Morteza Seyed Tarvand v. U.S. Immigration & Naturalization Service
937 F.2d 973
4th Cir.
1991
Check Treatment

*1 following Davis it obvious be National Guard would exemption for the TARVAND, Seyed Petitioner, Morteza B Certainly if the Class unconstitutional. similarly situated to the not plaintiffs were Guardsmen, oc- then no violation National & NATURALIZA U.S. IMMIGRATION curred, facts on record is barren of but the SERVICE, Respondent. TION assuming that the two point. Even similar, however, a reasonable are groups have concluded that official could state United States Court of constitutional. The record exemption was Fourth Circuit. except when National Guards- shows that of the are ordered into the service men Argued Jan. suppress pro- or to in order to riots state relief, compensated they are vide disaster 26, 1991. Decided June government pursuant to var- by the federal regulations. statutes ious federal the United paychecks

Their are drawn on state funds con- Treasury. States percent of only approximately one stituted compensation paid to personal services North Carolina. National Guardsmen immunity tax doc- intergovernmental The discriminatory tax treatment prohibits trine those government and of the federal govern- whom it deals. Since the federal plaintiffs B pays ment both the Class Guardsmen, argu- it is at least the National of those exemption that an for one able violation. groups creates no constitutional hold, deciding the that basis we without On claim, that Sec- constitutional merits of the immunity entitled to from retary Powers is plaintiffs’ B suit. Class V. allowing The ills that result from would damages against suits for state officials simply perform their official duties are who po- have the evident. Suits such as these tential to threaten the foundations our governmental functions—in this most basic case, of the revenue. Be- the collection plaintiffs’ rights asserted were

cause the clearly established and because Secre- tary reasonably enforcing acted Powers statutes, state we hold

presumptively valid immunity that she is entitled to from suit. judgment of the district court is there- REVERSED. *2 D.C.,

P.C., brief), peti- Washington, on tioner. Couvillon, Div., Anthony

Donald Civ. Justice, (Stuart argued M. Dept, of U.S. Gerson, Gen., Atty. Richard M. Ev- Asst. ans, Director, Immigration Asst. Office Justice, Div., Dept, of Litigation, Civ. brief), D.C., respon- Washington, dent. NIEMEYER, PHILLIPS and

Before BUTZNER, Judges, and Senior Circuit Judge. BUTZNER, Judge: Senior Circuit Sayed appeals final Morteza Tarvand Immigration Appeals order of Board (BIA) applications denying his for volun- tary departure, withholding of find that the decision sup- and that the ported substantial evidence deny voluntary departure is not discretion. We remand the an abuse of for reconsideration prescribed under the standard Matter of (1987). I. Mogharrabi, 19 & N.Dec. Iran, a citizen of first entered the United States 1974 on a visitor’s depart by When he failed to visa. admission, expiration period Tar- deportable was found and ordered to vand depart voluntarily by February 1976. depart for Canada until Tarvand Canada, joined March Association, circulated the Iranian Student leaflets, participated in demonstra- tions. Once had obtained United student Tarvand returned to States Alabama, attend school where contin- membership ued his in a branch of the organization. same Iranian student In 1978 or Tarvand returned to Teheran, shop, taught Iran. He ran a TV classes, participate in and continued to group, same student which was known in Iran “Masses of the Student Revolu- Yanni, tionary R. Organization.” helped Palma Law Offices of Jan M. Pederson, P.C., (Michael argued group A. Fracas- disseminate information and let si, Fracassi, shop. organization, Law Offices of Michael A. them meet in his The seeking court reversal of the initially supported Ayatollah which Khomeini, with the and voluntary later fell into disfavor departure. government Khomeini and disbanded. He seeks a remand to have his meetings its last at Tar- group asylum application held one of considered under *3 shop, although Tarvand did not proper vand’s TV standard. During meeting, the Revolu-

