United States Court of Appeals,
Eleventh Circuit.
No. 94-8241.
Lebogang NKACOANG, Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
May 16, 1996.
Petition for Review of an Order of the Board of Immigration Appeals
(Georgia Case).
*
Before BIRCH, Circuit Judge, and CLARK and WEIS , Senior Circuit
Judges.
CLARK, Senior Circuit Judge:
Petitioner seeks review of an adverse order issued by the
Board of Immigration Appeals, which upheld the decision of an
immigration judge (IJ) to deny petitioner's application for asylum
or withholding of deportation. Petitioner also requests that, in
the event we deny his petition for review, we extend or reinstate
the thirty-day privilege of voluntary departure granted by the
Board when it affirmed the IJ's determination that he was
immediately deportable. For the reasons stated below, we uphold
the Board's decision on asylum and withholding of deportation, and
deny petitioner's alternate request regarding voluntary departure,
without prejudice, for lack of jurisdiction.
Asylum and Withholding of Deportation
Lebogan Nkacoang, a citizen of the Union of South Africa,
entered this country on a student visa in 1984. In 1989, he
*
Honorable Joseph F. Weis, Jr., Senior U.S. Circuit Judge
for the Third Circuit, sitting by designation.
applied for asylum from alleged persecution based on political
opinion under 8 U.S.C. § 1101(a)(42), 1158(a). Specifically,
petitioner alleged that, before entering this country, he
participated in anti-apartheid activities as a student and was
affiliated with the Pan Africanist Congress (PAC), an organization
that fought the government and its apartheid policies. He
testified that, in the early 1970s, while a student, he was
expelled from two separate high schools. In the first school, the
entire student body was expelled for going on strike and refusing
to attend classes. He was allowed to take the examination for his
junior certificate, but was denied readmission because he was
regarded as a troublemaker. In the second school, he was expelled
because he was a leader of a student strike during which the school
and the principal's car were burned. He was also arrested because
of the arson, but was released after being held for one week. He
then left South Africa to continue in his studies in Lesotho.
In Lesotho, petitioner claimed that he was recruited by both
the PAC and the African National Congress (ANC) and chose the PAC
because he thought it would be better at putting pressure on the
minority white government. The PAC sent him to Tanzania where he
completed high school and entered a university. He left Tanzania
in 1983 to continue his studies in Europe, and then returned to
Tanzania where he worked as a fellowship administrator in the PAC
education department. While working in that position, petitioner
developed a personality clash with his supervisor and became
disturbed by the factional fighting within the PAC. He decided to
go on with his life, and obtained a United Nations scholarship to
study at Tuskegee University. He maintained that he is no longer
actively involved or a member of the PAC, and is trying to
disassociate himself from the PAC.
Following an evidentiary hearing, the IJ found that the
government had taken no action against him "other than for his
unlawful behavior in burning property at his high school," and
described his departure from South Africa as a flight from
"possible prosecution" rather than "perceived persecution." The IJ
concluded that petitioner had presented no evidence "which would
lead a reasonable person to conclude that he would have a
well-founded fear of persecution if he should return to South
Africa," and, accordingly, denied all requested relief except
voluntary departure. The Board found the IJ's decision supported
by the record, but extended petitioner's voluntary departure date
thirty days from the date of its order.
An applicant for asylum must establish that he is (1) a
"refugee" by showing either past persecution or a well-founded fear
of persecution, 8 U.S.C. § 1101(a)(42)(A), and (2) entitled to
asylum as a matter of discretion, 8 U.S.C. § 1158(a). An applicant
for withholding of deportation must show a "clear probability of
persecution1," or that he will more likely than not be persecuted
if deported2. If an applicant is unable to meet the "well-founded
fear" standard for asylum, he is generally precluded from
1
INS v. Stevic, 467 U.S. 407, 413, 104 S.Ct. 2489, 2492, 81
L.Ed.2d 321 (1984).
2
INS v. Cardoza-Fonseca, 480 U.S. 421, 430, 107 S.Ct. 1207,
1212, 94 L.Ed.2d 434 (1987).
qualifying for either asylum or withholding of deportation.3
A review of the record shows sufficient evidence to support
the IJ's finding that petitioner was detained solely on the basis
of his participation in the arson of his school and principal's
car. Further, the record does not support petitioner's claim that
the Board failed to consider "unrebutted testimony and written
evidence" that the South African police are still pursuing him.
Although petitioner submitted a letter, dated 1989, from his
brother that stated that his family was visited by the South
African police the day after they received a telephone call from
him, the Board considered the letter and found it "insufficient
corroboration" that the government had any ongoing interest in
petitioner. The Board also noted that petitioner failed to present
any evidence that the PAC persecutes its former members.
Voluntary Departure
If this court affirms the Board, petitioner requests that
this court reinstate the Board's 30 day grant of voluntary
departure, thus not subjecting him to summary deportation upon
issuance of the court's mandate. Respondent Immigration and
Naturalization Service (I.N.S.) responds that statutory and
regulatory authority vest the jurisdiction to reinstate or extend
a grant of voluntary departure solely with the I.N.S. district
director.
The Attorney General "may, in his discretion, permit any alien
under deportation proceedings ... to depart voluntarily from the
3
See Kazlauskas v. INS, 46 F.3d 902, 907 (9th Cir.1995);
Hadjimehdigholi v. INS, 49 F.3d 642, 647 (10th Cir.1995).
