UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 93-4303

__________________

ELIAS JOSEPH FADDOUL,

Petitioner,

versus

IMMIGRATION AND NATURALIZATION

SERVICE,

Respondent.

______________________________________________

Petition for Review of an Order of the

Board of Immigration Appeals

______________________________________________

(October 25, 1994)

 

Before JOHNSON, GARWOOD and JOLLY, Circuit Judges.

GARWOOD, Circuit Judge:

Elias Faddoul (Faddoul) appeals an order of the Board of

Immigration Appeals (BIA or Board) denying his requests for asylum

and withholding of deportation. In the alternative, Faddoul argues

that we should reinstate the BIA's grant of voluntary departure.

Finding that the BIA properly denied his requests, we affirm. We

also deny his request to extend his voluntary departure date.

Facts and Proceedings Below

Faddoul is a thirty-three year old man of Palestinian ancestry

who was born and last resided in Saudi Arabia. His parents fled
1 This document was stamped "Not valid for reentry to

Lebanon." Although Faddoul's parents temporarily resided in

Lebanon after fleeing Palestine, Faddoul does not appear to have

(or have had) any other contact with Lebanon and has only visited

the country once.

2

Palestine after the creation of Israel in 1948, first settling in

Lebanon, then moving to find work in Saudi Arabia, where Faddoul

was born and raised. Despite his place of birth, Faddoul was not

eligible to receive Saudi citizenship because Saudi law grants

citizenship solely on the basis on ancestry. As a person of

Palestinian ancestry, Faddoul was unable to obtain a Saudi passport

but was allowed to travel with a Lebanese travel document known as

a "laissez-passe".1 Faddoul first visited the United States in

1979 and thereafter returned to Saudi Arabia periodically to renew

his Saudi reentry visa. In 1984, Faddoul entered the United States

as a nonimmigrant student to study aviation and electronics, but he

ceased attending classes in May 1985. During this time, he formed

a relationship with a U.S. citizen and was married in October 1984.

Because he planned to apply for permanent legal status, he stopped

returning to Saudi Arabia and allowed his reentry visa to expire.

The marriage, however, eventually failed.

On September 22, 1986, the Immigration and Naturalization

Service (INS) began deportation proceedings against Faddoul and

issued an Order to Show Cause alleging deportability under the

Immigration and Naturalization Act (INA) § 241(a)(9), 8 U.S.C. §

1251(a)(9), for his failure to comply with the conditions of his

nonimmigrant status. On August 5, 1987, an immigration judge (IJ)

found Faddoul deportable and denied his request for asylum under
3

INA § 208(a), 8 U.S.C. § 1158(a), and withholding of deportation

under INA § 243(h), 8 U.S.C. § 1253(h), but granted him voluntary

departure until December 31, 1987.

In November 1987, a fire at a detention center destroyed

Faddoul's immigration papers and the BIA remanded his case to the

IJ for a new hearing. Faddoul's second hearing commenced June 22,

1989. The IJ once again found him deportable but allowed him to

submit a written application for asylum. Faddoul claimed that,

assuming Saudi Arabia permitted him to return, he would face

persecution because the government severely restricted the rights

of Palestinians. In particular, Saudi law forbade all non-Saudis

from owning property or businesses, attending certain schools, and

marrying Saudis. Non-Saudis were also prohibited from travelling

within Saudi Arabia without written permission and were only

permitted to remain in the country so long as they were sponsored

by a Saudi employer or received derivative sponsorship through

their parents' employment. In addition, Faddoul claimed that Saudi

Arabia would likely prohibit him from returning at all because his

reentry visa had expired and he could no longer receive derivative

sponsorship due to his age. He speculated that were he to return

to Saudi Arabia without a visa, he could face imprisonment.

The IJ denied Faddoul's requests for asylum or withholding of

deportation, finding that the discriminatory treatment

Palestinians, as non-Saudis, receive in Saudi Arabia did not

constitute persecution. The IJ did, however, grant him voluntary

departure for a period of six months, after which time he would to

be deported to Honduras, as per his request, or to Saudi Arabia or
2 The INA provides that a deportable alien is to be deported

"to a country promptly designated by the alien if that country is

willing to accept him into its territory." INA § 243(a), 8

U.S.C. § 1253(a). Faddoul designated Honduras, but there is no

indication as to whether that country will accept him. In case

the designated country refuses to accept the alien, section

243(a) provides a series of seven contingencies for determining

an alternate destination. In this case, the contingencies all

point to Saudi Arabia or Lebanon.

