Dandan, Nabil R. v. Ashcroft, John ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 02-1347, 02-1872 & 02-4132
NABIL RAJA DANDAN, KETTY DANDAN, SOUZI DANDAN, A.K.A.
SOUZY DANDAN, SANDRA DANDAN, AND RAJA NABIL DANDAN,
Petitioners,
v.
JOHN ASHCROFT, ATTORNEY GENERAL,Œ
Respondent.
____________
Petitions for Review of an Order
of the Board of Immigration Appeals
Nos. A29 420 614, A29 420 613,
A70 349 798, A70 349 799, A70 349 800.
____________
ARGUED MAY 29, 2003—DECIDED AUGUST 11, 2003
____________
Œ
The Petitioners had named the Immigration and Naturalization
Service (INS) as a respondent in this action. On March 1, 2003,
the INS ceased to exist as an independent agency within the
Department of Justice and its functions were transferred to the
newly formed Department of Homeland Security. This petition for
review challenges the decisions of the Executive Office for
Immigration Review (Board of Immigration Appeals and Immigra-
tion Court), which is a component of the United States Depart-
ment of Justice. Attorney General John Ashcroft is the head of the
Department of Justice. The Attorney General, therefore, has been
listed in the caption as the sole respondent. See 8 U.S.C.
§ 1252(b)(3)(A) (listing as respondent the Attorney General where
removal proceedings commenced after April 1, 1997).
2 Nos. 02-1347, 02-1872 & 02-4132
Before CUDAHY, EVANS, and WILLIAMS, Circuit Judges.
CUDAHY, Circuit Judge. Nabil Dandan petitions for
review of the Board of Immigration Appeal’s (BIA’s) rejec-
tion of his asylum request and denial of his motions to
reconsider and reopen. The BIA’s decision to deny asylum
was supported by substantial evidence. The denial of the
motion to reconsider was not an abuse of discretion because
there was no due process violation in the delay in institut-
ing removal proceedings against Dandan. The denial of the
motion to reopen was not an abuse of discretion because
Dandan did not present facts that noted any material
change in country conditions in Lebanon. We deny the
petition and affirm the decision of the Board of Immigration
Appeals.
I.
The Petitioners in this case are a family unit.1 Lead
Petitioner Nabil Dandan is the husband and father of
1
The government contends that the two oldest children, Souzy
and Raja, who turned 21 years old during the course of this
proceeding, have “aged out” so that they could no longer deriva-
tively claim asylum based on their father’s claim under 8 U.S.C.
§ 1158(b)(3). We disagree. 8 U.S.C. § 1158(b)(3)(B) says
An unmarried alien who seeks to accompany, or follow to join,
a parent granted asylum under this subsection, and who was
under 21 years of age on the date on which such parent
applied for asylum under this section, shall continue to be
classified as a child for purposes of this paragraph and section
1159(b)(3) of this title, if the alien attained 21 years of age
after such application was filed but while it was pending.
Souzy and Raja are unmarried and therefore still qualify for
derivative asylum benefits.
Nos. 02-1347, 02-1872 & 02-4132 3
the family and is a native and citizen of Lebanon.2 Ketty
Dandan, the wife and mother, and the three children,
Souzy, Sandra and Raja, are also natives and citizens of
Lebanon. Nabil and Ketty are parents of a fourth child born
in the United States in 1991.
Nabil Dandan testified that he was born in Beirut,
Lebanon in 1950, and that he worked in Dubai, United
Arab Emirates (UAE) as an accountant for eleven years,
from 1974 to 1985. Dandan testified that the UAE cancelled
the family’s visas in 1985 and that they were forced to
return to Lebanon. When the Dandans returned to Leba-
non, that country was embroiled in a civil war that had
begun in 1975. Beirut, the capital city, was divided by the
“green line,” east of which the Maronite Christians resided
and west of which lived the Muslim part of the population.
Maronite Christians are part of the Eastern Rite affiliation
of the Roman Catholic Church. The Muslim portion of the
population is comprised of both Sunni and Shi’ite Muslims.
