Rejaie v. Immigration and Naturalization Service

• Decision Date: 01 October 1982
• Docket Number: 82-3195,Nos. 81-2375,s. 81-2375
• Citation: 691 F.2d 139
• Parties: Ramin REJAIE, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. . Submitted Under Third Circuit Rule 12(6)
• Court: U.S. Court of Appeals — Third Circuit

Page 139

691 F.2d 139

Ramin REJAIE, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Nos. 81-2375, 82-3195.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit Rule 12(6) Oct. 1, 1982.

Decided Oct. 13, 1982.

Rehearing Denied Nov. 17, 1982.

Robert S. Whitehill, Rothman, Gordon, Foreman & Groudine, P. A., Pittsburgh, Pa., for petitioner.

Thomas J. McBride, Asst. U. S. Atty. Philadelphia, Pa., Lauri Steven Filppu, Richard M. Evans, Donald B. Nicholson, Dept. of Justice, General Litigation and Legal Advice Section, Criminal Division, Washington, D. C., for respondent.

Before ALDISERT and HIGGINBOTHAM, Circuit Judges, and SAROKIN, District Judge. ^*

OPINION OF THE COURT

ALDISERT, Circuit Judge.

This petition for review of the Board of Immigration Appeals' denial of motions to reopen deportation proceedings requires us to decide whether the Board imposed an improper burden of proof on the petitioner. The petitioner is an Iranian who came to this country in 1978 to attend school for 10 months-from September 1978 to June 1979-and now does not want to return to his native country. He contends that he will be persecuted if he returns to the Islamic Republic of Iran. In considering petitioner's request for political asylum under § 243(h) of the Immigration and Nationality Act, the Board required him to prove "a clear probability of persecution," a formulation that the Immigration and Naturalization Service equates with "a well-founded fear of persecution." We find no error and deny the petition for review at No. 81-3195. ¹

I.

Ramin Rejaie, a native and citizen of Iran, was admitted to the United States as a nonimmigrant student on September 9, 1978. He was authorized to attend Oakwood School in Poughkeepsie, New York, and to remain in the United States until June 30, 1979. According to Immigration and Naturalization Service allegations, however, he never attended Oakwood School but, without obtaining permission from the INS as required by 8 C.F.R. § 214.2(f)(4), enrolled instead at the Valley Forge Military Academy in Wayne, Pennsylvania. Moreover, he failed to depart the United States on June 30, 1979, or to obtain INS permission to stay beyond that date.

At a deportation hearing held January 8, 1980, Rejaie admitted the allegations. The immigration judge found him deportable, but granted his request for voluntary departure until February 8, 1980. Rejaie appealed to the Board of Immigration Appeals, but on June 18, 1981, the Board upheld the finding of deportability.

Although ordered to report for deportation on August 27, 1981, on that date he filed a petition for review in this court, No. 81-2375, which entitled him to an automatic stay under 8 U.S.C. § 1105a(a)(3). Also on that date, he filed with the INS a Request for Asylum in the United States, contending that he feared political persecution if he were forced to return to Iran, thereby moving to reopen his case. ² On October 16, 1981, the Board denied his motion to reopen, "on the ground that the respondent has failed to reasonably explain why he did not assert his asylum claim prior to completion of the deportation hearing." Record at 112. On December 10, 1981, he filed a second motion to reopen and reconsider, this time explaining that he had been unaware of certain political developments in Iran at the time of his deportation proceedings. Noting that Rejaie had failed to substantiate the claims made in his motions to reopen, the Board denied the second motion. ³ Rejaie filed a second petition for review, No. 82-3195, which we consolidated with No. 81-2375.

II.

Rejaie contends that the Board applied an incorrect burden of proof in considering his fear of persecution in Iran. Before we reach that issue, however, we note a significant omission in Rejaie's argument. Petitioner's brief fails to respond to one of the Board's stated reasons for denying relief: his failure to submit substantial evidence to justify reopening his claim. Under 8 C.F.R. § 208.11 (1981)

(a)n alien may request that ... (a) deportation proceeding be reopened pursuant to ... 8 C.F.R. § 242.22 ... on the basis of a request for asylum. Such request must reasonably explain the failure to request asylum prior to the completion of the ... deportation proceeding. If the alien fails to do so, the asylum claim shall be considered frivolous, absent any evidence to the contrary.

