Amin v. Ashcroft, 03-3038.
| Decision Date | 12 November 2004 |
| Docket Number | No. 03-3038.,03-3038. |
| Parties | Raisul AMIN, Petitioner, v. John ASHCROFT, United States Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Garish Sarin, Los Angeles, CA, for petitioner.
Susan K. Houser, Justice Dept., Washington, DC, for respondent.
Before MORRIS SHEPPARD ARNOLD, McMILLIAN, and MELLOY, Circuit Judges.
Raisul Amin petitions for review of an order of the Board of Immigration Appeals ("BIA") that affirmed without opinion an Immigration Judge's ("IJ's") denial of his Motion to Reopen his case. We affirm.
Amin is a native and citizen of Bangladesh. He arrived in the United States on or about February 9, 1991 with a visitor's visa that authorized him to stay until August 9, 1991. In June 1993, Amin filed a claim for asylum and withholding of removal with the Immigration and Naturalization Service ("INS"). While awaiting resolution of his case, Amin married a citizen of Mexico in the United States and had two children with her.
On or about March 9, 1998, the INS served Amin with a Notice to Appear charging that he had overstayed his visa. On September 11, 1998, Amin, at the master removal proceeding, admitted to the factual allegations contained in the Notice to Appear. Subsequently, Amin renewed his application for asylum and withholding of removal.
Amin had two evidentiary hearings in 2001 and 2002 where he and his father testified. The IJ held that Amin was a citizen of Bangladesh and denied relief. The IJ did, however, allow Amin to depart voluntarily. On March 22, 2002, Amin filed an appeal with the BIA to contest the findings of the IJ. The BIA affirmed the decision of the IJ without opinion and Amin appealed to this court.
When the BIA affirms an IJ's decision without opinion, we treat the IJ's decision as the final agency decision. Loulou v. Ashcroft, 354 F.3d 706, 708-09 (8th Cir.2003). If a petitioner wishes "to obtain judicial reversal of the BIA's determination, he [or she] must show that the evidence he [or she] presented was so compelling that no reasonable fact finder could fail to find the requisite fear of persecution." INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). The Elias-Zacarias standard was subsequently codified so that a BIA finding of fact is "conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B). "We review the [BIA's] legal determinations de novo but recognize that its interpretation of the [Immigration and Nationality Act] is entitled to deference." Nyirenda v. INS, 279 F.3d 620, 623 (8th Cir.2002).
Amin makes two arguments on appeal. First, he argues that the IJ erred in finding that Amin did not suffer persecution in Bangladesh. Amin alleges that he was discriminated against because he was a Bihari. Biharis are Pakistani or Indian Muslims that migrated to East Pakistan after the 1947 formation of India and Pakistan. In 1970 and 1971, when Bangladesh became independent through a civil war, the Biharis supported the Pakistanis. When Bangladesh became independent, the Biharis were stranded in the new country and suffered discrimination at the hands of the Bengali population. Amin alleges that he lived his life in a refugee camp for Biharis and suffered an array of discrimination as a result. Amin testified that as retaliation for his father potentially revealing a scheme to embezzle from refugee camp assets, Amin was kidnapped on the orders of Nasim Khan and Abdul Ghafoor and assaulted.
In order to receive asylum, a refugee must prove that he or she is unwilling or unable to return to his or her home country because of past persecution or because there is a well-founded fear of future prosecution because of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 101(a)(42)(A). This court should defer to an IJ's credibility determination of whether a well-founded fear exists if the IJ had "specific, cogent, reason for disbelief." Ghasemimehr v. INS, 7 F.3d 1389, 1391 (8th Cir.1993).
In this case, the IJ had ample reason to believe that Amin's allegations were not credible. Specifically, Amin did not mention Khan and Ghafoor, the alleged kidnappers, in the original 1998 asylum application. Further, Amin did not...
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