Asad v. Gonzales

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0509n.06
Filed: June 15, 2005
Case No. 02-4023
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
SAWSAN MOUSA ASAD, )
)
Petitioner, )
) ON APPEAL FROM THE
v. ) UNITED STATES BOARD OF
) IMMIGRATION APPEALS
JOHN ASHCROFT, Attorney General, )
)
Respondent. )
______________________________________ )
BEFORE: SILER, BATCHELDER, and DAUGHTREY, Circuit Judges.
ALICE M. BATCHELDER, Circuit Judge. Petitioner Sawsan Mousa Asad appeals the
order of the Board of Immigration Appeals (“BIA”) affirming, without opinion, the order of the
Immigration Judge (“IJ”) denying her petition for asylum and withholding of removal. Asad also
claims that the BIA’s summary affirmance procedure is tantamount to a lack of meaningful review
in violation of her right to due process under the Fifth Amendment. Because Asad’s due process
claim lacks merit, and because we agree with the immigration courts that Asad has not demonstrated
past persecution or a well-founded fear of persecution, we AFFIRM the order of removal.
I.
Asad is an ethnic Palestinian who was born in the city of Nablus in the West Bank on
October 25, 1966. At the age of around six months, she fled with her family from Nablus to Kuwait
as a result of the 1967 Six-Day War. In Kuwait, Asad’s father obtained employment with Kuwaiti
Airlines. Asad’s family, including her mother and father, two sisters and two brothers, lived in
Kuwait until 1987. The family never obtained Kuwaiti citizenship or permanent residency status,
but they were permitted to live in Kuwait by virtue of her father’s employment with the airline,
which entitled him to work and residency permits covering the whole family.
In 1987, Kuwait cancelled the work visa of Asad’s father and gave the family one month to
leave Kuwait. One of Asad’s brothers traveled directly to the United States where he later became
a citizen by marriage. The rest of the family went to Jordan. Asad and her father stayed in Jordan
only about 29 days before traveling to the United States, while her mother, two sisters, and other
brother remained in Jordan. Asad has been continuously in the United States since 1987. Her father
remained here until approximately 1991, when he returned to Jordan, where he lived until 1994.
He returned to the United States after he and Asad’s mother were granted permanent residency based
on their son’s citizenship. Asad’s sisters currently reside in Jordan, where her other brother lived
until 1998 when he was killed. In 1989, Asad married Hesham Othman, a Jordanian citizen, and
they have two daughters who are United States citizens by birth.
Asad originally entered the United States on a non-immigrant visitor visa on August 6, 1987.
After she remained here beyond her authorized date, the Immigration and Naturalization Service
served her with an Order to Show Cause (“OSC”) and initiated removal proceedings. At a hearing
before an Immigration Judge (“IJ”) in Buffalo on January 10, 1990, at which Asad did not appear,
she was ordered deported in absentia. Asad subsequently filed a motion to reopen which was
granted, and a motion to change venue to Detroit which was also granted. At a hearing before the
IJ in Detroit on March 13, 1998, Asad admitted to the factual allegations contained in the OSC,
except that she denied being a native and citizen of Jordan, and conceded deportability. She then
applied for asylum and withholding of removal, and in the alternative, voluntary departure.
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In her application for asylum, Asad indicated that she was seeking asylum on the grounds
of nationality and membership in a particular social group. She claims to be a stateless Palestinian
stating, “I was born in Palestine, in Nablus on the West Bank, in what became part of Israel in
1967.” The OSC listed Asad as a native and citizen of Jordan, but she denied any connection to
Jordan insisting that she was not national of Jordan “either by implication or because I somehow
swore allegiance or owe allegiance to Jordan.” Asad further alleged that she “would be prevented
from entering Kuwait and denied admission. As to Jordan, I would not be allowed anything more
than a temporary status and not [sic] be allowed to resettle there as I have no ties, no former
residency, or no place to go.” As for past persecution, Asad stated, “we were driven from ‘Israel.’
We were driven from Kuwait. Both times involuntarily. Both times forcibly evicted from those
countries.”
The evidence at the deportation hearing consisted of Asad’s written asylum application, her
testimony, a State Department Advisory Opinion, country reports for Israel, Kuwait and Jordan, and
various exhibits, including her passport, marriage certificate and driver’s license. The central issue
at the hearing was whether Asad qualified as a citizen or national of Jordan as the government
averred or whether she was a stateless Palestinian as she claimed, thereby making Kuwait, the
country of her last habitual residence, the relevant country for purposes of her asylum application.
