Appendix — William v. Immigration & Naturalization Service

Hany E. William, Petitioner,

V.

IMMIGRATION AND

NATURALIZATION SERVICE,

Respondent.

No. 99-60422,

United States Court of Appeals,

Fifth Circuit.

July 17, 2000.

Bruce A. Coane, Ajay Kumar Choudhary

(argued), Coane & Associates, Houston, TX, for

Petitioner.

Matthew R. Hall (argued), Terri Jane Scadron,

U.S. Dept. of Justice, Immigration Litigation, Civ. Div.,

Janet Reno, Atty. Gen., Robert L. Bombaugh, Director,

Office of Immigration and Naturalization, Houston, TX,

Lynne Underdown, Immigration and Naturalization

Service, District Directors Office, Attn: Joe A. Aguilar,

New Orleans, LA, for Respondent.

Petition for Review of an Order of the Board of

Immigration Appeals.

Before DAVIS, SMITH and DENNIS, Circuit

Judges.

JERRY E. SMITH, Circuit Judge:

Hany William petitions for review of an order of

the Board of Immigration Appeals (“BIA”) dismissing,

as untimely, his motion to reopen deportation

proceedings. Concluding that the interpretation by the

Immigration and Naturalization Service (“INS”) of its

regulation is not unreasonable, we deny the petition for

review and affirm the order of the BIA.

I.

William, an Egyptian citizen, entered the United

States on a student visa in 1992. In 1994, he was

issued an order to show cause why he should not be

deported for failing to maintain the conditions of his

non-immigrant status. At the administrative hearing, he

conceded his deportability but requested asylum.

An immigration judge denied his application for

relief and ordered deportation. The Board of

Immigration Appeals (“BIA”) affirmed, dismissing

William's direct appeal on September 24, 1997.

William filed a motion to reconsider on

October 22, 1997, requesting withholding of

deportation based on his change in marital status and

his wife’s eligibility for citizenship. The BIA construed

his request as both a motion to reconsider its dismissal

of his appeal and a motion to reopen to allow him to

apply for adjustment of status based on the new fact of

AMAR OO MOL

his marriage to a lawful permanent resident.’ The BIA

denied the motion on April 30, 1998.

William filed a motion to reopen on July 28,

1998, attaching his marriage certificate and noting that

his wife had completed the naturalization interview and

tests and would be sworn in as a citizen in a few

weeks. He requested permission to adjust his status

once his wife was sworn in.

William submitted that his motion to reopen was

timely because it was filed within ninety days of the

denial of his motion to reconsider. The BIA disagreed,

dismissing his motion to reopen as untimely and

concluding that it should have been filed within ninety

days of the dismissal of his direct appeal.

i.

INS regulations governing motions to reopen

provide, in pertinent part, that “a party may file only one

motion to reopen. . . and that motion must be filed no

later than 90 days after the date on which the final

' This ruling motivated the INS’s argument that because the

current motion was William's second motion to reopen, he was

foreclosed from making that motion under 8 C.F.R. §

3.2(c)(2)’s requirement that he could file only one motion to

reopen. But because the BIA did not address this argument

in its decision, and because the INS does not reassert that

argument on appeal, we do not consider it.

administrative decision was rendered in the proceeding

sought to be reopened.” 8 C.F.R. § 3.2(c)(2).

William's petition for review presents an issue of first

impression: whether the decision in William's original

appeal to the BIA, as distinguished from the

subsequent denial of his motion to reconsider, was “the

final administrative decision . . . in the proceeding to be

reopened.” If the dismissal of his original appeal

qualifies, then his motion to reopen was untimely. But

if the denial of his motion to reconsider is the final

decision under § 3.2(c)(2), the motion to reopen was

timely.

William argues that under Stone v. INS, 514

U.S. 386, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995), the

denial of a motion to reconsider is a final order of

deportation and that the denial of a motion to

reconsider is a final administrative decision from which

the ninety-day clock should start running. Thus, he

concludes that the BIA’s construction of the regulation

is inconsistent with its plain meaning and therefore is

not entitled to deference.

