Ashqar v. Holder , 355 F. App'x 705 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-2249
ASMAA JAMAL ASHQAR,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: September 22, 2009 Decided: December 8, 2009
Before NIEMEYER and DUNCAN, Circuit Judges, and James P. JONES,
Chief United States District Judge for the Western District of
Virginia, sitting by designation.
Petition for review denied by unpublished per curiam opinion.
ARGUED: Eleanor Roy Barrett, DUANE MORRIS, LLP, Philadelphia,
Pennsylvania, for Petitioner. Shahrzad Baghai, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON
BRIEF: Denyse Sabagh, Thomas K. Ragland, DUANE MORRIS, LLP,
Washington, D.C., for Petitioner. Tony West, Assistant Attorney
General, Civil Division, Terri J. Scadron, Assistant Director,
UNITED STATES DEPARTMENT OF JUSTICE, Office of Immigration
Litigation, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Asmaa Jamal Ashqar (“Mrs. Ashqar”) petitions for review of
an order of the Board of Immigration Appeals (the “BIA”),
entered October 3, 2008, denying her application for asylum and
withholding of removal. According to Mrs. Ashqar, the BIA
erroneously concluded that she had failed to demonstrate she had
a well-founded fear of future persecution. As explained below,
we reject this contention and deny the petition for review.
I.
Mrs. Ashqar is a Kuwaiti-born Palestinian who was first
admitted to the United States in March 1990 on a J-2 visa. She
moved to Oxford, Mississippi, in order to join her Palestinian
husband, Dr. Abdelhaleem Ashqar (“Dr. Ashqar”), who entered the
United States on a J-1 visa in November 1989 after receiving a
fellowship to study at the University of Mississippi. Once Dr.
Ashqar’s studies were completed, the Ashqars moved to Virginia.
In 1998, Dr. Ashqar filed an application for asylum in the
United States, in which Mrs. Ashqar was a derivative applicant.
Shortly thereafter, the Immigration and Naturalization Service
2
(the “INS”) 1 charged Mrs. Ashqar with removability because she
was in the United States longer than her authorized stay.
Dr. Ashqar eventually decided to withdraw his application
for asylum in 2003, prompting Mrs. Ashqar to move to sever her
asylum claim from her husband’s. On June 16, 2003, the
Immigration Court in Arlington, Virginia, granted Mrs. Ashqar’s
motion.
In her independent application, Mrs. Ashqar conceded she
had overstayed her visa but sought relief from removal. Mrs.
Ashqar requested asylum pursuant to 8 U.S.C.A. § 1158 (West
2005) due to her fear of persecution in Israel and the Occupied
Territories. She also sought withholding of removal under both
the Immigration and Nationality Act (the “INA”) and the
Convention Against Torture (the “CAT”).
A.
On March 15, 2004, the Immigration Court held a hearing on
Mrs. Ashqar’s application. The following is a summary of the
facts taken from the record of that hearing.
Mrs. Ashqar grew up as a refugee in Gaza in the Israeli
Occupied Territories. It was there, beginning in 1982, she
1
On March 1, 2003, the INS integrated into the newly formed
Department of Homeland Security (the “DHS”). Homeland Security
Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135, 2195-205
(2002). Thus, the DHS is now the agency overseeing Mrs.
Ashqar’s immigration case.
3
attended the Islamic University of Gaza. Sometime between
September 1986 and January 1987, Mrs. Ashqar married Dr. Ashqar,
a lecturer at the university. 2 A few months after the Ashqars
married, Dr. Ashqar was promoted to the position of university
director of public relations and became editor of the
university’s magazine.
Dr. Ashqar was an outspoken opponent of the Israeli
occupation. According to Mrs. Ashqar, Dr. Ashqar’s political
activities were not ignored by the Israeli government. In 1981,
as a student at Birzeit University, Dr. Ashqar was arrested,
beaten, tortured, and held in jail for sixteen days by the
Israeli military for having participated in a demonstration
protesting the creation of the state of Israel.