Pre-civil war Lebanon was an important regional finan-
cial and commercial center. U.S. Department of State:
Lebanon Report on Human Rights Practices for 1997 at 2
(Country Report or C.R.). By tradition, the President of the
parliamentary republic had been a Maronite Christian, the
Vice President a Sunni Muslim and the Speaker of the
Chambers of Deputies a Shi’a Muslim. C.R. at 1. Fighting
between the Christian and Muslim segments of the popula-
tion broke out in 1975, with each side gathering private
militias for its own defense. The Lebanese Christian Forces
sided with the Christians in East Beirut, and the Syrian
and Hezbollah forces sided with the Muslims in West
Beirut.
2
We will refer to the singular Petitioner or Dandan to describe
all of the Petitioners as well as Nabil Dandan individually.
4 Nos. 02-1347, 02-1872 & 02-4132
Dandan testified that when he returned to Lebanon in
1985, the country was mostly destroyed. He testified that,
as a Maronite Christian, he and his family initially settled
with relatives near East Beirut, in an area called Atchaneh,
approximately 15 kilometers outside of Beirut. Dandan
indicated that he later obtained a residence for his family
in Beirut, presumably in East Beirut. He testified that
there were no private employers available, so he found work
as a civilian employee of the Lebanese Christian Forces as
an accountant and tax collector. Among his duties were the
keeping of the payroll for approximately 300 persons and
collecting taxes from those who received protection from the
Lebanese Christian Forces.
Dandan testified that he worked for the Lebanese Chris-
tian Forces in Ainrumemaneh, East Beirut, an area near
the border of East and West Beirut. Dandan testified that
on June 3, 1989, he was kidnaped by the Syrian forces
while returning home from work. He said that he was held
without food, beaten and interrogated for three days.
According to Dandan, the Syrians wanted the names of
those who were supporting the Lebanese Christian Forces.
He testified that he gave them the information known to
him, but that as a mere accountant he did not know what
those of “higher political status” would know. Tr. at 69.3
Dandan was released after his wife paid ransom money
through a Syrian mediator. He testified that on release his
face “was swollen because they beat me.” Tr. at 97. He said
that, subsequent to his release, the family’s house was
shelled and partially destroyed, and that as a result, he and
his family went from shelter to shelter during June and
part of July 1989. At this time Dandan decided to flee
Lebanon with his family. He testified that he took them at
3
The transcript of the October 11, 2000 proceeding before the
Immigration Judge will be designated as “Tr.”
Nos. 02-1347, 02-1872 & 02-4132 5
night by boat to Cyprus, where they obtained visas for the
United States. The Dandans entered the United States on
August 10, 1989.
A month after arriving in the United States, Dandan
applied for asylum with the INS under § 208(a) of the
Immigration and Nationality Act (INA). 8 U.S.C. § 1158(a).
The Chicago Asylum Office interviewed Dandan in Novem-
ber 1996, and then referred the case to an Immigration
Judge (IJ). On December 19, 1996, Dandan was issued an
Order to Show Cause (OSC), charging him with deportation
pursuant to 8 U.S.C. § 1251(a)(1)(B) (1994). In 1996,
Congress had passed legislation changing the immigration
system and rendering all unfiled OSCs void as of April 1,
1997.4 The INS failed to file Dandan’s OSC with the
4
On September 30, 1996, Congress overhauled the INA with the
enactment of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat.
3009. Several changes made by this law affect the Petitioner here.
First, “deportation” proceedings, which began with an OSC, are
now known as “removal” proceedings, which begin with a Notice
to Appear (NTA). The effective date for such changes was April 1,
1997. IIRIRA § 309(a). As will be addressed below, because
Dandan was issued an OSC before April 1, 1997, but the OSC was
not filed by that date, Dandan and the government disagree about
which procedure governs his case. The outcome is important for
the Petitioner because the two different forms of proceedings
provide two different types of discretionary relief. Suspension of
deportation was a discretionary form of relief from deportation
that was found in 8 U.S.C. § 1254 (1994), INA § 244. To qualify for
this discretionary waiver, an alien needed to establish that he had
been present in the United States for seven years prior to the
filing of his application and that his deportation would result in
extreme hardship to himself or to a qualifying relative. However,
the IIRIRA replaced this form of relief with “cancellation of
removal,” which is now found at 8 U.S.C. § 1229b(b), INA
§ 240A(b). As will be discussed below, Dandan is not eligible for
(continued...)
