Ngwando Z. Nyonzele v. INS ( 1996 )

_____________
No. 95-1062
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Ngwando Zele Nyonzele, *
*
Petitioner-Appellant, * Petition for Judicial Review
* of an Order of the Board of
v. * Immigration Appeals.
*
Immigration and Naturalization *
Service, *
*
Respondent-Appellee. *
_____________
Submitted: October 16, 1995
Filed: May 14, 1996
_____________
Before FAGG, BOWMAN, and HANSEN, Circuit Judges.
_____________
HANSEN, Circuit Judge.
Ngwando Zele Nyonzele, a citizen of Zaire, petitions for judicial
review of the decision of the Board of Immigration Appeals (BIA) finding
him deportable and denying his applications for discretionary relief.
Nyonzele concedes that he is deportable but contends that he is entitled
to discretionary relief in the form of (1) a waiver under 8 U.S.C.
§ 1186a(c)(4) of the joint petition requirement for seeking permanent
resident status, (2) a grant of asylum, or (3) the privilege of voluntary
departure in lieu of deportation. We conclude that substantial evidence
on the whole record supports the BIA's denial of discretionary relief.
I. BACKGROUND
In May 1986, Nyonzele, a pilot for the Zairian air force, entered the
United States for the purpose of receiving technical training offered to
foreign military personnel. Rather than return to Zaire as ordered upon
a visit from a Zairian military attache in December 1986, he fled to Texas
and later moved to Sioux City, Iowa. On August 4, 1989, Nyonzele married
a United States citizen, Betty King, whom he met through a dating service.
On the basis of this marriage, Nyonzele obtained lawful permanent resident
status on a conditional basis as of January 11, 1990. See 8 U.S.C.
§ 1186a(a) (popularly referred to as Section 216 of the Immigration
Marriage Fraud Amendments).
To remove the condition and obtain complete lawful permanent resident
status, Nyonzele and his wife were required to file a joint petition with
the Immigration and Naturalization Service (INS) and appear together for
a personal interview approximately two years after the date when he
obtained the conditional status. See 8 U.S.C. §§ 1186a(c)(1) and
1186a(d)(2). However, Nyonzele's marriage ended in divorce on May 2, 1990,
well before the time period when a joint petition to remove the condition
from his resident status could be filed. Thus, he sought to avoid the
joint petition requirement by applying for a "hardship waiver." 8 U.S.C.
§ 1186a(c)(4). Had it been granted, this waiver would have allowed
Nyonzele to seek permanent resident status without fulfilling the joint
petition requirement if, among other things, he could demonstrate that he
entered into his "qualifying marriage . . . in good faith." Id.
Nyonzele's waiver application prompted a personal interview with an
INS examiner, who tape-recorded the interview. After the interview, the
INS district director denied Nyonzele's request for a hardship waiver of
the joint petition requirement and terminated
2
his conditional permanent resident status. The INS then initiated
deportation proceedings against Nyonzele.
At the deportation proceedings, Nyonzele requested review of the
district director's termination of his conditional permanent resident
status, as permitted by 8 C.F.R. § 216.5(f), contending that the district
director abused his discretion by determining that Nyonzele had not entered
into his marriage in good faith. Nyonzele also submitted an application
for asylum, alleging a well-founded fear of persecution on account of
political views. Alternatively, he requested the privilege of voluntary
departure in lieu of deportation. Following a hearing, the Immigration
Judge (IJ) concluded that Nyonzele was deportable as charged and denied all
claims for discretionary relief.
In his administrative appeal, the BIA granted Nyonzele another
hearing but ultimately dismissed the appeal, affirming the decision of the
IJ. In a written opinion, the BIA reasoned that even crediting Nyonzele's
testimony, he was not entitled to a hardship waiver of the joint petition
requirement because he failed to demonstrate a good faith qualifying
marriage. The BIA also determined that crediting Nyonzele's testimony
concerning his request for asylum, he failed to demonstrate a well-founded
fear of persecution. Finally, the BIA concluded that Nyonzele had
abandoned his claim for voluntary departure. Nyonzele seeks judicial
review.