In contrast, Mrs. Ashqar admits that she was never
mistreated by Israeli authorities. She was, however, questioned
by Israeli intelligence twice between 1984 and 1986 as a member
of the Islamic University of Gaza’s student council. After she
2
There is some discrepancy in the record as to when the
Ashqars were married. The Immigration Court’s decision first
states that the Ashqars were married on September 19, 1986, then
later notes that Mrs. Ashqar testified she was married in
January 1987. According to the transcript of the hearing, Mrs.
Ashqar testified that the Ashqars were engaged in September
1986, signed a marriage contract in December 1986, and held the
wedding in January 1987. Fortunately, to consider the merits of
this petition, we do not need to determine the correct date.
4
was married, she was never again summoned for questioning by
Israeli officials.
It was a different story for her husband. The Israeli
authorities interrogated Dr. Ashqar on several occasions.
Between 1986 and 1989, he was often detained and questioned as
well as threatened with jail and/or deportation. When Dr.
Ashqar attempted to leave the Occupied Territories for the
United States in 1989 to pursue his studies at the University of
Mississippi, the Israeli officials tried to stop him.
Eventually, the authorities permitted Dr. Ashqar to leave, but
only after a former Israeli Interior Minister intervened on his
behalf. Mrs. Ashqar, on the other hand, testified that she had
been able to follow her husband a few months later, in 1990,
without any complications.
After settling in the United States, Dr. Ashqar continued
to attract attention from Israeli authorities and began also
garnering the U.S. government’s attention. As early as December
1991, the FBI interviewed Dr. Ashqar about his activities for
the Islamic University of Gaza and his purported fundraising for
the Islamic Resistance Movement, an organization commonly
5
referred to as HAMAS. 3 Much of its information on Dr. Ashqar’s
ties to HAMAS at that time came from Israeli officials.
In 1993, Mrs. Ashqar returned to Gaza for the first and
only time to visit with family for two months. She did not
experience any difficulties with the Israeli authorities while
she was there.
Following Mrs. Ashqar’s return, in 1994, a book was
published in Israel mentioning Dr. Ashqar’s connection to HAMAS.
Mrs. Ashqar testified that an FBI agent had approached her
husband and requested a meeting with him to question him about
the book. According to the Ashqars, the FBI questioned Dr.
Ashqar at the request of the Israeli government.
In 1997, Dr. Ashqar completed his Ph.D. program at the
University of Mississippi, and the Ashqars moved to Virginia
where Dr. Ashqar planned to work. In February 1998, Dr. Ashqar
was subpoenaed to testify before a grand jury in the Southern
District of New York about persons accused of fundraising for
HAMAS. Dr. Ashqar gained international media attention when he
refused to testify, telling reporters he feared his answers
3
HAMAS is an acronym for Islamic Resistance Movement in
Arabic, Harakat al-Muqawamah al-Islamiyya. United States v.
Holy Land Found. for Relief & Dev., 493 F.3d 469, 471 n.1 (5th
Cir. 2007). On October 8, 1997, the U.S. Secretary of State
designated HAMAS as a Foreign Terrorist Organization pursuant to
8 U.S.C.A. § 1189 (West 2005). (J.A. 1013.)
6
would be used against others close to him in the Palestinian
liberation movement. The district court found him in civil
contempt, and he was detained for six months, during which he
went on a hunger strike and was eventually force fed by court
order.
Dr. Ashqar was subpoenaed a second time in 2003 to appear
before a grand jury in the Northern District of Illinois, but
again he refused to testify, was held in contempt and jailed,
and began a hunger strike. Dr. Ashqar was subsequently indicted
by a federal grand jury for criminal contempt, obstruction of
justice, and conspiring to violate the RICO act to finance the
affairs of HAMAS. 4
Mrs. Ashqar bases her claim for asylum on these more recent
events. She believes that the publicity surrounding the book in
1994 and the subsequent media coverage of her husband’s refusal
to testify before the grand juries made her husband a much
bigger target of Israeli officials. Consequently, she fears
that if she were to return to her homeland, the Israeli
authorities would detain and torture her in order to force Dr.