6 Nos. 02-1347, 02-1872 & 02-4132
Immigration Court by this date, and because the unfiled
OSC was void, the Immigration Court terminated the
deportation proceedings on April 3, 1997. Dandan was later
issued a new document, an NTA, charging him with
removal under 8 U.S.C. § 1227(a)(1)(B). After various
delays, the IJ held a hearing on October 11, 2000, to
consider the merits of the claim for asylum. Pursuant to 8
C.F.R. § 208.3(b), Dandan’s asylum application also served
as an application for withholding of removal. Additionally,
pursuant to 8 C.F.R. § 208.16, Dandan’s asylum application
was reviewed as an application for withholding of removal
under the Convention Against Torture.
The IJ denied relief under all three theories, finding that,
although Dandan had testified credibly, the three-day
detention did not constitute persecution within the meaning
of the INA. He also found that the Country Report evi-
denced changed country conditions such that Dandan could
no longer have an objectively reasonable, well-founded fear
of future persecution within the meaning of the INA.
Dandan filed a timely appeal with the Board of Immigration
Appeals, which dismissed Dandan’s appeal in a 2-1 decision.
The BIA agreed with the IJ that the three-day detention did
not constitute past persecution. The BIA also agreed that
the Petitioner did not establish that he had a well-founded
fear of future persecution at the time of the hearing. The
BIA cited the Country Report as evidence that, because the
civil war in Lebanon had ended, there was no objective
basis for Dandan’s belief that he would now be singled out
because of his past employment with the Lebanese Chris-
tian Forces.
4
(...continued)
cancellation of removal because he was not present in the United
States for ten years prior to being served with an NTA as is
required by the statute.
Nos. 02-1347, 02-1872 & 02-4132 7
Board Member Espenoza dissented, saying that she would
find that the three-day detention during which Dandan was
beaten, deprived of food and interrogated rose to the level
of persecution. Espenoza also noted that on a finding of past
persecution, the alien is entitled to a rebuttable presump-
tion of having a well-founded fear of future persecution.
Espenoza wrote that, in her view, the record evidence did
not rebut this presumption and therefore she would have
granted asylum.
Dandan filed a motion to reconsider. The motion to
reconsider included a new claim that the INS had violated
his right to due process by taking more than six years to
adjudicate the asylum application and, additionally, that
the Service had violated his right to due process by not
filing the OSC by April 1, 1997. The motion to reconsider
was denied by the BIA. Dandan then filed a motion to
reopen. This motion was also denied by the BIA. Dandan’s
appeal now consolidates review of the three BIA decisions:
the denial of asylum, the denial of the motion to reconsider
and the denial of the motion to reopen.
II.
A. Asylum
This court has jurisdiction to review the order of the BIA
to deny asylum under 8 U.S.C. § 1252(a)(1). We review the
BIA’s factual determinations under the highly deferential
substantial evidence standard. Tamas-Mercea v. Reno, 222
F.3d 417, 422 (7th Cir. 2000); Petrovic v. INS, 198 F.3d
1034, 1037 (7th Cir. 2000). We may not reverse the BIA’s
determination simply because we believe it was wrongly
decided, but rather we must be compelled by the evidence
to reach that conclusion . Tamas-Mercea, 222 F.3d at 422;
Bradvica v. INS, 128 F.3d 1009, 1012 (7th Cir. 1997); Anton
v. INS, 50 F.3d 469, 472 (7th Cir. 1995).
