Ali v. Ashcroft

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206 2 Ali v. Ashcroft, et al. No. 02-3810

ELECTRONIC CITATION: 2004 FED App. 0117P (6th Cir.)

File Name: 04a0117p.06 _________________

COUNSEL

UNITED STATES COURT OF APPEALS

ON BRIEF: Charles S. Owen, OWEN & ASSOCIATES,

FOR THE SIXTH CIRCUIT Southfield, Michigan for Petitioner. Jennifer A. Parker,

_________________ Terri J. Scadron, UNITED STATES DEPARTMENT OF

JUSTICE, OFFICE OF IMMIGRATION LITIGATION,

MOHAMED RAMIZ ALI, X Washington, D.C., for Respondents.

Petitioner, - _________________

-

- No. 02-3810

v. OPINION

-

> _________________

,

JOHN ASHCROFT , Attorney - BOYCE F. MARTIN, JR., Circuit Judge. Mohamed Ramiz

General; IMMIGRATION AND - Ali petitions for review of a final order of removal issued by

NATURALIZATION SERVICE, - the Board of Immigration Appeals, which affirmed the

Respondents. - immigration judge’s denial of his requests for asylum,

- withholding of deportation and voluntary departure. For the

N following reasons, Ali’s petition is DENIED.

On Petition for Review of the Order of the Board of

Immigration Appeals. FACTUAL AND PROCEDURAL BACKGROUND

No. A73 378 380. Ali is a native and citizen of Bangladesh who entered the

United States in 1991 without inspection by the Immigration

Submitted: January 29, 2004 and Naturalization Service. The Service commenced removal

proceedings against Ali on March 14, 1997. Ali concedes

Decided and Filed: April 22, 2004 that he is deportable, but requests relief from deportation on

several grounds. His primary claim is that he is entitled to

Before: MARTIN and MOORE, Circuit Judges; WEBER , asylum and withholding of deportation because he was, and

Senior District Judge.* fears he will be, persecuted in Bangladesh on account of his

political opinion. He also requests voluntary departure.

The deportation hearing predominantly featured Ali’s own

testimony, which the immigration judge found “incredible,”

“difficult to comprehend” and inconsistent with the

documentary evidence. The crux of Ali’s testimony was that

* during the period from 1987 to 1990, he was persecuted by

The Hon orable H erman J. W eber, Senior United States District

Judge for the Southern District of Ohio, sitting by designation. Bangladesh police because of his involvement with the

1

No. 02-3810 Ali v. Ashcroft, et al. 3 4 Ali v. Ashcroft, et al. No. 02-3810

Jamaat political party. Ali testified that he became a member At the conclusion of the hearing, the immigration judge

of that party in 1985 and became the president of its local unit rendered an oral decision denying Ali’s requests for asylum,

in 1987. After he became president, Ali allegedly began withholding of deportation and voluntary departure. On

having problems with opposing political parties – specifically, June 19, 2002, the Board of Immigration Appeals summarily

the Awami League, the Jantiya Party and the Bangladesh affirmed the immigration judge’s decision without an opinion.

National Party. Ali testified that he had been arrested and Presently before this Court is Ali’s petition for review of the

detained on two different occasions as a result of his final order of removal issued by the Board. Where, as here,

participation in violent conflicts with members of opposing the Board summarily affirms an immigration judge’s decision

political parties. According to Ali, these conflicts occurred without issuing an opinion, the immigration judge’s decision

during public meetings for his party and were the result of is considered the final agency action to be reviewed by this

members of opposing parties showing up at the meetings and Court. Denko v. INS, 351 F.3d 717, 729 (6th Cir. 2003). We

causing trouble. He claimed that he was arrested because an review questions of law involving immigration proceedings

opposing party was in power and he was unfairly blamed. Ali de novo. Huicochea-Gomez v. INS, 237 F.3d 696, 699 (6th

testified that he had sustained various injuries during these Cir. 2001). The particular standards of review that apply to

conflicts and while in police custody, including being shot in Ali’s specific claims are set forth within the following

the arm, hit in the leg, cut in the finger and hit in the head. analysis.

Ali claims that some time after his release from prison ANALYSIS

another warrant was issued for his arrest. According to Ali,

that warrant was based upon false accusations by an opposing A. Asylum and Withholding of Deportation

party. He fled Bangladesh and eventually entered Canada

using a fake passport. In 1991, Ali entered the United States The Board’s determination that Ali is ineligible for asylum

without inspection, where he later met and married a woman or withholding of deportation must be upheld if “supported by

named Alma Sumner. reasonable, substantial, and probative evidence on the record

considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478,

During Ali’s deportation hearing, the Service proffered 481 (1992) (citation omitted); Klawitter v. INS, 970 F.2d 149,

several documents that cast doubt upon the validity of his 151-52 (6th Cir. 1992). In order to reverse the Board’s

marriage to Sumner. One document was a sworn statement determinations, “the reviewing court must find that the

from Sumner requesting the withdrawal of the I-130 evidence not only supports a contrary conclusion, but indeed

application that she had filed on Ali’s behalf, which stated, in compels it.” Klawitter, 970 F.2d at 152 (citing Elias-

pertinent part: “I think he married me to get a green card.” Zacarias, 502 U.S. at 481).

