Saiyid v. INS

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 95-8238

Agency Nos. A29-295-133 & A29-295-124

IFTIKHAR HUSSAIN SAIYID and NAZMA SAIYID, Petitioners,

versus

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

Appeal from the United States Board of Immigration Appeals

(January 12, 1998)

Before HATCHETT, Chief Judge, TJOFLAT, Circuit Judge, and GODBOLD, Senior Circuit Judge. TJOFLAT, Circuit Judge

This case is before us on a petition to review a final order

of deportation. The petitioners are foreign nationals who have

admitted deportability but who seek relief under 8 U.S.C. § 1253 (h) (1994) (withholding of deportation), or 8 U.S.C. § 1254

(1994) (suspension of deportation). They raise several issues on

appeal, only one of which merits discussion: whether the Board of

Immigration Appeals (the “BIA”) erred when it applied a prima

facie standard in denying petitioners’ motion to remand the case

to the Immigration Court to permit them to file an application

for suspension of deportation. We conclude that the Board did

not err, and therefore deny the petition.

The petitioners also move this court under 28 U.S.C. § 2347©

(1994) to remand this case to the BIA so that they can present

further evidence in support of their previous motion to remand to

the Immigration Court. Their motion is denied.

I.

Iftikhar Saiyid and his wife, Nazma, are citizens of

Bangladesh, which they left in 1976 to pursue business interests

in Dubai, United Arab Emirates. The Saiyids worked and lived in

Dubai until 1980. They then moved to Oman, again to pursue

business interests, where they resided until 1986. After Mr.

2 Saiyid’s business relationships in Oman soured, the Saiyids moved

to England, where they stayed a full year before obtaining visas

under 8 U.S.C.A. § 1101 (a)(15)(B) (1970 & Supp. 1997)

(nonimmigrant business visitor visas), and coming to the United

States in 1987.

The Saiyids’ visas expired on December 30, 1988, but they

continued to reside and apparently work in this country. In

October of 1989, they decided to claim -- for the first time --

that they were refugees from Bangladesh. They therefore applied

for asylum in the United States.1 On March 1, 1990, the

1 An alien seeking asylum must demonstrate that he or she

is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of the country of such person’s nationality or, in the case of a person having no nationality, the country in which such person habitually resided, 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 C.F.R. § 208.5 (1989) (We cite to the most recent edition of the Code of Federal Regulations unless the cited regulation has changed since it was applied in this case. If the regulation has changed, we cite to the version of the Code in which the regulation as applied in this case appears.). The Saiyids identify themselves as “non-Bengalis,” a term that apparently encompasses all person in Bangladesh who are not identified as “Bengalis,” members of an ethnic group concentrated in former East Pakistan. Bangladesh gained its independence from Pakistan in 1972 largely through the efforts of Bengalis. The Saiyids claim that, as non-Bengalis, they have a “well-founded” fear of persecution under § 208.5 because they will be subjected to persecution at the hands of Bengalis in modern-day Bangladesh. The Saiyids base their claim on two incidents occurring more than 20 years ago: in 1972, four years before the Saiyids left Bangladesh, members of the Bengali freedom fighters looted their

3 Immigration and Naturalization Service (the “INS”) denied their

asylum application because Mr. Saiyid was the subject of an

outstanding arrest warrant for embezzlement in Oman and therefore

statutorily ineligible for asylum. See 8 C.F.R. § 208.8 (f)(1)(v)

(1990) (“The [INS] district director shall deny a request for

asylum . .. . if it is determined that .. . . [t]here are serious

reasons for considering that the alien has committed a serious

non-political crime outside the United States prior to the

arrival of the alien in the United States . .. . .”). The same

day, the INS issued Orders to Show Cause as to why the Saiyids

should not be deported. See 8 U.S.C. § 1251 (a)(1)(c)(I) (1994)

(classifying as deportable those aliens who have overstayed their

nonimmigrant visas).

At their deportation hearing in March of 1991, the Saiyids

admitted deportability, but again claimed that they were entitled

to asylum and/or withholding from deportation under section

243(h) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1253 (h) (1994). The Immigration Judge denied their claim,

finding that the Saiyids did not possess a “well-founded fear” of

house and struck their son; and in 1975, Bangladesh military police detained Mr. Saiyid for several days under the Emergency Powers Act of 1974 to question him as a suspected “Indian agent.” The Saiyids also lost property to a program of nationalization conducted by the Bangladeshi government.