4
Dr. Ashqar was eventually convicted of criminal contempt
and obstruction of justice, but not the RICO charge, and was
sentenced to 135 months in prison. See United States v. Ashqar,
582 F.3d 819, 821 (7th Cir. 2009). The Seventh Circuit recently
affirmed his convictions and sentence. Id.7
Ashqar to eventually return to the Occupied Territories where
they would be able to arrest him.
B.
On April 25, 2006, the Immigration Judge (the “IJ”) granted
Mrs. Ashqar’s application for asylum without considering either
of her requests for withholding removal. The IJ found that Mrs.
Ashqar had established that she had a reasonable fear of future
persecution if she returned to Israel or the Occupied
Territories based on the political opinions imputed to her from
her association with her husband.
The DHS filed a timely appeal of the IJ’s decision to the
BIA. On October 3, 2008, the BIA sustained the appeal and
reversed the IJ’s decision. The BIA concluded “that there is no
specific evidence in the record which, taken alone or
cumulatively, would support a finding that [Mrs. Ashqar] has a
well-founded fear of persecution in Israel.” (J.A. 18.) The
BIA also denied Mrs. Ashqar’s requests for withholding of
removal under the INA and CAT.
On October 29, 2008, Mrs. Ashqar filed a petition for
review with this court pursuant to 8 U.S.C.A. § 1252 (West
2005). In her petition, Mrs. Ashqar only challenges the BIA’s
ruling on her asylum eligibility.
8
II.
The Secretary of Homeland Security or the Attorney General
may grant asylum to an alien who is unable or unwilling to
return to her home county because she has “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.A. §§ 1101 (a)(42)(A), 1158(b)(1)(A) (West
2005). The burden is on the applicant to demonstrate that she
has a well-founded fear of persecution based on one or more of
the listed grounds. See Abdel-Rahman v. Gonzales, 493 F.3d 444,
449 (4th Cir. 2007). Such a fear is proven by showing there is
a reasonable possibility that the applicant will be persecuted.
8 C.F.R. § 1208.13(b)(2)(i)(B) (2009).
Mrs. Ashqar claims that if she returns to the Occupied
Territories she has a well-founded fear that she will be
targeted for persecution because of: (1) the political opinions
of her husband imputed to her; and (2) her membership in the
social group of wives of political dissidents. She believes
that, because of his political activism, the Israeli authorities
want to capture Dr. Ashqar. Thus, it is Mrs. Ashqar’s
contention that if she returns to her homeland, the Israeli
government will persecute her in order to lure Dr. Ashqar back
to the Occupied Territories. The BIA found, however, that Mrs.
9
Ashqar presented no persuasive evidence to demonstrate that she
had a well-founded fear of such an occurrence.
Mrs. Ashqar argues that the BIA erred in denying her asylum
application because: (1) the BIA applied the incorrect legal
standard; and (2) the BIA’s decision is not supported by
substantial evidence. We disagree.
A.
It is Mrs. Ashqar’s contention that the BIA mistakenly
required her to show more than a reasonable possibility of
future persecution to establish a well-founded fear. We review
this question of law de novo. See Abdel-Rahman, 493 F.3d at
449. Although the BIA did not cite to 8 C.F.R. §
1208.13(b)(2)(i)(B) -- the regulation outlining the reasonable
possibility standard -- a plain reading of the BIA’s analysis
convinces us that it was nonetheless applying the correct
criterion. 5
5
The BIA did incorrectly cite to 8 C.F.R. § 1208.16(b)(1)
to support the statement that “the burden of proof to establish
a well-founded fear of future persecution remains with [Mrs.
