Ananeh-Firempong v. I.N.S., ANANEH-FIREMPON

• Decision Date: 24 June 1985
• Docket Number: No. 84-1997,ANANEH-FIREMPON,P,84-1997
• Parties: Beatriceetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — First Circuit

Page 621

766 F.2d 621

Beatrice ANANEH-FIREMPONG, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 84-1997.

United States Court of Appeals First Circuit.

Argued April 5, 1985.

Decided June 24, 1985.

Raymond H. Young, Boston, Mass., with whom Young & Bayle, Boston, Mass., and Jonathan H. Stevenson were on brief, for petitioner.

James A. Hunolt, Acting Asst. Director, Washington, D.C., with whom Michael P. Lindemann, Office of Immigration Litigation, Civ. Div., U.S. Dept. of Justice, and Richard K. Willard, Acting Asst. Atty. Gen., Washington, D.C., were on brief, for respondent.

Before CAMPBELL, Chief Judge, BOWNES and BREYER, Circuit Judges.

BREYER, Circuit Judge.

The petitioner, Beatrice Ananeh-Firempong, asked the Immigration and Naturalization Service to reopen her deportation proceedings so that she could present a claim for withholding of deportation, on the ground that she was a 'political' or 'social' refugee. 8 U.S.C. Sec. 1253(h). An immigration judge granted her motion to reopen, but the Board of Immigration Appeals reversed, stating that she had failed to make out a prima facie case that she would face persecution if returned to her native Ghana. The petitioner seeks review in this court. See 8 U.S.C. Sec. 1105a(a); Sang Seup Shin v. INS, 750 F.2d 122, 124 n. 4 (D.C.Cir.1984). We believe that the petitioner's affidavits make out a prima facie case for withholding deportation, and that the INS consequently should have reopened her proceeding. We reverse the Board's decision to the contrary.

I

Petitioner, a citizen of Ghana, obtained a visa to study in the United States, overstayed her visa, and, in 1982, was found deportable. In February 1983 she filed a motion to reopen her deportation proceedings, arguing in part that the Attorney General should withhold her deportation because of a threat to her life or freedom if returned to Ghana. She pointed to Sec. 243(h) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1253(h), which states:

The Attorney General shall not deport or return any alien ... to a country if the Attorney General determines that such alien's life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion.

(Emphasis added.) Petitioner attached to her motion various supporting documents--an affidavit from an academic expert on African politics, her own affidavit, and several newspaper and magazine articles--which indicated the following facts:

a. The present government of Ghana, headed by former Flight Lt. Jerry Rawlings, came to power in late 1981 as a result of a coup d'etat, overturning the prior constitutional government of Dr. Hilla Limann and the Convention Peoples Party. In late 1982, there were two unsuccessful coup attempts aimed at overthrowing the Rawlings regime.

b. Immediately after these attempted coups, the Rawlings government began persecuting (1) those associated with the former government, (2) members of the Ashanti tribe, and (3) professionals, businesspeople, and those who are highly educated. This persecution has consisted of attacks on many such persons, including killings. See Affidavit of Prof. Dushku (stating that "many (perhaps hundreds) have been killed" under the Rawlings regime for their association with the former regime); see also the detailed descriptions in Africa Now, Dec. 1982, at 11-15.

c. Petitioner's family falls within all three of the above categories. Her father has been an active member of the CPP since its founding, and has held numerous posts in the party. He was a close friend of the former head of state, Dr. Limann, and gave petitioner the middle name Nkurumah, after Kwame Nkruma, the founder of the CPP. Petitioner's father is also an educated professional person, working as Headmaster of Schools of the Presbyterian Unit in Ghana. He owns his own home, and, at least until Rawlings took power, had a substantial bank account. Further, he is a member of the Ashanti tribe. Petitioner's family lives in a prosperous neighborhood inhabited by professionals and businesspeople whom the present government considers to have supported the CPP and who are, therefore, politically suspect.

d. Immediately after the attempted coups in 1982, the government seized the bank account of petitioner's family, and it placed her parents under house arrest. Petitioner's family's telephone service has been interrupted. She has received only one letter from her family since her parents were placed under house arrest, although she previously received letters every few weeks. A phone conversation with a third party revealed that a government soldier beat petitioner's nephew, who was staying at her parents' house, to the point where his intestines were ruptured.

The immigration judge who was assigned to petitioner's case ordered her proceeding reopened. The INS then appealed this interlocutory order to the Board of Immigration Appeals. It argued that the immigration judge had used the wrong form in announcing his decision, and failed to state his reasons for reopening in writing. The INS sought as remedy a remand to the immigration judge for a written statement of reasons. The Board, however, went a step further, and held that the immigration judge should not have reopened the proceeding because petitioner's moving papers did not make out a prima facie case that entitled her to withholding of deportation under the statute. Petitioner now appeals that decision.

