Youssefinia v. I.N.S.

• Decision Date: 14 March 1986
• Docket Number: No. 85-4290,85-4290
• Citation: 784 F.2d 1254
• Parties: Mohammad Reza YOUSSEFINIA and Fahime Asadamraji, Petitioners, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1254

784 F.2d 1254

Mohammad Reza YOUSSEFINIA and Fahime Asadamraji, Petitioners, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 85-4290.

United States Court of Appeals, Fifth Circuit.

March 14, 1986.

Harvey A. Schein, Eugene J. Flynn, Dallas, Tex., for petitioners.

Edwin Meese, III, Atty. Gen., U.S. Dept. of Justice, Washington, D.C., Robert L. Bombough, Allen W. Hausman, Donald A. Couvillon, Immigration Lit., Civ. Div., Washington, D.C., for respondent.

David H. Lambert, Dist. Director, I.N.S., New Orleans, La., Ronald Chandler, Dist. Director, I.N.S., Dallas, Tex., for other interested parties.

Petition for Review of an Order of the Immigration & Naturalization Service.

Before WILLIAMS, HIGGINBOTHAM and DAVIS, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

This case comes before us on a petition for review of a denial of applications for asylum and suspension of deportation by the Immigration and Naturalization Service. Because we find that the immigration judge and the Board of Immigration Appeals did not abuse their discretion in determining that petitioners failed to establish either a well-founded fear of persecution or extreme hardship resulting from deportation, we uphold the INS determination.

I

Petitioners Mohammad Reza Youssefinia and Fahime Asadamraji are natives and citizens of Iran. Youssefinia entered the United States in 1977 as a nonimmigrant student, see 8 U.S.C. Sec. 1101(a)(15)(F)(i), with authorization to remain until January 5, 1978 to attend an English language school in Irving, Texas. ¹ His wife, Fahime Asadamraji, was admitted on April 29, 1978 as the alien spouse of a nonimmigrant student, with a status dependent upon her husband's. See 8 U.S.C. Sec. 1101(a)(15)(F)(ii). Youssefinia's then ten-month old son Sepehr apparently entered the country with his mother; a daughter, Salieh Sally, was born in 1983 in Fort Worth, Texas.

Shortly after arriving in the United States, Youssefinia obtained authorization to attend Navarro College in Corsicana, Texas, and enrolled there for the summer and fall terms of 1977, and the spring term of 1978. In 1978 he began attending the University of Texas at Arlington, but the INS did not approve the transfer until February 1979. In fall 1979 Youssefinia enrolled at yet another school, Bishop College in Dallas, belatedly requesting permission to transfer schools in November 1979.

On November 24, 1979, the INS issued an order to show cause charging petitioners with deportability for Youssefinia's failure to obtain INS authorization before transferring to Bishop College. See 8 C.F.R. Sec. 214.2(f)(4) (1983). On June 24, 1980, following a hearing before an immigration judge, petitioners were found deportable, and were given until July 9, 1980 to depart voluntarily. Petitioners reserved the right to appeal after being advised of the ten-day filing period.

Petitioners did not appeal. Instead, Youssefinia filed an application for asylum, 8 U.S.C. Sec. 1158, including his wife as a family member. The immigration judge treated the asylum application as a motion to reopen the deportation proceedings under 8 C.F.R. Sec. 208.11 (1985), and granted the motion without objection from the INS to allow petitioners to present their case for asylum. Petitioners thereafter also filed an application for suspension of deportation, 8 U.S.C. Sec. 1254, and a hearing to receive evidence on both applications was held November 28, 1984. ²

Youssefinia testified at the hearing concerning his fear of persecution if he is forced to return to Iran. Evidence was presented that before coming to the United States Youssefinia, his sister, and an uncle were members of Rastakhiz, the political party of the former Shah of Iran, and that his father headed the party in the city of Abbassabad. Youssefinia testified that he was at one time a part-time informant in Abbassabad for Savak, the former Shah's secret police, that his father was a full-time informant for Savak, and that an uncle was the vice president of Savak in the city of Nooshahr. Youssefinia testified that the only person he ever reported in writing as an informant was a mullah who was posting anti-Shah posters in town. He testified that he also orally reported the activities of some people connected with the mullah, but admitted that no action was ever taken against either the mullah or his followers. Youssefinia testified he expected to be arrested upon returning to Iran because the mullah was not in a position of power. He testified further that his father, and the uncle and sister who were members of Rastakhiz, were arrested shortly after the revolution. The uncle and sister, though quickly released, were fired from their jobs; Youssefinia's father was jailed for three months, deprived of all social rights for three years, and his land and transportation company were allegedly taken from him. A warrant was allegedly issued for Youssefinia's arrest at the same time, but he was then in the United States. Youssefinia also testified that sometime later his father was arrested again and held for two weeks.

