UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 93-4303
__________________
ELIAS JOSEPH FADDOUL,
Petitioner,
versus
IMMIGRATION AND NATURALIZATION
SERVICE,
Respondent.
______________________________________________
Petition for Review of an Order of the
Board of Immigration Appeals
______________________________________________
(October 25, 1994)
Before JOHNSON, GARWOOD and JOLLY, Circuit Judges.
GARWOOD, Circuit Judge:
Elias Faddoul (Faddoul) appeals an order of the Board of
Immigration Appeals (BIA or Board) denying his requests for asylum
and withholding of deportation. In the alternative, Faddoul argues
that we should reinstate the BIA's grant of voluntary departure.
Finding that the BIA properly denied his requests, we affirm. We
also deny his request to extend his voluntary departure date.
Facts and Proceedings Below
Faddoul is a thirty-three year old man of Palestinian ancestry
who was born and last resided in Saudi Arabia. His parents fled
Palestine after the creation of Israel in 1948, first settling in
Lebanon, then moving to find work in Saudi Arabia, where Faddoul
was born and raised. Despite his place of birth, Faddoul was not
eligible to receive Saudi citizenship because Saudi law grants
citizenship solely on the basis on ancestry. As a person of
Palestinian ancestry, Faddoul was unable to obtain a Saudi passport
but was allowed to travel with a Lebanese travel document known as
a "laissez-passe".1 Faddoul first visited the United States in
1979 and thereafter returned to Saudi Arabia periodically to renew
his Saudi reentry visa. In 1984, Faddoul entered the United States
as a nonimmigrant student to study aviation and electronics, but he
ceased attending classes in May 1985. During this time, he formed
a relationship with a U.S. citizen and was married in October 1984.
Because he planned to apply for permanent legal status, he stopped
returning to Saudi Arabia and allowed his reentry visa to expire.
The marriage, however, eventually failed.
On September 22, 1986, the Immigration and Naturalization
Service (INS) began deportation proceedings against Faddoul and
issued an Order to Show Cause alleging deportability under the
Immigration and Naturalization Act (INA) § 241(a)(9), 8 U.S.C. §
1251(a)(9), for his failure to comply with the conditions of his
nonimmigrant status. On August 5, 1987, an immigration judge (IJ)
found Faddoul deportable and denied his request for asylum under
1
This document was stamped "Not valid for reentry to
Lebanon." Although Faddoul's parents temporarily resided in
Lebanon after fleeing Palestine, Faddoul does not appear to have
(or have had) any other contact with Lebanon and has only visited
the country once.
2
INA § 208(a), 8 U.S.C. § 1158(a), and withholding of deportation
under INA § 243(h), 8 U.S.C. § 1253(h), but granted him voluntary
departure until December 31, 1987.
In November 1987, a fire at a detention center destroyed
Faddoul's immigration papers and the BIA remanded his case to the
IJ for a new hearing. Faddoul's second hearing commenced June 22,
1989. The IJ once again found him deportable but allowed him to
submit a written application for asylum. Faddoul claimed that,
assuming Saudi Arabia permitted him to return, he would face
persecution because the government severely restricted the rights
of Palestinians. In particular, Saudi law forbade all non-Saudis
from owning property or businesses, attending certain schools, and
marrying Saudis. Non-Saudis were also prohibited from travelling
within Saudi Arabia without written permission and were only
permitted to remain in the country so long as they were sponsored
by a Saudi employer or received derivative sponsorship through
their parents' employment. In addition, Faddoul claimed that Saudi
Arabia would likely prohibit him from returning at all because his
reentry visa had expired and he could no longer receive derivative
sponsorship due to his age. He speculated that were he to return
to Saudi Arabia without a visa, he could face imprisonment.
The IJ denied Faddoul's requests for asylum or withholding of
deportation, finding that the discriminatory treatment
Palestinians, as non-Saudis, receive in Saudi Arabia did not
constitute persecution. The IJ did, however, grant him voluntary
departure for a period of six months, after which time he would to
be deported to Honduras, as per his request, or to Saudi Arabia or
3
Lebanon if his admission to Honduras were refused.2 The BIA
affirmed the IJ's decision and granted Faddoul an additional thirty
days to voluntarily depart the United States. Although Faddoul
brought this appeal within the period of voluntary departure, that
period has since expired.
