Castaneda v. I.N.S.

Decision Date13 May 1994
Docket NumberNo. 93-9549,93-9549
Citation23 F.3d 1576
PartiesCristina Galeas CASTANEDA, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
CourtU.S. Court of Appeals — Tenth Circuit

Daniel M. Kowalski, Denver, CO, for petitioner.

Frank W. Hunger, Asst. Atty. Gen., Civil Div., Mark C. Walters, Acting Asst. Director, Office of Immigration Litigation, Civil Div., Alison R. Drucker, Atty., Office of Immigration Litigation, Civil Div., Dept. of Justice, Washington, DC, for respondent.

Before BALDOCK and McKAY, Circuit Judges, and BROWN, * District Judge.

WESLEY E. BROWN, District Judge.

Petitioner seeks review of an adverse order issued by the Board of Immigration Appeals, which upheld the decision of an immigration judge (IJ) to deny petitioner's application for asylum or withholding of deportation. 1 Petitioner also requests that, in the event we deny her petition for review, we extend or reinstate the thirty-day privilege of voluntary departure granted by the Board when it affirmed the IJ's determination that she was immediately deportable. For the reasons explained below, we uphold the Board's decision on asylum and withholding of deportation, and deny petitioner's alternative request regarding voluntary departure, without prejudice, for lack of jurisdiction.

Asylum and Withholding of Deportation

In response to an order to show cause why she should not be deported to her native Honduras pursuant to 8 U.S.C. Sec. 1251(a)(1)(B) (entry without inspection), petitioner applied for asylum from alleged persecution based on (imputed) nationality, social group, and political opinion under 8 U.S.C. Secs. 1101(a)(42)(A), 1158(a). Specifically, petitioner alleged that, prior to entering this country, she had been detained for some time by Honduran officials under a misunderstanding that she was a certain Nicaraguan suspected in a bank robbery. After being released with an admonishment that she was still under investigation and was not to leave the city, petitioner fled Honduras and eventually entered this country illegally. To support her request for asylum, petitioner asserted that, if returned to Honduras, she would be subject to false criminal prosecution to cover up the official error allegedly underlying her arrest.

At her initial hearing, petitioner conceded deportability as charged, renewed her application for asylum, and added alternative requests for withholding of deportation, see 8 U.S.C. Sec. 1253(h), and voluntary departure, see 8 U.S.C. Sec. 1254(e). Following a subsequent evidentiary hearing, the IJ found that whatever adverse legal action, if any, petitioner faced in Honduras was based not on the statutory considerations of nationality, social group, or political opinion (real or imputed), but on her status as a bank robbery suspect. The IJ concluded that "[t]here is nothing in the asylum statute that protects a person who is falsely accused of a crime," R. at 25 and, accordingly, denied all requested relief except voluntary departure, id. at 26. The Board agreed with the IJ's determination, and extended petitioner's voluntary departure date thirty days from the date of its order.

The controlling considerations and standards governing our review in this proceeding, set out at some length in Kapcia v. INS, 944 F.2d 702, 706-07 (10th Cir.1991), were recently summarized and reaffirmed in Nguyen v. INS, 991 F.2d 621 (10th Cir.1993):

The [Immigration and Nationality] Act establishes a two-part test for determining whether a deportable alien is statutorily eligible for asylum. Step one requires the alien to show that he or she is a refugee by proving either past persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Step two allows that once the alien has established statutory eligibility as a refugee, the Attorney General may apply his discretion in granting asylum. We apply the substantial evidence standard to a review of the Board's factual determination of whether an alien is a refugee, and an abuse of discretion standard to the Attorney General's decision of whether to grant asylum.

Id. at 625 (citations and quotations omitted). If the petitioner fails to satisfy her factual burden at step one regarding past or anticipated persecution, the inquiry is over and the court need not address the discretionary refusal of asylum from the alleged persecution at step two. Id. at 625-26.

We have carefully considered the pertinent portions of the record, particularly petitioner's affidavit and hearing testimony. Substantial evidence therein supports the IJ's finding that petitioner was detained solely on the basis of her suspected participation in a bank robbery, to which her mistaken identification as a Nicaraguan was only incidental. In short, petitioner's own testimony indicates she was arrested because of the imputation of criminal activity, not Nicaraguan nationality. We further agree with the IJ's conclusion that such criminal prosecution--at least without a concomitant threat of brutal or discriminatory treatment itself based on statutorily significant characteristics, which has not been shown on our record--does not constitute "persecution" under Sec. 1101(a)(42)(A). See Kapcia, 944 F.2d at 708 ("conviction and fine for ... illegal [activity] is a legitimate government act and not persecution as contemplated by the Act"). With that determination, the IJ properly denied asylum at step one of the inquiry.