8 Nos. 02-1347, 02-1872 & 02-4132
1. Past Persecution
To qualify for asylum, Dandan must show that he is a
refugee within the meaning of the INA by proving that he
was persecuted in the past on account of race, religion,
nationality, membership in a social group or political opin-
ion, or alternatively, by proving that he has a well-founded
fear of future persecution on account of race, religion,
nationality, membership in a social group or political
opinion. See 8 U.S.C. § 1158(b)(1); 8 U.S.C. § 1101(a)(42)(A);
Ambati v. Reno, 233 F.3d 1054, 1059-60 (7th Cir. 2000). The
issue of past persecution is particularly difficult and critical
here because of the presumption of a well-founded fear of
future persecution that would apply if we were to find past
persecution. A finding of past persecution would in fact shift
to the government the burden of rebutting the presumptive
fear of future persecution. Asani v. INS, 154 F.3d 719, 722-
23 (7th Cir. 1998); 8 C.F.R. § 208.13(b)(1). And such a
rebuttal would prevail only if
any of the following is found by a preponderance of the
evidence: (A) There has been a fundamental change in
circumstances such that the applicant no longer has a
well-founded fear of persecution . . .; or (B) The appli-
cant could avoid future persecution by relocating to
another part of the applicant’s country of nationality
. . . and under all the circumstances, it would be reason-
able to expect the applicant to do so.
8 C.F.R. § 208.13(b)(1)(i). Board Member Espenoza, who
dissented from the BIA’s findings in the present case,
moved without much analysis from a finding of past
persecution to an expectation of future persecution, finding
that the government had not met its burden. She took this
position in spite of the relative remoteness in time of the
Syrian Army incident and indications of a fundamental
change in the situation in Lebanon—essentially the end of
the civil war in that country. This is the context, therefore,
Nos. 02-1347, 02-1872 & 02-4132 9
in which we must approach the critical question whether
the incident in 1989 amounted to persecution.
This Circuit has defined persecution as “punishment or
the infliction of harm for political, religious, or other
reasons that this country does not recognize as legitimate.”
Tamas-Mercea, 222 F.3d at 424 (quoting Mitev v. INS, 67
F.3d 1325, 1330 (7th Cir. 1995)); see also Ambati, 233 F.3d
at 1060. “Although the term ‘persecution’ includes actions
less severe than threats to life or freedom, ‘actions must
rise above the level of mere harassment to constitute
persecution.’ ” Ambati, 233 F.3d at 1060 (citation omitted).
The government argues that the record evidence does not
compel a reasonable factfinder to conclude that Dandan
suffered past persecution. Resp. Br. at 20. We agree. The
government contends that Dandan’s one-time three-day
detention, without more, “does not have the requisite level
of magnitude or frequency needed to establish ‘persecution’
within the meaning of the [INA].” Id. at 21. Although the
frequency issue is not dispositive, it does figure significantly
in the analysis. However, this court has on occasion based
a finding of past persecution on a single episode of deten-
tion or physical abuse. See, e.g., Asani, 154 F.3d at 723;
Vaduva v. INS, 131 F.3d 689, 690 (7th Cir. 1997). And, as
we noted in oral argument, it would hardly have been
reasonable to have expected Dandan to linger in Lebanon
to accumulate the additional incidents of aggravated
detention that the government may deem necessary to
establish persecution. While, obviously, multiple incidents
create a more compelling case for finding persecution, the
number of times that a petitioner has been subject to
detention or physical abuse is merely one variable in the
analysis of the whole of the petitioner’s claim of past
persecution.
However, when we look at the evidence of the severity of
Dandan’s single detention, we cannot say that we are
10 Nos. 02-1347, 02-1872 & 02-4132
compelled to find that he was subject to past persecution.
This is a high standard and one that is properly difficult to
meet without powerful and moving evidence. The issue is
difficult to resolve, and we find it quite serious that Dandan
was detained, beaten and deprived of food for three days.
