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MOHAMMED A. BASTANIPOUR, Petitioner, vs. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 92-1010
See also: United States v. Bastanipour, 41 F.3d 1178 (7th Cir. 1992)
Petition for Review of an Order of the Immigration
and Naturalization Service. COUNSEL: For Petitioner: David Rubman, 312/341-1907, Suite
860, 332 S. Michigan Avenue, Chicago, IL 60604, USA. Susan Schreiber,
312/435-1960, Suite 1400, TRAVELERS & IMMIGRANTS AID OF CHICAGO, 327 S.
LaSalle Street, Chicago, IL 60604, USA. For Respondent: Fred Foreman, USA,
312/353-5300, Room 1500, OFFICE OF THE UNITED STATES ATTORNEY, Criminal
Division, 219 S. Dearborn Street, Chicago, IL 60604, USA. William J. Howard,
202/501-6869, David J. Kline, 202/501-6841, Anthony W. Norwood, 202/501-7293,
DEPARTMENT OF JUSTICE, Office of Immigration Litigation, P.O. Box 878, Ben
Franklin Station, Washington, DC 20044, USA. Richard L. Thornburg, USAG, OFFICE
OF THE UNITED STATES ATTORNEY GENERAL, 10th & Constitution Avenue N.W.,
Washington, DC 20530, USA. A. D. Moyer, IMMIGRATION & NATURALIZATION
SERVICE, 10 W. Jackson Street, Chicago, IL 60604, USA. JUDGES: Before POSNER and COFFEY, Circuit Judges, and
FAIRCHILD, Senior Circuit Judge. [*1130] POSNER, Circuit Judge. Mohammed Ali Bastanipour was born in Iran
in 1944, came to the United States in 1974 to study, and became a permanent
resident of this country in 1978. An accountant for Price Waterhouse,
Bastanipour returned to Iran in 1979 for reasons that remain obscure. He flew
back to the U.S. from Teheran in 1980--and upon arrival at O’Hare
Airport in Chicago was promptly arrested for possession of almost nine pounds
of heroin concealed in jars of caviar that he had brought back with him from
Iran. We affirmed his conviction of violating federal narcotics laws in United
States v. Bastanipour, 697 F.2d 170 (7th Cir.
1982). Upon his release from prison in 1988 after serving almost nine years of
his fifteen-year sentence, the Immigration and Naturalization Service began
deportation proceedings. An immigration judge ordered Bastanipour deported to
Iran. The Board of Immigration Appeals affirmed, rejecting Bastanipour’s
claims for political asylum and, in the alternative, for withholding of
deportation. We have stayed his deportation pending this decision on his
petition for review. The
Attorney General (here operating through his delegate, the Board of Immigration
[*1131]
Appeals) may in his discretion grant
political asylum to an alien who has a wellfounded fear that should he be
returned to his homeland he will suffer persecution on account of race,
religion, nationality, membership in a particular social group, or political
opinion. Immigration and Nationality Act, §§ 101(a)(42)(A),
208(a), 208, 8 U.S.C. §§ 1101(a)(42)(A), 1158(a). A
recent amendment forbids the granting of asylum to an alien who has committed
an aggravated felony, as Bastanipour has, but the amendment does not apply to
applications for asylum filed before November 29, 1990, as Bastanipour’s
was. Immigration Act of 1990, §§ 515(a)(1), (b)(1),
8 U.S.C. § 1158(d).
Bastanipour
argues that the Board committed a clear error in finding that he did not have a
well-founded fear of persecution should he be deported to Iran. The Board
replies that the argument is moot because the Board had an independent
alternative ground for denying his request for asylum: even if he had a
well-founded fear of persecution, the Board would refuse to exercise its
discretion favorably to him. We do not agree that the alternative ruling on
discretion moots Bastanipour’s challenge to the finding that he has no
well-founded fear of persecution. The Board gave no reason for its contingent
refusal to exercise discretion. All it said was: “We also find that
the request for asylum should be denied in the exercise of discretion.”
A bare conclusion is not an adequate discharge of an administrative agency’s
responsibilities unless the ground or argument that it is rejecting is
frivolous. See Bowen v. American Hospital Ass’n, 476
U.S. 610, 626-27 (1986) (plurality opinion);
Motor Vehicle Mfrs. Ass’n v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29, 43 (1983); SEC v. Chenery Corp., 318
U.S. 80 (1943); Schurz Communications,
Inc. v. FCC, No. 91-2350, slip op. at 10-12
(7th Cir. Nov. 5, 1992), and International Union, UAW v. NLRB, 802 F.2d 969, 972 (7th Cir. 1986), for the general principle, and Shahandeh-Pey
v. INS, 831 F.2d 1384, 1389 (7th Cir. 1987); Achacoso-Sanchez
v. INS, 779 F.2d 1260, 1265 (7th Cir. 1985); Zamora-Garcia
v. INS, 737 F.2d 488, 490-91 (5th Cir. 1984); Santana-Figueroa
v. INS, 644 F.2d 1354, 1357 (9th Cir. 1981), and Wong
Wing Hang v. INS, 360 F.2d 715, 719 (2d Cir. 1966)
(Friendly, J.), for its application to decisions by the Board of Immigration
Appeals. The case is unlike INS v. Bagamasbad, 429 U.S. 24
(1976) (per curiam), where the Supreme Court held that the Board of Immigration
Appeals could properly base denial of relief on discretionary grounds and skip
the issue of statutory eligibility. The problem here is that the Board gave no
reasons for its discretionary determination. The
Board did, it is true, give reasons for denying discretionary relief under
section 212(c) of the Act, 8 U.S.C. § 1182(c), Bastanipour’s
alternative ground for relief from deportation. That section of the Act, as
interpreted by the Board and the courts, requires a balancing of equities. In
re Marin, 16 I&N Dec. 581, 584-85 (BIA 1978); In
re Buscemi, 19 I&N Dec. 628, 633-34 (BIA 1978); Shahandeh
Pey v. INS, supra, 831 F.2d at 1387-88.
