Morteza Seyed Tarvand v. U.S. Immigration & Naturalization Service

NIEMEYER, Circuit Judge,

dissenting:

I readily concur in Parts I through IV of the majority opinion, but I respectfully dissent from the findings contained in Part V and the order of remand. In Part V the majority opinion holds that because the Board of Immigration Appeals (BIA) re *978 viewed the immigration judge’s opinion under a certification process, “Tarvand’s application for asylum was practically and procedurally before the BIA.” It then concludes that the BIA considered the asylum issue under an incorrect standard and remands the issue for reconsideration in light of the correct legal standard.

While I take no issue with the legal standards so succinctly set out by the majority opinion on the varying proofs required for satisfying applications for asylum and for an order withholding deportation, I find that the record in this case shows that the asylum issue was not appealed to the BIA, that the BIA did not consider or rule on the asylum issue, and that it is not now before us. Moreover, if Tarvand had wished to appeal the asylum issue based on the Supreme Court’s intervening decision in INS v. Cardoza-Fonseca, 480 U.S. 421 , 107 S.Ct. 1207 , 94 L.Ed.2d 434 (1987) (establishing the differing standards of proof for an application of deportation (reasonable probability) and for asylum (a well-founded fear of an event happening, even when there is less than a fifty-percent chance of its happening)), he had every opportunity to do so but elected not to.

When deportation was initially sought by the INS, Tarvand applied for (1) asylum, (2) withholding of deportation, and alternatively, (3) voluntary departure. Because of the incredibility of much of Tarvand’s evidence, his manipulation in obtaining a visa, and his ten-day marriage to a United States citizen, the immigration judge rejected all three requests and ordered Tarvand’s deportation.

The record fully supports Tarvand’s awareness of the separate forms of relief available to him, if by no other reason, by his specific application for each. Nevertheless, when the immigration judge denied each request, Tarvand appealed only two issues: (1) the denial of the request for voluntary departure, and (2) the denial of withholding of deportation. He took no issue with the rulings on his application for asylum.

The majority opinion suggests that he may not have appealed the asylum issue because proof of that issue was treated substantially the same as that for withholding deportation. While this supposition is belied by his careful delineation of the issues listed on his notice of appeal to the BIA, he nevertheless could have sought review of the asylum issue when he became aware that its standard of proof was different. While his appeal to the BIA was pending and even before a transcript of his hearing before the immigration judge was prepared, the Supreme Court decided Car-doza-Fonseca. That decision was filed on March 9, 1987. Over five months later, on August 11, 1987, Tarvand was sent a transcript of the proceedings before the immigration judge and advised that his brief on appeal was due on August 26, 1987. At that time he was free to raise the issue presented by the intervening Supreme Court case and urge a remand to the immigration judge in light of the decision. While he undertook to file two motions for extensions of time for filing his brief, he failed to file a brief on appeal and he never sought to review the asylum issue.

Counsel for the INS did file a brief on appeal which urged the correctness of the immigration judge’s decision on the asylum issue and sought dismissal because the appeal was one day late. This brief was filed in 1986 well before the Cardoza-Fonseca opinion was decided. Even though the INS briefed the asylum issue, the BIA did not consider it. Choosing to by-pass the issue of Tarvand’s one-day late notice of appeal, the BIA decided his issues on the merits. To avoid a jurisdictional problem, the BIA elected to conduct its review under a certification process. See 8 C.F.R. § 3.1 (c). In discussing the merits the BIA stated explicitly that it was not reaching the asylum issue which Tarvand had failed to raise. After describing the three issues decided by the immigration judge, the BIA said:

[T]he respondent has contested on appeal only the immigration judge’s denial of his withholding of deportation and voluntary departure applications. We will therefore review only the immigration judge’s denial of the respondent’s re *979 quests for relief pursuant to sections 243(h) [withholding deportation] and 244(e) [voluntary departure] of the Act, 8 U.S.C. §§ 1253 (h) and 1254(e), respectively. (Emphasis added.)

Because the asylum issue was not appealed by Tarvand and was not considered by the BIA, we have no authority to consider it when reviewing the BIA’s decision. See Farrokhi v. INS, 900 F.2d 697, 700 (4th Cir.1990) (by not raising a claim in an appeal to the BIA, an alien generally waives his right to raise it before a federal court). The facts in this case, both with respect to the merits and the procedural aspects, do not suggest an injustice that would justify our extraordinary departure from established principles of review to provide Tar-vand this relief. Moreover, after the Supreme Court handed down Cardoza-Fonseca , Tarvand had sufficient time in which to raise and argue the asylum issue before the BIA. I would therefore affirm the BIA without ordering a remand.

I respectfully dissent.