Asad testified that in the twenty years (1967-1987) she lived in Kuwait, she was never
arrested, interrogated, questioned, detained, imprisoned, or otherwise abused. Asad claims that she
would not be permitted to return to Kuwait without proper documentation, and that if she did return
she would be arrested. The 1997 State Department Country Report on Kuwait states that “[t]he
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Government prevents the return to Kuwait of stateless persons who have strong ties to the country
. . . and hundreds of people are being held in detention facilities pending deportation.”
On cross-examination, Asad was asked whether she knew that the West Bank was a part of
Jordan from 1948 until the 1967 Six-Day War. She denied that the West Bank was ever part of
Jordan and stated that she was born in Israel. But the record indicates that Asad’s parents were born
in Jordan, and Asad carries a birth certificate issued by the “Ministry of Health” of “The Hashemite
Kingdom of Jordan.” According to documentary evidence submitted by Asad, “Palestinians in the
West Bank were under Jordanian rule between 1948 and 1967 following Jordan’s annexation in
1950.” Asad also testified that she does not think she will be harmed in Jordan, but she stated, “for
me as a woman now, it would be hard for me to find a job and even to find a house. What I mean,
it’s very hard for me to, to support, you know, my family and myself.”
Asad also admitted carrying a Jordanian passport that is valid for five years, but she
contended that while she is permitted to carry a Jordanian passport, it does not entitle her to any
rights. The documentary evidence established that Asad originally obtained a five-year Jordanian
passport, and was then issued a renewal five-year passport by the Jordanian Embassy in Washington,
D.C., in July 1995. The State Department Advisory Opinion states that “[i]f the applicant’s
Jordanian passport is of a five year validity, then [she] is either a citizen of Jordan or a person
entitled to enter Jordan for permanent residence. Such persons enjoy all the privileges and
obligations of citizens of Jordan.” The State Department Advisory Opinion indicates that in October
1995 the Jordanian Interior Ministry listed certain categories of persons subject to having their five-
year passports replaced with two-year documents, sharply limiting their privileges in Jordan. These
groups included residents of the West Bank and Gaza who were determined to have Palestinian
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nationality by the 1988 decision of King Hussein to disengage from the West Bank. According to
the 1997 State Department Country Report for Jordan, King Hussein intervened later in October
1995 to overturn part of the Interior Ministry policy, announcing “that West Bank residents would
again be eligible to receive a five-year Jordanian passport. However, the Government has stressed
that these passports are for travel only and do not connote citizenship.” The evidence established
that Asad’s renewal five-year passport was issued prior to the October 1995 changes in policy.
At the conclusion of the deportation hearing, the IJ found Asad to be a “very credible
person.” Nonetheless, with regard to Asad’s claims of past persecution, the IJ concluded that neither
the forced expulsion out of Israel nor the expulsion of Asad’s family out of Kuwait in 1987 were
cognizable under the asylum laws. The IJ further found that Asad is a national of Jordan, and that
in relation to Jordan, Asad essentially claims that she will have difficulty finding employment and
sustaining herself in that country, which does not create a well-founded fear of persecution under
the asylum laws. After finding that Jordan was the relevant country for purposes of the asylum
analysis, the IJ found it unnecessary to analyze whether Asad has a well-founded fear of returning
to Kuwait, the country of her last habitual residence. Accordingly, Asad’s claims for asylum and
withholding of deportation were denied. Following the IJ’s decision, Asad appealed to the BIA,
which issued a summary affirmance without opinion on August 20, 2002.
II.
We begin by addressing Asad’s claim that the BIA’s summary affirmance procedures
deprived her of due process. We review de novo an alleged due process violation in a deportation
hearing. Mikhailevitch v. INS, 146 F.3d 384, 391 (6th Cir. 1998). In 1999, the Department of
Justice established a streamlined appellate review procedure for the BIA. At all times relevant to
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this appeal, the applicable regulation was found in 8 C.F.R. § 3.1(a)(7), although it was later
transferred unchanged to 8 C.F.R. § 1003.1(e)(4) as a consequence of the Homeland Security Act
of 2002. 68 FR 9824 (Feb. 28, 2003). If an appeal from a decision of the IJ meets the regulation’s
criteria, the BIA issues an order containing the following statement: “The Board affirms, without
opinion, the results of the decision below. The decision below is therefore, the final agency
determination.” 8 C.F.R. § 3.1(a)(7) (2002). The BIA’s decision in this case was made in accord
with 8 C.F.R. § 3.1(a)(7) (2002). We recognize that “[i]t is well established that the Fifth
Amendment entitles aliens to due process of law in deportation proceedings.” Reno v. Flores, 507
U.S. 292, 306 (1993). We have, however, explicitly held that the BIA’s streamlining procedures do
not violate an alien’s due process rights under the Fifth Amendment. Denko v. INS, 351 F.3d 717,
729-30 (6th Cir. 2003). For the reasons that we articulated in Denko, this claim lacks merit.
