Bahramnia v. U.S. I.N.S.

• Decision Date: 18 February 1986
• Docket Number: No. 85-4446,85-4446
• Citation: 782 F.2d 1243
• Parties: Hamid BAHRAMNIA, Petitioner, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1243

782 F.2d 1243

Hamid BAHRAMNIA, Petitioner, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 85-4446

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Feb. 18, 1986.

Joshua Turin, Dallas, Tex., for petitioner.

Robert L. Bombough, Director, Linda B. Adams, Allen W. Hausman and Jane A. Williams, Attys., Office of Immigration Litigation, Washington, D.C., David Lambert, Dist. Director, I.N.S., New Orleans, La., Ronald Chandler, Dist. Director, I.N.S., Dallas, Tex., for respondent.

Petition For Review Of An Order Of The Board Of Immigration Appeals.

Before RUBIN, JOHNSON and JONES, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

Because the Board of Immigration Appeals did not abuse its discretion in denying Hamid Bahramnia's motion to reopen his deportation proceeding on the ground that he had failed to make a prima facie showing of his eligibility for asylum or withholding of deportation, we deny his petition for review.

I.

Bahramnia, a thirty-five year old Iranian citizen, entered the United States six years ago on a tourist visa that expired September 1, 1979. In July 1979, he applied for a change of his tourist status to that of a nonimmigrant student, requesting permission to stay in the United States through August 22, 1983. The request was denied by the District Director pursuant to a presidential policy then in effect that directed the Attorney General not to exercise his discretionary authority favorably on behalf of Iranian nationals.

In 1980, Bahramnia was ordered deported to Iran and he appealed. Thereafter, without notifying the Immigration and Naturalization Service (INS) of his change of address, he moved to Arlington, Virginia, and married a United States citizen. Although his wife filed a petition to establish his status as an immediate-relative of a United States citizen, and Bahramnia applied for status as a permanent resident, the couple divorced before his petition was acted on.

In 1981, the Board of Immigration Appeals (Board) dismissed Bahramnia's appeal from the 1980 deportation order, granting him the privilege of voluntarily departing with thirty days. Bahramnia neither complied with nor appealed this decision. After he was arrested by INS agents almost five years later, on May 16, 1985, he moved to reopen the proceedings on the basis of a request for political asylum and sought a stay of deportation. When the stay was denied, he sought a writ of habeas corpus from the District Court for the Northern District of Texas. That court stayed deportation pending the Board's consideration of the motion to reopen. Thereafter, the Board denied the motion to reopen because Bahramnia failed to make a prima facie showing of his eligibility either for political asylum, pursuant to section 208(a) of the Immigration and Nationality Act, ¹ or for withholding of deportation pursuant to section 243(h) of the Act. ² The Board found that Bahramnia (1) did not show that his application was supported by "evidence tending to establish that it is more likely than not he would be subject to persecution" on account of any one of the statutorily-articulated bases: race, religion, nationality, membership in a particular social group, or political opinion; and (2) "failed to submit evidence which would suggest that he has adequately substantiated his claim to a well-founded fear of persecution." Bahramnia seeks review of that denial.

II.

The reopening of deportation proceedings is discretionary with the Board. ³ The Supreme Court held in INS v. Jong Ha Wang, ⁴ that denials of reopening by the Board are not to be casually reversed. The Court there noted: "the Government has a legitimate interest in creating official procedures for handling motions to reopen deportation proceedings so as readily to identify those cases raising new and meritorious considerations." ⁵ We review the Board's determination, therefore, only for an abuse of discretion. ⁶

The Board may not grant a motion to reopen unless it is based upon new, material facts. ⁷ Allegations of such new facts must be supported by affidavits or other evidentiary material ⁸ sufficient to establish a prima facie case of eligibility for the relief sought. ⁹ Once deportation proceedings have been completed, a motion to reopen, in addition to meeting the requirements of 8 C.F.R. Secs. 3.2 and 3.8(a) (1985), must also "reasonably explain the failure to request asylum prior to the completion of the exclusion or deportation proceeding," a criterion imposed by 8 C.F.R. Sec. 208.11 (1985). This is an additional requirement to the establishment of a prima facie case of eligibility. ¹⁰

Bahramnia agrees that he must both make out a prima facie case of eligibility for the relief he seeks and explain why he failed to seek this relief at his earlier deportation proceeding. He contends, however, that 8 C.F.R. Sec. 208.11, which governs requests for asylum made after the conclusion of deportation proceedings, must be applied in preference to 8 C.F.R. Sec. 3.2, which governs motions to reopen in general, to determine the evidentiary burden that he must meet to establish a prima facie case of eligibility. ¹¹ He argues that section 208.11 mandates a lesser evidentiary standard in a motion to reopen involving an asylum claim than the standard usually required to establish a prima facie case in motions to reopen on other grounds.

