Magdi Radwan v. Attorney General United States ( 2021 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 20-3236
_____________
MAGDI SAAD RADWAN,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES
_____________
On Petition for Review of a Final Order of
the Board of Immigration Appeals
No. A096-546-120
Immigration Judge: Charles M. Honeyman
_____________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
May 14, 2021
Before: McKEE, JORDAN, and FUENTES, Circuit Judges
(Opinion filed: September 8, 2021)
_____________
OPINION*
_____________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
FUENTES, Circuit Judge
Magdi Radwan petitions for review of a decision by the Board of Immigration
Appeals (“BIA”) affirming an order of an Immigration Judge (“IJ”) denying his
application for asylum, withholding of removal, and relief under the United Nations
Convention Against Torture (“CAT”). For the following reasons, we will deny the
petition for review.
I.
Radwan, a native and citizen of Egypt, has not left the U.S. since he entered with a
K-1 visa and married Theresa Kuth in 2005. In 2006, his status was adjusted to lawful
permanent resident. After a physical altercation between Radwan and Kuth’s son,
Radwan pled guilty and was convicted of aggravated assault in 2010.1 The couple then
divorced later that year. As a result of his conviction, the Department of Homeland
Security charged Radwan with removability pursuant to sections 1227(a)(2)(A) and
1227(a)(2)(E)(i) of the Immigration and Nationality Act (“INA”). In the years leading up
to his removal proceedings, Radwan sought readjustment of his status through another
marriage. When that marriage dissolved, Radwan filed an application for asylum,
withholding of removal, and CAT protection, claiming that he had been and would
continue to be persecuted in Egypt because of his affiliation with the Muslim
1
In addition to one count of aggravated assault, Radwan pled guilty and was
convicted of two counts of simple assault.
2
Brotherhood. Radwan testified at his final hearing, but the IJ identified several
inconsistencies and omissions in his testimony and determined that he was not credible.
The IJ then denied Radwan’s application for several reasons, including that Radwan did
not provide sufficient evidence to corroborate his claims, had been convicted of a
“particularly serious crime,” failed to establish past persecution or a well-founded fear of
future persecution, and failed to establish it was “more likely than not” that he would be
tortured on return to Egypt. The BIA affirmed the IJ’s decision without addressing the
particularly serious crime determination.
In this petition for review, Radwan argues that the BIA erred by (1) affirming the
IJ’s determination that he was convicted of a particularly serious crime; (2) concluding
his testimony was not credible; (3) concluding that the IJ had given Radwan a sufficient
opportunity to provide corroborating evidence; and (4) affirming the IJ’s determination
that he did not show past persecution or a well-founded fear of future persecution or that
he was likely to be tortured if he returned to Egypt.
II.
We have jurisdiction to review the BIA’s final order of removal under 8 U.S.C.
§ 1252(a)(1) and may also review the IJ’s decision to the extent it is adopted, affirmed, or
relied upon by the BIA.2 We review the BIA’s legal conclusions de novo and give
deference to the factual findings so long as they are supported by substantial evidence on
2
Guzman Orellana v. Att’y Gen., 956 F.3d 171, 177 (3d Cir. 2020).
3
the record as a whole.3 Because the BIA did not discuss the IJ’s particularly serious
crime determination, and because doing so was unnecessary to justify the BIA’s
conclusion, we lack jurisdiction to review it here.4
III.
A.
Radwan first challenges the IJ’s adverse credibility finding. An IJ may make
credibility determinations based on an inconsistency in the record “without regard to
whether [that] inconsistency. . . goes to the heart of the applicant’s claim.”5 “As a result,
‘only the most extraordinary circumstances . . . justify overturning an adverse credibility
determination.’”6 The IJ identified inconsistencies regarding the dates of arrest and
length of Radwan’s detentions, the events surrounding those detentions, and the details
about his political activity and membership in the Muslim Brotherhood. The IJ also
found these inconsistencies were not trivial, as Radwan argues, because they speak to the
heart of his asylum claim. For example, the IJ noted inconsistencies between Radwan’s
3
Id.
4See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (per curiam) (“As a general rule
courts and agencies are not required to make findings on issues the decision of which is
unnecessary to the results they reach.”).
5
Sunuwar v. Att’y Gen., 989 F.3d 239, 250 (3d Cir. 2021) (quoting Zheng v. Att’y
Gen., 417 F.3d 379, 381 n.1 (3d Cir. 2005)); see 8 U.S.C. § 1158(b)(1)(B)(iii).
6
Sunuwar, 989 F.3d at 250–51 (quoting Jibril v. Gonzales, 423 F.3d 1129, 1138 n.1
(9th Cir. 2005)).
4
testimony and the affidavit he submitted regarding how the Government learned of his
affiliation with the Muslim Brotherhood—which is pertinent to the asylum analysis.7
The IJ’s credibility finding “is conclusive unless the record compels a contrary
determination.”8 Here, the IJ did not err in concluding that Radwan lacked credibility,
nor did the BIA err in adopting that determination. Radwan testified that he had been
arrested and detained twice in Egypt, once in 1988 and then again in 2004. However, he
stated in his application and affidavit that he traveled to the U.S. in 2000, following his
second arrest. Radwan also repeatedly testified that he was detained for two weeks in
1988 and for three weeks in 2004. However, he stated in his application and affidavit
that he was detained for seven days in 1988 and for three months (not weeks) in
connection with his second arrest.
