Yousif v. I.N.S.

• Decision Date: 27 June 1986
• Docket Number: No. 84-3823,84-3823
• Citation: 794 F.2d 236
• Parties: Shamel YOUSIF, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 236

794 F.2d 236

Shamel YOUSIF, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 84-3823.

United States Court of Appeals, Sixth Circuit.

Submitted April 28, 1986.

Decided June 27, 1986.

Rudy Aguirre, Alhambra, Cal., for petitioner.

I.N.S., Cincinnati, Ohio, Thomas W. Hussey, Robert Kendall, Jr., Office of Immigration Litigation, Criminal Div., Washington, D.C., Christopher Barnes, U.S. Atty., Cincinnati, Ohio, Nicholas J. Pantel, for respondent.

Before CONTIE and RYAN, Circuit Judges, and BROWN, Senior Circuit Judge.

CONTIE, Circuit Judge.

Petitioner Shamel Yousif seeks review of the Board of Immigration Appeals' denial of his motion to reopen deportation proceedings. For the reasons which follow, we deny the petition, finding that the Board did not abuse its discretion.

I.

Shamel Yousif is a single, twenty-eight year old native and citizen of Iraq. He is also a Christian of Chaldean ethnic origin and is opposed to the Baath Party which presently rules Iraq. On October 3, 1980, he entered the United States as a non-immigrant visitor with authorization to remain until January 3, 1981. Petitioner remained in the United States beyond his authorized time limit. On February 23, 1981 he applied for political asylum with the District Director pursuant to section 208(a) of the Immigration and Naturalization Act (Act), 8 U.S.C. Sec. 1158(a). In his application, Yousif alleged that he would be persecuted, arrested and incarcerated if he returned to Iraq because of his Chaldean Christian background, his absence from Iraq, his criticism of the Baath regime and his application for asylum. He also stated that were he to return to Iraq, he would be drafted into the army.

Yousif was interviewed by an Immigration and Naturalization Service (INS) examiner in April 1981. The examiner learned that Yousif was not a member of any political parties, labor unions or other organizations which were hostile to the Iraqi government, had never publicly criticized the Iraqi government while in Iraq, and did not hold any firm political opinions. Further, he had never been detained, interrogated, arrested, imprisoned or deprived of basic necessities while in Iraq. Yousif alleged that he resorted to bribery to get his passport since he was unable to obtain one because of his religion. He also represented that his brother had been imprisoned for about fifteen days because he had refused to study the Koran, the religious book of the Moslems.

The District Director denied Yousif's request for asylum, concluding that Yousif's representations were "self-serving in nature and without basis in fact." The District Director noted that the State Department in an opinion letter dated May 23, 1980 stated that Christians as a group were no longer at risk of being persecuted in Iraq. ¹ Although Yousif produced a congressional report on Iraqi human rights practices, the District Director recognized that the report was only a general outline of conditions in Iraq and preceded the State Department's opinion letter. He concluded that Yousif failed to provide any documentation for his individual claims and, therefore, did not have a well-founded fear of persecution. Yousif's request for asylum was therefore denied. The District Director's decisions are not subject to appeal. 8 C.F.R. Sec. 208.8(c).

On December 4, 1981, Yousif was charged with being a deportable alien since he had remained in the country beyond the authorized time, and was ordered to show cause as to why he should not be deported. A hearing was conducted on July 23, 1982 before an Immigration Judge. Yousif, who was represented by counsel at this hearing, conceded his deportability, but declined to name a country for deportation. When Iraq was designated by the INS, Yousif renewed his request for asylum, pursuant to section 208(a) of the Act, and also moved for withholding of deportation, pursuant to section 243(h) of the Act, 8 U.S.C. Sec. 1253(h). The evidence before the Immigration Judge was essentially identical to that which has been outlined above except there were various newspaper clippings relating to the general upheaval and violent conditions in Iraq. ² At the hearing, Yousif testified that he had been "terrorized," although he provided no explanation for this allegation. Yousif noted that the war between Iran and Iraq was a religious war between Moslems, but he believed Christians would be more hated than another Moslem. He also testified that he would be arrested and tortured by the Iraqi government because his passport contained a notation that he requested asylum in the United States.

The Immigration Judge, in an August 26, 1982 decision, opined that Yousif considered it impossible to live in a Moslem country as a Christian with a Chaldean background, and that he feared being drafted and potentially killed as a result. However, the judge reasoned that Yousif had failed to substantiate his claims with testimony or documentary evidence. He also found that the alleged imprisonment of Yousif's brother was greatly exaggerated since his brother presently was a practicing electrician in Iraq. There was no evidence that the remainder of Yousif's family was experiencing difficulties of any kind. The judge therefore concluded that Yousif had failed to meet his burden under sections 208(a) and 243(h), but granted Yousif the right to voluntarily depart within thirty days in lieu of being deported.

