Ali v. Ashcroft

• Court: Court of Appeals for the Sixth Circuit
• Decided: April 22, 2004
• Docket: 02-3810
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Ali v. Ashcroft, et al. No. 02-3810 ELECTRONIC CITATION: 2004 FED App. 0117P (6th Cir.) File Name: 04a0117p.06 _________________ COUNSEL UNITED STATES COURT OF APPEALS ON BRIEF: Charles S. Owen, OWEN & ASSOCIATES, FOR THE SIXTH CIRCUIT Southfield, Michigan for Petitioner. Jennifer A. Parker, _________________ Terri J. Scadron, UNITED STATES DEPARTMENT OF JUSTICE, OFFICE OF IMMIGRATION LITIGATION, MOHAMED RAMIZ ALI, X Washington, D.C., for Respondents. Petitioner, - _________________ - - No. 02-3810 v. OPINION - > _________________ , JOHN ASHCROFT , Attorney - BOYCE F. MARTIN, JR., Circuit Judge. Mohamed Ramiz General; IMMIGRATION AND - Ali petitions for review of a final order of removal issued by NATURALIZATION SERVICE, - the Board of Immigration Appeals, which affirmed the Respondents. - immigration judge’s denial of his requests for asylum, - withholding of deportation and voluntary departure. For the N following reasons, Ali’s petition is DENIED. On Petition for Review of the Order of the Board of Immigration Appeals. FACTUAL AND PROCEDURAL BACKGROUND No. A73 378 380. Ali is a native and citizen of Bangladesh who entered the United States in 1991 without inspection by the Immigration Submitted: January 29, 2004 and Naturalization Service. The Service commenced removal proceedings against Ali on March 14, 1997. Ali concedes Decided and Filed: April 22, 2004 that he is deportable, but requests relief from deportation on several grounds. His primary claim is that he is entitled to Before: MARTIN and MOORE, Circuit Judges; WEBER , asylum and withholding of deportation because he was, and Senior District Judge.* fears he will be, persecuted in Bangladesh on account of his political opinion. He also requests voluntary departure. The deportation hearing predominantly featured Ali’s own testimony, which the immigration judge found “incredible,” “difficult to comprehend” and inconsistent with the documentary evidence. The crux of Ali’s testimony was that * during the period from 1987 to 1990, he was persecuted by The Hon orable H erman J. W eber, Senior United States District Judge for the Southern District of Ohio, sitting by designation. Bangladesh police because of his involvement with the

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Jamaat political party. Ali testified that he became a member At the conclusion of the hearing, the immigration judge of that party in 1985 and became the president of its local unit rendered an oral decision denying Ali’s requests for asylum, in 1987. After he became president, Ali allegedly began withholding of deportation and voluntary departure. On having problems with opposing political parties – specifically, June 19, 2002, the Board of Immigration Appeals summarily the Awami League, the Jantiya Party and the Bangladesh affirmed the immigration judge’s decision without an opinion. National Party. Ali testified that he had been arrested and Presently before this Court is Ali’s petition for review of the detained on two different occasions as a result of his final order of removal issued by the Board. Where, as here, participation in violent conflicts with members of opposing the Board summarily affirms an immigration judge’s decision political parties. According to Ali, these conflicts occurred without issuing an opinion, the immigration judge’s decision during public meetings for his party and were the result of is considered the final agency action to be reviewed by this members of opposing parties showing up at the meetings and Court. Denko v. INS, 351 F.3d 717, 729 (6th Cir. 2003). We causing trouble. He claimed that he was arrested because an review questions of law involving immigration proceedings opposing party was in power and he was unfairly blamed. Ali de novo. Huicochea-Gomez v. INS, 237 F.3d 696, 699 (6th testified that he had sustained various injuries during these Cir. 2001). The particular standards of review that apply to conflicts and while in police custody, including being shot in Ali’s specific claims are set forth within the following the arm, hit in the leg, cut in the finger and hit in the head. analysis. Ali claims that some time after his release from prison ANALYSIS another warrant was issued for his arrest. According to Ali, that warrant was based upon false accusations by an opposing A. Asylum and Withholding of Deportation party. He fled Bangladesh and eventually entered Canada using a fake passport. In 1991, Ali entered the United States The Board’s determination that Ali is ineligible for asylum without inspection, where he later met and married a woman or withholding of deportation must be upheld if “supported by named Alma Sumner. reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, During Ali’s deportation hearing, the Service proffered 481 (1992) (citation omitted); Klawitter v. INS, 970 F.2d 149, several documents that cast doubt upon the validity of his 151-52 (6th Cir. 1992). In order to reverse the Board’s marriage to Sumner. One document was a sworn statement determinations, “the reviewing court must find that the from Sumner requesting the withdrawal of the I-130 evidence not only supports a contrary conclusion, but indeed application that she had filed on Ali’s behalf, which stated, in compels it.” Klawitter, 970 F.2d at 152 (citing Elias- pertinent part: “I think he married me to get a green card.” Zacarias, 502 U.S. at 481). Another document was a letter from the Service to Ali setting forth various discrepancies in Ali’s and Sumner’s statements 1. Asylum concerning their marriage and indicating that “the Service can only conclude that this marriage was entered into by you for “Disposition of an application for asylum requires a two- the sole purpose of obtaining permanent resident status and step inquiry: first, whether the petitioner is a ‘refugee’ within evading immigration laws.” These documents were admitted the meaning of the [Immigration and Nationality Act], and over Ali’s objection. second, whether the petitioner merits a favorable exercise of discretion by the Attorney General.” Perkovic v. INS, 33 F.3d No. 02-3810 Ali v. Ashcroft, et al. 5 6 Ali v. Ashcroft, et al. No. 02-3810

