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SARKIS v. NELSON

April 12, 1984

ABRAHAM SARKIS (IAN) and RAZMIK MOURAD (IAN), Petitioners, against ALAN C. NELSON, Commissioner Immigation and Naturalization Service and HUGH J. BRIEN, Assistant Commissioner Detention and Deportation Immmigration and Naturalization Service and TIMOTHY WHELAN, Acting District Director, Boston District Office Immigration and Naturalization Service and CHARLES C. SAVA, District Director, New York District Office, Immigration and Naturalization Service, Respondents.


The opinion of the court was delivered by: MCLAUGHLIN

MEMORANDUM AND ORDER

McLAUGHLIN, District Judge

 In this petition for a writ of habeas corpus under 8 U.S.C. § 1105a (b), Abraham Sarkis and Razmik Mourad challenge the January 6, 1984 decision by the Board of Immigration Appeals (the "Board") that denied their applications for (1) political asylum under 8 U.S.C. § 1158(a); and (2) temporary withholding of deportation under 8 U.S.C. § 1253(h). *fn1"

 Factual Background

 Sarkis is the twenty-year old uncle of Mourad, who is nineteen. Both are Armenian Christians and citizens of Iraq. They independently left Iraq after allegedly suffering detention and beatings because they had declined invitations to become members of the ruling Ba'ath Party.

 After leaving Iraq, Mourad spent some time in Jordan, Yugoslavia and Greece. Sarkis also went to Yugoslavia and Greece before joining Mourad for the trip to this country. Travelling with Iraqi passports but without visas for the United States, petitioners flew from Athens to Boston, where they were scheduled to board a connecting flight to Mexico City. Instead of doing so, however, petitioners presented themselves to the immigration officer at the airport in Boston *fn2" and requested political asylum. They were immediately taken into custody on June 17, 1982 and have been detained since that time at the Brooklyn Processing Center.

 Procedural History

 On August 3, 1982, a hearing was held before an Immigration Judge in Boston. In a written opinion, he denied petitioners' applications for asylum and withholding of deportation, and ordered petitioners' exclusion and deportation.

 Petitioners subsequently retained new counsel, who then moved to reopen the hearing to present further evidence on petitioners' fear of persecution. The motion to reopen was granted, and on March 29, 1983 a remand hearing was held.

 Because tape recorded portions of the testimony given at the remand hearing subsequently proved inaudible, a second remand hearing was ordered on May 24, 1983. Witnesses who testified on behalf of petitioners include petitioners themselves, Doman Sarkis (Abraham Sarkis's brother), Jasin Salah Al-Azzawi (an Iraqi national currently employed by the United States Department of State), and one Father Hagopian (of the Armenian Apostolic Church).

 At the conclusion of the second remand hearing, the Immigration Judge again denied the applications for asylum and withholding of deportation, and ordered exclusion and deportation. In a sixteen-page written opinion issued on January 6, 1984, the Board dismissed petitioners' appeal and entered a final order of exclusion and deportation.

 The Burden of Proof And Standard of Review

 1. Withholding of Deportation

 Applications for withholding of deportation are governed by 8 U.S.C. § 1253, ...


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