Yousif perfected an appeal to the Board of Immigration Appeals on August 30, 1982. The Board, on March 12, 1984, dismissed the appeal, holding that Yousif had not established that he would be persecuted or that he had a well-founded fear of persecution. The Board considered a statement made by Yousif's sister, who had lived in Rome, Italy as a refugee, regarding her problems with the Baath government and concluded that the statement did not support Yousif's personal claim. The Board granted Yousif voluntary departure if he departed within thirty days.

On June 26, 1984, Yousif filed a motion with the Board to reconsider, pursuant to 8 C.F.R. Secs. 3.8 and 3.2. He argued that newly acquired evidence combined with previous testimony and documentation qualified him for asylum and withholding of deportation. With this motion, Yousif submitted an affidavit signed by his sister on June 25, 1984, which stated that Yousif had been pressured by high school students to join the Baath party and had been beaten. His sister alleged that Yousif had been forced to read the Koran and had been threatened with death, and that their father lost his hearing as a result of being beaten by high school students who had come to the house to harass Yousif. She further alleged that her brother originally entered the United States in order to receive medical treatment resulting from fear and anxiety. Yousif's sister had been in the United States since July 22, 1982 as a refugee.

The Board, construing Yousif's motion as a request to reopen or reconsider, denied the motion on August 20, 1984. The Board first concluded that Yousif had failed to show a clear probability of persecution and was therefore not entitled to withholding of deportation. Second, the Board found that Yousif did not qualify for a discretionary grant of asylum because he did not demonstrate a well-founded fear of persecution, whether assessed in terms of a " 'clear probability,' a 'realistic likelihood,' a 'reasonable possibility' or 'a good reason to fear' persecution." Further, the Board declined to reinstate the privilege of voluntary departure.

Yousif appeals from the Board's denial of his motion to reopen and reconsider. We have jurisdiction to review deportation proceedings, including a denial of a motion to reopen by the Board, pursuant to section 106(a) of the Act, 8 U.S.C. Sec. 1105a(a). See Giova v. Rosenberg, 379 U.S. 18, 85 S.Ct. 156, 13 L.Ed.2d 90 (1964) (per curiam); Cheng Fan Kwok v. INS, 392 U.S. 206, 211, 88 S.Ct. 1970, 1973, 20 L.Ed.2d 1037 (1968) (explaining Giova ). The only issues before this court are the denial of the motion to reopen or reconsider and the denial of voluntary departure.

II.

The Board of Immigration Appeals has discretion under the regulations to reopen or reconsider deportation proceedings. 8 C.F.R. Sec. 3.2 (1985). Deportation proceedings cannot be reopened, however, unless the "evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing...." Id. Motions to reopen to apply for discretionary relief cannot be granted "unless the relief is sought on the basis of circumstances which have arisen subsequent to the hearing." Id. See also INS v. Jong Ha Wang, 450 U.S. 139, 101 S.Ct. 1027, 67 L.Ed.2d 123 (1981) (per curiam). Unlike motions to reconsider, motions to reopen must be supported by "affidavits or other evidentiary material." 8 C.F.R. Sec. 3.8(a).

Further, a motion to reopen should not be granted unless the petitioner makes a prima facie showing that the statutory requirements for the underlying relief have been met. Dolores v. INS, 772 F.2d 223, 225 (6th Cir.1985) (per curiam); Chavez v. INS, 723 F.2d 1431, 1433 (9th Cir.1984). However, even if the petitioner meets his burden of showing a prima facie case of eligibility, the Board may, within its discretion, deny the motion. Ahwazi v. INS, 751 F.2d 1120, 1122 (9th Cir.1985). Accordingly, the Board's denial of a motion to reopen is reviewed under the abuse of discretion standard, Aiyadurai v. INS, 683 F.2d 1195, 1199 (8th Cir.1982); Kashani v. INS, 547 F.2d 376, 378 (7th Cir.1977); Chavez, 723 F.2d at 1433, and the Board's denial will be upheld unless it was an "unreasoned or arbitrary exercise of discretion," INS v. Rios-Pineda, --- U.S. ----, 105 S.Ct. 2098, 2103, 85 L.Ed.2d 452 (1985), or contrary to law. Ahwazi, 751 F.2d at 1122.

Yousif supported his motion to reopen with his sister's affidavit. The Board did not make a finding, however, as...