M.A. v. U.S. I.N.S.

• Decision Date: 23 April 1990
• Docket Number: No. 88-3004,88-3004
• Parties: M.A. A26851062, Petitioner, v. U.S. IMMIGRATION & NATURALIZATION SERVICE, Respondent, Central American Refugee Center; Lawyers Committee for Human Rights and Americas Watch; American Immigration Lawyers Association; Asylum Appeals Program of the San Francisco Lawyers Committee for Urban Affairs; National Immigration Project of the National Lawyers Guild, Amici Curiae.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 304

899 F.2d 304

58 USLW 2589

M.A. A26851062, Petitioner, v. U.S. IMMIGRATION & NATURALIZATION SERVICE, Respondent Central American Refugee Center; Lawyers Committee for Human Rights and Americas Watch; American Immigration Lawyers Association; Asylum Appeals Program of the San Francisco Lawyers Committee for Urban Affairs; National Immigration Project of the National Lawyers Guild, Amici Curiae.

No. 88-3004.

United States Court of Appeals Fourth Circuit.

Argued Oct. 3, 1989.

Decided March 27, 1990.

Rehearing In Banc Denied April 23, 1990.

William Van Wyke, Washington, D.C. (argued) for petitioner.

Mark Christopher Walters, Office of Immigration Litigation, Civ. Div., U.S. Dept. of Justice, Washington, D.C. (argued) and John R. Bolton, Asst. Atty. Gen., Lauri Steven Filppu, Deputy Director, Joan E. Smiley, Asst. Director, Parker Singh, Office of Immigration Litigation, Civ. Div., U.S. Dept. of Justice, Washington, D.C. (on brief), for respondent.

Monica C. Yriart, Cent. American Refugee Center, Steven G. Reade, Hadrian R. Katz, Andrew W. Shoyer, Darina C. McKelvie, Gwyn Firth Murray, Arnold & Porter, Washington, D.C. (on brief), for amicus curiae, Cent. American Refugee Center.

Arthur C. Helton, Laura B. Sherman, New York City (on brief), for amicus curiae, Lawyers Committee for Human Rights Americas Watch.

Lory D. Rosenberg, Cambridge, Mass., Lawrence Rudnick, Steel, Rubin & Rudnick, Philadelphia, Pa., for amicus curiae, American Immigration Lawyers Ass'n.

Kate T. McGrath, San Francisco, Cal. (on brief), for amicus curiae, Asylum Appeals Program of the San Francisco Lawyers Committee for Urban Affairs.

Carolyn P. Blum, University of California Law School, Berkeley, Cal. (on brief), for amicus curiae, Nat. Immigration Project of the Nat. Lawyers Guild, Inc.

Before ERVIN, Chief Judge, RUSSELL, WIDENER, HALL, PHILLIPS, MURNAGHAN, SPROUSE, CHAPMAN, WILKINSON and WILKINS, Circuit Judges, and WINTER, Senior Circuit Judge, sitting en banc.

WILKINSON, Circuit Judge:

In this case we consider the scope of the Board of Immigration Appeals' authority to deny an alien's request for asylum in the context of a motion to reopen deportation proceedings. On the eve of deportation, petitioner asked that his deportation proceedings be reopened so that he could request asylum under the Refugee Act of 1980, Pub.L. 96-212, 94 Stat. 102 (1980), based on his fear of persecution for refusing to serve in the Salvadoran military. An immigration judge denied petitioner's motion to reopen because he failed to present a prima facie case of eligibility for asylum, a reopening prerequisite. The Board of Immigration Appeals affirmed, and petitioner sought review from this court.

We hold that the Board's decision should be reviewed under an abuse of discretion standard, and that the Board did not abuse its discretion in denying petitioner's motion to reopen. We thus deny the petition and affirm the decision of the Board.

I.

Petitioner M.A., a 31 year-old citizen of El Salvador, entered the United States illegally in February 1982. The Immigration and Naturalization Service (INS) brought deportation proceedings against him on February 22, 1984. At his deportation hearing, M.A. admitted that he entered the United States without inspection, conceded deportability, and requested that he be allowed to depart voluntarily. Through counsel, M.A. specifically indicated that El Salvador was his country of choice for deportation and that he had no fear of returning there. The immigration judge granted M.A. voluntary departure until September 16, 1984. However, M.A. failed to leave by then, and on January 15, 1985, the INS apprehended him for failing to report for deportation.

