Najjar v. Ashcroft, Nos. 99-14391

CourtU.S. Court of Appeals — Eleventh Circuit
Writing for the CourtANDERSON
Citation257 F.3d 1262
Parties(11th Cir. 2001) FEDAA AL NAJJAR, MAZEN AL NAJJAR, Petitioners, v. JOHN ASHCROFT, ATTORNEY GENERAL, US DEPARTMENT OF JUSTICE, et al., Respondents
Decision Date18 July 2001
Docket NumberNos. 99-14391,99-14807

Page 1262

257 F.3d 1262 (11th Cir. 2001)
FEDAA AL NAJJAR, MAZEN AL NAJJAR, Petitioners,
v.
JOHN ASHCROFT, ATTORNEY GENERAL, US DEPARTMENT OF JUSTICE, et al., Respondents.
Nos. 99-14391, 99-14807
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
July 18, 2001

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Petitions for Review of Orders of the Board of Immigration Appeals. BIA Nos. A73-228-388; A26-599-077

Before ANDERSON, Chief Judge, CARNES and OAKES*, Circuit Judges.

ANDERSON, Chief Judge:

Mazen and Fedaa Al Najjar, a husband and wife in consolidated deportation proceedings, appeal decisions of the Board of Immigration Appeals ("BIA") upholding an immigration judge's ("IJ's") order of deportation which denied their petitions for asylum, withholding of removal, and suspension of deportation under sections 208(a), 243(h) and 244(a) of the Immigration and Naturalization Act ("INA"), 8 U.S.C. §§ 1158(a), 1253(h) and 1252(a) (1996). Because we find the BIA's decisions to be supported by reasonable, substantial, and probative evidence on the record considered as a whole, we affirm and dismiss their petitions. Due to the complex procedural background of this case and the number of challenges raised, we set out the following table of contents to assist the reader of this opinion:

TABLE OF CONTENTS
                I. Background .........................................1270
                 A. Factual Background.................................1270
                 B. Procedural Background..............................1272
                 1.IJ Proceedings................................1272
                 2.The INS Detains Mazen.........................1273
                 3.BIA Review of the Al Najjars' Deportation Orders...1274
                 4.Mazen's Habeas Corpus Proceedings.............1275
                II. Analysis...........................................1276
                 A. Judicial Review After IIRIRA.......................1276
                 B. Judicial Notice....................................1277
                 C. Standard of Review.................................1283
                 D. Asylum.............................................1284
                1. Actual Political Opinion......................1286
                2. Imputed Political Opinion.....................1288
                3. Denial of Entry...............................1291
                 E. Withholding of Deportation.........................1292
                 F. Asylum & Withholding Testing Countries.............1293
                 G. Suspension of Deportation..........................1296
                 H. Motions to Remand..................................1300
                1.Judicial Review of a Motion to Reopen..........1301
                2. Heavy Burden..................................1302
                3. Prima Facie CAT Claim.........................1303
                III. Conclusion........................................1304
                

I. BACKGROUND

A. Factual Background

Mazen Abdel Abdulkarim Al Najjar ("Mazen") was born in 1957 in Gaza. He lived in Palestine with his parents until his first birthday, when he and his family moved to Saudi Arabia. Mazen remained in Saudi Arabia with his parents and five siblings for thirteen years. When Mazen was fourteen, he moved to Egypt where he completed high school and attended Cairo University, culminating in the receipt of a bachelor's degree in Civil Engineering in 1979. From 1979 until 1981, Mazen worked and lived in the United Arab Emirates ("UAE") on a temporary work visa.

Mazen first entered the United States in 1981 using a Palestinian refugee travel

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document issued by the Egyptian government. He came to this country to pursue a master's degree in Industrial Engineering at North Carolina Agricultural and Technical State University ("NCATSU") in Greensboro, North Carolina after obtaining authorization from the Immigration and Naturalization Service ("INS") to remain in the United States for the duration of his nonimmigrant graduate student status.

In 1984, after completing most of his thesis, but before graduation, Mazen left the United States to visit his parents in the UAE.1 After this trip, Mazen re-entered this country on December 8, 1984, and has not left the United States since then. Upon re-entry, he completed the final draft of his thesis and graduated with a master's degree in Industrial Engineering from NCATSU in May 1985.

