Saiyid v. Immigration & Naturalization Service , 132 F.3d 1380 ( 1998 )

United States Court of Appeals,
Eleventh Circuit.
No. 95-8238.
Iftikhar Hussain SAIYID and Nazma Saiyid, Petitioners,
v.
IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
Jan. 12, 1998.
Appeal from the United States Board of Immigration Appeals. (Nos. A29-295-133, A29-295-124.y
Before HATCHETT, Chief Judge, TJOFLAT, Circuit Judge, and GODBOLD, Senior Circuit Judge.
TJOFLAT, Circuit Judge:
This case is before us on a petition to review a final order of deportation. The petitioners are
foreign nationals who have admitted deportability but who seek relief under 8 U.S.C. § 1253(h)
(1994) (withholding of deportation), or 8 U.S.C. § 1254 (1994) (suspension of deportation). They
raise several issues on appeal, only one of which merits discussion: whether the Board of
Immigration Appeals (the "BIA") erred when it applied a prima facie standard in denying petitioners'
motion to remand the case to the Immigration Court to permit them to file an application for
suspension of deportation. We conclude that the Board did not err, and therefore deny the petition.
The petitioners also move this court under 28 U.S.C. § 2347(c) (1994) to remand this case
to the BIA so that they can present further evidence in support of their previous motion to remand
to the Immigration Court. Their motion is denied.
I.
Iftikhar Saiyid and his wife, Nazma, are citizens of Bangladesh, which they left in 1976 to
pursue business interests in Dubai, United Arab Emirates. The Saiyids worked and lived in Dubai
until 1980. They then moved to Oman, again to pursue business interests, where they resided until
1986. After Mr. Saiyid's business relationships in Oman soured, the Saiyids moved to England,
where they stayed a full year before obtaining visas under 8 U.S.C.A. § 1101(a)(15)(B) (1970 &
Supp.1997) (nonimmigrant business visitor visas), and coming to the United States in 1987.
The Saiyids' visas expired on December 30, 1988, but they continued to reside and
apparently work in this country. In October of 1989, they decided to claim—for the first time—that
they were refugees from Bangladesh. They therefore applied for asylum in the United States.1 On
March 1, 1990, the Immigration and Naturalization Service (the "INS") denied their asylum
application because Mr. Saiyid was the subject of an outstanding arrest warrant for embezzlement
1
An alien seeking asylum must demonstrate that he or she
is unable or unwilling to return to, and is unable or unwilling to avail himself or
herself of the protection of the country of such person's nationality or, in the case
of a person having no nationality, the country in which such person habitually
resided, 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 C.F.R. § 208.5 (1989) (We cite to the most recent edition of the Code of Federal
Regulations unless the cited regulation has changed since it was applied in this case. If
the regulation has changed, we cite to the version of the Code in which the regulation as
applied in this case appears.).
The Saiyids identify themselves as "non-Bengalis," a term that apparently
encompasses all person in Bangladesh who are not identified as "Bengalis," members of
an ethnic group concentrated in former East Pakistan. Bangladesh gained its
independence from Pakistan in 1972 largely through the efforts of Bengalis. The Saiyids
claim that, as non-Bengalis, they have a "well-founded" fear of persecution under § 208.5
because they will be subjected to persecution at the hands of Bengalis in modern-day
Bangladesh. The Saiyids base their claim on two incidents occurring more than 20 years
ago: in 1972, four years before the Saiyids left Bangladesh, members of the Bengali
freedom fighters looted their house and struck their son; and in 1975, Bangladesh
military police detained Mr. Saiyid for several days under the Emergency Powers Act of
1974 to question him as a suspected "Indian agent." The Saiyids also lost property to a
program of nationalization conducted by the Bangladeshi government.
in Oman and therefore statutorily ineligible for asylum. See 8 C.F.R. § 208.8(f)(1)(v) (1990) ("The
[INS] district director shall deny a request for asylum ... if it is determined that ... [t]here are serious
reasons for considering that the alien has committed a serious non-political crime outside the United
States prior to the arrival of the alien in the United States...."). The same day, the INS issued Orders
to Show Cause as to why the Saiyids should not be deported. See 8 U.S.C. § 1251(a)(1)(c)(I) (1994)
(classifying as deportable those aliens who have overstayed their nonimmigrant visas).
