931 F. 2d 896 - Dehsara v. Gustafson

MEMORANDUM*

Gholamali Dehsara appeals the district court's denial of his petition for writ of habeas corpus, in which he challenged the Board of Immigration Appeal's ("BIA") decision finding him excludable from the United States, and denying his applications for asylum and withholding of deportation. We affirm.

Dehsara first contends he never conceded excludability at his exclusion hearing.1 The district court, adopting in full the report and recommendation of the United States Magistrate, concluded that Dehsara had conceded excludability at the first exclusion hearing of January, 1983. Dehsara asserts that he did not explicitly concede excludability at this first exclusion hearing. Dehsara also claims that his concession of excludability at the second exclusion hearing, occurring on November 26, 1988, was due to the ineffectiveness of his new counsel, Bart Klein. Dehsara maintains that Klein had not reviewed the record and thus improperly conceded excludability.

We disagree. Regardless of the events at the first exclusion hearing, Dehsara's counsel at the second exclusion hearing, Klein, explicitly stated that Dehsara had conceded excludability. In addition, Klein represented that Dehsara "has already been found excludable under Section 212(a)(20)" in the motion to reopen and reconsider the IJ's denial of Dehsara's motion for a change of venue. AR 257. Absent egregious circumstances, a distinct and formal admission made in the context of an immigration proceeding by an attorney acting in his professional capacity binds his client as a judicial admission. Magallanes-Damian v. INS, 783 F.2d 931, 934 (9th Cir.1986). We find nothing to indicate that these concessions were made as a result of ineffective counsel or other egregious circumstances. Instead, our review of the record indicates that these concessions were made based upon Klein's understanding that Dehsara and his then counsel, Paul Ruuska,2 had conceded excludability at the first exclusion hearing so as not to risk the possibility that an adverse finding of exclusion might taint an otherwise meritorious asylum application.

We also reject Dehsara's contention that Klein was not familiar with the record in his case when he conceded excludability. Our review of the motion to reopen and reconsider the denial of Dehsara's motion for a change of venue convinces us that Klein had reviewed and was familiar with the record. The passage cited by Dehsara in support of this contention is not helpful to him. This passage, in pertinent part, reads:

IJ; Let's proceed with the case and see what we have, okay. In any event, it previously was determined in hearing, and, indeed, I believe it has been conceded that the applicant would be excludable. Is that correct?

Klein: That's correct.

IJ: As an alien who intends to remain in the United States permanently, but not in possession of a valid immigrant visa or other document valid for that purpose.

Klein: That's correct.

IJ: All right. Now I have the application and supportive materials that ... for asylum, that was submitted by the ...

Klein: Could we go off the record so I can review that, because I don't know what was submitted and what was not. I haven't had an opportunity to look at the ROP record. It will only take me two minutes.

CAR 106 (emphasis added). Read in context, the reasonable interpretation of this passage is that Klein had not reviewed the record concerning what evidence had been submitted in connection with Dehsara's asylum application, not that Klein had not reviewed the record at all before the hearing.

Accordingly, we reject Dehsara's contention that a proper determination of excludability was never made.

Dehsara next contends the district court and BIA erred by upholding the IJ's denial of his applications for asylum and withholding of deportation.

We review the factual findings underlying the denial of an application for asylum or withholding of deportation under the substantial evidence standard. Canas-Segovia v. INS, 902 F.2d 717, 721 (9th Cir.1990). Substantial evidence is more than a mere scintilla and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971).

To establish eligibility for asylum, an alien must demonstrate that he is unwilling to return to his country due to "persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. Sec. 1101(a)(42)(A).

We conclude that the record contains substantial evidence supporting the BIA's affirmance of the IJ's denial of Dehsara's asylum application.3 Dehsara testified that he was not politically active in Iran, and that although he was a member of the Shah's political party, "[a]t that time everybody has to be a part of that communication." Dehsara also testified that his position with the Pahlevi Foundation lasted for only one year in 1968 or 1969, a date at least ten years prior to the onset of the Iranian Revolution. In addition, he testified that his sister had not suffered any harm in Iran despite being a member of the same social group Dehsara claims was being persecuted, namely family members of former supporters of the Shah. Finally, when Dehsara arrived in the United States in Seattle, he never mentioned persecution as a reason for his departure from Iran.

