*1 299 court, B. Financial Institution Fraud MAND to the district pro- for further ceedings in opinion. accordance with alleges that Crowe certain monies Henry’s actually bank accounts be one him;
longed specifically, he asserts
Henry merely holding “in was those funds claims, therefore, him.
trust” for Crowe Henry
when wrote checks the funds he Crowe, holding for finan committed institution For a claim of finan
cial fraud. succeed,
cial institution fraud to it must be alleged exposed established that the acts MIKHAEL, Petitioner, Hekmat Wadih loss, i.e., custodial bank “to the risk of v. liability.” Briggs, civil v. United States (5th Cir.1992) 10, (citing 12-13 AND United IMMIGRATION (5th Lemons, SERVICE, States 315-316 NATURALIZATION Cir.1991)), denied, Respondent. cert. U.S. (1993);
S.Ct. L.Ed.2d 163 sеe also No. 95-60581. Holley, United States v. denied, Cir.), cert. 513 U.S. 115 S.Ct. Appeals, United States Court of 635, 130 (1994), denied, L.Ed.2d 542 and cert. Fifth Circuit. 737, 130 513 U.S. S.Ct. L.Ed.2d 639 June (1995). explain Crowe has failed to how Henry, writing checks on a bank account name, Henry’s exposed could have liability.
custodial bank to The district court
correctly plaintiff presented ruled that had
no evidence to a finding of financial predicate
institution fraud as a act for RICO
liability. Nonetheless, because the evidence mail and wire fraud is sufficient to estab pattern racketeering activity,
lish
grant summary judgment as to the under
lying RICO claim will be reversed. Firm, against
C. Claims the Law
Partners, and Continental
The district court dismissed the claims firm,
against partners, the law and the company,
firm’s insurance because
Henry’s necessary RICO violation is a pre-
requisite liability par- to the of these violation,
ties. “Without [a RICO] there can aiding, abetting, liability.”
be no or vicarious Ruling Judgment
Memorandum at 11. grant
Inasmuch as we reverse the of sum-
mary judgment underlying on the vio- RICO
lation, summary we also reverse the
judgment on these related claims.
IV. CONCLUSION reasons, foregoing
For the we REVERSE judgment of the district RE- court and *2 POLITZ, Judge, and
Before
Chief
STEWART,
EMILIO M. GARZA and
Judges.
Circuit
STEWART,
Judge:
Circuit
(“Mikhael”) ap-
Hekmat Wadih Mikhael
*3
peals
Immigration Aрpeals’
the Board of
(“BIA”
Board”)
or “the
affirmance of
(“U”)
Immigration Judge’s
ap-
denial of his
plication
withholding
and
of de-
After a
portation.
careful review of the rec-
ord,
counsel,
arguments
the briefs and the
we VACATE the decision of the BIA and
REMAND with instructions to reconsider
deporta-
Mikhael’s
and
requests.
tion
BACKGROUND1
Mikhael is
Greek-Orthodox Christian
who
in
citizen
was born
Sierra
Lebanese
Africa,
Leone,
family
In
his
Tripoli,
to
from Sierra
moved
Lebanon
year,
Leone. That same
the Lebanese civil
years,
Mik-
subsequent
war started.
family
mаny
through
hael
suffered
violent
politi-
religious
incidents related
their
and
father was
cal beliefs.
Mikhael’s
by Syrian
kidnaped
and held for two
radicals
days
three
before
release. Mikhael
or
his
kidnaped
that his
was
be-
testified
father
British
Also
cause he was
and a Christian.
time,
during
family
car was stolen
was
and burned.
and their house
bombed
Orleans, LA,
Adams,
Perrill
New
Thomas
incidents,
family
Following these
Mikhael
Flynn,
Tippett,
Ann H.
David Edward
Jeri
Beirut,
Tripoli
from
East
moved
Christian
Associates,
LA,
Flynn
Rouge,
&
Baton
family
the Mikhael
considered to be
which
petitioner.
