Carvajal-Munoz v. Immigration and Naturalization Service, CARVAJAL-MUNO

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Writing for the Court: Before CUMMINGS, Chief Judge, and WOOD and COFFEY; HARLINGTON WOOD, Jr.
• Citation: 743 F.2d 562
• Parties: Reneetitioner-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellee.
• Decision Date: 12 September 1984
• Docket Number: No. 83-1952,P,CARVAJAL-MUNO

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743 F.2d 562 Rene CARVAJAL-MUNOZ, Petitioner-Appellant,
v.
IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellee. No. 83-1952. United States Court of Appeals,
Seventh Circuit. Argued Jan. 9, 1984.
Decided Sept. 12, 1984.

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Joseph Minsky, Minsky & Feiertag, Chicago, Ill., for petitioner-appellant.

Hilary S. Molay, Office of Immigration Litigation, Civil Dept., Dept. of Justice, Washington, D.C., for respondent-appellee.

Before CUMMINGS, Chief Judge, and WOOD and COFFEY, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

Petitioner Rene Carvajal-Munoz, a 37-year-old native of Chile and a former citizen of Argentina, ¹ seeks review of an order by the Board of Immigration Appeals ("BIA") denying his application for asylum under section 208 of the Immigration and Nationality Act ("Immigration Act"), 8 U.S.C. Sec. 1158 (1982), and his application for temporary withholding of deportation under section 243(h) of the Immigration Act, 8 U.S.C. Sec. 1253(h) (1982). At the time of his last entry into the United States on June 12, 1979, near Del Rio, Texas, petitioner was a citizen of Argentina. Because petitioner entered the country as an alien without an immigration visa and without inspection by an immigration officer, the Immigration and Naturalization Service ("INS") charged petitioner with deportability under section 241(a)(2) of the Immigration Act, 8 U.S.C. Sec. 1251 (1982). At a deportation hearing occurring on September 25, 1980, and resumed on November 13, 1980, petitioner admitted the allegations in the order to show cause, except that regarding his citizenship, and conceded deportability. The immigration judge found him deportable based on these admissions, and denied his requests for asylum and withholding of deportation. The immigration judge concluded that petitioner had failed to establish a clear probability that his life or his freedom would be threatened in either Argentina or Chile, and gave petitioner thirty days to voluntarily depart the United States or thereafter be deported to Argentina. Petitioner's administrative appeal to the BIA, an agency of the Department of

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Justice, was denied. Because we find that petitioner has not met his burden of establishing that he qualifies for asylum or withholding of deportation, we affirm the BIA's order. ²

I.

The Immigration Act provides two procedural paths by which deportable aliens presently within the United States may remain here to avoid persecution in another country on account of race, religion, nationality, membership in a particular social group, or political opinion. Petitioner invoked both of these paths. The first path is to apply for a grant of asylum pursuant to section 208 of the Immigration Act, 8 U.S.C. Sec. 1158 (1982), which may be done at any time, including during or after deportation proceedings. The second route is to apply for a temporary withholding of deportation pursuant to section 243(h) of the Immigration Act, 8 U.S.C. Sec. 1253(h) (1982), once the alien has been found deportable and a country of deportation has been designated. Although the two paths are closely related and appear to overlap, they involve different procedures, provide different forms of relief, and place different burdens of proof on the alien. In addition, asylum relief is discretionary, while deportation relief, which protects against deportation to a specific country, must be granted to qualified applicants.

Asylum claims were formerly outside the jurisdiction of an immigration judge, but an alien may now have both forms of relief considered by an immigration judge in a deportation proceeding. Requests for the two types of relief, however, should be treated separately. The BIA has stated that "[a]s we have only quite recently acquired jurisdiction over asylum claims, we are only just now beginning to resolve some of the problems caused by this addition to our jurisdiction, including the problem of determining exactly how withholding of deportation and asylum are to fit together." In re Lam, Interim Dec. No. 2857, slip op. at 6 n. 4 (BIA Mar. 24, 1981). To further clarify and resolve some of the problems relating to the two provisions, we begin by describing them in more detail.

