Rife v. Ashcroft, No. 03-2127.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtLoken
Citation374 F.3d 606
PartiesAlex Nicolay RIFE; Yulia Rife; Yola Rife, Petitioners, v. John ASHCROFT Respondent.
Decision Date07 July 2004
Docket NumberNo. 03-2127.

Page 606

374 F.3d 606
Alex Nicolay RIFE; Yulia Rife; Yola Rife, Petitioners,
v.
John ASHCROFT Respondent.
No. 03-2127.
United States Court of Appeals, Eighth Circuit.
Submitted: February 11, 2004.
Filed: July 7, 2004.

Page 607

COPYRIGHT MATERIAL OMITTED

Page 608

Counsel who presented argument on behalf of the petitioners was Timothy E. Wichmer of St. Louis, Missouri.

Counsel who presented argument on behalf of the respondents was Julia K. Doig, U.S. Department of Justice, Washington, D.C. Also appearing on the brief were Peter D. Keisler, Donald E. Keener, and Alison R. Drucker.

Before LOKEN, Chief Judge, BOWMAN and WOLLMAN, Circuit Judges.

LOKEN, Chief Judge.


Alex Rife, his wife Yulia, and their daughter Yola entered the United States from Israel in 1993 and remained past the period authorized by their tourist visas. The Rifes applied for asylum and withholding of removal. After a hearing, the Immigration Judge (IJ) denied the application, granting them permission to voluntarily depart the United States at their own expense. See 8 U.S.C. § 1229c(b). The Board of Immigration Appeals (BIA) affirmed without opinion. The Rifes petition for judicial review of the denial of asylum and withholding of removal. They urge in the alternative that they be permitted to voluntarily depart, and Yola Rife moves to dismiss her appeal on the condition that she is granted voluntary departure. The government urges us to affirm the agency decision and argues that we

Page 609

lack jurisdiction to extend the Rifes' voluntary departure beyond the period ordered by the BIA, which has now expired. We affirm the denial of asylum and withholding of removal. We resolve the voluntary departure issue in the Rifes' favor.

I. Background

Alex Rife was born in Baku, Azerbaijan in 1957. His father is Jewish, but he was raised as a Russian Orthodox Christian, his mother's faith. Yulia Rife was born in Baku in 1957 to a Russian Orthodox father and a Jewish mother. They married in 1979. Yulia was baptized in the Russian Orthodox Church in 1984. Yola Rife was born in November 1979 in Moscow, where Alex, a cameraman, had been sent to film the 1980 Olympic Games. The Rifes returned to Baku and remained until 1990.

In 1988, when both Armenia and Azerbaijan were republics of the Soviet Union, conflict erupted over the disputed territory of Nagorno-Karabakh, an Azerbaijan province populated primarily by Armenians. Violence against Armenians occurred in Baku and other Azerbaijan cities. The hostilities were both ethnic and religious, as Armenians are predominantly Apostolic Christians and Azeris are predominantly Muslims. Many Christian churches in Baku were destroyed, including the Russian Orthodox church the Rifes attended. In late 1989, the Rifes hid an Armenian Christian mother and her children in their home for ten days. During the stay, shots were fired at the Rifes' home, they received threatening phone calls, and their roof was damaged by unknown assailants.

In January 1990, the Soviet Union declared martial law and deployed troops in Azerbaijan. When Alex Rife filmed the resulting anti-Soviet demonstrations in Baku, his camera was smashed and he was beaten and detained for twenty-four hours in a government building. A day or two later, the Rifes fled to Moscow on an airplane carrying Russians away from the hostilities in Muslim-dominated Baku. Prior to fleeing to Moscow, the Rifes had applied to many countries for permanent visas. Only Israel had responded favorably, offering them citizenship and permanent resettlement visas under Israel's Law of Return because Yulia Rife's mother is Jewish. Upon arriving in Moscow, Alex applied to Soviet authorities for permission to leave. Permission was granted in June 1990, and the Rifes moved to Israel.

When the Rifes arrived in Israel, the government issued "oleh's certificates" and offered a "basket of absorption," government benefits available to Jewish immigrants. The Rifes accepted some benefits but declined others, allegedly because their goal was to come to the United States. Both Alex and Yulia obtained employment in Haifa, and the family continued to receive government benefits. However, when Yulia declared her interest in attending a Christian church, their initially friendly neighbors in Haifa insulted the family and threw stones at them, and Yola was teased by her school classmates. Many students in Yulia's music class withdrew upon learning she is a Christian. The Rifes moved and enrolled Yola in a new school, where she was more severely harassed about her religious beliefs.