Discussion
I. Asylum and Withholding of Deportation
We accord deference to the BIA's interpretation of the
immigration statute unless there are compelling indications that
its interpretation is incorrect. Rivera-Cruz v. INS, 948 F.2d 962,
966 (5th Cir. 1991). Thus, absent dispositive error of law, we
must affirm the Board's determination that Faddoul was ineligible
for asylum or withholding of deportation if we find that its
decision was supported by substantial evidence in the record. 8
U.S.C. § 1105(a)(4); INS v. Elias-Zacarias, 112 S.Ct. 812, 815
(1992).
Because the grant of asylum is discretionary, it involves two
steps. First, the alien must demonstrate that he has a well-
founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political
opinion. INA §§ 208(a), incorporating § 101(a)(42). An alien's
2
The INA provides that a deportable alien is to be deported
"to a country promptly designated by the alien if that country is
willing to accept him into its territory." INA § 243(a), 8
U.S.C. § 1253(a). Faddoul designated Honduras, but there is no
indication as to whether that country will accept him. In case
the designated country refuses to accept the alien, section
243(a) provides a series of seven contingencies for determining
an alternate destination. In this case, the contingencies all
point to Saudi Arabia or Lebanon.
4
subjective fear of persecution will satisfy this standard if "a
reasonable person in her circumstances would fear persecution if
she were to be returned to her native country." Guevara Flores v.
INS, 786 F.2d 1242, 1249 (5th Cir. 1986), cert. denied, 107 S.Ct.
1565 (1987). Once the alien demonstrates his eligibility, the
decision to grant asylum is within the discretion of the IJ. Id.
at 1250. Withholding of deportation involves a slightly different
analysis. To be eligible for such relief, the alien must
demonstrate a "clear probability" of persecution upon return.
Rivera-Cruz, 948 F.2d at 966. This standard contains no subjective
component but requires a higher objective likelihood of persecution
than the "well-founded fear" standard. Guevara Flores, 786 F.2d at
1250. Unlike asylum, once the alien establishes a clear
probability of persecution the IJ must withhold deportation of the
alien for so long as the threat of persecution persists. Id.
Faddoul claims that Saudi Arabia's denial of basic living and
exit/reentry privileges to Palestinians, even those born within its
borders, constitutes persecution. While the INA does not provide
a precise definition of persecution, we have construed the term as
requiring "a showing by the alien that 'harm or suffering will be
inflicted upon [her] in order to punish [her] for possessing a
belief or characteristic a persecutor sought to overcome.'"
Guevara Flores, 786 F.2d at 1249 (quoting Matter of Acosta, B.I.A.
Interim Decision No. 2986, 1985 WL 56042 (March 1, 1985)). At a
minimum, there must be some particularized connection between the
feared persecution and the alien's race, religion, nationality or
other listed characteristic. Demonstrating such a connection
5
requires the alien to present "specific, detailed facts showing a
good reason to fear that he or she will be singled out for
persecution." See Zulbeari v. INS, 963 F.2d 999, 1000 (7th Cir.
1992) (emphasis added).
In the present case, Faddoul has shown no such connection.
There is no indication the Saudi government has ever arrested,
detained, interrogated, or physically harmed Faddoul in any way.
Nor has it harmed any of his family members still residing in Saudi
Arabia. While Saudi Arabia obviously denies Palestinians certain
rights enjoyed by Saudi citizens, the government does not single
out Palestinians for such discriminatory treatment. Saudi law
grants citizenship based solely on ancestry (jus sanguinis). Thus,
children born of Saudi parents automatically receive Saudi
citizenship while the children of all non-Saudis, regardless of
their place of birth, do not. Indeed, Faddoul admits that a
Palestinian born in Saudi Arabia receives the same rights and is
subject to the same restrictions as a Saudi-born Egyptian, Somali
or any other foreign worker. To find persecution under these
circumstances would require a finding that jus sanguinis is
persecution per se. We are unwilling to do so.3 The decision to
3
While the Fourteenth Amendment to the United States
Constitution grants U.S. citizenship to all persons born within
this country's borders (jus soli), such a liberal grant of
citizenship is not universally accepted. Saudi Arabia is hardly
the only nation that grants citizenship based on ancestry and
consequently denies it to other persons born within its borders.
