Ali v. Reno et al

• Decision Date: 24 October 2000
• Docket Number: No. 99-4464,99-4464
• Citation: 237 F.3d 591
• Parties: (6th Cir. 2001) Zainab Ali, Petitioner, v. Janet Reno, Attorney General; Carol Jenifer, District Director, United States Immigration and Naturalization Service; Immigration and Naturalization Service, Respondents. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 591

237 F.3d 591 (6th Cir. 2001)

Zainab Ali, Petitioner, v. Janet Reno, Attorney General; Carol Jenifer, District Director, United States Immigration and Naturalization Service; Immigration and Naturalization Service, Respondents.

No. 99-4464

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: October 24, 2000

Decided and Filed: January 10, 2001

On Petition for Review of an Order of the Board of Immigration Appeals. No. A75 411 673,

Richard A. Kulics, IMMIGRATION LAW CENTER, Birmingham, Michigan, for Petitioner.

Janet Reno, U.S. Attorney General, U.S. Department of Justice, Washington, D.C., Sharon J. Zealey, Office of the U.S. Attorney, Columbus, OH, Carol Appling, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C., for Respondent.

Brenda E. Ellison, UNITED STATES DEPARTMENT OF JUSTICE, CIVIL DIVISION, OFFICE OF IMMIGRATION LIGITATION, Washington, D.C., Erin Albritton, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C., for Respondents.

Before: DAUGHTREY and CLAY, Circuit Judges; RUSSELL, District Judge^*

OPINION

MARTHA CRAIG DAUGHTREY, Circuit Judge.

Zainab Ali petitioned the Immigration and Naturalization Service for asylum and for protection under the Convention against Torture and other Forms of Cruel, Inhuman or Degrading Treatment or Punishment. An immigration judge denied the petition, and on appeal the Board of Immigration Appeals affirmed the order. Ali now challenges the Board's finding that she had been firmly resettled in Denmark, thus making her ineligible for asylum, and its ruling that she did not warrant protection under the Convention. For the reasons stated below, we conclude that the Board's order must be affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

Zainab Ali is a native and citizen of Iraq. In August 1997, Immigration and Naturalization Service officials detained Ali for attempting to enter the country without proper authorization. The I.N.S. commenced proceedings to deport Ali to Iraq for attempting to enter the country without proper authorization and with the aid of a fraudulent document. Subsequently, Ali filed an application for asylum. After the immigration judge determined that Ali was subject to removal for attempting to enter the country with a false Danish passport, he proceeded to address Ali's asylum claim, which was based on the following circumstances.

Ali's family is Shiite Muslim, and her father was a member of the opposition Al-Da'Wa party in Iraq during the 1970s. During this period, Ali's father went into hiding to escape threats and harassment from Iraqi authorities, and because of his absence, Ali's mother was subject to threats and detainment. Due to the constant threats and harassment, the family fled Iraq in 1980 and settled in Syria for ten years. In Syria, the family rented a home for shelter, Ali attended school, and Ali's father continued his affiliation and activities with Al-Da'Wa. Because of his political activities, Ali's father was arrested several times by Syrian authorities who endeavored to persuade him to relinquish his political affiliation and spy on Iraq.

In 1990, the family returned to Iraq to visit Ali's ailing grandmother and stayed approximately two months, until the Iraqi government discovered that they were in the country. According to Ali, the government pursued the family in a high-speed car chase, during which there was an accident in which Ali suffered serious injury, but Ali and her family escaped across the border into Syria.

The family remained in Syria for two months, during which time Ali, at the age of 17, married an Iraqi citizen. Shortly thereafter, Danish authorities accepted the family into Denmark as refugees. The Danish authorities issued Ali and her family passports and residence permits, and her family continues to live in Denmark. Ali, however, without notification to Danish authorities, utilized her Danish passport and returned to Syria after staying six months in Denmark. Using an Iraqi passport that she obtained during her visit to her grandmother, Ali obtained a visa and entered the United States in 1990 to visit her husband, who had matriculated at an educational institution in Ohio.

Ali stayed in the United States for six years, during which time her visa expired, and she gave birth to two children who have United States citizenship. Following a visit from her mother, Ali and her children went to Denmark in April 1997, in response to information from her family that her father was seriously ill. Upon arrival, Danish authorities confiscated her passport because it had expired. They also informed her that she no longer had refugee status in Denmark and that she would be deported. Ali applied for asylum in Denmark, but her application was rejected.

