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Mumtaz Abdoulazaz Rahawi v. Immigration and Naturalization Service

Publisher United States Court of Appeals for the Ninth Circuit
Publication Date 23 September 1993
Reference 92-70161
Cite as Mumtaz Abdoulazaz Rahawi v. Immigration and Naturalization Service, United States Court of Appeals for the Ninth Circuit, 23 September 1993, available at: http://www.refworld.org/docid/3ae6b67a54.html [accessed 30 September 2014]
Comments Argued and submitted: 10 August, 1993; Filed: 23 September, 1993
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

MUMTAZ ABDULAZAZ RAHAWI, Petitioner, v. IMMIGRATION AND
NATURALIZATION SERVICE, Respondent.
No. 92-70161 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
August 10, 1993, Argued, Submitted, San Francisco,
California
September 23, 1993, Filed

Prior History:

Petition to Review a Decision of the Immigration and Naturalization Service. I&NS No. A17-258-028

Disposition:

PETITION FOR REVIEW DENIED.

Judges:

Before: SNEED, POOLE and TROTT, Circuit Judges.

Opinion:

Mumtaz Rahawi, a native and citizen of Iraq, petitions for review of the Board of Immigration Appeals' ("BIA") dismissal of his appeal of an immigration judge's ("IJ") decision finding him deportable based on his prior convictions and denying his applications for a section 212(c) waiver of inadmissibility, asylum, and withholding of deportation. Rahawi contends that (1) the BIA erred by denying him section 212(c) relief because it did not consider his alleged mental disability in weighing the equities and failed to order a psychiatric exam, (2) he was incompetent and did not understand the deportation proceedings, and (3) the BIA erred by denying him asylum because it should have engaged in an independent analysis of his claim rather than putting the burden of establishing persecution on a mentally incompetent person. We deny the petition for review.

I

Rahawi, a native and citizen of Iraq, entered the United States in 1965 as a nonimmigrant visitor. In 1967, Rahawi married a United States citizen and adjusted his status to that of a permanent resident alien. Rahawi was divorced and remarried several times. He currently is unmarried.

In 1977, Rahawi was convicted under the name of Stephen Ray Angeli of filing a false insurance claim in violation of California Insurance Code § 556(a). The probation officer noted in his report that Rahawi had "been untruthful in many areas and has possibly been making a living at insurance frauds." In 1982, Rahawi was convicted of intent to support a false insurance claim in violation of section 556(a)(3) and was sentenced to three years imprisonment.

On October 25, 1983, the INS issued Rahawi an order to show cause why he should not be deported pursuant to section 214(a)(4) of the Immigration and Nationality Act ("Act"), 8 U.S.C. § 1251(a)(4), based on his convictions for two crimes of moral turpitude. Rahawi, through counsel, conceded deportability, but sought a waiver of deportation pursuant to section 212(c) of the Act, 8 U.S.C. § 1182 (c). Rahawi also sought asylum and withholding of deportation under sections 208 and 243(h) of the Act, 8 U.S.C. §§ 1158(a) & 1253(h).

On September 27, 1985, the IJ found Rahawi statutorily eligible for section 212(c) relief, but denied his application for relief after weighing the equities. Specifically, the IJ found that the only equity was Rahawi's marriage to a United States citizen, which was overcome by Rahawi's criminal record, lack of significant employment or community service during his twenty years in the United States, and absence of rehabilitation. The IJ previously had given Rahawi a year to establish the sincerity of his "professed desire to rehabilitate himself" and to find gainful employment,[1] but found that Rahawi's continued unemployment, lack of financial stability, criminal history, and his latest unsuccessful attempts to obtain disability benefits based on his alleged medical conditions militated against a finding of rehabilitation. The IJ also denied Rahawi's applications for asylum and withholding of deportation.

