Lulseged DHINE, Petitioner-Appellee-Cross-Appellant, v. William SLATTERY, District Director, New York District, Immigration & Naturalization Service, Respondent-Appellant-Cross-Appellee.
Nos. 1986, 2055, Dockets 93-2326, 93-2352.
United States Court of Appeals, Second Circuit.
Argued July 16, 1993. Decided Aug. 26, 1993.
3 F.3d 613
Diogenes P. Kekatos, New York City (Mary Jo White, U.S. Atty., S.D.N.Y., James A. O‘Brien, III, Sp. Asst. U.S. Atty., Gabriel W. Gorenstein, Asst. U.S. Atty., of counsel), for respondent-appellant-cross-appellee.
Before: MAHONEY, McLAUGHLIN and JACOBS, Circuit Judges.
JACOBS, Circuit Judge:
Following the denial of his application for asylum status, Lulseged Dhine successfully petitioned the United States District Court for the Southern District of New York (Haight, J.) for a writ of habeas corpus ordering the Immigration and Naturalization Service (“INS“) to grant Dhine political asylum. 818 F.Supp. 671 (1993). The INS appeals from the grant of the petition. Dhine cross-appeals the district court‘s ruling that, because Dhine had never “entered” the country as that term is defined under the immigration laws, he was not entitled to the procedural advantages of a deportation hearing and his status was therefore properly determined by the INS in an exclusion hearing. We conclude, as did the district court, that Dhine is subject to exclusion rather than deportation; however, because the district court erred in holding that the INS abused its discretion in denying asylum, we reverse the order of the district court.
FACTS
Dhine is an Ethiopian national and citizen who came to this country in 1978. At that time, Dhine was admitted as a “conditional refugee” pursuant to
In September 1990, while Dhine was apparently still serving the sentence for his most recent conviction, the INS took Dhine into custody and charged him as being excludable under
Dhine testified that, before he fled Ethiopia, he learned from neighbors that government officials killed his father, mother and brother because his father had refused to turn over his land and religious articles and to accept in return a book of sayings attributed to the late Chinese dictator Mao Tse-tung. Dhine testified that he then tried to escape the country, but was captured, beaten and jailed by the authorities. Dhine later made good his escape, by way of Sudan, Djibouti and France, and arrived in the United States under the sponsorship of a charitable organization.
In an oral decision rendered after the hearings, Immigration Judge Alan L. Page found that Dhine had a well-founded fear of persecution and was therefore eligible for asylum. The Immigration Judge nonetheless exercised discretion to deny Dhine‘s application chiefly on the ground of Dhine‘s criminal record:
Although I am satisfied that he has met this burden [as to a fear of persecution], as a matter of discretion I do not believe that he is entitled to [asylum]. He has no family in this country. His history of employment is totally uncorroborated. No tax returns were submitted. But most importantly, his criminal history is very severe and is a very adverse factor in this proceeding. As a matter of discretion, I will not grant him asylum.
The Immigration Judge also held that the INS need not withhold deportation or return to Ethiopia, regardless of any peril he may face there, because Dhine‘s convictions were for “serious crimes“, a determination that renders unavailable the protection of
The Board of Immigration Appeals (“BIA“) affirmed the Immigration Judge‘s decision on September 26, 1991, but remanded the case to the Immigration Judge for a finding as to whether Dhine‘s fear of persecution continued to be well founded in light of intervening events in Ethiopia, including the fall of the Mengistu regime, the airlift of thousands of Ethiopian Jews to Israel, and the installation of a new governing coalition that had promulgated a charter endorsing basic human rights. The BIA also held that Dhine was not eligible for protection under
On the appeal following remand, the BIA affirmed but did so principally on different grounds. In its March 17, 1992 decision, the BIA held that the change of regime in Ethiopia required Dhine to make a new showing that he would face persecution if he were returned, but that Dhine “offered no documentary or testimonial evidence that the present government of Ethiopia has persecuted Jews.” In addition, relying on a State Department publication, the BIA noted that the government of Ethiopia now espoused freedom of religion and was currently allowing free passage to Israel for Jews wishing to leave Ethiopia. In light of this evidence, the BIA ruled that, discretionary considerations aside, Dhine had failed to show that he was eligible for asylum. In the alternative, the BIA decided that it “would not grant asylum in the exercise of discretion even if [Dhine] established a well-founded fear of persecution.”