At their deportation hearing in March of 1991, the Saiyids admitted deportability, but again
claimed that they were entitled to asylum and/or withholding from deportation under section 243(h)
of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1253(h) (1994). The Immigration Judge
denied their claim, finding that the Saiyids did not possess a "well-founded fear" of persecution.2
The Judge did grant the Saiyids voluntary departure, of which they failed to take advantage.
The Saiyids then appealed to the BIA, claiming numerous factual and legal errors. During
the pendency of their appeal, they became eligible to apply for suspension of deportation. See 8
U.S.C. § 1254(a)(1) (1994) (requiring seven years residence immediately prior to application for
suspension eligibility). The Saiyids therefore filed a motion with the BIA to remand the case to the
Immigration Court to permit them to apply for suspension. The BIA denied the Saiyids' motion
because it found that they had failed to make the prima facie case of "extreme hardship" necessary
2
To grant an alien withholding from deportation, the BIA must find that the alien's "life or
freedom would be threatened in [the country of deportation] on account of race, religion,
nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1253(h)(1)
(1994). The Supreme Court has interpreted the "would be threatened" requirement as a burden
on the alien to show a "clear probability" of persecution. See INS v. Stevic, 467 U.S. 407, 430,
104 S.Ct. 2489, 2501, 81 L.Ed.2d 321 (1984). The clear probability standard is higher than the
"well-founded fear" standard necessary to succeed on an asylum claim. See INS v. Cardoza-
Fonseca, 480 U.S. 421, 430-32, 107 S.Ct. 1207, 1212-13, 94 L.Ed.2d 434 (1987) (explaining
differences between the two standards). A finding that an alien has no well-founded fear of
persecution, therefore, precludes the award of both asylum and withholding.
for relief.
The Saiyids now appeal to this court. They raise a flourish of arguments, challenging every
factual and legal determination arrived at in this case thus far. We address the only issue that holds
any merit: whether the BIA was correct to apply a prima facie standard to the Saiyids' motion to
remand. We hold that the prima facie standard is appropriate and therefore uphold the findings of
the BIA.
The Saiyids have also filed a motion with this court to remand to the BIA to permit them to
adduce additional evidence regarding their eligibility for suspension from deportation. They claim
that the general worsening of their health as they approach old age (Mr. Saiyid is now 70, Mrs.
Saiyid is 69), combined with the fact that Mrs. Saiyid has been treated for breast cancer since the
BIA rendered its decision, now suffice to show a prima facie case of "extreme hardship" necessary
to support their previous motion to remand to the Immigration Court. Because we find that the
Saiyids have failed to establish that their case is worthy of remand under 28 U.S.C. § 2347, and
because the Saiyids are time-barred from reopening their case before both the BIA and the
Immigration Court, we deny the Saiyids' motion.
II.
A.
Section 244 of the INA provides that the Attorney General may suspend an alien's
deportation if the alien:
has been physically present in the United States for a continuous period of not less than
seven years immediately preceding the date of such application, and proves that during all
of such period he was and is a person of good moral character; and is a person whose
deportation would, in the opinion of the Attorney General, result in extreme hardship to the
alien or to his spouse, parent, or child, who is a citizen of the United States or an alien
lawfully admitted for permanent residence.
8 U.S.C. § 1254(a)(1) (1994). When the Saiyids first appeared before the Immigration Judge, they
had been in this country for only three years and were thus statutorily ineligible for suspension. By
the time the BIA considered their claims, however, they had passed the seven-year mark. They
therefore moved the BIA to remand their case to the Immigration Court so they could apply for
suspension relief.
Applying the prima facie standard of review customarily used for motions to remand/reopen,
see INS v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 912, 99 L.Ed.2d 90 (1988) (establishing that
failure to establish a prima face case is grounds for denial of a motion to reopen),3 the BIA found
that the Saiyids had failed to show they would suffer extreme hardship upon deportation. It
therefore affirmed the findings of the Immigration Court and ordered the Saiyids deported.
The Saiyids claim that the BIA erred when it evaluated their motion under the prima facie
standard. They point out that a motion to reopen must "state the new facts to be proved at the
reopened hearing...." 8 C.F.R. § 3.8(a) (1994). The Saiyids reason that the courts have not ruled
on whether the prima facie standard applies to a motion to remand or reopen that does not contain
"new facts." Because their claim was not based on new factual information, but on a new form of
statutory relief, the Saiyids believe that the prima facie standard was not appropriate in their case.