The Rifes lived in Israel for three years. In May 1993, they received Israeli passports. Yulia and Yola entered the United States on six-month visas in mid-1993. Alex remained in Israel to repay Israeli government benefits totaling $6,500. He then sold their remaining assets in Israel and entered the United States on a six-month visa in October 1993. The Rifes arrived with nearly $10,000, intending to remain permanently, and currently reside in Missouri. Alex and Yulia have had two

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more children while in the United States and have become active evangelical Christians. Proselytizing is an important part of their new religion.

The Rifes applied for asylum and withholding of removal in November 1993. The IJ denied the applications, finding them ineligible for asylum because they firmly resettled in Israel before entering the United States, and finding that they failed to demonstrate past persecution or a well-founded fear of future persecution in either Israel or Azerbaijan. Because the Rifes declined to designate a country of removal or citizenship, and because the IJ was unable to determine with certainty the country of which Alex and Yulia are "natives, subjects or citizens," the IJ ordered them removed to "the country where they last habitually resided," Israel, and if Israel refuses to accept them, "to the country which has control over the territory where they were born," Azerbaijan. The BIA affirmed without opinion in April 2003.

On appeal, the Rifes first argue that the BIA abused its discretion in affirming without opinion because the agency misapplied its own regulation. See 8 C.F.R. § 1003.1(e)(4). However, the BIA decision whether to employ this procedure in a particular case "is committed to agency discretion and not subject to judicial review." Ngure v. Ashcroft, 367 F.3d 975, 983 (8th Cir.2004). When the BIA affirms without opinion, the IJ's decision becomes the final agency action, which we must affirm if it is supported by substantial evidence on the administrative record as a whole. See Tawm v. Ashcroft, 363 F.3d 740, 743 (8th Cir.2004). When the agency has denied asylum and withholding of removal, the petitioner "bears the heavy burden of showing that his evidence `was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.'" Melecio-Saquil v. Ashcroft, 337 F.3d 983, 986 (8th Cir.2003), quoting INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). That standard is now codified in 8 U.S.C. § 1252(b)(4)(B).

II. Asylum

The Attorney General has discretion to grant asylum to an alien who is a "refugee." 8 U.S.C. § 1158(b)(1). A "refugee" is an alien who is unable or unwilling to return to his country of origin "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). The Rifes argue they are eligible for asylum as refugees from both Azerbaijan and Israel.

A. Did the Rifes Firmly Resettle in Israel? The Attorney General may not grant asylum to an alien who firmly resettled in another country before coming to the United States. See 8 C.F.R. § 208.13(c)(2)(i)(B).1 The regulations provide that "[a]n alien is considered to be firmly resettled if, prior to arrival in the United States, he or she entered into another country with, or while in that country received, an offer of permanent resident status, citizenship, or some other type of permanent resettlement." 8 C.F.R. § 208.15. The circuits differ somewhat in the importance placed on whether the government establishes that the country of prior resettlement formally offered citizenship, permanent resident status, or some

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form of permanent resettlement. See generally Salazar v. Ashcroft, 359 F.3d 45, 50-51 (1st Cir.2004); Abdille, 242 F.3d at 485-86. We agree with the Third Circuit in Abdille that the text of 8 C.F.R. § 208.15 makes this an important factor and, indeed, the proper place to begin the firm resettlement analysis. But in some cases it will not be dispositive. For example, in our only decision resolving a firm resettlement issue, we affirmed the BIA's determination that the alien's four-year stay in Spain constituted firm resettlement even though his application for refugee status in Spain was still pending when he came to the United States. Farbakhsh v. I.N.S., 20 F.3d 877, 882 (8th Cir.1994); accord Cheo v. I.N.S., 162 F.3d 1227, 1229-30 (9th Cir.1998).

In this case, the Israeli government offered the Rifes permanent resettlement under the Law of Return, issued certificates evidencing citizenship when they arrived,2 and issued passports in 1993. The Rifes argue that their Israeli citizenship and permanent visas are invalid because, though part Jewish by birth, they are practicing Christians. However, although Israel has apparently denied citizenship under the Law of Return to ethnic Jews who converted to another religion, the Rifes offered no evidence that Israel has ever revoked the citizenship of an oleh upon learning that he or she converted to Christianity. The record includes a State Department Advisory Opinion stating, "It is our understanding, after speaking with the Consular Affairs Department at the Israeli Embassy in Washington, that persons with Israeli passports are Israeli citizens and...

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