attend. tionary shop and arrested Guard raided Ill The authorities returned two students. deportation In proceedings, re we shop. Tar- day and closed the When next credibility findings view and factual under shop, building his vand returned to the substantial evidence standard but sub him of the raid. A student owner informed ject questions mixed of law and fact to de meeting at the told Tarvand that present INS, 76, Figeroa review. v. 886 F.2d novo inquired Revolutionary Guard had Cir.1989). (4th 78 We review the BIA’s name. him and had obtained his about decision on a for arrest, shop left his and Fearing Tarvand under substantial evidence early or November hid until late October Campos-Guardado standard. v. 1982, secretly into Paki- when he crossed 285, (5th 1987). Cir. We review stan. voluntary departure the denial Spain, where left Pakistan for Tarvand Cruz-Lopez abuse discretion. to the for another student visa 1518, 1522-23 rejected the consul United States. When eligibility In order to establish Mexico, application, his he traveled to deportation, an alien must successfully reapplied a stu- where he probability persecution” a “clear show dent visa and entered United States designated country, a based on one of expired in June his visa grounds five enumerated in 8 U.S.C. August in the Tarvand remained Stevic, 1253(h)(1). 467 U.S. § States and married an American United 2489, 2501, 81 L.Ed.2d 321 S.Ct. citizen, separated from whom he after liv- noted, (1984). As the “[A]n together ing for about two weeks. supported relief be [for must] establishing

II is more alien likely than not that would be charged In March subject persecution_” 467 U.S. at being deportable with under Section 429-30, added). (emphasis 104 S.Ct. 241(a)(2) Immigration of the and Nationali- immigration judge Both and (INA), 1251(a)(2). ty Act At the § application lacked noted that Tarvand’s deportation hearing July They pointed evidence. out that Tar- such deportability requested asy- conceded in the testimony about his activities vand’s lum, 1101(a)(42)(A), pursuant to 8 U.S.C. §§ suffi Iranian Student Association lacked 1158(a), withholding deportation, pursu- pro cient detail and that Tarvand 1253(h), voluntary ant to 8 U.S.C. or de- enough corroborating vide evidence. 1254(e)(1). parture, pursuant to 8 U.S.C. § therefore affirm the denial of support application, In of his Tarvand of- supported substantial testimony, fered his own two statements evidence. support testimony, by others background by Amnesty material written denying In International, documenting killing, tor- departure, immigration judge voluntary ture, gross rights human violations nega considered discussed that occur Iran. immigration history: past deporta tive his application, denied Tarvand’s and the BIA Spain to proceedings, tion his travels from affirmed. a and his Mexico to obtain student counsel, marriage citi represented by suspiciously-timed new to a U.S. timely petition BIA held that on this appeal, filed for review this zen. On at 1222 n. 31. The Court con- record, voluntary departure the denial fear with trasted the well-founded standard an abuse of discretion. not constitute did factors, stringent probability stan- find more clear we light of these adverse dard, stating certainly can have in the decision no abuse of discretion “[o]ne happening affirm. a well-founded fear of an event voluntary departure, and we there is less than a chance of

when 50% IV taking place.” 480 U.S. at occurrence empha- 107 S.Ct. at 1213. As the Court can demonstrate that If an alien sized, interpretation “a moderate “refugee” a “well-founded fear of is fear’ standard would indicate ‘wellfounded Attorney has the persecution,” the General long objective as an ‘that so situation *4 asylum. grant to the alien 8 discretion evidence, by the it need not be established 1158(a) (1988). Although Section U.S.C. § probably that the situation will shown INA, 101(a)(42) of persecution, enough it is that sult but 1101(a)(42), “refugee,” term defines the § ” possibility.’ persecution is a reasonable phrase does not define the the statute 440, (citation 107 at 1217 480 U.S. at S.Ct. persecution.” fear of “well-founded omitted). cases, long line BIA the immi- Citing a of readily apparent that It is Tarvand’s recently gration judge reasoned: “As noted plication asylum was evaluated under Immigration Appeals ... by the Board of wrong standard. As the INS notes on withholding asylum the standards brief, wrong page 10 of its standard meaningfully differ- of are not than the standard stricter Cardoza-Fonse and, practical application, converge. ent prescribes. Cruz-Lopez, also 802 ca See finding long has been the consistent of This (dictum). question But the F.2d at 1522 (cita- Immigration Appeals.” the Board of Tarvand is entitled to the remains whether omitted) To avoid dismissal of his tions remand that he seeks. asylum application Tarvand had to furnish support his withhold- evidence sufficient to ing of claim. He had to estab- V probability persecution, sup- lish a clear of reject The INS asserts that we should

