Najafi v. I.N.S., 96-2593

• Decision Date: 15 January 1997
• Docket Number: No. 96-2593,96-2593
• Citation: 104 F.3d 943
• Parties: Mehran NAJAFI, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 943

104 F.3d 943

Mehran NAJAFI, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 96-2593.

United States Court of Appeals Seventh Circuit.

Argued Dec. 6, 1996.

Decided Jan. 15, 1997.

Paul D. Gresk (argued), Johnson, Smith, Densborn, Wright & Heath, Indianapolis, IN, for petitioner.

Stephen W. Funk, Michelle Gluck (argued), Department of Justice, Civil Division, Immigration Litigation, Washington, DC, Lynn K. Holland, Chicago, IL, for respondent.

Before BAUER, COFFEY, and FLAUM, Circuit Judges.

FLAUM, Circuit Judge.

Mehran Najafi petitions this court pursuant to 8 U.S.C. § 1105a(a) to review the final decision of the Board of Immigration Appeals denying Najafi's request for asylum, withholding of deportation, and suspension of deportation. Because we conclude that the inquiry into Najafi's fear of religious persecution was mis-framed, we set aside the Board's determination and return this matter to the Board for further consideration.

I.

Mehran Najafi, a native of Iran, came to the United States on a student visa in October 1978. After returning to Iran for a brief visit in 1979 for medical treatment, he graduated from high school in Indianapolis in 1980, and earned a degree in electrical engineering from Purdue in 1985. At this point, his student visa lapsed, and he remained in the country on a professional, non-immigrant visa. ¹ He completed some graduate work and has been employed as an engineer for the past six years. Najafi married an American citizen some time in the late 1980's. Sponsored by his wife, Najafi applied for permanent residency. The marriage failed. Following his divorce in 1990, he abandoned his application for residency and filed for political asylum, which we assume was denied.

An Order to Show Cause was issued against Najafi in May 1993. He filed for asylum and withholding of deportation. ² In January 1994, the immigration judge ordered Najafi deported. He appealed to the Board, which dismissed his appeal. Najafi filed a motion to reopen for reconsideration in August 1995. On April 1, 1996, the Board affirmed its earlier decision to dismiss the appeal. Najafi now appeals to this court.

Najafi is 34, unmarried, and has no children. Of course, further details of his life, primarily concerning his religion and family background, are relevant to our determination regarding asylum or deportation. We are able to glean the following facts almost wholly from Najafi's testimony before the immigration judge.

Born a Moslem, Najafi was introduced to the Indianapolis Church of Christ in 1984, and has been a church participant, attending Bible study and services since his conversion in 1989. He has contributed some money to the church: for example, he has documented checks totaling $227 donated to the church between December 1990 and September 1991. Although a college roommate has sponsored Najafi for membership in the church, he has not participated in any formal induction.

Najafi's father was a member of the Shah's party and a high ranking bank official prior to the revolution. Najafi was a member of the Shah's youth party. After the revolution, his father and uncle were imprisoned for a short time and both lost their jobs. His father, now a sort of business consultant, is periodically interrogated by the government. Najafi's family continues to reside in Shiraz, Iran.

II.

Najafi appeals the April 1, 1996 decision of the Board of Immigration Appeals that denied relief from deportation. By statute our review is limited to that decision. 8 U.S.C. § 1105a(a). However, because the Boards' reconsideration simply affirms the Board's April 3, 1994 decision, which adopts the reasoning of the immigration judge's January 19, 1994 decision, we review the original decision. Dobrican v. INS, 77 F.3d 164, 167 (7th Cir.1996). We review the decision of the immigration judge for an abuse of discretion, meaning we determine whether it was supported by "reasonable, substantial, and probative evidence." INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 815, 117 L.Ed.2d 38 (1992); Urukov v. INS, 55 F.3d 222, 227 (7th Cir.1995). To reverse, we must conclude that no "reasonable fact finder" would have found that the alien failed to satisfy the statutory requirements for relief from deportation. See Elias-Zacarias, 502 U.S. at 481, 112 S.Ct. at 815.

Here we consider three statutory tests: those for asylum, 8 U.S.C. § 1158(a), withholding of deportation, 8 U.S.C. § 1253(h), and suspension of deportation, 8 U.S.C. § 1254. We recognize that Najafi bore the burden of proof in each of these statutory hurdles. INS v. Stevic, 467 U.S. 407, 424, 104 S.Ct. 2489, 2497-98, 81 L.Ed.2d 321 (1984) (withholding of deportation); Balazoski v. INS, 932 F.2d 638, 640 (7th Cir.1991) (withholding of deportation and asylum); Kuciemba v. INS, 92 F.3d 496, 499 (7th Cir.1996) (suspension of deportation).

