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Keywords

appealasylumvisadeportation

willasylumvisadeportation

Related Cases

Elnager v. Immigration and Naturalization Service

Facts

Petitioner Hamed Elsyed Elnager is a 36-year-old native and citizen of Egypt who was admitted to the United States on a visitation visa. He conceded his eligibility for deportation and applied for deportation relief under the asylum and withholding of deportation provisions of the Immigration and Nationality Act due to an alleged fear of religious persecution after converting from Islam to Christianity. The immigration judge denied his petition, finding that Elnager failed to demonstrate that he would be subjected to persecution in Egypt, and the BIA dismissed his appeal.

Petitioner Hamed Elsyed Elnager is a 36-year-old native and citizen of Egypt. He was admitted to the United States on October 28, 1982, under a visitation visa which authorized him to remain in the United States until November 30, 1982. Elnager failed to leave the United States prior to the expiration of his visa, and he remains in this country.

Issue

Did the BIA apply the correct legal standard in denying Elnager's petition for asylum and withholding of deportation?

Rule

To be eligible for asylum, an alien must demonstrate a well-founded fear of persecution, which is a more generous standard than the clear probability standard required for withholding of deportation.

To be eligible for a discretionary grant of United States asylum under 208(a) of the Act, an alien must be a 'refugee'. 8 U.S.C. 1158(a). A refugee is defined as: any person who is outside any country of such person's nationality . . . who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection [**5] of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion . . . 8 U.S.C. 1101(a)(42)(A). An alien's well-founded fear must be both genuine and objectively reasonable. Zacarias v. U.S. INS, 908 F.2d 1452, 1455 (9th Cir. 1990).

Analysis

The court found that the BIA applied the correct legal standard, recognizing the difference between the well-founded fear standard for asylum and the clear probability standard for withholding of deportation. The BIA's decision indicated that it was aware of the standards and applied them appropriately, concluding that Elnager did not provide sufficient evidence to establish a well-founded fear of persecution.

In the instant case, the BIA applied the correct legal standard. The BIA's decision makes clear that it was cognizant of the difference between the standards and that it applied the well-founded fear standard in determining Elnager's refugee status. The Board explained the asylum and withholding standards in separate, consecutive paragraphs. It cited INS v. Cardoza-Fonseca, 480 U.S. 421, 446-48, 94 L. Ed. 2d 434, 107 S. Ct. 1207 (1987), [**8] which held that the asylum and withholding standards are different.

Conclusion

The court affirmed the decision of the BIA, concluding that Elnager failed to demonstrate a well-founded fear of persecution.

We AFFIRM the decision of the BIA.

Who won?

The United States Government prevailed in the case because the court found that the BIA applied the correct legal standards and that Elnager did not provide sufficient evidence of a well-founded fear of persecution.

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