Jus sanguinis was the standard determinant of citizenship under
Roman law and continues to be the primary basis for citizenship
throughout much of Europe, Africa and the Near East. See P.
WEIS, NATIONALITY AND STATELESSNESS IN INTERNATIONAL LAW 289 (2d ed. 1979);
cf. RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES §
211 cmt. c. (1987) (stating that both jus soli and jus sanguinius
6
bestow or deny citizenship is deeply-rooted in national sovereignty
and must be left to the individual nation's discretion. See De
Souza v. INS, 999 F.2d 1156, 1159 (7th Cir. 1993). In De Souza,
the Seventh Circuit addressed a situation closely analogous to the
present case. De Souza's parents were born in Goa, a former
Portuguese colony which ceased to exist after its conquest by India
in 1963. De Souza was born in Kenya, but she was denied Kenyan
citizenship due to her foreign ancestry. Id. at 1157. The BIA
denied her request for asylum, stating that "Kenya's laws are not
directed specifically at any one group" and that deciding who
should receive citizenship "is within Kenya's sovereign power."
Id. The Seventh Circuit affirmed, holding that De Souza was not
deprived of any right because she had no right to Kenyan
citizenship. Id. at 1159. "It is well within the discretion of
[a] government to decide who its citizens will be." Id.
Accordingly, we hold that Saudi Arabia's method of conferring
citizenship does not amount to persecution.
Similarly, the particular restrictions Saudi Arabia places on
the rights of Palestinians and other non-Saudis also fail to
manifest the kind of persecution envisioned in the INA. Again,
reference to De Souza may be enlightening. As a noncitizen, De
Souza was subject to numerous travel, living, and educational
restrictions. She could only return to Kenya on a three-month
tourist visa, and she was prohibited from attending Kenyan public
high school. De Souza, 999 F.2d at 1157-58. The Court found that
are "universally accepted" as reflecting genuine links between
the state and the individual).
7
none of these claims were tantamount to persecution and that some
"border[ed] on frivolity". Id. at 1159. A nation's right to
control access to its borders is central to its sovereignty. For
this reason, all nations are entitled to place entry and travel
restrictions on aliens without thereby being deemed to have
persecuted them.4 Neither do government policies denying access to
certain schools amount to persecution. Saudi Arabia provides
resident non-Saudis with a high school education but reserves
admittance to schools of higher education to its own citizens.
This admittedly discriminatory education policy is not unique.5 In
De Souza, the Kenyan government permitted noncitizens to attend
public grade school but not high school. The Court ruled that the
government could provide education for all people, some people, or
no people without persecuting them. De Souza, 999 F.2d at 1159.
Education, though undeniably important, is a matter of governmental
policy rather than a fundamental right.
Alternately, Faddoul claims that Saudi Arabia's refusal to
grant him a reentry visa is the result of the historical
persecution of Palestinians since the destruction of Palestine in
1948.6 He bases this argument on the literal definition of
4
Our own government expressly excludes any alien "who is an
officer, official, representative, or spokesman of the Palestine
Liberation Organization" from admission into the United States.
See INA § 212(a)(3)(B)(i), 8 U.S.C. § 1182(a)(3)(B)(i).
5
In fact, the relevant United Nations Convention only
requires member states to accord stateless persons the same
treatment as accorded to their own nationals with respect to
elementary education. See CONVENTION RELATING TO THE STATUS OF STATELESS
PERSONS, art. 22(1), 360 U.N.T.S. 117 (New York 1954).
