Dandan v. Ashcroft

• Decision Date: 11 August 2003
• Docket Number: No. 02-4132.,No. 02-1347.,No. 02-1872.,02-1347.,02-1872.,02-4132.
• Citation: 339 F.3d 567
• Parties: Nabil Raja DANDAN, Ketty Dandan, Souzi Dandan, a.k.a. Souzy Dandan, Sandra Dandan, and Raja Nabil Dandan, Petitioners, v. John ASHCROFT, Attorney General,<SMALL><SUP>*</SUP></SMALL> Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

339 F.3d 567

Nabil Raja DANDAN, Ketty Dandan, Souzi Dandan, a.k.a. Souzy Dandan, Sandra Dandan, and Raja Nabil Dandan, Petitioners, v. John ASHCROFT, Attorney General,^* Respondent.

No. 02-1347.

No. 02-1872.

No. 02-4132.

United States Court of Appeals, Seventh Circuit.

Argued May 29, 2003.

Decided August 11, 2003.

COPYRIGHT MATERIAL OMITTED

Royal F. Berg (argued), Chicago, IL, for Petitioner.

George P. Katsivalis, Department of Homeland Security Office of the District Counsel, Chicago, IL, Michele Y. F. Sarko, Patricia L. Buchanan (argued), Department of Justice Civil Division, Immigration Litigation, Washington, D.C.

Before CUDAHY, EVANS, and WILLIAMS, Circuit Judges.

CUDAHY, Circuit Judge.

Nabil Dandan petitions for review of the Board of Immigration Appeals (BIA's) rejection of his asylum request and denial of his motions to reconsider and reopen. The BIA's decision to deny asylum was supported by substantial evidence. The denial of the motion to reconsider was not an abuse of discretion because there was no due process violation in the delay in instituting removal proceedings against Dandan. The denial of the motion to reopen was not an abuse of discretion because Dandan did not present facts that noted any material change in country conditions in Lebanon. We deny the petition and affirm the decision of the B.I.A.

I.

The Petitioners in this case are a family unit.¹ Lead Petitioner Nabil Dandan is the husband and father of the family and is a native and citizen of Lebanon.² Ketty Dandan, the wife and mother, and the three children, Souzy, Sandra and Raja, are also natives and citizens of Lebanon. Nabil and Ketty are parents of a fourth child born in the United States in 1991.

Nabil Dandan testified that he was born in Beirut, Lebanon in 1950, and that he worked in Dubai, United Arab Emirates (UAE) as an accountant for eleven years, from 1974 to 1985. Dandan testified that the UAE cancelled the family's visas in 1985 and that they were forced to return to Lebanon. When the Dandans returned to Lebanon, that country was embroiled in a civil war that had begun in 1975. Beirut, the capital city, was divided by the "green line," east of which the Maronite Christians resided and west of which lived the Muslim part of the population. Maronite Christians are part of the Eastern Rite affiliation of the Roman Catholic Church. The Muslim portion of the population is comprised of both Sunni and Shi'ite Muslims.

Pre-civil war Lebanon was an important regional financial and commercial center. U.S. Department of State: Lebanon Report on Human Rights Practices for 1997 at 2 (Country Report or C.R.). By tradition, the President of the parliamentary republic had been a Maronite Christian, the Vice President a Sunni Muslim and the Speaker of the Chambers of Deputies a Shi'a Muslim. C.R. at 1. Fighting between the Christian and Muslim segments of the population broke out in 1975, with each side gathering private militias for its own defense. The Lebanese Christian Forces sided with the Christians in East Beirut, and the Syrian and Hezbollah forces sided with the Muslims in West Beirut.

Dandan testified that when he returned to Lebanon in 1985, the country was mostly destroyed. He testified that, as a Maronite Christian, he and his family initially settled with relatives near East Beirut, in an area called Atchaneh, approximately 15 kilometers outside of Beirut. Dandan indicated that he later obtained a residence for his family in Beirut, presumably in East Beirut. He testified that there were no private employers available, so he found work as a civilian employee of the Lebanese Christian Forces as an accountant and tax collector. Among his duties were the keeping of the payroll for approximately 300 persons and collecting taxes from those who received protection from the Lebanese Christian Forces.

Dandan testified that he worked for the Lebanese Christian Forces in Ainrumemaneh, East Beirut, an area near the border of East and West Beirut. Dandan testified that on June 3, 1989, he was kidnaped by the Syrian forces while returning home from work. He said that he was held without food, beaten and interrogated for three days. According to Dandan, the Syrians wanted the names of those who were supporting the Lebanese Christian Forces. He testified that he gave them the information known to him, but that as a mere accountant he did not know what those of "higher political status" would know. Tr. at 69.³

Dandan was released after his wife paid ransom money through a Syrian mediator. He testified that on release his face "was swollen because they beat me." Tr. at 97. He said that, subsequent to his release, the family's house was shelled and partially destroyed, and that as a result, he and his family went from shelter to shelter during June and part of July 1989. At this time Dandan decided to flee Lebanon with his family. He testified that he took them at night by boat to Cyprus, where they obtained visas for the United States. The Dandans entered the United States on August 10, 1989.

