Faddoul v. I.N.S.

• Decision Date: 25 October 1994
• Docket Number: No. 93-4303,93-4303
• Citation: 37 F.3d 185
• Parties: Elias Joseph FADDOUL, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 185

37 F.3d 185

Elias Joseph FADDOUL, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 93-4303.

United States Court of Appeals Fifth Circuit.

Oct. 25, 1994.

Thomas P. Adams, New Orleans, LA, for petitioner.

Janet Reno, Atty. Gen., Dept. of Justice, Karen Fletcher Torstenson, Robert Kendall, Jr., Anthony W. Norwood, Attys., Robert L Bombough, Dir. INS, Civ. Div., Washington, DC, for respondent.

John B.Z. Caplinger, INS, New Orleans, LA, for other interested parties.

Petition for Review of an Order of the Board of Immigration Appeals.

Before JOHNSON, GARWOOD and JOLLY, Circuit Judges.

GARWOOD, Circuit Judge:

Elias Faddoul (Faddoul) appeals an order of the Board of Immigration Appeals (BIA or Board) denying his requests for asylum and withholding of deportation. In the alternative, Faddoul argues that we should reinstate the BIA's grant of voluntary departure. Finding that the BIA properly denied his requests, we affirm. We also deny his request to extend his voluntary departure date.

Facts and Proceedings Below

Faddoul is a thirty-three year old man of Palestinian ancestry who was born and last resided in Saudi Arabia. His parents fled Palestine after the creation of Israel in 1948, first settling in Lebanon, then moving to find work in Saudi Arabia, where Faddoul was born and raised. Despite his place of birth, Faddoul was not eligible to receive Saudi citizenship because Saudi law grants citizenship solely on the basis on ancestry. As a person of Palestinian ancestry, Faddoul was unable to obtain a Saudi passport but was allowed to travel with a Lebanese travel document known as a "laissez-passe". ¹ Faddoul first visited the United States in 1979 and thereafter returned to Saudi Arabia periodically to renew his Saudi reentry visa. In 1984, Faddoul entered the United States as a nonimmigrant student to study aviation and electronics, but he ceased attending classes in May 1985. During this time, he formed a relationship with a U.S. citizen and was married in October 1984. Because he planned to apply for permanent legal status, he stopped returning to Saudi Arabia and allowed his reentry visa to expire. The marriage, however, eventually failed.

On September 22, 1986, the Immigration and Naturalization Service (INS) began deportation proceedings against Faddoul and issued an Order to Show Cause alleging deportability under the Immigration and Nationality Act (INA) Sec. 241(a)(9), 8 U.S.C. Sec. 1251(a)(9), for his failure to comply with the conditions of his nonimmigrant status. On August 5, 1987, an immigration judge (IJ) found Faddoul deportable and denied his request for asylum under INA Sec. 208(a), 8 U.S.C. Sec. 1158(a), and withholding of deportation under INA Sec. 243(h), 8 U.S.C. Sec. 1253(h), but granted him voluntary departure until December 31, 1987.

In November 1987, a fire at a detention center destroyed Faddoul's immigration papers and the BIA remanded his case to the IJ for a new hearing. Faddoul's second hearing commenced June 22, 1989. The IJ once again found him deportable but allowed him to submit a written application for asylum. Faddoul claimed that, assuming Saudi Arabia permitted him to return, he would face persecution because the government severely restricted the rights of Palestinians. In particular, Saudi law forbade all non-Saudis from owning property or businesses, attending certain schools, and marrying Saudis. Non-Saudis were also prohibited from travelling within Saudi Arabia without written permission and were only permitted to remain in the country so long as they were sponsored by a Saudi employer or received derivative sponsorship through their parents' employment. In addition, Faddoul claimed that Saudi Arabia would likely prohibit him from returning at all because his reentry visa had expired and he could no longer receive derivative sponsorship due to his age. He speculated that were he to return to Saudi Arabia without a visa, he could face imprisonment.

The IJ denied Faddoul's requests for asylum or withholding of deportation, finding that the discriminatory treatment Palestinians, as non-Saudis, receive in Saudi Arabia did not constitute persecution. The IJ did, however, grant him voluntary departure for a period of six months, after which time he would to be deported to Honduras, as per his request, or to Saudi Arabia or Lebanon if his admission to Honduras were refused. ² The BIA affirmed the IJ's decision and granted Faddoul an additional thirty days to voluntarily depart the United States. Although Faddoul brought this appeal within the period of voluntary departure, that period has since expired.