Rahawi appealed to the BIA, which remanded the section 212(c) application to the IJ for reconsideration in light of additional evidence Rahawi had submitted regarding his child, volunteer work, employment, and receipt of disability benefits from the Social Security Administration. On remand, the IJ closed the hearing because Rahawi, who had been convicted on August 18, 1988 of obtaining prescription drugs by fraud, was incarcerated. The IJ stated that the hearing would remain closed until Rahawi was released from prison.

On September 7, 1990, the INS lodged an additional charge of deportability against Rahawi based on his conviction for obtaining prescription drugs by fraud, which is a ground for deportability under section 241(a)(11) of the Act, 11 U.S.C. § 1251(a)(11). Rahawi, through counsel, conceded deportability, and testified in support of his applications for relief under sections 212(c), 208, and 243(h) of the Act, 8 U.S.C. §§ 1182(c), 1158(a), and 1253(h).

In support of his applications for asylum and withholding of deportation, Rahawi expanded on his testimony from the first deportation hearing[2] and testified that (1) he had been beaten as a result of political activism in June 1959 in Iraq by a group of people called the "National Guard," (2) he became associated in November 1989 at the University of Damascus, Syria, with a man who conspired with Saddam Hussein to assassinate then-prime minister Abdul Karem Quassim of Iraq, (3) he knew Saddam Hussein, who once killed two people in front of him, (4) he had worked for Iraqi intelligence as an interpreter, intercepted a call between Saddam Hussein and prime minister Kassim, attended a meeting that he heard about during the call, took pictures, and smuggled the recording of their conversations and the negatives out of Iraq,[3] (5) he had left Iraq after receiving a tip that his life was in danger, and (6) his mother, who visited him in 1978, told him not to return or he would be killed. He also testified that he believed that he would die if he went back to Iraq.

Other evidence was presented during the hearing. Rahawi's friend, Richard Moore, testified in part that he was a good friend of Rahawi's, had known him for eight or nine years, and had lent him money.[4] An investigator in the California Attorney General's office, Bureau of Medical Fraud, testified that he had investigated Rahawi regarding his prescription drug fraud, that Rahawi had obtained 24,111 doses of drugs, and that 11 doctors had told him that Rahawi had obtained more drugs than he could ingest. He also testified that he had insufficient evidence to pursue an investigation as to whether Rahawi was selling drugs.

Finally, some evidence was presented about Rahawi's mental condition. A 1986 psychiatric evaluation concluded that Rahawi suffered from migraine headaches, Organic Brain Syndrome (Dementia), and Brain Tissue Atrophy and that these "account[] for, in a great way, the changes and behavior that have made him a very difficult individual with which to concourse ordinary daily interactions." Rahawi also admitted, and Moore and an ex-girlfriend confirmed, that Rahawi was a heavy prescription drug user. During the hearing, Rahawi's attorney argued that Rahawi was mentally disabled and that a psychiatrist should evaluate him to determine whether he was competent. The IJ responded that Rahawi had conducted himself in a very rational manner.[5]

The IJ denied Rahawi's applications for section 212(c) relief, asylum, and withholding of deportation on March 5, 1992.

In addressing Rahawi's application for asylum and withholding of deportation, the IJ expressed doubts about the credibility of Rahawi's testimony based on his prior convictions for fraud and the absence of corroborating evidence. The IJ found, though, that even assuming the truth of the testimony, Rahawi had not established a well-founded fear of persecution if he returned to Iraq.

In denying Rahawi's application for 212(c) relief, the IJ stated that he had given Rahawi every opportunity to establish rehabilitation, that Rahawi had not shown rehabilitation, and that he appeared incapable of rehabilitation.

In his decision, the IJ also stated the following: it should be perfectly obvious . . . that we are dealing with a troubled individual, but I do not believe that he does not fully appreciate the position he is in. At all times throughout the deportation hearing he has been perfectly rational, although his testimony has from time to time been rambling and somewhat ambiguous. The Court is confident that Mr. Rahawi understands the nature of the proceeding in which he is engaged.