II. DISCUSSION
This court has jurisdiction to review "all final orders of
deportation," and "the Attorney General's findings of fact, if supported
by reasonable, substantial, and probative evidence on the record considered
as a whole, shall be conclusive." 8 U.S.C. § 1105a(a)(7). Our review of
final orders of deportation pursuant to 8 U.S.C. § 1105a(a) includes "all
determinations made during and
3
incident to the administrative proceeding . . . and reviewable together by
the [BIA]," Foti v. INS, 375 U.S. 217, 229 (1963), and "all matters on
which the validity of the final order is contingent," INS v. Chadha, 462
U.S. 919, 938 (1983) (internal quotations omitted).
In this case, we are not asked to review the determination that
Nyonzele is deportable; instead, we are asked to review the denial of a
hardship waiver, the denial of asylum, and the denial of voluntary
departure. The BIA's denial of Nyonzele's application for asylum and his
request for voluntary departure were "determinations made during and
incident to the administrative proceeding," Foti 375 U.S. at 229, and thus,
we have jurisdiction to review them as part of the final order of
deportation. The hardship waiver is in a slightly different posture as it
was initially denied by the district director, not during deportation
proceedings. The district director's denial of a hardship waiver is not
itself appealable. 8 C.F.R. § 216.5(f). See Torabpour v. INS, 694 F.2d
1119, 1121 & n.8 (8th Cir. 1982) (holding no jurisdiction to review
district director's decision to deny a stay of deportation because "those
decisions do not fit within the parameters of section 1105a(a)").
Nevertheless, "[an] alien may seek review of the denial of a hardship
waiver in deportation proceedings," 8 C.F.R. § 216.5(f), as did Nyonzele.
Because the BIA reviewed the waiver claim during the deportation
proceedings, that decision is reviewable in this court.
Each of Nyonzele's requests for relief is a matter statutorily vested
in the discretion of the Attorney General; therefore, our review is limited
to determining whether there has been an abuse of discretion. See 8 U.S.C.
§ 1186a(c)(4) (leaving to Attorney General's discretion the determination
of whether to remove the conditional basis for permanent residence absent
a joint petition); 8 U.S.C. § 1158(a) (leaving to Attorney General's
discretion the determination of whether to grant asylum); 8 U.S.C.
§ 1254(e)
4
(leaving to Attorney General's discretion the determination of whether to
grant voluntary departure). "An abuse of discretion occurs if a decision
was without rational explanation, departs from established policies, or
invidiously discriminates against a particular race or group." Khalaj v.
Cole, 46 F.3d 828, 832 (8th Cir. 1995). An abuse of discretion also occurs
where the agency fails to consider all factors presented by the alien or
distorts important aspects of the claim. Barragan-Verduzco v. INS, 777
F.2d 424, 425 (8th Cir. 1985).
A. Hardship Waiver under § 1186a(c)(4)
An alien may obtain lawful permanent resident status on a conditional
basis by marrying a United States citizen. 8 U.S.C. 1186a(a)(1). See
Velazquez v. INS, 876 F. Supp. 1071, 1075-76 (D. Minn. 1995) (offering an
overview of the operation of § 1186a). The conditional basis of this
status may be removed if the alien and citizen spouse file a timely joint
petition for removal of the condition and appear together for a personal
interview. 8 U.S.C. § 1186a(c)(1). When no timely joint petition is
1
filed, the Attorney General must terminate the permanent resident status
of the alien on the two-year anniversary of its receipt. 8 U.S.C.
§ 1186a(c)(2). If the alien and citizen spouse separate within the first
two years of marriage, preventing the alien from fulfilling the timely
joint petition requirement, the alien may seek discretionary removal of the
condition through a "hardship waiver," provided the alien can demonstrate,
inter alia, that "the
1
A petition to remove the conditional permanent resident
status of the alien is timely if filed within 90 days prior to
the two-year anniversary of the alien having obtained the
conditional status. 8 U.S.C. § 1186a(d)(2).
5
qualifying marriage was entered into in good faith." 8 U.S.C.
2
§ 1186a(c)(4).
