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.
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.
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 ...