Rahawi timely appealed to the BIA. In his brief, his counsel argued in part that Rahawi was incompetent, that the IJ should have ordered a psychiatric evaluation, and that Rahawi should be granted section 212(c) relief based on his incompetency and resulting inability to care for himself.

The BIA, in dismissing Rahawi's appeal, held that "in so far as counsel raises the question of whether mental state is a factor to be evaluated in the adjudication of the respondent's application for relief, we note that no recent medical evidence was introduced" and that the IJ did not err by failing to order a psychiatric evaluation because "there is no authority which would have required [him] . . . to do so." The BIA also held that Rahawi's due process rights were insured by the competent representation he had received.

In weighing the equities and denying section 212(c) relief, the BIA found that Rahawi had not introduced favorable evidence to offset the unfavorable factors, which included his crimes, his failure to assume responsibility for the crimes, his drug dependency, and his failure to support his children. The BIA observed that Rahawi did not have significant family ties in the United States and that, although Rahawi might face hardship due to the difficult living conditions in Iraq after his long sojourn in the United States, he had extensive family ties in Iraq, he had not immigrated to the United States "at a particularly young age," and "to the extent that the respondent's life in Iraq will be more difficult than it would have been in the United States, the responsibility for this event rests with the respondent alone." The BIA also addressed counsel's concern that Rahawi would not be able to care for himself if he was deported.

Assuming that respondent faces such circumstances, there is nothing in the record that would reflect how the respondent would be cared for in this country. On the other hand, we note that the respondent has family ties in Iraq. Likewise, assuming arguendo that the respondent is mentally incompetent, we fail to see how social and humane considerations would be served by granting him a waiver of deportability.

The BIA also denied Rahawi's applications for asylum and withholding of deportation, agreeing with the IJ that Rahawi "failed to establish that he had witnessed events or had evidence of events which would cause him to fear reprisal by the president of Iraq." The BIA also found that Rahawi's conversion to Christianity would not subject him to persecution in Iraq.

Rahawi timely petitions for review.

II

Rahawi contends that his mental illness should have been considered in weighing the equities under section 212(c) and that because the IJ failed to order a psychiatric exam, the equities could not be weighed properly. Although he frames his issue as a challenge to the denial of section 212(c) relief, he also contends that he did not understand the nature of the proceedings against him. He asks this court to remand his case for a psychiatric evaluation and for a hearing so that the BIA can (1) determine whether he understood the nature of the proceedings against him and (2) consider his mental illness in weighing the equities under 212(c). Specifically, he wants the BIA, in weighing the equities, to consider whether he has the mental capacity to care for himself if he is deported.

We review the BIA's denial of a section 212(c) waiver of deportation for an abuse of discretion. Vargas v. United States Dep't of Immigration, 831 F.2d 906, 908 (9th Cir. 1987). "In reviewing a BIA decision for abuse of discretion, we require that its stated reasons evidence its consideration of all relevant factors." Mattis v. INS, 774 F.2d 965, 967 (9th Cir. 1985). The BIA's decision should be set aside if the BIA failed to support its conclusion with a "reasoned explanation based on legitimate concerns." Vargas, 831 F.2d at 908.

Section 212(c) of the Act authorizes the Attorney General to waive in her discretion the inadmissibility of certain eligible aliens. 8 U.S.C. § 1182(c). Here, it is undisputed that Rahawi was statutorily eligible for section 212(c) relief. See id.; Ayala-Chavez v. INS, 944 F.2d 638, 640 n.2 (9th Cir. 1991). Therefore, the pertinent inquiry is whether the BIA weighed the relevant factors in evaluating Rahawi's application for section 212(c) relief and support[ed] its conclusions with a reasoned explanation based upon legitimate concerns." See Vargas, 831 F.2d at 908.

