Tamas-Mercea, Teodor v. INS ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-3155
TEODOR TAMAS-MERCEA,
Petitioner,
v.
JANET RENO and the IMMIGRATION AND
NATURALIZATION SERVICE,
Respondents.
Petition for Review of an Order
of the Board of Immigration Appeals
A71 845 008
ARGUED MAY 16, 2000--DECIDED JULY 28, 2000
Before EASTERBROOK, RIPPLE and ROVNER, Circuit Judges.
RIPPLE, Circuit Judge. Petitioner, Teodor Tamas-
Mercea, seeks review of an adverse decision of
the Board of Immigration Appeals ("BIA") denying
his requests for asylum, withholding of
deportation, and voluntary departure. For the
reasons set forth in the following opinion, we
dismiss Mr. Tamas’ request for voluntary
departure, deny the remainder of his petition for
review, and affirm the decision of the Board of
Immigration Appeals.
I
BACKGROUND
A. Facts
Mr. Tamas/1 was born in Romania in 1952 and is
a citizen of that country. His ancestry is
predominantly Hungarian; his paternal grandmother
was Jewish.
Mr. Tamas comes from a wealthy family in the
Arad region of Romania. At one time, his family
owned considerable land, several houses, and a
mill. Several family members were also active in
local politics. For example, Mr. Tamas’
grandfather was both mayor of the city of
Chisindia and leader of the National Peasant
Party in that city. Mr. Tamas’ father also held
the position of mayor in Chisindia.
After World War II, the communists collectivized
land in Romania, an action which Mr. Tamas’
grandparents and parents opposed. The secret
police repeatedly visited the family home to
force his grandparents to surrender the family
properties to the Romanian government. When Mr.
Tamas’ grandfather, father and uncle resisted
these efforts, they were arrested and beaten.
Mr. Tamas felt the effects of his family’s
resistance beyond the loss of their land and the
suffering of his family members. His teachers
withheld high marks and awards from Mr. Tamas
because of his family history. When he attended a
university, Mr. Tamas’ Communist Party classmates
received better grades and, eventually, better
jobs than Mr. Tamas.
When Mr. Tamas married Rodica Mercea in 1981,
his problems with the Romanian government
continued. Rodica had a brother in the United
States, and Mr. Tamas believes that this,
combined with his family history, caused him to
be the target of government surveillance.
According to Mr. Tamas, "we were constant
suspects to the Securitate. They harassed us
continually and monitored my activities." R.271.
Tragedy of a different kind struck Mr. Tamas and
his wife in 1984. In October 1984, Rodica gave
birth to triplet sons; they were premature and
therefore were sent to a hospital in a different
city. Mr. Tamas visited his sons daily at the
hospital for the next three weeks. One day, he
arrived at the hospital and was told that the
electricity had gone off in the middle of the
night, that the generator had not kicked in, and
that his sons had died. Mr. Tamas was instructed
by hospital authorities to bring in three
coffins. The hospital then returned locked
coffins to him, and hospital authorities told him
not to open the coffins. Mr. Tamas suspected that
at least one coffin was empty.
Mr. Tamas quickly became frustrated with the
treatment that he and his wife received from
Romanian government employees following the death
of their sons. For instance, Mr. Tamas had
difficulty obtaining death certificates for his
children, and Rodica was denied maternity leave
because her children had not survived. Mr. Tamas
was so angered by the difficulty with the death
certificates and with his wife’s maternity leave
that he threatened the director of public health
in his town.
When he tried to find out what happened to his
children, his inquiries were met with evasiveness
and threats. Specifically, Mr. Tamas was told by
the director of his company that if he did not
mind his own business, he would lose his job. His
wife, too, made inquiries and was told that she
would lose her job if she pursued the subject
further.
Shortly after the loss of the children, Rodica
and one of her co-workers were involved in an
accident with a construction vehicle. When Mr.
