Khalaj v. Cole

• Decision Date: 17 March 1995
• Docket Number: No. 94-2429,94-2429
• Citation: 46 F.3d 828
• Parties: Manijeh KHALAJ, Petitioner/Appellant, v. James COLE, District Director, Immigration and Naturalization Service, Respondent/Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 828

46 F.3d 828

Manijeh KHALAJ, Petitioner/Appellant, v. James COLE, District Director, Immigration and Naturalization Service, Respondent/Appellee.

No. 94-2429.

United States Court of Appeals Eighth Circuit.

Submitted Dec. 12, 1994.

Decided Feb. 1, 1995.

Rehearing Denied March 17, 1995.

Rufino J. Villarreal, Omaha, NE, argued (Joseph Lopez Wilson, on the brief), for appellant.

Paul W. Madgett, Asst. U.S. Atty., NE, argued (Paul R. Stultz, Omaha, on the brief), for appellee.

Before McMILLIAN, Circuit Judge, JOHN R. GIBSON, Senior Circuit Judge, and SHAW, ^* District Judge.

SHAW, District Judge.

Manijeh Khalaj appeals the district court's ¹ denial of her petition for a writ of habeas corpus. Khalaj v. Cole, No. 8:CV94-42 (D.Neb. May 13, 1994). The district court found that appellee Cole, the Omaha district director (district director) of the Immigration and Naturalization Service (INS), and the Board of Immigration Appeals (BIA) did not abuse their discretion in denying Khalaj's applications for stay of deportation pending a ruling by the BIA on her motion to reopen and reconsider deportation proceedings. We affirm the district court's order.

I. BACKGROUND

Khalaj is a native and citizen of Iran. In July 1985 she entered the United States on a student visa. She asserts that she left Iran because she feared persecution due to her involvement in an opposition political organization, the Mujahedin. In November 1988 she applied for political asylum in the United States. Her application was denied in 1989.

In late 1989 Khalaj was arrested for failing to maintain her student status. In March 1990 the INS issued a warrant to show cause alleging that Khalaj had violated the conditions of her student status by transferring to a different school without permission. At an administrative hearing before an Immigration Judge (IJ) in December 1990, Khalaj admitted violating the conditions of her student visa, but submitted another application for political asylum in lieu of deportation.

The IJ concluded Khalaj did not establish that she met the criteria for refugee status required for a grant of political asylum, as she failed to prove she had been persecuted in the past in Iran and failed to establish an objectively reasonable fear of persecution for political opinion or for membership in a particular social group.

In reaching the conclusion that Khalaj had not been persecuted in the past and had no objectively reasonable fear of persecution for political opinion, the IJ found the following. The three searches of which Khalaj complained were brief, with no follow-up, and occurred years prior to her departure from Iran. Khalaj departed Iran to be a student in the United States, and was not afraid at the time of departure. While she hoped the government in Iran would change, she did not intend on her arrival to apply for political asylum. Khalaj's activities on behalf of the Mujahedin had ceased two years prior to her departure for the United States. Khalaj's interaction with the Iranian authorities after 1983 was without incident. Khalaj left Iran to pick up a visa in Turkey, and upon her return to Iran was not detained for any length of time or charged with any offense. Khalaj's family history was inconclusive. Although her stepfather's business was confiscated by the government, there was no indication this was because of Khalaj's or her stepfather's political activities. Her mother was working and living in Iran, while two sisters were living elsewhere. Neither sister had been granted asylum. Finally, Khalaj did not demonstrate that the government of Iran had either knowledge of or an inclination to persecute her because of political activities.

The IJ also concluded Khalaj had no well-founded fear of persecution for membership in a particular social group, as she failed to establish membership in a discrete social group. Khalaj alleged she belonged to a group comprised of Iranian women opposed to the strictures imposed by the Iranian government. The IJ concluded this was not a discrete social group because the number of women in the group is unknowable; Khalaj had not shown a voluntary association or relationship among the women purported within this group; and Khalaj had not shown a common characteristic of the group's members which was fundamental to their identity as members.

The IJ found the evidence of Khalaj's deportability "clear, convincing, and unequivocal" but granted her voluntary departure if she departed the country at her own expense before March 5, 1991. Voluntary departure would not require Khalaj to return to Iran. Khalaj did not, however, depart the United States.

