Majd v. Gonzales ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
In the March 8, 2006
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
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m 05-60141
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LAOI SALAH MAJD; RAJAA TAHSIN NAJI BARAKAT; TAREQ LAOI MAJD,
Petitioners,
VERSUS
ALBERTO R. GONZALES,
UNITED STATES ATTORNEY GENERAL,
Respondent.
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Petition for Review of an Order of
the Board of Immigration Appeals
______________________________
Before KING, SMITH, and BENAVIDES, the Convention Against Torture (“CAT”). We
Circuit Judges. dismiss the petition in part and deny it in part.
JERRY E. SMITH, Circuit Judge: I.
A.
Laoi Majd, together with his wife and son Majd, a native of Libya holding a Palestin-
as derivative beneficiaries, petitions for review ian Authority (“PA”) passport, was admitted
of the denial by the Board of Immigration to the United States in January 2002 as a non-
Appeals (“BIA”) of his application for asylum, immigrant visitor. He overstayed his visa and
witholding of removal, and protection under in April 2003 was charged by the Department
of Homeland Security (“DHS”) with remov- by an Israeli soldier who demanded to know
ability under 8 U.S.C. § 1227(a)(1)(B) for re- their destination. Majd stated he was going
maining in the country longer than permitted. home, but the soldier ordered him back inside
In a September 2003 hearing before an im- the bank.
migration judge (“IJ”), Majd conceded he was
removable as charged but requested asylum, When the soldier was distracted by one of
witholding of removal, and protection under his comrades, Majd and the other person tried
CAT, or, in the alternative, voluntary depar- to escape. The soldiers ordered them to stop,
ture, claiming he was entitled to all such relief but when they did not obey the soldiers fired
because, as a Palestinian living in the West upon them. The other individual was shot, but
Bank, he had been persecuted by Israeli forces. Majd made it home safely. Majd testified that
he had done nothing to deserve detention but
confirmed that the building in which he
B. worked housed the office of a Fatah leader.
Majd testified as follows: Before entering
the United States, he and his family lived in In August 2001, Majd took a taxi from
Ramallah, where he and his wife were bankers. Ramallah to visit his father. While his taxi was
In March 2000, on returning to the West Bank in line at a security checkpoint, another taxi
from a vacation in Jordan, he was stopped by tried to change lanes and pass in front of
Israeli security forces at a checkpoint and another car. Because getting out of a check-
detained for hours. He did not say why he was point line is generally considered suspicious
detained, but he claimed that the security activity, the Israeli forces opened fire. A pas-
forces kicked him while walking up and down senger riding in the same taxi as Majd was
the corridor where he was being held and that shot and killed, and Majd fainted out of fear.
they questioned him about his job, family, and Majd eventually reached his destination and
party affiliations. While he was being de- did not testify that the Israeli forces were
tained, his wife, one month pregnant, had to sit shooting specifically at him.
in a chair for eight hours without food or
water. The PA occupied the ground floor and
basement of the building in which Majd lived.
In May 2000, Majd was arrested while on One day, after inspecting the location and sus-
his way to pick up his sister, was detained for pecting that some PA soldiers has escaped
two hours, and again was questioned regard- through the building, Israeli soldiers searched
ing his destination, family, job, and affiliations. the building from top to bottom, including
He stated that on both occasions when he was Majd’s home. The soldiers broke some ob-
detained, he presented the security forces with jects there, and Majd’s family was terrified,
an identification card indicating that he was a particularly after hearing shots fired in the
low security risk. building. It was that event that prompted
Majd and his family to take a vacation to the
In March 2001, as he was leaving the bank United States to “wait for the situation [in the
where he worked, Majd noticed tanks and sol- West Bank] to get better.”
diers in the street. The soldiers were “shoot-
ing from everywhere.” Majd and another per- After Majd his wife and son fled to the
son tried to leave the area but were confronted United States, numerous problems befell his
2
family remaining in the West Bank. His cousin fired upon.
was detained by Israeli forces, and the cousin’s
blacksmith shop was destroyed. Majd’s II.
brother was detained for three months under After hearing this evidence, the IJ denied
an Israeli law that permits judges to authorize Majd’s applications for asylum, witholding of
administrative detention for that length of removal, and relief under CAT but granted him
time.1 Majd’s family, who raised vegetables in voluntary departure, allowing him sixty days to
addition to holding other jobs, could not bring leave the country of his own accord.2 The IJ
their harvest to market because of the general ordered Majd forcibly removed to Israel if he
unrest in the area and the fact that “everything did not depart during that sixty-day period.