III.
We next address the IJ’s denial of Asad’s applications for asylum and withholding of
removal pursuant to Sections 208(a) and 241(b)(3) of the Immigration and Nationality Act (“INA”),
8 U.S.C. §§ 1158(a) and 1231(b)(3). Because the BIA issued a summary affirmance, the IJ’s
decision is the final agency order, 8 C.F.R. § 3.1(a)(7) (2002), and we therefore review the IJ’s
decision. Denko, 351 F.3d at 723, 730. When reviewing a decision of the immigration courts, we
review only the administrative record on which the order of removal was based, and “the
administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled
to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(A) and (B). Moreover, a discretionary decision
to deny asylum under 8 U.S.C. § 1158 “shall be conclusive unless manifestly contrary to the law and
an abuse of discretion.” 8 U.S.C. § 1252(b)(4)(D).
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The INA grants the Attorney General the discretionary power to grant asylum to any alien
who qualifies as a “refugee” under 8 U.S.C. § 1101(a)(42). 8 U.S.C. § 1158(b)(1). A “refugee” is
defined as any person who is unable or unwilling to return to his or her home 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.” 8 U.S.C. § 1101(a)(42)(A). It is the
alien who bears the burden of proving past persecution or a well-founded fear of future persecution.
8 C.F.R. § 208.13(a); 8 C.F.R. § 208.16(b).
Before analyzing whether Asad qualifies for asylum, it is necessary to determine from which
country she can properly seek asylum. Despite Asad’s claim that she is not a national of Jordan
“either by implication or because I somehow swore allegiance or owe allegiance to Jordan,” the IJ
concluded that Asad is a national of Jordan. For purposes of the INA, the term “national” means
“a person owing permanent allegiance to a state.” 8 U.S.C. § 1101(a)(21). Based on the evidence
in this record, we cannot say that “any reasonable adjudicator would be compelled to conclude” to
the contrary. 8 U.S.C. § 1252(b)(4)(A) and (B).
Asad testified that she was born in the city of Nablus in the West Bank on October 25, 1966.
She then presented documentary evidence stating that “Palestinians in the West Bank were under
Jordanian rule between 1948 and 1967 following Jordan’s annexation in 1950.” The record also
indicates that Asad’s parents were born in Jordan, and Asad submitted a birth certificate issued by
the “Ministry of Health” of “The Hashemite Kingdom of Jordan.” See United States v. Ramos, 840
F.2d 1, 2 (5th Cir. 1988) (stating that a birth certificate is documentary evidence of citizenship for
purposes of the immigration laws). Assuming that Jordan follows standard international practice
by conferring nationality on grounds of birth in a state’s territory (ius soli) or birth to parents who
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are nationals (ius sanguinis), then Asad likely has Jordanian citizenship. On the other hand, courts
have determined that a “permanent allegiance” is most easily established by birth. See Hughes v.
Ashcroft, 255 F.3d 752, 756 (9th Cir. 2001). Since Asad was born in Jordan it is not unreasonable
to conclude that she owes permanent allegiance to that country.
Asad also admitted carrying a Jordanian passport that is valid for five years. The State
Department Advisory Opinion states that “[i]f the applicant’s Jordanian passport is of a five year
validity, then [she] is either a citizen of Jordan or a person entitled to enter Jordan for permanent
residence. Such persons enjoy all the privileges and obligations of citizens of Jordan.” Although
the State Department Advisory Opinion does indicate that a particular group of residents of the West
Bank who were determined to have Palestinian nationality as of 1988 now have five-year passports
“for travel only,” that Asad is included in that group is belied by the record. Her passport contains
no limitation on rights whatsoever and includes this language: “Government officials of the
Hashemite Kingdom of Jordan, representatives abroad and all those whom it may concern are
required and requested to allow bearer to pass freely without let or hindrance and to afford her every
assistance and protection of which she may stand in need.” The final phrase suggests that Asad is
entitled to some form of diplomatic protection which is generally limited only to nationals or
citizens, and her availment of those protections would suggest that she owes some allegiance to
Jordan. See IMMLS § 29:54 (The term “‘allegiance’ is generally defined as the obligation of fidelity
and obedience which an individual owes to the government under which she lives or to her
sovereign in return for the protection the individual receives”) (emphasis added).
Moreover, the IJ’s determination is also supported by Asad’s testimony concerning her
family. Asad’s two sisters have lived in Jordan since 1987, where her brother also lived until the
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unfortunate incident in which he was killed in 1998. In addition, Asad’s mother lived in Jordan from
1988-1994, as did Asad’s father from 1991-1994, while they awaited confirmation of their status
as permanent residents of the United States. And Asad’s husband is a Jordanian citizen. These facts
not only contradict Asad’s claim that she has “no ties” to Jordan, but they also suggest that the
Jordanian passports carried by her family at least confer permanent residency status on the holder.