II

At the outset we consider the standard that ought to govern our review of the Board's decision. Courts have often hesitated to 'second guess' the INS, and the Supreme Court has urged caution lest judges remove from INS administrators that power to control the country's borders that Congress entrusted to the agency, not to the courts. See, e.g., Kleindienst v. Mandel, 408 U.S. 753, 766, 92 S.Ct. 2576, 2583, 33 L.Ed.2d 683 (1972) (quoting Lem Moon Sing v. United States, 158 U.S. 538, 547, 15 S.Ct. 967, 970, 39 L.Ed. 1082 (1895)); see also K. Davis, Administrative Law Treatise Sec. 8:10, at 200 (2d ed. 1979) ("The Immigration and Nationality Act is shot through with provisions that 'the Attorney General may, in his discretion' do something for an alien."). The INS points to a number of cases suggesting that the scope of the government's discretionary power in this area of the law is unusually broad--to the point where a reviewing court would set aside a decision of the sort here at issue only in very unusual circumstances. See, e.g., INS v. Jong Ha Wang, 450 U.S. 139, 144, 101 S.Ct. 1027, 1031, 67 L.Ed.2d 123 (1981); LeBlanc v. INS, 715 F.2d 685, 688-93 (1st Cir.1983); In re Acosta-Solorzano, Interim Decision No. --- (BIA Mar. 1, 1985).

If the INS means only to point out that the Attorney General enjoys broad delegated power to "determine," Sec. 243(h), the facts, and considerable leeway in interpreting the terms of its governing statute (free of judicial interference), we agree. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 488-90, 71 S.Ct. 456, 464-65, 95 L.Ed. 456 (1951); Udall v. Tallman, 380 U.S. 1, 16-17, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965); Chevron, U.S.A., Inc. v. National Resources Defense Council, --- U.S. ----, ----, 104 S.Ct. 2778, ----, 81 L.Ed.2d 694 (1984). But, if the INS means that the cases it cites reach beyond ordinary principles of administrative law to require a special judicial mood of extraordinary caution in all immigration cases, we do not agree. To be more specific, we do not believe that the cases it cites require so extreme and unusual a judicial attitude when courts review a purely factual determination under the statute now before us.

Even if such cases as Jong Ha Wang, LeBlanc, and Acosta-Solorzano could be interpreted to call for such an attitude (a matter we need not decide), there is an important difference between the language of the statutes at issue in those cases and the statute at issue here, Sec. 243(h). Section 243(h), unlike the other statutes, does not use terms like "discretion" or the equivalent. Instead, it imposes an express limitation on the Attorney General's power to deport certain classes of aliens physically present in the United States. (See Appendix for texts of relevant statutes.) The statute considered in Jong Ha Wang and LeBlanc allows the Attorney General to suspend the deportation of aliens for reasons of hardship. It speaks of aliens who "in [his] opinion" are likely to suffer "extreme hardship," and it also says that the Attorney General "may" decide to suspend deportation proceedings "in his discretion." 8 U.S.C. Sec. 1254(a)(1); see Jong Ha Wang, 450 U.S. at 144-46, 101 S.Ct. at 1031-32. Likewise, the statute at issue in Acosta-Solorzano allows the Attorney General to offer asylum to aliens (including those who are "at a land border or port of entry") who satisfy the Act's definition of a refugee. See 8 U.S.C. Sec. 1101(a)(42)(A). It says he "may" do so "in [his] discretion." 8 U.S.C. Sec. 1158(a); see INS v. Stevic, --- U.S. ----, 104 S.Ct. 2489, 2497 n. 18, 81 L.Ed.2d 321 (1984); Acosta-Solorzano, slip op. at 7. Even the statutory predecessor of the statute now before us said, prior to 1980, that the Attorney General "is authorized" to withhold deportation of persons who "in his opinion" faced persecution. Former 8 U.S.C. Sec. 1253(h), repealed by Refugee Act of 1980, Pub.L. 96-212, 94 Stat. 107.

Section 243(h) as it now stands, however, says that "[t]he Attorney General shall not deport or return any alien ... to a country if the Attorney General determines that such alien's life or freedom would be threatened ...." 8 U.S.C. Sec. 1253(h) (emphasis added). The words "shall not" imply a mandatory duty; the objective nature of that duty is emphasized by the removal of the words "in his opinion" from the statute.

The legislative history of this language makes clear that these limitations on the...