We also conclude that there is substantial evidence supporting the BIA's determination that Dehsara's three arrests in Iran were due in large part to Dehsara's violation of Iranian import laws. First, Dehsara admitted that he had been illegally importing diamonds and other materials into Iran at the time of his arrests. Second, the warehouse receipt given to Dehsara on the occasion of his third arrest and when certain items of his property were seized indicates that the majority of seized items were contraband under Iranian law. Finally, we agree with the district court that if Dehsara had been arrested and imprisoned for his relationship with the Shah, he would most likely have suffered a sentence or penalty far in excess of twenty days in jail.

Finally, to the extent the IJ's underlying denial of Dehsara's asylum application was based on an adverse credibility finding, we conclude that such a finding is supported by the record. The IJ cited as an example of Dehsara's inconsistent testimony Dehsara's statements concerning the reasons for his return to Iran via Pakistan. Dehsara originally testified that he reentered Iran by way of the Pakistani border because he was bringing illegal diamonds with him, and that he would have been arrested at Teheran airport. However, Dehsara subsequently testified the reason for his return to Iran was his father's illness, and that the reason he was forced to reenter the county by way of Pakistan was the closure of the Teheran airport. Because this cited example belies a consistent pattern in Dehsara's testimony to downgrade the importance of his illegal importing activities, we conclude that the activities were substantial and bear a legitimate nexus to the IJ's adverse credibility finding.

Accordingly, we affirm the district court and BIA's upholding of the IJ's denial of Dehsara's application for asylum.

Dehsara also contends BIA erred by upholding the IJ's denial of his application for withholding of deportation. To be entitled to mandatory withholding of deportation relief, the alien must show a "clear probability of persecution." In other words, the alien must demonstrate that it is "more likely than not" that he or she will be persecuted if deported to their home country. INS v. Stevic, 467 U.S. 407, 424 (1984). As we have recently stated, "[t]he 'clear probability' standard that applies to withholding of deportation is less generous than the 'well-founded fear' standard that applies to asylum requests." Barraza Rivera v. INS, 913 F.2d 1443, 1449 (9th Cir.1990). Dehsara has failed to show a well-founded fear of persecution and has failed to meet the higher burden of establishing a clear probability of persecution. Canas Cuadras, 910 F.2d at 572.

Accordingly, we affirm the district court and BIA's upholding of the IJ's denial of Dehsara's application for withholding of deportation.

Dehsara next contends that the denial of his motion for a change of venue was an abuse of discretion, a violation of applicable statutes and regulations, and a denial of due process. Specifically, Dehsara alleges that the denial of this motion deprived him of "a reasonable opportunity to present evidence in his own behalf" as guaranteed by 8 U.S.C. Sec. 1252(b) and 8 C.F.R. Sec. 242.16(a).

The regulations provide that an IJ "for good cause, may change venue on motion by one of the parties...." 8 C.F.R. Sec. 3.19(b)(1990). "Good cause" is not defined, however, and denials of such motions must be evaluated on a case by case basis. Baires v. INS, 856 F.2d 89, 92 (9th Cir.1988). The decision whether to grant a motion for change of venue "is committed to the immigration judge's sound discretion and will not be overturned except for an abuse of that discretion." Id. at 92.

A. Was the Denial of the Motion to Reopen an Abuse of Discretion?

On August 5, 1986, Dehsara, represented by counsel Aron Hasson, moved to change the venue of his pending November 26 hearing from Seattle to Los Angeles. The motion stated that Dehsara had lived in Los Angeles for a number of years and that he would be calling witnesses who also resided in the Los Angeles area. The motion did not include a list of the potential witnesses nor did it mention whether they would be unavailable to testify in Seattle.