4 persecution.2 The Judge did grant the Saiyids voluntary

departure, of which they failed to take advantage.

The Saiyids then appealed to the BIA, claiming numerous

factual and legal errors. During the pendency of their appeal,

they became eligible to apply for suspension of deportation. See

8 U.S.C. § 1254 (a)(1) (1994) (requiring seven years residence

immediately prior to application for suspension eligibility).

The Saiyids therefore filed a motion with the BIA to remand the

case to the Immigration Court to permit them to apply for

suspension. The BIA denied the Saiyids’ motion because it found

that they had failed to make the prima facie case of “extreme

hardship” necessary for relief.

The Saiyids now appeal to this court. They raise a flourish

of arguments, challenging every factual and legal determination

arrived at in this case thus far. We address the only issue that

holds any merit: whether the BIA was correct to apply a prima

2 To grant an alien withholding from deportation, the BIA must find that the alien’s “life or freedom would be threatened in [the country of deportation] on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1253 (h)(1) (1994). The Supreme Court has interpreted the “would be threatened” requirement as a burden on the alien to show a “clear probability” of persecution. See INS v. Stevic, 467 U.S. 407, 430, 104 S.Ct. 2489, 2501, 81 L.Ed.2d 321 (1984). The clear probability standard is higher than the “well-founded fear” standard necessary to succeed on an asylum claim. See INS v. Cardoza-Fonseca, 480 U.S. 421, 430-32, 107 S.Ct. 1207, 1212-13, 94 L.Ed.2d 434 (1987) (explaining differences between the two standards). A finding that an alien has no well-founded fear of persecution, therefore, precludes the award of both asylum and withholding.

5 facie standard to the Saiyids’ motion to remand. We hold that

the prima facie standard is appropriate and therefore uphold the

findings of the BIA.

The Saiyids have also filed a motion with this court to

remand to the BIA to permit them to adduce additional evidence

regarding their eligibility for suspension from deportation.

They claim that the general worsening of their health as they

approach old age (Mr. Saiyid is now 70, Mrs. Saiyid is 69),

combined with the fact that Mrs. Saiyid has been treated for

breast cancer since the BIA rendered its decision, now suffice to

show a prima facie case of “extreme hardship” necessary to

support their previous motion to remand to the Immigration Court.

Because we find that the Saiyids have failed to establish that

their case is worthy of remand under 28 U.S.C. § 2347, and

because the Saiyids are time-barred from reopening their case

before both the BIA and the Immigration Court, we deny the

Saiyids’ motion.

II.

A.

Section 244 of the INA provides that the Attorney General may suspend an alien’s deportation if the alien:

has been physically present in the United States for a

6 continuous period of not less than seven years immediately preceding the date of such application, and proves that during all of such period he was and is a person of good moral character; and is a person whose deportation would, in the opinion of the Attorney General, result in extreme hardship to the alien or to his spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.

8 U.S.C. § 1254 (a)(1) (1994). When the Saiyids first appeared

before the Immigration Judge, they had been in this country for

only three years and were thus statutorily ineligible for

suspension. By the time the BIA considered their claims,

however, they had passed the seven-year mark. They therefore

moved the BIA to remand their case to the Immigration Court so

they could apply for suspension relief.

Applying the prima facie standard of review customarily used

for motions to remand/reopen, see INS v. Abudu, 485 U.S. 94, 104-

05, 108 S.Ct. 904, 912, 99 L.Ed.2d 90 (1988) (establishing that

failure to establish a prima face case is grounds for denial of a

motion to reopen),3 the BIA found that the Saiyids had failed to

show they would suffer extreme hardship upon deportation. It

therefore affirmed the findings of the Immigration Court and

ordered the Saiyids deported.

The Saiyids claim that the BIA erred when it evaluated their

3 There is no statutory procedure for remanding a case to Immigration Court. Courts customarily treat motions to remand as motions to reopen under 8 C.F.R. § 3.2 (1997) (regulating motions for “[r]eopening or reconsideration before the Board of Immigration Appeals”).