Radwan also testified that he posted political writings only on the bulletin board at
a university he attended in Egypt. However, he stated in his affidavit that his writings
were published in a magazine, and that this is how Egyptian officials learned of his
oppositional views. Radwan further testified that he was released from police custody in
1988 and in 2004 because his uncle, a police officer, was able to secure his release.
However, he stated in his application and affidavit that he was released from his first
detention due to insufficient evidence against him, and that he was released from his
7
On appeal, the BIA concluded that the IJ’s observations were supported by the
record.
8
Id. at 250.
5
second detention because he was never criminally charged. Radwan did not mention his
uncle or that he had a relative working in the police department in either his application
or affidavit, and informed the IJ of this for the first time at the final hearing.
Radwan also testified that his second arrest in 2004 was prompted by detectives
hearing him talk about politics in a coffee shop and that he was arrested with two other
people but did not know their names. However, he stated in his application that he was
arrested the second time for discussing politics with private students he tutored after
school. Radwan also stated in his application and affidavit that the police sent him
threatening letters or messages prior to his first arrest. However, Radwan never
mentioned a threatening letter or message from the police when testifying about the
circumstances of his first arrest. Under our deferential standard of review and based on
the inconsistencies in Radwan’s testimony, application, and affidavit, the BIA did not err
in affirming the IJ’s adverse credibility determination.9
B.
Radwan next argues that the BIA erred in concluding that the IJ provided him with
a sufficient opportunity to provide corroborating evidence under Abdulai v. Ashcroft.10
9
We note that at the beginning of direct examination, the IJ specifically asked
Radwan’s counsel to elicit details so that he could better understand the chronology of
events leading up to Radwan’s detentions.
10
239 F.3d 542, 554 (3d Cir. 2001); see also In re S-M-J-, 21 I. & N. Dec. 722, 725
(BIA 1997) (explaining that it is reasonable to expect an applicant to corroborate facts that
are central to their claim and easily verifiable, including letters from family members who
remain in the applicant’s home country).
6
Abdulai requires the IJ to (1) identify the facts reasonably expected to be corroborated,
(2) inquire as to whether the applicant provided such corroborating evidence, and if he
has not, (3) analyze whether the applicant adequately explained his failure to do so.11
In affirming the IJ’s decision, the BIA explained that Radwan was given ample
opportunity to identify available corroborating evidence regarding his affiliation with the
Muslim Brotherhood and explain any discrepancies or gaps in the record at the final
hearing. For instance, he testified that he was unable to obtain records relating to his
arrest because the building they were stored in burned down, and that he could not obtain
a letter of support from his sister because she was afraid to submit one. Radwan also
testified that he had not tried to obtain other corroborating evidence, such as a letter of
support from his Egyptian ex-wife regarding a subsequent attack on Radwan’s home
11
Abdulai, 239 F.3d at 554. We note a possible source of tension in the cases
interpreting Abdulai, which states that the BIA may require “otherwise credible” applicants
to provide corroborating evidence. Id. at 554. Though credibility and corroboration are
separate inquiries, see Chen v. Gonzales, 434 F.3d 212, 221 (3d Cir. 2005), there is some
conceptual overlap. Other panels have previously applied Abdulai even where, as here,
there was an adverse credibility determination below. E.g., Yilan Jiang v. Att’y Gen., 259
Fed. App’x 520, 522-23 (3d Cir. 2007) (not precedential) (applying Abdulai even though
the BIA found the petitioner’s testimony not credible); see also Sandie v. Att’y Gen., 562
F.3d 246, 251 (3d Cir. 2009) (rejecting petitioner’s argument that “the credibility
determination is a necessary predicate to the corroboration determination”); Kayembe v.
Ashcroft, 334 F.3d 231, 235 n.1 (3d Cir. 2003) (noting that an adverse credibility finding
was based “in part due to lack of corroboration”). But a question arguably remains as to
whether Abdulai is triggered in cases like this where there has been such a determination.
Judge Jordan is of the view that Abdulai’s requirement to provide a corroboration
opportunity is contingent on an applicant being “otherwise credible.” 239 F.3d at 554.
7
because “nobody told [him] or directed [him] to this matter.” A.R. 306.12 The IJ also
provided Radwan with an opportunity to submit a written closing argument, but that
statement also failed to provide or identify any corroboration. Even though Radwan was
able to offer at least a partial explanation as to the lack of documentary evidence, the BIA
did not err in affirming the IJ’s decision on this record, particularly in light of the adverse
credibility determination below. At bottom, because Radwan was given adequate notice
of the facts requiring corroboration before the IJ issued his final decision,13 the BIA did
not err in affirming the IJ’s conclusion.
IV.
