Beatrice Ananeh-Firempong v. Immigration and Naturalization Service

766 F.2d 621, 1985 U.S. App. LEXIS 20134
CourtCourt of Appeals for the First Circuit
DecidedJune 24, 1985
Docket84-1997
StatusPublished
Cited by67 cases

This text of 766 F.2d 621 (Beatrice Ananeh-Firempong v. Immigration and Naturalization Service) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Beatrice Ananeh-Firempong v. Immigration and Naturalization Service, 766 F.2d 621, 1985 U.S. App. LEXIS 20134 (1st Cir. 1985).

Opinions

BREYER, Circuit Judge.

The petitioner, Beatrice Ananeh-Firempong, asked the Immigration and Naturalization Service to reopen her deportation proceedings so that she could present a claim for withholding of deportation, on the ground that she was a ‘political’ or ‘social’ refugee. 8 U.S.C. § 1253(h). An immigration judge granted her motion to reopen, but the Board of Immigration Appeals reversed, stating that she had failed to make out a prima facie case that she would face persecution if returned to her native Ghana. The petitioner seeks review in this court. See 8 U.S.C. § 1105a(a); Sang Seup Shin v. INS, 750 F.2d 122, 124 n. 4 (D.C.Cir.1984). We believe that the petitioner’s affidavits make out a prima facie case for withholding deportation, and that the INS consequently should have reopened her proceeding. We reverse the Board’s decision to the contrary.

I

Petitioner, a citizen of Ghana, obtained a visa to study in the United States, overstayed her visa, and, in 1982, was found deportable. In February 1983 she filed a motion to reopen her deportation proceedings, arguing in part that the Attorney General should withhold her deportation because of a threat to her life or freedom if returned to Ghana. She pointed to § 243(h) of the Immigration and Nationality Act, 8 U.S.C. § 1253(h), which states:

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.

(Emphasis added.) Petitioner attached to her motion various supporting documents — an affidavit from an academic expert on African politics, her own affidavit, and several newspaper and magazine articles — which indicated the following facts:

[623]*623a. The present government of Ghana, headed by former Flight Lt. Jerry Rawl-ings, came to power in late 1981 as a result of a coup d’etat, overturning the prior constitutional government of Dr. Hilla Limann and the Convention Peoples Party. In late 1982, there were two unsuccessful coup attempts aimed at overthrowing the Rawlings regime.
b. Immediately after these attempted coups, the Rawlings government began persecuting (1) those associated with the former government, (2) members of the Ashanti tribe, and (3) professionals, businesspeople, and those who are highly educated. This persecution has consisted of attacks on many such persons, including killings. See Affidavit of Prof. Dushku (stating that “many (perhaps hundreds) have been killed” under the Rawlings regime for their association with the former regime); see also the detailed descriptions in Africa Now, Dec. 1982, at 11-15.
c. Petitioner’s family falls within all three of the above categories. Her father has been an active member of the CPP since its founding, and has held numerous posts in the party. He was a close friend of the former head of state, Dr. Limann, and gave petitioner the middle name Nkurumah, after Kwame Nkru-ma, the founder of the CPP. Petitioner’s father is also an educated professional person, working as Headmaster of Schools of the Presbyterian Unit in Ghana. He owns his own home, and, at least until Rawlings took power, had a substantial bank account. Further, he is a member of the Ashanti tribe. Petitioner’s family lives in a prosperous neighborhood inhabited by professionals and businesspeople whom the present government considers to have supported the CPP and who are, therefore, politically suspect.
d. Immediately after the attempted coups in 1982, the government seized the bank account of petitioner’s family, and it placed her parents under house arrest. Petitioner’s family’s telephone service has been interrupted. She has received only one letter from her family since her parents were placed under house arrest, although she previously received letters every few weeks. A phone conversation with a third party revealed that a government soldier beat petitioner’s nephew, who was staying at her parents’ house, to the point where his intestines were ruptured.

The immigration judge who was assigned to petitioner’s case ordered her proceeding reopened. The INS then appealed this interlocutory order to the Board of Immigration Appeals. It argued that the immigration judge had used the wrong form in announcing his decision, and failed to state his reasons for reopening in writing. The INS sought as remedy a remand to the immigration judge for a written statement of reasons. The Board, however, went a step further, and held that the immigration judge should not have reopened the proceeding because petitioner’s moving papers did not make out a prima facie case that entitled her to withholding of deportation under the statute. Petitioner now appeals that decision.

II

At the outset we consider the standard that ought to govern our review of the Board’s decision. Courts have often hesitated to ‘second guess’ the INS, and the Supreme Court has urged caution lest judges remove from INS administrators that power to control the country’s borders that Congress entrusted to the agency, not to the courts. See, e.g., Kleindienst v. Mandel, 408 U.S. 753, 766, 92 S.Ct. 2576, 2583, 33 L.Ed.2d 683 (1972) (quoting Lem Moon Sing v. United States, 158 U.S. 538, 547,15 S.Ct. 967, 970, 39 L.Ed. 1082 (1895)); see also K. Davis, Administrative Law Treatise § 8:10, at 200 (2d ed. 1979) (“The Immigration and Nationality Act is shot through with provisions that ‘the Attorney General may, in his discretion’ do something for an alien.”). The INS points to a number of cases suggesting that the scope of the government’s discretionary power in this area of the law is unusually broad — to [624]*624the point where a reviewing court would set aside a decision of the sort here at issue only in very unusual circumstances. See, e.g., INS v. Jong Ha Wang, 450 U.S. 139, 144, 101 S.Ct. 1027, 1031, 67 L.Ed.2d 123 (1981); LeBlanc v. INS, 715 F.2d 685, 688-93 (1st Cir.1983); In re Acosta-Solor-zano, Interim Decision No. — (BIA Mar. 1, 1985).

If the INS means only to point out that the Attorney General enjoys broad delegated power to “determine,” § 243(h), the facts, and considerable leeway in interpreting the terms of its governing statute (free of judicial interference), we agree. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 488-90, 71 S.Ct. 456, 464-65, 95 L.Ed. 456 (1951); Udall v. Tallman, 380 U.S. 1, 16-17, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965);

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Bluebook (online)
766 F.2d 621, 1985 U.S. App. LEXIS 20134, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beatrice-ananeh-firempong-v-immigration-and-naturalization-service-ca1-1985.