F.2d 488, 490-91 (5th Cir.1984); Santana-Figueroa v. INS, 644 F.2d 1354, 1357 (9th Cir.1981), and Wong Wing Hang v. INS, 360 F.2d 715, 719 (2d Cir.1966) (Friendly, J.), for its application to decisions by the Board of Immigration Appeals. The case is unlike INS v. Bagamasbad, 429 U.S. 24, 97 S.Ct. 200, 50 L.Ed.2d 190 (1976) (per curiam), where the Supreme Court held that the Board of Immigration Appeals could properly base denial of relief on discretionary grounds and skip the issue of statutory eligibility. The problem here is that the Board gave no reasons for its discretionary determination.

The Board did, it is true, give reasons for denying discretionary relief under section 212(c) of the Act, 8 U.S.C. § 1182(c), Bastanipour's alternative ground for relief from deportation. That section of the Act, as interpreted by the Board and the courts, requires a balancing of equities. In re Marin, 16 I & N Dec. 581, 584-85 (BIA 1978); In re Buscemi, 19 I & N Dec. 628, 633-34 (BIA 1978); Shahandeh-Pey v. INS, supra, 831 F.2d at 1387-88. In striking the balance against Bastanipour the Board assumed that he lacked a well-founded fear of persecution. As it did not discuss how the balance might incline if he had such a fear, its resolution of the section 212(c) issue does not fill the gap left by its failure to discuss the issue of discretion under the asylum provision. Bastanipour argues that if he is deported to Iran he may be summarily executed for having converted from Islam to Christianity, a capital offense under Islamic religious law. We may assume without deciding that the Board of Immigration Appeals could in the exercise of its discretion to grant or deny political asylum take the position that it will send Bastanipour to his death for the crime of becoming a Christian rather than grant asylum to a drug felon. But we will not infer that this is the Board's position from the single sentence quoted above.

The principal issue on this appeal is, then, whether Bastanipour has a well- founded fear of persecution by the Iranian authorities. We may set to one side his argument that he faces persecution as a drug trafficker--a type of offender who in present-day Iran is punishable by death frequently administered after summary proceedings that would be regarded in this country as a travesty of due process of law. Although we can find no case on point, cf. Sanchez-Trujillo v. INS, 801 F.2d 1571, 1575 n. 6 (9th Cir.1986), we have no doubt that drug traffickers are not the sort of "particular social group" to which the provision on asylum refers. The background of this term, explored at length in Ananeh-Firempong v. INS, 766 F.2d 621, 626-28 (1st Cir.1985), and Sanchez-Trujillo v. INS, supra, 801 F.2d at 1575-77, shows that it designates discrete, relatively homogeneous groups targeted for persecution because of assumed disloyalty to the regime--a good example being the kulaks (affluent peasants) whom Stalin starved and exiled in the 1930s. Whatever its precise scope, the term "particular social groups" surely was not intended for the protection of members of the criminal class in this country, merely upon a showing that a foreign country deals with them even more harshly than we do. A contrary conclusion would collapse the fundamental distinction between persecution on the one hand and the prosecution of nonpolitical crimes on the other. Khalaf v. INS, 909 F.2d 589, 591-92 (1st Cir.1990); MacCaud v. INS, 500 F.2d 355, 359 (2d Cir.1974). We suppose there might be an exception for some class of minor or technical offenders in the U.S. who were singled out for savage punishment in their native land, but a drug felon sentenced to thirty years in this country (though Bastanipour's sentence was later reduced to fifteen years) cannot be viewed in that light.

But of course Christians, like members of other religious groups, are a protected class and we must consider whether Bastanipour has a well-founded fear of persecution on account of his Christianity. On this critical question the reasoning in the Board's opinion is radically deficient. After reciting various facts or pseudo-facts bearing on the question, including that Bastanipour has never been baptised or formally joined a church, that he had requested a pork-free diet in prison, and that apostasy though a capital offense under Muslim religious law is not the subject of a specific prohibition in the Iranian penal code, the opinion concludes that Bastanipour "has not established that he has in fact converted to Christianity"--and that anyway there is no hard evidence that Iran has executed anyone for converting to Christianity, except for a man who became a Christian minister; and "we note that the respondent [Bastanipour] does not claim to be a Christian religious leader." (Do we detect a sarcastic note?) All things considered, the Board...