Kongle v. INS ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
KONGLE,
Petitioner,
v.
No. 97-2027
U.S. IMMIGRATION & NATURALIZATION
SERVICE,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals.
(A70-021-298)
Submitted: January 6, 1998
Decided: January 23, 1998
Before WILKINS, NIEMEYER, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Donald L. Schlemmer, Washington, D.C., for Petitioner. Frank W.
Hunger, Assistant Attorney General, Karen Fletcher Torstenson,
Assistant Director, Lisa R. Graves, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
In this petition for review, Petitioner Kongle seeks review of an
order of the Board of Immigration Appeals ("the Board") dismissing
his appeal from a denial of his application for asylum and withholding
of deportation. Finding no error, we affirm the Board's order.
Kongle is internationally known as a leader of the expatriate Lao-
tian community and has been active in anti-government resistance
activities.* Kongle, a native and citizen of Laos, fled that country in
1966 when the government collapsed. With the aid of President
Charles de Gaulle, Kongle entered France in 1967. Kongle contends
that French government officials warned Kongle to avoid speaking
out about the political situation in Laos. President de Gaulle inter-
ceded and told Kongle that he could involve himself in Laotian poli-
tics. However, after President de Gaulle's death, the French
government resumed putting pressure on Kongle. His activities have
been closely monitored by French police.
Kongle had French resident status and a French Resident Card. As
a resident, he was permitted to travel anywhere in France and was
entitled to work in any profession. Kongle was offered the opportu-
nity to be a citizen of France on many occasions; however, he rejected
the offers.
Kongle has traveled extensively throughout the world. In 1979,
Kongle went to the People's Republic of China to obtain the assis-
tance of the Chinese government in his efforts to overthrow the Lao-
tian government. In 1985, Kongle visited Japan for three months.
Initially, the French police prevented him from leaving. However,
upon intervention by the Japanese Minister of Foreign Affairs,
_________________________________________________________________
*Kongle is petitioner's first and last name.
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Kongle was free to go. Although he was informed by French police
that he could no longer travel, Kongle visited Belgium, Germany and
Switzerland with no problems upon reentry.
In 1988, Kongle received a non-immigrant visa to visit the United
States. He entered the United States in October 1988 with a French
Refugee Travel Document. He was allowed to visit the United States
until October 17, 1991. However, he did not leave in 1991. Kongle
submitted a request to the United States for asylum from Laos in 1992
and, in 1994, he requested asylum from France.
His refugee travel document expired in May 1991, and there is no
evidence that he applied to extend the period of validity. Kongle's
French Resident Card was valid until May 1997. Under French law,
an alien resident loses his right to return to France as a resident if he
leaves the country for more than three consecutive years and does not
timely file a renewal request or request an extension while abroad.
Accordingly, Kongle cannot return to France as a resident alien. If he
returned, he would be required to file a new application as an immi-
grant.
An immigration judge ("IJ") denied his request for asylum from
France and Laos as well as his request for withholding of deportation
to France and Laos. The IJ did grant Kongle's request for voluntary
departure. On appeal, the Board dismissed all parts of Kongle's
appeal except his claim regarding withholding of deportation to Laos.
The Board granted Kongle's application for withholding of deporta-
tion on the basis that there was a clear probability of persecution if
he returned there. The Board found that Kongle was firmly resettled
in France and as such was not entitled to asylum from Laos. The
Board also found that he was not entitled to asylum from France
because it was not his native country and he had not established a
clear likelihood of persecution by the French government.
Under 8 C.F.R. § 208.14(d)(2) (1997), an application for asylum
shall be denied if the applicant has firmly resettled in another nation.
An applicant is firmly resettled if, "prior to arrival in the United
States, he 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." See 8 C.F.R. § 208.15 (1997).