In striking the balance against Bastanipour the Board assumed that he lacked a
well-founded fear of persecution. As it did not discuss how the balance might
incline if he had such a fear, its resolution of the section 212(c) issue does
not fill the gap left by its failure to discuss the issue of discretion under
the asylum provision. Bastanipour argues that if he is deported to Iran he may
be summarily executed for having converted from Islam to Christianity, a
capital offense under Islamic religious law. We may assume without deciding
that the Board of Immigration Appeals could in the exercise of its discretion
to grant or deny political asylum take the position that it will send
Bastanipour to his death for the crime of becoming a Christian rather than
grant asylum to a drug felon. But we will not infer that this is the Board’s
position from the single sentence quoted above. The
principal issue on this appeal is, then, whether Bastanipour has a well-founded
[*1132]
fear of persecution by the Iranian
authorities. We may set to one side his argument that he faces persecution as a
drug trafficker--a type of offender who in present-day Iran is punishable by
death frequently administered after summary proceedings that would be regarded
in this country as a travesty of due process of law. Although we can find no
case on point, cf. Sanchez-Trujillo v. INS,
801 F.2d 1571, 1575 n. 6 (9th Cir. 1986), we have no doubt that drug traffickers
are not the sort of “particular social group” to which the
provision on asylum refers. The background of this term, explored at length in Ananeh-Firempong
v. INS, 766 F.2d 621, 626-28 (1st Cir. 1985), and Sanchez-Trujillo
v. INS, supra, 801 F.2d at 1575-77, shows that it
designates discrete, relatively homogeneous groups targeted for persecution
because of assumed disloyalty to the regime--a good example being the kulaks (affluent peasants) whom Stalin starved and exiled in the 1930s.
Whatever its precise scope, the term “particular social groups”
surely was not intended for the protection of members of the criminal class in
this country, merely upon a showing that a foreign country deals with them even
more harshly than we do. A contrary conclusion would collapse the fundamental
distinction between persecution on the one hand and the prosecution of
nonpolitical crimes on the other. Khalaf v. INS,
909 F.2d 589, 591-92 (1st Cir. 1990); MacCaud v. INS, 500 F.2d 355, 359 (2d Cir. 1974). We suppose there might be an
exception for some class of minor or technical offenders in the U.S. who were
singled out for savage punishment in their native land, but a drug felon
sentenced to thirty years in this country (though Bastanipour’s
sentence was later reduced to fifteen years) cannot be viewed in that
light. But
of course Christians, like members of other religious groups, are a protected
class and we must consider whether Bastanipour has a well-founded fear of
persecution on account of his Christianity. On this critical question the
reasoning in the Board’s opinion is radically deficient. After
reciting various facts or pseudo-facts bearing on the question, including that
Bastanipour has never been baptised or formally joined a church, that he had
requested a porkfree diet in prison, and that apostasy though a capital offense
under Muslim religious law is not the subject of a specific prohibition in the
Iranian penal code, the opinion concludes that Bastanipour “has not
established that he has in fact converted to Christianity”--and that
anyway there is no hard evidence that Iran has executed anyone for converting
to Christianity, except for a man who became a Christian minister; and
“we note that the respondent [Bastanipour] does not claim to be a
Christian religious leader.” (Do we detect a sarcastic note?) All
things considered, the Board concluded, Bastanipour’s fears are
speculative--why, Iran might not even discover that he is a Christian. This
is poorly reasoned, and not only because Bastanipour requested the pork-free
prison diet before he turned to Christianity. The opinion does not consider
what would count as conversion in the eyes of
an Iranian religious judge, which is the only thing that would count so far as
the danger to Bastanipour is concerned. The offense in Muslim religious law is
apostasy--abandoning Islam for another religion. Thomas Patrick Hughes, “Apostasy
from Islam,” in Hughes, A Dictionary of Islam 16 (1895). That is what Bastanipour did. He renounced Islam for
Christianity. He has not been baptised or joined a church but he has made clear,
to the satisfaction of witnesses whom the Board did not deem discredited, that
he believes in Christianity rather than in Islam—and that is the apostasy, not compliance with formalities of affiliation. Whether
Bastanipour believes the tenets of Christianity in his heart of hearts or, as
hinted but not found by the Board, is acting opportunistically (though at great
risk to himself) in the hope of staving off deportation would not, we imagine,
matter to an Iranian religious judge. The Board might have taken the position
that an insincere profession of faith is not a ground for asylum no matter what
danger the profession places the applicant in. It might have said that a
nonbelieving Christian is not really a Christian [*1133] and thus does not fall within the
scope of the asylum statute. But there is no mention of such a ground for
denying Bastanipour’s application; and the Board did not make a
finding that he is insincere.
