SALIM
(2) The applicant‘s deportation to Afghanistan is temporarily withheld pursuant to section 243(h) because that country is one of the countries to which the applicant may now be deported pursuant to section 237(a) of the Act,
(3) Applicant sufficiently established that he may be singled out for persecution in his native Afghanistan for opposing the ongoing Russian invasion and refusing to join the Soviet. controlled Afghan army in its war against the Afghan rebels opposing the invasion. State Department Bureau of Human Rights and Humanitarian Affairs (BHRHA) .opinion supporting the alien‘s persecution claim given significant weight.
(4) In close persecution cases such as those in which the State Department BHRHA agrees with the applicant‘s fears of persecution, the immigration judge should ordinarily consider the discretion aspects of the asylum application to avoid a remand solely on that issue.
BY: Milhollan, Chairman, Maniatis, Dunne, and Morris, Board Members. Concurring and Dissenting Opinion, Vacca.
The applicant‘s excludability under section 212(a)(19) and 212(a)(20) of the Act,
We agree with the applicant that he has established the requisite probability of persecution in Afghanistan.2 The applicant contended that he had been a member of the Mujahidin rebels in Kandahar and that two of his brothers have been arrested by the Soviet controlled Babrak regime for similar membership. Another brother was taken by Russian
The State Department BHRHA conclusion that the applicant would be persecuted is consistent with its report on Afghanistan in the 1981 Country Reports on Human Rights Practices at 929, 931, Joint Committees of the Senate and House of Representatives, 97th Congress, 1st Session (1981).3 The report emphasizes that due to mass desertion by Afghan soldiers who refuse to fight under Soviet command against their compatriots, the army resorts to dragooning and forcibly impressing into its forces men and boys as replacements. This clearly differs from persecution claims by aliens who merely seek to avoid military service in their country. See Kovac v. INS, 407 F.2d 102 (9 Cir. 1969). Under the facts of this case, we attach significant weight to the State Department‘s conclusion that this applicant would be persecuted if returned to Afghanistan. Consequently, we conclude that the applicant has established a well-founded fear of persecution despite the immigration judge‘s conclusion to the contrary. The immigration judge‘s specific finding that the applicant left Afghanistan for mere economic reasons (i.j. dec. p. 3) apparently stemmed from a misunderstanding of the applicant‘s testimony that he came to the United States seeking employment (Tr. p. 7). That statement was a repetition of his immediately preceding testimony that he left Pakistan because he could not support his family left behind in Afghanistan, while unemployed in Pakistan (Tr. p. 6). It was not an explanation of why he left Afghanistan.
Having concluded that the applicant established the requisite likelihood of persecution, a grant of temporary withholding of deportation to Afghanistan is required in this case pursuant to section 243(h) of the Act as amended by the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 (March 17, 1980). That section now specifies that “the Attorney General shall not deport or return any alien . . . to a country if the Attorney General determines that such alien‘s life or freedom would be threatened on account of . . . political opinion.” Under section 243(h) as drafted prior to the 1980 Amendment such relief was discretionary.4
This Board has not previously considered the exercise of discretion in asylum cases where it was found that the alien would be persecuted if returned to his native country. Until May 1979 neither immigration judges nor this Board addressed asylum claims, as jurisdiction to adjudicate asylum applications then lay exclusively with the District Directors. The immigration judges and this Board only had jurisdiction to consider applications for withholding of deportation under section 243(h). Effective May 19, 1979, however, the regulations gave authority to immigration judges and this Board to consider asylum applications made after the commencement or completion of deportation proceedings. See
The language in section 208(a) specifying the discretionary nature of asylum relief is clear, and since that section was enacted subsequent to the 1967 Protocol it controls over any conflicting language in the protocol under the applicable rules of statutory interpretation. Consequently, under the present statute an otherwise eligible5 alien whom the Attor
Section 243(h) relief is “country specific” and accordingly, the applicant here would be presently protected from deportation to Afghanistan pursuant to section 243(h). But that section would not prevent his exclusion and deportation to Pakistan or any other hospitable country under section 237(a) if that country will accept him.6 In contrast, asylum is a greater form of relief. When granted asylum the alien may be eligible to apply for adjustment of status to that of a lawful permanent resident pursuant to section 209 of the Act,
As stated above, the Board had never before considered a discretionary denial of asylum relief. However, the lack of direct precedents does not mean that useful guidelines are unavailable. For example,
Attempting entry into the United States by way of fraudulently obtained documentation has consistently been considered a strong negative discretionary factor. See Balami v. INS, 669 F.2d 1157 (6 Cir. 1982). This applicant is excludable under section 212(a)(19) of the Act. We note that section 212(a)(19) excludability would require a waiver pursuant to section 209(c),
A final issue remains in this case. At oral argument counsel for this applicant argues that if asylum is denied as a matter of discretion on the basis of the record before us, a remand for a further finding on the discretionary issue should be ordered. He contends that the applicant has been cooperating with United States authorities combating the growing use of the subterfuge of obtaining fraudulent passports to improperly obtain nonimmigrant visas abroad, fly into the United States and file asylum applications.
