Elias Joseph Faddoul appeals the Board of Immigration Appeals (BIA) decision denying his asylum and withholding of deportation requests. Born to Palestinian parents in Saudi Arabia, Faddoul lacked citizenship and could not obtain a Saudi passport, instead using a Lebanese travel document. He entered the U.S. as a student in 1984 but ceased attending classes and eventually entered deportation proceedings in 1986 due to noncompliance with his visa. An immigration judge (IJ) found him deportable in 1987, initially granting voluntary departure. Following a remand due to a fire destroying his papers, a second hearing in 1989 reaffirmed his deportability. Faddoul argued he would face persecution upon return to Saudi Arabia due to severe restrictions against Palestinians, including property ownership and movement. The IJ denied his asylum request, stating that the treatment of Palestinians did not equate to persecution, but granted him a six-month voluntary departure. The BIA upheld this decision, allowing an additional thirty days for voluntary departure. Faddoul's appeal came after this period had expired, leading the court to affirm the BIA's denial of asylum and his request to extend the voluntary departure date.
Deference is given to the Board of Immigration Appeals (BIA) in interpreting immigration statutes unless compelling evidence suggests otherwise. A key case, Rivera-Cruz v. INS, establishes that the BIA's determination regarding an alien's eligibility for asylum or withholding of deportation must be affirmed if supported by substantial evidence. Asylum eligibility requires a well-founded fear of persecution based on specific characteristics such as race or religion, with the alien needing to demonstrate that a reasonable person would fear persecution if returned to their home country. The decision to grant asylum remains within the discretion of the immigration judge (IJ). Withholding of deportation requires a higher standard, necessitating a clear probability of persecution upon return, without a subjective component.
Faddoul argues that the treatment of Palestinians in Saudi Arabia, including the denial of basic rights, constitutes persecution. However, the definition of persecution necessitates a connection between the feared harm and the alien's characteristics. The evidence indicates that Faddoul has not been harmed or threatened by the Saudi government, and there is no indication that Palestinians are uniquely targeted for discrimination compared to other non-Saudis. Saudi citizenship laws grant rights based on ancestry rather than nationality alone, treating all non-Saudis similarly. Thus, finding persecution based solely on citizenship laws would require a broad interpretation that the court is unwilling to endorse, emphasizing that citizenship decisions are a matter of national sovereignty.
In De Souza, the Seventh Circuit ruled on a case involving an individual denied citizenship due to foreign ancestry, affirming that a government has the discretion to determine its citizenship policies without constituting persecution. The Board of Immigration Appeals (BIA) denied asylum to De Souza, concluding that Kenya's citizenship laws did not target any specific group and that such policies fell within Kenya’s sovereign rights. The court found that various restrictions De Souza faced in Kenya, such as limited access to education and travel, did not amount to persecution. Similarly, Saudi Arabia's citizenship conferral methods and restrictions on non-Saudis, including Palestinians, do not meet the definition of persecution under the Immigration and Nationality Act (INA). Faddoul argues that historical persecution of Palestinians justifies his asylum claim due to his statelessness and inability to return to Saudi Arabia or any other country. However, the court maintains that mere statelessness does not automatically grant asylum; Faddoul must demonstrate a well-founded fear of persecution akin to those with nationalities. His inability to obtain a reentry visa is also attributed to his choice to let his visa expire, further complicating his claim.
Faddoul has not established a necessary link between his inability to return to Saudi Arabia and any specific threat of persecution. He requests a remand for the Board of Immigration Appeals (BIA) to consider new circumstances that have arisen in the eight years since the proceedings started. These include his eligibility for discretionary suspension of deportation due to his more than seven years of continuous presence in the U.S. and the claim that conditions for Palestinians in Saudi Arabia have worsened since his initial proceedings. However, the Court finds no basis for remand, stating that new evidence should be presented to the BIA through a motion to reopen the case, as affirmed in Rivera-Cruz v. INS. In that case, the BIA considered changes in government in Nicaragua, concluding that the petitioner no longer had a well-founded fear of persecution. Faddoul can petition the BIA to reopen his case and appeal any denial afterwards.
Regarding Faddoul's request to adjust the commencement date for the BIA's granted voluntary departure, the Court notes a split among circuits on this authority. The Ninth Circuit has allowed for a new voluntary departure date to start upon the court's affirmance of a deportation order, while the First Circuit has similarly permitted reinstatement of voluntary departure. Conversely, the Seventh Circuit has ruled it lacks the authority to reinstate a departure period, asserting that such decisions are solely within the jurisdiction of the district director according to relevant regulations.
Deportable aliens face a dilemma between utilizing the privilege of voluntary departure and seeking judicial review of Board of Immigration Appeals (BIA) decisions, as highlighted by the Seventh Circuit. The court cautioned that if the Immigration and Naturalization Service (INS) appears to withhold voluntary departure to dissuade judicial review, it may increase scrutiny of that discretion. The Fourth Circuit, in Ramsay v. U.S. INS, stated that the District Director should have discretion over reinstating voluntary departure but established that appeals courts should step in if the INS uses its discretion to deter judicial review or fails to provide valid reasons for denial.
The INS argues that prior rulings, like Farzad, have limited the authority to reinstate voluntary departure. However, Farzad did not address the broader authority issue and denied reinstatement based on the alien’s delay in seeking an appeal. In the current case, Faddoul similarly waited until the last day of his voluntary departure period to file an appeal and did not seek an extension. The court noted that Faddoul could have pursued review of a potential denial of an extension had he timely requested it.
According to Foti v. INS, courts of appeals have jurisdiction over determinations related to voluntary departure made during administrative proceedings. Aliens should request a voluntary departure period that allows time for judicial review. In this case, the Board granted Faddoul all requested relief regarding voluntary departure, and it retains authority to reinstate it if Faddoul petitions to reopen his case for new evidence. Ultimately, the Board's denial of Faddoul's asylum and withholding requests was affirmed, and his request to change the voluntary departure date was denied. The court indicated it might favorably consider an alien’s request for an extended voluntary departure period if the Board fails to adequately justify its denial.