Thereafter, Mazen entered a Ph.D. program in Industrial Engineering at North Carolina State University where he remained for two semesters. While at North Carolina State, he was accepted into the doctoral program at the University of South Florida ("USF") in Tampa. Mazen transferred to USF in 1986 and began working on his Ph.D. In the fall of 1993, he finished his dissertation and, in 1994, earned his Ph.D. in Industrial Engineering from USF.

On January 30, 1988, while working toward his Ph.D. at USF, Mazen married his cousin, Fedaa Abdulkarim Muhammed Shaladen Al Najjar, in Tampa, Florida. Fedaa entered the United States on January 22, 1988, just days before the wedding, at the age of twenty-three. She was lawfully admitted to the United States by the INS as a nonimmigrant visitor with authorization to remain for only one year. Like Mazen, Fedaa entered this country with a Palestinian refugee travel document issued by the Egyptian government.

Fedaa was born in Saudi Arabia in 1964 to Palestinian parents. She lived in Saudi Arabia with her parents, two brothers, and four sisters from her birth until her entry into the United States. While in Saudi Arabia, Fedaa attended King Saud University, and received a bachelor's degree in Pharmacy. Fedaa's father passed away in 1994, while she was living in the United States, but Fedaa's mother, four sisters, and at least one of her two brothers presently reside in Riyadh, Saudi Arabia.

Despite the fact that Fedaa was born in Saudi Arabia, she has never been eligible for Saudi citizenship because Saudi law grants citizenship solely based on Saudi ancestry. Fedaa is of Palestinian ancestry and therefore is not entitled to Saudi citizenship. Nonetheless, Fedaa obtained a Saudi re-entry visa, which remained valid if she returned to Saudi Arabia at least every six months. Fedaa failed to satisfy this condition while residing in the United States and, consequentially, she no longer has a valid Saudi re-entry visa.

Mazen has lived in Tampa, Florida since 1986 when he began his studies at USF. Since Fedaa's entry into the United States in 1988, she has resided continuously in Tampa, Florida, as well. While living there, the Al Najjars had three daughters together. Each of the Al Najjars' three daughters is a lawful citizen of this country.

While living in Tampa, Fedaa and Mazen have been active in the Arab-American and Muslim communities. Mazen helped begin a mosque with the Islamic Community of Tampa, where he was elected president

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and served in a capacity similar to an Imam, for those of the Sunni Muslim faith. Fedaa has been active in various charitable events and programs sponsored by the mosque.

Through the mosque, Fedaa and Mazen also helped found a private Muslim school, offering kindergarten through junior high school classes. Over the years, Fedaa taught classes at the mosque's school and volunteered there in other capacities.

While attending USF, Mazen helped begin the World and Islam Studies Enterprise ("WISE"), a think-tank ostensibly committed to educating the public about Islamic issues through research, publishing, and seminars. To this end, WISE held conferences with roundtable discussions involving international Islamic leaders and scholars of the Middle East. WISE also published various journals in Arabic, tackling issues which face Muslims today, as well as cataloging discussions from the organization's conferences.

B. Procedural Background

On April 19, 1985, the INS initiated deportation proceedings against Mazen by issuing an Order to Show Cause ("OSC") under § 241(a)(9) of the INA, 8 U.S.C. § 1251(a)(9) (1984), for failing to maintain the conditions of his nonimmigrant status by willfully providing untruthful information to the INS.2 The Service thereafter supplemented the OSC, charging that Mazen had not maintained the conditions of his nonimmigrant student status under the INA. The case was administratively closed on June 4, 1986, because Mazen failed to appear at the hearing. Two weeks later, on June 18, 1986, Mazen formally requested that the proceedings be reopened because he had not received notice of the hearing until two days after it was held. Mazen's motion to reopen went unanswered for almost ten years, until his 1985 deportation proceedings were recalendared for February 8, 1996.

In the meantime, Fedaa self-reported for deportation proceedings. On January 22, 1996, by OSC and Notice of Hearing, the INS charged Fedaa as deporatable under § 241(a)(1)(B) of the INA, 8 U.S.C. § 1251(a)(1)(B) (1996), as a nonimmigrant alien who remained in the United States for a longer period than permitted.

