Kashani v. Immigration and Naturalization Service, 76-1681
| Decision Date | 06 January 1977 |
| Docket Number | No. 76-1681,76-1681 |
| Citation | 547 F.2d 376 |
| Parties | Yadollah A. KASHANI, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Stanley J. Horn, Chicago, Ill., for petitioner.
Lauri Steven Filppu, Dept. of Justice, Washington, D. C., Samuel K. Skinner, U. S. Atty., Chicago, Ill., for respondent.
Before SWYGERT, PELL and BAUER, Circuit Judges.
The petitioner in this case contends that the Board of Immigration Appeals abused its discretion in refusing to reopen the proceedings in which a deportation order had previously been entered against him. We find that the Board did not abuse its discretion and dismiss the petition for review.
Yadollah A. Kashani is a native and citizen of Iran who entered the United States in January 1971 as a visitor for pleasure. He was authorized to remain in the United States until August 13, 1971, but stayed beyond that date. A deportation hearing was held before an immigration judge, who on March 7, 1972 found Kashani to be deportable but gave him until April 7, 1972 to voluntarily leave the United States. Kashani specified Iran as the country to which he wished to be deported if deportation became necessary.
Kashani then moved to reopen the hearing because, he asserted, his political activities protesting the actions of the Iranian government would expose him to danger in Iran. An immigration judge denied this motion on the ground that Kashani's fear of persecution was purely conjectural, as he had failed to supply any supporting evidence other than his own affidavit. Kashani appealed this denial to the Board of Immigration Appeals. In the notice of appeal, he contended that he had "evidence which would substantiate facts . . . alleged in the . . . affidavit." This evidence was never produced, however, and the Board dismissed the appeal on July 28, 1972. Kashani did not seek judicial review of the Board's action.
In March 1976, Kashani again moved to reopen his deportation hearing based on a claim that he would suffer persecution if deported to Iran. 1 He stated that he has actively opposed the Iranian government both before and after his arrival in the United States. He further stated that he has been an active participant in the Iranian Students Association, an organization strongly opposed to the Shah of Iran, that he has participated in seminars and political demonstrations against the Shah, and that he has openly written letters and articles voicing his opposition to the government of Iran. He contended that he has made his opinions known to the Iranian government and that that government has recently taken extreme steps to quash opposition to its policies, such as jail sentences, torture, and executions. Finally, he stated that the Iranian government had not been informed of his actions or opinions at the time of the original hearing, and that the policies of that government with respect to dissenters have become more repressive in the intervening period. He asked that the deportation order entered against him be suspended under section 243(h) of the Immigration and Nationality Act, 8 U.S.C. § 1253(h), and under the United Nations Convention Relating to the Status of Refugees, as modified by Multilateral Protocol Relating to the Status of Refugees, 19 U.S.T. 6223, T.I.A.S. No. 6577 (effective November 1, 1968).
This motion was accompanied solely by copies of a number of leaflets and pamphlets voicing opposition to the Iranian government. None of this written material mentioned Kashani's name, and there was no objective indication that he had authored any of it.
The Board denied the renewed motion, stating: "We have reviewed the new evidence offered by the respondent and conclude again that it is insufficient in our view to make out a prima facie showing that the respondent's fear of persecution in Iran is well-founded. . . . " Kashani now petitions for review of the Board's order under 8 U.S.C. § 1105a(a).
Under the applicable regulations, a motion to reopen a deportation hearing will not be granted unless the Board is satisfied that "evidence sought to be offered is material and was not available and could not have been discovered or presented at the hearing." 8 C.F.R. § 242.22. In reviewing the Board's decision not to reopen, we are limited to determining whether it has abused its discretion. Tupacyupanqui-Marin v. Immigration & Naturalization Service, 447 F.2d 603, 606 (7th Cir. 1971). We cannot substitute our judgment for the Board's. Lena v. Immigration and Naturalization Service,379 F.2d 536, 537 (7th Cir. 1967).
Kashani partly bases his claim that he should not be deported on section 243(h) of the Immigration and Nationality Act, which states:
The Attorney General is authorized to withhold deportation of any alien within the United States to any country in which in his opinion the alien would be subject to persecution on account of race, religion, or political opinion and for such period of time as he deems to be necessary for such reason.
This court has upheld the Attorney General's decision to limit the exercise of his discretion in favor of an alien seeking relief under this statute to cases where the alien has demonstrated a "clear probability" that he will be persecuted if he is deported. Lena, 379 F.2d at 538. Other circuits have agreed. See Cisternas-Estay v. Immigration & Naturalization Service, 531 F.2d 155, 159 (3d Cir. 1976); Rosa v. Immigration & Naturalization Service, 440 F.2d 100, 102 (1st Cir. 1971); Cheng Kai Fu v. Immigration & Naturalization Service, 386 F.2d 750, 753 (2d Cir. 1967), cert. denied, 390 U.S. 1003, 88 S.Ct. 1247, 20 L.Ed.2d 104 (1968). Under this standard, objective evidence that the alien will be persecuted is necessary. The alien's own assertions, without corroboration, will not suffice. Rosa, 440 F.2d at 102.
Kashani, however, also relies on the United Nations Convention Relating to the Status of Refugees, as modified by the Multilateral Protocol Relating to the Status of Refugees ("the Protocol"). Article 1 of the Protocol defines a refugee as a person who
owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. See 8 C.F.R. § 223a.1.
Article 33 of the Protocol provides, in pertinent part:
No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
Kashani contends...
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