Discussion

I. Asylum and Withholding of Deportation

We accord deference to the BIA's interpretation of the immigration statute unless there are compelling indications that its interpretation is incorrect. Rivera-Cruz v. INS, 948 F.2d 962, 966 (5th Cir.1991). Thus, absent dispositive error of law, we must affirm the Board's determination that Faddoul was ineligible for asylum or withholding of deportation if we find that its decision was supported by substantial evidence in the record. 8 U.S.C. Sec. 1105a(a)(4); INS v. Elias-Zacarias, 502 U.S. 478, ----, 112 S.Ct. 812, 815, 117 L.Ed.2d 38 (1992).

Because the grant of asylum is discretionary, it involves two steps. First, the alien must demonstrate that he has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. INA Secs. 208(a), incorporating Sec. 101(a)(42). An alien's subjective fear of persecution will satisfy this standard if "a reasonable person in her circumstances would fear persecution if she were to be returned to her native country." Guevara Flores v. INS, 786 F.2d 1242, 1249 (5th Cir.1986), cert. denied, 480 U.S. 930, 107 S.Ct. 1565, 94 L.Ed.2d 757 (1987). Once the alien demonstrates his eligibility, the decision to grant asylum is within the discretion of the IJ. Id. at 1250. Withholding of deportation involves a slightly different analysis. To be eligible for such relief, the alien must demonstrate a "clear probability" of persecution upon return. Rivera-Cruz, 948 F.2d at 966. This standard contains no subjective component but requires a higher objective likelihood of persecution than the "well-founded fear" standard. Guevara Flores, 786 F.2d at 1250. Unlike asylum, once the alien establishes a clear probability of persecution the IJ must withhold deportation of the alien for so long as the threat of persecution persists. Id.

Faddoul claims that Saudi Arabia's denial of basic living and exit/reentry privileges to Palestinians, even those born within its borders, constitutes persecution. While the INA does not provide a precise definition of persecution, we have construed the term as requiring "a showing by the alien that 'harm or suffering will be inflicted upon [her] in order to punish [her] for possessing a belief or characteristic a persecutor sought to overcome.' " Guevara Flores, 786 F.2d at 1249 (quoting Matter of Acosta, B.I.A. Interim Decision No. 2986, 1985 WL 56042 (March 1, 1985)). At a minimum, there must be some particularized connection between the feared persecution and the alien's race, religion, nationality or other listed characteristic. Demonstrating such a connection requires the alien to present "specific, detailed facts showing a good reason to fear that he or she will be singled out for persecution." See Zulbeari v. INS, 963 F.2d 999, 1000 (7th Cir.1992) (emphasis added).

In the present case, Faddoul has shown no such connection. There is no indication the Saudi government has ever arrested, detained, interrogated, or physically harmed Faddoul in any way. Nor has it harmed any of his family members still residing in Saudi Arabia. While Saudi Arabia obviously denies Palestinians certain rights enjoyed by Saudi citizens, the government does not single out Palestinians for such discriminatory treatment. Saudi law grants citizenship based solely on ancestry (jus sanguinis ). Thus children born of Saudi parents automatically receive Saudi citizenship while the children of all non-Saudis, regardless of their place of birth, do not. Indeed, Faddoul admits that a Palestinian born in Saudi Arabia receives the same rights and is subject to the same restrictions as a Saudi-born Egyptian, Somali or any other foreign worker. To find persecution under these circumstances would require a finding that jus sanguinis is persecution per se. We are unwilling to do so. ³ The decision to bestow or deny citizenship is deeply-rooted in national sovereignty and must be left to the individual nation's discretion. See De Souza v. INS, 999 F.2d 1156, 1159 (7th Cir.1993). In De Souza, the Seventh Circuit addressed a situation closely analogous to the present case. De Souza's parents were born in Goa, a former Portuguese colony which ceased to exist after its conquest by India in 1963. De Souza was born in Kenya, but she was denied Kenyan citizenship due to her foreign ancestry. Id. at 1157. The BIA denied her request for asylum, stating that "Kenya's laws are not directed specifically at any one group" and that deciding who should receive citizenship "is within Kenya's sovereign power." Id. The Seventh Circuit affirmed, holding that De Souza was not deprived of any right because she had no right to Kenyan citizenship. Id. at 1159. "It is well within the discretion of [a] government to decide who its citizens will be." Id. Accordingly, we hold that Saudi Arabia's method of conferring citizenship does not amount to persecution.

Similarly, the particular restrictions Saudi Arabia places on the rights of Palestinians and other non-Saudis also fail to manifest the kind of persecution envisioned in the INA. Again, reference to De Souza may be enlightening. As a noncitizen, De Souza was subject to numerous travel, living, and educational restrictions. She could only return to Kenya...