In deciding whether an alien merits relief under section 212(c), the BIA must "balance the adverse factors evidencing an alien's undesirability as a permanent resident with the social and humane considerations presented in his behalf to determine whether the granting of section 212(c) relief appears in the best interests of the country." Matter of Marin, 16 I & N Dec. 581, 584 (BIA 1978), approved, Ayala-Chavez, 944 F.2d at 641. Favorable factors include family ties, length of residence in the United States, entry into this country at a young age, expected hardship to the petitioner or his family if he is deported, service in this country's military, business or property ties, employment, value and service to the community, proof of genuine rehabilitation, and any other favorable character evidence. See Matter of Buscemi, 19 I & N Dec. 628, 633 (BIA 1988). Negative factors include the nature and circumstances of the crime, additional significant immigration violations, the nature, recency, and seriousness of the petitioner's criminal record, and any other negative character evidence. See id.; Marin, 16 I & N Dec. at 584-85. As the adverse factors grow more serious, the alien must show unusual or outstanding equities. Marin, 16 I & N Dec. at 586; see Ayala-Chavez, 944 F.2d at 641 (upholding BIA's requirement that aliens convicted of serious drug offenses show outstanding equities).

Rahawi does not contend that the BIA failed to support its denial of section 212(c) relief with a "reasoned explanation based on legitimate concerns." See Vargas, 831 F.2d at 908. Instead, he argues that the BIA, in balancing the equities, omitted a relevant concern: his ability to care for himself. The BIA did weigh this concern, however, and observed that, assuming Rahawi was incompetent, there was nothing in the record to show how he would be cared for in the United States. It also observed that he had family in Iraq and that it did not see how social and humane considerations would be served by granting him a waiver of deportability.

Rahawi also argues that the IJ and BIA should have ordered a psychiatric evaluation to aid in its weighing of the equities under 212(c). The BIA, however, assumed "arguendo" that Rahawi was incompetent in considering whether Rahawi would be able to care for himself if deported. Thus, even if Rahawi had a right to a psychiatric evaluation, he can show no prejudice.

Rahawi's argument that a psychiatric evaluation was needed to test whether he understood the proceedings also fails. Immigration proceedings are civil proceedings, not criminal proceedings subject to insanity defenses or competency concerns. Even if Rahawi was incompetent, his rights were protected because he was represented by competent counsel. As the BIA observed, "respondent's rights and privileges were at all times insured by the competent representation he received." Rahawi does not argue that he did not receive competent representation.

Rahawi has no good basis for challenging the BIA's denial of section 212(c) relief. The BIA examined the list of negative factors that weighed against section 212(c) relief, including Rahawi's crimes, his failure to assume responsibility for the crimes, his drug dependency, and his failure to support his children. There are virtually no equities that weigh in favor of granting 212(c) relief: Rahawi does not have significant family ties in the United States, he did not come to the United States at a young age, he has no community service, and, even though IJ gave him a year to establish the sincerity of his desire to rehabilitate himself, he showed no evidence of rehabilitation.[6]

This court has held that the BIA need only to render a decision that "sets out terms sufficiently to enable us as a reviewing court to see that the Board has heard, considered, and decided." Villanueva-Franco v. INS, 802 F.2d 327, 330 (9th Cir. 1986). The BIA far surpassed this standard by engaging in a detailed, reasoned analysis. See Vargas, 831 F.2d at 908. We reject Rahawi's claim that the BIA abused its discretion by denying him section 212(c) relief.

III

Rahawi also contends that the BIA abused its discretion by denying his application for asylum because investigation into whether a mentally disturbed alien has a well-founded fear of persecution requires a "more searching" analysis than that required for a competent alien.

We review the BIA's denial of asylum for an abuse of discretion. Acewicz v. INS, 984 F.2d 1056, 1061 (9th Cir. 1988). The BIA's factual findings underlying the refusal to grant asylum, including whether the alien has proved a well-founded fear of persecution, are reviewed under the substantial evidence standard. Id. Under this standard, this court must determine whether, based on the record considered as a whole, the BIA's decision was supported by reasonable, substantial, and probative evidence. INS v. Elias-Zacarias, 117 L. Ed. 2d 38, 112 S. Ct. 812, 815 (1992). Reversal of the BIA's finding that an alien failed to establish a well-founded fear of persecution is warranted only if the alien shows that the evidence presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution. Id. at 815 & n.1.