Tamas went to the police station to obtain an
accident certificate, the police allegedly would
not speak to Mr. Tamas. Sometime later, the
driver of the construction vehicle was admitted
for the treatment of alcoholism to the hospital
in which Rodica worked. The driver apparently
told hospital staff that he would not be
prosecuted for the incident because he was an
informant for the secret police. Mr. Tamas
believes that this man intended to kill his wife.
When the communist regime came to an end in
Romania, Mr. Tamas attempted to regain his
family’s land. He was awarded ten hectares of
farm land and one of forest; the remaining land
and the mill were not returned. When he
complained about the fact that the mill was not
returned, he was told he would never get it back.
When he and his father went to city hall to
attempt to get the mill back, his father was
beaten and, a few months later, suffered a fatal
heart attack. At about this time, Mr. Tamas’ car
was broken into several times, and someone fired
a gunshot through the window of his house.
Mr. Tamas and his wife left for the United
States in 1991 and applied for political asylum
shortly thereafter. Rodica returned to Romania in
1994 for her father’s funeral; she was then
unable to gain re-entry to the United States
because her visa expired during her stay in
Romania.
According to Mr. Tamas, Rodica has continued to
be the target of government persecution. She has
been advised that she will not be employed in the
health care system. Also, when Mr. Tamas’ summer
home in Romania caught fire, "she was told [by
the police] to relax if she doesn’t want to burn
herself or something." R.90. Finally, Mr. Tamas
testified that, since his wife’s return, she has
been questioned concerning his whereabouts and
that, when he receives letters from her, they
have been opened.
B. Administrative Proceedings
1.
The Immigration and Naturalization Service
("INS") commenced deportation proceedings in 1994
after Mr. Tamas’ temporary visa expired. Mr.
Tamas conceded deportability, but renewed his
application for asylum. After several
administrative delays, the Immigration Judge
("IJ") heard testimony on March 17, 1997. Before
the IJ, Mr. Tamas argued that his ethnic and
religious background, his family history, the
death of his children, and the Romanian
government’s resistance to explaining his sons’
deaths constituted persecution and, therefore,
warranted a grant of asylum. Mr. Tamas also
argued that he had a well-founded fear of future
persecution because the individuals who had
persecuted him in the past were still in power.
At the conclusion of the proceedings, the IJ took
the matter under advisement.
In a written opinion, the IJ analyzed each piece
of evidence submitted by Mr. Tamas and concluded
that Mr. Tamas had not suffered past persecution
within the meaning of the asylum law. The IJ
noted that, although the incidents of Mr. Tamas’
childhood were unfortunate, he still received a
professional education and had been gainfully
employed; consequently, this discrimination did
not rise to the level of persecution. The IJ
reached a similar conclusion with respect to the
harassment and surveillance Mr. Tamas endured
because of his and his wife’s family connections;
these actions did not rise to the level of
persecution for purposes of the asylum law.
The IJ also addressed the loss of Mr. Tamas’
sons and the conflicts with various government
offices that followed. The IJ stated:
While recognizing the tragic nature of losing
one’s children, particularly without knowing the
reasons or circumstances, the court finds that
this does not rise to the level of past
persecution. It is simply not clear what happened
to the children. . . .
Even if the children were taken [by the Romanian
government], it does not appear that they were
taken on account of the respondent’s political
opinion.
R.32-33. The IJ determined that "[t]he addition
of the wife’s accident also does not establish
persecution[ ]" because, according to the IJ, Mr.
Tamas had not come forward with evidence which
suggested that the driver specifically had
targeted Rodica, as opposed to simply causing an
accident. R.33.
The IJ next addressed Mr. Tamas’ argument that
he feared future persecution. The IJ rejected
this claim in part because the IJ questioned Mr.
Tamas’ testimony/2 and in part because
circumstances had changed so drastically since
Mr. Tamas was last in Romania. Finally, the IJ
denied Mr. Tamas voluntary departure because Mr.
Tamas had stated during the hearing that he would
not depart voluntarily if allowed to do so. Mr.
Tamas appealed to the BIA.
2.