To determine whether an alien entered into marriage in good faith,
the INS considers the degree of commitment to the marriage by both parties,
including any documentation concerning their combined financial assets and
liabilities, the length of time during which they cohabited after the
marriage and after the alien obtained conditional permanent resident
status, and any other relevant evidence. 8 C.F.R. § 216.5(e)(2). Section
1186a(c)(4) explicitly provides, "The determination of what evidence is
credible and the weight to be given that evidence shall be within
2
A "hardship waiver" permits removal of the conditional
status in three circumstances:
The Attorney General, in the Attorney General's
discretion, may remove the conditional basis of the
permanent resident status for an alien who fails to
meet the requirements of paragraph (1) [a timely joint
petition and interview] if the alien demonstrates that
--
(A) extreme hardship would result if such alien is
deported,
(B) the qualifying marriage was entered into in
good faith by the alien spouse, but the qualifying
marriage has been terminated (other than through death
of the spouse) and the alien was not at fault for
failing to meet the requirements of [a timely joint
petition and interview], or
(C) the qualifying marriage was entered into in
good faith by the alien spouse and during the marriage
the alien spouse . . . was battered by or was the
subject of extreme cruelty perpetrated by his or her
spouse . . . and the alien was not at fault in failing
to meet the requirements of [a timely joint petition
and interview]. . . .
8 U.S.C. § 1186a(c)(4).
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the sole discretion of the Attorney General." 8 U.S.C. § 1186a(c)(4).
Once the alien demonstrates that he is statutorily eligible for the waiver
by showing that the marriage was entered into in good faith, the decision
of whether to grant a hardship waiver of the joint petition requirement is
also expressly committed to the discretion of the Attorney General. Id.
Here, the BIA held a hearing and issued a 17-page written opinion
discussing the evidence and explaining its decision to dismiss the appeal.
In determining that Nyonzele had not entered into his marriage in good
faith, the BIA considered and gave great weight to Nyonzele's own statement
concerning his intent at the time he entered into the marriage. During the
interview regarding his waiver application, during which he was represented
by counsel and indicated that he could speak and understand English,
Nyonzele stated that he married in order to stay in the United States. At
the BIA hearing, Nyonzele tried to explain the statement, asserting that
he could not understand English very well, that substantial portions of the
interview tape were unintelligible, and that he did not realize he could
tell the examiner he was having difficulty understanding her, all of which
the BIA found to be without merit. Nyonzele did not dispute the accuracy
of the tape transcription, only its completeness.
The BIA also considered the degree of commitment to the marriage,
noting the chronology of the courtship, marriage, and divorce, which,
considered in its entirety, lasted less than one year. In April 1989,
Nyonzele met Betty King through a dating service. He began writing letters
to her in Galesburg, Illinois. After about four visits, she moved to Sioux
City, Iowa, to live with Nyonzele and found employment there. They married
on August 4, 1989.
On January 11, 1990, following an interview with Nyonzele and his
wife, the INS approved Nyonzele's application for conditional
7
permanent resident status based upon the marriage. Nyonzele testified that
after he and his wife returned from the interview, she became hostile
toward him and began to change from a "nice lady" into a drug user who
wanted to kill him. (Jt. App. at 194.) Nyonzele presented a partially
written letter dated January 16, 1990, in which his wife indicated an
intent to poison him. He testified that a few days later, she threatened
him with a knife and tried to poison him by putting bleach on his
toothbrush. He tried to get his wife to see a psychiatrist but she
refused, and on January 24, 1990, he moved out and filed for divorce. His
wife continued to harass him, leaving threatening and prejudicial messages
on his answering machine, and he believed she once put sugar in the gas
tank of his car so it would not be operable. The BIA found it significant
that this "nice lady" began exhibiting hostile behavior on the very day
Nyonzele obtained conditional permanent resident status and that he filed
for divorce on January 24, 1990, only two weeks after obtaining this
immigration benefit.
The BIA also considered Nyonzele's evidence of their shared life.