But the sort of specific information that would compel a
finding of persecution has not been presented. We know
only that the detention was without food, was three days
long and that he was beaten to the extent that his face
became “swollen.” While it is distasteful to have to quantify
suffering for the purposes of determining asylum eligibility,
that is our task. A standard of review that requires our
being compelled to reach a conclusion contrary to the BIA
means that we necessarily search for specifics, not generali-
ties. Significant in our analysis is the obvious fact that
knowledge of the specific circumstances of Dandan’s
detention was entirely within his control. Dandan’s case for
past persecution, with all its procedural ramifications that
we have noted, rests wholly upon the specific circumstances
of a single aggravated detention—circumstances he alone
could have, but failed to provide. Because Dandan bears the
burden of demonstrating that his detention rises to the
level of persecution, we must hold against him the failure
to provide sufficient specifics to compel our assent. A three-
day interrogation resulting in a “swollen” face does not
compel us to conclude that the BIA was incorrect.
A cursory examination of our past jurisprudence demon-
strates that Dandan’s single detention is distinguishable
from precedents for finding past persecution. In Asani, for
example, we held that being detained and beaten by the
police, who in the process knocked out two of Asani’s teeth,
was sufficient to show past persecution. Asani, 154 F.3d at
722-23. Similarly, in Vaduva, this court agreed with the
BIA’s finding that a single beating in which a petitioner
was punched, had his face bruised and his finger broken
constituted past persecution. Vaduva, 131 F.3d at 690.
Nos. 02-1347, 02-1872 & 02-4132 11
Dandan’s detention, as he has related it, does not quite rise
to this level. It is more akin to the detention in Skalak v.
INS, 944 F.2d 364 (7th Cir. 1991), where the petitioner was
detained twice for interrogation, each time for three days.
We do not hold that lost teeth or broken bones are the sine
qua non of persecution, but these specifics indicate the
severity of the beating and support its claim to be con-
sidered persecution. There are no similar specifics pre-
sented by Dandan. Looking at the totality of the circum-
stances of the detention, as Dandan has described them, we
see nothing that compels us to reject the BIA’s determina-
tion.5
Were we to conclude to the contrary, and agree with the
dissent to the BIA’s decision that Dandan’s detention
constituted past persecution, the burden of rebutting the
consequent presumption of future persecution would, as we
have indicated, have fallen to the government, and we
would have been compelled to remand to the BIA for a
determination on that matter. See INS v. Ventura, 537 U.S.
12 (2002). But, since there appears to be abundant evidence
of changed circumstances,6 there is good reason to believe
that the government would be able to meet its burden, with
the ultimate consequence that asylum would still be denied.
5
Dandan also alleged that his house was purposefully shelled
and destroyed by the Syrian Army subsequent to his release from
detention, but we do not find this fact relevant because of the
likelihood that the shelling was a random occurrence incident to
the civil war. Dandan points to no evidence in the record to the
contrary.
6
At present, an American army stands at Syria’s back door—yet
another circumstance that may be affecting Syrian policy. See
Dexter Filkins, With U.S. in Neighborhood, Syria Eases Its Grip,
N.Y. Times, July 23, 2003, at A4.
12 Nos. 02-1347, 02-1872 & 02-4132
2. Well-founded Fear of Future Persecution
Additionally, an examination of the Country Report for
1997 provides substantial evidence to support the BIA’s
finding that Dandan does not have a well-founded fear of
future persecution. The ending of the civil war has restored
physical security to parts of the country. The Country
Report indicates that Lebanese Christians can settle in and
around Beirut without fear of persecution for their religion.
The country’s government, which contains strong represen-
tation of Maronite Christians, was reconstituted with the
cessation of the civil war. While it is true that Syrian forces
continue to control parts of the country, their presence is
not pervasive. In its totality, we cannot say that we are
compelled to conclude that the BIA was incorrect in its
finding.7
B. Motions to Reconsider and Reopen
The decision of the BIA to grant or deny a motion to
reconsider or a motion to reopen is reviewed for abuse of
discretion. 8 C.F.R. § 1003.2(a). Dandan’s motion to recon-
sider argued that the government’s failure to timely file his
OSC with the IJ deprived him of the opportunity to apply
for suspension of deportation and was therefore a violation
of due process. The question whether an immigration
hearing violates due process is purely a legal issue, which
we review de novo. Kerciku v. INS, 314 F.3d 913, 917 (7th
7
Because the burden of proof for withholding of removal and
relief under the Convention Against Torture is higher than the
burden for asylum, a lack of eligibility for asylum necessarily
means the BIA’s rejection of Dandan’s additional claims for relief
was also not clearly erroneous. See 8 C.F.R. § 208.16(c)(2)
(explaining that the burden of proof is “more likely than not” that
petitioner will be persecuted or tortured).
