Elnager v. U.S.I.N.S.

• Decision Date: 19 April 1991
• Docket Number: No. 89-70207,89-70207
• Parties: Hamed Elsyed ELNAGER, Petitioner, v. U.S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 784

930 F.2d 784

Hamed Elsyed ELNAGER, Petitioner, v. U.S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 89-70207.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 8, 1990.

Decided April 19, 1991.

John Stephen Glaser, Manulkin, Glaser & Bennett, Fountain Valley, Cal., for petitioner.

David J. Kline, Office of Immigration Litigation, Washington, D.C., for respondent.

Petition to Review a Decision of the Immigration and Naturalization Service.

Before HUG, CANBY and WIGGINS, Circuit Judges.

WIGGINS, Circuit Judge:

Hamed Elnager, a native and citizen of Egypt, appeals the Board of Immigration Appeals (the "BIA") denial of asylum and withholding of deportation relief. He contends that the BIA applied the incorrect legal standard to his asylum petition and that the decision was not supported by substantial evidence. We AFFIRM the decision of the BIA.

BACKGROUND

Petitioner Hamed Elsyed Elnager is a 36-year-old native and citizen of Egypt. He was admitted to the United States on October 28, 1982, under a visitation visa which authorized him to remain in the United States until November 30, 1982. Elnager failed to leave the United States prior to the expiration of his visa, and he remains in this country.

The Immigration and Naturalization Service initiated deportation proceedings with the issuance of an Order to Show Cause on February 18, 1983. The Order charged Elnager with being deportable under Sec. 241(a)(2) of the Immigration and Nationality Act (the "Act"), 8 U.S.C. Sec. 1251(a)(2), because he remained in the United States longer than permitted. After an extended continuance, Elnager's deportation proceeding commenced on December 3, 1984. Elnager, represented by counsel, admitted the allegations contained in the Order to Show Cause and conceded his eligibility for deportation. The Immigration Judge designated Egypt as the country of deportation.

Elnager then applied for deportation relief under the asylum and withholding of deportation provisions of the Act. He alleged a fear of religious persecution in Egypt. Elnager was a Moslem until 1979 when he converted to Christianity. Conversion to another religion is an act condemned by the Koran and is punishable by death. Witnesses, appearing for Elnager, testified concerning the probable persecution of Elnager in Egypt. Approximately 20% of Egypt's population is Christian.

Despite his alleged fear of persecution, Elnager attended Christian services in Egypt from 1973 to 1982. He attended church away from his community to avoid having his faith recognized. His family is devoutly Moslem, and a cousin is a member of a radical Moslem group. When confronted by his cousin about attending Christian services, Elnager lied to conceal his conversion.

Elnager was married to his present wife, Georgette Bagdadi, in England in 1982. He and Bagdadi now reside in Las Vegas, Nevada and have two children who are citizens of the United States. When Elnager first came to the United States, he married Marilyn Simpson, a United States citizen. Elnager never lived with Simpson, and the marriage was apparently solely an The immigration judge denied Elnager's petition for asylum and withholding of deportation. The judge found that Elnager had failed to demonstrate that he would be subjected to persecution in Egypt. Elnager appealed to the BIA which found that Elnager had failed to show either a clear probability or a well-founded fear of persecution. The BIA dismissed the appeal on April 11, 1989, and Elnager filed the petition for review with this court. Eight months after the BIA's dismissal and six months after filing his petition for review, Elnager filed a motion to reopen with the BIA. That motion was denied on January 10, 1991.

                attempt to obtain a United States visa. 1   Elnager's marriage to Simpson may have been bigamous, as he had married Bagdadi prior to coming to the United States. 2
                

DISCUSSION

A

Elnager applied for both asylum and a withholding of deportation. These claims are analyzed under different legal standards. To be eligible for a discretionary grant of United States asylum under Sec. 208(a) of the Act, an alien must be a "refugee". 8 U.S.C. Sec. 1158(a). A refugee is defined as:

any person who is outside any country of such person's nationality ... 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). An alien's well-founded fear must be both genuine and objectively reasonable. Zacarias v. U.S. INS, 908 F.2d 1452, 1455 (9th Cir.1990).