Another document was a letter from the Service to Ali setting

forth various discrepancies in Ali’s and Sumner’s statements 1. Asylum

concerning their marriage and indicating that “the Service can

only conclude that this marriage was entered into by you for “Disposition of an application for asylum requires a two-

the sole purpose of obtaining permanent resident status and step inquiry: first, whether the petitioner is a ‘refugee’ within

evading immigration laws.” These documents were admitted the meaning of the [Immigration and Nationality Act], and

over Ali’s objection. second, whether the petitioner merits a favorable exercise of

discretion by the Attorney General.” Perkovic v. INS, 33 F.3d

No. 02-3810 Ali v. Ashcroft, et al. 5 6 Ali v. Ashcroft, et al. No. 02-3810

615, 620 (6th Cir. 1994). A “refugee” is a person who is competing political factions, was supported by substantial

unable or unwilling to return to his home country “because of evidence. The immigration judge found no evidence that the

persecution or a well-founded fear of persecution on account police were conspiring with a rival political group, or that

of race, religion, nationality, membership in a particular social they arrested Ali for any reason other than his involvement in

group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). causing a public disturbance, and Ali points to no evidence

“[P]ersecution is an extreme concept that does not include that would undercut that finding. We conclude that

every sort of treatment our society regards as offensive.” substantial evidence supports the immigration judge’s

Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir. 1995) (citations determination that Ali is not a refugee and is therefore not

and quotation marks omitted). “Persecution” entails entitled to asylum on the basis of past persecution.

“punishment or the infliction of suffering or harm,” but

“harassment or discrimination without more does not rise to Because Ali has failed to prove past persecution, he is “not

the level of persecution.” Mikhailevitch v. INS, 146 F.3d 384, entitled to the presumption under 8 C.F.R. § 208.13(b)(1)(i)

389-90 (6th Cir. 1998) (citations omitted). of a well-founded fear of suffering future persecution.”

Mikhailevitch, 146 F.3d at 390. To determine whether Ali

The Seventh Circuit’s opinion in Meghani v. INS, 236 F.3d has a well-founded fear of future persecution on account of

843 (7th Cir. 2001), is particularly instructive on the issue of his political opinion, therefore, we apply the standard set forth

whether Ali’s experiences in Bangladesh amount to past in Perkovic:

persecution on account of his political opinion. In Meghani,

the petitioner, a member of a political group called the The Supreme Court has held that an applicant for asylum

Pakistan People’s Party, was assaulted and injured at his has a well-founded fear of persecution if he can show

office by members of a rival political party, the Mahegir that “persecution is a reasonable possibility” should he

Quami Movement. The petitioner did not notify the police be returned to his country of origin. A well-founded fear

about this incident because he believed they would be of persecution has both a subjective and an objective

ineffective at remedying the problem. He subsequently fled component: an alien must actually fear that he will be

the country and ultimately entered in the United States. The persecuted upon return to his country, and he must

petitioner conceded that he met the requirements for present evidence establishing an “objective situation”

deportability, but claimed that he was entitled to asylum under which his fear can be deemed reasonable. A well-

because he was, and feared he would be, persecuted on founded fear of persecution does not require the applicant

account of his political opinion. The Seventh Circuit held to show that he probably will be persecuted if he is

that “[c]onditions of political upheaval which affect the deported; “[o]ne can certainly have a well-founded fear

populace as a whole or in large part are generally insufficient of an event happening when there is less than a 50%

to establish eligibility for asylum,” and that what the chance of the occurrence taking place.”

petitioner experienced was “civil unrest between competing

political factions,” not persecution. Id. at 847 (citation 33 F.3d at 620-21 (quoting INS v. Cardoza-Fonseca, 480 U.S.

omitted). 421 (1987)). “[A]n alien is not required to produce evidence

of persecution; the alien’s own testimony can be sufficient to

Taking the record as a whole, we are convinced that the support an application for asylum, where the testimony is

immigration judge’s conclusion that Ali did not suffer believable, consistent, and sufficiently detailed to provide a

persecution, but was instead involved in civil unrest between plausible and coherent account of the basis for his fear.” Id.

No. 02-3810 Ali v. Ashcroft, et al. 7 8 Ali v. Ashcroft, et al. No. 02-3810

at 621 (citation and internal quotation marks omitted). account of the basis for his fear.” Id. at 621. We find that

Because a well-founded fear of persecution can be based upon substantial evidence supports the immigration judge’s

what has happened to others who are similarly situated, it is conclusion that Ali did not possess a well-founded fear of

“necessary, in considering an applicant’s asylum petition, to persecution in Bangladesh on account of his political opinion.

weigh evidence of general conditions in the country of origin

and the foreign government’s history of treatment of others 2. Withholding of Deportation

engaged in similar activities.” Id. (citation omitted).

