United States District Court, Southern District of New York
February 15, 1991
SAYEED RASOOL, PETITIONER,
IMMIGRATION & NATURALIZATION SERVICE, RESPONDENT.
The opinion of the court was delivered by: Robert J. Ward, District Judge.
Sayeed Rasool ("Rasool") petitions this Court for a writ of
habeas corpus, pursuant to 28 U.S.C. § 2241 and 8 U.S.C.
§ 1105a(a)(9), seeking review of an order of exclusion and
deportation issued by the Board of Immigration Appeals (the
"BIA"). For the reasons that follow, the order of the BIA is
reversed, and the matter is remanded to the BIA to permit it to
exercise its discretion regarding Rasool's application for
Rasool is a native and citizen of Afghanistan, who arrived at
JFK International Airport in New York on December 24, 1988. He
did not possess any documents authorizing his admission into the
United States, and was therefore detained by respondent
Immigration and Naturalization Service (the "INS") pursuant to
section 235(b) of the Immigration and Nationality Act of 1952, as
amended, 8 U.S.C. § 1225(b) (the "Act").
Rasool thereafter filed an application for political asylum,
which was forwarded to the State Department for an advisory
opinion pursuant to 8 C.F.R. § 208.10. At his exclusion hearing,
held before an Immigration Judge on March 3, 1989, Rasool
conceded excludability under § 212(a)(20) of the Act,
8 U.S.C. § 1182(a)(20). The hearing then proceeded on Rasool's application
for asylum under § 208(a) of the Act or, in the alternative, for
withholding of deportation pursuant to § 243(h) of the Act.
At the hearing, Rasool was represented by his present attorney.
He testified that, while in Afghanistan, he had aided the
Mujahedin*fn1 by providing them with food and
money, and by distributing leaflets and giving them reports. His
father and brother were also actively engaged in aiding the
Mujahedin. Rasool's father made anti-government speeches and
wrote leaflets in addition to contributing money to the rebel
cause, and his brother was killed in 1984 during a fight with
government forces. Further, a cousin of Rasool was imprisoned for
nine years after the government searched his store and found
"night letters"*fn2 which had been hidden there by the cousin's
brother. In 1984, Rasool's father had twice been detained and
questioned by the authorities and then released. Rasool stated
that the government had detained his father based upon the
suspicion that he was aiding the Mujahedin, and then had released
him because it failed to find any proof to support these
On August 10, 1988, Rasool and his father were at his father's
store in Kandahar City with two other Mujahedin who had brought a
report to Rasool's father. Rasool was given the report containing
information for the Mujahedin and instructed to bring it to a
battlefield called "Islamic Party" in Demassuse, approximately
one hour's walking distance from the store. Rasool left on foot
with the report at approximately 9:00 a.m. While he was gone, his
father and the two other Mujahedin were shot and killed in the
store. On his way home, Rasool learned of the murders from a
neighbor, Pazella Martin, who had been sent to notify him. Rasool
was warned by neighbors not to return to his home or he would be
killed. He immediately fled to his uncle's house in a neighboring
suburb, where he remained in hiding for four months prior to
coming to the United States.
Rasool stated his belief that his father and the two other
Mujahedin were killed by government agents. Although the gunmen
wore civilian clothing, Rasool had been told by a shopkeeper that
they were communists. This shopkeeper told him that two people
had walked into the store and shot the three men, and then later
a jeep arrived containing uniformed government people who
searched the store and locked it up. Rasool testified that he
fled to his uncle's home "[b]ecause they searched our home. In
the home they found night letters that my father had and then
they asked about me and they told them that I was not here so
that is why I disappeared." Transcript of Proceedings, Exhibit A
to Declaration of Timothy Macfall ("Tr."), at 65. While he was at
his uncle's house, shopkeepers "told [Rasool's] uncle to tell
[Rasool] not to come there because [his] life would be in
At the close of the hearing, the Immigration Judge rendered an
oral decision denying petitioner's requests for relief, and
ordered that he be excluded and deported to Afghanistan. On March
13, 1989, petitioner filed a timely appeal with the BIA. He was
paroled from INS custody pending the determination of his appeal
by the BIA. On July 24, 1989, the BIA dismissed petitioner's
appeal, finding that he had failed to meet his burden of proof on
both his applications for asylum and for withholding of
deportation. Petitioner now challenges those findings of the BIA.
During his exclusion proceeding, petitioner sought asylum or,
in the alternative, withholding of deportation.*fn3 These are
the two principal statutory remedies available to an alien
seeking to avoid deportation from the United States. E.g., Brice
v. U.S. Dep't of Justice, 806 F.2d 415, 417 (2d Cir. 1986).