The INS responds by also citing Stone, in which

the Court decided whether the filing of a motion to

reconsider or reopen tolls the timie during which judicial

review of the underlying deportation order may be

sought. The Court held that an order of deportation is

final, that a denial of a motion to reconsider is a second

ie RO a Se oe BS ’

final order, and the time limits for seeking judicial

review of a final order apply separately to each final

order. See id. at 395, 115 S.Ct. 1537.

Thus, the INS argues that under Stone, both the

denial of the motion to reconsider and the dismissal of

the appeal of the deportation order should be

considered “final administrative decisions” for purposes

of § 3.2(c)(2). The INS reasons further that because

William’s motion to reopen should relate to “the

proceeding to be reopened,” it is the underlying

deportation decision, and not the denial of the motion

to reconsider, that is being challenged. This is so

because William seeks to introduce new evidence that

he contends will affect his deportation — i.e., that his

wife is going to become a citizen.

This evidence could not be introduced in a

proceeding for a motion to reconsider, the INS notes,

because that type of motion challenges only the legal

analysis employed by the immigration judge. The

deportation proceeding is the proper forum for this new

evidence, because there the immigration judge can

take into account any additional factors supporting

discretionary relief from deportation. That is to say,

because an alien who seeks to introduce new evidence

can reopen only a proceeding that once was open for

the receipt of evidence, the motion to reopen must look

back to an evidentiary proceeding rather than to the

denial of reconsideration.

William tries to refute this construction by

arguing that he seeks to reopen all deportation

“proceedings” related to his case, which therefore

would include both the original deportation decision

and the denial of his motion to reconsider. Although

this is not an implausible reading of the statute, the

better interpretation is that the language of § 3.2(c)(2)

is not so broad and, instead, refers only to a single

“proceeding” that a party may seek to reopen, and,

again, the government reasonably argues that the

denial of a motion to reconsider cannot be “reopened”

where it was never open to the type of new evidence

William seeks to introduce.

Thus, while the regulation’s use of “final

administrative decision” is facially unambiguous, it

invites, in the context of the next phrase, “rendered in

the proceeding sought to be reopened,” at least two

reasonable interpretations. Therefore, the provision is,

at most, ambiguous as to the question presented in

this appeal, so we defer to the INS's reasonable

interpretation of its own regulation. See Ghassan v.

INS, 972 F.2d 631, 637 (Sth Cir.1992).

William avers that we should not defer, because

the INS’s interpretation is plainly unreasonable. This is

so, he asserts, because “final” can only mean the “last”

se aE a le A OS le ig Niche tc AE ADE SANs PA Aa elaine

a a ee ee

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administrative decision in his case.

Although William's construction is not

unreasonable, neither is the INS’s, because “final

administrative decision” refers to “the proceeding

sought to be reopened.” It is possible that, as William

suggests, this phrase refers to the broader deportation

process, but we cannot say that the INS’s

determination that the phrase refers to the particular

stage of the process sought to be reopened is “plainly

erroneous or inconsistent with the regulation.” Thomas

Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114

S.Ct. 2381, 129 L.Ed.2d 405 (1994).

Accordingly, the petition for review is DENIED,

and the order of the BIA is AFFIRMED.

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A73 122 128 - Houston Date: May 21, 1999

In re: HANY E. WILLIAM

IN DEPORTATION PROCEEDINGS

MOTION

ON BEHALF OF RESPONDENT:

Hanna Z. Hanna, Esquire

ON BEHALF OF SERVICE: Donald W. Cassidy

Deputy District

Counsel

ORDER:

PER CURIAM. The motion to reopen has been

filed out of time and will be denied. Our prior order in

these proceedings was entered on September 24,

1997. Pursuant to 8 C.F.R. § 3.2(c)(2) with certain

exceptions not pertinent here, a motion to reopen in

any case previously the subject of a final decision by

the Board must be filed not later than 90 days after the

date of that decision, or on or before September 30,

1996, whichever is later. See 61 Fed. Reg. 18,900

(1996). In the instant case, a motion to reopen would

have been due on or before December 23, 1997. The

record reflects, however, that the Board did not receive

the motion until July 28, 1998. The motion to reopen

was therefore filed out of time. Accordingly, the motion

to reopen is denied.