Bahramnia argues that this interpretation is consonant with the 1980 amendments to the Immigration and Nationality Act. These amendments, which sought to effectuate "our national commitment to human rights and humanitarian concerns," ¹² included a change in section 208 of the INA, which deals with asylum claims. Thus, Bahramnia contends, his view of 8 C.F.R. Sec. 208.11 is necessary to further the congressional intent behind the amendments to liberalize our asylum procedures. Not only have other circuits held that section 208.11 must be satisfied in conjunction with sections 3.2 and 3.8(a) when an asylum applicant files a motion to reopen, ¹³ but the Ninth Circuit has specifically rejected this exact argument. ¹⁴ We conclude, however, that we need not reach petitioner's argument, for the Supreme Court has recently held that, even if an alien has made out a prima facie case of eligibility for relief in his motion to reopen, the Attorney General has the discretion to deny that motion. ¹⁵

Bahramnia lastly argues that the Board should not prejudge the merits of his application for relief without allowing him an opportunity to prove his case. We agree. ¹⁶ And the Board did not do so. Necessarily, the Board must examine the substance of the petitioner's case to a limited extent in order to determine whether the movant has established a prima facie case. We are convinced that the Board did no more than that in this case.

III.

The Immigration and Nationality Act contains two provisions permitting aliens to resist deportation to countries where their life or freedom would be jeopardized: section 208(a), 8 U.S.C. Sec. 1158(a) (1982), providing that an alien subject to exclusion from the United States may apply for asylum, and section 243(h), 8 U.S.C. Sec. 1253(h) (1982), preventing the deportation of an alien to a country if the Attorney General determines that the alien's life or freedom would be threatened in that country because of his political opinion. The statutory standards for granting asylum and for withholding deportation are phrased in different terms. The withholding provision ¹⁷ requires an alien to prove that his "life or freedom would be threatened" on account of one of five statutory grounds. ¹⁸ The asylum section, on the other hand, requires that an alien prove "a well-founded fear of persecution" on the basis of the same five statutory grounds. The different phraseology has led to a controversy over the standard of proof by which an alien must prove his entitlement to such relief, and has resulted in attempts by the courts of appeals to define further the phrases "well-founded fear" and "would be threatened."

The Supreme Court settled one aspect of the dispute by ruling, in INS v. Stevic, ¹⁹ that an alien applying for withholding of deportation under section 243(h) bears the burden of proving ²⁰ a "clear probability of persecution." ²¹ The Court further held that "clear probability" is equivalent to a showing that "it is more likely than not that the alien would be subject to persecution on one of the specified grounds." ²² Upon that showing, withholding of deportation must be granted. ²³

Asylum is a related but distinct remedy. Section 208 of the Immigration and Nationality Act gives the Attorney General discretion to grant asylum to an alien if the alien establishes that he is a "refugee." The Act defines a "refugee" as "any person who is outside any country of such person's nationality ... and is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." ²⁴ Although the alien bears the burden of proving his entitlement to asylum, ²⁵ the standard of proof that he must satisfy has not yet been resolved. In Stevic, the Court expressly declined to decide whether or how the standards under sections 208(a) and 243(h) differ. ²⁶ Because the issue of entitlement to asylum was not before the Court in Stevic, it declined to decide the meaning of the phrase "well-founded fear of persecution.

Since Stevic was decided, the Third Circuit ²⁷ and the Board of Immigration Appeals ²⁸ have concluded that the standard for proving entitlement to asylum and withholding of deportation are identical, or, in practice, converge. Similarly, the Sixth Circuit has noted that, while the standards may differ as written, the regulations provide:

requests for asylum made after the institution of deportation proceedings ...