United States at his own expense in lieu of deportation if such
alien shall establish to the satisfaction of the Attorney General
that he is, and has been, a person of good moral character for at
least five years preceding his application for voluntary departure
under this subsection."4 Further, the Attorney General's
"authority to 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.... (T)he district
director's decision shall be served upon the alien and no appeal
shall be taken from it."5
The courts of appeal have jurisdiction to review final orders
of deportation 6, and the Supreme Court has held that jurisdiction
to include all determinations "made during and incident to the
administrative proceeding ..., such as orders denying voluntary
departure...."7 However, the issue here is not review of an order
denying voluntary departure or suspension of deportation, but a
request for reinstatement of the voluntary departure period. As
the Tenth Circuit noted, none of the pertinent statutes "provide
any basis whatsoever for this court to assume authority for
affording the discretionary, administrative relief sought by the
4
8 U.S.C. § 1254(e)(1); 8 U.S.C. § 1252(b).
5
8 C.F.R. 244.2; also see Nocon v. INS, 789 F.2d 1028, 1033
(3rd Cir.1986) (finding that the BIA lacked authority to grant an
extension for voluntary departure).
6
8 U.S.C. § 1105a(a).
7
Foti v. INS, 375 U.S. 217, 229, 84 S.Ct. 306, 314, 11
L.Ed.2d 281 (1963).
petitioner."8
This is an issue of first impression in this Circuit, and the
circuit courts are split on this issue. The Seventh, Eighth, and
Tenth Circuits have declined to consider the issue based on lack of
jurisdiction. 9 Concerned that the I.N.S. might use its power to
insulate its decisions from judicial review, the Seventh Circuit
said that "should it come to our attention that the I.N.S. is
wielding its discretion to withhold voluntary departure to deter
applicants from seeking review of BIA decisions," scrutiny of that
discretionary exercise might expand.10 The Second and Tenth
Circuits denied reinstatement without prejudice to renewal before
the district director. 11 Although not reaching the issue because
the immigrant had not requested an extension from the Board, the
Fifth Circuit suggested that an alien facing an adverse deportation
decision should request a voluntary departure period from the Board
that would expire within a specified time after the Board's
decision or the denial of a timely filed petition for review.12
Other circuits have granted an extension. The First Circuit,
8
Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir.), reh'g
denied, 33 F.3d 44 (1994).
9
Kaczmarczyk v. INS, 933 F.2d 588, 597 (7th Cir.), cert.
denied, 502 U.S. 981, 112 S.Ct. 583, 116 L.Ed.2d 608 (1991);
Alsheweikh v. INS, 990 F.2d 1025, 1027 (8th Cir.1993); Castaneda
v. INS, 23 F.3d at 1580.
10
Kaczmarczyk v. INS, 933 F.2d at 598.
11
Ballenilla-Gonzalez v. INS, 546 F.2d 515, 521-522 (2nd
Cir.1976), cert. denied, 434 U.S. 819, 98 S.Ct. 58, 54 L.Ed.2d 75
(1977); Sibanda v. INS, No. 93-9574, 1994 WL 524973 (10th Cir.
Sep. 27, 1994).
12
Faddoul v. INS, 37 F.3d 185, 191-192 (5th Cir.1994).
noting that the appeal was neither meritless nor interposed solely
for delay and the government had not suggested that it would
present the district director with any other reason for refusing
the reinstatement, directed the government to treat the voluntary
departure period as beginning to run on the effective date of its
mandate.13 The Fourth Circuit reinstated the thirty-day period for
voluntary departure from the date of issuance of the mandate,
noting that there was no evidence that the circumstances that
originally entitled the immigrant to a voluntary departure had
changed and the I.N.S. had not suggested that it would present the
district director with any other reason for refusing
reinstatement.14 The Ninth Circuit en banc, "viewing the award of
voluntary departure as part of the deportation order," held that
"the voluntary departure period does not expire until after our
affirmance of the deportation order."15
We find the reasoning of the Tenth Circuit persuasive, and
adopt the reasoning stated in Castaneda v. INS that, absent a
Congressional empowerment to act, this court lacks jurisdictional
authority to grant an extension.16
Here, the Board granted petitioner an extension within the
February 4, 1994, decision dismissing his appeal from the denial of
13
Umanzor-Alvarado v. INS, 896 F.2d 14, 15-16 (1st
Cir.1990).
14
Ramsay v. U.S.I.N.S., 14 F.3d 206, 211-213 (4th Cir.1994).
15
Contreras-Aragon v. INS, 852 F.2d 1088, 1096-1097 (9th
Cir.1988).
16
Castaneda v. INS, 23 F.3d at 1583.
his requests for asylum and withholding of deportation, stating
that "the respondent is permitted to depart from the United States
voluntarily within 30 days from the date of this order or any
extension beyond that time as may be granted by the district
director." Petitioner's petition for review was filed in this
court on March 4, 1994, within the 30 days granted for departure,
and stayed deportation pending the determination of the petition.17
The request for reinstatement is, therefore, denied.18
Conclusion
The order of the Board of Immigration Appeals is AFFIRMED, and
petitioner's request for reinstatement of his period of voluntary
departure is DENIED without prejudice to consideration of his
request for an extension pending before the district director.
17
8 U.S.C. § 1105a(a)(3). Petitioner asserts that on the
same day that he filed his petition for review, he also requested
an extension of voluntary departure from the district director.
No action has been taken on that request.
18
The district director's decision on the request for
extension of voluntary departure is reviewable in the district
court. See Castaneda, 23 F.3d at 1579.