6
Faddoul also argues that he should be accorded refugee
8
"refugee" in the INA. A "person having no nationality," such as a
stateless Palestinian, who "is outside any country in which such
person last habitually resided, and who is unable . . . to return
to . . . that country because of persecution or a well-founded fear
of persecution" may be considered a refugee and is thereby eligible
for asylum. INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A)
(emphasis added). Faddoul claims he is unable to return to Saudi
Arabia because that country denies him the reentry privileges
afforded Saudi citizens, and he is unable to return to any other
country because he is stateless. He points out that the definition
of refugee does not specifically state that the alien must face
persecution at the hands of the country of last habitual residence,
but merely that the alien can not return to that country due to
some form of persecution. Nevertheless, we are unwilling to impute
to Saudi Arabia the historical treatment, assertedly amounting to
persecution, of the Palestinians. We do not question the
unfortunate plight of stateless Palestinians, but statelessness
alone does not warrant asylum. Section 101(a)(42)(A) clearly
indicates that stateless individuals must demonstrate the same
well-founded fear of persecution as those with nationalities.
Furthermore, Faddoul's inability to obtain a reentry visa is due in
part to his decision to allow his visa to expire. Once again,
status because the United Nations deems all stateless
Palestinians to be "refugees". The INA does not afford asylum to
all aliens that might properly be defined as refugees, rather it
limits such relief to individuals who are "refugee[s] within the
meaning of section 1101(a)(42)(A) of this title." See INA §
208(a), 8 U.S.C. § 1158(a). In any event, because Faddoul failed
to present this argument before the BIA, we need not address it.
9
Faddoul is unable to demonstrate the requisite connection between
his inability to return to Saudi Arabia and any specific threat of
persecution that he seeks to avoid.7
Finally, Faddoul claims that we should at least remand the
case to allow the BIA to consider certain circumstances that did
not exist when these proceedings began nearly eight years ago.
First, because Faddoul has been physically present in the United
States for a continuous period of more than seven years, he is now
eligible for discretionary suspension of deportation under section
244(a)(1), 8 U.S.C. § 1254(a)(1). Second, because PLO leader Yasir
Arafat supported Saddam Hussein in the Persian Gulf War, Saudi
Arabia is allegedly even less hospitable to Palestinians now than
when Faddoul's deportation proceedings began.
We find that neither of these developments require remand.8
The proper venue for proffering new evidence is not the Fifth
Circuit on appeal, but the BIA through a motion to reopen the case.
Rivera-Cruz v. INS, 948 F.2d 962, 968 (5th Cir. 1991). In Rivera-
7
Because Faddoul is unable to demonstrate a well-founded fear
of persecution, he has not shown a "clear probability" of
persecution as required for withholding of deportation. See
Guevara Flores, 786 F.2d at 1250 ("'Establishing an entitlement
to withholding of deportation . . . should require a greater
evidentiary burden than establishing "refugee" status so as to be
eligible for a discretionary grant of asylum.'") (quoting
Carvajal-Munoz v. INS, 743 F.2d 562, 575 (7th Cir. 1984))
(emphasis in original).
8
In addition, Faddoul does not explain why he has not
previously presented these arguments to the Board. The Board
issued its ruling in February 1993SQtwo years after the Persian
Gulf War. Similarly, by February 1993, Faddoul had already been
physically present in the United States for approximately nine
years. Thus, he apparently met the residence requirement several
years prior to his hearing before the Board.
10
Cruz, a Nicaraguan sought asylum in the United States due to his
opposition to the Sandinista government. Before his case reached
the BIA, however, the Sandinistas were put out of power, and
Violeta Chamorro became President of Nicaragua. The BIA took
administrative notice of the change of government and concluded
that Rivera no longer had a well-founded fear of persecution. Id.
at 965. On appeal, Rivera argued for the first time that the
Chamorro government was crumbling. Id. at 966-67. The Court
recognized that aliens must have an opportunity to respond to
crucial facts in administrative hearings but held that a motion to
reopen, rather than remand, was the proper method to present new
evidence to the BIA. Id. at 968-69 & n.9; see also 8 C.F.R. §
3.2.9 In the instant case, because Faddoul has not yet departed
the country, he is free to petition the Board to reopen his case in
order to hear this evidence. Should the Board deny his request, he
could then appeal the Board's denial to this Court. Rivera-Cruz at
968.