Lauren R. Mathon

FOR THE BOARD

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A73 122 128 - Houston Date: April

30, 1998

In re: HANY E. WILLIAM

IN DEPORTATION PROCEEDINGS

MOTION

ON BEHALF OF RESPONDENT:

Hanna Z. Hanna, Esquire

401 Broadway, Suite 804

New York, New York 10013

ON BEHALF OF SERVICE:

Benjamin D. Somera

Assistant District Counsel

CHARGE:

Order: Sec. 241(a)(1)(C)(i), I&N Act [8 U.S.C. §

1251(a)(1)(C)(i)] - Nonimmigrant - failed to comply

with conditions of status __

APPLICATION: Reconsideration: reopening

ORDER:

PER CURIAM. The motion to reconsider is

10

denied. The motion to reopen is also denied.

On September 24, 1997, this Board dismissea

the respondent's appeal from the Immigration Judge's

July 27, 1995, decision denying his application for

asylum and withholding of deportation under sections

208 and 242(h) of the Immigration and Naturalization

Act, 8 U.S.C. §§ 1158, 1253(h), and ordering him

deported from the United States to Egypt. By motion

filed October 22, 1997, the respondent has asked the

Board to reconsider its decision in the matter in light of

an unpublished decision finding a well-founded fear of

persecution in the case of a Coptic Christian from

Egypt. In support of his motion, the respondent has

proffered new evidence to bolster his argument that, as

a Coptic Christian, he too has a well-founded fear of

persecution. The Immigration and Naturalization

Service opposes the motion.

As the Service points out in its statement of

opposition, an unpublished decision is without

precedential value. Matter of Arthur, 20 |&N Dec. 475,

479 (BIA 1992); Matter of Medrano, 20 |&N Dec. 216,

220 (BIA 1990, 1991). Moreover, we note that in the

unpublished decision relied upon by the respondent,

the alien was not found eligible for asylum because of

a “pattern or practice of persecution” of Coptic

Christians in Egypt. 8 C.F.R. § 208. 13(b)(2)(i) (1997).

Rather, the alien established that he was particularly at

11

risk of persecution because of his involvement with

religious and church activities. See, e.g., Kotasz v.

INS, 31 F.3d 847, 853 (9th Cir. 1994) (holding that in

non-pattern or practice cases, the risk faced by an

individual because of membership in a disfavored

group can rise to the level required for establishing a

well-founded fear of persecution as a result of the

individual's activities in support of the group). Thus, the

case finding asylum eligibility is distinguishable from

that of the respondent before us, who has presented

no specific evidence of a “particularized threat of

persecution” on account of his Coptic Christian religion

or any of the other grounds protected under the Acct. /d.

We therefore decline to reconsider our dismissal of the

respondent's appeal in this case. See Matter of Cema,

20 I&N Dec. 399 (BIA 1991), affd, Cera v. INS, 979

F.2d 212 (11th Cir. 1992); 8 C.F.R. § 3.2(b)(1) (1997).

The respondent alternatively seeks to reopen

proceedings to allow him an opportunity to apply for

adjustment of status based on his marriage to a lawful

permanent resident.' Contrary to his assertions,

though, the respondent has failed to establish prima

1 The respondent appears to characterize such an

opportunity as “withholding of deportation.” However, to

qualify for withholding of deportation under section 243(h) of

the Act, he must establish a clear probability of persecution

on account of a protected ground, which he has failed to do.

