Ganjour v. I.N.S.
| Decision Date | 15 August 1986 |
| Docket Number | 85-4379,FATHI-KOUHI-DEHKORD,P,Nos. 85-4365,s. 85-4365 |
| Citation | 796 F.2d 832 |
| Parties | Shahla GANJOUR, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent. Fereidonetitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Wallace R. Heitman and Randall Dixon Fife, Dallas, Tex., for petitioners.
Edwin Meese, III and William French Smith, Attys. Gen., U.S. Dept. of Justice, Robert L. Bombough, Director, Stewart Deutsch, Eloise Rosas, Richard M. Evans and David V. Bernal, Attys., Allen W. Hausman, Asst. Director, Office of Immigration Litigation, Civil Div., Washington, D.C., David H. Lambert, Dist. Dir., I.N.S., New Orleans, La., William J. Chambers and
Ronald Chandler, Dist. Directors, I.N.S., Dallas, Tex., and John Mitchell Nevins, Asst. U.S. Atty., Dallas, Tex., for respondent.
Petitions for Review of Orders of the Immigration and Naturalization Service.
Before WILLIAMS, GARWOOD and HILL, Circuit Judges.
These two consolidated cases come before us as petitions for review of the denial of applications for asylum, withholding of deportation, and suspension of deportation by the Immigration & Naturalization Service (INS). We uphold the INS's determinations.
Our petitioners are Fereidon Fathi-Kouhi-Dehkourdi (Fathi) and Shahla Ganjour (Ganjour). They are husband and wife, and each is a native and citizen of Iran. Fathi last entered the United States on June 17, 1977, as an F-1 nonimmigrant student. Ganjour last entered the United States on July 13, 1979, as the spouse of a nonimmigrant student, with a status dependent on her husband's. See 8 U.S.C. Sec. 1101(a)(15)(F)(ii). The couple has one child, a daughter Tamila Fathi, a United States citizen born in Irving, Texas on October 8, 1978. Tamila attended first and second grade at White Rock North School in Dallas, Texas. Fathi has been enrolled in various schools since arriving in this country, including the English Language School in Irving, Texas, Cook County Junior College in Gainesville, Texas, and North Texas State University in Denton, Texas. Fathi received a Bachelor of Science degree in chemistry from North Texas State in 1983.
In order to support himself and his family, Fathi has worked at several jobs while in the United States. He has been self-employed as a taxi driver and has worked as a bartender at two local hotels. Fathi is currently employed as a food and beverage service manager at the Metro Center Hotel. Ganjour is currently working as a manicurist and has held other similar jobs.
On April 8, 1982, the INS in Dallas, Texas issued an order to show cause why petitioners should not be deported under 8 U.S.C. Sec. 1251(a)(9) because Fathi had accepted unauthorized employment in violation of his status as a nonimmigrant student. On May 4, 1982, a deportation hearing was commenced before an immigration judge in Dallas. Petitioners were represented by counsel, as they also were throughout all subsequent proceedings. At the hearing, petitioners admitted the charges against them and conceded deportability. Simultaneously, petitioners filed an application for asylum under 8 U.S.C. Sec. 1158(a). The May 4 hearing was adjourned so that the immigration judge could solicit an advisory opinion from the United States Department of State, Bureau of Human Rights and Humanitarian Affairs (BHRHA) as required by immigration regulation 8 C.F.R. Sec. 208.10.
The BHRHA issued an advisory opinion on April 29, 1983, in which it stated petitioners had failed to provide sufficient information or adequate corroborative material to sustain an asylum claim of well-founded fear of persecution upon return to Iran. The deportation hearing was reconvened and completed before the immigration judge in July 1983. The immigration judge found that petitioners were deportable and denied their request for voluntary departure from the United States because they had failed to designate a country to be deported to. Petitioners' application for asylum under 8 U.S.C. Sec. 1158(a) and their application for withholding of deportation under 8 U.S.C. Sec. 1253(h) were denied. 1 Petitioners appealed the immigration judge's decision to the Board of Immigration Appeals (BIA) in August 1983. The BIA rendered a decision on April 18, 1985 in which it denied asylum under section 1158(a) and held that petitioners had not met their burden of proof of establishing a well-founded fear of persecution based upon their race, religion, political opinion, membership in a social group, or nationality. The BIA further denied petitioners' request for withholding of deportation under section 1253(h). The BIA did, however, sustain petitioners' appeal for voluntary departure and petitioners were granted thirty days in which to depart from the United States.