4

Lebanon if his admission to Honduras were refused.2 The BIA

affirmed the IJ's decision and granted Faddoul an additional thirty

days to voluntarily depart the United States. Although Faddoul

brought this appeal within the period of voluntary departure, that

period has since expired.

Discussion

I. Asylum and Withholding of Deportation

We accord deference to the BIA's interpretation of the

immigration statute unless there are compelling indications that

its interpretation is incorrect. Rivera-Cruz v. INS, 948 F.2d 962,

966 (5th Cir. 1991). Thus, absent dispositive error of law, we

must affirm the Board's determination that Faddoul was ineligible

for asylum or withholding of deportation if we find that its

decision was supported by substantial evidence in the record. 8

U.S.C. § 1105(a)(4); INS v. Elias-Zacarias, 112 S.Ct. 812, 815

(1992).

Because the grant of asylum is discretionary, it involves two

steps. First, the alien must demonstrate that he has a wellfounded fear of persecution on account of race, religion,

nationality, membership in a particular social group, or political

opinion. INA §§ 208(a), incorporating § 101(a)(42). An alien's
5

subjective fear of persecution will satisfy this standard if "a

reasonable person in her circumstances would fear persecution if

she were to be returned to her native country." Guevara Flores v.

INS, 786 F.2d 1242, 1249 (5th Cir. 1986), cert. denied, 107 S.Ct.

1565 (1987). Once the alien demonstrates his eligibility, the

decision to grant asylum is within the discretion of the IJ. Id.

at 1250. Withholding of deportation involves a slightly different

analysis. To be eligible for such relief, the alien must

demonstrate a "clear probability" of persecution upon return.

Rivera-Cruz, 948 F.2d at 966. This standard contains no subjective

component but requires a higher objective likelihood of persecution

than the "well-founded fear" standard. Guevara Flores, 786 F.2d at

1250. Unlike asylum, once the alien establishes a clear

probability of persecution the IJ must withhold deportation of the

alien for so long as the threat of persecution persists. Id.

Faddoul claims that Saudi Arabia's denial of basic living and

exit/reentry privileges to Palestinians, even those born within its

borders, constitutes persecution. While the INA does not provide

a precise definition of persecution, we have construed the term as

requiring "a showing by the alien that 'harm or suffering will be

inflicted upon [her] in order to punish [her] for possessing a

belief or characteristic a persecutor sought to overcome.'" 

Guevara Flores, 786 F.2d at 1249 (quoting Matter of Acosta, B.I.A.

Interim Decision No. 2986, 1985 WL 56042 (March 1, 1985)). At a

minimum, there must be some particularized connection between the

feared persecution and the alien's race, religion, nationality or

other listed characteristic. Demonstrating such a connection
3 While the Fourteenth Amendment to the United States

Constitution grants U.S. citizenship to all persons born within

this country's borders (jus soli), such a liberal grant of

citizenship is not universally accepted. Saudi Arabia is hardly

the only nation that grants citizenship based on ancestry and

consequently denies it to other persons born within its borders. 

Jus sanguinis was the standard determinant of citizenship under

Roman law and continues to be the primary basis for citizenship

throughout much of Europe, Africa and the Near East. See P.

WEIS, NATIONALITY AND STATELESSNESS IN INTERNATIONAL LAW 289 (2d ed. 1979);

cf. RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES §

211 cmt. c. (1987) (stating that both jus soli and jus sanguinius

6

requires the alien to present "specific, detailed facts showing a

good reason to fear that he or she will be singled out for

persecution." See Zulbeari v. INS, 963 F.2d 999, 1000 (7th Cir.

1992) (emphasis added).

In the present case, Faddoul has shown no such connection.

There is no indication the Saudi government has ever arrested,

detained, interrogated, or physically harmed Faddoul in any way.

