Filed: Sep. 30, 2004
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 9-30-2004 Askari v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 03-2264 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Askari v. Atty Gen USA" (2004). 2004 Decisions. Paper 316. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/316 This decision is brought to you for free and open access by the Opinions of
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 9-30-2004 Askari v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 03-2264 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Askari v. Atty Gen USA" (2004). 2004 Decisions. Paper 316. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/316 This decision is brought to you for free and open access by the Opinions of ..
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Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
9-30-2004
Askari v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-2264
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"Askari v. Atty Gen USA" (2004). 2004 Decisions. Paper 316.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/316
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 03-2264 & 03-4456
SAMIEH ASKARI,
Petitioner
v.
JOHN ASHCROFT, Attorney General
of the United States
Respondent
On Petition for Review of an Order Entered in
The Board of Immigration Appeals
(No. A 76-512-182)
Submitted Under Third Circuit LAR 34.1(a)
September 14, 2004
Before: SCIRICA, Chief Judge, ALITO and AM BRO, Circuit Judges
(Filed September 30, 2004 )
OPINION
AM BRO, Circuit Judge
Samieh Askari petitions for review of the order of the Board of Immigration
Appeals (“BIA”) affirming the denial by an Immigration Judge (“IJ”) of her applications
for asylum, withholding of removal, and protection under the Convention Against Torture
(“CAT”). Central to the IJ’s decision was his finding that Askari’s claims of a well-
founded fear of persecution upon return to her native country were not credible. But even
if Askari’s claims were credible, they would not rise to the level of persecution, as
required for asylum relief. Therefore, we deny her petition for review of the BIA’s
decision to deny her relief, as well as its denial of her motion to reconsider this decision
and her motion to reopen.
I. Facts and Procedural Posture
Askari, a native and citizen of Iran, arrived in the United States in March 1999.
The Immigration and Naturalization Service 1 (“INS”) immediately placed her in removal
proceedings, charging her with removability under 8 U.S.C. § 1182(a)(7)(A)(i)(I) for
arriving in the United States without proper documentation. In August 1999 she filed an
initial application for asylum, withholding of removal, and protection under the CAT,
claiming that she left Iran to escape the threat of arrest and torture in retaliation for anti-
government activism she engaged in while a medical student at Tehran University. In her
application and at a hearing before the IJ, she testified that the Iranian government
restricted her studies and professional advancement and that on two occasions she was
1
As a result of the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat.
2135 (2002), the INS has since ceased to exist as an agency within the Department of
Justice and its enforcement functions have been transferred to the Department of
Homeland Security.
2
detained, interrogated, and beaten by Iranian police.
On April 3, 2000, the IJ denied Askari’s applications for relief after finding that
her testimony was not credible. Askari appealed to the BIA, which on April 4, 2003,
affirmed the IJ’s decision, including his adverse credibility finding “where he found the
respondent to be incredible based upon her statements made to an immigration official
upon arrival.” JA at 21. The BIA also agreed with the IJ’s “essential conclusion that
nothing the respondent has described about her experiences in Iran would rise to the level
of persecution.” Id. Askari’s appeal of the BIA’s decision denying her applications for
relief is No. 03-2264.
On May 2, 2003, Askari timely filed a Motion to Reconsider with the BIA. On
July 1, 2003, she timely filed a Motion to Reopen based on a change of circumstances in
Iran since the IJ’s decision. In October, the BIA denied both of these motions in one
decision. Askari’s appeal of this decision is No. 03-4456. In April 2004, our Court
granted Askari’s motion to consolidate the two pending appeals.2
II. Analysis
A. Denial of Asylum Relief
Under the Immigration and Nationality Act (“INA”), the Attorney General and his
delegates, the BIA and IJ, may grant asylum to any alien who qualifies as a refugee. 8
U.S.C. § 1158. A refugee is an alien who is unable or unwilling to return to her country
of origin “because of persecution or a well-founded fear of persecution on account of
2
Our appellate jurisdiction is proper under 8 U.S.C. § 1252(a)(1).