is closed and surrounded by Israeli authori-
ties.” In particular, the wall the Israelis are The IJ determined that although Majd was
building to secure the West Bank border runs credible, the mistreatment he suffered did not
through the middle of his family’s olive groves, constitute persecution on account of one of
depriving them of their land. the five statutory grounds that rendered an
individual eligible for asylum and/or witholding
Majd offered the testimony of his brother, of removal. The IJ found that the harm in-
Modard Salah Jousef Majd, via telephone. flicted on Majd did not rise to the level of
The brother confirmed that he had been taken torture, so relief under CAT was unavailable.
and detained for three months by the Israelis
after telling them that Majd had gone to the The BIA affirmed without opinion. Majd
United States. He also confirmed the destruc- appeals and further contends that he is a refu-
tion of the family’s olive groves and stated that gee under the 1951 Convention Relating to the
because o f his experiences, he is essentially Status of Refugees and that the United States’
confined to his village. The telephonic testi- handling of Palestinian asylum claims such as
mony of Majd’s father similarly confirmed his violates the ABC Settlement Agreement,
Majd’s accounts. which arose out of a class action lawsuit by
immigrants of certain nationalities against the
Majd also offered the testimony of Emily immigration authorities.
Watchsmann, a student at the University of
North Texas who had visited the West Bank in III.
conjunction with an organization known as the A.
International Solidarity Movement. Watchs- Generally, we have authority to review only
mann commented on the general conditions of the decision of the BIA, but where, as here,
unrest in the West Bank but stated that she the BIA summarily affirms the IJ’s decision
had no personal knowledge of Majd’s experi- without opinion, we review the IJ’s decision.
ences and had never been to Ramallah. She See Mikhael v. INS, 115 F.3d 299, 302 (5th
explained the usual procedure at security Cir. 1997). Although we review the legal con-
checkpoints and suggested that any vehicle
that attempted to evade a checkpoint would be
2
By statute, permission to depart the United
States voluntarily at the conclusion of removal pro-
1
Majd did not testify that his brother was mis- ceedings “shall not be valid for a period exceeding
treated during his period of detention. 60 days.” 8 U.S.C. § 1229c(b)(2).
3
clusions of the BIA and the IJ de novo, see id., 739 (3d Cir. 2005) (internal quotations and ci-
we review their factual findings for substantial tations omitted).
evidence. See Zhang v. Gonzales, 432 F.3d
339, 343-44 (5th Cir. 2005). Under the sub- There is a well-founded fear of persecution
stantial evidence standard, “reversal [of the IJ] if the alien has a subjective fear of persecution
is improper unless we decide ‘not only that the that is objectively reasonable. See Lopez-Go-
evidence supports a contrary conclusion, but mez v. Ashcroft, 263 F.3d 442, 445 (5th Cir.
[also] that the evidence compels it.’” Id. at 344 2001). “[A]n applicant’s fear of persecution
(quoting Zhao v. Gonzales, 404 F.3d 295, 306 cannot be based solely on general violence and
(5th Cir. 2005)). The alien bears the burden of civil disorder.” Eduard, 379 F.3d at 190.
proving the requisite compelling nature of the
evidence. See Chun v. INS, 40 F.3d 76, 78 Unlike asylum, witholding of removal is not
(5th Cir. 1994). discretionary. An alien may not be removed to
a particular country if it is determined that “the
B. alien’s life or freedom would be threatened in
The Attorney General has complete discre- that country because of the alien’s race, reli-
tion whether to grant asylum to eligible indi- gion, nationality, membership in a particular
viduals. “[A]sylum is not available to every social group, or political opinion.” 8 U.S.C. §
victim of civil strife, but is restricted to those 1231(b)(3)(A). To be eligible for witholding
persecuted for particular reasons.” Hallman v. of removal, an alien must demonstrate an
INS, 879 F.2d 1244, 1247 (5th Cir. 1989). To objective “clear probability” of persecution in
be eligible for asylum, an alien must prove that the proposed country of removal. INS v.
he is “unable or unwilling to return to . . . [his Stevic, 467 U.S. 407, 413 (1984). Because
home] country because of persecution or a the level of proof required to establish eligibil-
well-founded fear of persecution on account of ity for witholding of removal is higher than
race, religion, nationality, membership in a that required for asylum, failure to establish
particular social group, or political opinion.” eligibility for asylum is dispositive of claims for
8 U.S.C. § 1101(a)(42)(A). witholding of removal. See Eduard, 379 F.3d
at 186 n.2.