Nor has it harmed any of his family members still residing in Saudi

Arabia. While Saudi Arabia obviously denies Palestinians certain

rights enjoyed by Saudi citizens, the government does not single

out Palestinians for such discriminatory treatment. Saudi law

grants citizenship based solely on ancestry (jus sanguinis). Thus,

children born of Saudi parents automatically receive Saudi

citizenship while the children of all non-Saudis, regardless of

their place of birth, do not. Indeed, Faddoul admits that a

Palestinian born in Saudi Arabia receives the same rights and is

subject to the same restrictions as a Saudi-born Egyptian, Somali

or any other foreign worker. To find persecution under these

circumstances would require a finding that jus sanguinis is

persecution per se. We are unwilling to do so.3 The decision to
are "universally accepted" as reflecting genuine links between

the state and the individual).

7

bestow or deny citizenship is deeply-rooted in national sovereignty

and must be left to the individual nation's discretion. See De

Souza v. INS, 999 F.2d 1156, 1159 (7th Cir. 1993). In De Souza,

the Seventh Circuit addressed a situation closely analogous to the

present case. De Souza's parents were born in Goa, a former

Portuguese colony which ceased to exist after its conquest by India

in 1963. De Souza was born in Kenya, but she was denied Kenyan

citizenship due to her foreign ancestry. Id. at 1157. The BIA

denied her request for asylum, stating that "Kenya's laws are not

directed specifically at any one group" and that deciding who

should receive citizenship "is within Kenya's sovereign power."

Id. The Seventh Circuit affirmed, holding that De Souza was not

deprived of any right because she had no right to Kenyan

citizenship. Id. at 1159. "It is well within the discretion of

[a] government to decide who its citizens will be." Id.

Accordingly, we hold that Saudi Arabia's method of conferring

citizenship does not amount to persecution.

Similarly, the particular restrictions Saudi Arabia places on

the rights of Palestinians and other non-Saudis also fail to

manifest the kind of persecution envisioned in the INA. Again,

reference to De Souza may be enlightening. As a noncitizen, De

Souza was subject to numerous travel, living, and educational

restrictions. She could only return to Kenya on a three-month

tourist visa, and she was prohibited from attending Kenyan public

high school. De Souza, 999 F.2d at 1157-58. The Court found that
4 Our own government expressly excludes any alien "who is an

officer, official, representative, or spokesman of the Palestine

Liberation Organization" from admission into the United States. 

See INA § 212(a)(3)(B)(i), 8 U.S.C. § 1182(a)(3)(B)(i).

5 In fact, the relevant United Nations Convention only

requires member states to accord stateless persons the same

treatment as accorded to their own nationals with respect to

elementary education. See CONVENTION RELATING TO THE STATUS OF STATELESS

PERSONS, art. 22(1), 360 U.N.T.S. 117 (New York 1954).

6 Faddoul also argues that he should be accorded refugee

8

none of these claims were tantamount to persecution and that some

"border[ed] on frivolity". Id. at 1159. A nation's right to

control access to its borders is central to its sovereignty. For

this reason, all nations are entitled to place entry and travel

restrictions on aliens without thereby being deemed to have

persecuted them.4 Neither do government policies denying access to

certain schools amount to persecution. Saudi Arabia provides

resident non-Saudis with a high school education but reserves

admittance to schools of higher education to its own citizens.

This admittedly discriminatory education policy is not unique.5 In

De Souza, the Kenyan government permitted noncitizens to attend

public grade school but not high school. The Court ruled that the

government could provide education for all people, some people, or

no people without persecuting them. De Souza, 999 F.2d at 1159.

Education, though undeniably important, is a matter of governmental

policy rather than a fundamental right.

Alternately, Faddoul claims that Saudi Arabia's refusal to

grant him a reentry visa is the result of the historical

persecution of Palestinians since the destruction of Palestine in

1948.6 He bases this argument on the literal definition of
status because the United Nations deems all stateless

Palestinians to be "refugees". The INA does not afford asylum to

all aliens that might properly be defined as refugees, rather it

limits such relief to individuals who are "refugee[s] within the

meaning of section 1101(a)(42)(A) of this title." See INA §

208(a), 8 U.S.C. § 1158(a). In any event, because Faddoul failed

to present this argument before the BIA, we need not address it.

