Sobnam v. Ashcroft ( 2003 )

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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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
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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).
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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.
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