Jasani v. Reno ( 2001 )

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
_________________
No. 00-60232
(Summary Calendar)
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SIRAJ P. JASANI; CLARA G. MENDES,
Petitioners,
versus
JANET RENO, Attorney General,
Respondent.
Appeal from the United States District Court
For the Northern District of Texas, Abilene
A73 610 692
January 17, 2001
Before EMILIO M. GARZA, STEWART and PARKER, Circuit Judges.
PER CURIAM:*
Siraj P. Jasani and Clara G. Mendes (collectively “Petitioners”) appeal the Board of
Immigration’s (“BIA”) dismissal of their motion to reopen deportation proceedings. We affirm.
*
Pursuant to Fifth Circuit Rule 47.5, the Court has determined that this opinion should not
be published and is not precedent except under the limited circumst ances set forth in Fifth Circuit
Rule 47.5.4.
Jasani, a 36-year-old Muslim male, and Mendes, a 35-year-old Catholic female, met in their
native India and became ro mantically involved. Their families, however, disapproved of their
interfaith relationship. Under Islamic law, Mendes would have to convert to Islam in order to marry
Jasani. Despite heavy pressure from Jasani’s family, Mendes refused to convert, earning their ire.
Likewise, Mendes’ brother warned her that he would not assist her if she married a Muslim.
The couple also faced intolerance beyond their families. Jasani, for example, believes that
extremist groups were responsible for a bomb explosion of his tape store. In addition, both Jasani
and Mendes allege that the local police previously questioned them due to their religious
backgrounds, and issued outstanding arrest warrants against them. Mendes claims that she faced
further harassment from local authorities because of her political activism: she had worked on behalf
of the Shrudas, the low-caste “untouchables” in her community.
As a result of this religious and political intolerance, Jasani and Mendes left India and
eventually entered the United States, where they were married. Jasani and Mendes individually filed
affirmative applications for asylum, but the Immigration and Naturalization Service (“INS”) rejected
their requests. Instead, the INS referred them to Immigration Court in Houston. During deportation
proceedings commenced on February 1996, Jasani and Mendes conceded deportability under 8
U.S.C. § 1251(a)(1)(A) (excludable at entry) and 8 U.S.C. § 1251(a)(1)(B) (being in the United
States in violation of law), respectively. They, however, requested asylum and withholding of
deportation.
The Immigration Judge denied their requests and found that the Petitioners did not have any
reasonable fear of persecution. He noted that the couple failed to provide evidence of past or future
persecution by the government or some other group that the government was unable or unwilling to
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control. The Petitioners filed an appeal to the BIA, which denied it on August 23, 1999. The
Petitioners filed a motion to reopen with the BIA on November 18, 1999. They attached several
journalistic and scholarly reports on human rights abuses, as well as two affidavits from their mothers
discussing the arrest warrants allegedly issued to the Petitioners. The BIA denied the motion on
February 28, 2000. Jasani and Mendes then filed the instant petition to this court.
The sole issue properly presented on appeal is whether the BIA erred in denying the
Petitioners’ motion to reopen. We review the denial of a motion to reopen for abuse of discretion.
See Osuchukwu v. INS, 744 F.2d 1136 (5th Cir. 1984); see also 8 C.F.R. § 3.2(a) (“The decision to
grant or deny a motion to reopen or reconsider is within the discretion of the Board.”)
We hold that the BIA did not abuse its discretion in refusing to reopen the deportation
proceedings. The BIA cannot reopen matters “unless it appears…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). And even if the Petitioners meet this threshold requirement, the BIA
still has discretion whether or not to grant the motion to reopen. See INS v. Abudu, 485 U.S. 94, 105
(1988) (“[C.F.R. § 3.2] does not affirmatively require the Board to reopen the proceedings under any
particular condition. Thus, the regulations may be construed to provide the Board with discretion”)
(citations omitted).
In their motion to reopen, the Petitioners offered two sets of evidence: (1) two affidavits from
their mothers detailing the arrest warrants issued to the Petitioners; and (2) recent reports about
human rights conditions in India.
In regards to the affidavits, the BIA properly refused to consider them because the Petitioners
had failed to introduce them at the prior hearing. The Petitioners offer three arguments to justify their
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failure to submit the affidavits timely. First, the Petitioners claim that the BIA has the power to
accept new evidence, and that it abused its discretion in not accepting the affidavits when it
considered the motion to reopen. While the BIA can accept new evidence during appeal, that
authority is limited to evidence previously unavailable or undiscoverable. See 8 C.F.R. §3.2(c)(1).
The Petitioners have failed to meet this requirement. The affidavits likely could have been obtained
earlier, especially since they are from the Petitioners’ mothers.
Second, they argue that the affidavits “clearly could not have been presented at the ‘former
hearing’ before the Immigration Judge, because they did not exist at that time” (emphasis in original).
