Albathani v. I.N.S., No. 02-1541.

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtLynch
Citation318 F.3d 365
PartiesMarwan Youssef ALBATHANI, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
Decision Date06 February 2003
Docket NumberNo. 02-1541.
318 F.3d 365
Marwan Youssef ALBATHANI, Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 02-1541.
United States Court of Appeals, First Circuit.
Heard December 3, 2002.
Decided February 6, 2003.

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Ronald L. Abramson, with whom Abramson, Bailinson & O'Leary, P.C., was on the brief for petitioner.

Beth Werlin, with whom Mary A. Kenney, Nadine K. Wettstein, Iris Gomez, Harvey Kaplan, and Kaplan, Sullivan & Friedman were on the brief for American Immigration Law Foundation, amicus curiae.

John C. Cunningham, Senior Litigation Counsel, Office of Immigration Litigation, with whom Robert D. McCallum, Jr., Assistant Attorney General, Linda S. Wendtland, Assistant Director, and Terri J. Scadron, Senior Litigation Counsel, were on the brief for respondent.

Before LYNCH, Circuit Judge, FARRIS,* Senior Circuit Judge, and LIPEZ, Circuit Judge.

LYNCH, Circuit Judge.


Marwan Youssef Albathani, a native and citizen of Lebanon, petitions for review of the Board of Immigration Appeal's (BIA's) summary affirmance of an Immigration Judge's denial of his application for asylum, withholding of deportation, and relief under the United Nations Convention Against Torture. His case raises a challenge, new for this court, to the validity of the BIA's streamlining procedures adopted in 1999. 8 C.F.R. § 3.1(a)(7) (2002)(amended by 67 Fed.Reg. 54,878 (Aug. 26, 2002)).

Albathani, a Maronite Christian, sought asylum on the basis that he feared persecution by members of Hezbollah active in Lebanon. He arrived in the United States in January 1999 without any valid documents permitting entry. He was taken into custody by the INS and had an initial interview and a subsequent credible fear interview; he was found to have a credible fear of persecution. He was allowed to remain in the United States pending a hearing on his asylum and other claims. At the hearing in September 2000, the Immigration Judge (IJ) found Albathani's story not credible and denied his application. Her finding was affirmed by the BIA in a summary affirmance under 8 C.F.R. § 3.1(a)(7).

Albathani challenges this ruling on several grounds: both that his hearing before the IJ denied him due process of law, for several reasons, and that the summary affirmance procedure itself violates due process. Additionally, an amici curiae brief filed by the American Immigration Law Foundation, the New England Chapter of the American Immigration Lawyers Association, and the Massachusetts Law Reform Institute argues that the summary affirmance procedure also violates rules of administrative law.1 We affirm.

I.

From the 1940s to the 1970s, political power has been shared in Lebanon between members of different religious communities. The president is traditionally a Maronite Christian, while the prime minister is traditionally a Sunni Muslim. Lebanon's Parliament is also divided on a system of proportional representation based

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on religion. This compromise broke down in the 1970s, however. Between 1975 and 1990, Lebanon was wracked by conflict, both between Lebanese Christians and Muslims, and among foreign forces. According to the State Department, non-Lebanese military forces control much of the country. See Malek v. INS, 198 F.3d 1016, 1018 (7th Cir.2000). A variety of militias are associated with different groups in Lebanon, both foreign and domestic. The conflict between two of those militias is pertinent here: the Lebanese Forces, a rightist, Christian militia, and Hezbollah, an Islamicist militia with foreign support.

The Lebanese Forces was affiliated with the Christian Phalangist militia, a Maronite group which had fought against Muslim nationalists in 1975, touching off Lebanon's civil war. The Lebanese Forces was founded in 1976. In 1991, it was licensed as a political party, but in 1994 it was banned and a number of members were arrested because of alleged involvement in the bombing of a church. The leader of the Lebanese Forces, Samir Geagea, was also arrested and charged with the murder of a political rival. In 1995, Geagea was found guilty and sentenced to death, although the sentence was commuted to life imprisonment. Subsequently, Geagea was charged with the 1987 assassination of Muslim Prime Minister Rashid Karami. Other members of the Lebanese Forces were convicted of a 1996 bus bombing in Syria which killed eleven people.