Ashqar].” (J.A. 16.) That section actually sets out the burden
of proof necessary to establish a past threat to life or freedom
claim for withholding of removal under the INA and CAT and does
not relate to asylum claims. See 8 C.F.R. § 1208.16(b)(1)
(2009). Regardless of the citation, the BIA was nonetheless
correctly stating the law -- the burden of proof to demonstrate
a well-founded fear of future persecution lies with the
applicant. See 8 C.F.R. § 1208.13(a) (2009).
10
The first indication that the BIA applied the proper
standard is that the BIA stated in its opinion that “[a]lthough
there is anecdotal evidence in the record that the wives and
family members of suspected terrorists have sometimes been
subjected to mistreatment of various kinds by the Israeli
government, there is no persuasive evidence that such an
occurrence is a reasonable possibility in [Mrs. Ashqar’s] case.”
(J.A. 17 (emphasis added).) We do not believe, as Mrs. Ashqar
argues, that the BIA’s use of the phrase “reasonable
possibility” was a mere coincidence.
The BIA stated several times in its opinion such phrases
as: there is “no persuasive evidence” that shows persecution
“would” occur; and it was mere “speculation” that Mrs. Ashqar
“might,” “would,” or “will” face persecution. (See J.A. 17-18.)
While Mrs. Ashqar argues that the use of “would,” “might,” and
“will” proves that the BIA applied a “more likely than not”
standard, we find that argument unconvincing. Mrs. Ashqar’s
reading ignores the fact that the BIA found no convincing
evidence of her claim. To rule that there is a chance of
persecution at least some scintilla of persuasive evidence,
something more than speculation, is necessary. Thus, despite
its failure to identify the appropriate regulation, the BIA did
apply the requisite standard.
11
B.
Given that the BIA applied the correct legal standard, Mrs.
Ashqar next contends that the BIA erred by ruling she did not
demonstrate a reasonable possibility of persecution.
Judicial review of the BIA’s factual determinations is
narrow. We review factual findings under the substantial
evidence standard. See Abdel-Rahman, 493 F.3d at 448. Such
findings are only to be overruled if “any reasonable adjudicator
would be compelled to conclude to the contrary.” 8 U.S.C.A. §
1252(b)(4)(B) (West 2005). In other words, “[i]n order to
secure judicial relief from the denial of an application for
asylum or withholding of removal, an alien ‘must show that the
evidence [s]he presented was so compelling that no reasonable
factfinder could fail to find the requisite fear of
persecution.’” Abdel-Rahman, 493 F.3d at 448-49 (quoting INS v.
Elias-Zacarias, 502 U.S. 478, 483-84). We find that Mrs. Ashqar
has failed to overcome this burden.
Mrs. Ashqar first asserts that the BIA completely ignored
her claim that she would be persecuted because her husband’s
political opinions would be imputed to her, 6 but this is easily
refuted.
6
“An imputed political opinion, whether correctly or
incorrectly attributed, may constitute a ground for a well-
founded fear of political persecution within the meaning of the
(Continued)
12
It is apparent that the BIA did consider the risk of
persecution based on imputed political opinions because the BIA
spent much of its opinion detailing its disagreement with the
IJ’s decision. (See J.A. 16-17 (“We disagree with the
Immigration Judge’s conclusion . . . .”; “the Immigration
Judge’s decision is incorrect . . . .”).) And the IJ ruled
solely on Mrs. Ashqar’s claim that her husband’s political
opinions would be imputed to her. Indeed, he did not even
consider her other grounds for relief. (See J.A. 117.)
The BIA is not required to specifically delineate between
its consideration of Mrs. Ashqar’s imputed political opinions
and social group grounds for persecution because “[i]ndividual
targeting and systematic persecution do not necessarily
constitute distinct theories. Rather, an applicant will
typically demonstrate some combination of the two to establish a
well-founded fear of persecution.” Chen v. INS, 195 F.3d 198,
203-04 (4th Cir. 1999).