12

facie eligibility for adjustment of status. For instance,

although he indicates that his wife has filed for

naturalization, he has failed to show that an immigrant

visa is “immediately available” to him. Section 245(a) of

the Act, 8 U.S.C. § 1255(a). In any event, despite the

Service’s opposition to his motion, the respondent has

failed to submit an adjustment application (Form 1-

485). See Matter of Yewondwosen, Interim Decision

3327 (BIA 1997); 8 C.F.R. § 3.2(c)(1) (1997).

Accordingly, we also deny the respondent's request for

reopening.

Fred W. Vacca

FOR THE BOARD

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A73 122 128 - Houston Date: SEP 24,

1997

In re: HANY E. WILLIAM

IN DEPORTATION PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT:

Janet B. Beck, Esquire

Judith G. Cooper, P.C. aa

3040 Post Oak Boulevard, Suite 1450

Houston, Texas 77056-6511

ON BEHALF OF SERVICE:

Benjamin D. Somera

Assistant District Counsei

CHARGE:

Order: Sec. 241(a)(1)(C)(i), l&N Act [8

U.S.C. § 1251(a)(1)(C)(i)] -Nonimmigrant - failed to

comply with conditions of status

APPLICATION: Asylum; withholding of deportation;

voluntary departure; remand

14

In a decision dated July 27, 1995, the

Immigration Judge found the respondent deportable as

charged, denied his application for asylum and

withholding of deportation under sections 208 and

243(h) of the immigration and Nationality Act, 8 U.S.C.

§§ 1158, 1253(h), and ordered him deported from the

United States to Egypt. The respondent has appealed.

The appeal will be dismissed. The request for oral

argument is denied. See 8 C.F.R. § 3.1(e).

The respondent is a 24-year-old Coptic Christian

from Egypt who claims that the Egyptian government

suspects him of being an israeli spy. On appeal, he

argues through counsel that he was deprived of a fair

hearing before the Immigration Judge. More

specifically, he maintains that the Immigration Judge

refused to allow him to present evidence on his own

behalf, denied him his right to counsel, and erroneously

admitted into evidence the Immigration and

Naturalization Service’s notice of intent to deny his

prior asylum application. He also contends that the

Service trial attorney was inappropriately permitted to

advise and question him regarding the relief of

voluntary departure. With his appeal, he has proffered

new evidence.

Having reviewed the record, we find no merit to

the appeal. The respondent's fair hearing claim

essentially turns on the issue of whether he was truly

15

denied his right to counsel. The record reflects that the

manner in which the hearing was held was largely

related to the fact that the respondent was

unrepresented. As the respondent was unrepresented,

he had no advocate to present evidence on his behalf

or to conduct his direct examination once the issue of

his deportability was settled.’ We note in this regard

that notwithstanding counsel's arguments on appeal,

the record includes no evidence whatsoever that the

respondent himself ever proffered any evidence,

including witnesses, at the hearing.

However, the record further reflects that on April

26, 1995, the respondent was advised of his right to

counsel at his own expense and provided with a list of

' The respondent does not appear to contest his

deportability as a nonimmigrant who failed to maintain or

comply with the conditions of his nonimmigrant status.

Rather, his arguments focus on his applications for relief

from deportation, for which he alone bears the burden of

proof. E.g. Matter of S-M-J-, Interim Decision 3303 (BIA

1997); Matter of Dass, 20 1&N Dec. 120 (BIA 1989); Matter

of Seda, 17 |&N Dec. 550, 554 (BIA 1980); 8 C.F.R. §§

208.13(a). 208.16(b); 242.17(e). 244.1. While both the

Immigration Judge and the Service have a role to place in

producing an adequate record for the adjudication of an

asylum claim, their obligations in this respect do not shift the

burden of proof. See Matter of S-M-J-, supra at 11 n.3.

