Rezai v. I.N.S.

• Decision Date: 14 August 1995
• Docket Number: No. 94-9555,94-9555
• Citation: 62 F.3d 1286
• Parties: Saeed REZAI, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1286

62 F.3d 1286

Saeed REZAI, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 94-9555.

United States Court of Appeals, Tenth Circuit.

Aug. 14, 1995.

Oscar W. McConkie III, of Kirton & McConkie, Salt Lake City, UT, for petitioner.

Pauline C. Terrelonge, Atty., Civ. Div., Office of Immigration Litigation, U.S. Dept. of Justice, Washington, DC (Lauri Filppu, Deputy Director, Civ. Div., Office of Immigration Litigation, U.S. Dept. of Justice, Washington, DC, with her on the brief), for respondent.

Before SEYMOUR, Chief Judge, BARRETT, Circuit Judge, and DAUGHERTY, District Judge. ^*

SEYMOUR, Chief Judge.

Saeed Rezai, an Iranian citizen, challenges the decision of the Board of Immigration Appeals (BIA) denying his requests for asylum and withholding of deportation. Mr. Rezai also contends that the BIA should have remanded his case for reopening of the deportation proceeding, thus allowing the immigration judge to adjust his status on the basis of his second marriage to a United States citizen. We affirm.

I. BACKGROUND

Mr. Rezai left Iran in 1979 and, after residing in Germany for seven years, entered the United States on a student visa in 1986. He testified that the installation of the Khomeini regime played a role in his decision to leave Iran at age twenty-one. ¹ Rec., vol. I, at 131-32. His father was a high-ranking official in the Shah's government, and his uncle served as a general in the Iranian army. The Khomeini government subsequently froze his father's assets and imprisoned his uncle for two years. Both men continue to live in Iran.

Mr. Rezai claims that he was very involved in the Council of Iranian Royalists during his years in Germany. He testified that in addition to attending meetings and distributing flyers, he made approximately one hundred speeches for the pro-Shah organization. Id. at 136. His application for United States residency, however, contains no reference to these activities, nor does it list the Council of Iranian Royalists as a group of which he was a member. Id. at 157-58. Although he now asserts that he came to the United States in order to escape persecution by Khomeini loyalists in Germany, he entered this country on a student visa in 1986 and did not file an application for asylum until eight months after deportation proceedings began in 1990. Id. at 165, 251.

Upon entry into the United States, Mr. Rezai enrolled at Westminster College in Utah and procured a job as a campus security guard. He graduated from Westminster in June 1990 but continues to be a full-time employee of the college. His duties include raising the American flag, an activity which he claims has subjected him to criticism from fellow Iranians.

In 1988, Mr. Rezai was granted conditional permanent resident status on the basis of his marriage to a United States citizen, Margaret Schantz. One year later, Ms. Schantz executed a sworn statement to an INS officer alleging that her marriage to Mr. Rezai had never been consummated and that he had married her solely to obtain residency. She also accused Mr. Rezai of threatening her and claimed that she had lived with him only because she could not afford to move. Mr. Rezai denies these accusations. Ms. Schantz filed for a divorce, which became final on June 1, 1990, and withdrew her petition for his permanent residency. The INS subsequently terminated Mr. Rezai's conditional resident status and initiated deportation proceedings.

Mr. Rezai challenged the deportation at two separate hearings before the immigration judge. First, he sought a waiver of the requirement that he and his wife file a joint petition for the removal of the conditional basis of his residency. See 8 U.S.C. Secs. 1186a(c)(1) & (4) (1988). A waiver is available where deportation would result in extreme hardship or where the alien can prove that he married in good faith even though the marriage was subsequently terminated. Id. at Sec. 1186a(c)(4). At the second hearing, Mr. Rezai attempted to establish his eligibility for asylum or withholding of deportation. See 8 U.S.C. Secs. 1158(a), 1253(h) (1988).

The immigration judge denied Mr. Rezai's request for a waiver ² and, finding his allegations of past and future persecution incredible, held him ineligible for asylum or withholding of deportation. The judge found him to be deportable but granted him the option of voluntary departure. Mr. Rezai appealed to the BIA, alleging that the immigration judge had erred in denying his various motions. He also filed a motion to remand his case to the immigration judge to allow for the adjustment of his status on the basis of his marriage to a second United States citizen, Julie Wegner, whom he married after his deportation proceedings began. ³ The BIA dismissed the appeal and denied the motion to remand. Mr. Rezai then filed this petition for review.