9

"refugee" in the INA. A "person having no nationality," such as a

stateless Palestinian, who "is outside any country in which such

person last habitually resided, and who is unable . . . to return

to . . . that country because of persecution or a well-founded fear

of persecution" may be considered a refugee and is thereby eligible

for asylum. INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A)

(emphasis added). Faddoul claims he is unable to return to Saudi

Arabia because that country denies him the reentry privileges

afforded Saudi citizens, and he is unable to return to any other

country because he is stateless. He points out that the definition

of refugee does not specifically state that the alien must face

persecution at the hands of the country of last habitual residence,

but merely that the alien can not return to that country due to

some form of persecution. Nevertheless, we are unwilling to impute

to Saudi Arabia the historical treatment, assertedly amounting to

persecution, of the Palestinians. We do not question the

unfortunate plight of stateless Palestinians, but statelessness

alone does not warrant asylum. Section 101(a)(42)(A) clearly

indicates that stateless individuals must demonstrate the same

well-founded fear of persecution as those with nationalities.

Furthermore, Faddoul's inability to obtain a reentry visa is due in

part to his decision to allow his visa to expire. Once again,
7 Because Faddoul is unable to demonstrate a well-founded fear

of persecution, he has not shown a "clear probability" of

persecution as required for withholding of deportation. See

Guevara Flores, 786 F.2d at 1250 ("'Establishing an entitlement

to withholding of deportation . . . should require a greater

evidentiary burden than establishing "refugee" status so as to be

eligible for a discretionary grant of asylum.'") (quoting

Carvajal-Munoz v. INS, 743 F.2d 562, 575 (7th Cir. 1984))

(emphasis in original).

8 In addition, Faddoul does not explain why he has not

previously presented these arguments to the Board. The Board

issued its ruling in February 1993SQtwo years after the Persian

Gulf War. Similarly, by February 1993, Faddoul had already been

physically present in the United States for approximately nine

years. Thus, he apparently met the residence requirement several

years prior to his hearing before the Board.

10

Faddoul is unable to demonstrate the requisite connection between

his inability to return to Saudi Arabia and any specific threat of

persecution that he seeks to avoid.7

Finally, Faddoul claims that we should at least remand the

case to allow the BIA to consider certain circumstances that did

not exist when these proceedings began nearly eight years ago.

First, because Faddoul has been physically present in the United

States for a continuous period of more than seven years, he is now

eligible for discretionary suspension of deportation under section

244(a)(1), 8 U.S.C. § 1254(a)(1). Second, because PLO leader Yasir

Arafat supported Saddam Hussein in the Persian Gulf War, Saudi

Arabia is allegedly even less hospitable to Palestinians now than

when Faddoul's deportation proceedings began.

We find that neither of these developments require remand.8

The proper venue for proffering new evidence is not the Fifth

Circuit on appeal, but the BIA through a motion to reopen the case.

Rivera-Cruz v. INS, 948 F.2d 962, 968 (5th Cir. 1991). In Rivera-
9 Title 8 C.F.R. § 3.2 states, in pertinent part:

"Reopening or reconsideration of any case in which a

decision has been made by the Board, whether requested

by the Commissioner . . ., or by the party affected by

the decision, shall be only upon written motion to the

Board."

11

Cruz, a Nicaraguan sought asylum in the United States due to his

opposition to the Sandinista government. Before his case reached

the BIA, however, the Sandinistas were put out of power, and

Violeta Chamorro became President of Nicaragua. The BIA took

administrative notice of the change of government and concluded

that Rivera no longer had a well-founded fear of persecution. Id.

at 965. On appeal, Rivera argued for the first time that the

Chamorro government was crumbling. Id. at 966-67. The Court

recognized that aliens must have an opportunity to respond to

crucial facts in administrative hearings but held that a motion to

reopen, rather than remand, was the proper method to present new

evidence to the BIA. Id. at 968-69 & n.9; see also 8 C.F.R. §

3.2.9 In the instant case, because Faddoul has not yet departed

the country, he is free to petition the Board to reopen his case in

order to hear this evidence. Should the Board deny his request, he

could then appeal the Board's denial to this Court. Rivera-Cruz at

968.