The BIA affirmed the IJ’s decision and adopted
much of his reasoning. First, the BIA agreed that
Mr. Tamas suffered discrimination because of his
family affiliation, but that this discrimination
did not constitute persecution. Furthermore, the
BIA concluded that Mr. Tamas’ "theories about the
death of his infant children and his wife’s
accident are too speculative a basis upon which
to grant asylum." R.3. Finally, the BIA concurred
with the IJ’s assessment that conditions in
Romania had changed to such an extent "that any
fear [Mr. Tamas] might have had of returning to
Romania should be significantly diminished." Id.
Mr. Tamas timely appealed the BIA’s denial of
asylum.
II
DISCUSSION
A. Statutory Standards
"Asylum eligibility ’is a factual determination
which we review under the substantial evidence test.’"
Petrovic v. INS, 198 F.3d 1034, 1037 (7th Cir.
2000) (quoting Sivaainkaran v. INS, 972 F.2d 161,
163 (7th Cir. 1992)). As a reviewing court, we
are not entitled to reverse the BIA’s
determination "’simply because [we are] convinced
that [we] would have decided the case differently.’"
Anton v. INS, 50 F.3d 469, 472 (7th Cir. 1995)
(quoting Milosevic v. INS, 18 F.3d 366, 371 (7th
Cir. 1994)). "To win reversal under this
deferential standard, [Mr. Tamas] must show not
merely that record evidence supports a conclusion
contrary to that reached by the BIA, but that the
evidence compels that contrary conclusion."
Bradvica v. INS, 128 F.3d 1009, 1011 (7th Cir.
1997) (citing INS v. Elias-Zacarias, 502 U.S.
478, 481 n.1 (1992)).
Congress has given the Attorney General
discretion to grant asylum if an applicant
qualifies as a refugee under 8 U.S.C. sec.
1101(a)(42)(A). See 8 U.S.C. sec. 1158(b)(1);/3
see also Kaczmarczyk v. INS, 933 F.2d 588, 593
(7th Cir. 1991). The Immigration and Nationality
Act defines "refugee" as
any person who is outside any country of such
person’s nationality . . . and who is unable or
unwilling to return to, and is unable or
unwilling to avail himself or herself of the
protection of, that 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. sec. 1101(a)(42)(A).
Therefore, to prove that he is a "refugee" and
eligible for asylum, Mr. Tamas initially must
establish two elements under the statute. "First,
[he] must demonstrate either actual past
persecution or a well-founded fear of persecution
in the future. Second, assuming that [he] can
satisfy this first showing, petitioner[ ] must
also show that the persecution [he] . . . endured
is ’on account of’ one of the five protected
statutory grounds[:]" race, religion,
nationality, membership in a particular social
group or political opinion. Marquez v. INS, 105
F.3d 374, 378 (7th Cir. 1997).
If an alien establishes past persecution, there
is a rebuttable presumption that he has a well-
founded fear of future persecution and therefore
should be granted asylum. See 9 C.F.R. sec.
208(b); see also Asani v. INS, 154 F.3d 719, 722
(7th Cir. 1998). The presumption is rebutted,
however, if
a preponderance of the evidence establishes that
since the time the persecution occurred
conditions in the applicant’s country of
nationality . . . have changed to such an extent
that the applicant no longer has a well-founded
fear of being persecuted if he or she were to
return.
8 C.F.R. sec. 208(b); see also Asani, 154 F.3d at
722. We have recognized State Department reports
as authoritative sources on the current political
situations in foreign states and, therefore,
helpful in determining whether an asylum
applicant’s fear of future persecution is well-
founded. See, e.g, Petrovic, 198 F.3d at 1038(approving BIA’s notice of changed country
conditions based on reports from the State
Department)./4
Mr. Tamas bases his asylum claims on both past
persecution and a fear of future persecution. We
first address Mr. Tamas’ arguments concerning
past persecution.