7 motion under the prima facie standard. They point out that a

motion to reopen must “state the new facts to be proved at the

reopened hearing . .. . .” 8 C.F.R. § 3.8 (a) (1994). The Saiyids

reason that the courts have not ruled on whether the prima facie

standard applies to a motion to remand or reopen that does not

contain “new facts.” Because their claim was not based on new

factual information, but on a new form of statutory relief, the

Saiyids believe that the prima facie standard was not appropriate

in their case. They argue for the application of a new standard

of review under which the Board would remand to the Immigration

Court for further proceedings if it found that their petition for

suspension was “non-frivolous.”

There is no support for the Saiyids’ position. Suspension

is a form of discretionary relief. See 8 U.S.C. 1254(a) (“[T]he

Attorney General may, in his discretion, suspend deportation . .

. .”) (emphasis added); Jay v. Boyd, 351 U.S. 345, 354, 76 S.Ct. 919, 924-25, 100 L.Ed. 1242 (1956) (stating that the Attorney

General’s discretion is nearly “unfettered”). A prima facie

standard for motions to remand adequately protects the

petitioner’s ability to apply for suspension, while recognizing

that suspension relief is reserved for true “hardship” cases in

which humanitarian concerns counsel a departure from normal

deportation regulations.

Moreover, a prima facie standard guards against abuse of the

8 suspension privilege. As the Supreme Court stated in INS v.

Rios-Pineda, 471 U.S. 444, 450, 105 S.Ct. 2098, 2102, 85 L.Ed.2d 452 (1985), “[o]ne illegally present in the United States who

wishes to remain already has a substantial incentive to prolong

litigation in order to delay physical deportation for as long as

possible.” The standard serves as a screening mechanism,

ensuring that claims for suspension of deportation are not simply

attempts to buy more time in the United States.

This circuit, and the Supreme Court, have historically

applied a prima facie standard in assessing motions to remand to

permit application for suspension relief. See Aguilar v. INS,

638 F.2d 717, 719 (5th Cir. Unit B 1981) (“In considering the

Motion, the Board’s responsibility [is] to determine, on the

basis of the moving papers, affidavits, and other supporting

evidence, whether petitioners presented a prima facie case of

eligibility for suspension of deportation under 8 U.S.C. § 1254.

. .. .”) (citations omitted);4 Gomez-Gomez v. INS, 681 F.2d 1347, 1348-49 (11th Cir. 1982) (limiting the court’s review of a BIA

decision to abuse of discretion when the BIA evaluates a motion

to reopen for suspension application under a prima facie

standard); INS v. Jong Ha Wang, 450 U.S. 139, 141, 101 S.Ct. 4 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.

9 1027, 1029, 67 L.Ed.2d 123 (1981) (stating in a case involving a

motion to reopen for suspension proceedings that “motions [to

reopen] will not be granted ‘when a prima facie case of

eligibility for the relief sought has not been established’”)

(BIA citations omitted). We see no need to question the prima

facie standard in this case.

B.

Having failed to move the BIA initially, the Saiyids now

petition this court to remand to the BIA to allow them to present

further evidence of their eligibility for suspension. We have

jurisdiction over this motion under 28 U.S.C. § 2347© (1994),

which provides in relevant part:

If a party to a proceeding to review applies to the court of appeals in which the proceeding is pending for leave to adduce additional evidence and shows to the satisfaction of the court that –

(1) the additional evidence is material; and (2) there were reasonable grounds for failure to adduce the evidence before the agency;

the court may order the additional evidence and any counterevidence the opposite party desires to offer to be taken by the agency.5

5 Section 306(a)(2) of the recently enacted Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRAIRA”), Pub.L. No. 104-208, 110 Stat. 3009-546, eliminates § 2347 jurisdiction over motions to reopen. See 8 U.S.C.A. § 1252 (a)(1) (1970 & Supp. 1997) (prohibiting appeals courts from ordering the “taking of additional evidence under section 2347©

10 Exercise of jurisdiction under section 2347 is discretionary.

See Alsheweikh v. INS, 990 F.2d 1025, 1026-27 (8th Cir. 1993);

Rhoa-Zamora v. INS, 971 F.2d 26, 35 (7th Cir. 1992).

The Saiyids have convinced us neither that reasonable

grounds exist for their failure to present the evidence

supporting their motion to the BIA, nor that much of their

evidence is material. In addition, granting the Saiyids’ motion

would allow them to circumvent new federal regulations

prohibiting multiple motions to reopen before the BIA. Their

motion is therefore denied.

