Kashani v. Nelson, 84-2960
| Decision Date | 12 June 1986 |
| Docket Number | No. 84-2960,84-2960 |
| Parties | Hamid R. KASHANI, Plaintiff-Appellant, v. Alan NELSON, Immigration and Naturalization Service, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
William E. Marsh, Ind. Univ. School of Law-Indianapolis, Indianapolis, Ind., for plaintiff-appellant.
Mary Reed, Office of Immigration Litigation, Civil Div., Dept. of Justice, Washington, D.C., for defendant-appellee.
Before COFFEY, FLAUM, and RIPPLE, Circuit Judges.
The plaintiff appeals the district court's dismissal of his complaint seeking judicial review of the district director of Immigration and Naturalization Service's denial of his request for political asylum and for a preliminary injunction enjoining the Immigration and Naturalization Service from taking any further action to deport him from the United States. We affirm.
The plaintiff, Hamid Kashani, an Iranian national, entered the United States on January 4, 1976 with non-immigrant student status pursuant to an "F-1" visa authorizing his entry to attend the School of Engineering at Purdue University in Lafayette, Indiana. Kashani completed his studies on July 10, 1982 and on October 14, some three months later, filed a Request for Asylum with the District Director of the Immigration and Naturalization Service ("INS") pursuant to Sec. 208 of the Immigration and Nationality Act ("INA" or "Act"), 8 U.S.C. Sec. 1158(a). Section 208 provides that an alien may be granted asylum if he is a refugee within the meaning of Sec. 101(a)(42)(A) of the Act [8 U.S.C. Sec. 1101(a)(42)(A) ], which defines a refugee as:
"Any person who is outside any country of such person's nationality or, in the case of the person having no nationality, is outside any country in which such person last habitually resided, and 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...."
To establish a "well-founded fear of persecution," Kashani alleged in his application that he would be executed if he returned to Iran because of his activities in the now outlawed Rastakhiz Political Party, including his actions as an investigator for the Headquarters for Fighting Against Profiteering, a division of the party; his outspoken opposition to the Ayatollah Khomeni, the current leader of Iran, and the Ayatollah's National Secret Service; and his work as a journalist. Additionally, Kashani contended that he did not practice a religion or belong to a religious group and that the Iranian government, "is known to have mass murdered ... those who allegedly do not adequately belong to a religious group."
On October 20, 1983, a year after Kashani filed his Asylum Request, the District Director denied the request because Kashani "failed to establish a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion...." On that same day, the District Director notified Kashani that he was required to depart from the United States, at his own expense, on or before November 20, 1983.
On November 20, 1983, Kashani filed a "Verified Complaint for Judicial Review and Motion for Preliminary Injunction" in the United States District Court for the Southern District of Indiana alleging that the District Director abused her discretion in denying his asylum request and that she failed to consider relevant evidence and based her decision on non-relevant grounds. Kashani asked the district court to enjoin any further deportation proceedings and to grant his request for asylum. The district court dismissed the complaint, holding that "[a]n applicant for asylum does not have the right to appeal the District Director's decision in the district court." Kashani urges us to reverse the district court's determination that it does not have jurisdiction, arguing that since the District Director's denial is not made during a deportation proceeding, the denial does not fall within the Court of Appeal's exclusive jurisdiction over deportation orders and may be reviewed by the district court.
Section 208 of the Immigration and Nationality Act, (8 U.S.C. Sec. 1158(a)), requires the Attorney General to:
"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 Section 1101(a)(42)(A) of this title."
The regulations implementing Sec. 208, 8 C.F.R. Sec. 208 et seq., provide two procedures for applying for asylum. If the alien is not the subject of deportation proceedings (i.e. an alien seeking admission to the United States or an alien within the United States who has not been served with either a notice of referral to exclusion proceedings or an order to show cause for departure), the alien may file an asylum application with the District Director. 8 C.F.R. Sec. 208.3(a). The District Director must request an advisory opinion from the Bureau of Human Rights and Humanitarian Affairs ("BHRHA") of the Department of State, id. at Sec. 208.7, and if the District Director's decision is based in whole or in part on a BHRHA advisory opinion, the BHRHA advisory opinion will be made part of the record of proceedings unless it is classified. Id. at Sec. 208.8(d). If the BHRHA advisory opinion is included in the record, the applicant must be given an opportunity "to inspect, explain, and rebut the opinion...." Id. Moreover, the applicant must be examined in person by an Immigration officer prior to the adjudication of the asylum application. Id. at Sec. 208.6. The applicant for asylum has the burden of proving that he is unable 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." Id. at Sec. 208.5. Although the regulations specify six situations in which the District Director "shall" deny a request for asylum, id. at Sec. 208.9(f), they also provide that "[t]he District Director may approve or deny the asylum application in the exercise of his discretion," id. at Sec. 208.8(a), and, "no appeal shall lie from the decision of the District Director." Id. at (c). If the application is denied, the District Director, may in his discretion grant departure 1 or commence deportation proceedings. Id. at Sec. 208.8(f)(4).