3
race, religion, nationality, membership in a particular social group, or political opinion.”
Id. § 1101(a)(42)(A). Aliens have the burden of supporting their asylum claims.
Testimony by itself is sufficient to meet this burden, as long as it is credible. Gao v.
Ashcroft,
299 F.3d 266, 272 (3d Cir. 2002).
Askari supported her asylum application with testimony that the Iranian
government suppressed her educational and professional advancement in retaliation for
her political activism. She claimed that she was prevented from pursuing a specialty in
internal medicine when the government placed conditions on her entrance into a
residency program. In particular, she was asked to sign an agreement that would make
her liable for a penalty (twice the expenses of her tuition plus twice her salary and
allowance) if she was dismissed from the program or decided to leave, which Askari
refused to sign. She argued that this contract was intended to suppress political activity
by enabling the government to hold the threat of dismissal, and thus the penalty, over her.
The IJ found that the contract (which also required Askari to work for two years in the
public service) did not put such a “heavy burden” on Askari as to support her claim that
she was prevented from practicing internal medicine and speculated that “if the Iranian
government had indeed wanted to punish the respondent for her political activities, they
would have prohibited her from studying internal medicine in the first place, and not
given her the opportunity of entering her specialty after signing the contract.” JA at 16.
Askari also claimed that she was denied admission to medical school for three
years because of her political activities as teenager. The IJ found this testimony
4
inconsistent with documentation from the government’s education ministry that she was
not immediately accepted into medical school because of academic ineligibility. He
found it implausible that the government would punish Askari by delaying her entrance to
medical school rather than denying her altogether. JA at 15.
Aksari testified that both of her sisters were denied university education for several
years. But the IJ doubted that this delay was retaliation for their political activities
because the government did not “ban[] them from higher education altogether.” JA at 17.
She testified that her brother was expelled from medical school after giving a political
speech and that, eleven years later, he still did not work and suffered clinical depression.
But because Askari refused to discuss her brother’s medical situation, the IJ could not
find based on the limited testimony available that he had suffered persecution. Id.
Askari told the IJ that twice in 1998 she was detained, interrogated, beaten, and
threatened after attending and speaking at a political meeting. Askari insisted that this
testimony did not conflict with what she told immigration officials upon arrival in the
United States—that she had never been “arrested” in Iran—because she had not been put
in jail on those occasions. The IJ was not convinced by this “fine line distinction” and
determined that Askari had fabricated the 1998 events to bolster her asylum application.
In any event, he did not find that “being placed in confinement on two or three occasions
amounted to persecution, based on what she has told me occurred during those
occasions.” JA at 16. On appeal, the BIA rejected this particular inconsistency as a basis
for an adverse credibility finding, but endorsed the IJ’s conclusion that it did not rise to
5
the level of persecution, as required to support an asylum claim.
Askari argues on appeal that the IJ’s findings of inconsistencies and
improbabilities were based on speculation or conjecture and thus do not qualify as
substantial evidence required to support an adverse credibility finding. She argues that
the IJ overlooked the suppressive effect of the conditions of her entrance into an internal
medicine residency program, and that his conclusion that she was academically ineligible
was not based on any record evidence. Therefore, she insists, the adverse credibility
finding cannot stand.
But even if the IJ had found Askari’s testimony to be credible, it would not
establish that she was persecuted or has a well-founded fear of persecution as required for
asylum relief.3 Though the INA provides no definition of persecution, we have
recognized it as an “extreme concept that does not include every sort of treatment our
society regards as offensive.” Fatin v. INS, 12 F.3d 1233, 1243 (3d Cir. 1993).
Persecution includes “threats to life, confinement, torture, and economic restrictions so
severe that they constitute a threat to life or freedom.”