The BIA also considered whether Dhine was entitled to withholding of deportation or return, under
The petition for a writ of habeas corpus was filed on March 20, 1992. Dhine argued to the district court that he was eligible for asylum; that the BIA erred in holding otherwise; that the BIA had wrongly placed upon Dhine the burden of showing continued persecution of Jews under the new Ethiopian government; and that it was an abuse of discretion for the Attorney General to deny asylum. Dhine also contended that, in any event, he was entitled to have his application for asylum evaluated in a deportation proceeding, which is procedurally more advantageous to the alien than an exclusion proceeding. The district court held that the INS had properly conducted its proceeding as one for exclusion (rather than deportation), but granted Dhine‘s petition nevertheless. The district court reasoned that the BIA erred in placing on Dhine the burden of proof as to his risk of religious persecution in post-Mengistu Ethiopia, that the BIA therefore erroneously relied upon changed circumstances to decide that Dhine was no longer a refugee from religious persecution, and that denial of asylum solely on the basis of several misdemeanor convictions is an abuse of discretion. Accordingly, the district court ordered the INS to grant Dhine asylum and release him from custody. This appeal and cross-appeal followed.
We agree with the district court that Dhine‘s immigration status is the appropriate subject of an exclusion hearing, but we reverse the district court‘s grant of the writ because we conclude that the BIA did not abuse its broad discretion in denying Dhine‘s application for asylum.
DISCUSSION
Since we are in the same position as the district court to evaluate the evidentiary findings and legal conclusions of the BIA, our review of the district court‘s grant of habeas corpus is conducted de novo. See Anderson v. McElroy, 953 F.2d 803, 805 (2d Cir.1992).
Exclusion or deportation
Dhine‘s cross-appeal raises the issue of whether his status should have been resolved in a deportation hearing rather than in an exclusion hearing. The INS originally commenced deportation proceedings against Dhine in 1988. Those proceedings were terminated in September 1990, when the INS commenced exclusion proceedings pursuant to
Both of Dhine‘s arguments are based on
[a]ny alien who conditionally entered the United States as a refugee, pursuant to Subsection (a)(7) of this section, whose conditional entry has not been terminated by the Attorney General ..., who has been in the United States for at least two years, and who has not acquired permanent residence shall forthwith return or be returned to the custody of the Immigration and Naturalization Service and shall thereupon be inspected and examined for admission into the United States.
Dhine never presented himself to the INS for such an inspection, nor did the INS take him into custody for that purpose. Dhine‘s first contention is that his failure to appear after two years is the functional equivalent of his having evaded inspection at a border, and that he thereby “entered” the country when the conditional character of his entry lapsed after two years. We see nothing in the statute which suggests that Dhine‘s failure to appear for inspection two years after his arrival confers upon him advantages he might, but would not necessarily, have achieved if he had actually appeared.
Dhine‘s second argument is that the INS is estopped from asserting that he never entered the country, because he went to INS offices five times for various purposes including visa renewal (once within two years of his arrival, and four times thereafter), and the INS did not conduct an inspection. According to Dhine, the INS‘s failure to conduct the required inspection impliedly and wrongfully assured Dhine that his immigration status was in order. We have recognized that in truly extraordinary cases the government may be estopped in immigration cases. In Corniel-Rodriguez v. INS, 532 F.2d 301, 306-07 (2d Cir.1976), we held that the INS was estopped from deporting the petitioner because the INS had failed to give a warning that it was required to give by its own regulations. As we noted in Scime v. Bowen, 822 F.2d 7 (2d Cir.1987), our opinion in Goldberg v. Weinberger, 546 F.2d 477 (2d Cir.1976), cert. denied, 431 U.S. 937, 97 S.Ct. 2648, 53 L.Ed.2d 255 (1977), confined the holding of Corniel-Rodriguez to its facts, “particularly the immigration official‘s failure to provide petitioner with a warning mandated by federal regulation.” 822 F.2d at 9. The circumstances cited by Dhine do not begin to justify estoppel against the government. See INS v. Miranda, 459 U.S. 14, 18-19, 103 S.Ct. 281, 283-284, 74 L.Ed.2d 12 (1982) (unexplained delay in processing does not give rise to estoppel). He does not claim that the INS failed to give a legally mandated notification.
