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Kashani v. Nelson

June 12, 1986

HAMID R. KASHANI, PLAINTIFF-APPELLANT,
v.
ALAN NELSON, IMMIGRATION AND NATURALIZATION SERVICE, DEFENDANT-APPELLEE



Appeal from an Order of the District Court for the Southern District of Indiana. No. IP83-1878C--William E. Steckler, Judge.

Author: Coffey

Before COFFEY, FLAUM, and RIPPLE, Circuit Judges.

COFFEY, Circuit Judge.

The plaintiff appeals the district court's dismissal of his complaint seeking judicial review of the district director of Immigration and Naturalization Service's denial of his request for political asylum and for a preliminary injunction enjoining the Immigration and Naturalization Service from taking any further action to deport him from the United States. We affirm.

I.

The plaintiff, Hamid Kashani, an Iranian national, entered the United States on January 4, 1976 with non-immigrant student status pursuant to an "F-1" visa authorizing his entry to attend the School of Engineering at Purdue University in Lafayette, Indiana. Kashani completed his studies on July 10, 1982 and on October 14, some three months later, filed a Request for Asylum with the District Director of the Immigration and Naturalization Service ("INS") pursuant to § 208 of the Immigration and Nationality Act ("INA" or "Act"), 8 U.S.C. § 1158(a). Section 208 provides that an alien may be granted asylum if he is a refugee within the meaning of § 101(a)(42)(A) of the Act [8 U.S.C. § 1101(a)(42)(A)], which defines a refugee as:

"Any person who is outside any country of such person's nationality or, in the case of the person having no nationality, is outside any country in which such person last habitually resided, 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. . . . "

To establish a "well-founded fear of persecution," Kashani alleged in his application that he would be executed if he returned to Iran because of his activities in the now outlawed Rastakhiz Political Party, including his actions as an investigator for the Headquarters for Fighting Against Profiteering, a division of the party; his outspoken opposition to the Ayatollah Khomeni, the current leader of Iran, and the Ayatollah's National Secret Service; and his work as a journalist. Additionally, Kashani contended that he did not practice a religion or belong to a religious group and that the Iranian government, "is known to have mass murdered . . . those who allegedly do not adequately belong to a religious group."

On October 20, 1983, a year after Kashani filed his Asylum Request, the District Director denied the request because Kashani "failed to establish a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion. . . . " On that same day, the District Director notified Kashani that he was required to depart from the United States, at his own expense, on or before November 20, 1983.

On November 20, 1983, Kashani filed a "Verified Complaint for Judicial Review and Motion for Preliminary Injunction" in the United States District Court for the Southern District of Indiana alleging that the District Director abused her discretion in denying his asylum request and that she failed to consider relevant evidence and based her decision on non-relevant grounds. Kashani asked the district court to enjoin any further deportation proceedings and to grant his request for asylum. The district court dismissed the complaint, holding that "an applicant for asylum does not have the right to appeal the District Director's decision in the district court." Kashani urges us to reverse the district court's determination that it does not have jurisdiction, arguing that since the District Director's denial is not made during a deportation proceeding, the denial does not fall within the Court of Appeal's exclusive jurisdiction over deportation orders and may be reviewed by the district court.

II.

Section 28 of the Immigration and Nationality Act, (8 U.S.C. § 1158(a)), requires the Attorney General to:

"establish a procedure for an alien physically present in the United States or at a land border or port of entry, irrespective of such alien's status, to apply for asylum, and the alien may be granted asylum in the discretion of the Attorney General if the Attorney General determines that such alien is a refugee within the meaning of Section 101(a)(42)(A) of this title."

The regulations implementing § 208, 8 C.F.R. § 208 et seq., provide two procedures for applying for asylum. If the alien is not the subject of deportation proceedings (i.e. an alien seeking admission to the United States or an alien within the United States who has not been served with either a notice of referral to exclusion proceedings or an order to show cause for departure), the alien may file an asylum application with the District Director. 8 C.F.R. § 208.3(a). The District Director must request an advisory opinion from the Bureau of Human Rights and Humanitarian Affairs ("BHRHA") of the Department of State, id. at § 208.7, and if the District Director's decision is based in whole or in part on a BHRHA advisory opinion, the BHRHA advisory opinion will be made part of the record of proceedings unless it is classified. Id. at § 208.8(d). If the BHRHA advisory opinion is included in the record, the applicant must be given an opportunity to inspect, explain, and rebut the opinion. . . ." Id. Moreover, the applicant must be examined in person by an Immigration officer prior to the adjudication of the asylum application. Id. at § 208.6. The applicant for asylum has the burden of proving that he is unable to return to his native 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." Id. at § 208.5. Although the regulations specify six situations in which the District Director "shall" deny a request for asylum, id. at ...


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