On January 21, the day before his scheduled deportation, M.A. claimed for the first time that he feared persecution in El Salvador based on his political and moral views. Through new counsel, M.A. filed a motion to reopen deportation proceedings and applied for asylum. The motion to reopen claimed ineffective assistance of former counsel as the reason for not presenting the asylum application before the close of deportation proceedings. The motion also requested 10 days to augment the asylum claim. The following day, an immigration judge denied the motion to reopen. The Board of Immigration Appeals (BIA) affirmed. However, this court reversed the BIA, holding that respondent had given a reasonable explanation for his failure to apply for asylum earlier, and that the immigration judge abused his discretion in denying M.A. a reasonable extension of time to supplement the motion to reopen.

On remand, M.A. presented a new petition for reopening with a renewed application for asylum and additional supporting evidence. In the petition, M.A. claimed that he left El Salvador "to avoid serving in its violent military." He alleged that the Salvadoran military, as part of the deliberate policy of the Salvadoran government, commits "systematic and widespread" human rights violations against the citizens of El Salvador. To corroborate his charges, M.A. relied heavily on numerous reports by private agencies and news organizations regarding the human rights violations perpetrated by the Salvadoran army. M.A. also claimed to have witnessed the results of this violence when he once passed through a morgue and saw "mutilated, decapitated, bruised, and gunned bodies."

Because of his conscientious political objection to these atrocities, M.A. desires to avoid military service in El Salvador. His claim for asylum rests on his fear that if he returns to El Salvador and fails to serve in the military, he will be tortured and possibly killed as an opposition sympathizer. To substantiate this fear, M.A. reiterates his general allegations about military violence in El Salvador. He further states that three relatives have been killed in connection with the Salvadoran conflict: one cousin was killed by the army for participation in an anti-government demonstration; another cousin was killed by the guerilla army; and his brother-in-law's brother was killed by a "death squad" for providing food to guerillas. In addition, he alleges that a member of the civilian patrol once threatened him and that he was twice beaten by soldiers.

The immigration judge denied the new motion to reopen because M.A. failed to make out a prima facie case for asylum eligibility, a prerequisite to reopening. After considering M.A.'s allegations in detail, the BIA agreed with the immigration judge and affirmed its order. The Board first noted the rule, recognized domestically and in international law, that it is not persecution for a country to require military service of its citizens. The Board then reasoned that M.A. failed to come within one of the narrow exceptions to this rule because he failed to show that the allegedly violent incidents to which he objected either represented the policy of the Salvadoran government or had been condemned by recognized governmental bodies. It also held that he failed to show that his military service would force him to be associated with the alleged atrocities, or that his refusal to serve would result in disproportionately severe punishment. Finally, the Board ruled that petitioner's claims were insufficient to make out the prima facie case of eligibility needed to reopen his proceedings because they lacked factual support and thus were "simply too speculative."

A panel of this court reversed the order denying reopening, holding that petitioner's allegations established the prima facie eligibility needed to justify reopening. M.A. A26851062 v. INS, 858 F.2d 210 (4th Cir.1988). This court granted rehearing en banc, and we now affirm the judgment of the BIA.

II.

We must address at the outset the standard that governs our review of the Board's decision to deny M.A.'s motion to reopen his deportation proceedings. We hold that Board denials of motions to reopen for failure to establish a prima facie case of eligibility for asylum are to be reviewed under an abuse of discretion standard.

M.A. requests asylum under the Refugee Act of 1980, Pub.L. 96-212, 94 Stat. 102 (1980), which amended the Immigration and Nationality Act of 1952 ("INA"), Pub.L. No. 82-414, 66 Stat. 163. The Refugee Act of 1980 established for the first time a statutory basis for the grant of asylum to refugees already within the United States. See generally Anker & Posner, The Forty Year Crisis: A Legislative History of the Refugee Act of 1980, 19 San Diego L.Rev. 9, 11 (1981). Section 208(a) of the amended INA, 8 U.S.C. Sec. 1158(a), provides the Attorney General and his delegates ¹ with discretion to grant asylum to an alien present in the United States if the alien satisfies the statutory definition of refugee. ²

The INA defines "refugee" 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). ³ Thus, asylum involves a two stage process: first, the immigration authorities determine statutory eligibility based on the "well-founded fear of persecution" standard; and second, if statutory eligibility is established, the Attorney General has discretion either to grant or to deny the alien's request for asylum. 8 U.S.C. Sec. 1158(a).

It is significant that M.A. requested asylum in the context of a motion to reopen finalized deportation proceedings. The immigration statutes do not require or even contemplate reopening procedures; instead, the Attorney General established them through regulations promulgated in his discretion under the immigration statutes. INS v. Rios-Pineda, 471 U.S. 444, 446, 105 S.Ct. 2098, 2100, 85 L.Ed.2d 452 (1985). When the Board adjudges a motion to reopen, it considers not the merits of the underlying claim, but rather whether new developments warrant rehearing the...