To be granted a withholding of deportation under Sec. 243(h) of the Act, the Attorney General must determine, "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." 8 U.S.C. Sec. 1253(h). Section 243(h) requires a showing of facts which indicate a "clear probability" of persecution, meaning that it is more likely than not that the alien will suffer persecution. Zacarias, 908 F.2d at 1455; Sarvia-Quintanilla v. INS, 767 F.2d 1387, 1392 (9th Cir.1985).

The difference between the well-founded fear and clear probability standards has been the subject of recent court decisions. Although most courts have not defined the well-founded fear standard, it is clear that it is "more generous" than the clear probability of persecution standard. Bolanos-Hernandez v. INS, 767 F.2d 1277, 1282 (9th Cir.1984) (agreeing with an assumption made in INS v. Stevic, 467 U.S. 407, 425, 104 S.Ct. 2489, 2498, 81 L.Ed.2d 321 (1984)). The more liberal element of the well-founded fear standard is, at least in part, a subjective analysis which includes consideration of the applicant's state of mind. Bolanos-Hernandez, 767 F.2d at 1283, n. 11. To interpret the well-founded fear standard, the INS has applied a "reasonable man" standard to asylum cases. Matter of Mogharrabi, No. 3028, Int.Dec. at 9 (BIA, June 12, 1987).

Petitioner Elnager argues that the immigration judge in his case applied the incorrect standard in rejecting his application for asylum. Indeed, the immigration judge did not distinguish between the two standards in his opinion. Elnager points to the reasoning employed by the judge, who stated, "It is the burden of the respondent to show that he will be subjected to persecution."

(emphasis added). Elnager's position is well-taken, as this language seems to indicate that the immigration judge incorrectly applied the heightened clear probability standard to both the asylum and withholding of deportation issues.

However, this court's review is limited to the decision of the BIA, Rodriguez-Rivera v. INS, 848 F.2d 998, 1002 (9th Cir.1988), Quintanilla-Ticas v. INS, 783 F.2d 955, 957 (9th Cir.1986), and the BIA has the power to conduct a de novo review of the record, to make its own findings, and independently to determine the legal sufficiency of the evidence. Cardoza-Fonseca v. INS, 767 F.2d 1448, 1455 (9th Cir.1985), aff'd, 480 U.S. 421, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). Therefore, the error made by the immigration judge in applying the standards may be rendered harmless. See Rodriguez-Rivera v. INS, 848 F.2d at 1002; Quintanilla-Ticas, 783 F.2d at 957.

In the instant case, the BIA applied the correct legal standard. The BIA's decision makes clear that it was cognizant of the difference between the standards and that it applied the well-founded fear standard in determining Elnager's refugee status. The Board explained the asylum and withholding standards in separate, consecutive paragraphs. It cited INS v. Cardoza-Fonseca, 480 U.S. 421, 446-48, 107 S.Ct. 1207, 1221-22, 94 L.Ed.2d 434 (1987), which held that the asylum and withholding standards are different. Additionally, the BIA stated that the asylum standard required a showing "that a reasonable person in [the petitioner's] circumstances" would fear persecution, whereas, the withholding of deportation, clear probability standard, required a "showing that it is more likely than not an alien would be subject to persecution."

Because our review is limited to the decision of the BIA and the BIA applied the correct legal standards to Elnager's case, we find no error.

B

Elnager contends that the BIA should have remanded the case to the immigration judge for a rehearing under the correct legal standard. He asks this court to require remand as a matter of procedure whenever the immigration judge misapplies the standards.

As stated, the BIA has the power to make independent determinations regarding the legal sufficiency of evidence. Cardoza-Fonseca, 767 F.2d at 1455. The appropriate regulation provides that the "Board shall exercise such discretion and authority conferred upon the Attorney General by law as is appropriate and necessary for the disposition of the case." 8 C.F.R. Sec. 3.1(d). Any requirement that the BIA remand a case in which the immigration judge has applied the wrong legal standard would strip the BIA of the discretion that this rule provides. The BIA has the power to apply the correct standard regardless of the law applied by the immigration judge. Although the BIA has the discretionary power to remand a case, 8 C.F.R. Sec. 3.1(d)(2), the federal regulations and case law do not require that it do so.

The most compelling argument in favor of the rule Elnager proposes is that the BIA may have an insufficient record to apply the correct legal standard. In the instant case, the immigration judge failed to recognize the more liberal nature of the well-founded fear standard. As stated, that standard includes subjective evidence of the petitioner's fears. Therefore, in a given case, the record may not contain sufficient evidence...