I. The Alien's Burden of Proof.
A. Asylum under § 208 —
Under § 208(a) of the Act, an alien "may be granted asylum in
the discretion of the Attorney General if the Attorney General
determines that such alien is a refugee. . . ."
8 U.S.C. § 1158(a). Section 101(a)(42)(A) of the Act defines the
term "refugee" as:
any person who is outside any country of such
person's nationality . . . and who is unable or
unwilling to return to, and is unable or unwilling to
avail himself or herself of the protection of, that
country 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 U.S.C. § 1101(a)(42)(A) (1970 & Supp. 1990); INS v.
Cardoza-Fonseca, 480 U.S. 421, 428, 107 S.Ct. 1207, 1211, 94
L.Ed.2d 434 (1987); Doherty v. U.S. Dep't of Justice, INS,
908 F.2d 1108, 1114 (2d Cir. 1990). "Thus, the `persecution or
well-founded fear of persecution' standard governs the Attorney
General's determination whether an alien is eligible for asylum."
INS v. Cardoza-Fonseca, supra, 480 U.S. at 428, 107 S.Ct. at
1211. The burden is on the alien to demonstrate a well-founded
fear of persecution. See, e.g., Doherty v. U.S. Dep't of
Justice, INS, supra, 908 F.2d at 1114.
To demonstrate a well-founded fear of persecution, "an alien
must demonstrate a subjective fear of persecution and some
objective facts supporting that fear." Brice v. U.S. Dep't of
Justice, 806 F.2d 415, 418 (2d Cir. 1986); Carcamo-Flores v.
INS, 805 F.2d 60, 64 (2d Cir. 1986). See also INS v.
Cardoza-Fonseca, supra, 480 U.S. at 430-31, 438-40, 107 S.Ct. at
1212-13, 1216-18. Ideally, the requirement of "some objective
facts supporting that fear" should be satisfied through such
corroborative evidence as "affidavits, journalistic accounts or
other examples of persecution in the involved country, or
testimony corroborating the alien's claims." See Carcamo-Flores
v. INS, supra, 805 F.2d at 64. However, it is possible that
"[c]redible testimony by the alien might, in some cases, suffice,
especially where conditions in the alien's native country make
production of documentary evidence difficult or impossible."
Id. In any event, it is now settled law that an alien need not
demonstrate that it is more likely than not that he will be
subject to persecution in order to satisfy the "well-founded
fear" standard. INS v. Cardoza-Fonseca, supra, 480 U.S. 421,
107 S.Ct. 1207. See Carcamo-Flores v. INS, supra, 805 F.2d at
As noted above, once an alien has demonstrated that he
qualifies as a refugee, he may be granted political asylum in the
discretion of the Attorney General.
B. Withholding of Deportation under § 243(h) —
Section 243(h) provides that:
The Attorney General shall not deport or return any
alien . . . to a country if the Attorney General
determines that such alien's life or freedom would be
threatened in such country on account of race,
religion, nationality, membership in a particular
social group, or political opinion.
8 U.S.C. § 1253(h) (1970 & Supp. 1990). In order to avoid
deportation under this section, "an alien must establish a clear
probability of persecution. . . ." INS v. Stevic, 467 U.S. 407
413, 104 S.Ct. 2489, 2492, 81 L.Ed.2d 321 (1984). Under this
standard, the question is "whether it is more likely than not
that the alien would be subject to persecution." Id. at 424,
104 S.Ct. at 2498.
"Unlike asylum, which is discretionary, withholding of
deportation is a mandatory remedy that prohibits the attorney
general from deporting an alien to a country where there is a
clear probability that his `life or freedom would be threatened'"
because of one of the five enumerated factors. Doherty v. U.S.
Dep't of Justice, INS, supra, 908 F.2d at 1114. The remedy is,
however, narrower than that of asylum. Under a
grant of asylum, the alien is permitted "to remain in the United
States where he can eventually apply for lawful permanent
residence." Id. Withholding of deportation "bar[s] deportation
only to the nation where the alien faces persecution, but not to
nonthreatening third countries." Id.
II. The Standard of Review.
A. Denial of Asylum —
As Respondent notes, both the Supreme Court and the Second
Circuit have yet to rule directly on the standard of judicial
review applicable to a denial of political asylum under § 208.