16

available free legal services programs in his area in

accordance with the regulations at 8 C.F.R. § 242.16(a)

(Tr. at 2-3). See sections 242(b)(2) and 292 of the Act,

8 U.S.C. §§ 1252(b)(2), 1362. This is not even disputed

on appeal. Nevertheless, the respondent argues that

the Immigration Judge failed to adequately inquire

whether he wished to retain counsel or to determine

whether his waiver of this right was effective. We

consider this argument specious. The respondent was

offered a continuance to obtain counsel, but indicated

that he wished to proceed on his own and represent

himself (Tr. at 3). Moreover, at the reconvened hearing

on the merits of the respondent's applications for relief

from deportation, the respondent again appeared

without counsel despite having been advised by the

Immigration Judge at the conclusion of his prior hearing

that he could still obtain counsel if he so desired. As

the reconvened hearing was held on July 27, 19985, it is

apparent the respondent had ample opportunity to

secure counsel and, for whatever reason, simply failed

to do so. Therefore, we are fully satisfied that the

respondent's waiver of his right to counsel was

knowingly, intelligently, and competently made, and

thus, the Immigration Judge was under no obligation to

make a further inquiry in this regard. See Coboume v.

INS, 779 F.2d 1564 (11th Cir. 1986); Matter of

Gutierrez, 16 |&N Dec. 226 (BIA 1977).

In the absence of counsel for the respondent,

17

his examination was left primarily to the Service trial

attorney. Unlike the respondent, the Service trial

attorney also introduced documentation into evidence,

including an affidavit by the respondent which counsel

relies upon in restating the facts of the respondent's

asylum claim on appeal even though it is inconsistent

with his testimony. Indeed, the documentation

apparently was introduced for the sole purpose of

impeaching the respondent's testimony. This case is

therefore distinguishable from Olabanji v. INS, 973

F.2d 1232 (5th Cir. 1992), where the Service sought to

rely on hearsay evidence from an alien’s spouse and a

forensic document analyst to prove the alien’s

deportability for marriage fraud. As such, we find no

basis for concluding that the notice of intent to deny at

issue On appeal was inadmissible. See Ca/deron-

Ontiveros v. INS, 809 F.2d 1050 (5th Cir. 1986); Matter

of Gnijalva, 19 |&N Dec. 713 (BIA 1988); Matter of

Barcenas, 19 1&N Dec. 609 (BIA 1988); 8 C.F.R. §

242.15(c). We point out, however, that there is no

indication that the Immigration Judge relied on the

notice in denying the respondent's claim. We also find

no evidence that the Service trial attorney misadvised

the respondent as to voluntary departure, particularly

as it was explained to him on the record that a grant of

that form of relief would not necessarily mean that he

would return to Egypt (Tr. at 48).

In any event, we note that in deportation

18

proceedings, “an alien has not been given a fair

hearing only if he has been prejudiced by some

deficiency so as to deprive him of due process.” Matter

of D-, 20 |&N Dec. 827, 831 (BIA 1994); see, e.g.,

Prichard-Ciriza v. INS, 978 F.2d 219 (5th Cir. 1992);

Calderon-Ontiveros v. INS, supra; Matter of Santos, 19

I&N Dec. 105 (BIA 1984). In this case, counsel for the

respondent argues at length that the proceedings were

defective, but she fails to demonstrate how the

respondent's case would have been affected had the

hearing been conducted differently. We emphasize in

this regard that while evidence has been proffered on

appeal, there has been no showing that such evidence

could not have been presented before the Immigration

Judge. We therefore find no basis for a remand of the

record. See Matter of Coelho, 20 1&N Dec. 464 (BIA

1992): see also Matter of Fedorenko, 19 |&N Dec. 57,

74 (BIA 1984) (“The Board is an appellate body whose

function is to review, not to create, a record.”).