Triрoli.
Mikha-
safer
brother,
George, was shot
el’s older
Reno,
Janet
Office of the United States
way
on his
school. In
leg Muslims
from
General,
Division, Appellate
Civil
brother,
Michael,
kidnaped
was
another
Staff,
DC,
Smiley,
Washington,
Estelle
Joan
days
held for several
Palestinians.
Cho,
Director,
Bombough,
L.
S.
Robert
Susie
detention,
days of
Michael
During the
Washing-
Immigration Litigation,
Office
Mikhael
tortured with electric shocks.
was
Director,
ton, DC,
B.
Caplinger,
John
Z.
kidnaped
that his
was
be-
testified
brother
Service,
Immigration and Naturalization
active in
factiоn
cause he was
Orleans, LA,
respondent.
New
Thereafter, fearing
Phalange.
known as the
lives,
father sent
for his sons’
country.
George and Michael
of the
out
(news-
replete
presence
part
Syrian
but a
record is
with information
Lebanon is
1. The
articles, affidavits,
foreign
paper
government
af-
Syrians remain
in Lebanon or whether the
strife
brochures, etc.)
varying
concerning
de-
fairs
throughout
a dominant threat
all Christians
grees of strife in Mikhael’s homeland of Lebanon.
country.
parties
disagree
vehemently
over whеther
The
(“OSC”), charging
are now United States citi- Order to Show Cause
Mik-
Both brothers
zens,
immediate fami-
deportable
Immigration
as is some of Mikhael’s
hael as
under
(“INA”
Act”)
ly-
Nationality Act
or “the
section
241(a)(l)(C)(I),
entitled Failed Maintain or
hand,
Mikhael, on
other
was not sent
Comply with the Conditions of Nonimmi-
country
until
when he en-
out
grant Status. The OSC was later amended
on a student visa to
tered the United States
charging
being deporta-
also
Mikhael with
college in Louisiana.
attend
241(a)(2)(A)(I)
ble under section
of the INA
country,
prior
being
sent out of the
Deрortation
proceedings
commenced on
by Syrians for
detained
three
12, 1994,
April
July
and were continued. On
contends that he was ac-
hours. Mikhael
13, 1994,
charges
Mikhael admitted the
Phalangist, probably
be-
cused
deportability
designated
conceded
and the IJ
previously attended several
cause he had
country
deportation;
Lebanon as the
how-
meetings
by Phalange
During
leader.
led
*4
ever, because Mikhael’s conviction
detainment,
Syrians
him
the
assaulted
the
final and his U.S. citizen wife had filed INS
forehead, from which
gun
with а
across his
petition
form 1-130
for Alien Relative on his
Thereafter,
permanent sear.
in
he carries a
behalf,
adjourned
proceedings.
the IJ
the
1988,
father
him to
December
Mikhael’s
sent
3, 1995,
Finally,
deportation
on March
nonimmigrant
the United States as a
student
Oakdale,
hearing
in
was conducted
Louisiana.
college.
in order to attend
21,1995,
On March
the IJ issued his decision
January
Mikhael enrolled as a
denying
application
and order
Mikhael’s
University
student at
of Southwestern
the
asylum, withholding
deportation,
and waiv-
(“USL”) Lafayette. During
Louisiana
in
two
15,1995,
deportation.
May
er of
On
Mikhael
breaks,
depart-
school Christmas
different
timely appeal
Septem-
filed a
to the BLA On
family.
ed for Lebanon to visit with
On
1, 1995,
ber
BIA
the
dismissed Mikhael’s
Lebanon,
trip
Mikhael’s first
back to
he was
appeal
one-paragraph
opin-
in a
Per Curiam
airport
detained at the Beirut
for 45 minutes
timely petition
ion. This
for review followed.
by Syrian
officials. To avoid
detained
again by Syrians,
departed
Mikhael
for the
STANDARD OF REVIEW
United States from the Christian controlled
findings
We review factual
of the
pоrt
trip
of Jouneh. On his second
back to
they
supported by
Board to
if
determine
are
Christmas,
following
Lebanon the
Mikhael
substantial evidence in the record.
