                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-30-2004

Askari v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2264




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004

Recommended Citation
"Askari v. Atty Gen USA" (2004). 2004 Decisions. Paper 316.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/316


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                               Nos. 03-2264 & 03-4456


                                 SAMIEH ASKARI,

                                                Petitioner

                                           v.

                        JOHN ASHCROFT, Attorney General
                              of the United States

                                                Respondent


                    On Petition for Review of an Order Entered in
                         The Board of Immigration Appeals
                                 (No. A 76-512-182)


                     Submitted Under Third Circuit LAR 34.1(a)
                                September 14, 2004

         Before: SCIRICA, Chief Judge, ALITO and AM BRO, Circuit Judges

                             (Filed September 30, 2004 )




                                      OPINION


AM BRO, Circuit Judge

      Samieh Askari petitions for review of the order of the Board of Immigration
Appeals (“BIA”) affirming the denial by an Immigration Judge (“IJ”) of her applications

for asylum, withholding of removal, and protection under the Convention Against Torture

(“CAT”). Central to the IJ’s decision was his finding that Askari’s claims of a well-

founded fear of persecution upon return to her native country were not credible. But even

if Askari’s claims were credible, they would not rise to the level of persecution, as

required for asylum relief. Therefore, we deny her petition for review of the BIA’s

decision to deny her relief, as well as its denial of her motion to reconsider this decision

and her motion to reopen.

                             I.   Facts and Procedural Posture

       Askari, a native and citizen of Iran, arrived in the United States in March 1999.

The Immigration and Naturalization Service 1 (“INS”) immediately placed her in removal

proceedings, charging her with removability under 8 U.S.C. § 1182(a)(7)(A)(i)(I) for

arriving in the United States without proper documentation. In August 1999 she filed an

initial application for asylum, withholding of removal, and protection under the CAT,

claiming that she left Iran to escape the threat of arrest and torture in retaliation for anti-

government activism she engaged in while a medical student at Tehran University. In her

application and at a hearing before the IJ, she testified that the Iranian government

restricted her studies and professional advancement and that on two occasions she was



  1
   As a result of the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat.
2135 (2002), the INS has since ceased to exist as an agency within the Department of
Justice and its enforcement functions have been transferred to the Department of
Homeland Security.

                                                2
detained, interrogated, and beaten by Iranian police.

            On April 3, 2000, the IJ denied Askari’s applications for relief after finding that

her testimony was not credible. Askari appealed to the BIA, which on April 4, 2003,

affirmed the IJ’s decision, including his adverse credibility finding “where he found the

respondent to be incredible based upon her statements made to an immigration official

upon arrival.” JA at 21. The BIA also agreed with the IJ’s “essential conclusion that

nothing the respondent has described about her experiences in Iran would rise to the level

of persecution.” Id. Askari’s appeal of the BIA’s decision denying her applications for

relief is No. 03-2264.

            On May 2, 2003, Askari timely filed a Motion to Reconsider with the BIA. On

July 1, 2003, she timely filed a Motion to Reopen based on a change of circumstances in

Iran since the IJ’s decision. In October, the BIA denied both of these motions in one

decision. Askari’s appeal of this decision is No. 03-4456. In April 2004, our Court

granted Askari’s motion to consolidate the two pending appeals.2

                                            II.   Analysis

A.          Denial of Asylum Relief

            Under the Immigration and Nationality Act (“INA”), the Attorney General and his

delegates, the BIA and IJ, may grant asylum to any alien who qualifies as a refugee. 8

U.S.C. § 1158. A refugee is an alien who is unable or unwilling to return to her country

of origin “because of persecution or a well-founded fear of persecution on account of

     2
         Our appellate jurisdiction is proper under 8 U.S.C. § 1252(a)(1).

                                                   3
race, religion, nationality, membership in a particular social group, or political opinion.”

Id. § 1101(a)(42)(A). Aliens have the burden of supporting their asylum claims.

