Man v. Immigration & Naturalization Service

69 F.3d 835
CourtCourt of Appeals for the Seventh Circuit
DecidedNovember 7, 1995
DocketNo. 94-3335
StatusPublished
Cited by1 cases

This text of 69 F.3d 835 (Man v. Immigration & Naturalization Service) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Man v. Immigration & Naturalization Service, 69 F.3d 835 (7th Cir. 1995).

Opinion

KANNE, Circuit Judge.

Petitioners appealed an immigration judge’s order denying their applications for asylum and withholding of deportation to the Board of Immigration Appeals (“BIA”). The BIA dismissed their appeal, and they petition this court for review. Their petition poses questions of law answered by certain of our prior decisions, and we consequently deny their petition for review.

I

Petitioners, who are citizens of Panama, were admitted to the United States via Miami, Florida. The named petitioner, Haydee Cecilia Man, and her husband, Jaime Eduardo Man, were admitted on December 22, 1987. Their three children and two nephews were admitted on January 12,1987; April 13, 1987; and March 2,1988. Petitioners sought relief from deportation by filing applications for asylum and withholding of deportation on October 2, 1989, claiming they would be persecuted should they return to Panama. Their fear of persecution was allegedly founded upon the opposition political activities of Haydee Cecilia Man and her family under the regime of General Manuel Noriega. Following a hearing, the immigration judge denied petitioners’ applications for both asylum and withholding of deportation on December 7, 1989.

Petitioners appealed to the BIA on December 14, 1989, pursuant to 8 U.S.C. §§ 1103, 1252. In its brief opposing petitioners’ appeal, the Immigration and Naturalization Service (“INS”) requested that the BIA take administrative notice of General Noriega’s removal from power. His removal, INS argued, extinguished the basis for petitioners’ fear of persecution. Counsel for petitioners claimed at oral argument before this court [837]*837that this request was “buried” in the INS brief.

The BIA dismissed petitioners’ appeal on July 8, 1994. In addition to affirming the immigration judge’s disposition of the case, the BIA noted General Noriega’s removal from Panama by United States military forces on January 3, 1990. The BIA wrote that petitioners had failed to respond to INS’s assertion that “the removal of General Noriega from power eliminated the alleged basis for the [petitioners’] persecution claim.” Jaime Eduardo Man, Jr., Haydee Cecilia Man’s son, subsequently filed a motion to reopen under 8 C.F.R. §§ 3.8, 103.5 (1995), on August 4, 1994.1

Petitioners base their petition for review primarily on the BIA’s recognition of the changed political climate in Panama. First, they contend that the BIA focused only upon General Noriega’s removal and failed to consider the situations facing the individual petitioners. Second, they claim that the BIA denied them the due process required by the Fifth Amendment to the Constitution by failing to provide warning that it was contemplating General Noriega’s removal as a basis for its decision. Our jurisdiction to entertain this petition is conferred by 8 U.S.C. § 1105a(a) and 28 U.S.C. § 2342.

II

We review a BIA decision denying application for asylum and withholding of deportation for abuse of discretion. DeSouza v. INS, 999 F.2d 1156, 1158 (7th Cir.1993). We will uphold the BIA’s denial of such application “unless it was made without a rational explanation, it inexplicably departed from established policies, or it rested on an impermissible basis_” Cordoba-Chaves v. INS, 946 F.2d 1244, 1246 (7th Cir.1991). In reviewing a BIA order, we rely “solely upon the administrative record upon which the deportation order is based,” 8 U.S.C. § 1105a(a)(4), and will not disturb the BIA’s findings of fact if they are “supported by reasonable, substantial, and probative evidence.... ” Id. See also Balazoski v. INS, 932 F.2d 638, 640 (7th Cir.1991).

Ill

Petitioners applied for asylum under 8 U.S.C. § 1158 and withholding of deportation under 8 U.S.C. § 1253(h). We first examine whether the BIA abused its discretion in dismissing the appeal of the denial of asylum. The statutory requirement for asylum claims is less rigorous than that for withholding deportation. Compare INS v. Cardoza-Fonseca, 480 U.S. 421, 430, 107 S.Ct. 1207, 1212, 94 L.Ed.2d 434 (1987) (requiring asylum applicants under § 1158 to show a “well-founded fear of persecution”), with INS v. Stevic, 467 U.S. 407, 413, 104 S.Ct. 2489, 2492, 81 L.Ed.2d 321 (1984) (stating that aliens seeking relief from deportation pursuant to § 1253(h) must demonstrate a “clear probability” of persecution). If we find the BIA exercised proper discretion on the asylum question, then we have likewise answered the inquiry into the withholding of deportation issue. See Balazoski, 932 F.2d at 640.

The Attorney General is authorized by 8 U.S.C. § 1158(a) to grant asylum if the applicant qualifies as a refugee under 8 U.S.C. § 1101(a)(42)(A). A refugee is defined as:

any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country 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....

8 U.S.C. § 1101(a)(42)(A). The well-founded fear requirement has two components. The trier of fact must find both that the applicant’s fear is genuine and that a reasonable [838]*838person in the applicant’s situation would also fear persecution if returned to his native country. Sivaainkaran v. INS, 972 F.2d 161, 163 (7th Cir.1992). We will reverse the BIA’s determination of refugee status only where the evidence is so “compelling that no reasonable factfinder could fail to find the requisite fear of persecution.” INS v. Elias-Zacanas, 502 U.S. 478, 484, 112 S.Ct.

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Related

Man v. Immigration and Naturalization Service
69 F.3d 835 (Seventh Circuit, 1995)

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