They argue for the application of a new standard of review under which the Board would remand
to the Immigration Court for further proceedings if it found that their petition for suspension was
"non-frivolous."
There is no support for the Saiyids' position. Suspension is a form of discretionary relief.
See 8 U.S.C. 1254(a) ("[T]he Attorney General may, in his discretion, suspend deportation ....")
3
There is no statutory procedure for remanding a case to Immigration Court. Courts
customarily treat motions to remand as motions to reopen under 8 C.F.R. § 3.2 (1997)
(regulating motions for "[r]eopening or reconsideration before the Board of Immigration
Appeals").
(emphasis added); Jay v. Boyd, 351 U.S. 345, 354, 76 S.Ct. 919, 924-25, 100 L.Ed. 1242 (1956)
(stating that the Attorney General's discretion is nearly "unfettered"). A prima facie standard for
motions to remand adequately protects the petitioner's ability to apply for suspension, while
recognizing that suspension relief is reserved for true "hardship" cases in which humanitarian
concerns counsel a departure from normal deportation regulations.
Moreover, a prima facie standard guards against abuse of the suspension privilege. As the
Supreme Court stated in INS v. Rios-Pineda, 471 U.S. 444, 450, 105 S.Ct. 2098, 2102, 85 L.Ed.2d
452 (1985), "[o]ne illegally present in the United States who wishes to remain already has a
substantial incentive to prolong litigation in order to delay physical deportation for as long as
possible." The standard serves as a screening mechanism, ensuring that claims for suspension of
deportation are not simply attempts to buy more time in the United States.
This circuit, and the Supreme Court, have historically applied a prima facie standard in
assessing motions to remand to permit application for suspension relief. See Aguilar v. INS, 638
F.2d 717, 719 (5th Cir. Unit B 1981) ("In considering the Motion, the Board's responsibility [is] to
determine, on the basis of the moving papers, affidavits, and other supporting evidence, whether
petitioners presented a prima facie case of eligibility for suspension of deportation under 8 U.S.C.
§ 1254 ....") (citations omitted);4 Gomez-Gomez v. INS, 681 F.2d 1347, 1348-49 (11th Cir.1982)
(limiting the court's review of a BIA decision to abuse of discretion when the BIA evaluates a
motion to reopen for suspension application under a prima facie standard); INS v. Jong Ha Wang,
450 U.S. 139, 141, 101 S.Ct. 1027, 1029, 67 L.Ed.2d 123 (1981) (stating in a case involving a
motion to reopen for suspension proceedings that "motions [to reopen] will not be granted "when
4
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981.
a prima facie case of eligibility for the relief sought has not been established' ") (BIA citations
omitted). We see no need to question the prima facie standard in this case.
B.
Having failed to move the BIA initially, the Saiyids now petition this court to remand to the
BIA to allow them to present further evidence of their eligibility for suspension. We have
jurisdiction over this motion under 28 U.S.C. § 2347(c) (1994), which provides in relevant part:
If a party to a proceeding to review applies to the court of appeals in which the proceeding
is pending for leave to adduce additional evidence and shows to the satisfaction of the court
that —
(1) the additional evidence is material; and
(2) there were reasonable grounds for failure to adduce the evidence before the
agency;
the court may order the additional evidence and any counterevidence the opposite party
desires to offer to be taken by the agency.5
Exercise of jurisdiction under section 2347 is discretionary. See Alsheweikh v. INS, 990 F.2d 1025,
1026-27 (8th Cir.1993); Rhoa-Zamora v. INS, 971 F.2d 26, 35 (7th Cir.1992).
The Saiyids have convinced us neither that reasonable grounds exist for their failure to
present the evidence supporting their motion to the BIA, nor that much of their evidence is material.