615, 620 (6th Cir. 1994). A “refugee” is a person who is competing political factions, was supported by substantial unable or unwilling to return to his home country “because of evidence. The immigration judge found no evidence that the persecution or a well-founded fear of persecution on account police were conspiring with a rival political group, or that of race, religion, nationality, membership in a particular social they arrested Ali for any reason other than his involvement in group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). causing a public disturbance, and Ali points to no evidence “[P]ersecution is an extreme concept that does not include that would undercut that finding. We conclude that every sort of treatment our society regards as offensive.” substantial evidence supports the immigration judge’s Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir. 1995) (citations determination that Ali is not a refugee and is therefore not and quotation marks omitted). “Persecution” entails entitled to asylum on the basis of past persecution. “punishment or the infliction of suffering or harm,” but “harassment or discrimination without more does not rise to Because Ali has failed to prove past persecution, he is “not the level of persecution.” Mikhailevitch v. INS, 146 F.3d 384, entitled to the presumption under 8 C.F.R. § 208.13(b)(1)(i) 389-90 (6th Cir. 1998) (citations omitted). of a well-founded fear of suffering future persecution.” Mikhailevitch, 146 F.3d at 390. To determine whether Ali The Seventh Circuit’s opinion in Meghani v. INS, 236 F.3d has a well-founded fear of future persecution on account of 843 (7th Cir. 2001), is particularly instructive on the issue of his political opinion, therefore, we apply the standard set forth whether Ali’s experiences in Bangladesh amount to past in Perkovic: persecution on account of his political opinion. In Meghani, the petitioner, a member of a political group called the The Supreme Court has held that an applicant for asylum Pakistan People’s Party, was assaulted and injured at his has a well-founded fear of persecution if he can show office by members of a rival political party, the Mahegir that “persecution is a reasonable possibility” should he Quami Movement. The petitioner did not notify the police be returned to his country of origin. A well-founded fear about this incident because he believed they would be of persecution has both a subjective and an objective ineffective at remedying the problem. He subsequently fled component: an alien must actually fear that he will be the country and ultimately entered in the United States. The persecuted upon return to his country, and he must petitioner conceded that he met the requirements for present evidence establishing an “objective situation” deportability, but claimed that he was entitled to asylum under which his fear can be deemed reasonable. A well- because he was, and feared he would be, persecuted on founded fear of persecution does not require the applicant account of his political opinion. The Seventh Circuit held to show that he probably will be persecuted if he is that “[c]onditions of political upheaval which affect the deported; “[o]ne can certainly have a well-founded fear populace as a whole or in large part are generally insufficient of an event happening when there is less than a 50% to establish eligibility for asylum,” and that what the chance of the occurrence taking place.” petitioner experienced was “civil unrest between competing political factions,” not persecution. Id. at 847 (citation 33 F.3d at 620-21 (quoting INS v. Cardoza-Fonseca, 480 U.S. omitted). 421 (1987)). “[A]n alien is not required to produce evidence of persecution; the alien’s own testimony can be sufficient to Taking the record as a whole, we are convinced that the support an application for asylum, where the testimony is immigration judge’s conclusion that Ali did not suffer believable, consistent, and sufficiently detailed to provide a persecution, but was instead involved in civil unrest between plausible and coherent account of the basis for his fear.” Id. No. 02-3810 Ali v. Ashcroft, et al. 7 8 Ali v. Ashcroft, et al. No. 02-3810