Indeed, documentary evidence submitted by Asad generally describes how Jordan has been the most
accepting of any middle eastern state with regard to displaced Palestinians, stating that “[i]n Jordan
. . . Palestinians (except for the 1967 refugees from Gaza) have enjoyed citizenship rights since
1948.”
Having concluded that the IJ properly considered Asad to be a national of Jordan, we find
that the IJ also properly concluded that she may claim asylum only as to Jordan. See 8 U.S.C. §
1101(a)(42). But Asad cannot satisfy her burden of establishing either past persecution or a well-
founded fear of persecution with respect to Jordan. First, her claims of past persecution at the hands
of the Israeli and Kuwaiti governments are not relevant to an asylum claim from Jordan. Second,
Asad cannot demonstrate eligibility for asylum on the basis of a well-founded fear of future
persecution. She specifically testified that she does not think she will be harmed if she goes to
Jordan; she only stated, “for me as a woman now, it would be hard for me to find a job and . . . to
support . . . my family and myself.” While this statement may evince a subjective fear of returning
to Jordan, we have recognized that “[e]conomic deprivation constitutes persecution only when the
resulting conditions are sufficiently severe.” Daneshvar v. Ashcroft, 355 F.3d 615, 625 n.9 (6th Cir.
2004) (citing Matter of Acosta, 19 I & N Dec. 211, 222 (BIA 1985) (stating that persecution can
“consist of economic deprivation or restrictions so severe that they constitute a threat to an
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individual’s life or freedom”)). Even if Asad could prove that she would be unable to find a job
because of her gender or ethnicity, such a claim is not sufficient objectively to establish a well-
founded fear of future persecution. See Gomez v. INS, 947 F.2d 660, 664 (2d Cir. 1991)
(“Possession of broadly-based characteristics such as . . . gender will not by itself endow individuals
with membership in a particular group.”); see also Fanhoun v. Ashcroft, 2004 WL 1982344, at *2
(6th Cir. Aug. 24, 2004) (Palestinian had no reasonable basis to fear returning to Jordan as possible
difficulty in finding work was not enough to establish eligibility for asylum); Tarevski v. INS, 30
F.3d 134, at *1 (6th Cir. 1994) (unpublished table decision) (alien’s “inability to find a job due to
his ethnicity and religion is not the type of persecution which qualifies an alien for asylum.”).
Clearly, the IJ’s discretionary decision to deny asylum to Asad on this record was not “manifestly
contrary to the law and an abuse of discretion.” 8 U.S.C. § 1252(b)(4)(D).
While a grant of asylum is discretionary, withholding of removal pursuant to Section
241(b)(3) of the INA, 8 U.S.C. § 1231(b)(3)(A), is mandatory if the applicant can demonstrate that
there is a “clear probability” that she would be subject to persecution on account of one of the same
five protected bases for establishing asylum. Castellano-Chacon v. INS, 341 F.3d 533, 545 (6th Cir.
2003). But an applicant seeking withholding of removal faces a more stringent burden of proof than
one seeking asylum. Daneshvar, 355 F.3d at 625. Because the record and the law supports the IJ’s
determination that Asad is not eligible for asylum, she necessarily cannot satisfy the more stringent
standard for withholding of removal. Id.
IV.
Despite our holdings, we wish to point out that this case presents unfortunate circumstances.
Asad has lived in the United States for nearly 18 years. Both of her daughters as well as her brother
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are U.S. citizens, and her parents are lawful permanent residents. During oral argument, this court
also learned that Asad’s husband has been granted cancellation of removal, which confers upon him
lawful permanent residence status. As a result, we requested the attorney for the government to
inquire of the Department of Homeland Security (“DHS”) as to whether such a change in
circumstances warrants any action, discretionary or otherwise, in Asad’s case. DHS has responded
that the only way for Asad to obtain adjustment of status based upon her husband’s grant of lawful
permanent residence status would be to seek a motion to reopen with the BIA, which would be
untimely at this juncture because the 90-day filing period has lapsed. 8 C.F.R. § 1003.2(c)(2).
While DHS has the discretion to waive the 90-day filing limitation, it has refused to do so. See 8
C.F.R. § 1003.2(c)(3)(iii). Consequently, although we are sympathetic to Asad’s situation and we
believe many of the equities weigh in her favor, and we do not condone the DHS’s refusal to
exercise its discretion under the circumstances of this case, we are powerless to intervene.
Accordingly, we reluctantly AFFIRM the orders of the IJ and the BIA denying Asad’s claims for
asylum and withholding of removal.
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