Sobnam v. Ashcroft

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 22, 2003
• Docket: 02-60241
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS April 21, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 02-60241

MEENA SOBNAM,

Petitioner,

versus

JOHN ASHCROFT, United States Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals (BIA No. A72 568 360) _______________________________________________________

Before KING, Chief Judge, REAVLEY and STEWART, Circuit Judges.

PER CURIAM:*

Meena Sobnam, a native and citizen of Bangladesh, petitions for review of the

Board of Immigration Appeals’ (the Board) denial of her Motion to Reopen and

Reconsider her application for asylum and withholding of deportation. We deny her

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. petition for the following reasons:

1. As Sobnam presented new evidence to supplement the record before the Board, we

construe her motion as a Motion to Reconsider and Reopen. See 8 C.F.R. § 3.2

(b), (c) (2001). We review the denial of a Motion to Reconsider and Reopen

presented pursuant to that regulation for abuse of discretion. See Osuchukwu v.

INS, 744 F.2d 1136, 1141 (5th Cir. 1984).

2. Under this standard of review, we may not reverse if the Board has acted within

the bounds of the abundant discretion granted it by Congress. We must affirm the

Board’s decision, even a decision we believe is erroneous, “so long as it is not

capricious, racially invidious, utterly without foundation in the evidence, or

otherwise so aberrational that it is arbitrary rather than the result of any perceptible

rational approach.” Osuchukwu, 744 F.2d at 1142. An alien seeking asylum bears

the burden of proving either past persecution, which this court has previously held

that Sobnam failed to do, or a well-founded fear of future persecution. See 8

C.F.R. § 208.13(a),(b) (2001). To prove a well-founded fear of future persecution,

the alien must show that “a reasonable person in the same circumstances would

fear persecution if deported.” Jukic v. INS, 40 F.3d 747, 749 (5th Cir. 1994).

Even if we were to review the decision underlying the Board’s denial of Sobnam’s

Motion to Reopen and Reconsider under the substantial evidence standard of

2 review,1 “to obtain judicial reversal of the BIA’s determination, [Sobnam] must

show that the evidence [s]he presented was so compelling that no reasonable

factfinder could fail to find the requisite fear of persecution.” INS v. Elias-

Zacarias, 502 U.S. 478, 483-84 (1992).

3. The Board did not abuse its discretion concluding that the evidence of the

Bangladeshi National Party’s (BNP) reelection in 2001 was not material to its

determination that Sobnam did not establish a well-founded fear of future

persecution. We cannot say it was irrational for the Board to determine that

Sobnam did not have a well-founded fear of future persecution regardless of

whether or not the BNP controlled Bangladesh, as the Board concluded that she

failed to establish that she was a victim of past persecution on the basis of her

political views under the previous BNP regime.

4. Nor can we say that it was outside the realm of possibility that the Special Powers

Act warrant for Sobnam’s arrest was issued in connection with her participation in

a demonstration that caused a public disturbance and not on the basis of her

political views. Sobnam, who bears the burden of proving a well-founded fear of

1 Sobnam’s Petition for review was filed within 30 days of the Board’s denial of her Motion to Reconsider and Reopen but more than 30 days after the Board’s denial of her application for asylum and withholding of deportation. Thus, under the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009 (IIRIRA), we may only review the Board’s denial of her Motion to Reconsider and Reopen and not the underlying denial of asylum and withholding of deportation. See IIRIRA § 309(c)(4); Stone v. INS, 514 U.S. 386, 397-98 (1995).

3 persecution, has not offered evidence which compels the conclusion that she was

arrested for her political opposition to the BNP. Nor has she presented evidence

that compels the conclusion that she has been targeted for persecution, as the

record does not conclusively establish why the SPA warrant was issued for her

arrest. Thus, the BIA was within its discretion to refuse to reconsider its

conclusion that a reasonable person in Sobnam’s position would not fear

persecution if returned to Bangladesh. We are sympathetic to Sobnam’s

arguments and we may have come to a different conclusion had we evaluated the

evidence in the first instance. We are constrained, however, by the Supreme

Court’s command that we may not reverse a decision of the Board unless we find

that the BIA abused its expansive discretion. See INS v. Doherty, 502 U.S. 314,

322-24 (1992); INS v. Abudu, 485 U.S. 94, 107-110 (1988).

The Board did not abuse its discretion by declining to reopen proceedings to

consider the 2001 reelection of the BNP, nor did it abuse its discretion by declining to

reconsider the nature of the SPA warrant. Sobnam’s petition for review of the Board’s

denial of her Motion to Reopen and Reconsider is DENIED.