Mikhael v. I.N.S

• Decision Date: 04 June 1997
• Docket Number: No. 95-60581,95-60581
• Citation: 115 F.3d 299
• Parties: Hekmat Wadih MIKHAEL, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 299

115 F.3d 299

Hekmat Wadih MIKHAEL, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 95-60581.

United States Court of Appeals, Fifth Circuit.

June 4, 1997.

Thomas Perrill Adams, New Orleans, LA, Jeri Ann H. Flynn, David Edward Tippett, Flynn & Associates, Baton Rouge, LA, for petitioner.

Janet Reno, Office of the United States Attorney General, Civil Division, Appellate Staff, Washington, DC, Joan Estelle Smiley, Robert L. Bombough, Director, Susie S. Cho, Office of Immigration Litigation, Washington, DC, John B. Z. Caplinger, Director, Immigration and Naturalization Service, New Orleans, LA, for respondent.

Petition for Review of an Order of the Board of Immigration Appeals.

Before POLITZ, Chief Judge, and EMILIO M. GARZA and STEWART, Circuit Judges.

STEWART, Circuit Judge:

Hekmat Wadih Mikhael ("Mikhael") appeals the Board of Immigration Appeals' ("BIA" or "the Board") affirmance of the Immigration Judge's ("IJ") denial of his application for asylum and withholding of deportation. After a careful review of the record, the briefs and the arguments of counsel, we VACATE the decision of the BIA and REMAND with instructions to reconsider Mikhael's asylum and withholding of deportation requests.

BACKGROUND ¹

Mikhael is a Greek-Orthodox Christian Lebanese citizen who was born in Sierra Leone, Africa, in 1966. In 1975, his family moved to Tripoli, Lebanon from Sierra Leone. That same year, the Lebanese civil war started. In subsequent years, the Mikhael family suffered through many violent incidents related to their religious and political beliefs. In 1978, Mikhael's father was kidnaped by Syrian radicals and held for two or three days before his release. Mikhael testified that his father was kidnaped because he was British and a Christian. Also during that time, the family car was stolen and their house was bombed and burned. Following these incidents, the Mikhael family moved from Tripoli to Christian East Beirut, which the Mikhael family considered to be safer than Tripoli. In 1979 or 1980, Mikhael's older brother, George, was shot in the leg by Muslims on his way from school. In 1982, another brother, Michael, was kidnaped and held for several days by Palestinians. During the days of his detention, Michael was tortured with electric shocks. Mikhael testified that his brother was kidnaped because he was active in the political faction known as the Phalange. Thereafter, fearing for his sons' lives, Mikhael's father sent George and Michael out of the country.

Both brothers are now United States citizens, as is some of Mikhael's immediate family.

Mikhael, on the other hand, was not sent out of the country until 1988, when he entered the United States on a student visa to attend college in Louisiana. However, in 1987, prior to being sent out of the country, Mikhael was detained by Syrians for three hours. Mikhael contends that he was accused of being a Phalangist, probably because he had previously attended several meetings led by a Phalange leader. During the detainment, the Syrians assaulted him with a gun across his forehead, from which he carries a permanent scar. Thereafter, in December 1988, Mikhael's father sent him to the United States as a nonimmigrant student in order to attend college.

In January 1989, Mikhael enrolled as a student at the University of Southwestern Louisiana ("USL") in Lafayette. During two different school Christmas breaks, he departed for Lebanon to visit with family. On Mikhael's first trip back to Lebanon, he was detained at the Beirut airport for 45 minutes by Syrian officials. To avoid being detained again by Syrians, Mikhael departed for the United States from the Christian controlled port of Jouneh. On his second trip back to Lebanon the following Christmas, Mikhael traveled entirely through the port of Jouneh and was not detained either time. Since January 7, 1991, Mikhael has been continuously present in the United States. Since May 1992, Mikhael has held several jobs, but he has not attended USL or any other university. While at USL, Mikhael met a fellow student named Lisa, whom he eventually married in June of 1994. The couple currently resides in Lafayette, Louisiana. On April 22, 1993, Mikhael was convicted in the United States District Court for the Western District of Louisiana, for conspiracy to commit wire fraud, in violation of 18 U.S.C. § 371. He was sentenced to twelve months imprisonment followed by thirty-six months supervised release. Mikhael served his time and was released from incarceration in May 1994.