Moreover, under § 3.8(a), "(m)otions to reopen shall state the new facts to be proved at the reopened hearing and shall be supported by affidavits or other evidentiary material." The Supreme Court has observed that motions under § 3.8 "will not be granted 'when a prima facie case of eligibility for the relief sought has not been established.' " INS v. Jong Ha Wang, 450 U.S. 139, 141, 101 S.Ct. 1027, 1029, 67 L.Ed.2d 123 (1981) (per curiam) (quoting In re Lam, 14 I. & N. Dec. 98 (BIA 1972)).

Petitioner does not now argue that he made a sufficient showing of "new facts" supported by affidavits or other evidence. Rather, in his brief he simply summarizes the factual content of his motion without explaining which, if any, of the narrated events, substantiated or otherwise, occurred after the deportation hearing and thus qualify as "new facts." His argument to the Board in his second motion to reopen is clearer, however, and indicates that petitioner's "new facts" related to the war between Iran and Iraq, and his unwillingness to serve in the Iranian military. Assuming that the motion before the Board constitutes the basis of petitioner's argument on appeal, we will consider the burden of proof issue. ⁴

III.

Until the passage of Refugee Act of 1980, it was generally accepted that under § 243(h) of the Immigration and Nationality Act, 8 U.S.C. § 1253(h), the INS could withhold political asylum absent a "clear probability" that an alien would suffer persecution if deported. See, e.g., Cheng Kai Fu v. INS, 386 F.2d 750, 753 (2d Cir. 1967), cert. denied, 390 U.S. 1003, 88 S.Ct. 1247, 20 L.Ed.2d 104 (1968); Lena v. INS, 379 F.2d 536, 538 (7th Cir. 1967). In 1968, the United States acceded to the United Nations Protocol Relating to the Status of Refugees, 19 U.S.T. 6257, 606 U.N.T.S. 268, which essentially adopted the definition of "refugee" used in the 1951 Convention Relating to the Status of Refugees, 189 U.N.T.S. 150. Under Article 1 of the Protocol, a "refugee" is a person who, "owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality ...." (emphasis added). Under Article 33, no party to the Protocol may "return ... a refugee ... to ... territories where his life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group or political opinion ...." Whether accession to the Protocol affected burden of proof of persecution was addressed in Kashani v. INS, 547 F.2d 376 (7th Cir. 1977), in which the court determined that there was no substantial difference between "clear probability" and "a well-founded fear":

While the Protocol, unlike section 243(h) of the Immigration and Nationality Act, does not specifically grant discretion to the Government in determining whether deportation must be withheld, it only requires withholding when an alien has a "well founded fear of being persecuted." This language surely refers to more than the alien's subjective state of mind. We hold that an alien claiming a "well founded fear of persecution" must either demonstrate that he actually has been a victim of persecution or that his fear is more than a matter of his own conjecture. Our interpretation of "well founded" conforms with the understanding of the committee that drafted the definition of a refugee. See United Nations Economic and Social Council, Report of the Ad Hoc Committee on Statelessness and Related Problems 39 (February 17, 1950) (E/1618; E/AC 3 2/5).

This requirement can only be satisfied by objective evidence that the alien's assertions are correct. Thus, the "well founded fear" standard contained in the Protocol and the "clear probability" standard which this court has engrafted onto section 243(h) will in practice converge.

547 F.2d at 379.

This formulation is congruent with the Board's seminal decision in In re Dunar, 14 I. & N. Dec. 310 (BIA 1973), in which the Board considered whether the Senate's accession to the Protocol changed an alien's burden under § 243(h) from that of showing a "clear probability of persecution" to that of showing "a well-founded fear of being persecuted." Like the court in Kashani, the Board concluded that notwithstanding the difference in the terminology, the showings required by the Protocol and by § 243(h) were essentially the same. The Board characterized the showing of "well-founded fear" as demanding not merely evidence of a subjective or conjectural fear of persecution, but objective evidence establishing a realistic likelihood of persecution. 14 I. & N. Dec. at 319.

The Board's conclusion in Dunar is based on the history of the Senate's accession to the Protocol. The Senate clearly acceded to the Protocol with the understanding that the substance and procedures of our immigration law would remain unchanged. ⁵ Moreover, as noted in Dunar, a United Nations committee had explained "well-founded fear" as follows: "The expression 'well-founded fear of being the victim of persecution for reasons of race, religion, nationality or political opinion' means that a person has either been actually a victim of persecution or can show good reason why he fears persecution." United Nations Economic and Social Council, Report of the Ad Hoc Committee on Statelessness and Related Problems 39 (1950). In the years following the decision in Dunar, the expressions "clear probability" and "well-founded fear" were regarded as meaning the same thing: an alien who...