Hezbollah, meanwhile, is a Shia Muslim political group backed by Iran. It became prominent in the mid-1980s in battles against Israeli forces in southern Lebanon. In Lebanon, Hezbollah operates in the Bekaa Valley, the southern suburbs of Beirut, and southern Lebanon. It is known or suspected to have been involved in terrorist attacks including the truck bombings of the U.S. Embassy and marine barracks in Beirut in October 1983. See U.S. Dep't of State, Background Information on Foreign Terrorist Organizations (Oct. 8, 1999), available at http:/www.state.gov/ www/global/terrorism/fto_info_1999.html. On November 2, 2001, Hezbollah was added to the list of terrorists and groups linked to terrorism covered by Executive Order No. 13,224, 66 Fed.Reg. 49,079 (Sept. 23, 2001), which blocked access to their assets. See U.S. Dep't of State, Comprehensive List of Terrorists and Groups Identified Under Executive Order 13224, available at http: www.state. gov/s/ct/rls/fs/2001/6531.htm.

Marwan Albathani, a Maronite Christian, was born in Lebanon on November 15, 1973, and grew up in the midst of this conflict. Members of his family were involved in the Lebanese Forces, including an older brother, who was a captain of the Lebanese Forces in the Dikwane district of Beirut. Albathani lived in Beirut, as did some of his sisters and brothers. His father and other sisters lived in Deir El-Ahmar, approximately two hours to the east of Beirut. Other of his relatives lived in the United States. Albathani sometimes worked in Beirut, sometimes not; when he worked it was as either a car mechanic or a car dealer. Albathani asserted that after persecution by members of Hezbollah he decided to flee Lebanon.

Albathani traveled to Cyprus in November 1998, where he applied for a tourist visa to the United States but did not seek refugee status. On his application, Albathani claimed that he was married, that he worked as an electrician, that he had no relatives in the United States, and that he had no intention of working or studying in the United States (all untrue). Albathani's visa application was denied. Albathani then returned to Cyprus in January 1999, with a visa to Panama, purchased a plane

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ticket to Panama by way of London and Miami, and got off in Miami on January 14. He was immediately taken into custody by INS officers.

A. Initial INS Interview

That day an INS officer with a translator interviewed Albathani. Albathani said he was "escaping from Lebanon because of the Hezbollah," which was harassing him because he was not Muslim. He said that he was a car salesman, and that both his mother and brother resided legally in the United States. Albathani admitted that he had no intention of going to Panama and wanted to stay in the United States. Based on this initial interview, the INS officer scheduled a further credible fear interview.

B. Credible Fear Interview

During his credible fear interview on January 27, 1999, three different interpreters were required before one was found who could understand Albathani's difficult accent. Albathani told the interviewing INS officer that he had served as a "regular soldier" in the Lebanese Forces for five years. His problems began in the mid-1990s; at that time whenever he visited his family in Deir El-Ahmar he was stopped and questioned by members of Hezbollah. On one occasion, three months before he left Lebanon, according to Albathani, he was stopped for four hours. He and his brother were tied up, Albathani was slapped in the face, they were placed in the trunk of a car, and robbed of $1,200 and some jewelry. Albathani attributed this to Hezbollah knowledge that he was a member of the Lebanese Forces. He said that he was arrested "several times," but could not provide a specific number. He had to leave Lebanon because he feared being kidnapped by Hezbollah members.

Based on this interview, Albathani was found to have a credible fear of prosecution based on membership in a particular social group, namely the Lebanese Forces. The officer found that he was credible, that his testimony was "detailed, internally consistent, consistent [with] country conditions and any other extrinsic evidence," and that there was a "significant possibility that he ... could establish eligibility for asylum." Albathani was subsequently allowed to move from Miami to New Hampshire, where his family was located.2