However, the Second Circuit in dicta has suggested that the
correct standard is whether the decision of the BIA is supported
by substantial evidence. In Chun v. Sava, 708 F.2d 869, 876 (2d
Cir. 1983), the Court stated:
Nothing that we have said, of course, goes to the
substantive question whether petitioners are in fact
entitled to be treated as asylees. Resolution of this
question requires the development of a factual
record, for Congress, in accordance with treaty law,
has instructed the INS to deny asylum in certain
circumstances, including a determination that an
alien applicant is not a refugee within the meaning
of the Act (footnote omitted). And of course the
Attorney General shall not deport or return alien
refugees, as a matter of statutory law,
8 U.S.C. § 1253(h)(1), as well as of treaty law, . . . .
Congress's limitation on the Attorney General's
discretion requires careful fact-finding. Were the
substantive question before us, the issue on appeal
would be whether there was substantial evidence on
the record as a whole to support the INS decision. .
Chun v. Sava, supra, 708 F.2d at 876 (emphasis supplied)
(citing McMullen v. INS, 658 F.2d 1312, 1316 (9th Cir. 1981)).
McMullen, cited favorably by the Second Circuit in this
regard, dealt with the standard of review to be applied to
withholding of deportation decisions under § 243(h). However, the
above-quoted language in Chun appears also to find that the
decision whether an alien is a refugee is to be reviewed under
the substantial evidence standard. See Sarkis v. Nelson,
585 F. Supp. 235, 237-38 (E.D.N.Y. 1984).
In Sarkis, Judge McLaughlin held that: where the
[BIA] denies political asylum not as a matter of
discretion, but as a result of its factual
determination that petitioner [has] not
demonstrated a well-founded fear of persecution, its
determination must be supported by substantial
Sarkis v. Nelson, supra, 585 F. Supp. at 238. See also
Carvajal-Munoz v. I.N.S., 743 F.2d 562
, 567 (7th Cir. 1984)
(applying substantial evidence test to finding regarding refugee
status) (citing Sarkis v. Nelson, supra, 585 F. Supp. at
237-38). Cf. McMullen v. INS, supra, 658 F.2d at 1316 (standard
for evaluating factual determination of BIA is substantial
evidence). In the instant case the denial of asylum was likewise
a result of the BIA's factual determination that Rasool failed to
demonstrate a well-founded fear of persecution. Accordingly, the
Court determines that the rationale enunciated in Sarkis is
persuasive, and that the substantial evidence standard is
appropriate for review of the BIA's determination whether an
alien has demonstrated that he is a refugee under the Act.*fn5
Insofar as courts in other jurisdictions have applied a more
deferential standard of review, the Court declines to follow
them. See Young v. U.S. Dep't of Justice, INS, 759 F.2d 450,
455 n. 6 (5th Cir.), cert. denied, 474 U.S. 996, 106 S.Ct. 412,
88 L.Ed.2d 362 (1985) (denial of discretionary relief, such as
asylum, may not be disturbed absent abuse of discretion);*fn6
v. I.N.S., 757 F.2d 532 (3d Cir. 1985) (court will overturn
decision of the BIA only if it abused its discretion).*fn7
B. Withholding of Deportation —
Respondent argues that the decision of the BIA with respect to
withholding of deportation under § 243(h) should be subject to an
abuse of discretion standard of review. Respondent asserts that
the circuits are split on this issue, with the Third, Sixth and
Eighth Circuits applying an abuse of discretion standard, and the
Fifth, Seventh, Ninth and Eleventh Circuits applying a
substantial evidence test. See Memorandum in Opposition at 17.
A review of the cases cited by Respondent, as well as other
cases not cited, reveals that in fact the Third Circuit is the
only court directly to have held that an abuse of discretion
standard applies to § 243(h) determinations. See
Marroquin-Manriquez v. I.N.S., 699 F.2d 129, 133 n. 5 (3d Cir.
1983), cert. denied, 467 U.S. 1259, 104 S.Ct. 3553, 82 L.Ed.2d
855 (1984). The other courts which have addressed the issue have
held overwhelmingly that, under the language of the 1980 Act
which made decisions regarding withholding of deportation
mandatory upon a finding of a clear probability of persecution,
the substantial evidence standard must be applied. See
Espinoza-Martinez v. I.N.S., 754 F.2d 1536, 1539 (9th Cir.
1985); Young v. U.S. Dep't of Justice, INS, 759 F.2d 450,
455-56 n. 6 (5th Cir.), cert. denied, 474 U.S. 996, 106 S.Ct.