Testimony by itself is sufficient to meet this burden, as long as it is credible. Gao v.

Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002).

       Askari supported her asylum application with testimony that the Iranian

government suppressed her educational and professional advancement in retaliation for

her political activism. She claimed that she was prevented from pursuing a specialty in

internal medicine when the government placed conditions on her entrance into a

residency program. In particular, she was asked to sign an agreement that would make

her liable for a penalty (twice the expenses of her tuition plus twice her salary and

allowance) if she was dismissed from the program or decided to leave, which Askari

refused to sign. She argued that this contract was intended to suppress political activity

by enabling the government to hold the threat of dismissal, and thus the penalty, over her.

The IJ found that the contract (which also required Askari to work for two years in the

public service) did not put such a “heavy burden” on Askari as to support her claim that

she was prevented from practicing internal medicine and speculated that “if the Iranian

government had indeed wanted to punish the respondent for her political activities, they

would have prohibited her from studying internal medicine in the first place, and not

given her the opportunity of entering her specialty after signing the contract.” JA at 16.

       Askari also claimed that she was denied admission to medical school for three

years because of her political activities as teenager. The IJ found this testimony

                                              4
inconsistent with documentation from the government’s education ministry that she was

not immediately accepted into medical school because of academic ineligibility. He

found it implausible that the government would punish Askari by delaying her entrance to

medical school rather than denying her altogether. JA at 15.

       Aksari testified that both of her sisters were denied university education for several

years. But the IJ doubted that this delay was retaliation for their political activities

because the government did not “ban[] them from higher education altogether.” JA at 17.

She testified that her brother was expelled from medical school after giving a political

speech and that, eleven years later, he still did not work and suffered clinical depression.

But because Askari refused to discuss her brother’s medical situation, the IJ could not

find based on the limited testimony available that he had suffered persecution. Id.

       Askari told the IJ that twice in 1998 she was detained, interrogated, beaten, and

threatened after attending and speaking at a political meeting. Askari insisted that this

testimony did not conflict with what she told immigration officials upon arrival in the

United States—that she had never been “arrested” in Iran—because she had not been put

in jail on those occasions. The IJ was not convinced by this “fine line distinction” and

determined that Askari had fabricated the 1998 events to bolster her asylum application.

In any event, he did not find that “being placed in confinement on two or three occasions

amounted to persecution, based on what she has told me occurred during those

occasions.” JA at 16. On appeal, the BIA rejected this particular inconsistency as a basis

for an adverse credibility finding, but endorsed the IJ’s conclusion that it did not rise to

                                               5
the level of persecution, as required to support an asylum claim.

       Askari argues on appeal that the IJ’s findings of inconsistencies and

improbabilities were based on speculation or conjecture and thus do not qualify as

substantial evidence required to support an adverse credibility finding. She argues that

the IJ overlooked the suppressive effect of the conditions of her entrance into an internal

medicine residency program, and that his conclusion that she was academically ineligible

was not based on any record evidence. Therefore, she insists, the adverse credibility

finding cannot stand.

       But even if the IJ had found Askari’s testimony to be credible, it would not

establish that she was persecuted or has a well-founded fear of persecution as required for

asylum relief.3 Though the INA provides no definition of persecution, we have

recognized it as an “extreme concept that does not include every sort of treatment our

society regards as offensive.” Fatin v. INS, 12 F.3d 1233, 1243 (3d Cir. 1993).

Persecution includes “threats to life, confinement, torture, and economic restrictions so

severe that they constitute a threat to life or freedom.” Id. at 1240. In Askari’s case, she

was able to enroll in medical school, receive her degree, and practice medicine after

graduation. Her argument that she was denied an opportunity to specialize in a particular

  3
   To be eligible for asylum, the applicant must demonstrate persecution by substantial
evidence or a well-founded fear of persecution that is subjective and objectively
reasonable. Lukwago v. INS, 329 F.3d 157, 177 (3d Cir. 2003). Having found Askari to
be ineligible for asylum, the IJ did not need to consider whether she qualified for
mandatory withholding of removal or protection under the CAT, which both require an
applicant to make an even stronger showing—that it is “more likely than not” that the
applicant will be persecuted or tortured upon return to her home country. Id. at 182–83.