C. Asylum Hearing

Albathani had submitted an application for asylum on October 14, 1999, in Miami. He admitted his illegal entry and conceded deportability. His application for asylum described two assaults by Hezbollah. In the first, in April 1996, he claimed he was stopped, interrogated, jailed in the town of Vaibalk, beaten and left by a roadside. He said he was then picked up and taken to a hospital, where he remained in a coma for over two weeks. In the second, more than two years later, he asserted he was again stopped and beaten, robbed of his car and money, and his life was threatened. Albathani said that this assault took place in December 1998, although in both his credible fear interview and the subsequent hearing before the IJ he dated it earlier, in either September or October 1998. No mention is made of a later threat. Albathani also described his work in the Lebanese Forces in greater detail, alleging that he had been a member since 1989, that he worked as a secretary from 1989 to 1992, and that from 1992 to 1998 he served as bodyguard for the group's leader. Albathani

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sought asylum, withholding of removal, and...

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142 practice notes
  • Citizens Awareness Network, Inc. v. U.S., No. 04-1145.
    • United States
    • U.S. Court of Appeals — First Circuit
    • December 10, 2004
    ...of contrary conduct a court has no right either to slough off that interpretation or to deem it disingenuous. Cf. Albathani v. INS, 318 F.3d 365, 378-79 (1st Cir.2003) (accepting the agency's good faith in carrying out its procedures, while acknowledging that evidence to the contrary might ......
  • Zhong v. U.S. Dept. of Justice, Docket No. 02-4882.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • August 8, 2006
    ...adopt, our review will necessarily be confined to the reasoning of the IJ" (internal quotation marks omitted)); see also Albathani v. INS, 318 F.3d 365, 377-78 (1st Cir.2003) ("Because the summary affirmance is only of the `result' and not the reasoning, this means that courts of appeals ar......
  • Garza v. Hargan, No. 17-5236.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • October 24, 2017
    ...has never entered the United States, J.D. is not entitled to the due process protections of the Fifth Amendment. See Albathani v. INS , 318 F.3d 365, 375 (1st Cir. 2003) ("As an unadmitted alien present in the United States, Albathani's due process rights are limited"). This is, or should b......
  • Lanza v. Ashcroft, No. 02-73538.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • November 22, 2004
    ...Gen., 327 F.3d 1283, 1288-89 (11th Cir.2003) (same); Soadjede v. Ashcroft, 324 F.3d 830, 831-33 (5th Cir.2003) (same); Albathani v. INS, 318 F.3d 365, 377 (1st Cir.2003) 8. See, e.g., 8 U.S.C. § 1158(a)(3) (2000) (barring judicial review in asylum cases of whether a safe third country exist......
  • Request a trial to view additional results
141 cases
  • Citizens Awareness Network, Inc. v. U.S., No. 04-1145.
    • United States
    • U.S. Court of Appeals — First Circuit
    • December 10, 2004
    ...of contrary conduct a court has no right either to slough off that interpretation or to deem it disingenuous. Cf. Albathani v. INS, 318 F.3d 365, 378-79 (1st Cir.2003) (accepting the agency's good faith in carrying out its procedures, while acknowledging that evidence to the contrary might ......
  • Zhong v. U.S. Dept. of Justice, Docket No. 02-4882.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • August 8, 2006
    ...adopt, our review will necessarily be confined to the reasoning of the IJ" (internal quotation marks omitted)); see also Albathani v. INS, 318 F.3d 365, 377-78 (1st Cir.2003) ("Because the summary affirmance is only of the `result' and not the reasoning, this means that courts of appeals ar......
  • Garza v. Hargan, No. 17-5236.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • October 24, 2017
    ...has never entered the United States, J.D. is not entitled to the due process protections of the Fifth Amendment. See Albathani v. INS , 318 F.3d 365, 375 (1st Cir. 2003) ("As an unadmitted alien present in the United States, Albathani's due process rights are limited"). This is, or should b......
  • Lanza v. Ashcroft, No. 02-73538.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • November 22, 2004
    ...Gen., 327 F.3d 1283, 1288-89 (11th Cir.2003) (same); Soadjede v. Ashcroft, 324 F.3d 830, 831-33 (5th Cir.2003) (same); Albathani v. INS, 318 F.3d 365, 377 (1st Cir.2003) 8. See, e.g., 8 U.S.C. § 1158(a)(3) (2000) (barring judicial review in asylum cases of whether a safe third country exist......
  • Request a trial to view additional results

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