Saymeh v. Ashcroft ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-60708
RAED ABDULMATALES SAYMEH,
Petitioner,
versus
JOHN ASHCROFT, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
July 25, 2002
Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Raed Abdulmatales Saymeh (“Saymeh”) appeals the Board of Immigration Appeals’s
(“BIA”) decision denying his application for asylum. For the following reasons, we hereby AFFIRM.
BACKGROUND
Saymeh is a stateless Palestinian. He was born on the West Bank, previously claimed by
Jordan, but now controlled by Israel. He has never resided in Jordan and has only visited there for
three very brief periods of time. At one time, Saymeh was issued a five-year Jordanian passport,
*
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 R. 47.5, the court has determined that this opinion should not be published and is not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.
which has since expired. He is married to a Jordanian citizen and they have two children. He also
has a brother who resides in Washington, D.C.
Saymeh moved to Kuwait when he was eighteen years old to work. He lived in Kuwait until
he entered the United States on October 10, 1990 with a B-2 visa, which authorized him to remain
until April 5, 1991. On April 15, 1992, the Immigration and Naturalization Service (“INS”) issued
an Order to Show Cause against Saymeh charging him with deportability as a nonimmigrant alien who
overstayed his visa. He sought relief in the form of asylum, withholding of deportation, or, in the
alternative, voluntary departure.
Saymeh sought asylum on the grounds that he feared persecution on account of his race,
ethnicity, and imputed political opinion. He contended that his life would be in danger if he were
forced to return to Kuwait, the country of his last habitual residence, due to the Kuwaiti perception
that the Palestinians aided the Iraqis during the Gulf War. Kuwait, however, would not allow Saymeh
back into the country. As such, the INS sought to deport him to Jordan if Honduras, the country he
designated for voluntary departure, would not accept him.
The IJ determined that the poor conditions in Kuwait were the result of general violence.
Consequently, she found that Saymeh would be at no greater risk than the population at large. The
IJ observed that a perso n fleeing generally violent conditions is not a refugee. Thus, she denied
Saymeh’s request for asylum based upon her conclusion that Saymeh did not have a well-founded fear
of persecution on account of his race, ethnicity, or imputed political opinion. She also noted that
there was no evidence that Saymeh had a well-founded fear of persecution in Jordan. The IJ was
clear, however, that even if Saymeh established a well-founded fear of persecution, she would deny
his application as a matter of discretion. She also denied Saymeh’s request for withholding of
2
deportation. Finding that Saymeh had been a person of good moral character, she granted his request
for voluntary departure. Administrative appeal was taken and the BIA upheld the IJ’s decision. On
appeal, Saymeh contests the IJ’s decision to deny his application for asylum.
STANDARD OF REVIEW
We review factual findings of the BIA to determine if they are supported by substantial and
probative evidence in the record. INS v. Elias- Zacarias, 502 U.S. 478, 481 (1992). We will reverse
only when the evidence is so compelling that no reasonable factfinder could fail to find the requisite
fear of persecution. Id. We accord deference to the BIA’s interpretation of immigration statutes
unless the record reveals compelling evidence that the BIA’s interpretation is incorrect. Rojas v. INS,
937 F.2d 186, 189 (5th Cir. 1991). We have authority to review only an order of the BIA, not the
IJ, unless the IJ’s decision has some impact on the BIA’s decision. Chun v. INS, 40 F.3d 76, 78 (5th
Cir. 1994). Here, the BIA, in its brief per curiam order essentially adopted the IJ’s decision. Thus,
we must review the IJ’s decision. Id.
ASYLUM
Under section 208 of the Immigration and Nationality Act, amended as 8 U.S.C. § 1158(b)(1),
the Attorney General has the authority to grant asylum to any alien determined to be a refugee
according to the definition provided in section 1101(a)(42)(A). For the purpose of asylum, a refugee
is defined as
any person who is outside any country of such person’s
nationality or, in the case of a person having no nationality, is
outside any country in which such perso n last habitually
resided, and who is unable or unwilling to return to, and is
unable or unwilling to avail himself or herself of the protection
of, that country because of persecution or a well-founded fear
of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion.
3
8 U.S.C. § 1101(a)(42)(A). Once an individual is classified as a refugee, he or she is not
automatically entitled to asylum, as the Attorney General still retains discretion. Jukic v. INS, 40
F.3d 747, 749 (5th Cir. 1994).
Saymeh’s asserted entitlement to asylum is based on two factors. First, he maintains that he
is unable to return to Kuwait because of a well-founded fear of persecution. Second, he contends that
there is no discretionary basis for denying his asylum claim. Essentially, Saymeh asserts that the IJ
erred because she required Saymeh to prove a well-founded fear of returning to both Kuwait and
Jordan. Saymeh points out that section 1101(a)(42)(A)’s “unable or unwilling” language is written
in the disjunctive. He concludes that even though he is “unable” to return to Kuwait, the IJ was still
required to review the evidence to determine whether Saymeh had a well-founded fear of persecution
in Kuwait and only Kuwait. Instead, according to Saymeh, the IJ erroneously addressed whether he
had a well-founded fear of returning to Kuwait and Jordan.
Even if Saymeh is correct that he proved a well-founded fear of persecution if forced to return
to Kuwait, and even if the IJ erroneously required him to prove a well-founded fear of persecution
in Jordan as well, this is irrelevant for purposes of this appeal. The IJ found that Saymeh’s fear was
ameliorated by the fact that he was not being forced to return to Kuwait. As such, she denied his
application as a matter of discretion after assuming arguendo that Saymeh’s fear was well-founded.
Thus, we are limited to a determination of whether the IJ abused her discretion in making this
alternative holding. See Elias- Zacarias, 502 U.S. at 481.
A well-founded fear of persecution is established if there “is a reasonable possibility of actually
suffering such persecution if [the individual] were to return to [their country of last habitual
residence].” 8 C.F.R. § 208.13(b)(2). After reviewing the reco rd, this court recognizes that
4
reasonable persons might differ as to whether Saymeh’s fear of persecution was well-founded. There
is conflicting evidence in the record regarding his claim. However, to prove that the IJ abused her
discretion, Saymeh is required to show, as a matter of law, that it was an abuse of discretion to deny
his application based on the fact that Saymeh will not be forced to return to the country which is the
situs of his fears. Saymeh has not cited case law which undermines the IJ’s alternative determination.
Moreover, the BIA order expressly adopted the IJ’s alternative determination by stating:
“In addition, regarding the issue of the respondent’s fear of
returning to Kuwait, we note that the Immigration Judge did
not order respondent deported to Kuwait. Rather the
respondent was ordered deported to Honduras or, in the
alternative to Jordan. We therefore affirm the Immigration
Judge’s decision.”
Having reviewed the record and the applicable law, we cannot say, as a matter of law, that
it was an abuse of discretion for the IJ to deny asylum based on these facts.
CONCLUSION
For the foregoing reasons we therefore affirm the BIA’s decision to deny Saymeh’s request
for asylum.
AFFIRMED.
5