The IJ denied Dehsara's motion for a change of venue on September 9, 1986. The IJ reasoned that Dehsara had resided in the Seattle area for a number of years, that Dehsara had been present at the May 28, 1986 hearing at which the November 26 hearing in Seattle had been scheduled, that the immigration court in Los Angeles was severely backlogged, and that Dehsara had not sought a change of venue until after the hearing in Seattle had been scheduled. Consequently, the IJ concluded that Dehsara's motion was dilatory and intended only to delay a decision in his case.

On November 3, 1986, Dehsara, represented now by Bart Klein, moved to reopen and reconsider the denial of his motion for a change of venue. The motion to reopen and reconsider noted that Dehsara had not lived in the Seattle area for a number of years, but in fact had only resided in Seattle for a period of one month. The motion also was supported by an affidavit from Paul Ruuska, Dehsara's counsel at the May 29, 1986 scheduling hearing, which stated that Dehsara had not been present at this hearing and that Ruuska had not been able to inquire of Dehsara whether the November 26 date in Seattle was feasible before the date was agreed upon. Finally, the motion to reopen and reconsider was accompanied by a list of nine witnesses who would testify in Dehsara's behalf if the hearing were scheduled in Los Angeles but would not be able to testify in Seattle. The IJ orally denied this motion to reopen and reconsider.

We conclude that Dehsara's motion to reopen and reconsider set forth a sufficient "good cause" to justify the change of venue from Seattle to Los Angeles. The motion to reopen and reconsider brought to the IJ's attention his erroneous conclusions that Dehsara had resided in Seattle for a number of years and that he had been present at the May 29 scheduling hearing. The motion also noted that Ruuska was not able to ascertain at the scheduling hearing whether the site and date were acceptable to Dehsara. The backlog in the immigration court in Los Angeles, while important, is not enough to outweigh the significant interests Dehsara had set forth for changing the venue of the November 26 hearing to Los Angeles.

Accordingly, we hold that the IJ abused his discretion by denying the motion to reopen and reconsider the denial of the motion for a change of venue. We therefore turn to the question of whether Dehsara's statutory and regulatory rights to present evidence in his own behalf were violated as a result of this error.

B. Did the Denial of the Motions to Reopen Deprive Dehsara His Right to a Reasonable Opportunity to Present Evidence in His Own Behalf?

Dehsara contends that the denial of his motions for a change of venue deprived him of "a reasonable opportunity to present evidence in his own behalf" as guaranteed by 8 U.S.C. Sec. 1252(b) and 8 C.F.R. Sec. 242.16(a). Dehsara maintains that the denial of these statutory and regulatory rights deprived him of due process.

We reject this contention. The IJ denied the original motion for a change of venue on September 9, 1986, fully two and one-half months before the November 26 hearing. In contrast, in Baires v. INS, the case upon which Dehsara relies, this court held that an alien was deprived of his right to present evidence in his own behalf when his motions for a continuance and a change of venue were denied only five days before the scheduled hearing. Baires, 856 F.2d at 90. Here, Dehsara appeared at the November 26 hearing, was represented by counsel, and submitted written, unsworn statements by several persons in support of his asylum application. Dehsara could have submitted sworn statements or depositions from these witnesses, as well as any other of the witnesses he alleged were prepared to testify on his behalf. The regulations explicitly provide that the depositions of witnesses may be taken upon application by a party. See 8 C.F.R. Secs. 3.33, 236.2(d), 242.14(e). Alternatively, Dehsara could have had videotape depositions taken so that the demeanor and credibility of these prospective witnesses could have been assessed at the hearing. We thus agree with the district court that the absence of testimony from Dehsara's prospective witnesses cannot be attributed to the denial of the motions for a change of venue. The fact that Dehsara had filed a motion to reopen and reconsider the denial of his motion for a change of venue on November 3, 1986 does not relieve him of his obligation to be prepared to present his case fully on November 26. Despite the pendency of the upcoming deportation hearing, however, Dehsara only presented unsworn statements from two of the nine prospective Los Angeles witnesses that he identified in his motion to reopen and reconsider.

We conclude that Dehsara was not deprived of his statutory and regulatory rights to have a reasonable opportunity to present evidence in his behalf by the IJ's denial of his motions for a change of venue.

AFFIRMED.