B. Past Persecution
Before the IJ and the BIA, Mr. Tamas argued that
he should be granted asylum based on events that
can be grouped loosely into three categories. The
first category included punishments meted out
against him and his family because of his
family’s opposition to the communist regime. The
second, related category included those events
that occurred when Mr. Tamas attempted to recoup
family lands after the fall of the communist
regime. The third type of persecution Mr. Tamas
alleged was the mysterious deaths of his sons and
the Romanian government’s reluctance to shed any
light on their deaths. On appeal, Mr. Tamas
consolidates these categories into the suffering
of his family and the suffering he personally
endured as a result of his sons’ deaths. We turn
first to his family’s suffering.
1.
Mr. Tamas first argues that the BIA applied an
incorrect legal standard in assessing his claim
of persecution as it relates to suffering by his
family members. Mr. Tamas reads the BIA’s
decision to state that family suffering can never
provide a basis for a grant of asylum. See
Appellant’s Br. at 14. We do not read the BIA’s
decision so broadly. We read it only to state
that, in the circumstances presented here, the
suffering of Mr. Tamas’ father, grandfather, and
uncle, do not rise to the level of persecution of
Mr. Tamas for purposes of the statute. We agree
with the BIA’s assessment.
The Immigration and Nationality Act does not
define "persecution." However, this court has
described persecution as "’punishment or the
infliction of harm for political, religious, or
other reasons that this country does not
recognize as legitimate.’" Mitev v. INS, 67 F.3d
1325, 1330 (7th Cir. 1995) (quoting De Souza v.
INS, 999 F.2d 1156, 1158 (7th Cir. 1993)).
Persecution encompasses more than threats to life
or freedom; non-life threatening violence and
physical abuse also fall within this category.
See Marquez, 105 F.3d at 379. However, actions
must "rise above the level of mere ’harassment’
to constitute persecution." Sofinet v. INS, 196
F.3d 742, 746 (7th Cir. 1999).
If Mr. Tamas personally had suffered the type of
harm inflicted on his family members, we would
have little trouble concluding that he had
suffered persecution within the meaning of the
statute. Mr. Tamas testified that his father,
grandfather, and uncle were arrested and beaten
for opposing collectivization. As well, his
father was beaten in 1991, when he attempted to
recover his family property. However, Mr. Tamas
does not argue that he was subjected to this type
of treatment./5 He, instead, claims a type of
derivative persecution, that which arose from the
physical abuse of his family members and the
discrimination he personally endured because of
his family’s opposition to the communist regime.
We addressed the merits of similar derivative
claims in Bereza v. INS, 115 F.3d 468 (7th Cir.
1997). In that case, Bereza sought asylum based
on alleged persecution he had suffered as a
result of his mother’s opposition to the
communist regime in Ukraine. Bereza’s mother had
served time as a political prisoner in a Soviet
labor camp under Stalin during the 1940s. See id.
at 470. Because of his mother’s anti-Stalinist
activities, Bereza suffered discrimination in
schooling and at work; he was denied high grades,
honors, higher educational options, and a good
employment placement. See id. at 470-71. The BIA
determined that the past persecution suffered by
Bereza (including events not recounted above) was
not sufficiently severe to merit a grant of
asylum on humanitarian grounds. See id. In
addition, noting that Soviet rule in Ukraine had
come to an end, the BIA relied on the changed
circumstances in Ukraine to hold that Bereza had
not met his burden of establishing a well-founded
fear of future persecution. See id. at 471-72. We
affirmed the BIA’s decision and concluded that,
based on the type of discrimination alleged by
Bereza and the evidence of changed conditions,
the BIA’s conclusion concerning both past and
future persecution was supported by substantial
evidence.
Here, as in Bereza, it was Mr. Tamas’ family
members who suffered persecution as a result of
their political beliefs. Although Mr. Tamas did
suffer some economic harm and personal
humiliation as a result of his family’s
activities, the circumstances here are not
sufficient to establish his persecution for
purposes of the statute. See id. at 475-76.