412, 88 L.Ed.2d 362 (1985); Carvajal-Munoz v. I.N.S.,
743 F.2d 562, 569 (7th Cir. 1984); Chavarria v. U.S. Dep't of Justice,
722 F.2d 666, 670 (11th Cir. 1984); Reyes v. I.N.S.,
693 F.2d 597, 599 (6th Cir. 1982) (per curiam); McMullen v. INS,
658 F.2d 1312, 1316 (9th Cir. 1981). See also Sarkis v. Nelson,
supra, 585 F. Supp. at 237 & n. 4; 8 U.S.C. § 1105a(a)(4).
Because the Court agrees with the reasoning of those courts
which have determined that the substantial evidence test is the
correct standard of review to be applied to the BIA's decision to
deny relief under § 243(h); and because the dicta in Chun,
quoted above, suggests that the Second Circuit would apply this
standard, the Court finds that the BIA's decision, to be upheld,
must be supported by substantial evidence.
III. The Merits.
The BIA, following a de novo review of the entire record,
dismissed Rasool's appeal based upon a finding that he had failed
to provide an objective basis for his belief that it was the
government which killed his father and the other two Mujahedin,
and that he had likewise failed to provide
an objective basis for his belief that the government
subsequently sought him out because he was missed when the
murders occurred. The BIA determined that "the behavior of the
government officers is consistent with the kind of investigation
that one would expect" following a crime such as that committed
against Rasool's father and the other two men.
The Court first notes that petitioner's credibility was not
questioned by either the Immigration Judge or the BIA. Rather,
both appear to have credited his testimony, yet disagreed with
the inferences drawn by petitioner from the facts presented. See
Sarkis v. Nelson, supra, 585 F. Supp. at 240 (fair reading of
BIA's opinion shows that applications were not denied on general
credibility grounds, but on specific grounds discussed by court).
Accordingly, the Court will "accept petitioner's statements where
they establish factual circumstances with specificity, are not
speculative, and do not conflict with petitioner's other
evidence." Carvajal-Munoz v. I.N.S., 743 F.2d 562, 577 (7th
Petitioner's testimony was quite specific and factually
grounded. A review of the record leaves this Court not with an
image of a vague and generalized fear based upon the unrest and
disregard for civil rights in petitioner's country, or based
simply upon Afghanistan's record of persecution of rebel
sympathizers. Rather, Rasool at his exclusion hearing presented
concrete and specific facts implying that the government was
looking for him in particular, that it had singled him out for
adverse treatment, and that his life would be in danger were he
to return to that country. The facts recited by Rasool suggest
rather unmistakably that the government was responsible for the
deaths of his father and the two other Mujahedin at his father's
store. Although there may be some reasonable doubt as to the
identity of the killers, an alien is not required to prove that
he will be persecuted beyond a reasonable doubt. Instead, his
burden is to demonstrate that it is more likely than not that he
will be subject to persecution in order to satisfy § 243(h), or
that he has a reasonable fear of persecution to satisfy § 208.
This Rasool has done.
The BIA's suggestion that Rasool's father and the two other men
might have been killed by non-government forces is unsupported by
anything in the record, let alone by substantial evidence.
Indeed, all of the evidence presented at the hearing suggests
quite strongly that it was the government which was responsible
for the killings. Even if that were not the case, in searching
Rasool's home following the murders government agents found rebel
literature and asked neighbors about Rasool's whereabouts. In
light of his testimony that his cousin was imprisoned for nine
years following a similar incident, Rasool's evidence of likely
persecution grew even stronger after this occurrence.
The Court is unable to conceive of precisely what further
evidence petitioner could possibly have offered to support his
contention that it was the government which was responsible for
his father's death, or that he was being sought by the government
not in connection with a "criminal investigation," but because he
had fortuitously been absent during the killings. The shopkeepers
and neighbors who witnessed the shootings and the subsequent
"investigation" believed that Rasool's life was in danger. They
presumably would be in a position to know the difference between
a routine criminal investigation and a manhunt for a suspected
rebel sympathizer. In addition, the State Department's Country
Report on Human Rights, incorporated as an exhibit at the
hearing, fully supports Rasool's testimony and the inferences he
In sum, after a review of the entire record, the Court finds
that the decision of the BIA is not supported by substantial
evidence. Rasool's testimony, accepted as credible, demonstrated
a clear probability of persecution in the event of his
deportation to Afghanistan. For the same reason, he met the
lesser burden of demonstrating a reasonable fear of persecution.
Accordingly, the matter is remanded to the BIA
for an exercise of discretion regarding whether Rasool is
entitled to political asylum. Further, the Court directs that
petitioner's application for withholding of deportation be
granted, and that he not be deported to Afghanistan in any event.
It is so ordered.