at 621 (citation and internal quotation marks omitted). account of the basis for his fear.” Id. at 621. We find that Because a well-founded fear of persecution can be based upon substantial evidence supports the immigration judge’s what has happened to others who are similarly situated, it is conclusion that Ali did not possess a well-founded fear of “necessary, in considering an applicant’s asylum petition, to persecution in Bangladesh on account of his political opinion. weigh evidence of general conditions in the country of origin and the foreign government’s history of treatment of others 2. Withholding of Deportation engaged in similar activities.” Id. (citation omitted). To qualify for withholding of deportation, an applicant Ali testified at the deportation hearing that he feared that he must show a “clear probability of persecution,” which is a would suffer persecution on account of his political opinion stricter standard than the “well-founded fear” standard that if he were forced to return to Bangladesh. While Ali may, in applies with respect to applications for asylum. INS v. Stevic, fact, subjectively fear future persecution, we find no sufficient 467 U.S. 407, 430 (1984); see also 8 C.F.R. § 208.16(b)(1). basis in the record to undercut the immigration judge’s Because Ali has failed to demonstrate a well-founded fear of conclusion that his fear is not objectively reasonable. persecution in Bangladesh on account of his political opinion, Perkovic, 33 F.3d at 620-21. Ali’s fear of future persecution his request for withholding of deportation must likewise fail. is primarily based upon events that have occurred in the past Daneshvar v. Ashcroft, 355 F.3d 615, 625 (6th Cir. 2004) that the immigration judge concluded, based upon substantial (“Because substantial evidence supports the conclusion that evidence, do not rise to the level of persecution. There is Petitioner is ineligible for asylum, it therefore follows that he simply no evidence in the record to substantiate Ali’s cannot satisfy the more stringent standard for withholding of testimony that he fears future persecution.1 In fact, as the deportation.”). immigration judge emphasized, the State Department’s 1998 asylum profile for Bangladesh reveals no information B. Voluntary Departure indicating that members of the Jamaat political party have suffered persecution on account of their political opinion, The Immigration and Nationality Act grants the Attorney despite the party’s ability “to mount violent demonstrations General the discretionary power to allow a deportable alien to in support of fundamentalist Muslim positions.” Bangladesh: depart voluntarily in lieu of deportation if the alien establishes Profile of Asylum Claims and Country Conditions, United that he “has been a person of good moral character, for at States Department of State, February 1998, at 10. Finally, in least five years preceding his application.” 8 U.S.C. the face of the immigration judge’s reasonable doubts about § 1254(e). The immigration judge determined that Ali had Ali’s credibility, we are unable to say that Ali’s testimony, failed to demonstrate the requisite “good moral character.” standing alone, was sufficiently “believable, consistent, and That determination was based at least in part upon the sufficiently detailed to provide a plausible and coherent Service’s evidence regarding the validity of his marriage to Sumner. Ali concedes that entering into a sham marriage for purposes of obtaining immigration benefits precludes an alien 1 Ali produced a d ocument during the deportation he aring that he from demonstrating the requisite good moral character. claimed was a copy of an outstanding warrant for his arrest issued by Nevertheless, he argues that the immigration judge erred in authorities in Bangladesh, bu t the immigration judge excluded this finding that he was not entitled to voluntary departure. He document because it could not be authenticated. Ali has not specifically also contends that the admission of the evidence concerning challenged the immigration judge’s exclusion of this document, and the the validity of his marriage denied him a fair hearing. document is not part of the record evidence. No. 02-3810 Ali v. Ashcroft, et al. 9

The transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 apply in this case because Ali’s deportation proceedings commenced before April 1, 1997, but the final administrative order of deportation was issued on or after October 30, 1996. IIRIRA §§ 309(a), (c)(1), (c)(4). Under the transitional rules, we lack jurisdiction to review “any discretionary decision under section . . . 244 of the [Immigration and Nationality Act].” Id. at § 309(c)(4)(E). A decision denying voluntary departure is such a discretionary decision. Id.; Lulaj v. INS, 71 Fed. Appx. 524, 526 (6th Cir. 2003) (unpublished opinion). Therefore, we lack jurisdiction to review the propriety of the denial of Ali’s request for voluntary departure. Lulaj, 71 Fed. Appx. at 526; Tamas-Mercea v. Reno, 222 F.3d 417, 427 (7th Cir. 2000). To the extent that Ali asserts a due process violation based upon the immigration judge’s admission of the evidence concerning the validity of his marriage, such a claim must also fail. “Fifth Amendment guarantees of due process extend to aliens in deportation proceedings, entitling them to a full and fair hearing.” Huicochea-Gomez, 237 F.3d at 699 (citations omitted). However, “[t]he failure to be granted discretionary relief [such as voluntary departure] does not amount to a deprivation of a liberty interest.” Id. at 700 (citation omitted). Because Ali cannot demonstrate that he has suffered a deprivation of a liberty interest, he cannot prove a due process violation. CONCLUSION For these reasons, Ali’s petition for review of the order of the Board of Immigration Appeals is DENIED.