If the alien is subject to deportation proceedings, he may file an asylum application with the Immigration court. Id. at Sec. 208.3(b). If the alien had previously filed an application for asylum with the District Director and the application was denied, the alien may renew his request for asylum before the Immigration Judge in the exclusion or deportation proceeding. Id. at Sec. 208.9. Thus, the regulatory scheme provides two opportunities to file asylum applications by allowing asylum applications to be presented to the District Director, and, if denied, to be renewed before the Immigration Judge in an ensuing deportation proceeding. Jean v. Nelson, 727 F.2d 957, 981 (11th Cir.1984). The Immigration Judge must request a BHRHA advisory opinion unless an advisory opinion was previously issued in an application to the District Director and "circumstances have [not] changed so substantially since the first opinion was provided that a second referral would [not] materially aid in adjudicating the asylum request." Id. at Sec. 208.10(b). Unless classified, the BHRHA advisory opinion is made part of the record and the applicant must be given an opportunity to inspect, explain, and rebut it. Id. During the hearing, both the applicant and the INS may present additional evidence for the record, id. at Sec. 208.10(c), and the applicant carries the burden of proving "persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." Id. at Sec. 208.5. Although the regulations do not specify how the Immigration Judge is to make his decision concerning the asylum applicant, the Board of Immigration Appeals has indicated that "it will use the regulations addressed to the District Director as 'useful guidelines' in the exercise of the Board's own discretion over asylum requests." Carvajal-Munoz v. INS, 743 F.2d 562, 566 (7th Cir.1984). If the Immigration Judge denies the asylum application, the exclusion or deportation proceedings "shall" be reinstituted. 8 C.F.R. Sec. 208.10(f). The Immigration Judge's denial of an asylum request may be appealed administratively to the Board of Immigration Appeals ("BIA") and, if denied, may be appealed to the Court of Appeals having jurisdiction along with the final order of deportation. Carvajal-Munoz v. INS, 743 F.2d 562 (7th Cir.1984).
Judicial review of orders of deportation and exclusion are governed by 8 U.S.C. Sec. 1105a. The Court of Appeals has exclusive jurisdiction to review "all final orders of deportation ... made against aliens within the United States pursuant to administrative procedures under [8 U.S.C. Sec. 1252(b) ]." Id. at Sec. 1105a(a). Section 1105a(c) requires aliens to exhaust their administrative remedies before seeking relief in the Court of Appeals:
...
To continue reading
Request your trial
-
Amanullah v. Nelson
...refugees previously existing under Sec. 203(a)(7) and Sec. 212(d)(5) [8 U.S.C. Sec. 1182(d)(5) ]"); Kashani v. Immigration and Naturalization Service, 793 F.2d 818, 825-27 (7th Cir.1986) (same). See also 1 Gordon & Rosenfield, supra, Sec. 2.24Aa. The role of the bill was authoritatively des......
-
Ayuda, Inc. v. Thornburgh, 88-5226
...an alien could sue to gain direct review of a denial of asylum without waiting for a deportation proceeding); but see Kashani v. Nelson, 793 F.2d 818, 826-27 (7th Cir.), cert. denied, 479 U.S. 1006, 107 S.Ct. 644, 93 L.Ed.2d 701 (1986). 13 IRCA, however, provides for an alien to seek review......
-
In re African-American Slave Descendants Lit.
...text of the Constitution and the policy of judicial self-restraint. See Baker, 369 U.S. at 210, 82 S.Ct. 691; see also Kashani v. Nelson, 793 F.2d 818, 827 (7th Cir.1986); Flynn v. Shultz, 748 F.2d 1186, 1189 (7th Cir.1984); Calvin v. Conlisk, 520 F.2d 1, 5 (7th Cir.1975). Although the poli......
-
Hotel and Restaurant Employees Union, Local 25 v. Smith
...Gas Pipeline Co. v. FERC, 736 F.2d 747, 749-51 (D.C.Cir.1984)--we would of course dismiss the case immediately. See Kashani v. Nelson, 793 F.2d 818 (7th Cir.); cert. denied, --- U.S. ----, 107 S.Ct. 644, 93 L.Ed.2d 701 (1986). Appellants ask nothing other than review of the district directo......