In addition, granting the Saiyids' motion would allow them to circumvent new federal regulations
5
Section 306(a)(2) of the recently enacted Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 ("IIRAIRA"), Pub.L. No. 104-208, 110 Stat. 3009-546, eliminates §
2347 jurisdiction over motions to reopen. See 8 U.S.C.A. § 1252(a)(1) (1970 & Supp.1997)
(prohibiting appeals courts from ordering the "taking of additional evidence under section
2347(c) of Title 28"). This prohibition does not apply here because the BIA's final order of
deportation in the Saiyids' case was entered on December 9, 1994—before the effective date of
the amended section. See Effective Date of 1996 Amendments, Historical & Statutory Notes to 8
U.S.C.A. § 1252(a)(1), at 8 (Supp.1997), and Effective Date of 1996 Amendments, Historical &
Statutory Notes to 8 U.S.C.A. § 1101, at 25 (Supp.1997) (establishing an effective date of April
1, 1997).
prohibiting multiple motions to reopen before the BIA. Their motion is therefore denied.
The Saiyids base their motion to remand on evidence of Mrs. Saiyid's recent battle with
breast cancer, and on evidence of Mr. Saiyid's generally deteriorating health as he approaches old
age. Though we may sympathize with the Saiyids, they have not shown to this court's satisfaction
that a remand is warranted.
We note that Mrs. Saiyid was first diagnosed with cancer in February of 1995, only two
months after the BIA issued a final order of deportation in the Saiyids' case and several months
before they argued their case before this court. Nothing prevented the Saiyids from filing a second
motion to remand with the BIA at that time, or at any time thereafter until at least April 29, 1996.6
We find, therefore, that no reasonable grounds exist for the Saiyids' failure to adduce the evidence
of cancer before the BIA. See Paul v. INS, 521 F.2d 194, 201 (5th Cir.1975) (considering failure to
file with BIA as factor in denying remand).
The evidence regarding the Saiyids' advancing age and Mr. Saiyid's accompanying ailments
likewise fails to pass muster under section 2347(c)(2) because it, too, could have been presented to
the BIA. Moreover, the age evidence is largely cumulative of the evidence the Saiyids presented to
the BIA in their first motion to remand. The Saiyids therefore fail to satisfy this court that the age
evidence is material, as required by section 2347(c)(1).
In addition, extra-statutory factors counsel a denial of the Saiyids' motion. The Saiyids were
ten years younger when they first decided to evade this country's immigration laws and overstay
6
As we discuss infra, the federal regulations now prohibit a petitioner from filing multiple
motions to reopen a deportation proceeding. See 8 C.F.R. § 3.2(c)(2) (1997). Neither the BIA
nor any court of appeals has decided whether regulation 3.2, as amended, prohibits second
motions to reopen only when the first motion was filed after the regulation's effective date of
April 29, 1996, see 61 Fed.Reg. 18,900, 18,904 (April 29, 1996) (codified at 8 C.F.R. § 3.2(c)(2)
(1997)), or whether it prevents all second motions as of that date. We need not decide that issue
here.
their visitors' visas. They prolonged their stay by filing a highly dubious application for asylum.7
When denied asylum, they filed a second, equally dubious claim to avoid imminent deportation.
When denied again and granted voluntary departure by the Immigration Judge, they still did not
leave, but instituted a series of meritless appeals, culminating in the case before us. In other words,
the Saiyids have grown old by manipulating our immigration system. We decline to remand based
on the Saiyids' evidence of age and accompanying ailments that arose from "the passage of time
7
As mentioned supra, the Saiyids were statutorily ineligible for asylum because Mr. Saiyid
was the subject of an outstanding arrest warrant for embezzlement in Oman, of which he may
have been aware before filing his application.
Moreover, under INS regulations in effect at the time the Saiyids filed their
asylum claim, an alien was statutorily ineligible for asylum if he had been "firmly
resettled" in a country other than his homeland before coming to the United States. See 8
C.F.R. § 207.1(b) (1997) ("Any applicant who has become firmly resettled in a foreign
country is not eligible for refugee status under this chapter."). The Saiyids had spent
several years as the guests of no fewer than three other nations before coming to the
United States. This fact alone probably rendered them ineligible for asylum. See
Farbakhsh v. INS, 20 F.3d 877, 882 (8th Cir.1994) (upholding BIA's finding of firm
resettlement and denial of asylum under the same regulation when petitioner had passed
through several countries en route to the United States).
And when the INS questioned Mr. Saiyid during his deportation proceedings
about his desire to seek asylum in the United States, his answers were less than
reassuring:
Q. When you went to the embassy to apply for this business visa, did you ask them if you could
come to the United States as a refugee?
