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October 8, 1999


The opinion of the court was delivered by: Scheindlin, District Judge.


Petitioner Batsaihan Purveegiin ("Purveegiin" or "Petitioner"), proceeding pro se, brings this application for a writ of habeas corpus, 28 U.S.C. § 2241, seeking review of an order denying his application for asylum and withholding of removal (hereinafter "deportation").*fn1 Petitioner alleges that he will face persecution if he is returned to his native country, Mongolia. Respondent United States INS Processing Center ("INS" or "Government") argues, inter alia, that the Court lacks subject matter jurisdiction to review the petition. For the reasons stated below, the petition is DENIED.

I. Background

Purveegiin, a native and citizen of Mongolia, entered the United States in 1991 as a nonimmigrant exchange student to study painting at The Art Students League in New York City. See Purveeginn's Brief to the Board of Immigration Appeals ("BIA") dated March 26, 1998, attached to Purveegiin's Petition for a Writ of Habeas Corpus ("Pet.Brief"), at 1.

In order to pay for his studies, petitioner borrowed approximately $22,000 from the Mongolian Government. Pet. Brief at 1. Petitioner was expected to repay the loan while attending school. Pet. Brief at 1. Once in the United States, petitioner found he was unable to pay the loan. Pet. Brief at 2. The Mongolian Government denied his request for a deferment and threatened Purveegiin with immediate arrest upon his return "for stealing the money of the Mongolian people." Pet. Brief at 2, 5; see also Return, record of Purveeginn's INS proceedings certified by the Executive Office for Immigration Review of the United States Department of Justice, attached to declaration of Assistant United States Attorney Aaron M. Katz dated May 27, 1999 ("R."), at 248-50. In April 1992, Purveegiin dropped out of The Art Students League and did not continue his studies at any other school. Pet. Brief at 2; R. at 222. From 1993-1997, Purveegiin was homeless; during this time, Purveegiin was convicted of several crimes. Pet. Brief at 2; R. at 387, 460-71.

While in the United States, Purveegiin met with members of the Mongolian delegation to the United Nations where he denounced the Mongolian People's Revolutionary Party ("MPRP") and vowed to fight against the MPRP while in the United States. Pet. Brief at 2. Purveegiin maintains he will face persecution if he is returned to Mongolia based on the political opinions and criticisms he expressed to MPRP members. Pet. Brief at 6. Purveegiin fears persecution because the MPRP has regained control of the Mongolian government and its members now occupy high positions within the Mongolian government. Pet, Brief at 8.

Purveegiin further maintains that he will he arrested not for defaulting on the loan, but for expressing his political opinion against the MPRP. R. at 270-71. Purveegiin claims he will be "at risk from starvation within the Mongolian prison system." Pet. Brief at 6. He argues that he has established his fear of persecution is wellfounded because: (i) he holds a political opinion, (ii) the MPRP is aware of his political opinion, (iii) the MPRP now has the means to carry out the persecution. Pet. Brief at 6, 8-10.

A. Purveeginn's Criminal History

B. INS Proceedings

In 1997, the INS issued a Notice to Appear charging Purveegiin as deportable because (a) he failed to maintain the conditions of his student status, 8 U.S.C. § 1227 (a)(1)(C)(i) (Supp. II 1996), R. at 507-09, and (b) he was convicted of crimes involving moral turpitude. 8 U.S.C. § 1227 (a)(2)(A)(i) & (ii) (Supp. II 1996). R. at 397, 460-71. Petitioner conceded his deportability, see R. at 186-87, and applied for asylum and withholding of deportation on the ground that he would face persecution based on his political beliefs. Pet. Brief at 2; R. at 188, 383-89. See also Section 11(B), infra.

On November 14, 1997, Purveegiin (represented by counsel, see R. at 200) testified before Immigration Judge Walter A. Durling, Jr. ("IJ").*fn2 Pet. Brief at 2; R. at 200-79. The IJ also received into evidence INS charging documents, Purveegiin's asylum application, letters, and background materials from the United States Department of State and Amnesty International on Mongolia. Pet. Brief at 5; R. at 155-56, 197-98, 201.

At the hearing, Purveegiin testified that the Mongolian Ambassador's son drugged him and stole his legal documents and bank card. R. at 233. Following this incident, Purveegiin became short-tempered and stopped attending art school. R. at 237-38. He also testified that his mail was opened at the United Nations Consulate, R. at 241, and that he suspected his telephone was wiretapped. R. at 245-46.

Purveegiin testified that Mongolian Secret Service agents warned him he would be arrested for his anti-Communist remarks and for failing to pay the loan. R. 248-50, 251. He also testified that he received a threat of arrest from the Minister of Economy. R. at 251. Purveegiin described a letter be received from his mother stating that she was warned by an unnamed government official that Purveegiin would face "problems" if he continued to curse and fight with the Mongolian United Nations representative. R. at 251-53, 255-59 (translator read letter into the record). Purveegiin explained that his mother's letter also alluded to the house arrest of his former employer and co-workers for assisting him in New York. R. at 259-60. Purveegiin testified that the Foreign Minister will have him arrested because "I don't like [Mongolian Party people] and I tell him openly." R. at 262.

Purveegiin testified that he suspected the Mongolian Government was involved in his father's death of food poisoning in 1995. R. at 265-66. He contends that he faces arrest, not for his outstanding loan, but because he told politically influential members of the Communist Party that he would "struggle" against them. R. at 268-70.

On November 25, 1997, the IJ issued a written opinion denying Purveegiin's application for asylum and withholding of deportation. R. at 150-58. Although the IJ determined that Purveeginn's fears were subjectively genuine and credible, R. at 153, he found that Purveegiin failed to establish that he would face persecution based on his political opinion. R. at 154-57. The IJ referred to documents from the State Department and Amnesty International which "did not indicate that it is a crime to criticize the government, politically or otherwise." R. at 157. Because the IJ found ...

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