INS v.
entirely through
port
traveled
of Jouneh
Elias-Zacarias,
478, 481,
502 U.S.
112 S.Ct.
and was not detained either time. Since
(1992).
812, 815,
On and review the IJ’s decision. v. (“INS”) Naturalization Services issued asylum application, Mikhael In his assert-
DISCUSSION to relief because of ed was entitled through methods “provide[s] The two Act (1) (2) past persecution, and well founded alien who deportable which an otherwise based on his reli- future persecuted will be claims that he she Thus, gious pri- and beliefs. our 1) asy- These are deported can seek relief. mary concern in this case is the IJ’s consid- 2) lum, deportation.” of both of claims. eration Cardoza-Fonseca, 480 U.S. INS (1987). Here, 94 L.Ed.2d S.Ct. Credibility. A Mikhael’s was denied both. applied Mikhael appeal, specifically challenged On separately. We will review each claim determination, credibility the IJ’s adverse however, specifically the BIA declined to ad- I. ASYLUM BIA credibility The dress issue. stated 208 of the Immi Pursuant section Immigration specifically find “as we Act, Attorney Nationality gration Judge correctly issues addressed all other authority has the General credibility appeal, raised on the decision deter who General alien Judge Immigration affirmed based according to the defini mines to be a and for forth in that all reasons set 101(a)(42)(A) Act provided by tion review, After a de novo decision.” (1996). 1101(a)(42)(A) (“§ 101”), 8 U.S.C. alternative determination affirmed the IJ’s *5 refugee of a is purpose For the accepted respon- “that even had he the [IJ] credible, testimony dent’s as it would not to, unwilling who is to return person respondent’s eligibility have established the unwilling to avail himself or is deportation.” or of of, country protection herself Thus, credibility issue, because is not we persecution “or” a founded because of well need review IJ’s decision to race, account of fear of on thе factual and extent decision addresses par religion, nationality, membership in a predicate upon which it found Mikhael legal political opin group, or ticular social ineligible asylum. ion. ... 101(a)(42)(A) INA, 8 U.S.C.
Section
B. Past Persecution.
added).
1101(a)(42)(A)
More
(emphasis
§
over,
disjunctive,
argues
and other
101,
§
allows
Mikhael
written in the
family
of an
of his immediate
have been
a finder
fact to make a determination
members
of
religious
persecution2
past persecution
for their
refugee
victims
alien’s
status
either
by
Syrians
persecution is
and Muslims and he
beliefs
or
well-founded fear
its
returning
to Lebanon because of
merely
as
fearful
shown.
classified
by
Syrians.
automatically grant
Before the
refugee
takeover
does
court, Mikhael maintains
provision-stat
is a
and before this
asylum.
alien
Section 208
i.e.,
that,
having
past persecution,
allows the
established
precatory language,
ed
it
asy
presumption
a well-
was entitled to the
the discretion to
General
208,
future
accorded
8 founded fear of
refugees.
lum to
INA section
208.13(b)(1).3
1158(a);
by
§
He аsserts er
Castillo-Rodriguez v.
8 C.F.R.
§
U.S.C.
him to
by
finding
in not
be
ror
F.3d 579
Abdel-Masieh v.
2.
has been defined as:
Persecution
harm,
Laipenieks,
gov-
Cir.1996)(quoting
18 & N
suffering
Matter
I
or
trader
The infliction
sanction,
433,
(BIA 1983) (citations
persons
upon
who differ in
ernment
omit
Dec.
456-457
race,
way regarded
(e.g.,
reli-
a
gion,
as offensive
ted)).
etc.),
opinion,
con-
manner
governments. The harm
demned
civilized
208.13(b)(1)
pertinent part:
8 C.F.R.
states
physical,
may
suffering
take
or
need not be
but
applicant
it is
that the
has estab-
“If
determined
forms,
imposition
such
other
of
as the deliberate
presumеd
past
persecution, he shall be
lished
disadvantage
depri-
economic
severe
...”
have
fear of
well-founded
food, housing,
liberty,
employment or
vation of
added.)