II. Voluntary Departure

Having denied Faddoul's appeal, we must now consider his

request to order that the BIA's grant of thirty day voluntary

departure commence to run from the time of our affirmance, rather

than the time of the BIA decision, as the BIA directed. We
10 As the Fourth Circuit has noted, the approach adopted by the

Ninth Circuit creates a potentially anomalous result. Voluntary

departure is only to be granted to an alien who (1) is a person

of good moral character and (2) is not deportable for an

aggravated felony. INA § 244(e), 8 U.S.C. § 1254(e). Therefore,

by simply affirming a deportation order, a court might reinstate

voluntary departure for an alien who has, in the intervening

time, committed acts which would preclude him from eligibility

for voluntary departure. See Ramsay v. U.S. INS, 14 F.3d 206,

213 (4th Cir. 1994).

12

recognize that the circuits are split concerning our authority to

fix a new voluntary departure date. The Ninth Circuit, over a

vigorous dissent, has ruled that if the Board's deportation order

included a grant of voluntary departure, affirming the deportation

order would automatically restart the departure period as of the

date of affirmance. Contrereas-Aragon v. INS, 852 F.2d 1088, 1092-

93 (9th Cir. 1988) (en banc). The Court reasoned that "[t]he

result of the deportation hearing, including the discretionary

determinations, is one final order of deportation reviewable by the

courts of appeals." Id. at 1092. Thus, the Court denied that it

was actually reinstating anything "in the sense that [it was]

exercising any discretion properly exercised by the BIA;" but

rather it was "simply affirming the order of deportation with its

provision for alternative discretionary relief." Id.

10

In Umanzor-Alvarado v. INS, 896 F.2d 14 (1st Cir. 1990), the

First Circuit held that it had the authority to reinstate voluntary

departure because the INS could not deny a reinstatement solely

because the alien brought a good faith, nonfrivolous appeal. Id.

at 16. The Court reasoned that "to require the petitioner to apply

to the district director to pass upon the matter would be

pointless, for the director could not lawfully refuse the
11 The Board also has authority to reinstate an alien's

voluntary departure. See Matter of Chouliaris, 16 I & N Dec. 168

(BIA 1977). However, because "the Board has delegated to it the

authority of the Attorney General [under 8 C.F.R. § 3.1(d)],

Chouliaris is no authority for determining whether the judiciary

may reinstate voluntary departure." Farzad at 1072.

13

reinstatement." Id.

The Seventh Circuit, however, has held that it lacks the

authority to reinstate a departure period. In Kaczmarczyk v. INS,

933 F.2d 588 (7th Cir.), cert. denied, 112 S.Ct. 583 (1991), the

Court ruled that while it had "jurisdiction to review the BIA's

denial of asylum applications, [it] lack[ed] authority to review

the INS's discretionary grant of voluntary departure." Id. at 598,

citing Judge Kozinski's dissent in Contrereas-Aragon and our

decision in Farzad v. INS, 808 F.2d 1071 (5th Cir. 1987).

Kaczmarczyk relied primarily on the language of the regulations

stating that the "[a]uthority to reinstate or extend the time

within which to depart voluntarily specified initially by an

immigration judge or the Board is within the sole jurisdiction of

the district director." 8 C.F.R. § 244.2.11 Nevertheless, the

Seventh Circuit echoed the same concerns raised in Umanzor-Alvarado

that "[d]eportable aliens should not be faced with the choice

between enjoying the voluntary departure privilege and securing

judicial review of Board determinations." Kaczmarczyk, 933 F.2d at

598. Thus, the Court warned that "[s]hould it come to our

attention that the INS is wielding its discretion to withhold

voluntary departure to deter applicants from seeking judicial

review of BIA decisions, our scrutiny of that discretionary
12 The Court went on to note, however, that "petitioners have

not tendered evidence which suggests that the INS has exercised

its voluntary departure power in such a troubling fashion." Id.