The BIA’s ruling, in fact, was largley based on its finding
that Mrs. Ashqar had not sufficiently demonstrated that her risk
INA.” Najjar v. Ashcroft, 257 F.3d 1262, 1289 (11th Cir. 2001)
(citations, alterations, and internal quotes omitted); see also
In re S-P-, 21 I. & N. Dec. 486, 489 (BIA 1996).
13
of persecution had increased from when she previously lived in
the Occupied Territories -- a period when Mrs. Ashqar admits she
was not persecuted. Mrs. Ashqar’s own testimony confirms that
Dr. Ashqar was a highly visible political opponent of the
Israeli occupation from 1986 to 1990. According to Mrs. Ashqar,
during that period the Israeli authorities were frequently
detaining and interrogating her husband, but they never once
came after her.
Furthermore, FBI reports show that Israel had connected her
husband to HAMAS as early as January 1991. Yet, Mrs. Ashqar
concedes when she visited Gaza in 1993, she was not disturbed by
Israeli officials.
Mrs. Ashqar tried to show that events after 1994 -- the
publication of the book connecting Dr. Ashqar to HAMAS and the
infamous grand jury incidents -- altered the landscape. As
proof of her increased risk of persecution, Mrs. Ashqar offered
evidence that she claimed showed the Israeli government went
after her innocent family members. Viewing the administrative
record as a whole however, we conclude substantial evidence
supports the BIA’s conclusion that Dr. Ashqar’s “additional
alleged activities in support of Hamas in the United States, and
other intervening events, do not show that the Israeli
government, which did not persecute [Mrs. Ashqar] in the past,
is now inclined to do so.” (J.A. 18.); cf. Chen, 195 F.3d at
14
200-01, 203-05 (ruling that a couple who showed no proof of past
persecution when they previously violated China’s “one child”
policy did not sufficiently demonstrate they faced a reasonable
possibility of persecution if they returned with another child,
their second violation of the policy.)
Mrs. Ashqar testified that her nephew was detained and
tortured by Israeli authorities in 1999 and “the only thing they
asked him about was his uncle, [Dr. Ashqar], and his connections
to Hamas.” (J.A. 103 (emphasis added); see also J.A. 184.) The
BIA found that this testimony was contradicted by the nephew’s
affidavit however. The nephew’s affidavit shows that the
Israeli authorities believed the nephew himself was a member of
HAMAS:
[The Israeli interrogators] accused me of being a
member of Hamas. I was told by the interrogators that
people confessed against me during their
interrogation. My response was let them face me. I
told them that I am not a member of Hamas and never
have been a member of Hamas. Also, the interrogator
accused me of being detained by the Jordanians,
Americans and the Palestinians. I told them that was
not true and I was never detained by any one [of] the
above governments or anyone. Finally, they accused me
of talking to my uncle, Abdelhaleem, on a regular
basis and therefore, I must be involved with him for
Hamas. I denied all charges.
(J.A. 547.) It is thus not compelling evidence that Mrs.
Ashqar, who is not herself tied to HAMAS, would be targeted.
Mrs. Ashqar also offered evidence that the Israeli Army
searched the Ashqars’ home in the Occupied Territories twice in
15
1995 because they believed Dr. Ashqar had returned from the
United States and had a warrant for his arrest. But the BIA
ruled that “it is mere speculation to infer from this that the
military would have persecuted [Mrs. Ashqar] had she been
present or that they will do so now or in the future.” (J.A.
17.) We have to agree. The fact that the Israeli Army entered
the home pursuant to a warrant for Dr. Ashqar’s arrest is not
evidence of persecution of Dr. Ashqar, much less his wife. See
Abdel-Rahmen, 493 F.3d at 452 (“the potential for a criminal
prosecution in an applicant’s native country does not alone
constitute persecution”).
Additionally, the BIA held that Mrs. Ashqar “failed to show
a documented pattern of the Israeli government persecuting the
innocent wives of alleged or actual Hamas members who have not
been directly implicated in terrorist attacks . . . .” (J.A.