Nyonzele testified that they shared a bank account, shared living expenses,
and bought household furnishings together. However, the BIA noted that
Nyonzele offered very little evidence of a shared life. Nyonzele submitted
a lease agreement reflecting that his wife and her daughter were living
with him, and two deposit slips from a joint account. One of the deposit
slips the BIA found to be illegible and post-dates the filing of the
petition for conditional permanent residence status. The other is dated
before but close in time to the filing of the petition.
Nyonzele contends that the BIA failed to consider all of his evidence
of a shared life with his wife, arguing that in spite of his admission that
he married to stay in the United States, he also married intending to spend
his life with his wife. Our review of the record, however, convinces us
that the BIA did not overlook or
8
distort any significant evidence. Rather, we believe that Nyonzele is in
reality seeking to have us reweigh the evidence concerning their shared
life. We are not at liberty to reweigh the evidence. The governing
statute expressly vests the "sole discretion" for determining the weight
of the evidence with the Attorney General. 8 U.S.C. § 1186a(c)(4).
Nyonzele also contends that the BIA abused its discretion in the good
faith determination by considering unconstitutional factors, consisting of
"private" marital matters such as the difference in age and socioeconomic
backgrounds between him and his wife. This contention is without merit.
The statute authorizes consideration of "any credible evidence relevant to
the application." 8 U.S.C. § 1186a(c)(4). In this case, Nyonzele's
intention at the time of the marriage was crucial to determining whether
he was eligible for a waiver of the joint petition requirement, and
therefore, the factors relating to his marital relationship that he claims
to be private were relevant to the waiver application and were properly
considered. In any event, it is clear that the BIA did not consider the
factors of which Nyonzele complains to the exclusion of all other evidence
but found them to be "valid investigative indicators of possibly fraudulent
marriages." (Petitioner's Addend. at 12.) The BIA properly considered all
of the evidence rather than focusing solely on Nyonzele's own statement of
his intent and did not consider any unconstitutional factors. Again, we
stress that we cannot dictate the weight to be given the evidence. After
carefully reviewing the administrative record, we conclude that the BIA's
findings of fact are supported by substantial evidence and are therefore
conclusive. The BIA did not abuse its discretion by denying Nyonzele a
hardship waiver on the basis that he did not demonstrate a good faith
marriage.
9
B. Asylum
A deportable alien is eligible to seek asylum at the discretion of
the Attorney General upon proof of a "``well-founded fear of persecution on
account of race, religion, nationality, membership in a particular social
group, or political opinion.'" Hamzehi v. INS, 64 F.3d 1240, 1242 (8th
Cir. 1995) (quoting 8 U.S.C. § 1101(a)(42)(A)); 8 U.S.C. § 1158(a). "A
well-founded fear is one that is both ``subjectively genuine and objectively
reasonable.'" Id. (quoting Ghasemimehr v. INS, 7 F.3d 1389, 1390 (8th Cir.
1993)). Subjectively, the alien must demonstrate with credible evidence
that he genuinely fears persecution; objectively, the alien must
demonstrate through credible, direct, and specific evidence that a
reasonable person in his position would fear persecution. Ghasemimehr, 7
F.3d at 1390. The BIA's decision that an alien is "not eligible for asylum
must be upheld if ``supported by reasonable, substantial, and probative
evidence on the record considered as a whole.'" INS v. Elias-Zacarias, 502
U.S. 478, 481 (1992) (quoting 8 U.S.C. § 1105a(a)(4)). To overturn a
finding that an alien is not eligible for asylum, the alien must meet the
heavy burden of demonstrating that the "evidence ``was so compelling that
no reasonable fact-finder could fail to find the requisite fear of
persecution.'" Hamzehi, 64 F.3d at 1242 (quoting Elias-Zacarias, 502 U.S.
at 484).
On March 6, 1992, after the INS denied Nyonzele's request for a
waiver, he filed an application for asylum, asserting that he feared
persecution because he had refused to return to Zaire at the request of the
military attache and because his family has been singled out for
persecution based upon his father's political views. At the hearing,
Nyonzele testified that his father lost his employment and was sent into
internal exile in 1978 for having spoken against Zaire's Mobutu government.
Nyonzele participated in political demonstrations with his father in 1978
and 1980, while he was in the air force. Nyonzele suffered no persecution
for his
10
activities, but he testified that he sought to avoid identification with
his father and kept his own political views a secret.