II. Voluntary Departure
Having denied Faddoul's appeal, we must now consider his
request to order that the BIA's grant of thirty day voluntary
departure commence to run from the time of our affirmance, rather
than the time of the BIA decision, as the BIA directed. We
9
Title 8 C.F.R. § 3.2 states, in pertinent part:
"Reopening or reconsideration of any case in which a
decision has been made by the Board, whether requested
by the Commissioner . . ., or by the party affected by
the decision, shall be only upon written motion to the
Board."
11
recognize that the circuits are split concerning our authority to
fix a new voluntary departure date. The Ninth Circuit, over a
vigorous dissent, has ruled that if the Board's deportation order
included a grant of voluntary departure, affirming the deportation
order would automatically restart the departure period as of the
date of affirmance. Contrereas-Aragon v. INS, 852 F.2d 1088, 1092-
93 (9th Cir. 1988) (en banc). The Court reasoned that "[t]he
result of the deportation hearing, including the discretionary
determinations, is one final order of deportation reviewable by the
courts of appeals." Id. at 1092. Thus, the Court denied that it
was actually reinstating anything "in the sense that [it was]
exercising any discretion properly exercised by the BIA;" but
rather it was "simply affirming the order of deportation with its
provision for alternative discretionary relief." Id.10
In Umanzor-Alvarado v. INS, 896 F.2d 14 (1st Cir. 1990), the
First Circuit held that it had the authority to reinstate voluntary
departure because the INS could not deny a reinstatement solely
because the alien brought a good faith, nonfrivolous appeal. Id.
at 16. The Court reasoned that "to require the petitioner to apply
to the district director to pass upon the matter would be
pointless, for the director could not lawfully refuse the
10
As the Fourth Circuit has noted, the approach adopted by the
Ninth Circuit creates a potentially anomalous result. Voluntary
departure is only to be granted to an alien who (1) is a person
of good moral character and (2) is not deportable for an
aggravated felony. INA § 244(e), 8 U.S.C. § 1254(e). Therefore,
by simply affirming a deportation order, a court might reinstate
voluntary departure for an alien who has, in the intervening
time, committed acts which would preclude him from eligibility
for voluntary departure. See Ramsay v. U.S. INS, 14 F.3d 206,
213 (4th Cir. 1994).
12
reinstatement." Id.
The Seventh Circuit, however, has held that it lacks the
authority to reinstate a departure period. In Kaczmarczyk v. INS,
933 F.2d 588 (7th Cir.), cert. denied, 112 S.Ct. 583 (1991), the
Court ruled that while it had "jurisdiction to review the BIA's
denial of asylum applications, [it] lack[ed] authority to review
the INS's discretionary grant of voluntary departure." Id. at 598,
citing Judge Kozinski's dissent in Contrereas-Aragon and our
decision in Farzad v. INS, 808 F.2d 1071 (5th Cir. 1987).
Kaczmarczyk relied primarily on the language of the regulations
stating that the "[a]uthority to reinstate or extend the time
within which to depart voluntarily specified initially by an
immigration judge or the Board is within the sole jurisdiction of
the district director." 8 C.F.R. § 244.2.11 Nevertheless, the
Seventh Circuit echoed the same concerns raised in Umanzor-Alvarado
that "[d]eportable aliens should not be faced with the choice
between enjoying the voluntary departure privilege and securing
judicial review of Board determinations." Kaczmarczyk, 933 F.2d at
598. Thus, the Court warned that "[s]hould it come to our
attention that the INS is wielding its discretion to withhold
voluntary departure to deter applicants from seeking judicial
review of BIA decisions, our scrutiny of that discretionary
11
The Board also has authority to reinstate an alien's
voluntary departure. See Matter of Chouliaris, 16 I & N Dec. 168
(BIA 1977). However, because "the Board has delegated to it the
authority of the Attorney General [under 8 C.F.R. § 3.1(d)],
Chouliaris is no authority for determining whether the judiciary
may reinstate voluntary departure." Farzad at 1072.