The Saiyids base their motion to remand on evidence of Mrs.

Saiyid’s recent battle with breast cancer, and on evidence of Mr.

Saiyid’s generally deteriorating health as he approaches old age.

Though we may sympathize with the Saiyids, they have not shown to

this court’s satisfaction that a remand is warranted.

We note that Mrs. Saiyid was first diagnosed with cancer in

February of 1995, only two months after the BIA issued a final

order of deportation in the Saiyids’ case and several months

before they argued their case before this court. Nothing

of Title 28"). This prohibition does not apply here because the BIA’s final order of deportation in the Saiyids’ case was entered on December 9, 1994 -- before the effective date of the amended section. See Effective Date of 1996 Amendments, Historical & Statutory Notes to 8 U.S.C.A. § 1252 (a)(1), at 8 (Supp. 1997), and Effective Date of 1996 Amendments, Historical & Statutory Notes to 8 U.S.C.A. § 1101, at 25 (Supp. 1997) (establishing an effective date of April 1, 1997).

11 prevented the Saiyids from filing a second motion to remand with

the BIA at that time, or at any time thereafter until at least

April 29, 1996.6 We find, therefore, that no reasonable grounds

exist for the Saiyids’ failure to adduce the evidence of cancer

before the BIA. See Paul v. INS, 521 F.2d 194, 201 (5th Cir.

1975) (considering failure to file with BIA as factor in denying

remand).

The evidence regarding the Saiyids’ advancing age and Mr.

Saiyid’s accompanying ailments likewise fails to pass muster

under section 2347(c)(2) because it, too, could have been

presented to the BIA. Moreover, the age evidence is largely

cumulative of the evidence the Saiyids presented to the BIA in

their first motion to remand. The Saiyids therefore fail to

satisfy this court that the age evidence is material, as required

by section 2347(c)(1).

In addition, extra-statutory factors counsel a denial of the

Saiyids’ motion. The Saiyids were ten years younger when they

first decided to evade this country’s immigration laws and

6 As we discuss infra, the federal regulations now prohibit a petitioner from filing multiple motions to reopen a deportation proceeding. See 8 C.F.R. § 3.2 (c)(2) (1997). Neither the BIA nor any court of appeals has decided whether regulation 3.2, as amended, prohibits second motions to reopen only when the first motion was filed after the regulation’s effective date of April 29, 1996, see 61 Fed.Reg. 18,900, 18,904 (April 29, 1996) (codified at 8 C.F.R. § 3.2 (c)(2) (1997)), or whether it prevents all second motions as of that date. We need not decide that issue here.

12 overstay their visitors’ visas. They prolonged their stay by

filing a highly dubious application for asylum.7 When denied

asylum, they filed a second, equally dubious claim to avoid

imminent deportation. When denied again and granted voluntary

departure by the Immigration Judge, they still did not leave, but

7 As mentioned supra, the Saiyids were statutorily ineligible for asylum because Mr. Saiyid was the subject of an outstanding arrest warrant for embezzlement in Oman, of which he may have been aware before filing his application. Moreover, under INS regulations in effect at the time the Saiyids filed their asylum claim, an alien was statutorily ineligible for asylum if he had been “firmly resettled” in a country other than his homeland before coming to the United States. See 8 C.F.R. § 207.1 (b) (1997) (“Any applicant who has become firmly resettled in a foreign country is not eligible for refugee status under this chapter.”). The Saiyids had spent several years as the guests of no fewer than three other nations before coming to the United States. This fact alone probably rendered them ineligible for asylum. See Farbakhsh v. INS, 20 F.3d 877, 882 (8th Cir. 1994) (upholding BIA’s finding of firm resettlement and denial of asylum under the same regulation when petitioner had passed through several countries en route to the United States). And when the INS questioned Mr. Saiyid during his deportation proceedings about his desire to seek asylum in the United States, his answers were less than reassuring: Q. When you went to the embassy to apply for this business visa, did you ask them if you could come to the United States as a refugee? A. No. Q. Why didn’t you do that? A. Well, at that time, I was really not . . . not .sure. I . . . I came here to actually explore the possibilities of certain projects’ financing. But when it took time and it went on and on and I had to live, I found that I was living very peacefully here and I . . . it occurred to me that I should apply for . .. . for an asylum. . . .