The
Board’s statement that the Iranian penal code fails to mention apostasy
was based on advice by the State Department, but may be erroneous. Nader
Entessar, “Criminal Law and the Legal System in Revolutionary Iran,”
8 Bost. Coll. Third World L.J. 91,
97 (1988), states that the Iranian penal code codifies the prohibitions of
Islamic religious law, expressly including the prohibition against apostasy.
But, more important, the State Department went on to say that “were
[Bastanipour] to be charged before a Sharia (religious) court in Iran of the
crime of apostasy, we believe that he could face very serious punishment if
convicted, quite possibly death.” The important thing is not what is
written in the penal code but the fact that in Iran people receive temporal
punishment, including death, for violating the tenets of Islamic law; and
apostasy from Islam is indeed a capital offense under that law. Hughes, supra,
at 16. The Board’s handling of the question of apostasy makes us
wonder whether the Board’s knowledge of Iran is any greater than its
knowledge of Biafra, about which we commented critically in Osaghae v. INS, 942 F.2d 1160, 1163 (7th Cir. 1991). As for the suggestion that the
Iranian authorities may not discover Bastanipour’s apostasy, we note
that the INS apparently makes no effort to conceal its deportation and asylum
proceedings from foreign states, id.; that Iran is known to have a file on the
Bastanipour family because of the political activities of Bastanipour’s
brother (see below); and that Bastanipour could conceal his apostasy only by
refusing to practice his Christianity in public—for, given his Muslim name
(Muhammed Ali), anyone who observed him practicing Christianity would realize
that he was an apostate from Islam.
We
do not know what Iran does to ordinary apostates. Bastanipour is not quite an
ordinary apostate. Apart from his drug conviction, which will not endear him to
the Iranian authorities but is not a relevant factor in deciding whether he has
a well-founded fear of persecution,
his brother has been active in the U.S. in opposition to the Iranian regime.
Nor is the death penalty the only sanction grave enough to be deemed
persecution within the meaning of the asylum statute, as distinct from mere
discrimination or harassment--on the distinction see id. at 1163; Zalega v.
INS, 916 F.2d 1257, 1260 (7th Cir. 1990); Desir
v. Ilchert, 840 F.2d 723, 726-27 (9th Cir. 1988). Nor
must the applicant for asylum prove that he will be persecuted--only that a
reasonable person in his shoes would fear persecution. At argument we asked the
government’s lawyer whether he would fear persecution by Iran if he
were in Bastanipour’s religious and political shoes and he conceded
that he would--and even conceded that he was a reasonable man! We accept both
concessions. If Bastanipour has converted to Christianity he is guilty of a
capital offense under Iranian law. No doubt there are people walking around
today in Iran, as in every other country, who have committed a capital offense
but have managed to avoid any punishment for it at all. Bastanipour might be
one of these lucky ones. But his fear that he will not be is well founded. So
at least it appears to us on the basis of the Board’s scanty,
illogical, and apparently ill-informed analysis of the record. Perhaps it can
do better on remand to explain its position. And it is open to the Board to
reject an application for asylum in the exercise of its discretion, provided it
offers a reasoned justification of its action that has some support in the
record. Meanwhile the stay of deportation entered by this court will remain in
force. The Board’s order upholding Bastanipour’s deportation
is vacated and the case remanded to the Board for further proceedings--which
may if the Board wishes include the taking of further evidence--consistent with
this opinion. Our
order of vacation and remand embraces the denial of section 212(c) relief as
well as the denial of asylum. Granted there is an issue whether Bastanipour is
eligible for relief under section 212(c). The [*1134] statute we mentioned at the outset of this opinion that eliminates
the right of asylum for aggravated felons likewise abolishes relief for them
under section 212(c) if they served more than five years in prison, Immigration
Act of 1990, § 511(a), 8 U.S.C. § 1182(c),
as Bastanipour did--and this provision of the statute may apply retroactively.
The issue of retroactivity was not addressed by the Board, and has not been
fully briefed by the parties. As the issue is not on its face an easy one and
will become moot if the Board grants Bastanipour asylum, we shall not address
it. Should he retain rights under section 212(c), we point out that one of the
equities that the Board is required by its own principles to weigh in
evaluating an application under the section is the hardship to the person
applying for relief. Zamora-Garcia v. INS, supra,
737 F.2d at 490-93; In re Marin, supra,
16 I&N Dec. at 584-85. Death is a hardship. VACATED
AND REMANDED. |