Again, this argument misconstrues 8 C.F.R. § 3.2(c)(1), which does not require the evidence to have
literally existed at the time of the prior proceeding. It only requires that the evidence could have
been “discovered or presented at the former hearing.” Id.Third, the Petitioners maintain that they did not produce these affidavits earlier because they
could not have reasonably anticipated that the Immigration Judge would want more evidence. This
argument misses the point. The Pet itioners had the opportunity to produce these affidavits at the
prior hearing, but decided not to do so. Indeed, the Petitioners should have realized that these
affidavits regarding arrest warrants would have strengthened their case. During the original hearing,
the Petitioners offered scant details about the arrest warrants, although they were crucial in showing
future persecution. The Petitioners admitted that they never saw the arrest warrants, and that their
knowledge of them stems solely from their mothers’ recollection that police officers presented arrest
warrants to them.1
1
Even if the affidavits were considered, they likely would not have affected the BIA’s
decision. The affidavits do not state why the police had issued these arrest warrants and o n what
grounds. They merely state that the Petitioners’ mothers were accosted by police officers bearing
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The BIA considered the petitioners’ second set of evidence—recent government and
journalistic reports of human rights violations in India))but held that they were insufficient to
warrant a reopening of the matter. We note that there is “no statutory provision for reopening of a
deportation pro ceeding, and the authority for such motions derives solely from regulations
promulgated by the Attorney General. . . . The granting of a motion to reopen is thus discretionary.”
INS v. Doherty, 502 U.S. 314, 322 (1992). The BIA held that the Petitioners failed to meet the
“heavy burden” of “present[ing] evidence of such a nature that the Board is satisfied that if the
proceedings before the immigration judge were reopened...the new evidence offered would likely
change the result in the case.” Matter of Coelho, 20 I.&N. Dec. 464, 473 (BIA 1992).
The BIA did not abuse its discretion in finding that the newly submitted government and
journalistic reports would not have affected its prior decision. See Abudu, 485 U.S. at 105(establishing an abuse of discretion standard for motions to reopen involving discretionary relief like
asylum). First, many of the reports submitted are not relevant as they involve Muslim-Hindu
relations. Second, even the relevant reports do not shed much light on the Petitioners’ specific claims
of religious and political persecution. For example, the Petitioners still do not adequately explain if
the arrest warrants were issued because of political or religious animus against the Petitioners. Jasani
also fails to add details about the bomb explosion of his store; we still do not know who was
responsible for it. Third, some of the reports actually undermine the Petitioners’ claims. The State
Department Report notes that while some extremist groups have increased attacks against religious
minorities, the Indian “Constitution provides for freedom of religion, and the Government respects
this right in practice.” See also Sotelo-Aquije v. Slattery, 17 F.3d 33 (2nd Cir. 1994) (holding that
arrest warrants.
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persecution claims only involve conduct by government forces or “nongovernmental groups that the
government cannot control.”)
The Supreme Court has held that “[m]otions for reopening the immigration proceedings are
disfavored for the same reasons as are the petitions for rehearing and motions for a new trial on the
basis of newly discovered evidence. . . . This is especially true in a deportation proceeding, where,
as a general matter, every delay works to the advantage of the deportable alien who wishes merely
to remain in the United States.” Doherty, 502 U.S. at 323. In light of our stringent standard of
review, we cannot say that the BIA’s denial of the motion to reopen was “capricious, racially
invidious, utterly without foundation in the evidence, or otherwise so aberrational that it is arbitrary
rather than the result of any perceptible rational approach.” Osuchukwu, 744 F.2d at 1142 (holding
that the BIA did not abuse its discretion in denying request to reopen deportation proceeding).
Petitioners also seek judicial review of the underlying deportation order issued on August 23,
1999. This asylum claim, however, was not properly presented to this court as the Petitioners filed
for review on March 27, 2000))after the 30-day period required by Section 106(a) of the
Immigration and Naturalization Act had lapsed. In Stone v. INS, 514 U.S. 386 (1995), the Supreme
Court held that the filing of a motion to reopen did not toll the time period for filing a judicial review
of the underlying deportation order. Thus, the Supreme Court held that the Court of Appeals
correctly refused t o hear the untimely underlying asylum claim. The Petitioners claim that
Stone should not apply here because recent statutory amendments to the Immigration and
Naturalization Act (such as reducing the time period to file petitions) have alleviated the Stone court’s
concern abo ut abusive delay. Although the Supreme Court obviously worried about potential
abusive delay, it based its decision in Stone in large part on statutory language and construction. See
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id. at 393. The Petitioners have not offered any argument to rebut the Supreme Court’s reasoning
in Stone about statutory construction.
Assuming arguendo that the BIA erred in not considering the underlying asylum claim, we
believe that substantial evidence likely supports the immigration judge’s factual findings. See Mikhael
v. INS, 115 F.3d 299 (5th Cir. 1997) (Court of Appeals will reverse the BIA’s factual findings only
when evidence is so compelling that no reasonable fact-finder could fail to find the fear of
persecution). The vague allegations of harassment and mistreatment described in the Petitioners’
briefs, while deplorable and reprehensible, do not rise up to the level of persecution. For example,
family disapproval of their interfaith marriage does not support a persecution claim. Cf. Adebisi v.
INS, 952 F.2d 910 (5th Cir. 1992) (holding that voodoo threats by elders of tribe did not constitute
religious persecution but rather represented a personal dispute). And as mentioned previously, the
Petitioners fail to show that harassment by local authorities and by local residents was based on
religious or political grounds. See Matter of H-M, et al., 20 I.&N. Dec. 683 (BIA 1993) (holding
that it is not persecution if an asylum applicant faces punishment for actions based on criminal
activities as opposed to political or religious beliefs).
AFFIRMED.
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