Sanchez v. I.N.S.
| Decision Date | 17 May 1983 |
| Docket Number | No. 82-1862,82-1862 |
| Citation | 707 F.2d 1523 |
| Parties | Herminio Armando SANCHEZ, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Petition for Review of an Order of the Immigration and Naturalization service.
Hugo (L.J.) Fleischman, Washington, D.C., for petitioner.
Charles E. Hamilton, III, Atty., Dept. of Justice, Washington, D.C., of the Bar of the Supreme Court of the State of Virginia, pro hac vice, by special leave of the Court, for respondent.
Lauri Steven Filppu and Daniel Harris, Attys., Dept. of Justice, Washington, D.C., were on the brief, for respondent.
Before WALD and SCALIA, Circuit Judges, and FRIEDMAN, * Circuit Judge, United States Court of Appeals for the Federal Circuit.
Opinion PER CURIAM.
Petitioner, Herminio Armando Sanchez, seeks relief from two decisions of the Board of Immigration Appeals (the Board). The first dismissed his appeal from the Immigration and Naturalization Service's (the INS') refusal to reopen his deportation proceedings. The second denied reconsideration of that decision and refused to grant his application for asylum. We conclude that Sanchez did not set out sufficient facts in affidavits or other supporting evidence to warrant reopening his deportation proceedings or to establish a prima facie case of eligibility for asylum. See 8 C.F.R. Secs. 3.2 and 3.8(a) (1982). Hence, the Board committed no error in turning aside his pleas.
Sanchez, a native and citizen of El Salvador, entered the United States on October 10, 1970, as a nonimmigrant visitor for pleasure with permission to remain until November 9, 1970. He was granted subsequent extensions of his visit until April 9, 1971, but remained in the United States beyond that date without the authorization of the INS.
On November 24, 1976, the INS served Sanchez with an order to show cause why he should not be deported from the United States. The order charged that Sanchez was subject to deportation under Sec. 241(a)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. Sec. 1251(a)(2), because he had remained in the United States "for a longer time than permitted."
A deportation hearing was held on May 25, 1977. At the hearing, Sanchez admitted the truth of the allegations in the order to show cause as well as his deportability. He requested, and was granted, voluntary departure to El Salvador on or before July 15, 1977.
Sanchez, however, did not leave the United States by July 15. Subsequently, on February 24, 1978, he filed a motion under Sec. 244(a)(1) of the Act, 8 U.S.C. Sec. 1254(a)(1), 1 to reopen his deportation proceedings in order to apply for suspension of deportation. 2 On May 2, 1978, an immigration judge denied the motion to reopen the proceedings based on his finding that Sanchez had failed to establish that he or any United States citizen or permanent resident child, parent, or spouse would suffer "extreme hardship" as a result of his deportation, as required by Sec. 244(a)(1), 8 U.S.C. Sec. 1254(a)(1).
On May 15, 1978, Sanchez appealed the denial of the motion to reopen to the Board. The Board dismissed the appeal on October 19, 1981, noting its agreement with the immigration judge's finding that Sanchez had failed to show that his deportation would result in extreme hardship to himself or qualified family members.
On November 3, 1981, Sanchez requested the Board to reconsider its dismissal of his appeal of the motion to reopen. He also filed an application for asylum under Sec. 243(h) of the Act, 8 U.S.C. Sec. 1253(h). 3 Based on its findings that Sanchez had presented no new evidence to establish (1) extreme hardship as required by Sec. 244(a)(1), or (2) that he had a well-founded fear that he would suffer persecution if returned to El Salvador as required by Sec. 243(h), the Board denied both the motion to reconsider and the application for asylum on February 1, 1982. This petition for review followed.
Sanchez argues in his petition that he has shown prima facie eligibility for asylum under Sec. 243(h) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1253(h). The Board therefore erred, he contends, in refusing to reopen his deportation proceedings and to grant him a hearing before an immigration judge.