1. IJ Proceedings

On February 8, 1996, Mazen's recalendared deportation hearing was held. The Service issued a Form I-261 to supplement the factual allegations contained in the April 1985 OSC. Over the objection of the INS, the IJ granted the Al Najjars' motions to consolidate their deportation proceedings. Mazen and Fedaa both conceded deportability under the INA but requested relief from deportation in the form of asylum, withholding of removal, and suspension of deportation. In July

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and October of 1996, consolidated hearings before an IJ in Orlando, Florida took place.

At these hearings, Mazen and Fedaa argued that they were stateless Palestinians and declined to designate a country of deportation. Instead, the Al Najjars argued that no Middle Eastern country would accept them as permanent residents due to their lack of citizenship anywhere in the world.

In the course of the proceedings before the...

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738 practice notes
  • Assa'Ad v. U.S. Atty. Gen., No. 01-16153.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • 5 d4 Junho d4 2003
    ...Pub.L. No. 104-208, 110 Stat. 3009, as amended ("IIRIRA") (reprinted in 8 U.S.C.A. § 1101 (historical notes)). See Al Najjar v. Ashcroft, 257 F.3d 1262, 1276-77 (11th Cir.), reh'g, en banc, denied, 275 F.3d 1085 (2001). Under the IIRIRA transitional rules, we apply the provisions of former ......
  • Cadet v. Bulger, No. 03-14565.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • 20 d2 Julho d2 2004
    ...to prove by objective evidence that it is "more likely than not" that he or she will be tortured if removed. Al Najjar v. Ashcroft, 257 F.3d 1262, 1303 (11th Cir.2001) (quoting 8 C.F.R. § 208.16(c)(2)(2001)); see also Elien v. Ashcroft, 364 F.3d 392, 398 (1st Cir.2004) (stating that "[t]he ......
  • Okeke v. Gonzales, No. 03-1831.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 18 d3 Maio d3 2005
    ...under this subchapter [8 U.S.C. §§ 1151-1378] to be in the discretion of the Attorney General") (emphasis added); Najjar v. Ashcroft, 257 F.3d 1262, 1298 (11th Cir.2001) (holding that "continuous physical presence" element is not a discretionary factor); see also Mendez-Moranchel v. Ashcrof......
  • Patel v. U.S. Attorney Gen., No. 17-10636
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 19 d3 Agosto d3 2020
    ...a discretionary decision, while the continuous physical presence requirement is a non-discretionary determination. Najjar v. Ashcroft , 257 F.3d 1262, 1298 (11th Cir. 2001) ; see also Gonzalez-Oropeza , 321 F.3d at 1332. In Najjar , we explained that determining whether an alien met the pre......
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882 cases
  • Assa'Ad v. U.S. Atty. Gen., No. 01-16153.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • 5 d4 Junho d4 2003
    ...Pub.L. No. 104-208, 110 Stat. 3009, as amended ("IIRIRA") (reprinted in 8 U.S.C.A. § 1101 (historical notes)). See Al Najjar v. Ashcroft, 257 F.3d 1262, 1276-77 (11th Cir.), reh'g, en banc, denied, 275 F.3d 1085 (2001). Under the IIRIRA transitional rules, we apply the provisions of former ......
  • Alim v. Gonzales, No. 04-11463.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 24 d1 Abril d1 2006
    ...the final removal order." Sepulveda, 401 F.3d at 1230. We review the IJ's decision "as if it were the Board's." Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. A. LEGAL STANDARDS The IJ's factual finding that "an alien is statutorily ineligible for ... withholding is reviewed under th......
  • Cadet v. Bulger, No. 03-14565.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 20 d2 Julho d2 2004
    ...to prove by objective evidence that it is "more likely than not" that he or she will be tortured if removed. Al Najjar v. Ashcroft, 257 F.3d 1262, 1303 (11th Cir.2001) (quoting 8 C.F.R. § 208.16(c)(2)(2001)); see also Elien v. Ashcroft, 364 F.3d 392, 398 (1st Cir.2004) (stating that "[t]he ......
  • Okeke v. Gonzales, No. 03-1831.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 18 d3 Maio d3 2005
    ...under this subchapter [8 U.S.C. §§ 1151-1378] to be in the discretion of the Attorney General") (emphasis added); Najjar v. Ashcroft, 257 F.3d 1262, 1298 (11th Cir.2001) (holding that "continuous physical presence" element is not a discretionary factor); see also Mendez-Moranchel v. Ashcrof......
  • Request a trial to view additional results

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