Awad v. Ashcroft

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 8 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
ZAHI AWAD, also known as Tony
Awad,
Petitioner,
No. 02-9534
v. (INS No. A-26-912-054)
(Petition for Review)
JOHN ASHCROFT, Attorney General
of the United States,
Respondent.
ORDER AND JUDGMENT *
Before SEYMOUR , KELLY , and LUCERO , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Petitioner Zahi Awad, a native and citizen of Lebanon, petitions for review
of a decision of the Bureau of Immigration Appeals (BIA) denying his application
for asylum and withholding of deportation, and granting voluntary departure. We
deny the petition for review.
The pertinent facts are discussed at length in the decisions of the
Immigration Judge (IJ) and the BIA, and we will not repeat them in detail here.
Mr. Awad first entered the United States in 1984 on a student visa. On May 12,
1988, the Immigration and Naturalization Service (INS) entered a show cause
order against him, alleging that he had been employed without permission. Mr.
Awad conceded deportability, but applied for asylum and withholding of
deportation.
The IJ found Mr. Awad deportable, denied asylum and withholding of
deportation, and granted voluntary departure. Mr. Awad appealed to the BIA.
While his appeal was pending, he filed a motion to reopen and for
reconsideration. The BIA dismissed Mr. Awad’s appeals from the IJ’s decision
denying asylum and withholding of deportation and from his decision denying
suspension of deportation. 1
It further denied his motion to reopen and for
reconsideration.
1
The BIA’s decision upholding the IJ’s decision to deny suspension of
deportation is not at issue in this appeal.
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Mr. Awad begins by attacking the BIA’s consideration of the evidence in
his case. He attached four exhibits to his motion to reopen. “A motion to reopen
proceedings shall not be granted unless it appears to the Board that evidence
sought to be offered is material and was not available and could not have been
discovered or presented at the former hearing[.]” 8 C.F.R. § 3.2(c)(1). The BIA
concluded that all of the materials could have been submitted at the former
hearing, except a letter from Hadi Awad, Mr. Awad’s brother.
We review the BIA’s determination that a motion to reopen does not satisfy
the requirements of § 3.2(c)(1) for an abuse of discretion. Osei v. INS , 305 F.3d
1205, 1208 (10th Cir. 2002). “[M]otions to reopen are disfavored in deportation
proceedings.” INS v. Abudu , 485 U.S. 94, 107 (1988). Mr. Awad presents no
argument in opposition to the BIA’s conclusion that three of the exhibits, the
Zakehm letter, the Karaki affidavit, and the New York Times article, could have
been presented at the time of the hearing. We discern no abuse of discretion in
the BIA’s refusal to reopen based on this evidence.
The letter from Hadi Awad is unsworn. The BIA expressed a concern that
the letter lacked appropriate indicia of reliability, and therefore did not provide a
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sufficient basis for reopening. We cannot say that this finding constituted an
abuse of discretion.
Mr. Awad next contends that the BIA gave insufficient consideration to
affidavits from Walid Dagher and Michael Matar. The BIA’s decision mentions
each of these affidavits, discussing their content in detail. Admin. R. at 3.
“[T]he BIA is not required to discuss every piece of evidence when it renders a
decision. . . . [A]ll that is necessary is a decision that sets out terms sufficient to
enable us as a reviewing court to see that the Board has heard, considered, and
decided.” Hadjimehdigholi v. INS , 49 F.3d 642, 648 n.2 (10th Cir. 1995)
(quotation omitted). The BIA fulfilled its duty in this case.
Mr. Awad takes issue with the BIA’s discussion of the State Department’s
2001 Country Report for Lebanon. The BIA is required to give careful,
individualized review of the evidence it considers in support of an asylum claim,
including Country Reports. See Krastev v. INS , 292 F.3d 1268, 1277 (10th Cir.
2002). The BIA acknowledged in its decision that the 2001 Country Report
indicates “that the government’s overall human rights record was poor and that
serious problems remain.” Admin. R. at 5. It concluded, however, that Mr. Awad
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was unlikely to be harmed by members of the now-disbanded Lebanese Forces.
Id. This determination is supported by substantial evidence.
We turn to the merits of the BIA’s decision. “A request for asylum
involves two steps. First, the asylum applicant has the burden of proving [his]
statutory eligibility by establishing refugee status.” Woldemeskel v. INS , 257 F.3d
1185, 1188 (10th Cir. 2001). “If the applicant proves [his] eligibility for refugee
status, the Attorney General then exercises discretionary judgment in either
granting or denying asylum.” Id. at 1189. Upon this record, we conclude that the
BIA’s decision that Mr. Awad failed to establish refugee status is supported by
substantial evidence. Since he cannot show his entitlement to asylum, he also
fails to establish eligibility for withholding of deportation. See id. at 1193.
Mr. Awad’s request for a stay of mandate to apply for reinstatement of
voluntary departure is DENIED, without prejudice to his ability to re-apply for
such a stay in the event that he cannot obtain prompt consideration by the BIA of
his motion. We DENY the petition for review and AFFIRM the BIA’s decision
denying asylum and withholding of deportation and denying Mr. Awad’s request
for reopening.
Entered for the Court
Stephanie K. Seymour
Circuit Judge
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