ported by likely that it was more claim for reconsideration of the persecuted than not that he would be if he to ex- because he failed returned to Iran. Because he did not satis- administrative remedies. Tar- haust his fy requirement, this present attorney vand’s contends that a ruled that had not shown well-founded asylum question the BIA on was before persecution appli- fear and dismissed his certification. cation for attorney ap- Tarvand’s former filed the pending While be- peal day the BIA one late. He did not to specifical- brief, granted although submit a he was an ly rejected the standard for requested time file He extension of one. immigration judge employed. INS argument, oral which the BIA denied. Cardoza-Fonseca, 480 U.S. Furthermore, counsel did Tarvand’s former (1987). Although 94 L.Ed.2d 434 In- explicitly raise the issue. argued “that the Cardoza-Fonseca stead he contended that the denial of volun- only way applicant an can demonstrate tary departure was an abuse of discretion persecution’ ‘well-founded fear of is to ” depor- that the denial of prove probability persecution,’ a ‘clear contrary tation was to evidence that 480 at 107 S.Ct. at the Court U.S. probability persecution if showed a clear disagreed. It observed “the fact that returned to Iran. Tarvand was Congress prescribed has two different certainly implies standards the same Act The INS moved to dismiss the untimely. significantly that it intended them to have because it was It nevertheless meanings.” fully urging different n. once briefed appeal by pursuant of of the certification again that the standards 3.1(c). were the same. deportation and for C.F.R. In Re See No. BIA (BIA 7, 1990). A26 856 at 1 n. 1 Feb. ground that the claim jurisdiction When the BIA assumes cer tification, notice of was deficient. “may reach a ques meritorious presented by untimely tion an or otherwise opinion acknowl- BIA’s questionable appeal_” Garcia v. Bol asylum, it edged that Tarvand din, 1181 n. 17 Confining this issue. its did not address example, For in Matter Daca discussion to issues (1977), nay, 16 I. & N.Dec. immigra voluntary departure, it af- deportation and judge aliens, tion found two a husband and firmed the decision. wife, deportable. Although only the hus appellate One need not condone the defi- appealed, jurisdic band the BIA assumed former ciencies of Tarvand’s counsel certification, tion wife’s case preciate logic that there was a certain “[ijnasmuch as the Service and new counsel appeal. way phrased the notice though treat the wife had time, everybody At that involved in the also_” appealed 16 I. & N.Dec. at 239. immigration judge, case—the counsel for *5 the and and the BIA— asylum both for was the that the practically labored under mistaken belief procedurally the BIA before governed asylum same standards and with- through its exercise of certification. The holding deportation. Consequently, asylum INS treated appeal as an issue on argue there no need to the issue of was fully BIA the briefed it. Neverthe If asylum separately. the evidence did not less, neither BIA immigration the nor the justify withholding deportation, ap- the judge considered the under the plication asylum for was doomed. If the legal correct standard. When an alien’s justified withholding deporta- asylum erroneously has been tion, there was no need for Tarvand to by application evaluated of the standard matter, press practical aAs is remand appeal asylum the time the was filed the INS, appropriate. v. F.2d See Doe effectively claim was the BIA. This before (6th Cir.1989); 290-91 Perez-Alvarez v. relationship between the two issues was (1st 24-25 We dissolved, however, Supreme when the asylum appli remand therefore in Cardoza-Fonseca held that the light in cation for reconsideration of Mo standards differed. This decision was an- 445, which, 19 I. & N.Dec. at gharrabi, pend- nounced while Tarvand's was Cardoza-Fonseca, referring holds: Nevertheless, ing the BIA. BIA before the asylum applicant for has established “[A]n immigration judge’s did not correct the er- fear if he shows that a well-founded ror. person in his circumstances reasonable persecution.” would fear practical purposes for all the asylum in issue was subsumed the with- express opinion no about the merits holding issue before the asylum application. of Tarvand’s BIA, practicalities always carry do not AFFIRMED IN PART AND REMAND- day. quite right arguing is in The INS that ED. failure to exhaust administrative remedies precludes judicial review. NIEMEYER, Judge, dissenting: 1105a(c); Florez-De Solis (9th Cir.1986). brings This readily through I in I IV of concur Parts question procedurally, us to the whether majority opinion, respectfully I dis- but practically, asylum well as issue was findings sent from the contained Part V before the BIA. and the order of remand. Part V appeal majority opinion