II. ASYLUM AND WITHHOLDING OF DEPORTATION

An alien facing deportation who fears persecution if deported has two avenues of relief: asylum and withholding of deportation. Kapcia v. I.N.S., 944 F.2d 702, 706 (10th Cir.1991). We examine each in turn.

A. Asylum

The Attorney General retains the discretion to grant asylum to those aliens who qualify as "refugees." 8 U.S.C Sec. 1158(a). We have noted that a grant of asylum requires two steps. Kapcia, 944 F.2d at 706. First, the alien must establish that he is a refugee by proving either past 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. Sec. 1101(a)(42)(A) (1988); Nguyen v. I.N.S., 991 F.2d 621, 625 (10th Cir.1993). We defer to the BIA's factual determination of whether the alien is a refugee if those findings are supported by substantial evidence. Bartesaghi-Lay v. I.N.S., 9 F.3d 819, 822 (10th Cir.1993). Second, the Attorney General exercises her discretion to grant or deny asylum. Kapcia, 944 F.2d at 708. We review this decision only for an abuse of discretion. Nguyen, 991 F.2d at 625.

Mr. Rezai must present specific, credible evidence to support his claim that he has been persecuted or will be persecuted if deported. He alleges that he demonstrated past persecution by Khomeini loyalists in Germany and that the BIA failed to consider this evidence. The BIA, however, specifically questioned the credibility of his testimony regarding his activities in Germany. Rec., vol. I, at 10. In his testimony before the immigration judge, Mr. Rezai claimed to have been "beaten up many times" by Khomeini sympathizers. Id. at 137. In his application for asylum, though, he stated that he had been beaten by Khomeini supporters on "one occasion." Id. at 169. Such an inconsistency supports the BIA's conclusion that Mr. Rezai's testimony regarding his alleged persecution in Germany was not credible.

Mr. Rezai also contends that the BIA erroneously classified his evidence of potential persecution in three groups ⁴ and applied the "well-founded fear" test to each group individually. He asserts that the BIA consequently "never considered the cumulative effect of that evidence." Pet. Reply Br. at 3. We need not analyze the processes of the BIA as long as the final determination is supported by substantial evidence. Upon careful consideration of the pertinent parts of the record, including Mr. Rezai's testimony and documentation supporting his claim for asylum, we conclude that substantial evidence supports the BIA's determination that Mr. Rezai does not have a well-founded fear of persecution upon deportation.

Because we hold Mr. Rezai did not meet his burden of establishing eligibility for asylum, we need not address whether the BIA's denial of asylum constituted an abuse of discretion. Nguyen, 991 F.2d at 625-26.

B. Withholding of Deportation

Unlike asylum determinations, the Attorney General has no discretion to deny withholding of deportation to eligible aliens. "The Attorney General shall not deport ... 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. Sec. 1253(h)(1). To establish eligibility for this relief, the alien must prove a "clear probability of persecution" upon deportation. I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 430, 107 S.Ct. 1207, 1212, 94 L.Ed.2d 434 (1987). We have held that this "clear probability" test is more stringent than the well-founded fear test used in the asylum context. Nguyen, 991 F.2d at 626. "[B]ecause [Mr. Rezai] failed to meet the threshold burden of establishing statutory eligibility for the grant of asylum, it is clear that he did not meet the tougher standard required for withholding of deportation." Id. Substantial evidence therefore supports the BIA's denial of this relief.

III.

MOTION TO REMAND: THE ARTHUR RULE

Mr. Rezai also appeals the BIA's denial of his motion to remand his case to allow the immigration judge to adjust his status on the basis of his recent marriage to Julie Wegner. The couple married on June 15, 1991, six months after the immigration judge entered his deportation order.

Ms. Wegner, an American citizen, filed a petition in a separate proceeding seeking to classify Mr. Rezai as an alien relative for the issuance of an immigrant visa. Although the INS district director did not question the validity of Mr. Rezai's marriage to Ms. Wegner, he denied the petition because substantial and probative evidence suggested that Mr. Rezai had previously attempted to obtain immigration benefits through a fraudulent marriage. See 8 U.S.C. Sec. 1154(c). Ms. Wegner has appealed this decision to the BIA.

As Ms. Wegner's visa petition made its way through the proper INS channels, the BIA reviewed Mr. Rezai's appeal of his deportation order and his motion to remand. Because the couple married after the commencement of Mr. Rezai's...