As for the merits of the respondent's asylum

claim, we note that “[pJersecution is an extreme

concept, which ordinarily does not include

‘{d]iscrimination on the basis of race or religion, as

morally reprehensible as it may be.” Fisher v. INS, 79

F.3d 955, 961 (9th Cir. 1996) (quoting Ghalv v. INS, 58

F.3d 1425, 1431 (9th Cir. 1995); see also Fatin v. INS,

12 F.3d 1233, 1240 (3d Cir. 1993) (“[T]he concept of

persecution does not encompass all treatment that our

19

society regards as unfair, unjust, or even unlawful or

unconstitutional."); Balazoski v. INS, 932 F.2d 638 (7th

Cir. 1991) (finding that “persecution” means more than

harassment); Matter of Pierre, 15 |&N Dec. 461, 463

(BIA 1975) (“Not every unlawful act of individual

harassment will amount to persecution” within the

meaning of the Act.). The respondent before us

admitted that he has never been arrested, detained, or

physically abused by the Egyptian authorities (Tr. at

31). He vaguely indicated that he has been mistreated

or fears mistreatment by Islamists, but the background

evidence of record indicates that “[s]ecurity forces

arrest terrorists who perpetrate violence against Copts,

though as in this country, the government does not

always prevent terroristic attacks (Exh. 8).

Thus, we are not persuaded that the

government condones religiously-motivated violence or

that it is unable or unwilling to protect its Coptic

Christian minority. See Ghalv v. INS, 58 F.3d 1424,

1431 (9th Cir. 1995); Yacoub v. INS, 999 F.2d 1296,

1297 (8th Cir. 1993); Elnager v. INS, 930 F.2d 784,

789 (9th Cir. 1991); cf. Singh v. INS, 94 F.3d 1353 (9th

Cir. 1996) (finding an Indo-Fijian eligible for asylum

where he faced persistent death threats and assaults

despite having repotied each and every threat and

assault to the police and identifying his assailants by

name); Abdel-Masieh v. INS, 73 F.3d 579 (5th Cir.

1996) (holding that the Board erred in denying asylum

20

to a Christian Sudanese who brought forward evidence

that the current military government had consistently

promoted an agenda for imposing Islamic laws on all

Sudanese citizens and that those efforts by the

government had markedly increased religious

intolerance and discrimination throughout the country).

Moreover, while he claims that he has been

investigated for espionage, his own testimony indicates

that this is because of his frequent trips to Israel to visit

his father, who works for Egyptian Airlines, rather than

his actual or imputed political opinion.” In short, we find

insufficient evidence to support the contention that the

respondent has been persecuted or has a well-founded

fear of persecution on account of one of the grounds

protected under the Act. See INS v. Elias-Zacarias, 502

U.S. 478 (BIA 1992); INS v. Cardoza-Fonseca, 480

2 For instance, in contrast to his affidavit, the respondent

testified that he was interrogated when he would “come

back to Egypt” (Tr. at 22), indicating that he was only

subject to routine questioning at the border upon his returns

from Israel. Indeed, while the Egyptian government certainly

has a right to investigate its citizens for espionage, see

Matter of R-O-. 20 |&N Dec. 455 (BIA 1992), we doubt that

the respondent was ever even seriously suspected of being

a spy, because his passport apparently was never revoked

(Tr. at 32). See Urokov v. INS, 55 F.3d 222 (7th Cir. 1995);

Rodriguez-Rivera v. INS, 848 F.2d 998, 1006 (9th Cir.

1988).

21

U.S. 421 (1987); Matter of S-P-, Interim Decision 3287

(BIA 1996); Matter of R-O-, 20 I&N Dec. 455 (BIA

1992). It follows that he has not satisfied the clear

probability standard of eligibility required for withholding

of deportation. See INS v. Cardoza-Fonseca, supra;

INS v. Stevic, 467 U.S. 407 (1984); Matter of

Mogharrabi, 19 |\&N Dec. 439 (BIA 1987).

The respondent failed to qualify himself for

voluntary departure. The regulations at 8 C.F.R. §

244.1 require that an alien establish that he “is willing

and has the immediate means with which to depart

promptly from the United States.” The respondent,

however, testified that he is unwilling to depart and that

he does not have “the funds” (Tr. at 49).

Accordingly, the appeal will be dismissed.

ORDER: The appeal is dismissed.

Mary Maguire Dunne

FOR THE BOARD

22

RE RE