Instead, Khalaj administratively appealed the decision of the IJ to the BIA. In June 1992 the BIA denied the appeal and issued its final order of deportation, which affirmed the IJ's finding of deportability and granted Khalaj 30 days to voluntarily depart the United States. Khalaj did not file a petition for judicial review of the BIA's decision. Khalaj argues that neither she nor her attorney of record received notice of the BIA decision, and thus she was unable to seek judicial review. Khalaj contends she provided change-of-address information to the Omaha INS District Office but not the BIA.

In July 1992 a warrant of deportation was issued against Khalaj. In September 1993 Khalaj went to the Omaha INS District Office seeking an extension of her employment authorization. A records check showed the outstanding warrant of deportation, and she was arrested. Khalaj filed an application for stay of deportation and stated she would make arrangements to leave the United States voluntarily and at her own expense. The INS district director approved her application for stay of deportation pending voluntary departure until October 25, 1993, and Khalaj posted bond and was released. Again, Khalaj did not depart the United States.

On October 22, 1993, Khalaj filed applications with the BIA for stay of deportation and suspension of deportation, and a motion to reopen and reconsider deportation. The INS received copies of these documents. Khalaj then returned to Iowa where she had been living for the past 8 years, and in November 1993 married Abdi Seyed Ghodsi, a lawful resident alien. In December 1993 Ghodsi filed a petition on Khalaj's behalf for an alien relative visa, which was approved.

The Omaha district director construed the copy of Khalaj's application for stay as an application for stay directed to him under 8 C.F.R. Sec. 243.4. On December 16, 1993, the Omaha district director denied the application for stay and directed Khalaj to surrender for deportation on January 24, 1994. On January 12, 1994, Khalaj made a telephone request to the BIA for a stay of deportation. The BIA denied the request "after consideration of all information ... because there is little likelihood that the motion [to reopen and reconsider deportation] will be granted." The INS arrested Khalaj on January 24, 1994.

Khalaj next filed a petition for writ of habeas corpus, seeking judicial review of the administrative denial of a stay of deportation, pursuant to 8 U.S.C. Sec. 1105a(a)(10). The district court granted a temporary restraining order in January 1994 to prevent the INS from deporting Khalaj, pending disposition by the BIA of her motion to reopen and reconsider the deportation proceedings.

On May 13, 1994, the district court denied habeas relief. The district court found that the facts supported the decisions of the district director and the BIA to deny a stay of deportation pending the BIA's disposition of the motion to reopen and reconsider, because the decisions denying political asylum had found no persecution or well-founded fear of persecution for political opinion or for membership in a particular social group, and there was no new evidence of any substance of political persecution. The district court noted that the district director had clearly considered all the relevant factors in justifying the denial of the stay and thus did not abuse his discretion. The district court also concluded the BIA did not abuse its discretion either by denying the stay or by not fully explaining its reasons therefor. This appeal followed.

II. DISCUSSION

The central question presented by this appeal is whether the INS district director and BIA abused their discretion by failing to grant Khalaj a stay of deportation pending disposition by the BIA of her motion to reopen deportation. We conclude the district court properly applied an abuse of discretion standard in reviewing the denial of Khalaj's stay application pursuant to her habeas petition. See Anderson v. McElroy, 953 F.2d 803, 805 (2d Cir.1992) (Anderson); Blancada v. Turnage, 891 F.2d 688, 689-90 (9th Cir.1989) (Blancada) We then review de novo the district court's judgment. Anderson, 953 F.2d at 805; Blancada, 891 F.2d at 689-90; Bothyo v. Moyer, 772 F.2d 353, 355-57 (7th Cir.1985) (Bothyo).

Abuse of discretion occurs if a decision was without rational explanation, departs from established policies, or invidiously discriminates against a particular race or group. Hajiani-Niroumand v. INS, 26 F.3d 832, 835 (8th Cir.1994); Rodriguez-Rivera v. INS, 993 F.2d 169, 170 (8th Cir.1993) (per curiam).

The filing of an application for a stay of deportation with the district director does not relieve an alien from "strict compliance with any outstanding notice to surrender for deportation." 8 C.F.R. Sec. 234.4. Nor does the filing of a motion to reopen and reconsider automatically warrant a stay of deportation by the BIA pursuant to 8 C.F.R. Sec. 3.8(a). These regulations make it clear that Khalaj's application for a stay of deportation did not stay the deportation order previously entered against her or relieve her from complying with the order. Thus, the district director and BIA were free to consider Khalaj's application for a stay and to deny it even though she had a motion to reopen pending...