Because Tarvand’s that notice of holds because untimely, jurisdiction (BIA) was Immigration Appeals assumed Board of majority opinion suggests that he opinion un- viewed may appealed not have issue process, “Tarvand’s der a certification was treated proof because of that issue practically and asylum was plication for substantially the same as that for withhold- It the BIA.” then con- procedurally before ing deportation. supposition While this the BIA considered cludes that by his careful delineation of the is- belied and re- incorrect standard issue under an listed on his notice of sues light the issue for reconsideration mands sought he nevertheless could have legal standard. of the correct review of the issue when he be- legal no issue with While take proof came aware its standard of was succinctly by the ma set out standards so BIA was different. While his to the proofs re varying jority opinion on pending transcript and even before a asy satisfying applications for quired for hearing before withholding deporta an order lum and for prepared, Supreme Court decided Car- tion, the record this case I find that That decision was filed on doza-Fonseca. issue was not shows that the later, five months on March 1987. Over BIA, that the BIA did not pealed to the 11, 1987, a tran- August Tarvand was sent rule on the consider or script proceedings before the immi- Moreover, us. if that it is not now before judge and that his gration advised brief had wished August At appeal was due on Supreme inter issue Court’s based time he was free to raise the issue vening presented by intervening INS Cardoza-Fonse ca, urge remand immi- 94 L.Ed.2d Court case to the 480 U.S. gration judge light of the decision. (1987) (establishing differing stan While he undertook to file two motions *6 proof depor for an of dards of brief, filing extensions of time for his (reasonable probability) asy and for tation file a brief on and he never failed to (a hap fear of an event lum well-founded sought to review the issue. there pening, even when is less than fifty-percent happening)), chance of its did file a Counsel for brief on every opportunity to do so but elected had urged which the correctness of the not to. sought dismissal issue and because initially sought by When peal day was one late. This brief was filed (1) (2) asylum, in 1986 well before Cardoza-Fonseca and alternative- though Even opinion was decided. (3) ly, voluntary departure. Because of the the BIA did not briefed the evidence, incredibility of much of Tarvand’s Choosing by-pass it. the issue consider manipulation obtaining his one-day appeal, late notice of of Tarvand’s ten-day marriage to a his United States the BIA decided his issues on the merits. citizen, immigration judge rejected all jurisdictional problem, To avoid a requests

three and ordered Tarvand’s de- to conduct its review under a certi- elected portation. 3.1(c). process. fication See 8 C.F.R. § fully supports The record discussing explic- the merits the BIA stated separate awareness of the forms of relief itly reaching that it was not him, reason, by available if no other issue which Tarvand had failed to raise. specific application describing his for each. Neverthe- After the three issues decided less, immigration judge, the BIA said: when the denied request, appealed only each two respondent has contested on [T]he (1) issues: the denial of the only judge’s immigration denial of his (2) voluntary departure, and the denial voluntary deportation. He no departure applications. took We will there- rulings issue with the on his only immigration review respondent’s judge’s denial GEE, Before WILLIAMS and pursuant sections quests relief HIGGINBOTHAM, 243(h) deportation] Judges. [withholding Act, 244(e) departure] [voluntary PER CURIAM: 1254(e), 1253(h) respec- 8 U.S.C. §§ added.) (Emphasis tively. AFFIRMED. Local Rule 47.6. Bell v. Hospital, Administration Veterans ap was not issue Because (5th Cir.1987). complaint F.2d 357 not considered by Tarvand and was pealed equal protection of the laws was BIA, authority to consid by the we have no not advanced to the trial court and cannot reviewing BIA’s decision. it when er be considered on from its order. See Farrokhi Cir.1990) raising a claim in an (by not AFFIRMED. generally an alien waives peal to the court). a federal right his to raise before case, respect

The facts in this both procedural aspects, do the merits and the injustice justify suggest an that would extraordinary departure from estab our provide principles of review to Tar- lished Moreover, relief. after Su vand this preme handed down Cardoza-Fonse America, UNITED STATES ca, in which to Tarvand had sufficient time Plaintiff-Appellee, before argue raise and issue I affirm the BIA the BIA. would therefore WILLIAMS, Clayton Wade ordering a remand. without Defendant-Appellant. respectfully dissent.

United States Court

Fifth Circuit.

July *7 WOOD, Plaintiff-Appellant, R. Norman SERVICE,

UNITED STATES POSTAL Defendant-Appellee.

Summary Calendar. United States Court Fifth Circuit. April 1989. April 1991. Certiorari Granted See 111 S.Ct. Arditti, Paso, Tex., plain- El Victor tiff-appellant. Greenberg, Atty., El

Mark M. Asst. Paso, Tex., defendant-appellee.