(Emphasis
other essentials
life.
past persecution.
personal suffering
on the basis
tained based on
alone or
Moreover,
argument, he
personal
at oral
asserted that
based on a
combination
and fami-
finding
make a
ly
the IJ failed to
on his
suffering.
even
past persecution
In
claim.
of his
Under the
stan
substantial evidence
past
presented
Mikhael
applicable
asy
dard
to review denials of
following
evidence:
lum, we must
to the BIA’s
defer
factual
(1)
In
home
his
was bombed and
findings
compelling
unless the evidence is so
destroyed
family
car
was sto-
that no reasonable fact finder could fail to
len.
disagreement
Any
might
find otherwise.
we
(2)
In
kidnaped by
his father was
appraisal
have with the
facts is
Syrian
radicals and held for
or 3
ground
not a sufficient
for reversal. Al
days.
though a reasonable factfinder could have
(3)
brother,
Around
his older
found these
incidents sufficient
establish
George,
leg by
in the
was shot
Muslims
past persecution,
we do
believe that a
way
on
from
his
home
school.
compelled
factfinder would be
to do so.
(4)
brother, Michael,
his
was kid-
facts,
On the basis of the above-discussed
naped
days by
and tortured for several
we
are constrained
standard of
our
review
Palestinians.
presented
conclude that
has not
Mikhael
(5)
he was detained for three
compelling
evidence so
that no reasonable
by Syrians.
hours and assaulted
factfinder could fail to find otherwise. Ac-
(6)
Syrian
he was detained
cordingly,
affirm
regard-
we
the BIA’s order
airport
officials at Beirut
for 45 min-
ing past persecution.
utes.
rejected
Essentially,
the IJ
C. Well-Founded Fear
Persecution.
persecution claim on the basis that each of
Despite
finding
easily
outlined incidents could be
an adverse
attrib-
claims,
past persecution
country
uted
the civil
during
unrest
could still
*6
asylum
wartime. The
found that
succeed on
IJ
these occur-
his
claim based on a
rences
possesses
were more related to the
demоnstration that
‘Violent
he
a well-
nature of
[civil
war
founded fear
persecution.
Lebanon]
[the
than
In the instant
case,
being specifically targeted
perse-
alien’s]
persecution
Mikhael’s
fear of
asserted
cution.” Additionally, the IJ
religious
political
noted that Mik-
is based on
grounds.
and
family
hael’s
prove
had remained in Lebanon
To
persecution,
even
a
fear
well-founded
they experienced
after
alleged persecu-
their
Mikhael must show
a
person
that
reasonable
tion. In
findings,
of the IJ’s
the sаme
perse
INS
circumstances would fear
cites
rejected
INS,
several cases which have
deported.
cution if
Jukic v.
40 F.3d
(5th
past persecution
claims of
Cir.1994);
under circum-
749
Castillo-Rodriguez,
longer detention,
involving
stances
requirement
more
929 F.2d at
se-
184. This
has both
punishment
greater
subjective
vere
inflicted or
depriva-
objective component.
and an
Mikhael,
contrast,
words,
tion.4
by
any
does not cite
other
subjec
Mikhael’s assertion of a
authority analogous to his situation
tive
persecution
where
fear оf future
must also be
past persecution
Jukic,
claims of
objectively
have been sus-
40
reasonable.
F.3d at
INS,
(5th Cir.1994)
4. See
7
who
Ozdemir v.
was chased and
at
shot
soldiers and
(holding
ransacked);
INS,
past persecution
Kapcia
alien did not suffer
whose home was
v.