14

exercise might expand." Id.

12

The Fourth Circuit approach attempts to synthesize the

holdings of the First and Seventh Circuits. In Ramsay v. U.S. INS,

14 F.3d 206 (4th Cir. 1994), the Court held that the decision to

reinstate voluntary departure should "be left to the discretion of

the District Director, who is better suited to consider the factual

prerequisites which determine an alien's eligibility" for such

relief. Id. at 213. The Court proceeded to rule, however, that a

court of appeals should reinstate voluntary departure when:

"(1) the INS is 'wielding its discretion to withhold

voluntary departure to deter applicants from seeking

judicial review of BIA decisions,' Kaczmarczyk, 933 F.2d

at 598, or (2) 'the [INS] does not suggest it will

present the district director with any other reason for

refusing the reinstatement.' Umanzor-Alvarado, 896 F.2d

at 16." Ramsay at 213.

The INS contends that this Court has already ruled that we

lack any authority to reinstate voluntary departure, citing Farzad.

Farzad, however, specifically chose not to reach that broad issue.

The Court in Farzad refused to reinstate voluntary departure

because the alien waited until the last day of the departure period

before filing his appeal and did not apply to the Board or the

district director for any extension of voluntary departure. Id. at

1072. The Farzad Court found no reason to augment the

administrative remedy which the alien had neglected. Id. Due to

the factual similarities between Farzad and the present case, we

reach a similar conclusion. Faddoul waited until the last day of
13 Faddoul asserts that the day after he filed his petition for

review he requested the district director to extend the time for

voluntary departure, but that no action has been taken on this

request.

15

the voluntary departure period to file this appeal, and there is no

indication he ever asked the Board to extend this period beyond

thirty days to allow him to appeal.13 Had the Board denied such a

request for an extension, Faddoul could have procured our review of

that denial with his appeal to us of the Board's denial of asylum

and withholding of deportation. See Foti v. INS, 84 S.Ct. 306, 314

(1963). In Foti, the Supreme Court stated that:

"[I]t seems rather clear that all determinations made

during and incident to the administrative proceeding

conducted by [an IJ], and reviewable together by the

Board of Immigration Appeals, such as orders denying

voluntary departure pursuant to § 244(e) . . . are

likewise included within the ambit of the exclusive

jurisdiction of the Courts of Appeals under § 106(a)."

Id.

An alien in proceedings before the Board faced with the

possibility of an adverse deportation decision that he may wish to

appeal to the court of appeals, and who also desires voluntary

departure in the event of an ultimately sustained order of

deportation, should alternatively request the Board to grant a

voluntary departure period that would expire within a specified

time after the Board's decision, or, if a timely petition for

review were to be filed within that time and thereafter were to be

ultimately denied or dismissed by the court of appeals, then within

a specified period following such denial or dismissal. If the

Board were to order deportation and, despite such a request for

extended voluntary departure, were to allow voluntary departure but
14 In passing on the Board's denial of the alien's request to

it for a more extended voluntary departure period, the court of

appeals might well be inclined to rule in the alien's favor

absent some explanation from the Board (or possibly patent on the

record) showing an appropriate basis for its action consistent

with not infringing on or deterring the alien's exercise of his

right to judicial review.

16

only within the thirty day period following its decision, then, on

the alien's petition for review, the court of appeals under Foti

would clearly have jurisdiction to review not only the Board's

order of deportation but also its denial of the alien's request for

the more extended period for voluntary departure.14

In the present case, however, the Board has granted Faddoul

all the relief he ever requested of it in respect to voluntary

departure. Further, the Board still has the authority to reinstate

voluntary departure "in a deportation proceeding that has been

reopened for a purpose other than solely making an application for

voluntary departure." 8 C.F.R. § 244.2. Therefore, should Faddoul

choose to petition the Board to reopen his case to consider new

evidence, he could request that the Board reinstate voluntary

departure at that time.

Conclusion

The Board properly denied Faddoul's requests for asylum or

withholding of deportation. Accordingly, the decision of the Board

is AFFIRMED; and the request that we order a change of the

voluntary departure date is DENIED.