Nyonzele continued his military service and was selected for special
training in the United States. Nyonzele testified that he first became
fearful of the Mobutu government in December 1986, while he was
participating in special air force training at Mather Air Force Base in
California. He received a phone call from his uncle, who worked in the
Zairian Defense Ministry and allegedly had connections to Zaire's secret
police, telling him that he was about to be returned home and warning him
not to do so. Nyonzele testified that his uncle warned him that he would
have the same future as his father because he was educated and because of
his father's political problems. Two days later a high ranking military
attache flew from Washington D.C. to California and ordered Nyonzele to
return to Zaire in three days time. Fearing for his life, Nyonzele fled
to Texas and did not return to Zaire as ordered.
On July 2, 1991, approximately five years after deserting from the
military, Nyonzele received word from his uncle that his father had been
murdered by a member of the Mobutu government's secret police while
returning home from a political demonstration. Nyonzele testified that his
family knew the alleged gunman to be a member of the secret police.
Nyonzele testified that he has had no contact with family members since
this phone call.
Nyonzele also testified that other family members have suffered
persecution at the hands of the Mobutu government. Nyonzele testified that
his older brother, an air force pilot, died in a plane crash in 1980 with
indications of sabotage. That same year, two cousins were imprisoned
allegedly on political grounds. They were never brought to trial and died
without explanation while confined. Nyonzele presented some general
documentary evidence indicating that the Mobutu government has engaged in
many human
11
nd unauthorized detention,
and that its economy is stagnant due in part to official corruption.
BIA concluded that, even accepting Nyonzele's testimony a
credible, the evidence as a whole
well-founded fear of persecution on account of Nyonzele's political views
those of his family. We conclude that this finding is supported b
substantial evidence on the whole record.
We r
persecution s
promoted in the air f
in spite of his father's political
evidence of family persecution (the suspicious deaths of a brother and two
occurred over a decade ago. Nyonzele has not shown "why thes
rather dated events provide an objectively reasonable basis for a present
[im] personally and on the
basis of h[is] political opinion, . . . or on t
political opinions." Hamzehi
The only relevant facts existing at the time of his militar
desertion s
unexpected s
unrelated A
found at, given the many problems from which Zaire suffers, both
and economic, the uncle's warning could have been based on a lac
of r
safety. This finding is supported by substantial evidence. Significantly,
testified that his siblings suffer economic persecution, and in
previous affidavit, Nyonzele indicated that if forced to return to Zaire
"My -
existent." (Jt. App. at 53.) Fears of economic hardship or
12
a lack of educational opportunities, however, do not establish a well-
founded fear of persecution. See Minwalla v. INS, 706 F.2d 831, 835 (8th
Cir. 1983) (persecution requires a threat to life or freedom; "economic
detriment is not sufficient").
The final event -- the allegation that Nyonzele's father was murdered
five years after Nyonzele deserted the military -- is significant. Acts
of violence against an alien's family members may demonstrate a well-
founded fear of persecution, "notwithstanding an utter lack of persecution
against the petitioner [him]self." Arriaga-Barrientos v. INS, 937 F.2d
411, 414 (9th Cir. 1991). See Makonnen v. INS, 44 F.3d 1378, 1385-86 (8th
Cir. 1995) (holding that treatment of a member of an alien's immediate
family who shares similar political views and similar political activities
is relevant to establishing well-founded fear). Evidence of isolated
violence, however, is not sufficient. Arriaga-Barrientos, 937 F.2d at 414.
"Furthermore, attacks on family members do not necessarily establish a
well-founded fear of persecution absent a pattern of persecution tied to
the petitioner[]." Prasad v. INS, 47 F.3d 336, 340 (9th Cir. 1995).
Here, there is no pattern of persecution linked to Nyonzele. His
father has allegedly been murdered for his political beliefs, but there is
no evidence to suggest that the government has any interest in persecuting
Nyonzele for his father's opinions. Likewise, there is no evidence that
any family members surviving Nyonzele's father have suffered physical
persecution by the government.