To qualify for withholding of deportation, an applicant

Ali testified at the deportation hearing that he feared that he must show a “clear probability of persecution,” which is a

would suffer persecution on account of his political opinion stricter standard than the “well-founded fear” standard that

if he were forced to return to Bangladesh. While Ali may, in applies with respect to applications for asylum. INS v. Stevic,

fact, subjectively fear future persecution, we find no sufficient 467 U.S. 407, 430 (1984); see also 8 C.F.R. § 208.16(b)(1).

basis in the record to undercut the immigration judge’s Because Ali has failed to demonstrate a well-founded fear of

conclusion that his fear is not objectively reasonable. persecution in Bangladesh on account of his political opinion,

Perkovic, 33 F.3d at 620-21. Ali’s fear of future persecution his request for withholding of deportation must likewise fail.

is primarily based upon events that have occurred in the past Daneshvar v. Ashcroft, 355 F.3d 615, 625 (6th Cir. 2004)

that the immigration judge concluded, based upon substantial (“Because substantial evidence supports the conclusion that

evidence, do not rise to the level of persecution. There is Petitioner is ineligible for asylum, it therefore follows that he

simply no evidence in the record to substantiate Ali’s cannot satisfy the more stringent standard for withholding of

testimony that he fears future persecution.1 In fact, as the deportation.”).

immigration judge emphasized, the State Department’s 1998

asylum profile for Bangladesh reveals no information B. Voluntary Departure

indicating that members of the Jamaat political party have

suffered persecution on account of their political opinion, The Immigration and Nationality Act grants the Attorney

despite the party’s ability “to mount violent demonstrations General the discretionary power to allow a deportable alien to

in support of fundamentalist Muslim positions.” Bangladesh: depart voluntarily in lieu of deportation if the alien establishes

Profile of Asylum Claims and Country Conditions, United that he “has been a person of good moral character, for at

States Department of State, February 1998, at 10. Finally, in least five years preceding his application.” 8 U.S.C.

the face of the immigration judge’s reasonable doubts about § 1254(e). The immigration judge determined that Ali had

Ali’s credibility, we are unable to say that Ali’s testimony, failed to demonstrate the requisite “good moral character.”

standing alone, was sufficiently “believable, consistent, and That determination was based at least in part upon the

sufficiently detailed to provide a plausible and coherent Service’s evidence regarding the validity of his marriage to

Sumner. Ali concedes that entering into a sham marriage for

purposes of obtaining immigration benefits precludes an alien

1

Ali produced a d ocument during the deportation he aring that he

from demonstrating the requisite good moral character.

claimed was a copy of an outstanding warrant for his arrest issued by Nevertheless, he argues that the immigration judge erred in

authorities in Bangladesh, bu t the immigration judge excluded this finding that he was not entitled to voluntary departure. He

document because it could not be authenticated. Ali has not specifically also contends that the admission of the evidence concerning

challenged the immigration judge’s exclusion of this document, and the the validity of his marriage denied him a fair hearing.

document is not part of the record evidence.

No. 02-3810 Ali v. Ashcroft, et al. 9

The transitional rules of the Illegal Immigration Reform

and Immigrant Responsibility Act of 1996 apply in this case

because Ali’s deportation proceedings commenced before

April 1, 1997, but the final administrative order of deportation

was issued on or after October 30, 1996. IIRIRA §§ 309(a),

(c)(1), (c)(4). Under the transitional rules, we lack

jurisdiction to review “any discretionary decision under

section . . . 244 of the [Immigration and Nationality Act].”

Id. at § 309(c)(4)(E). A decision denying voluntary departure

is such a discretionary decision. Id.; Lulaj v. INS, 71 Fed.

Appx. 524, 526 (6th Cir. 2003) (unpublished opinion).

Therefore, we lack jurisdiction to review the propriety of the

denial of Ali’s request for voluntary departure. Lulaj, 71 Fed.

Appx. at 526; Tamas-Mercea v. Reno, 222 F.3d 417, 427 (7th

Cir. 2000).

To the extent that Ali asserts a due process violation based

upon the immigration judge’s admission of the evidence

concerning the validity of his marriage, such a claim must

also fail. “Fifth Amendment guarantees of due process

extend to aliens in deportation proceedings, entitling them to

a full and fair hearing.” Huicochea-Gomez, 237 F.3d at 699

(citations omitted). However, “[t]he failure to be granted

discretionary relief [such as voluntary departure] does not

amount to a deprivation of a liberty interest.” Id. at 700

(citation omitted). Because Ali cannot demonstrate that he

has suffered a deprivation of a liberty interest, he cannot

prove a due process violation.

CONCLUSION

For these reasons, Ali’s petition for review of the order of

the Board of Immigration Appeals is DENIED.