That determination is fatal as well to petitioner's application for withholding of deportation. To obtain such relief, "the burden is on the alien to establish a 'clear probability of persecution.' " Nguyen, 991 F.2d at 626 (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 430, 107 S.Ct. 1207, 1212, 94 L.Ed.2d 434 (1987)). "It goes without saying that the well-founded fear test [for asylum] is easier to establish. Therefore, because petitioner failed to meet the threshold burden of establishing statutory eligibility for the grant of asylum, it is clear that [s]he did not meet the tougher standard required for withholding of deportation." Id. at 626 (citation omitted); accord Ravindran v. INS, 976 F.2d 754, 762 (1st Cir.1992).

Voluntary Departure

Petitioner notes that the thirty-day period allowed by the Board for her voluntary departure has long since expired and asks this court to extend or reinstate that privilege. Respondent Immigration and Naturalization Service (INS) objects to this request, arguing that the pertinent statutory and regulatory provisions vest authority to grant such discretionary relief solely in the Attorney General and her delegate, the district director.

As INS emphasizes, it is only the Attorney General who

may, in h[er] discretion, permit any alien under deportation proceedings ... to depart voluntarily from the United States at his own expense in lieu of deportation if such alien shall establish to the satisfaction of the Attorney General that he is, and has been, a person of good moral character for at least five years immediately preceding his application for voluntary departure under this subsection.

8 U.S.C. Sec. 1254(e); see also 8 U.S.C. Sec. 1252(b) (providing Attorney General discretionary authority to obviate deportation proceedings altogether by permitting voluntary departure of alien who admits deportability at outset). While, pursuant to 8 U.S.C. Sec. 1103(a), the Attorney General has delegated her authority to grant voluntary departure in the first instance to various INS officers, see 8 C.F.R. Secs. 242.5(a)(1), 244.1, "[a]uthority to reinstate or extend the time within which to depart voluntarily specified initially by an immigration judge or the Board is within the sole jurisdiction of the district director," 8 C.F.R. Sec. 244.2 (emphasis added). There is no administrative appeal from the district director's decision. Id.

Of course, these provisions do not, in themselves, delimit this court's jurisdiction in the matter. Our authority in deportation proceedings derives from 8 U.S.C. Sec. 1105a. That section, in conjunction with the more general jurisdictional provisions in chapter 158 of Title 28, specifically vests authority to review "all final orders of deportation" in the circuit courts of appeal, which have "exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity [there]of." 8 U.S.C. Sec. 1105a(a); 28 U.S.C. Sec. 2342. The Supreme Court has made it clear that this authority includes the power to review "all determinations made during and incident to the administrative proceeding ..., such as orders denying voluntary departure pursuant to [Sec. 1254(e) ]." Foti v. INS, 375 U.S. 217, 229, 84 S.Ct. 306, 314, 11 L.Ed.2d 281 (1963) (emphasis added). We underscore the qualification included in the Foti formulation, because Sec. 1105a(a) embraces "only those determinations made during a [deportation] proceeding conducted under [Sec. 1252(b) ]". Cheng Fan Kwok v. INS, 392 U.S. 206, 216, 88 S.Ct. 1970, 1976, 20 L.Ed.2d 1037 (1968).

In accordance with these principles, this court has reviewed voluntary departure decisions of the Board that were (1) made during deportation proceedings and (2) issued in association with final deportation orders brought before this court pursuant to Sec. 1105a(a). See, e.g., Rivera-Zurita v. INS, 946 F.2d 118, 120 (10th Cir.1991); Becerra-Jimenez v. INS, 829 F.2d 996, 997-98 (10th Cir.1987). By the same token, however, we have denied review of a district director's post-proceeding refusal to suspend deportation, rejecting the argument that a subsequent denial of discretionary relief is somehow "ancillary" to a previous, final order of deportation. See Romero-Carmona v. United States Dep't of Justice, INS, 725 F.2d 104, 105-06 (10th Cir.1984). Other circuits have applied the same principles to deny Sec. 1105a(a) review with respect to the district director's decision...

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