Furthermore, we believe that the BIA’s
conclusion, that circumstances have changed
sufficiently in Romania to rebut any presumption
of future persecution based on the past suffering
of Mr. Tamas’ family members, finds support in
the record. The State Department Country Profile
submitted in this case militates against finding
that any past persecution will continue. With
respect to harassment by the Securitate, the
State Department reported:
The Romanian Intelligence Service (SRI), heir to
the justly hated Securitate of the Ceausescu era,
operates under parliamentary oversight and has
undergone repeated personnel restructuring.
Unlike its predecessor the SRI does not have the
power to arrest or detain suspects and has
neither the priorities or resources for the sort
of targeted harassment of individuals practiced
in the past. It is holding the old Securitate
files in its archives for 40 years, after which
they will be made public. Plausible allegations
of surveillance or intimidation have become rare,
and even these are linked to current concerns.
R.256. Furthermore, the State Department
addressed Mr. Tamas’ concern that, although the
form of the Romanian government has changed, the
same individuals are in positions of power. The
Department stated:
[T]he vast majority of Romanian applicants
contend that nothing has changed, that--as
elsewhere in Eastern Europe--most of the leaders
were once Communists and are capable and desirous
of punishing those who opposed them in the past.
In our view this essentially self-serving view
does not comport with country conditions. The
continued presence of leaders from the past
reflects the lack of "untainted" people capable
of governance and to a certain extent the
inability of various opposition elements to
coalesce.
R.255-56. The IJ and BIA adopted this view; we
cannot say, under this deferential standard, that
the evidence compels a contrary finding.
2.
Mr. Tamas maintains that the suffering he
endured with respect to the death of his three
sons, and the resistance by government
authorities to providing him with answers
concerning their deaths, constitutes persecution
for purposes of the asylum statute. The
Immigration Judge determined:
While recognizing the tragic nature of losing
one’s children, particularly without knowing the
reasons or circumstances, the court finds that
this does not rise to the level of past
persecution. It is simply not clear what happened
to the children. It is quite possible that they
could have died as a result of the hospital’s
negligence, and the evasive acts of the
administrators was an attempt to cover up their
mistakes in order to avoid responsibility.
R.32. The BIA agreed that "[Mr. Tamas’] theories
about the death of his infant children . . . are
too speculative a basis upon which to grant
asylum." R.3. We believe the record supports this
conclusion.
Certainly having one’s children forcibly taken,
killed, or kidnapped might rise to the level of
persecution. Cf. Singh v. INS, 94 F.3d 1353, 1361
(9th Cir. 1996) ("There is no question that
persistent death threats and assaults on one’s
life, family, and business rise to the level of
persecution within the meaning of the Act.").
However, as we set forth above, the asylum
statute requires more than simply persecution; it
requires persecution "’on account of’ one of the
five protected statutory grounds[:]" race,
religion, nationality, social group membership or
political opinion. Marquez, 105 F.3d at 378. The
Supreme Court has made clear that the motive of
those engaging in oppressive actions is a
"critical" element of the Immigration and
Nationality Act. Elias-Zacharias, 502 U.S. at
483. In order to prevail, therefore, Mr. Tamas
must come forward with some evidence of motive,
that the persecution was inflicted on one of the
specified grounds.
The BIA concluded that Mr. Tamas had failed to
come forward with evidence of motive; indeed, it
concluded that his theories concerning his sons’
deaths were speculative. Mr. Tamas does not point
to specific evidence that compels us to conclude
that the deaths or disappearance of his sons, and
the events that followed, were the result of Mr.
Tamas’ race, religion, nationality, social group
or political opinion. Indeed, in his arguments
before the IJ, Mr. Tamas did not contend that his
children were taken, or their deaths hastened, on
account of his political beliefs or his family
associations; he believed that his children were
"spirited away." R.126. Consequently, the Board’s
conclusion is supported by substantial
evidence./6
C. Future Persecution
Mr. Tamas argues that if he returns to Romania
he will face the same threats and persecution
that he endured when he lived in Romania. He
points to the questioning of his wife, the
opening of his mail, the tapping of his phone
calls, and the burning of his summer home as
evidence that he will be targeted for persecution
if he returns. The BIA concluded, as did the IJ,
that "the record establishes that country
conditions in Romania have changed to such an
extent that any fear [Mr. Tamas] might have had
of returning to Romania should be significantly
diminished." R.3 (citations omitted). We cannot
say that the record compels a contrary finding.
