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.
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
On March 26, 1993, Purveegiin was convicted and sentenced to three
after pleading guilty to second-degree menacing in violation of N.Y.
Penal Law § 120.14(1). Government's Memorandum of Law in Opposition
to Pet. ("Gov't Memo"), at 3; R. at 460. On August 18, 1995, Purveegiin
was conditionally discharged and sentenced to one day of community
service after pleading guilty to petit larceny. Gov't Memo at 4; R. at
461. On November 17, 1995, Purveegiin was resentenced on the menacing
conviction to four months incarceration for violating probation. Gov't
Memo at 4; R. at 460-61. He was also sentenced to 60 days after pleading
guilty to third-degree attempted assault in violation of N.Y. Penal Law
§§ 110.00 & 120.00(1). Gov't Memo at 4; R. at 461. On April 14,
1997, Purveegiin was convicted of second-degree criminal impersonation in
violation of N.Y. Penal Law § 190.25(1) and sentenced to seven
months incarceration after pleading guilty. Gov't Memo at 4; R. at 465.
He was also convicted of third-degree sexual abuse in violation of N.Y.
Penal Law § 130.55 and sentenced to three months incarceration after
pleading guilty. Gov't Memo at 4; R. at 467, see also R. at 157, 272-74
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,
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.
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 ...