A month after arriving in the United States, Dandan applied for asylum with the INS under § 208(a) of the Immigration and Nationality Act (INA). 8 U.S.C. § 1158(a). The Chicago Asylum Office interviewed Dandan in November 1996, and then referred the case to an Immigration Judge (IJ). On December 19, 1996, Dandan was issued an Order to Show Cause (OSC), charging him with deportation pursuant to 8 U.S.C. § 1251(a)(1)(B) (1994). In 1996, Congress had passed legislation changing the immigration system and rendering all unfiled OSCs void as of April 1, 1997.⁴ The INS failed to file Dandan's OSC with the Immigration Court by this date, and because the unfiled OSC was void, the Immigration Court terminated the deportation proceedings on April 3, 1997. Dandan was later issued a new document, an NTA, charging him with removal under 8 U.S.C. § 1227(a)(1)(B). After various delays, the IJ held a hearing on October 11, 2000, to consider the merits of the claim for asylum. Pursuant to 8 C.F.R. § 208.3(b), Dandan's asylum application also served as an application for withholding of removal. Additionally, pursuant to 8 C.F.R. § 208.16, Dandan's asylum application was reviewed as an application for withholding of removal under the Convention Against Torture.

The IJ denied relief under all three theories, finding that, although Dandan had testified credibly, the three-day detention did not constitute persecution within the meaning of the INA. He also found that the Country Report evidenced changed country conditions such that Dandan could no longer have an objectively reasonable, well-founded fear of future persecution within the meaning of the INA. Dandan filed a timely appeal with the B.I.A., which dismissed Dandan's appeal in a 2-1 decision. The BIA agreed with the IJ that the three-day detention did not constitute past persecution. The BIA also agreed that the Petitioner did not establish that he had a well-founded fear of future persecution at the time of the hearing. The BIA cited the Country Report as evidence that, because the civil war in Lebanon had ended, there was no objective basis for Dandan's belief that he would now be singled out because of his past employment with the Lebanese Christian Forces.

Board Member Espenoza dissented, saying that she would find that the three-day detention during which Dandan was beaten, deprived of food and interrogated rose to the level of persecution. Espenoza also noted that on a finding of past persecution, the alien is entitled to a rebuttable presumption of having a well-founded fear of future persecution. Espenoza wrote that, in her view, the record evidence did not rebut this presumption and therefore she would have granted asylum.

Dandan filed a motion to reconsider. The motion to reconsider included a new claim that the INS had violated his right to due process by taking more than six years to adjudicate the asylum application and, additionally, that the Service had violated his right to due process by not filing the OSC by April 1, 1997. The motion to reconsider was denied by the BIA. Dandan then filed a motion to reopen. This motion was also denied by the BIA. Dandan's appeal now consolidates review of the three BIA decisions: the denial of asylum, the denial of the motion to reconsider and the denial of the motion to reopen.

II.

A. Asylum

This court has jurisdiction to review the order of the BIA to deny asylum under 8 U.S.C. § 1252(a)(1). We review the BIA's factual determinations under the highly deferential substantial evidence standard. Tamas-Mercea v. Reno, 222 F.3d 417, 422 (7th Cir.2000); Petrovic v. INS, 198 F.3d 1034, 1037 (7th Cir.2000). We may not reverse the BIA's determination simply because we believe it was wrongly decided, but rather we must be compelled by the evidence to reach that conclusion. Tamas-Mercea, 222 F.3d at 422; Bradvica v. INS, 128 F.3d 1009, 1012 (7th Cir.1997); Anton v. INS, 50 F.3d 469, 472 (7th Cir.1995).

1. Past Persecution

To qualify for asylum, Dandan must show that he is a refugee within the meaning of the INA by proving that he was persecuted in the past on account of race, religion, nationality, membership in a social group or political opinion, or alternatively by proving that he has a well-founded fear of future persecution on account of race, religion, nationality, membership in a social group or political opinion. See 8 U.S.C. § 1158(b)(1); 8 U.S.C. § 1101(a)(42)(A); Ambati v. Reno, 233 F.3d 1054, 1059-60 (7th Cir.2000). The issue of past persecution is particularly difficult and critical here because of the presumption of a well-founded fear of future persecution that would apply if we were to find past persecution. A finding of past persecution would in fact shift to the government the burden of rebutting the presumptive fear of future persecution. Asani v. INS, 154 F.3d 719, 722-23 (7th Cir.1998); 8 C.F.R. § 208.13(b)(1). And such a...