A. Applications for Asylum under Section 208.

With the enactment of the Refugee Act of 1980 ("Refugee Act"), Pub.L. 96-212, 94 Stat. 102, Congress for the first time established a provision in federal law specifically relating to requests for asylum. ³ Section

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201(b) of the Refugee Act created a new section 208 of the Immigration Act directing the Attorney General to

establish a procedure for an alien physically present in the United States or at a land border or port of entry, irrespective of such alien's status, to apply for asylum, and the alien may be granted asylum in the discretion of the Attorney General if the Attorney General determines that such alien is a refugee within the meaning of section 101(a)(42)(A) of this title.

8 U.S.C. Sec. 1158(a) (1982). Section 101(a)(42)(A) of the Immigration Act defines a refugee as

any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, 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.

8 U.S.C. Sec. 1101(a)(42)(A) (1982).

As the Supreme Court noted in INS v. Stevic, --- U.S. ----, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984), however, "[m]eeting the definition of refugee ... does not entitle the alien to asylum--the decision to grant a particular application rests in the discretion of the Attorney General under Sec. 208(a)," 8 U.S.C. Sec. 1158(a) (1982). Id. at 2497 n. 18. The discretion vested in the Attorney General is delegated to the district director having jurisdiction over the alien's port of entry or, if he or she is already in the United States, the alien's place of residence, unless an alien has been served with notice of referral to exclusion proceedings or served an order to show cause for deportation proceedings. In these circumstances, exclusive jurisdiction over an asylum application lies with the immigration judge handling the exclusion or deportation proceeding. See 8 C.F.R. Sec. 208.1 (1984). Even if the district director denies an application for asylum made before the institution of exclusion or deportation proceedings, the applicant may renew his or her request for asylum before the immigration judge in subsequent exclusion or deportation proceedings. Thus, "an alien who wishes to apply for asylum can get two bites at the apple ...." Jean v. Nelson, 727 F.2d 957, 981 (11th Cir.1984) (en banc). Hearings before either the district director or immigration judge on an asylum application are to be made only after the Bureau of Human Rights and Humanitarian Affairs ("BHRHA") of the Department of State has given an advisory opinion, which is to be made part of the hearing record. See 8 C.F.R. Secs. 208.7, 208.8(d), 208.10(b) (1984). The burden is on the asylum applicant

to establish that he/she is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of the country of such person's nationality or, in the case of a person having no nationality, the country in which such person habitually resided, 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.

8 C.F.R. Sec. 208.5 (1984).

The regulations specify six situations in which the district director must deny asylum status, see 8 C.F.R. Sec. 208.8(f)(i)-(vi) (1984), ⁴ and provide for no administrative

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appeals from the district director's decisions, see 8 C.F.R. Sec. 208.8(c) (1984). In contrast, the regulations do not specify how an immigration judge is to make asylum decisions and contain no prohibition on the administrative review of those decisions. The BIA has indicated, however, that it will use the regulations addressed to the district director as "useful guidelines" in the exercise of the Board's own discretion over asylum requests. See In re Salim, Interim Dec. No. 2922, slip op. at 7 (BIA Dec. 29, 1982).

If the immigration judge grants an asylum request, it is for a period of one year. See 8 C.F.R. Sec. 208.10(e) (1984). Thereafter, the applicant is interviewed annually to determine continuing eligibility for asylum or adjustment of status, which may include becoming a permanent resident. If the immigration judge denies asylum, the exclusion or deportation proceeding is to be reinstituted. See 8 C.F.R. Sec. 208.10(f) (1984).

It is unclear whether we may directly review asylum decisions made by immigration judges in the context of deportation proceedings. Neither party has addressed the issue; both concluded that we had jurisdiction, although it appears to be a question of first impression. ⁵ We conclude that while asylum decisions by district directors may not be directly reviewed by the courts of appeals under the jurisdictional statute, section 106 of the Immigration Act, 8 U.S.C. Sec. 1105a(a) (1982), see Fleurinor v. INS, 585 F.2d 129, 135-36 (5th Cir.1978), asylum decisions made by immigration judges and reviewed by the BIA are subject to our direct review.

Jurisdiction to review "all final orders of deportation ... made against aliens within the United States pursuant to administrative proceedings under [8 U.S.C. Sec. 1252(b) ]" lies exclusively in the courts of appeals. 8 U.S.C. Sec. 1105a(a) (1982). The Supreme Court has held that, in order to minimize multiple review, the term "final orders of deportation" should be read to include not only the actual...