Shortly after her arrival in Denmark, Ali discovered that the report of her father's illness was a ruse designed to persuade her to leave her husband. At one point during her five-month stay in Denmark, Ali was beaten and kicked by her father and three brothers because she refused to leave her husband. Apparently, the Danish police arrested the assailants, and an officer questioned Ali at a hospital. The Danish police report indicates that Ali told the police that she did not want her three brothers punished, although she wanted the authorities to admonish her brothers not to contact her any more. Ali testified that an officer said that he would instruct Ali's father and brothers not to bother her or go near her. However, when Ali herself requested that her brothers not be punished, the Danish chief of police decided not to pursue the case any further and released them from custody. According to Ali, after she was released from the hospital, she went to stay with her sister who lived in a location five hours from her parents' home. At her sister's home, one of Ali's brothers wielded a gun and threatened to kill her. Following this incident, Ali obtained the false Danish passport and returned to the United States with her children.

The immigration judge denied Ali's request for asylum and found her ineligible for withholding from removal. On appeal, the Board remanded the case and directed the immigration judge to correct some deficiencies in the record and rule on the motion to reconsider. On reconsideration, the immigration judge denied the request for asylum on the basis of his finding that Ali had firmly resettled in Denmark and thus was not eligible for asylum according to statutory dictate, but he granted her request for withholding of removal to Iraq and ordered instead that she be removed to Denmark or Syria. Ali now seeks reversal of the Board's order affirming that ruling.

DISCUSSION

A. Firm Resettlement

The United States Attorney General possesses discretion to grant asylum to any alien she determines to be a refugee, 8 U.S.C. § 1158(b)(1), and a court may not reverse the Attorney General's determination unless the decision is manifestly contrary to the law and represents an abuse of discretion. See id. § 1252(b)(4)(D). On review, moreover, administrative factual findings "are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." See id. § 1252(b)(4)(B).

Under the recently enacted Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) (Pub.L. 104-208, 110 Stat. 3009), an alien may not obtain asylum if she "was firmly resettled in another country prior to arriving in the United States." 8 U.S.C. § 1158(b)(A)(vi). Immigration regulations further provide that an alien is firmly resettled "if, prior to arrival in the United States, he or she entered into another nation with, or while in that nation received, an offer of permanent resident status, citizenship, or some other type of permanent resettlement" 8 C.F.R. § 208.15 (2000). But even before the advent of IIRIRA and the express, statutory requirement with respect to resettlement, the Supreme Court declared that the presence of firm resettlement constituted a factor for mandatory consideration in asylum petitions. SeeRosenberg v. Woo, 402 U.S. 49 (1971). In Woo, the petitioner fled China in 1953 and resided in Hong Kong until 1960 when he entered the United States on a visa. The petitioner remained in the United States, allowing his visa to expire. After the I.N.S. commenced deportation proceedings in 1966, the petitioner applied for an immigrant visa claiming a preference as an alien fearing persecution from his Communist homeland. Id. at 50-51. In reviewing the Ninth Circuit's holding that the issue of firm resettlement was irrelevant to the petitioner's status, the Court noted that "the terms 'firmly resettled' and 'fled' are closely related to the central theme of . . . refugee legislation -- the creation of a haven for the world's homeless people." Id. at 55. The country's asylum laws were "enacted to help alleviate[] the suffering of homeless persons and the political instability associated with their plight. It was never intended to open the United States to refugees who had found shelter in another nation and had begun to build new lives." Id. at 56. As a result, the Court held that firm resettlement "is one of the factors which the Immigration and Naturalization Service must take into account to determine whether a refugee seeks asylum in this country as a consequence of [her] flight to avoid persecution." Id.

The I.N.S. subsequently imported the firm-resettlement proscription into its asylum regulations, and various courts have echoed the rationale of the Supreme Court's opinion in Woo, although the issue has not been treated in a published opinion in this circuit. In Yang v. Immigration and Naturalization Service, 79 F.3d 932 (9th Cir. 1996), for example, the petitioners fled Laos and took refuge in France, where they remained for 14 years. In ruling that the I.N.S.'s firm resettlement regulation did not exceed the...