The Attorney General, in her discretion, may grant asylum to an alien who is a "refugee." 8 U.S.C. § 1158(a). A refugee is an alien who is unable or unwilling to return to his 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); Abedini v. INS, 971 F.2d 188, 191 (9th Cir. 1992).

Ordinarily, an alien must establish that he personally would be singled out for persecution on account of one of the five statutory factors or that there is a reasonable possibility of such persecution. Sanchez-Trujillo v. INS, 801 F.2d 1571, 1573-74 (9th Cir. 1986). The "well-founded fear" standard has an objective component and a subjective component. "The subjective component requires a showing that the alien's fear is genuine. The objective component requires a showing, by credible, direct, and specific evidence in the record, of facts that would support a reasonable fear of persecution." Estrada-Posadas v. INS, 924 F.2d 916, 918 (9th Cir. 1991).

Rahawi does not argue that the BIA erred by denying asylum based on the facts before it.[7] Instead, he essentially argues that although the burden to show persecution generally rests with the alien, the BIA should have applied a "more searching" standard when evaluating whether Rahawi satisfied the objective component of the well-founded fear standard because Rahawi is incompetent. Exactly what Rahawi expects the BIA to do is unclear: it seems he wants the BIA to conduct an independent investigation. As discussed above, however, even if Rahawi was incompetent, his rights were protected because he was represented by competent counsel, who could investigate on his behalf. Accordingly, we reject Rahawi's claim that the BIA abused its discretion in denying his application for asylum.

PETITION FOR REVIEW DENIED.



[1]At a prior hearing, Rahawi had discussed his desire to obtain paralegal training, which, together with his alleged training at the University of Bagdad Law School, would enable him to get a job.

 

[2]During his first deportation hearing, Rahawi testified that he would be persecuted based on his conversion from the Muslim faith to Christianity. He also claims that he was active in the ruling Ba-ath party, became disillusioned, and was tortured.

 

[3]Rahawi did not produce this evidence because he claimed concern for the safety of others who would be affected if he were to do so.

 

[4]Rahawi had testified that he had borrowed more than $ 100,000 from Moore that he intended to pay back when he obtained access to his bank accounts in Europe, which he said contained $ 250,000. He also referred to his inheritance of $ 2.25 million dollars which is with the government of Iraq . . . an organization called . . . Orphan's Trust." Moore said that he had lent Rahawi around $ 10,000 and that Rahawi still owed him $ 3,000 to $ 4,000. Moore also said he had leased a car in Rahawi's name, but the car had been stolen and burned for a loss of $ 20,000, which he expected insurance to cover. The issues of borrowing money and the car lease were raised because there was a suggestion that Rahawi had been dealing prescription drugs in order to fund a lifestyle where he had been seen wearing expensive tweed suits, driving a Cadillac, and showering his girlfriend with expensive gifts.

 

[5]Rahawi's ex-girlfriend also testified at the hearing that Rahawi had threatened and hit her, that she had to obtain a temporary restraining order against him, and that she was afraid of him because he was manipulative and dishonest. Rahawi denied striking her. The BIA stated that it would not consider this evidence or other dismissed criminal charges, including Rahawi's overturned conviction for assault with intent to murder his wife.

 

[6]For the first time at oral argument, Rahawi contended that the BIA did not consider his long residency in the United States in weighing the equities under section 212(c). The BIA, however, specifically considered the hardship Rahawi would face if deported to Iraq and observed that, although Rahawi had been in the United States for many years, he did not immigrate to this country at a particularly young age and had extensive family ties to Iraq.

 

[7]In any event, Rahawi's evidence was not so compelling that no reasonable factfinder could fail to find the requisite fear of persecution. See Elias-Zacarias, 112 S. Ct. at 815 & n.1.

 

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