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Man v. Immigration and Naturalization Service

November 7, 1995

HAYDEE CECILIA MAN, JAIME EDUARDO MAN, HERNAN ROBERTO DE ICAZA-JIMENEZ, JAVIER EDUARDO MAN, JORGE EDUARDO MAN, JAIME EDUARDO MAN, JR., ERIC RODOLFO DE ICAZA-JIMENEZ,

PETITIONERS,

v.

IMMIGRATION AND NATURALIZATION SERVICE,

RESPONDENT.



Petition to Review an Order of the Board of Immigration Appeals. Nos. A27-915-535, A27-915-536, A'915-537, A27-915-539, A27-915-540, A27-915-541 and A27-915-609.

Before RIPPLE, MANION, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

ARGUED SEPTEMBER 7, 1995

DECIDED NOVEMBER 7, 1995

Petitioners appealed an immigration judge's order denying their applications for asylum and withholding of deportation to the Board of Immigration Appeals ("BIA"). The BIA dismissed their appeal, and they petition this court for review. Their petition poses questions of law answered by certain of our prior decisions, and we consequently deny their petition for review.

Petitioners, who are citizens of Panama, were admitted to the United States via Miami, Florida. The named petitioner, Haydee Cecilia Man, and her husband, Jaime Eduardo Man, were admitted on December 22, 1987. Their three children and two nephews were admitted on January 12, 1987; April 13, 1987; and March 2, 1988. Petitioners sought relief from deportation by filing applications for asylum and withholding of deportation on October 2, 1989, claiming they would be persecuted should they return to Panama. Their fear of persecution was allegedly founded upon the opposition political activities of Haydee Cecilia Man and her family under the regime of General Manuel Noriega. Following a hearing, the immigration judge denied petitioners' applications for both asylum and withholding of deportation on December 7, 1989.

Petitioners appealed to the BIA on December 14, 1989, pursuant to 8 U.S.C. secs. 1103, 1252. In its brief opposing petitioners' appeal, the Immigration and Naturalization Service ("INS") requested that the BIA take administrative notice of General Noriega's removal from power. His removal, INS argued, extinguished the basis for petitioners' fear of persecution. Counsel for petitioners claimed at oral argument before this court that this request was "buried" in the INS brief.

The BIA dismissed petitioners' appeal on July 8, 1994. In addition to affirming the immigration judge's disposition of the case, the BIA noted General Noriega's removal from Panama by United States military forces on January 3, 1990. The BIA wrote that petitioners had failed to respond to INS's assertion that "the removal of General Noriega from power eliminated the alleged basis for the [petitioners'] persecution claim." Jaime Eduardo Man, Jr., Haydee Cecilia Man's son, subsequently filed a motion to reopen under 8 C.F.R. secs. 3.8, 103.5 (1995), on August 4, 1994. *fn1

Petitioners base their petition for review primarily on the BIA's recognition of the changed political climate in Panama. First, they contend that the BIA focused only upon General Noriega's removal and failed to consider the situations facing the individual petitioners. Second, they claim that the BIA denied them the due process required by the Fifth Amendment to the Constitution by failing to provide warning that it was contemplating General Noriega's removal as a basis for its decision. Our jurisdiction to entertain this petition is conferred by 8 U.S.C. sec. 1105a(a) and 28 U.S.C. sec. 2342.

II.

We review a BIA decision denying application for asylum and withholding of deportation for abuse of discretion. DeSouza v. INS, 999 F.2d 1156, 1158 (7th Cir. 1993). We will uphold the BIA's denial of such application "unless it was made without a rational explanation, it inexplicably departed from established policies, or it rested on an impermissible basis . . . ." Cordoba-Chaves v. INS, 946 F.2d 1244, 1246 (7th Cir. 1991). In reviewing a BIA order, we rely "solely upon the administrative record upon which the deportation order is based," 8 U.S.C. sec. 1105a(a)(4), and will not disturb the BIA's findings of fact if they are "supported by reasonable, substantial, and probative evidence . . . ." Id. See also Balazoski v. INS, 932 F.2d 638, 640 (7th Cir. 1991).

III.

Petitioners applied for asylum under 8 U.S.C. sec. 1158 and withholding of deportation under 8 U.S.C. sec. 1253(h). We first examine whether the BIA abused its discretion in dismissing the appeal of the denial of asylum. The statutory requirement for asylum claims is less rigorous than that for withholding deportation. Compare INS v. Cardoza-Fonseca, 480 U.S. 421, 430, 107 S. Ct. 1207, 1212 (1987) (requiring asylum applicants under sec. 1158 to show a "well-founded fear of persecution"), with INS v. Stevic, 467 U.S. 407, 413, 104 S. Ct. 2489, 2492 (1984) (stating that aliens seeking relief from deportation pursuant to sec. 1253(h) must demonstrate a "clear probability" of persecution). If we find the BIA exercised proper discretion on the asylum question, then we have likewise answered the inquiry into the withholding of deportation issue. See Balazoski, 932 F.2d at 640.

The Attorney General is authorized by 8 U.S.C. sec. 1158(a) to grant asylum if the applicant qualifies as a refugee under 8 U.S.C. sec. ...


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