944
opinion
Cir.1991)
political
(10th
based on his
(finding
when he was de
F.2d
no
days, questioned
persecution
par
tained for three
petitioner
about his
where one
was arrested
times,
times,
ticipation
organizations,
once,
in terrorist
and beaten
four
detained three
beаten
his
feet);
INS,
on the soles of his
Prasad v.
adversely
house was searched and he was treated
(9th Cir.1995) (holding
work,
persecuted
alien
at
petitioner
not
and another
was twice de-
jail
beaten,
interrogated
where he was
cell
days,
taken to
and detained for
tained for two
and
his
hours,
searched,
during
parents’
close to six
which time
assigned
he was
house was
he was
beliefs, beaten,
tasks,
interrogated
into,
poor
about his
work
his
locker
broken
he
kicked);
v.
job,
subsequently
Sivaainkaran
5. After
administrative notice of Lebanon's
but
war,
"possibility.”
twenty year history
Id.
of civil
civil
sonable
unrest and
violence,
opined:
the
other acts of
584-85; Jukic,
Abdel-Masieh,
at
7. See
history of
recent
violence
Lebanon’s
749;
189;
Rojas,
F.2d at
Castillo-
40 F.3d at
change Respondent’s
proof.
not
burden of
does
Rodriguez,
at 184.
prove
must
that would be
to
He
still
he
persecution
deported.
if
peti-
Castillo-Rodriguez,
8.
the court denied
by finding
request
asylum
that a
tioner's
for
Cardoza-Fonseca, the Court stated that one
6.
pеtitioner’s position
person
reasonable
in the
certainly
fear
an
can
have well-founded
of
perse-
had well-founded fear of
would not have
happening
than
event
even if there is less
a 50%
based
F.2d at 185. This denial was
cution. 929
occurring.
of
480 U.S. at
chance
the event
petitioner's alleged
of
fear
on facts that showed
say,
It went on to
“there
dard never arguably erroneous standard DEPORTATION. complexion changed the evidence summarily The IJ concluded that We, however, opinion presented. no harbor provide based on Mikhaers failure to suffi as to can sustain his burden whether Mikhael asylum, granted cient evidence to be he also proof under the correct statement required fell short evidence for with Nonetheless, charged we with law. are en- deportation. asylum holding of Unlike suring exper- BIA has its that the exercised cases, deportation withholding pur for Abdel-Masieh, hearing tise in a case. See 73 poses, discretionary the Act confers no au (reversing F.3d at decision thority Attorney Upon satis General. (BIA) holding that its decision must reflect requirements withholding faction for meaningful sub- consideration relevant deportation, General “shall” supporting stantial alien’s evidence deportation. 243(h)(1), § INA withhold Sanon, claim); 52 F.3d at than 651. Rather 1253(h)(1). addition, though U.S.C. error, adoptеd BIA correct the IJ’s together, for reviewed claim is a except credibility IJ’s for the de- decision— remedy withholding distinct than a claim for gave boilerplate stamp terminations —and its deportation. Bahramnia Thus, approval. necessarily it that follows proof The level of adopted applica- the BIA the IJ’s erroneous required satisfy requirements for with tion of law. we do not require While holding deportation stringent is more lengthy explain BIA to write a discourse to Here, asylum purposes.10 for the standard decisions, its the BIA must assure its requires petitioner prob to show “clear all adopting findings order of the IJ’s ability” persecuted that he or she will be if appli- of fact is infected erroneous deported. Castillo-Rodriguez, 929 F.2d at cation of the IJ. If law had result, many deportation 185. As cases IJ’s disclaimed the erroneous statement of that have found evidence sufficient the burden of as it did with the IJ’s asylum purposes summarily have dismissed findings, credibility an inde- articulated requests deportation. for withholding of pendent assessment of the evidenсe under However, because we remand the ease to the standard, the correct our re- review would BIA make a determination Mikhael’s flect the substantial deference the BIA request based on his of a well- contemplate. that the and our statutes cases founded fear we also remand eligible to the BIA to decide Mikhael is Although compounded the BIA the IJ’s deportation. error, we are nonetheless to re- reluctant verse decision the BIA’s CONCLUSION request asylum. agency “Where an has comply resрonsibilities, failed to with its we We affirm the BIA’s conclusion