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To avoid a finding that an applicant has firmly resettled elsewhere,
the applicant can establish the following:
(a) That his entry into that nation was a necessary conse-
quence of his flight from persecution, that he remained
in that nation only as long as was necessary to arrange
onward travel, and that he did not establish significant
ties with that nation; or
(b) That the conditions of his residence in that nation were
so substantially and consciously restricted by the
authority of the country of refuge that he was not in
fact resettled. In making his determination, that Asy-
lum Officer or Immigration Judge shall consider the
conditions under which other residents of the country
live, the type of housing made available to the refugee,
whether permanent or temporary, the types and extent
of the 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 including a right of entry
and/or reentry, education, public relief, or naturaliza-
tion, ordinarily available to others resident in the coun-
try.
8 C.F.R. § 208.15 (1997).
This Court's review of the Board's decisions is"narrow, not
broad." See Huaman-Cornelio v. Board of Immigration Appeals, 979
F.2d 995, 999 (4th Cir. 1992). A decision must be upheld if it is sup-
ported by substantial evidence. Id. This Court may reverse the Board
only if the evidence is so compelling that no reasonable factfinder
could fail to find that he was not firmly resettled. Id.
Kongle admitted that he had been offered French citizenship many
times. Kongle contends that his refusal shows his unwillingness to
settle in that country. However, the burden is on Kongle to show more
than his unwillingness to settle. He must show that his residence was
restricted. In light of the considerations listed in 8 C.F.R. § 208.15(b),
there was substantial evidence to support the Board's determination.
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There was no evidence that he remained in France merely long
enough to make arrangements to travel onward. Furthermore, he was
allowed to travel throughout the world for long periods of time. He
was also permitted to work and travel throughout France. While
Kongle stated that he was under the intrusive eye of the French police
due to his leadership role in the Laotian resistance movement, he did
not show how his activities were restricted.
Furthermore, the possibility that Kongle may not be permitted to
return to France because he allowed his resident card to expire is irrel-
evant to the Board's findings. As the Board noted, 8 C.F.R. § 208.15
concerns his status prior to his arrival in the United States. See
Abdalla v. INS, 43 F.3d 1397, 1400 (10th Cir. 1994). Events that
occurred after his arrival in this country cannot rebut the finding of
firm resettlement. Moreover, Kongle's dilemma is of his own doing.
The mandatory bar to asylum for applicants who have been found
to have resettled is a permissible construction of the statute. See
Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S.
837, 842-43 (1984); see also Yang v. INS, 79 F.3d 932, 937-39 (9th
Cir.), cert. denied, ___ U.S. #6D6D 6D#, 65 U.S.L.W. 3221, 65 U.S.L.W.
(U.S. Oct. 7, 1996) (No. 95-2065). Although the granting of asylum
is discretionary under 8 U.S.C.A. § 1158(a) (West Supp. 1997), the
Attorney General can rely on rules that have general application. See
American Hosp. Ass'n v. NLRB, 499 U.S. 606, 612 (1991). Moreover,
the issue of whether an asylum applicant has resettled has always
been an important consideration when considering the application.
See Rosenberg v. Yee Chien Woo, 402 U.S. 49, 54-55 (1971).
Before the Board, Kongle did not argue, as he does now, that asy-
lum should be granted because he is stateless. Generally, an alien who
has failed to raise claims to the Board has waived his right to raise
those claims before a federal court on appeal. See Farrokhi v. INS,
900 F.2d 697, 700 (4th Cir. 1990). In any event, Kongle is unable to
demonstrate that he has a well-founded fear of persecution if he
returns to France. See Faddoul v. INS, 37 F.3d 185, 190 (5th Cir.
1994) (a stateless asylum applicant must make same showing as an
applicant with a nationality). There was substantial evidence support-
ing the Board's finding that he would not face persecution if he
returned to France. Likewise, the contention that asylum should be
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granted under the principle of return expectations was not raised on
appeal before the Board and is therefore waived.
For the foregoing reasons, we affirm the Board's order. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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