Section 243(h)(1) 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." An alien's request under Sec. 243(h) for asylum following completion of a deportation proceeding is deemed to be a motion to reopen the hearing. See 8 C.F.R. Sec. 208.11 (1982). 4
The regulations promulgated under the Act set out certain requirements that a petitioner must meet before a motion to reopen will be granted. First of all, the Board may not grant such a motion unless it is based upon new, material facts. 8 C.F.R. Sec. 3.2 (1982). 5 In addition, allegations of such new facts must be supported by affidavits or other evidentiary material, 8 C.F.R. Sec. 3.8(a) (1982), 6 sufficient to establish a prima facie case of eligibility for the relief sought. 7 INS v. Jong Ha Wang, 450 U.S. 139, 141, 101 S.Ct. 1027, 1029, 67 L.Ed.2d 123 (1981) (per curiam); Balani v. INS, 669 F.2d 1157, 1160 (6th Cir.1982) (per curiam); Aguilar v. INS, 638 F.2d 717, 719 (5th Cir.1981) (per curiam); Malaluan v. INS, 577 F.2d 589, 592-93 (9th Cir.1978).
Conclusory allegations unsupported by affidavit are insufficient under Secs. 3.2 and 3.8(a) to justify reopening deportation proceedings. INS v. Jong Ha Wang, 450 U.S. at 143, 101 S.Ct. at 1030. See also Chae Kim Ro v. INS, 670 F.2d 114, 116 (9th Cir.1982) (). An alien's own assertions, without corroboration, will not suffice to meet those requirements. See Kashani v. INS, 547 F.2d 376, 379 (7th Cir.1977). Generalized, undocumented fears of persecution or political upheaval are also insufficient, Rejaie v. INS, 691 F.2d 139, 145 (3d Cir.1982), as are general statements that evidence will be introduced at the reopened hearing, Agustin v. INS, 700 F.2d 564, 566 (9th Cir.1983) (per curiam).
Sanchez argues here that he met the requirements of Secs. 3.2 and 3.8(a) and that his deportation proceedings should therefore have been reopened. To support his contention that he has presented a prima facie case of eligibility, he first of all points to the information contained in his application for asylum. In that application, he stated that he is a Christian Democrat supporting the government of President Duarte; that he faces a grave danger to his life and liberty should he be returned to El Salvador because of the opinions he has expressed about that country's politics with other Salvadorans; that his twelve-year residence in the United States increases the danger he faces in returning to El Salvador, because the guerrillas would assume he has money they could extort from him; and that the guerrillas would kill him or a member of his family 8 if he did not accept their demands and their politics. Petitioner's Appendix (App.) at 13-14, 21. He also points out that he submitted a 1978 newspaper clipping concerning political conditions in El Salvador to the Board in support of his 1978 appeal of the INS' denial of suspension of deportation, id. at 44, 45, and contends that the Board should have taken notice that political conditions in El Salvador have changed significantly since his 1977 deportation hearing. Finally, he asserts that his asylum application qualifies as a Sec. 3.8(a) affidavit because it is a sworn document.
Based on this record, we conclude that the Board did not err in refusing to reopen Sanchez' deportation proceedings for consideration of his asylum request. 9 Sanchez has not provided any other evidence to support his own conclusory statements that he will be persecuted upon his return to El Salvador. He has not set forth any evidence documenting to whom or in what circumstances he made statements supporting the Christian Democrats rather than the guerrillas or indicating that he has any reason to believe he will in fact be persecuted for those statements if he is deported. See Martinez-Romero v. INS, 692 F.2d 595, 595-96 (9th Cir.1982) (per curiam) ( ). He did not allege or support with evidence that he or any member of his family has ever been detained, interrogated, arrested, convicted imprisoned, or persecuted because of political opinion in El Salvador. In sum, he has failed to establish a prima facie case that his "life or freedom would be threatened" because of his political opinions. 10 We therefore affirm the Board's decision refusing to reopen Sanchez' deportation proceedings based on his claim for asylum.
Sanchez also seeks relief from the Board's decision dismissing his appeal from the INS' refusal to reopen his deportation proceedings to consider his claim for suspension under Sec. 244(a)(1), 8 U.S.C. Sec. 1254(a)(1). Since this too is a motion to reopen proceedings, Sanchez must again meet the requirements of 8 C.F.R. Secs. 3.2 and 3.8(a) by establishing a prima facie case of eligibility for the relief he seeks.
Section 244(a)(1), 8 U.S.C. Sec. 1254(a)(1), gives the Attorney General or his delegates discretion to suspend deportation...
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