Thus, it appears that the Saiyids’ original asylum claim was most likely frivolous and simply a delay tactic.

13 instituted a series of meritless appeals, culminating in the case

before us. In other words, the Saiyids have grown old by

manipulating our immigration system. We decline to remand based

on the Saiyids’ evidence of age and accompanying ailments that

arose from “the passage of time while their meritless appeals

dragged on.” INS v. Rios-Pineda, 471 U.S. 444, 450-51, 105 S.Ct. 2098, 2102-03, 85 L.Ed.2d 452 (1985) (holding that the BIA may

discount evidence of seven years’ presence in its assessment of

eligibility for suspension when presence was maintained through

meritless appeals) (BIA citations omitted). A contrary finding

would encourage abuse of our immigration system.

Finally, the Saiyids appear to be attempting to circumvent

new immigration regulations by filing their motion to remand with

this court rather than with the BIA. Section 3.2 of Title 8 of

the Code of Federal Regulations, as amended under IIRAIRA,

provides that:

a party may file only one motion [before the BIA] to reopen deportation or exclusion proceedings (whether before the Board or the Immigration Judge) and that motion must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened, or on or before September 30, 1996, whichever is later.

8 C.F.R. § 3.2 (c)(1997). The BIA’s final decision was entered on

December 9, 1994; thus, the final date the Saiyids could have

filed a motion with the BIA to reopen proceedings in the

14 Immigration Court was September 30, 1996.8 Even if we were to

remand under section 2347, therefore, the Saiyids would be

prevented from moving the BIA to reopen Immigration Court

proceedings to allow them to file an application for suspension.9

Our remand would serve only to allow the Saiyids to prolong their

illegal stay in the United States.

We note that if the Saiyids could have filed this second

motion to remand with the BIA, and simply chose the wrong forum,

8 As mentioned supra note 6, the Saiyids could have been barred from filing their motion as early as April 29, 1997. 9 We have suggested in the past that when a petitioner’s motion for remand is based on evidence so strong that (on remand) the BIA’s refusal to reopen on such evidence would be a clear abuse of discretion, we may direct the BIA to reopen the proceedings as part of a grant of the petitioner’s motion to remand. See Vargas-Gonzalez v. INS, 647 F.2d 457, 459 (5th Cir. Unit A 1981); Coriolan v. INS, 559 F.2d 993, 1004 (5th Cir. 1977). Putting aside the fact that ordering the BIA to reopen this case would thwart the intent of Congress and the INS in amending regulation 3.2, we point out that the proper fact-finder concerning eligibility for suspension from deportation is the BIA, not this court. See, e.g., Elboukili v. INS, No. 97-9529, order & judgment at 6 (10th Cir. Oct. 7, 1997) (unpublished opinion) (“Even when a petitioner satisfies the standards of § 2347(c), we will not order the BIA to grant a petitioner’s motion to reopen; that decision is left to the BIA’s discretion.”); Tayo v. INS, No. 95-9517, order & judgment at 5 (10th Cir. Feb. 23, 1996) (unpublished opinion) (emphasizing that motions to remand “must not allow courts to encroach on decisions properly left to the sound discretion of the INS”). Thus, evaluation of the merits of the underlying motion to reopen in a motion to remand should only be conducted in the rarest of cases, when a refusal to remand would only “launch [the] case on a lengthy procedural voyage,” Coriolan, 559 F.2d at 1004, to reach an inevitable reopening. This is not such a case. To obtain a reopening, therefore, the Saiyids would have to file with the BIA; such filing is now prevented by regulation 3.2.

15 that factor would weigh in favor of granting remand. The

Saiyids, however, filed their motion to remand with this court on

October 7, 1996. As explained supra, if this motion had been

filed with the BIA, it would have been untimely under the amended

regulations and therefore statutorily barred. See In re J–J–,

BIA Interim Decision 3323 (July 31, 1997) (finding motion to

reopen filed on October 2, 1996, untimely when final

administrative decision sought to be reopened was rendered August

8, 1995). The Saiyids’ motion thus appears to be an attempt to

circumvent federal regulations.

III.

For the above reasons, the petition for review is

DENIED.

The appellants’ motion to remand is

DENIED.

SO ORDERED.

16