Nos. 02-1347, 02-1872 & 02-4132 13
Cir. 2003). But, Dandan’s due process claim must fail, and
the denial of his motion to reconsider was proper.
It is well established that the Fifth Amendment entitles
aliens to due process in deportation hearings, Reno v.
Flores, 507 U.S. 292, 306 (1993), but a claim for a violation
of due process requires that the claimant possess a pro-
tected liberty or property interest that potentially could be
abridged. Morales-Ramirez v. Reno, 209 F.3d 977, 983 (7th
Cir. 2000). Dandan argues in his brief that “[t]he INS
should have interviewed the Petitioners on their request for
asylum in a timely fashion . . . [and that] [t]he INS should
have filed the Orders to [S]how Cause with the Immigration
Court in a timely fashion, i.e., prior to April 1, 1997.” Pet.
Br. at 24. But, the decision when to commence deportation
proceedings is within the discretion of the Attorney General
and does not, therefore, involve a protected property or
liberty interest. Morales-Ramirez, 209 F.3d at 983. As such,
Dandan’s due process argument does not get off the ground.
Dandan’s due process and suspension of deportation
arguments are inextricably linked. Dandan argues that
because the INS did not timely file his OSC, he was denied
the statutory protection of a suspension of deportation. But
the IIRIRA and its accompanying regulations make clear
that Dandan is and was, after April 1, 1997, ineligible for
suspension of deportation. Deportation proceedings com-
mence when the INS files a charging document, currently
a Notice to Appear for removal proceedings, with the
Immigration Court. 8 C.F.R. § 3.14(a); Morales-Ramirez,
209 F.3d at 983.8 Even under the pre-IIRIRA regulations,
“[e]very proceeding to determine the deportability of an
8
There is some disagreement among the circuits as to when
deportation proceedings actually commence. We have already
addressed this issue at length in Morales-Ramirez, and we refer
interested readers there for further explanation. Morales-Ramirez,
209 F.3d at 981-83.
14 Nos. 02-1347, 02-1872 & 02-4132
alien in the United States is commenced by the filing of an
order to show cause with the Office of the Immigration
Judge.” 8 C.F.R. § 242.1(a) (repealed). Therefore, the issuing
of the OSC on December 19, 1996, was ineffective; it did not
initiate Dandan’s deportation proceedings. Dandan had no
“right” to consideration of his suspension of deportation
application because he was not in deportation proceedings.
Dandan’s proceedings did not commence until the NTA was
filed with the IJ on August 20, 1997. Accordingly, he is
subject to the permanent rules of the IIRIRA. See Jimenez-
Angeles v. Ashcroft, 291 F.3d 594, 600 (9th Cir. 2002).
Because he was not physically present for ten years prior to
being served with the NTA, Dandan is ineligible for a
cancellation of removal—the current incarnation of what
was formerly suspension of deportation. Because there was
no violation of Dandan’s due process rights, it was not an
abuse of discretion for the BIA to deny Dandan’s motion to
reconsider.
Similarly, we do not find an abuse of discretion in the
BIA’s denial of the motion to reopen. The new evidence
presented by Dandan does not comprise a compelling case
that the situation in Lebanon is markedly different than at
the time of his original hearing. Documentary evidence of
Syrian occupation in parts of Lebanon, Hezbollah’s ongoing
conflict with Israel and Syrian unwillingness to tolerate
political dissent in areas under its control is all reflected in
the Country Report upon which the BIA made its original
decision. The BIA properly denied the motion to reopen for
failing to establish a prima facie case for asylum. See Awad
v. Ashcroft, 328 F.3d 336, 341 (7th Cir. 2003).
III.
For the foregoing reasons, we DENY the petition for
review. The Board of Immigration Appeals decision is
AFFIRMED.
Nos. 02-1347, 02-1872 & 02-4132 15
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-11-03