Nyonzele asserts that the government will kill him upon his return
to Zaire out of fear that he, the oldest of the remaining three sons, will
avenge the 1991 death of his father. No evidence in the record supports
this allegation. Furthermore, the BIA found that even accepting Nyonzele's
testimony as credible, it has not been shown by credible, direct, and
specific evidence that his
13
father was murdered as alleged. Nyonzele's testimony that his uncle told
him of the murder relies solely on secondhand information that is
uncorroborated and lacking in detail. While an alien's testimony need not
always be corroborated by documentation, see Bolanos-Hernandez v. INS, 767
F.2d 1277, 1285 (9th Cir. 1985) (noting that it is unlikely that
persecutors will provide victims with affidavits of their acts), yet the
testimony offered must at least bear some degree of reliability. Skeletal
secondhand information will not satisfy the burden to demonstrate a well-
founded fear through "credible, direct, and specific evidence."
Ghasemimehr, 7 F.3d at 1390. Viewing all the evidence, the BIA did not
abuse its discretion by failing to give controlling weight to Nyonzele's
unsupported theory that the government will kill him out of fear that he
would avenge the death of his father.
Finally, the BIA concluded that the most likely source of Nyonzele's
fear was his military desertion and the discipline he will face for
desertion upon his return to Zaire. In his affidavit accompanying the
waiver application discussed above and signed before he applied for asylum,
Nyonzele states only, "If I am returned to Zaire, I will face certain
discipline for desertion from the military." (Jt. App. at 53.) Fear of
punishment for military desertion is insufficient to establish a well-
founded fear absent evidence that the feared punishment is
disproportionately severe and is based upon the alien's religious or
political beliefs. See Alonzo v. INS, 915 F.2d 546, 548 (9th Cir. 1990).
Such proof is lacking.
After carefully reviewing the record, we conclude that Nyonzele has
not demonstrated that the evidence is "so compelling that no reasonable
fact-finder could fail to find the requisite fear of persecution."
Hamzehi, 64 F.3d at 1242 (internal quotations omitted). While Nyonzele's
fear may be subjectively genuine, it is not objectively reasonable.
Accordingly, the BIA
14
did not abuse its dis
asylum.
C. Voluntary Departure
BIA concluded that Nyonzele abandoned this claim in his
appeal. Nyonzele disagrees. Nyonzele's notice of appeal
m for voluntary departure:
Finally, the
requested n
proceed to deny the same for want of good moral character.
departure to Zaire is not relief Respondent seek
since he e
Immigr Judge again finds that Respondent has offered
usible and inconsistent testimony in support of hi
request t
account in support of his asylum claim, Respondent
to e
err Second, even if the findings were true, they
ly do not rise to the level of any of the statutor
exceptions to the finding of good moral character. . . .
(Jt. App. at 46.) Although this statement very plainly expresses that
of voluntary departure to
Zai his intent later becomes confusing because Nyonzele states he is
determination. (Id.
statement then renews Nyonzele's attack on the IJ's credibility findings,
that were made in connection with his requests for a waiver and
asylum and were relied upon by the IJ to deny voluntary departure. Th
notice of appeal is not a model of clarity, as Nyonzele suggests.
The dministrative record reveals, however, that Nyonzele did not
w, this clarifies the real
issues pealed to the BIA and shows that Nyonzele failed to pursue the
15
The BIA "cannot be expected to resolve issues that the alien should have
raised, but did not." Perez-Rodriguez v. INS, 3 F.3d 1074, 1080 (7th Cir.
1993). When an issue is abandoned before the BIA, it is not preserved for
our review. Tejeda-Mata v. INS, 626 F.2d 721, 726 (9th Cir. 1980), cert.
denied, 456 U.S. 994 (1982). See also Valadez-Salas v. INS, 721 F.2d 251,
252 (8th Cir. 1983) (citing Tejeda-Mata and holding that failure to raise
a claim before the IJ or BIA precludes our review because there has been
no exercise of the Attorney General's discretion to review).
III. CONCLUSION
Finding no abuse of discretion in the BIA's decision to deny
Nyonzele’s claims for discretionary relief, we affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
16