Askari v. Atty Gen USA

110 F. App'x 254
CourtCourt of Appeals for the Third Circuit
DecidedSeptember 30, 2004
Docket03-2264, 03-4456
StatusUnpublished

This text of 110 F. App'x 254 (Askari v. Atty Gen USA) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Askari v. Atty Gen USA, 110 F. App'x 254 (3d Cir. 2004).

Opinion

OPINION

AMBRO, Circuit Judge.

Samieh Askari petitions for review of the order of the Board of Immigration *255 Appeals (“BIA”) affirming the denial by an Immigration Judge (“IJ”) of her applications for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). Central to the IJ’s decision was his finding that Askari’s claims of a well-founded fear of persecution upon return to her native country were not credible. But even if Askari’s claims were credible, they would not rise to the level of persecution, as required for asylum relief. Therefore, we deny her petition for review of the BIA’s decision to deny her relief, as well as its denial of her motion to reconsider this decision and her motion to reopen.

I. Facts and Procedural Posture

Askari, a native and citizen of Iran, arrived in the United States in March 1999. The Immigration and Naturalization Service 1 (“INS”) immediately placed her in removal proceedings, charging her with removability under 8 U.S.C. § 1182(a)(7)(A)(i)(I) for arriving in the United States without proper documentation. In August 1999 she filed an initial application for asylum, withholding of removal, and protection under the CAT, claiming that she left Iran to escape the threat of arrest and torture in retaliation for anti-government activism she engaged in while a medical student at Tehran University. In her application and at a hearing before the IJ, she testified that the Iranian government restricted her studies and professional advancement and that on two occasions she was detained, interrogated, and beaten by Iranian police.

On April 3, 2000, the IJ denied Askari’s applications for relief after finding that her testimony was not credible. Askari appealed to the BIA, which on April 4, 2003, affirmed the IJ’s decision, including his adverse credibility finding “where he found the respondent to be incredible based upon her statements made to an immigration official upon arrival.” JA at 21. The BIA also agreed with the IJ’s “essential conclusion that nothing the respondent has described about her experiences in Iran would rise to the level of persecution.” Id. Askari’s appeal of the BIA’s decision denying her applications for relief is No. 03-2264.

On May 2, 2003, Askari timely filed a Motion to Reconsider with the BIA. On July 1, 2003, she timely filed a Motion to Reopen based on a change of circumstances in Iran since the IJ’s decision. In October, the BIA denied both of these motions in one decision. Askari’s appeal of this decision is No. 03-4456. In April 2004, our Court granted Askari’s motion to consolidate the two pending appeals. 2

II. Analysis

A. Denial of Asylum Relief

Under the Immigration and Nationality Act (“INA”), the Attorney General and his delegates, the BIA and IJ, may grant asylum to any alien who qualifies as a refugee. 8 U.S.C. § 1158. A refugee is an alien who is unable or unwilling to return to her 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.” Id. § 1101(a)(42)(A). Aliens have the burden of supporting their asylum claims. Testi *256 mony by itself is sufficient to meet this burden, as long as it is credible. Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002).

Askari supported her asylum application with testimony that the Iranian government suppressed her educational and professional advancement in retaliation for her political activism. She claimed that she was prevented from pursuing a specialty in internal medicine when the government placed conditions on her entrance into a residency program. In particular, she was asked to sign an agreement that would make her hable for a penalty (twice the expenses of her tuition plus twice her salary and allowance) if she was dismissed from the program or decided to leave, which Askari refused to sign. She argued that this contract was intended to suppress political activity by enabling the government to hold the threat of dismissal, and thus the penalty, over her. The IJ found that the contract (which also required Askari to work for two years in the public service) did not put such a “heavy burden” on Askari as to support her claim that she was prevented from practicing internal medicine and speculated that “if the Iranian government had indeed wanted to punish the respondent for her political activities, they would have prohibited her from studying internal medicine in the first place, and not given her the opportunity of entering her specialty after signing the contract.” JA at 16.

Askari also claimed that she was denied admission to medical school for three years because of her political activities as teenager. The IJ found this testimony inconsistent with documentation from the government’s education ministry that she was not immediately accepted into medical school because of academic ineligibility. He found it implausible that the government would punish Askari by delaying her entrance to medical school rather than denying her altogether. JA at 15.

Aksari testified that both of her sisters were denied university education for several years. But the IJ doubted that this delay was retaliation for their political activities because the government did not “ban[] them from higher education altogether.” JA at 17. She testified that her brother was expelled from medical school after giving a political speech and that, eleven years later, he still did not work and suffered clinical depression. But because Askari refused to discuss her brother’s medical situation, the IJ could not find based on the limited testimony available that he had suffered persecution. Id.

Askari told the IJ that twice in 1998 she was detained, interrogated, beaten, and threatened after attending and speaking at a political meeting. Askari insisted that this testimony did not conflict with what she told immigration officials upon arrival in the United States — that she had never been “arrested” in Iran — because she had not been put in jail on those occasions. The IJ was not convinced by this “fine line distinction” and determined that Askari had fabricated the 1998 events to bolster her asylum application. In any event, he did not find that “being placed in confinement on two or three occasions amounted to persecution, based on what she has told me occurred during those occasions.” JA at 16. On appeal, the BIA rejected this particular inconsistency as a basis for an adverse credibility finding, but endorsed the IJ’s conclusion that it did not rise to the level of persecution, as required to support an asylum claim.

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110 F. App'x 254, Counsel Stack Legal Research, https://law.counselstack.com/opinion/askari-v-atty-gen-usa-ca3-2004.