On February 7, 1994, the Immigration and Naturalization Services ("INS") issued an Order to Show Cause ("OSC"), charging Mikhael as deportable under Immigration and Nationality Act ("INA" or "the Act") section 241(a)(1)(C)(I), entitled Failed to Maintain or Comply with the Conditions of Nonimmigrant Status. The OSC was later amended by also charging Mikhael with being deportable under section 241(a)(2)(A)(I) of the INA. Deportation proceedings commenced on April 12, 1994, and were continued. On July 13, 1994, Mikhael admitted the charges and conceded deportability and the IJ designated Lebanon as the country of deportation; however, because Mikhael's conviction was not final and his U.S. citizen wife had filed INS form I-130 petition for Alien Relative on his behalf, the IJ adjourned the proceedings. Finally, on March 3, 1995, a deportation hearing was conducted in Oakdale, Louisiana. On March 21, 1995, the IJ issued his decision and order denying Mikhael's application for asylum, withholding of deportation, and waiver of deportation. On May 15, 1995, Mikhael filed a timely appeal to the BIA. On September 1, 1995, the BIA dismissed Mikhael's appeal in a one-paragraph Per Curiam opinion. This timely petition for review followed.

STANDARD OF REVIEW

We review factual findings of the Board to determine if they are supported by substantial evidence in the record. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 815, 117 L.Ed.2d 38 (1992). We will reverse only when the evidence is "so compelling that no reasonable factfinder could fail to find the requisite fear of persecution." Id. We accord deference to the BIA's interpretation of immigration statutes unless the record reveals compelling evidence that the BIA's interpretation is incorrect. Rojas v. INS, 937 F.2d 186, 189 (5th Cir.1991).

We have authority to review only an order of the BIA, not the IJ, unless the IJ's decision has some impact on the BIA's decision. Chun v. INS, 40 F.3d 76, 78 (5th Cir.1994). Here, the BIA affirmed the IJ's decision "based upon and for the reasons set forth in that decision"--in essence, the BIA adopted the IJ's decision. Thus, we must review the IJ's decision. Gomez-Mejia v. INS, 56 F.3d 700, 702 (5th Cir.1995).

DISCUSSION

The Act "provide[s] two methods through which an otherwise deportable alien who claims that he or she will be persecuted if deported can seek relief. These are 1) asylum, and 2) withholding of deportation." INS v. Cardoza-Fonseca, 480 U.S. 421, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). Here, Mikhael applied for and was denied both. We will review each claim separately.

I. ASYLUM

Pursuant to section 208 of the Immigration and Nationality Act, the Attorney General has the authority to grant asylum to any alien who the Attorney General determines to be a refugee according to the definition provided by § 101(a)(42)(A) of the Act (" § 101"), 8 U.S.C. 1101(a)(42)(A) (1996). For the purpose of asylum a refugee is

any person who is unwilling to return to, and is ... 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....

Section 101(a)(42)(A) INA, 8 U.S.C. § 1101(a)(42)(A) (emphasis added). Moreover, § 101, written in the disjunctive, allows a finder of fact to make a determination of an alien's refugee status if either persecution ² or a well-founded fear of persecution is shown. However, merely being classified as a refugee does not automatically grant the alien asylum. Section 208 is a provision stated in precatory language, i.e., it allows the Attorney General the discretion to grant asylum to refugees. See INA section 208, 8 U.S.C. § 1158(a); Castillo-Rodriguez v. INS, 929 F.2d 181, 184 (5th Cir.1991).

In his asylum application, Mikhael asserted that he was entitled to relief because of his (1) past persecution, and (2) well founded fear of future persecution based on his religious and political beliefs. Thus, our primary concern in this case is the IJ's consideration of both of Mikhael's claims.

A. Mikhael's Credibility.

On appeal, Mikhael specifically challenged the IJ's adverse credibility determination, however, the BIA declined to specifically address the credibility issue. The BIA stated "as we specifically find the Immigration Judge correctly addressed all issues other than credibility raised on appeal, the decision of the Immigration Judge is affirmed based on and for all the reasons set forth in that decision." After a de novo review, the BIA affirmed the IJ's alternative determination "that even had he [IJ] accepted the respondent's testimony as credible, it would not have established the respondent's eligibility for asylum or withholding of deportation." Thus, because credibility is not an issue, we need only review the IJ's decision to the extent the decision addresses the factual and legal predicate upon which it found Mikhael ineligible for asylum.

B. Past Persecution.

Mikhael argues that he and other members of his immediate family have been victims of past persecution for their religious beliefs by the Syrians and Muslims and he is fearful of returning to Lebanon because of its takeover by the Syrians. Before the BIA and before this court, Mikhael maintains that, having established past persecution, he was...