Radwan next challenges the BIA’s conclusion that he failed to establish past harm
or a well-founded fear of future persecution in his asylum application. To be eligible for
asylum, Radwan must show that he “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 group, or political opinion.” 14 An applicant can
12
Radwan also testified that he did not obtain documents confirming his studies or
teaching experience at Muslim Brotherhood schools for the same reason—that “nobody
asked [him] to.” A.R. 302.
13
Radwan’s final hearing at which he testified took place on June 26, 2018. His
written closing statement was due to the IJ by July 11, 2018. The IJ’s decision was not
issued until August 13, 2018.
14
8 U.S.C. § 1101(a)(42); see 8 U.S.C. § 1158(b)(1)(A) (applicant must qualify as a
“refugee”).
8
establish asylum eligibility by demonstrating past persecution or a well-founded fear of
future persecution,15 which may include threats to life and confinement.16
The BIA explained that the IJ’s adverse credibility determination was largely fatal
to Radwan’s asylum arguments, including his claim of past and future harm. Though
past and future fear of persecution may be demonstrated through an applicant’s
testimony, the IJ reasonably concluded that Radwan’s testimony was not credible.17
Radwan testified that he had been harmed and feared future persecution in Egypt based
on his affiliation with the Muslim Brotherhood, but failed to provide any other
compelling evidence confirming his affiliation. For these reasons and in light of the
adverse credibility determination, the BIA did not err in affirming the IJ’s conclusion in
this regard.18
V.
Lastly, Radwan challenges the BIA’s conclusion that he did not establish that it
was more likely than not that he would be tortured if returned to Egypt, and his CAT
15
8 C.F.R. § 1208.13(a)–(b); see Yu v. Att’y Gen., 513 F.3d 346, 348 (3d Cir. 2008)
(explaining that a fear of future persecution must be supported by “objective evidence that
persecution is a reasonable possibility”) (quoting Balasubramanrim v. I.N.S., 143 F.3d 157,
165 (3d Cir. 1998)).
16
Espinosa-Cortez v. Att’y Gen., 607 F.3d 101, 107 (3d Cir. 2010).
17
See Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir. 2005).
18
To the extent Radwan argues that the BIA erred in denying his claim for withholding
of removal, that claim also fails. The withholding-of-removal standard is higher than that
for asylum, and an applicant who fails to meet his burden under the asylum framework
“necessarily fails to meet the standard for withholding of removal.” Lukwago v. Ashcroft,
329 F.3d 157, 182 (3d Cir. 2003).
9
claim therefore failed. An applicant is eligible for CAT protection if he can establish,
through objective evidence, that it is “more likely than not” that he will be tortured if
returned to his native country.19 To determine whether torture is likely to occur, the BIA
must consider: (1) what is likely to happen to Radwan if he were removed to Egypt; and
(2) whether that likely treatment amounts to the legal definition of torture.20
Here, the BIA affirmed the IJ’s decision because the record showed that Radwan
lived in Egypt for over 40 years without suffering serious physical harm,21 and that he
had not been meaningfully involved in political activities since he moved to the U.S.,
except for occasionally posting on Facebook. The BIA further relied on the absence of
credible evidence indicating that Radwan maintained contact with the Muslim
Brotherhood or that the Egyptian government had any interest in harming Radwan since
he relocated to the U.S.22 The BIA further explained that although there is a pattern of
persecution towards the Muslim Brotherhood in Egypt, Radwan nevertheless failed to
19
Kamara v. Att’y Gen., 420 F.3d 202, 212–13 (3d Cir. 2005); see Zubeda v. Ashcroft,
333 F.3d 463, 476 (3d Cir. 2003) (explaining that an adverse credibility ruling does not
always mandate denial of CAT claims).
20
See Zaplun v. Att’y Gen., 602 F.3d 260, 271 (3d Cir. 2010) (“Torture is a term of
art, and whether imprisonment, beating, and extortion are severe enough to rise to the level
of torture is a legal question.”).
21
Radwan testified first that he did not suffer any injuries and later that he suffered
scratches on his face when police officers had pushed him.
22
Radwan testified, and included in his application and affidavit, that after arriving in
the U.S., police had twice stormed his apartment in Egypt. Due to the lack of corroborating
evidence and the IJ’s adverse credibility determination, that testimony does not compel a
different result on appeal. See 8 C.F.R. § 1208.16(c)(2) (“The testimony of the applicant,
if credible, may be sufficient to sustain the burden of proof without corroboration.”).
10
provide any compelling evidence that he belonged to that group. On this record, we
conclude that substantial evidence supports the BIA’s decision that Radwan failed to
show he was more likely than not to be tortured if returned to Egypt.
VI.
The BIA reasonably adopted the IJ’s determination that Radwan’s testimony was
not entirely credible and that he had sufficient opportunity to provide corroborating
evidence or testify as to its availability. The BIA’s determination that Radwan failed to
establish past persecution or fear of future persecution, as well as a likelihood of torture,
is also supported by substantial evidence. Accordingly, we will deny the petition for
review and affirm the BIA’s decision.
11