13
exercise might expand." Id.12
The Fourth Circuit approach attempts to synthesize the
holdings of the First and Seventh Circuits. In Ramsay v. U.S. INS,
14 F.3d 206 (4th Cir. 1994), the Court held that the decision to
reinstate voluntary departure should "be left to the discretion of
the District Director, who is better suited to consider the factual
prerequisites which determine an alien's eligibility" for such
relief. Id. at 213. The Court proceeded to rule, however, that a
court of appeals should reinstate voluntary departure when:
"(1) the INS is 'wielding its discretion to withhold
voluntary departure to deter applicants from seeking
judicial review of BIA decisions,' Kaczmarczyk, 933 F.2d
at 598, or (2) 'the [INS] does not suggest it will
present the district director with any other reason for
refusing the reinstatement.' Umanzor-Alvarado, 896 F.2d
at 16." Ramsay at 213.
The INS contends that this Court has already ruled that we
lack any authority to reinstate voluntary departure, citing Farzad.
Farzad, however, specifically chose not to reach that broad issue.
The Court in Farzad refused to reinstate voluntary departure
because the alien waited until the last day of the departure period
before filing his appeal and did not apply to the Board or the
district director for any extension of voluntary departure. Id. at
1072. The Farzad Court found no reason to augment the
administrative remedy which the alien had neglected. Id. Due to
the factual similarities between Farzad and the present case, we
reach a similar conclusion. Faddoul waited until the last day of
12
The Court went on to note, however, that "petitioners have
not tendered evidence which suggests that the INS has exercised
its voluntary departure power in such a troubling fashion." Id.
14
the voluntary departure period to file this appeal, and there is no
indication he ever asked the Board to extend this period beyond
thirty days to allow him to appeal.13 Had the Board denied such a
request for an extension, Faddoul could have procured our review of
that denial with his appeal to us of the Board's denial of asylum
and withholding of deportation. See Foti v. INS, 84 S.Ct. 306, 314
(1963). In Foti, the Supreme Court stated that:
"[I]t seems rather clear that all determinations made
during and incident to the administrative proceeding
conducted by [an IJ], and reviewable together by the
Board of Immigration Appeals, such as orders denying
voluntary departure pursuant to § 244(e) . . . are
likewise included within the ambit of the exclusive
jurisdiction of the Courts of Appeals under § 106(a)."
Id.
An alien in proceedings before the Board faced with the
possibility of an adverse deportation decision that he may wish to
appeal to the court of appeals, and who also desires voluntary
departure in the event of an ultimately sustained order of
deportation, should alternatively request the Board to grant a
voluntary departure period that would expire within a specified
time after the Board's decision, or, if a timely petition for
review were to be filed within that time and thereafter were to be
ultimately denied or dismissed by the court of appeals, then within
a specified period following such denial or dismissal. If the
Board were to order deportation and, despite such a request for
extended voluntary departure, were to allow voluntary departure but
13
Faddoul asserts that the day after he filed his petition for
review he requested the district director to extend the time for
voluntary departure, but that no action has been taken on this
request.
15
only within the thirty day period following its decision, then, on
the alien's petition for review, the court of appeals under Foti
would clearly have jurisdiction to review not only the Board's
order of deportation but also its denial of the alien's request for
the more extended period for voluntary departure.14
In the present case, however, the Board has granted Faddoul
all the relief he ever requested of it in respect to voluntary
departure. Further, the Board still has the authority to reinstate
voluntary departure "in a deportation proceeding that has been
reopened for a purpose other than solely making an application for
voluntary departure." 8 C.F.R. § 244.2. Therefore, should Faddoul
choose to petition the Board to reopen his case to consider new
evidence, he could request that the Board reinstate voluntary
departure at that time.
Conclusion
The Board properly denied Faddoul's requests for asylum or
withholding of deportation. Accordingly, the decision of the Board
is AFFIRMED; and the request that we order a change of the
voluntary departure date is DENIED.
14
In passing on the Board's denial of the alien's request to
it for a more extended voluntary departure period, the court of
appeals might well be inclined to rule in the alien's favor
absent some explanation from the Board (or possibly patent on the
record) showing an appropriate basis for its action consistent
with not infringing on or deterring the alien's exercise of his
right to judicial review.
16