Id. at 1240. In Askari’s case, she
was able to enroll in medical school, receive her degree, and practice medicine after
graduation. Her argument that she was denied an opportunity to specialize in a particular
3
To be eligible for asylum, the applicant must demonstrate persecution by substantial
evidence or a well-founded fear of persecution that is subjective and objectively
reasonable. Lukwago v. INS,
329 F.3d 157, 177 (3d Cir. 2003). Having found Askari to
be ineligible for asylum, the IJ did not need to consider whether she qualified for
mandatory withholding of removal or protection under the CAT, which both require an
applicant to make an even stronger showing—that it is “more likely than not” that the
applicant will be persecuted or tortured upon return to her home country.
Id. at 182–83.
6
area of medicine is not persecution. For economic deprivation—such as denial of
employment—to be considered persecution, it must rise to the level of deliberate
imposition of substantial economic disadvantage. See, e.g., Chen v. INS, 195 F.3d 198,
204 (4th Cir. 1999). At worst, Askari was deterred from enrolling in an internal medicine
residency program by the Iranian government’s conditions on her entrance. Regardless
whether those conditions were onerous or intended to suppress her political activity, they
do not rise to the level of persecution. See, e.g., Zalega v. INS,
916 F.3d 1257, 1260 (7th
Cir. 1990) (inability to obtain the government job that one prefers is not persecution).
Moreover, Askari’s testimony about being mistreated at the hands of Iranian police
does not rise to the level of persecution. She was detained only briefly, and her claims
that she was beaten up and threatened are general and vague. On this evidence, it was
reasonable for the IJ to conclude, and the BIA to affirm, that these episodes were not
persecution or the basis for a well-founded fear of persecution. See, e.g., Prasad v. INS,
47 F.3d 336, 339–40 (9th Cir. 1995) (affirming IJ’s finding that alien had not suffered
persecution, notwithstanding testimony that he was jailed, interrogated for four to six
hours, hit in the stomach and kicked from behind); Kapcia v. INS,
944 F.2d 702, 704, 708
(10th Cir.1991) (denial of asylum upheld despite fact that petitioner was “detained for a
two-day period during which time he was interrogated and beaten”).
Because Askari’s testimony, even if credible,4 would not establish that she had
4
In this context, we need not reach Askari’s arguments that the BIA insufficiently
explained its decision to reject one aspect of the IJ’s rationale for his adverse credibility
finding while upholding the finding overall.
7
been persecuted or had a well-founded fear of persecution, we uphold the BIA’s order
affirming the IJ’s denial of asylum, withholding of removal, and CAT relief. For the
same reason, we affirm the BIA’s order denying her motion to reconsider.
B. Denial of Motion to Reopen
In July 2003 Askari moved the BIA to reopen its proceeding against her due to a
“material change in circumstances in Iran since the IJ’s decision.” She supported her
motion with a State Department publication and evidence of her political activities in the
United States since the IJ’s April 2000 decision. The BIA denied this motion because
Aksari’s evidence was not previously unavailable or that it failed to demonstrate a change
in circumstance that materially affected her eligibility for asylum.
A motion to reopen must state the new facts that will be proven at a hearing to be
held if the motion is granted and must be supported by affidavits or other evidentiary
material. 8 C.F.R. § 1003.2(c)(1). We review a denial of a motion to reconsider for
abuse of discretion. INS v. Abudu, 485 U.S. 94, 96 (1988). The BIA abuses its discretion
when it applies an incorrect legal principle or makes factual findings that are arbitrary and
capricious or lacking in substantial evidence. Tipu v. INS,
20 F.3d 580, 582 (3d Cir.
1994).
The BIA’s conclusion that evidence of Askari’s political activities in the United
States was not previously unavailable and did not materially affect her eligibility for
asylum was neither arbitrary nor contrary to the evidence. The record before the IJ
referenced Askari’s political activities in the United States, and Askari does not explain
8
how her subsequent political activities in the United States contribute to a well-founded
fear of persecution in a materially different way. Nor was it an abuse of discretion for the
BIA to conclude that new general evidence of human rights abuses in Iran did not
materially affect her well-founded fear of persecution.
* * * * *
In this context, we will deny Askari’s petition for review of the BIA’s order
affirming the IJ’s denial of asylum and other relief, and we will deny her petition for
review of its order denying her motion to reconsider and motion to reopen.
9
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