In order to be granted asylum on the basis of
future persecution, Mr. Tamas must have a "well-
founded" fear of persecution. "To establish a
well-founded fear of persecution, an applicant
must show both that he genuinely fears being
persecuted and that his fear is objectively
reasonable." Bereza, 115 F.3d at 472 (citations
omitted). To qualify as "objectively reasonable,"
a reasonable person in Mr. Tamas’ circumstances
must fear persecution if he were returned to
Romania. See Balazoski v. INS, 932 F.2d 638, 640
(7th Cir. 1991).
Given these standards, we cannot find fault with
the Board’s conclusion that Mr. Tamas did not
meet his burden of showing a well-founded fear of
persecution. First, many of the actions
identified by Mr. Tamas, such as the questioning
of his wife and the opening of his mail, do not
rise to the level of persecution under the
statute. Consequently, they also cannot form the
basis for a well-founded fear of future
persecution. See Balazoski, 932 F.2d at 642(holding that questioning and detention of family
and searching family home were not sufficient to
establish a well-founded fear of persecution);
Zalega v. INS, 916 F.2d 1257, 1261 (7th Cir.
1990) (fear of questioning, denial of employment,
and denial of travel rights do not constitute a
well-founded fear of persecution).
Mr. Tamas also points to the burning of his
summer home as evidence that he will be
persecuted should he be returned to Romania. Mr.
Tamas testified that "[t]he vacation house, the
summer house we had, caught on fire. She [Rodica]
called the police and she was told to relax if
she doesn’t want to burn herself or something."
R.90./7 We cannot fault the BIA for not
attributing great weight to this intrinsically
ambiguous statement. Nothing in this statement
suggests the fire intentionally was set or was
allowed to continue unabated, much less that the
Tamas family was the target of intentional action
because of their race, religion, membership in a
particular social group or political opinion.
Without more, this statement is not sufficient to
establish a well-founded fear of persecution on
one of the statutory grounds; therefore, we shall
not reverse the BIA’s decision based on this
evidence.
Furthermore, as with the evidence concerning his
family, we believe that the State Department
Country Profile undermines Mr. Tamas’ argument
that he has a well-founded fear of future
persecution in Romania. As set forth above, the
Profile concludes that the Romanian Intelligence
Service does not have the inclination or
resources to pursue the same type of
individualized surveillance and persecution as
the Securitate. See R.256.
There is no doubt that Mr. Tamas has suffered
while living in Romania. Romania’s recent
history, including the horrors of the Ceausescu
regime, the turmoil following his execution, and
the growing pains of a new democracy, have made
life in that country difficult. However,
"generalized conditions of strife" do not "show
that [Tamas] himself will be singled out for
persecution on account of one of the enumerated
grounds," Bradvica, 128 F.3d at 1013, and the
judiciary cannot "stretch the definition of
’refugee’ to cover sympathetic, yet statutorily
ineligible, asylum applicants," Sivaainkaran, 972
F.2d at 165. The events surrounding Mr. Tamas’
life in Romania do not compel a finding that he
suffered past persecution or will suffer future
persecution on one of the grounds enumerated in
the statute. We, therefore, uphold the BIA’s
determination.
D. Lack of Due Process
Mr. Tamas makes one final argument in support of
his asylum application. He claims that he first
applied for asylum in 1991, and, had his asylum
application been processed in an expeditious
manner, he likely would have been granted asylum.
Mr. Tamas relies upon Batanic v. INS, 12 F.3d 662(7th Cir. 1993), in support of his argument. We
find Batanic inapposite.
In Batanic, the petitioner was found deportable
at a hearing in which he was denied the right to
counsel. See id. at 664. The BIA reversed the
IJ’s finding of deportability on that ground and
Batanic was provided a new hearing. See id.However, in the interim, Congress had passed a
law that rendered Batanic, who had been convicted
of an aggravated felony, ineligible for asylum.
