Gumbol v. I.N.S., 86-3136

• Decision Date: 02 April 1987
• Docket Number: No. 86-3136,86-3136
• Citation: 815 F.2d 406
• Parties: Daniel Francei GUMBOL, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 406

815 F.2d 406

Daniel Francei GUMBOL, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 86-3136.

United States Court of Appeals Sixth Circuit.

Argued Jan. 22, 1987.

Decided April 2, 1987.

Charles S. Owen (argued), Detroit, Mich., for petitioner.

David Bernal, Immigration & Naturalization, Robert Kendall, Jr., Criminal Div., Washington, D.C., Anthony Nykus, Cincinnati, Ohio, Nicholas J. Pantel, Asst. U.S. Atty., Ellen Sue Shapiro (argued), Dept. of Justice,--Office of Immigration Litigation, Civ. Div., Washington, D.C., for respondent.

Before KEITH, KRUPANSKY, and GUY, Circuit Judges.

RALPH B. GUY, Jr., Circuit Judge.

Petitioner appeals from the decision of the Board of Immigration Appeals (BIA) denying his application for withholding of deportation under Sec. 243(h) of the Immigration and Nationality Act (Act), 8 U.S.C. Sec. 1253(h), as amended, and for asylum under Sec. 208(a) of the Act, 8 U.S.C. Sec. 1158, as amended. For the following reasons, the order of deportation is affirmed.

I.

Petitioner, Daniel Francei Gumbol, is a forty-five year-old native and citizen of Iraq who entered the United States on December 23, 1978. On February 25, 1980, petitioner was served with an order charging that he had overstayed the limit on his non-immigrant visa and ordering him to show cause why he should not be deported under Sec. 241(a)(2) of the Act, 8 U.S.C. Sec. 1251(a)(2). Petitioner, represented by counsel, filed an application for withholding of deportation or for asylum. The application stated that petitioner had been beaten at the factory where he had worked in Iraq by members of the ruling Baath party for refusing to join the party and because he was a Christian. The application was submitted to the State Department Bureau of Human Rights and Humanitarian Affairs (BHRHA) for an advisory opinion on petitioner's eligibility for asylum. In a letter addressed to the Immigration Court, the BHRHA stated:

We have carefully reviewed the information submitted as part of the application and have assumed the facts in this case as presented are true. On this basis, we believe that the applicant has failed to establish a well-founded fear of being persecuted upon return to Iraq on account of race, religion, nationality, membership in a particular social group or political opinion.... Consequently, the applicant does not appear qualified for asylum.

Deportation hearings were held on February 14, 1984 and again on March 12, 1984, during which petitioner was represented by counsel and offered testimony and evidence on his behalf. At the hearings, petitioner testified about the beating which he allegedly received. On direct examination, petitioner stated that the attack occurred in 1977; however, on cross-examination petitioner corrected his earlier statement and testified that the incident took place in October of 1978 as he had originally stated in his application for asylum. In support of his claim, petitioner submitted an affidavit from a friend, Sarkon Mirza. In the affidavit, Mirza stated that he had seen petitioner shortly after the attack and that he had observed that the petitioner's face was badly bruised. The affidavit did not state that Mirza had witnessed the beating itself. Mirza, however, did state that Iraqi Christians were persecuted by the Baath party.

The record reveals that petitioner's mother, two brothers, and two sisters still live in Iraq. Petitioner did not claim that any of his family had been persecuted by the Iraqi government. Petitioner's wife and two children currently reside with him in the United States. Petitioner also has a sister who lives in the United States.

The only other evidence presented at the hearing consisted of literature describing the general human rights conditions in Iraq. Petitioner did not claim that he had ever been arrested or imprisoned due to his beliefs. Nor did he claim to be involved in any political activities.

In a written opinion issued on April 20, 1984, the immigration judge ruled that petitioner was deportable under Sec. 241(a) of the Act. The judge further held that the petitioner did not qualify for withholding of deportation under Sec. 243(h) of the Act or for asylum under Sec. 208. In reaching this conclusion, the judge discounted the petitioner's testimony regarding the alleged beating due to inconsistencies in the testimony with respect to the date of the incident and the identity of the assailants. The judge also noted that the alleged beating was the sole evidence of persecution against the petitioner and that the general information about human rights conditions in Iraq did not show that petitioner would be singled out for persecution if he returned to Iraq. Although the judge denied the request for asylum or withholding of deportation, the petitioner was granted permission to voluntarily depart within thirty days in lieu of immediate deportation.