Dhine‘s claim for asylum
In order to qualify for asylum, Dhine must meet two requirements. First, Dhine must satisfy the statutory test for eligibility by showing that he is a “refugee“: a person who is unable or unwilling to return to his native country because of past “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”
On appeal, the INS does not challenge the district court‘s first conclusion, i.e., that Dhine was a refugee. The INS argues instead that the BIA acted within its discretion in denying Dhine‘s application for asylum because the change of regime in Ethiopia eroded the ground on which Dhine‘s fear of persecution was founded and because he had a record of drug related convictions. Dhine protests that the government has not appealed the district court‘s determination that Dhine is a refugee, and that its failure to do so means that the government cannot now challenge the district court‘s conclusion that Dhine faces persecution. Since fear of persecution is a consideration that the Attorney General may consider in exercising discretion, and since the district court‘s ruling with respect to that exercise of discretion is the subject of the government‘s appeal, fear of persecution is an issue preserved for appeal. We may therefore consider whether the district court erred in disregarding the BIA determination that Dhine‘s claimed fear of persecution was not well founded.
We need not determine, however, whether the district court‘s rejection of the State Department report was sound, nor need we remand for the Immigration Judge to address that issue, because the Attorney General has statutory discretion to deny Dhine asylum even if his expressed fear of persecution is well founded, and because the BIA has plainly stated “that we would not grant asylum in the exercise of discretion even if the applicant established a well-founded fear of persecution.”
The district court concluded that, in light of the totality of the circumstances (including Dhine‘s well-founded fear of persecution), the BIA‘s denial of Dhine‘s application for asylum was an abuse of discretion. Specifically, the district court questioned the administrative conclusion that Dhine‘s drug history overwhelms certain “positive factors“: Dhine‘s accomplishments as a linguist, his religious faith, his exemplary conduct while in INS custody, and offers of employment and other assistance upon his release from custody. We reverse because, even if Dhine established a well-founded fear of persecution, it would be within the Attorney General‘s discretion to rely on his criminal record in order to deny his application for asylum.
The “INS is the agency primarily charged by Congress to implement the public policy underlying these laws ... Appropriate deference must be accorded its decisions.” INS v. Miranda, 459 U.S. 14, 19, 103 S.Ct. 281, 284, 74 L.Ed.2d 12 (1982). The Supreme Court has cautioned against “improvidently encroach[ing] on the authority which the [Immigration and Nationality] Act confers on the Attorney General and his delegates.” INS v. Jong Ha Wang, 450 U.S. 139, 144, 101 S.Ct. 1027, 1031, 67 L.Ed.2d 123 (1981) (per curiam). Thus, we are obliged to uphold the INS‘s decision unless it is an abuse of discretion. See Saleh v. United States Dep‘t of Justice, 962 F.2d 234, 238 (2d Cir.1992). We need only decide whether or not the INS considered the appropriate factors and came to a decision that has any rational basis. See Vergara-Molina v. INS, 956 F.2d 682, 684-85 (7th Cir.1992).
Dhine points to a number of factors that he contends the INS failed to consider in evaluating his application for asylum, such as his record as a model prisoner while detained by the INS, including his volunteer service as a translator, his contributions to charity, and his abstention from drugs. However, the BIA‘s decision explicitly considers these factors, and others advanced by Dhine, and finds that they do not outweigh the criminal convictions. That exercise of discretion cannot be deemed irrational.
CONCLUSION
We have examined all other arguments advanced by Dhine on this appeal and find them lacking in merit. Accordingly, we reverse the district court‘s decision to the extent that it ordered the INS to grant Dhine asylum and to release him from custody.