Rasool v. INS

• Decision Date: 15 February 1991
• Docket Number: No. 89 Civ. 6251 (RJW).,89 Civ. 6251 (RJW).
• Citation: 758 F. Supp. 188
• Parties: Sayeed RASOOL, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
• Court: U.S. District Court — Southern District of New York

758 F. Supp. 188

Sayeed RASOOL, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 89 Civ. 6251 (RJW).

United States District Court, S.D. New York.

February 15, 1991.

MEMORANDUM DECISION

ROBERT J. WARD, District Judge.

Sayeed Rasool ("Rasool") petitions this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241 and 8 U.S.C. 1105a(a)(9), seeking review of an order of exclusion and deportation issued by the Board of Immigration Appeals (the "BIA"). For the reasons that follow, the order of the BIA is reversed, and the matter is remanded to the BIA to permit it to exercise its discretion regarding Rasool's application for asylum.

BACKGROUND

Rasool is a native and citizen of Afghanistan, who arrived at JFK International Airport in New York on December 24, 1988. He did not possess any documents authorizing his admission into the United States, and was therefore detained by respondent Immigration and Naturalization Service (the "INS") pursuant to section 235(b) of the Immigration and Nationality Act of 1952, as amended, 8 U.S.C. § 1225(b) (the "Act").

Rasool thereafter filed an application for political asylum, which was forwarded to the State Department for an advisory opinion pursuant to 8 C.F.R. § 208.10. At his exclusion hearing, held before an Immigration Judge on March 3, 1989, Rasool conceded excludability under § 212(a)(20) of the Act, 8 U.S.C. § 1182(a)(20). The hearing then proceeded on Rasool's application for asylum under § 208(a) of the Act or, in the alternative, for withholding of deportation pursuant to § 243(h) of the Act.

At the hearing, Rasool was represented by his present attorney. He testified that, while in Afghanistan, he had aided the Mujahedin¹ by providing them with food and money, and by distributing leaflets and giving them reports. His father and brother were also actively engaged in aiding the Mujahedin. Rasool's father made anti-government speeches and wrote leaflets in addition to contributing money to the rebel cause, and his brother was killed in 1984 during a fight with government forces. Further, a cousin of Rasool was imprisoned for nine years after the government searched his store and found "night letters"² which had been hidden there by the cousin's brother. In 1984, Rasool's father had twice been detained and questioned by the authorities and then released. Rasool stated that the government had detained his father based upon the suspicion that he was aiding the Mujahedin, and then had released him because it failed to find any proof to support these suspicions.

On August 10, 1988, Rasool and his father were at his father's store in Kandahar City with two other Mujahedin who had brought a report to Rasool's father. Rasool was given the report containing information for the Mujahedin and instructed to bring it to a battlefield called "Islamic Party" in Demassuse, approximately one hour's walking distance from the store. Rasool left on foot with the report at approximately 9:00 a.m. While he was gone, his father and the two other Mujahedin were shot and killed in the store. On his way home, Rasool learned of the murders from a neighbor, Pazella Martin, who had been sent to notify him. Rasool was warned by neighbors not to return to his home or he would be killed. He immediately fled to his uncle's house in a neighboring suburb, where he remained in hiding for four months prior to coming to the United States.

Rasool stated his belief that his father and the two other Mujahedin were killed by government agents. Although the gunmen wore civilian clothing, Rasool had been told by a shopkeeper that they were communists. This shopkeeper told him that two people had walked into the store and shot the three men, and then later a jeep arrived containing uniformed government people who searched the store and locked it up. Rasool testified that he fled to his uncle's home "because they searched our home. In the home they found night letters that my father had and then they asked about me and they told them that I was not here so that is why I disappeared." Transcript of Proceedings, Exhibit A to Declaration of Timothy Macfall ("Tr."), at 65. While he was at his uncle's house, shopkeepers "told Rasool's uncle to tell Rasool not to come there because his life would be in danger."

At the close of the hearing, the Immigration Judge rendered an oral decision denying petitioner's requests for relief, and ordered that he be excluded and deported to Afghanistan. On March 13, 1989, petitioner filed a timely appeal with the BIA. He was paroled from INS custody pending the determination of his appeal by the BIA. On July 24, 1989, the BIA dismissed petitioner's appeal, finding that he had failed to meet his burden of proof on both his applications for asylum and for withholding of deportation. Petitioner now challenges those findings of the BIA.