On May 17, 1985, Fathi filed an application for suspension of deportation with the INS in Dallas, Texas, as provided for under 8 U.S.C. Sec. 1254(a)(1). 2 Simultaneously with the application for suspension of deportation, Fathi filed an amended application for asylum and a motion to reopen and reconsider the order of deportation based on the application for suspension of deportation and amended application for asylum and the request for withholding of deportation. Fathi also requested the district director of the Dallas INS to stay his deportation during the pendency of the motion to reopen and reconsider. On May 20, 1985, the Dallas INS office sent both petitioners notice that they should report to the United States Immigration Office on May 30 and that they would be deported to Iran at the United States government's expense. On the same date, petitioners were notified that Fathi's request for stay of deportation had been denied.
On May 22, Fathi asked the BIA to stay his deportation during the pendency of his motion to reopen and reconsider. On June 4, Fathi filed an application for a writ of habeas corpus and an application for stay of deportation in the United States District Court for the Northern District of Texas. The BIA, on June 5, 1985, denied Fathi's motion to reopen and reconsider or consider his withholding of deportation and asylum applications, and his request for suspension of deportation. The BIA stated that the evidence sought to be offered could have been presented at a former hearing and that Fathi had failed to demonstrate prima facie eligibility for the relief requested. On June 7, counsel for Fathi filed a motion to dismiss the petition for writ of habeas corpus because the issuance of the BIA's opinion mooted the stay request. Ganjour did not move to reopen the deportation proceedings but instead filed an appeal with this Court on May 29, 1985. On June 5, 1985, Fathi filed a similar appeal with this Court. 3
Ganjour bases her claims for asylum and withholding of deportation primarily upon the persecution claims involving her husband. Unlike Fathi, she filed no motion to reopen; nor did she attempt to seek suspension of deportation. We will discuss the issues concerning each case primarily in regard to Fathi's more inclusive claims.
At the initial deportation hearing, after he conceded deportability, Fathi (and Ganjour) applied for asylum. Under section 1158(a), the Attorney General "may" in his "discretion" grant asylum to an alien who is physically present in the United States if the alien meets the statutory definition of a refugee. 4 A refugee is defined as one who is unable or unwilling to return to his native 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). The granting of asylum is expressly at the discretion of the Attorney General. Youssefinia v. INS, 784 F.2d 1254, 1260 (5th Cir.1986). This Court cannot disturb a denial of such discretionary relief "absent a showing that such action was arbitrary, capricious, or an abuse of discretion." Id. at 1260 (quoting Young v. United States Department of Justice, I.N.S., 759 F.2d 450, 455 n. 6 (5th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 412, 88 L.Ed.2d 362 (1985)).
The standard for granting asylum is a "well-founded fear of persecution," 8 U.S.C. Secs. 1158(a) and 1101(a)(42)(A), and the petitioner has the burden of showing that the standard has been met. 8 C.F.R. Sec. 208.5. Accord, Youssefinia, supra, at 1260. Well-founded fear of persecution is not defined in the statutes. In INS v. Stevic, 467 U.S. 407, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984), the Supreme Court declined to decide the meaning of "well-founded fear of persecution" but suggested that a moderate interpretation of the standard would require a showing that persecution is "a reasonable possibility." Id. 104 S.Ct. at 2498. Since Stevic, the courts of appeals have diverged on the question of whether the well-founded fear standard is the same as or more lenient than the clear probability standard, which the Court defined in Stevic as "more likely than not that the alien would be subject to persecution." The Ninth Circuit has held that the well-founded fear standard has subjective components of genuine fear and objective components that persecution is a reasonable possibility. Cardoza-Fonseca v. INS, 767 F.2d 1448, 1452 (9th Cir.1985), cert. granted, --- U.S. ----, 106 S.Ct. 1181, 89 L.Ed.2d 298 (1986). The Seventh Circuit applies a similar standard holding that well-founded fear requires good reason to fear persecution or that persecution is a reasonable possibility. Carvajal-Munoz v. INS, 743 F.2d 562, 574 (7th Cir.1984). By contrast, the Third Circuit has held that the well-founded fear standard and the clear probability standard are equivalent. Sankar v. INS, 757 F.2d 532 (3d Cir.1985). On the three previous occasions the question has been before us, we have found that petitioners failed to demonstrate a...
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