See id. Relying on the statute, the IJ denied
Batanic’s asylum application and the BIA
affirmed. See id. On appeal, we held that, in
most cases, a procedural defect is cured by
allowing a new hearing in which the defect is not
present. See id. However, "when the procedural
defect has also resulted in the loss of an
opportunity for statutory relief, these remedies
cannot cure the defect." Id. at 667.
Consequently, we reversed the BIA’s decision and
allowed Batanic to apply for asylum nunc pro tunc
to the time of his initial hearing. See id. at
668.
In this case, there was no evidence that a
procedural defect worked to deprive Mr. Tamas of
a specific statutory right. Mr. Tamas only
speculates that he would have been granted asylum
had his application been processed through the
system in a shorter period of time. Batanic, by
contrast, was absolutely barred from seeking
asylum because of the intervening congressional
action. Consequently, we conclude that Mr. Tamas
has not stated a due process violation similar to
that in Batanic.
E. Denial of Voluntary Departure
Mr. Tamas also requests that this court reverse
the BIA and grant him voluntary departure. Both
Mr. Tamas and the INS agree that Mr. Tamas’
petition falls within the transitional rules for
judicial review of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996
("IIRIRA"), P.L. 104-208, 110 Stat. 3009-625
(1996). According to IIRIRA sec. 309(c)(4)(E),
there shall be no judicial review of
discretionary decisions, including decisions by
the BIA to grant or deny voluntary departure. See
id. Consequently, this court does not have
jurisdiction to consider Mr. Tamas’ request.
Conclusion
For the foregoing reasons, the request for
voluntary departure is dismissed, the remainder
of the petition for review is denied, and the
decision of the Board of Immigration Appeals is
affirmed.
DISMISSED IN PART; AFFIRMED IN PART
/1 The petitioner stated during his asylum hearing
that he preferred to be addressed as Mr. Tamas.
/2 The IJ stated as follows: "He [Mr. Tamas] also
alleges that [his wife] has been routinely
questioned by police. Although the respondent
stated that he receives opened mail from his wife
informing [him] of these things, he did not
submit such letters to the court. The respondent
provided no explanation for the absence of these
seemingly available corroborative letters . . .
." R.34.
/3 8 U.S.C. sec. 1158(b)(1) states: "The Attorney
General may grant asylum to an alien who has
applied for asylum in accordance with the
requirements and procedures established by the
Attorney General under this section if the
Attorney General determines that such alien is a
refugee within the meaning of section
1101(a)(42)(A) of this title."
/4 Even if there is little likelihood of future
persecution, we have recognized the power of the
Attorney General to grant asylum "as a matter of
discretion for humanitarian reasons if the alien
has suffered an ’atrocious form[ ] of
persecution’. . . ." Asani, 154 F.3d at 722(quoting Matter of Chen, Int. Dec. 3104, at * 16
(BIA 1989)). Mr. Tamas, however, does not argue
that he suffered "atrocious" forms of persecution
that might warrant a grant of asylum on
humanitarian grounds. Consequently, we limit our
discussion to the statutory framework outlined
above.
/5 In Mr. Tamas’ affidavit attached to his second
asylum application, he claimed that he, as well
as his father, was beaten by government employees
when they visited city hall to attempt to recoup
additional family lands. See R.273. In his
testimony before the IJ, Mr. Tamas stated only
that his father was beaten; he characterized his
harm as only "psychological." R.87. In his brief
to this court, Mr. Tamas recounts this second
version of events as opposed to the version
contained in his affidavit. Accordingly, we use
his testimonial account in rendering our
decision.
/6 The same is true with respect to Mr. Tamas’
belief that his wife’s car accident was an
intentional act intended to stop his inquiries
concerning his sons, as opposed to simply the
acts of an irresponsible driver.
/7 Mr. Tamas does not mention this incident in the
affidavit attached to either his first or second
asylum applications.