A. No.
Q. Why didn't you do that?
A. Well, at that time, I was really not ... not sure. I ... I came here to actually explore the
possibilities of certain projects' financing. But when it took time and it went on and on
and I had to live, I found that I was living very peacefully here and I ... it occurred to me
that I should apply for ... for an asylum....
Thus, it appears that the Saiyids' original asylum claim was most likely frivolous
and simply a delay tactic.
while their meritless appeals dragged on." INS v. Rios-Pineda, 471 U.S. 444, 450-51, 105 S.Ct.
2098, 2102-03, 85 L.Ed.2d 452 (1985) (holding that the BIA may discount evidence of seven years'
presence in its assessment of eligibility for suspension when presence was maintained through
meritless appeals) (BIA citations omitted). A contrary finding would encourage abuse of our
immigration system.
Finally, the Saiyids appear to be attempting to circumvent new immigration regulations by
filing their motion to remand with this court rather than with the BIA. Section 3.2 of Title 8 of the
Code of Federal Regulations, as amended under IIRAIRA, provides that:
a party may file only one motion [before the BIA] to reopen deportation or exclusion
proceedings (whether before the Board or the Immigration Judge) and that motion must be
filed no later than 90 days after the date on which the final administrative decision was
rendered in the proceeding sought to be reopened, or on or before September 30, 1996,
whichever is later.
8 C.F.R. § 3.2(c)(1997). The BIA's final decision was entered on December 9, 1994; thus, the final
date the Saiyids could have filed a motion with the BIA to reopen proceedings in the Immigration
Court was September 30, 1996.8 Even if we were to remand under section 2347, therefore, the
Saiyids would be prevented from moving the BIA to reopen Immigration Court proceedings to allow
them to file an application for suspension.9 Our remand would serve only to allow the Saiyids to
8
As mentioned supra note 6, the Saiyids could have been barred from filing their motion as
early as April 29, 1997.
9
We have suggested in the past that when a petitioner's motion for remand is based on
evidence so strong that (on remand) the BIA's refusal to reopen on such evidence would be a
clear abuse of discretion, we may direct the BIA to reopen the proceedings as part of a grant of
the petitioner's motion to remand. See Vargas-Gonzalez v. INS, 647 F.2d 457, 459 (5th Cir. Unit
A 1981); Coriolan v. INS, 559 F.2d 993, 1004 (5th Cir.1977). Putting aside the fact that
ordering the BIA to reopen this case would thwart the intent of Congress and the INS in
amending regulation 3.2, we point out that the proper fact-finder concerning eligibility for
suspension from deportation is the BIA, not this court. See, e.g., Elboukili v. INS, No. 97-9529,
order & judgment at 6, (10th Cir. Oct. 7, 1997) (unpublished opinion) ("Even when a petitioner
satisfies the standards of § 2347(c), we will not order the BIA to grant a petitioner's motion to
prolong their illegal stay in the United States.
We note that if the Saiyids could have filed this second motion to remand with the BIA, and
simply chose the wrong forum, that factor would weigh in favor of granting remand. The Saiyids,
however, filed their motion to remand with this court on October 7, 1996. As explained supra, if
this motion had been filed with the BIA, it would have been untimely under the amended regulations
and therefore statutorily barred. See In re J-J-, BIA Interim Decision 3323 (July 31, 1997) (finding
motion to reopen filed on October 2, 1996, untimely when final administrative decision sought to
be reopened was rendered August 8, 1995). The Saiyids' motion thus appears to be an attempt to
circumvent federal regulations.
III.
For the above reasons, the petition for review is DENIED.
The appellants' motion to remand is DENIED.
SO ORDERED.
reopen; that decision is left to the BIA's discretion."); Tayo v. INS, No. 95-9517, order &
judgment at 5, (10th Cir. Feb. 23, 1996) (unpublished opinion) (emphasizing that motions to
remand "must not allow courts to encroach on decisions properly left to the sound discretion of
the INS"). Thus, evaluation of the merits of the underlying motion to reopen in a motion to
remand should only be conducted in the rarest of cases, when a refusal to remand would only
"launch [the] case on a lengthy procedural voyage," Coriolan, 559 F.2d at 1004, to reach an
inevitable reopening. This is not such a case. To obtain a reopening, therefore, the Saiyids
would have to file with the BIA; such filing is now prevented by regulation 3.2.