First, we note that no evidence has been offered to that effect. No government official recommends that his alleged cooperation be considered favorably in this asylum application so as to overcome the heavily negative factors in this case. In any event, attempting to enter the United States by using fraudulent documents is a felony pursuant to
We finally note that the record of unfavorable discretionary factors was unusually well documented in this case, and therefore, sufficiently ripe for our review. In close persecution cases, however, such as those in which the State Department BHRHA agrees with an applicant‘s fears of persecution, the immigration judge should ordinarily consider
ORDER: The appeal from the denial of asylum relief will be dismissed, the appeal from the denial of 243(h) relief to Afghanistan will be sustained and the motion to remand denied.
FURTHER ORDER: The applicant is excluded and deported to Pakistan.
FURTHER ORDER: The applicant‘s deportation to Afghanistan pursuant to sections 237(a)(2)(A) and (B) if the government of Pakistan refuses to accept his deportation to that country pursuant to section 237(a)(1), will be temporarily withheld as provided by section 243(h) of the Act.
CONCURRING AND DISSENTING OPINION: Fred W. Vacca, Board Member
I respectfully concur in part and dissent in part.
The immigration judge found the applicant excludable under section 212(a)(19) and (20) of the Immigration and Nationality Act,
The record reveals that the applicant is a 27-year-old native and citizen of Afghanistan who entered Pakistan in January of 1982 and resided there for less than one month. The applicant departed Pakistan and arrived in the United States on February 18, 1982. In support of his applications for asylum and withholding of deportation, the applicant testified at his hearing that he left Afghanistan because he is an anti-
A letter from the Bureau of Human Rights and Humanitarian Affairs, Department of State, dated March 12, 1982, is of record. That letter which was written at the request of the Immigration and Naturalization Service informs the reader that since the 1979 Soviet invasion of Afghanistan, more than three million Afghans fled into neighboring countries where they have obtained temporary refuge. The State Department letter contains no specific information relating to the applicant or his activities in Afghanistan. It did contain the opinion that the applicant has established a well-founded fear of persecution in Afghanistan. However, it is clear from a reading of the letter that this opinion was predicated upon the assumption that the information provided by the applicant in his application for asylum (Form I-589) is true. It does not appear that the opinion was based on specific, independent information known to the Department of State.
An applicant for asylum or withholding of deportation must show that, if deported, he would likely be subject to persecution based on his race, religion, nationality, membership in a particular social group, or political opinion. Section 208(a) of the Act. See section 243(h) of the Act; Matter of McMullen, 17 I&N Dec. 542 (BIA 1980), rev‘d on other grounds, 658 F.2d 1312 (9 Cir. 1981). An undocumented assertion or an apprehension which is purely subjective is not sufficient to support a persecution claim under the statute. An applicant must present objective evidence that he has a well-founded fear that he is likely to be singled out for persecution by government officials in the country of deportation. See McMullen v. INS, supra; Kashani v. INS, 547 F.2d 376 (7 Cir. 1977); Stevic v. Sava, 678 F.2d 401 (2 Cir. 1982); Matter of Chumpitazi, 16 I&N Dec. 629 (BIA 1978).
A letter of the Department of State relating to a persecution claim is admissible into evidence in these proceedings. Pereira-Diaz v. INS, 551 F.2d 1149 (9 Cir. 1977); Matter of Francois, 15 I&N Dec. 534 (BIA 1975). However, such letters are advisory in nature and not binding on the Board of Immigration Appeals. Matter of Exilus, 18 I&N Dec. 276 (BIA 1982). The weight to be accorded an advisory opinion will be determined by examining its probative quality. In this case, the advisory opinion contains no particularized information concerning the applicant or his activities in Afghanistan. The letter is also devoid of specific reasons for the opinion other than the expressed reliance on the assumption that the applicant‘s story is true. In view of these circumstances, I find that the advisory opinion has little or no probative value and, therefore, I choose not to rely upon it in my consideration of the applicant‘s claim for withholding of deportation. The reliance of the majority on the advisory opinion of the Department of State and the 1981 Country Reports on Human Rights Practices, Joint Committees of the Senate and House of Representatives, 97th Congress, 1st Session (1981)1 is, in my view, unwarranted in light of the generalized nature of the opinion and the report and the fact that the applicant has offered nothing more than a bare and unsubstantiated claim of persecution.
For the above reasons, I would find that the applicant has not met his burden of proof and would deny his applications for asylum and withholding of deportation. Accordingly, I would dismiss his appeal and deny his motion to remand the record of these proceedings.
Notes
Under section 7 of the Immigration and Nationality Act Amendments of 1981, Pub. L. 97-116, 95 Stat. 1611 (Dec. 29, 1981), Afghanistan is one of the countries to which the applicant may be deported pursuant to section 237(a) of the Act,
I note that the Country Reports on Human Rights Practices cited by the majority in its decision do not identify the applicant or relate specifically to the applicant or his activities in Afghanistan.(1) Any alien . . . arriving in the United States who is excluded shall be . . . deported . . . to the country in which the alien boarded the . . . aircraft on which he arrived in the United States . . . .
(2) If the government of the country designated in paragraph (1) will not accept the alien into its territory, the alien‘s deportation shall be directed by the Attorney General, in his discretion and without necessarily giving any priority or preference because of their order as herein set forth, either to—
(A) the country of which the alien is a subject, citizen, or national;
(B) the country in which he was born;
(C) the country in which he has a residence; or
(D) any country which is willing to accept the alien into its territory, if deportation to any of the foregoing countries is impracticable, inadvisable, or impossible.