Mik- compliance its should insist on rather than not a hael is on the basis of *8 Sanon, however, attempt supplement persecution. hold, its efforts.” We that 52 adopting F.3d at 652. We make no determination erred the IJ’s decision re- claim, of garding persecution the merits Mikhael’s but because well-founded fear error, we are applied convinced we are claim where IJ incorrect proof. Accordingly, constrained remand the BIA this ease to standard we rеmand proceedings. for further Accordingly, light we va- for the BIA to claim in reconsider this Additionally, cate the for fur- BIA’s decision and remand of the entire record. we re- ther proceedings proper withholding deportation under the standard mand the 10. See, INS, well); e.g., Castillo-Rodriguez, 340 Prasad as Cir.1995) (holding ineligi- petitioner that since is (same). F.2d at 185 necessarily ineligible ble for he is then satisfy asylum claim violence in his burden to after the Lebanon for reconsideration persecu- BIA must articu- show well founded fear determined. The has been future tion, especially light changed in cir- any rulings it makes. the reasons for late country. in cumstances that The IJ was deportation is BIA’s order of VACAT- The fact, pronouncement. in correct ED, REMANDED to the and the case is majority finding affirms the IJ’s that because consistent herewith. BIA for reconsideration past history Mikhael failed to demonstrate AND REMANDED. VACATED may pre- not benefit from sumption persecution. of future GARZA, Judge, EMILIO M. Circuit majority The further cites the IJ’s state- dissenting: that: ment that, agree majority qualify I with the Respondent must that he will be show the “wеll-founded fear of as a under persecuted on one of the five enumerated 101(a)(42)(A), § prong of INA persecution” grounds. allegations His unsubstantiated 1101(a)(42)(A), § an alien need not U.S.C. to a [do] not amount well-founded fear probability demonstrate clear persecution deported; if Again, places when one this statement instead, only genuine the alien need show context, it becomes clear that the not IJ did subjective persecution and that fear of future apply a different standard of than that persоn in the same circum- a reasonable explicitly The statement follows articulated. persecution deported. if stances would fear pronouncement IJ’s that “civil unrest is Moreover, that, agree applied I had the IJ ground proving persecu- proper not a proof, standard of its decision the stricter Clearly, tion.” the IJ meant to state appli- reversed and remanded for should be that, in order to show a founded fear of well proper cation of the standard to the facts. persecution persecution, such must be “on However, respectfully disagree I that the race, religion, nationality, mem- account of applied the stricter standard this case. IJ bership particular group, politi- in a social explicitly correctly The IJ stated the general opinion,” cal due to civil strife. not legal proof: proper standard of 101(a)(42)(A), § INA U.S.C. An alien has a well-founded fear a rea- 1101(a)(42)(A). This is a correct statement person in sonable the same circumstances law. Bevc v. perseсution.... Even if the would fear (7th Cir.1995); Limsico v. clearly chance of is less probable, person may still reasonable explicitly set forth the Where the IJ has persecution.... an alien fear proper proof, presume we should standard that is must his fear did, fact, that the follow standard objectively subjectively genuine and both convincing unless there is evidence to reasonable. contrary, lacking I here. The evidence find Nothing in the IJ’s decision indicates that he finding persecu- IJ’s that Mikhael’s express did not follow this articulаtion generally tion stems from harsh conditions specifically, applicable legal standard. More Lebanon, targeted per- not and civil strife in stray majority, remarks cited of his or reli- secution the basis .on context, placed when do demonstrate beliefs, gious supported the evidence. proba- applied stricter “clear that the IJ Therefore, grounds reversal. I discern no bility” standard. respectfully I dissent. majority The cites the IJ’s statement history does “Lebanon’s recent of violence proof. change Respondent’s burden of
He must still deported.” When taken
context, it is clear that the IJ meant history may rely
that Mikhael