On May 2, 1984, petitioner perfected an appeal to the Board of Immigration Appeals. In a written opinion, dated January 13, 1986, the Board dismissed the appeal and upheld the decision of the immigration judge finding the petitioner deportable and denying his application for asylum and withholding of deportation. The Board also granted petitioner's request for voluntary departure within thirty days.

II.

Petitioner filed a timely petition for review with this court on February 12, 1986, pursuant to Sec. 106 of the Act, 8 U.S.C. Sec. 1105a, which grants jurisdiction to this court to review the final orders of deportation. 8 U.S.C. Sec. 1105a(4) provides in part:

The petition shall be determined solely upon the administrative record upon which the deportation order is based and the Attorney General's finding of fact, if supported by reasonable, substantial, and probative evidence on the record considered as a whole shall be conclusive.

Thus, our scope of review on appeal is limited to determining whether the Board has abused its discretion in denying petitioner's requests for withholding of deportation or asylum.

On appeal, petitioner contends that the Board erred when it applied the same standard both to the petitioner's request for withholding of deportation under Sec. 243(h) and his request for asylum under Sec. 208.

Section 243(h) of the Act, 8 U.S.C. Sec. 1253(h), provides in part:

The Attorney General shall not deport or return any alien ... to a country if the Attorney General determines 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.

Id. (emphasis added). This statute mandates the withholding of deportation if the alien satisfies the statutory criteria. The burden is on the alien to show entitlement to asylum. 8 C.F.R. Sec. 242.17(c). In order to meet this burden, an alien must show a "clear probability of persecution" if he were to return to his homeland. See INS v. Stevic, 467 U.S. 407, 413, 104 S.Ct. 2489, 2492, 81 L.Ed.2d 321 (1983). In other words, the alien must show that it is "more likely than not that [he] would be subject to persecution." Id. at 424.

In addition to the provisions of Sec. 243(h), aliens seeking to avoid deportation can also attempt to show that they are eligible for a discretionary grant of asylum under Sec. 208(a) of the Act, 8 U.S.C. Sec. 1158(a), which provides:

The Attorney General shall establish a procedure for an alien physically present in the United States or at a land border or port of entry, irrespective of such alien's status to apply for asylum, and the alien may be granted asylum in the discretion of the Attorney General, if the Attorney General determines that such alien is a refugee within the meaning of Sec. 1101(a)(42)(A) of this title.

8 U.S.C. Sec. 1158(a) (emphasis added). Thus, unlike the mandatory provisions of Sec. 243(h), the granting of asylum remains discretionary even if the alien qualifies as a "refugee." The definition of "refugee" is contained in 8 U.S.C. Sec. 1101(a)(42)(A) which provides:

The term "refugee" means any person 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 a particular opinion....

Id. (emphasis added). The regulations promulgated pursuant to the statutory provision placed the burden of proof on the alien by requiring him to show that he is "unwilling" to return to his native country because of "persecution or a well-founded fear of persecution." 8 C.F.R. Sec. 208.5.

The question presented in this appeal is whether the petitioner's burden is greater under the clear probability of persecution standard contained in Sec. 243(h) than that which he would be required to show under the well-founded fear of persecution standard which governs request for asylum under Sec. 208. The petitioner contends that the well-founded fear standard is more generous than the clear probability standard; and therefore, the Board erred in applying the clear probability standard to petitioner's request for asylum. In discussing the applicable standard, the Board stated:

We have held that the well-founded fear standard for asylum requires an alien's fear of persecution to have a sound basis in external, objective facts that show it is likely the alien will become the victim of persecution. We have further held that the eligibility standards for withholding of deportation and asylum are not meaningfully different and, in practical application, converge.

Board opinion (Jan. 13, 1986), App. at 111 (emphasis added) (citing Matter of Acosta, Interim Decision 2986 (BIA March 1, 1985)).

There is a split of authority on this issue both among the circuits ¹ and within the Sixth Circuit itself. ² As previously noted, the United States Supreme Court has held that the clear probability of persecution standard governs the...