                                              6
area of medicine is not persecution. For economic deprivation—such as denial of

employment—to be considered persecution, it must rise to the level of deliberate

imposition of substantial economic disadvantage. See, e.g., Chen v. INS, 195 F.3d 198,

204 (4th Cir. 1999). At worst, Askari was deterred from enrolling in an internal medicine

residency program by the Iranian government’s conditions on her entrance. Regardless

whether those conditions were onerous or intended to suppress her political activity, they

do not rise to the level of persecution. See, e.g., Zalega v. INS, 916 F.3d 1257, 1260 (7th

Cir. 1990) (inability to obtain the government job that one prefers is not persecution).

       Moreover, Askari’s testimony about being mistreated at the hands of Iranian police

does not rise to the level of persecution. She was detained only briefly, and her claims

that she was beaten up and threatened are general and vague. On this evidence, it was

reasonable for the IJ to conclude, and the BIA to affirm, that these episodes were not

persecution or the basis for a well-founded fear of persecution. See, e.g., Prasad v. INS,

47 F.3d 336, 339–40 (9th Cir. 1995) (affirming IJ’s finding that alien had not suffered

persecution, notwithstanding testimony that he was jailed, interrogated for four to six

hours, hit in the stomach and kicked from behind); Kapcia v. INS, 944 F.2d 702, 704, 708

(10th Cir.1991) (denial of asylum upheld despite fact that petitioner was “detained for a

two-day period during which time he was interrogated and beaten”).

       Because Askari’s testimony, even if credible,4 would not establish that she had

  4
   In this context, we need not reach Askari’s arguments that the BIA insufficiently
explained its decision to reject one aspect of the IJ’s rationale for his adverse credibility
finding while upholding the finding overall.

                                               7
been persecuted or had a well-founded fear of persecution, we uphold the BIA’s order

affirming the IJ’s denial of asylum, withholding of removal, and CAT relief. For the

same reason, we affirm the BIA’s order denying her motion to reconsider.

B.       Denial of Motion to Reopen

         In July 2003 Askari moved the BIA to reopen its proceeding against her due to a

“material change in circumstances in Iran since the IJ’s decision.” She supported her

motion with a State Department publication and evidence of her political activities in the

United States since the IJ’s April 2000 decision. The BIA denied this motion because

Aksari’s evidence was not previously unavailable or that it failed to demonstrate a change

in circumstance that materially affected her eligibility for asylum.

         A motion to reopen must state the new facts that will be proven at a hearing to be

held if the motion is granted and must be supported by affidavits or other evidentiary

material. 8 C.F.R. § 1003.2(c)(1). We review a denial of a motion to reconsider for

abuse of discretion. INS v. Abudu, 485 U.S. 94, 96 (1988). The BIA abuses its discretion

when it applies an incorrect legal principle or makes factual findings that are arbitrary and

capricious or lacking in substantial evidence. Tipu v. INS, 20 F.3d 580, 582 (3d Cir.

1994).

         The BIA’s conclusion that evidence of Askari’s political activities in the United

States was not previously unavailable and did not materially affect her eligibility for

asylum was neither arbitrary nor contrary to the evidence. The record before the IJ

referenced Askari’s political activities in the United States, and Askari does not explain

                                               8
how her subsequent political activities in the United States contribute to a well-founded

fear of persecution in a materially different way. Nor was it an abuse of discretion for the

BIA to conclude that new general evidence of human rights abuses in Iran did not

materially affect her well-founded fear of persecution.

                             *      *       *       *      *

       In this context, we will deny Askari’s petition for review of the BIA’s order

affirming the IJ’s denial of asylum and other relief, and we will deny her petition for

review of its order denying her motion to reconsider and motion to reopen.




                                                9
10