DISCUSSION

During his exclusion proceeding, petitioner sought asylum or, in the alternative, withholding of deportation.³ These are the two principal statutory remedies available to an alien seeking to avoid deportation from the United States. E.g., Brice v. U.S. Dep't of Justice, 806 F.2d 415, 417 (2d Cir.1986).

I. The Alien's Burden of Proof.

A. Asylum under § 208 —

Under § 208(a) of the Act, an alien "may be granted asylum in the discretion of the Attorney General if the Attorney General determines that such alien is a refugee...." 8 U.S.C. § 1158(a). Section 101(a)(42)(A) of the Act defines the term "refugee" as:

any person who is outside any country of such person's nationality ... and 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. ...

8 U.S.C. § 1101(a)(42)(A) (1970 & Supp. 1990); INS v. Cardoza-Fonseca, 480 U.S. 421, 428, 107 S.Ct. 1207, 1211, 94 L.Ed.2d 434 (1987); Doherty v. U.S. Dep't of Justice, INS, 908 F.2d 1108, 1114 (2d Cir.1990). "Thus, the `persecution or well-founded fear of persecution' standard governs the Attorney General's determination whether an alien is eligible for asylum." INS v. Cardoza-Fonseca, supra, 480 U.S. at 428, 107 S.Ct. at 1211. The burden is on the alien to demonstrate a well-founded fear of persecution. See, e.g., Doherty v. U.S. Dep't of Justice, INS, supra, 908 F.2d at 1114.

To demonstrate a well-founded fear of persecution, "an alien must demonstrate a subjective fear of persecution and some objective facts supporting that fear." Brice v. U.S. Dep't of Justice, 806 F.2d 415, 418 (2d Cir.1986); Carcamo-Flores v. INS, 805 F.2d 60, 64 (2d Cir.1986). See also INS v. Cardoza-Fonseca, supra, 480 U.S. at 430-31, 438-40, 107 S.Ct. at 1212-13, 1216-18. Ideally, the requirement of "some objective facts supporting that fear" should be satisfied through such corroborative evidence as "affidavits, journalistic accounts or other examples of persecution in the involved country, or testimony corroborating the alien's claims." See Carcamo-Flores v. INS, supra, 805 F.2d at 64. However, it is possible that "credible testimony by the alien might, in some cases, suffice, especially where conditions in the alien's native country make production of documentary evidence difficult or impossible." Id. In any event, it is now settled law that an alien need not demonstrate that it is more likely than not that he will be subject to persecution in order to satisfy the "well-founded fear" standard. INS v. Cardoza-Fonseca, supra, 480 U.S. 421, 107 S.Ct. 1207. See Carcamo-Flores v. INS, supra, 805 F.2d at 64.⁴

As noted above, once an alien has demonstrated that he qualifies as a refugee, he may be granted political asylum in the discretion of the Attorney General.

B. Withholding of Deportation under § 243(h) —

Section 243(h) provides that:

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 country on account of race, religion, nationality, membership in a particular social group, or political opinion.

8 U.S.C. § 1253(h) (1970 & Supp.1990). In order to avoid deportation under this section, "an alien must establish a clear probability of persecution...." INS v. Stevic, 467 U.S. 407, 413, 104 S.Ct. 2489, 2492, 81 L.Ed.2d 321 (1984). Under this standard, the question is "whether it is more likely than not that the alien would be subject to persecution." Id. at 424, 104 S.Ct. at 2498.

"Unlike asylum, which is discretionary, withholding of deportation is a mandatory remedy that prohibits the attorney general from deporting an alien to a country where there is a clear probability that his `life or freedom would be threatened'" because of one of the five enumerated factors. Doherty v. U.S. Dep't of Justice, INS, supra, 908 F.2d at 1114. The remedy is, however, narrower than that of asylum. Under a grant of asylum, the alien is permitted "to remain in the United States where he can eventually apply for lawful permanent residence." Id. Withholding of deportation "bars deportation only to the nation where the alien faces persecution, but not to nonthreatening third countries." Id.

II. The Standard of Review.

A. Denial of Asylum —

As Respondent notes, both the Supreme Court and the Second Circuit have yet to rule directly on the standard of judicial review applicable to a denial of political asylum under § 208. However, the Second Circuit in dicta has suggested that the correct standard is whether the decision of the BIA is supported by substantial evidence. In Chun v. Sava, 708 F.2d 869, 876 (2d Cir.1983), the Court stated:

Nothing that we have said, of course, goes to the substantive question whether petitioners are in fact entitled to be treated as asylees. Resolution of this question requires the development of a factual record,

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