Youssefinia's testimony concerning the hardship that deportation to Iran would cause him and his family was less specific. This testimony focused primarily on the economic hardship the family was likely to suffer: Youssefinia claimed his prospects of obtaining employment in Iran were slim, that if jailed he would be unable to support his family, and that his assets may be confiscated when he tries to transfer them back to Iran. Youssefinia also testified that his family and especially his daughter, born in the United States and therefore a United States citizen, would suffer hardship because of the enormous cultural upheaval that has occurred in Iran since the revolution.

Following Youssefinia's testimony, the immigration judge denied Youssefinia's applications for asylum, withholding of deportation, and suspension of deportation. As to the asylum and withholding of deportation applications, the judge did not find credible Youssefinia's testimony that he would be permanently jailed or killed by the current regime for his activities in Iran or the United States, especially in light of the fact that his father, a member and full-time informer for Savak, was jailed for only three months following the revolution. Youssefinia's testimony that he could be jailed or persecuted on the basis of one letter that may have made its way into the Savak files where it might have been perused by the person about whom it was written, and then possibly identified with Youssefinia, was entirely too speculative, in the judge's view. Finally, the judge found that millions of Iranians were members of the former Shah's political party before the revolution, and that Youssefinia's position on return would be no worse than that of any other member of Iran's former westernized elite.

As to the application for suspension of deportation, the judge considered only hardship to Youssefinia and his daughter, since the other members of the family were neither permanent residents nor United States citizens. The judge found that the young daughter would have no more trouble adjusting to life in Iran than her brother had in adapting to life in the United States when he arrived. As to economic hardship, the judge found that Youssefinia had not demonstrated he would be unemployable in Iran considering his education, skills, and enterprise. While noting that the most serious claim of hardship was based upon the cultural changes which have occurred in Iran, the judge found that Youssefinia's preference for American culture over the conditions in his native country did not amount to the extreme hardship required by section 244 of the Immigration and Nationality Act, 8 U.S.C. Sec. 1254.

Following the decision by the immigration judge, petitioners timely appealed to the Board of Immigration Appeals, which summarily affirmed the immigration judge's comprehensive findings. The case is now before us on a petition for review.

II

Petitioners raise a number of issues. First, they argue they are not deportable because the regulation under which they were found deportable has been amended so that INS authorization before transferring schools is no longer necessary; at any rate, they argue, it was out of harmony with statutory intent and hence void at the time of the original deportation hearings in 1980. Second, they argue that the immigration judge abused his discretion by not requesting an additional advisory opinion from the Bureau of Human Rights and Humanitarian Affairs after they submitted new evidence regarding their asylum application. Third, petitioners argue the immigration judge abused his discretion by applying the wrong standard in adjudicating their request for asylum. Finally, they argue that the immigration judge abused his discretion in determining that Youssefinia and his daughter would not be subject to extreme hardship if forced to return to Iran.

A

The immigration judge ordered petitioners deported based on the determination of the 1980 proceedings that Youssefinia had transferred schools without prior authorization from the INS, in violation of 8 C.F.R. Sec. 214.2(f)(4) (1983). ³ In 1984 the regulation was amended to allow an alien student to transfer schools under certain circumstances and later notify the INS of the change. See 8 C.F.R. Sec. 214.2(f)(8) (1985). Petitioners argue that their deportability should be measured under the regulation as amended, or alternatively, that the regulation prior to amendment did not conform with the statute it was promulgated under, 8 U.S.C. Sec. 1101(a)(15)(F)(i). However, because petitioners did not appeal the issue of deportability following the 1980 deportation hearings, and because the hearings were reopened solely to consider the applications for asylum, withholding of deportation, and suspension of deportation, we are without jurisdiction to review the underlying...