17.) Mrs. Ashqar asserts that the BIA erred by considering her
the wife of a suspected member of HAMAS, rather than a political
dissident. It is unclear why Mrs. Ashqar believes she would be
more likely to be persecuted as a wife of a political dissident
than as a wife of a suspected HAMAS member, particularly when
much of her own argument for asylum rests on the assumption that
she faces more danger now that Dr. Ashqar has been publicly tied
to HAMAS through the publication of the 1994 book and the
incidents with the grand juries. Nonetheless, assuming arguendo
16
that it would be in her favor to be considered a family member
of a political dissident rather than suspected member of a
terrorist group, we find that substantial evidence supports the
BIA’s determination.
The record is replete with evidence that Dr. Ashqar was a
suspected member of HAMAS, including a 2001 FBI report in which
Dr. Ashqar was deemed “a member of the HAMAS U.S. leadership.”
(J.A. 1015.) Although Mrs. Ashqar argues that the allegations
against her husband were false, the record shows that she was
not in the best position to make that assessment. Besides her
obvious bias by the nature of their relationship, Mrs. Ashqar
remained ignorant of their finances and her husband’s business
pursuits. As the BIA noted, Mrs. Ashqar testified that “she did
not involve herself in his ‘business’ activities, was unaware of
what he did while traveling, and did not learn until years
later” about a $100,000 check her husband wrote “to a man later
designated as a terrorist.” (J.A. 18.) Therefore, it is
reasonable to conclude that Mrs. Ashqar’s testimony was
insufficient to overcome other evidence that Dr. Ashqar was
involved with HAMAS.
There is substantial evidence as well, to support the BIA’s
determination that Mrs. Ashqar failed to demonstrate a pattern
of Israeli authorities targeting the families of security
suspects. Mrs. Ashqar argues that this ignores articles she
17
submitted from human rights organizations about female relatives
of security suspects who have been detained without charge in
order to indirectly punish the accused.
However, also in the record are the 2003, 2004, and 2005
State Department country reports on Israel and the Occupied
Territories. Significantly, the State Department reports do not
recognize any retribution directed toward the family members of
political dissidents or HAMAS members not accused of terrorist
attacks. The State Department mentioned only that the HAMAS
members or political opponents themselves have been subject to
persecution. While the State Department made the finding that
Israeli forces demolish “the homes of the families and relatives
of those convicted of or suspected of committing terror attacks,
effectively punishing innocent Palestinians not implicated in
the attacks,” as the BIA noted, there was no evidence in the
record that Dr. Ashqar was ever suspected of such an attack.
(J.A. 948; see also J.A. 844, 881.)
The BIA relied on the State Department’s reports because it
apparently found the private organizations’ information to be
merely “anecdotal” and thus unpersuasive. We cannot fault the
BIA for preferring the State Department’s assessment.
A State Department report on country conditions is
highly probative evidence in a well-founded fear case.
Reliance upon these reports makes sense because this
inquiry is directly within the expertise of the
Department of State.
18
. . . .
. . . Absent powerful contradictory evidence, the
existence of a State Department report supporting the
BIA’s judgment will generally suffice to uphold the
Board’s decision. Any other rule would invite courts
to overturn the foreign affairs assessments of the
executive branch.
Gonahasa v. INS, 181 F.3d 538, 542-43 (4th Cir. 1999) (citations
and internal quotes omitted).
Although we have considerable sympathy for Mrs. Ashqar,
“our task is not to reweigh the evidence and determine which of
the competing views is more compelling. It is instead to ensure
that substantial evidence supports the BIA’s judgment.” Id. at
542. Accordingly, because we do not find that the evidence
compels only one reasonable conclusion in this case, we must
defer to the BIA’s decision.
III.
Pursuant to the foregoing, we deny Mrs. Ashqar’s petition
for review of the BIA’s denial of her request for asylum.
PETITION FOR REVIEW DENIED
19