Nasir v. Immigration & Naturalization Service , 30 F. App'x 812 ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 7 2002
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
SAID NASIR, HENNA NASIR,
SAID NASIR, SHAIMA NASIR,
Petitioners,
v. No. 00-9544
(Nos. A70 801 354, A70 801 355,
IMMIGRATION & A70 801 356, A70 801 357)
NATURALIZATION SERVICE, (Petition for Review)
Respondent.
ORDER AND JUDGMENT *
Before EBEL , KELLY , and BRISCOE , 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This order and judgment is not binding precedent, except under the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.
Petitioners Said and Henna Nasir and their children, Said and Shaima Nasir
have filed a petition for review of the decision of the respondent Immigration
& Naturalization Service which denied their applications for asylum and
withholding of deportation. The immigration judge (IJ) found them deportable,
granted Mr. and Mrs. Nasir’s request for withholding of deportation to their
native Afghanistan, but denied the family’s request for asylum, determining that
they were firmly resettled in Germany, where the children were born, although
they are not citizens or residents. The IJ granted them voluntary departure.
We deny the petition for review.
Mr. Nasir fled Afghanistan in 1979 and went to Germany where he was
granted permanent refugee status and lived for almost fourteen years. Mrs. Nasir
also fled Afghanistan, going to Pakistan. She married Mr. Nasir in 1984 and went
to Germany with her husband. In 1992, the Nasirs entered the United States as
nonimmigrant visitors for pleasure, authorized to remain until 1993. They applied
for asylum prior to the expiration of their visas.
Because the INS commenced deportation proceedings against petitioners
before the effective date of the Illegal Immigration Reform & Immigrant
Responsibility Act (IIRIRA), “and the final deportation order was entered after
October 31, 1996, our review is governed by the pre-IIRIRA rules as amended by
IIRIRA’s transitional rules. . . . Under the transitional rules, [8 U.S.C.] § 1105a
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remains in effect but for minor procedural amendments.” Woldemeskel v. INS,
257 F.3d 1185, 1187 n. 1 (10th Cir. 2001).
We must uphold t he Bureau of Immigration Appeals’ (BIA) determination
that petitioners are not eligible for asylum if that decision is “supported by
reasonable, substantial, and probative evidence on the record considered as
a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (quotation omitted).
We may reverse the decision only if the evidence petitioners presented “was such
that a reasonable factfinder would have to conclude that the requisite fear of
persecution existed.” Id. 1
An application for asylum involves two steps. First, the alien must
demonstrate statutory eligibility by establishing refugee status, by proving either
“persecution or a well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political opinion.”
Kapcia, 944 F.2d at 706 (quotation omitted). “Persecution” is defined as
“the infliction of suffering or harm upon those who differ (in race, religion, or
political opinion) in a way regarded as offensive [and] encompass[es] more than
just restrictions or threats to life and liberty.” Baka v. INS, 963 F.2d 1376, 1379
1
While we may not “weigh the evidence or . . . evaluate the witnesses’
credibility,” Kapcia v. INS, 944 F.2d 702, 707 (10th Cir. 1991) (quotation
omitted), no such review is sought here as the IJ found the Nasirs to be fully
credible.
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(10th Cir. 1992) (quotations omitted). Analysis of a claim based on a
well-founded fear of persecution includes a subjective and an objective
component. Kapcia, 944 F.2d at 706. The applicant must prove the objective
component by “credible, direct, and specific evidence in the record, of facts that
would support a reasonable fear that the petitioner faces persecution.” Id.(quotation omitted). If an objective basis is shown, the applicant must then show
that his subjective fear is genuine. Id.The persecution may come from a non-governmental source if the alien
can establish that the government is “unwilling or unable to control” the source.
de la Llana-Castellon v. INS,16 F.3d 1093, 1097 (10th Cir. 19 94); see also
Bartesaghi-Lay v. INS, 9 F.3d 819, 822 (10th Cir. 19 93) (addressing whether
alien had well-founded fear of persecution by non-government para-military
group).
The IJ held that the Nasirs had established that they were persecuted by
non-governmental sources, i.e., skinheads and Neo-Nazis. 2
However, the IJ also
determined that the Nasirs had not shown that the German government was
unwilling or unable to protect them from their persecutors. Based on the record
presented to United States, we cannot find error in this decision. See R. Vol.1
2
To the extent that these two groups may differ, we identify both as
persecutors of the Nasirs.
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at 4, 1999 Country Report on Germany (stating that crimes against foreign
residents were continuing to decline and noting that the government was “firmly
committed to combating and preventing rightwing violence,” p. 17, and was
searching for more effective measures to root out extremist crimes).
The Nasirs also appeal the BIA’s determination that they were firmly
resettled in Germany. See 8 C.F.R. § 208.13(c)(2)(i)(B) (asylum is not available
if alien is firmly resettled in another country). “An alien is considered to be
firmly resettled if prior to arrival in the United States, he or she entered into
another nation with, or while in that nation received, an offer of permanent
resident status, citizenship, or some other type of permanent resettlement . . . .”
Id. § 208.15.
If the alien claims not to be firmly resettled, he or she must establish “that
the conditions of his or her residence in that country were so substantially and
consciously restrictive . . . that he or she was not in fact resettled.” Id.
§ 208.15(b). The alien may also defeat the finding of firm resettlement by
establishing that his “entry into that country was a necessary consequence of his
or her flight from persecution, that he or she remained in that country only as long
as was necessary to arrange onward travel, and that he or she did not establish
significant ties in that country . . . .” Id. § 208.15(a).
In determining whether an alien is firmly resettled, the IJ will
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consider the conditions under which other residents of the country
live; the type of housing, whether permanent or temporary, made
available to the refugee; the types and extent of employment
available to the refugee; and the extent to which the refugee received
permission to hold property and to enjoy other rights and privileges,
such as travel documentation that includes a right of entry or reentry,
education, public relief, or naturalization, ordinarily available to
others resident in the country.
Id. § 208.15(b).
The record shows that Mr. Nasir was granted permanent refugee status and
lived in Germany fourteen years. While there, he worked as a translator of
German for Iranians, Pakistanis, and Afghanis. His last two years there, he was
also a social worker. His son was enrolled in kindergarten, although the Nasirs
had to remove him from it out of fear for his safety. Further, Mr. Nasir was
permitted to reenter Germany after his initial entry into the United States.
Mr. Nasir counters that he has lost his permanent refugee status in
Germany. Further, he points out that Mrs. Nasir was never granted refugee status
and that his children are not German citizens and have no right to return to
Germany. The record contains evidence that the Nasirs’ residence permits have
expired and they are not entitled to a residence permit at this time. Thus, they
will have to re-apply for a residence permit. The German government has no
legal obligation to readmit them and, further, since they have been in the United
States for over a year, their application for readmission would “most probably” be
rejected. R. Vol. II at 210-11.
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Whether Germany will readmit the Nasirs is not, however, a question which
is now before us. Although the Nasirs may now have trouble reentering Germany,
“[t]he pertinent regulations specifically focus on resettlement status prior to the
alien’s entry into this country; they thus preclude a deportable alien from
bootstrapping an asylum claim simply by unilaterally severing his existing ties to
a third country after arriving in the United States.” Abdalla v. INS, 43 F.3d 1397,
1400 (10th Cir. 19 94).
At the time the Nasirs came to the United States, they were firmly resettled
in Germany. The IJ’s decision is supported by the record. Finding no reversible
error in the BIA’s decision, we DENY the petition for review.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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