We begin by distinguishing these three statutory avenues for relief from deportation. Najafi petitions for asylum in the United States pursuant to 8 U.S.C. § 1158(a). To succeed, he must qualify as a "refugee" under 8 U.S.C. § 1101(a)(42)(A), defined as a person 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." See Krastev v. INS, 101 F.3d 1213, 1216 (7th Cir.1996); Mitev v. INS, 67 F.3d 1325, 1329 (7th Cir.1995). "To show 'a well-founded fear' a petitioner must demonstrate that the fear is (subjectively) genuine and that it is reasonable in light of the (objective) credible evidence." Dobrican v. INS, 77 F.3d 164, 167 (7th Cir.1996). Once refugee status is established, the Attorney General may grant the alien asylum. Krastev, 101 F.3d at 1216. The immigration judge must give reasons for this discretionary determination. See Bastanipour v. INS, 980 F.2d 1129, 1131 (7th Cir.1992). In the instant case, the immigration judge was unconvinced of Najafi's "well-founded fear of persecution" and therefore Najafi did not achieve refugee status. Thus, here, it is only necessary for us to review the first portion of the asylum inquiry.

Second, Najafi applied for withholding of deportation pursuant to 8 U.S.C. § 1253(h). The statute reads in pertinent part: "the Attorney General shall not deport or return any alien ... to a country if the Attorney General determines that such alien's life or freedom would be threatened in such a country on account of race, religion, nationality, membership in a particular social group, or political opinion." To succeed under this section of the Immigration and Nationality Act, a petitioner must demonstrate a "clear probability of persecution." INS v. Cardoza-Fonseca, 480 U.S. 421, 430, 107 S.Ct. 1207, 1212, 94 L.Ed.2d 434 (1987). "Clear probability" has been interpreted to mean that it is more likely than not that the deportee would be subject to persecution. Stevic, 467 U.S. at 429-30, 104 S.Ct. at 2501. Addressing Najafi's withholding of deportation claim, the immigration judge simply extended his analysis under the asylum provisions: if Najafi had not established a "well-founded fear of persecution," certainly no "clear probability of persecution" existed.

Third, Najafi requests a suspension of deportation pursuant to 8 U.S.C. § 1254. For the Attorney General to suspend deportation, the immigration judge must find that the alien (1) has been physically present in the United States for a continuous period of seven years immediately preceding the date of the application for suspension, (2) proves that during all of such period he was and is a person of good moral character, and (3) is a person whose deportation would, in the opinion of the Attorney General, result in "extreme hardship" to the alien or to his spouse, parent, or child, who is a citizen. 8 U.S.C. § 1254. Like the asylum provision, once these statutory criteria are satisfied, the grant of suspension is within the Attorney General's discretion. Here, the immigration judge found that Najafi satisfied the first two requirements, presence and character, and that, given the equities of the situation, the Attorney General would, if she could, grant suspension. However, Najafi failed to establish "extreme hardship." Because suspension is an "exceptional remedy," INS v. Wang, 450 U.S. 139, 145, 101 S.Ct. 1027, 1031, 67 L.Ed.2d 123 (1981) (per curiam); Kuciemba, 92 F.3d at 499, " '[e]xtreme hardship' will not be found without a showing of significant actual or potential injury, in the sense that the petitioner will suffer hardship 'substantially different from and more severe than that suffered by the ordinary alien who is deported.' " Kuciemba, 92 F.3d at 499 (quoting Palmer v. INS, 4 F.3d 482, 487-88 (7th Cir.1993)). Compelled to interpret "extreme hardship" narrowly, the immigration judge did not accept Najafi's forecasted economic difficulties caused by displacement as "extreme hardship." The immigration judge again relied on his asylum analysis to dismiss any fears of future persecution.

In the eyes of the immigration judge, Najafi did not bear his burden of proof with respect to any of these statutory tests: he demonstrated neither a "well-founded fear of persecution," nor a "probability of persecution," nor "extreme hardship." With the exception of the economic component of Najafi's claim for suspension of deportation, the factual underpinnings of each claim are identical. Recognizing that the tests are of differing levels of vigor, see INS v. Cardoza-Fonseca, 480 U.S. 421, 429, 107 S.Ct. 1207, 1212, 94 L.Ed.2d 434 (1987), we begin our analysis with Najafi's asylum claim, as, of the three tests, "the well-founded fear of persecution" showing is most easily satisfied. See Dobrican, 77 F.3d at 168.

III.

Arguing that no reasonable fact-finder could have failed...