“Neither discrimination nor harassment or-
dinarily amounts to persecution under the [Im- To obtain relief under CAT, an alien must
migration and Nationality Act (“INA”)] . . . .” demonstrate not that he is a member of one of
Eduard v. Ashcroft, 379 F.3d 182, 188 (5th the five protected categories of individuals ar-
Cir. 2004). Similarly, “[p]ersecution is not a ticulated in the eligibility standards for asylum
limitless concept . . . . [I]t does not encom- and witholding of removal, but rather that it is
pass all treatment that our society regards as more likely than not that he will be tortured if
unfair, unjust, or even unlawful or unconstitu- he is removed to his home country. See Efe v.
tional. If persecution were defined that expan- Ashcroft, 293 F.3d 899, 907 (5th Cir. 2002).3
sively, a significant percentage of the world’s
population would qualify for asylum in this
countrySSand it seems most unlikely that Con- 3
The relevant regulation defines torture as
gress intended such a result. Persecution must
be extreme conduct to qualify for asylum pro- as any act by which severe pain or suffering,
tection.” Al-Fara v. Gonzales, 404 F.3d 733, (continued...)
4
To meet this burden, the alien may produce group. Rather, the Israeli forces were looking
evidence of past torture, an inability to relo- to apprehend other individuals believed to be
cate to a safer part of the country, human hiding in the building, an operation that re-
rights abuses committed within the country, quired a search of the entire building.
and any other relevant information. See 8
C.F.R. § 208.16(c)(3). Similarly, the IJ concluded that Majd was a
mere bystander to the shooting incident at the
IV. security checkpoint. That action by the Israeli
A. forces was again not directed specifically at
The IJ determined that Majd was ineligible Majd, but was precipitated by the suspicious
for asylum and withholding of removal be- activity of the occupants of another vehicle.
cause the evidence demonstrated that his suf- The IJ also found that the frustration of the
fering was the result of the generally danger- Majd family’s attempts to bring their harvest
ous conditions in the West Bank and did not to market and the destruction of the family’s
rise to the level of persecution on account of olive groves were caused by the pervasive
one of the five statutorily-protected grounds. unstable conditions in the region, not by Israeli
For example, with regard to the March 2001 actions directed at the family in particular.
incident at Majd’s place of employment, the IJ
found that the evidence suggested that the Is- With regard to the two occasions on which
raelis were attempting to apprehend a suspect- Majd was detained, the IJ found that he did
ed terrorist in the area and that they fired on not suffer any long-term deprivation of liberty
Majd not because he was a Palestinian, but be- or permanent physical injury. Accordingly, the
cause he disobeyed a soldier’s order. IJ concluded that though the detentions could
be considered harassment, they did not consti-
The IJ found that the search of Majd’s tute persecution.
house was not an action directed specifically at
Majd because of his race, nationality, religion, Finally, the IJ determined that the detention
political affiliation, or membership in a social of Majd’s brother and cousin shed no light on
how Majd would likely be treated on returning
to Israel, because those detentions were the re-
3
(...continued) sult of circumstances specific to each man.4
whether physical or mental, is intentionally in- Given that none of Majd’s suffering rose to the
flicted on a person for such purposes as obtain- level of persecution on account of one of the
ing from him or her or a third person informa- five relevant statutory factors, the IJ concluded
tion or a confession, punishing him or her for that Majd did not have a well-founded fear of
an act he or she or a third person has committed future persecution.
or is suspected of having committed, or in-
timidating or coercing him or her or a third
4
person, or for any reason based on discrimina- Majd’s brother was detained because the Is-
tion of any kind, when such pain or suffering is raelis were investigating reports that there was a
inflicted by or at the instigation of or with the weapons manufacturing facility located in the
consent or acquiescence of a public official or building in which he lived. Majd’s cousin was de-
other person acting in an official capacity. tained and his blacksmith shop destroyed because
the Israelis suspected he was using the shop to
8 C.F.R. § 208.18(a)(1) (2000). manufacture weapons.
5
The record fully supports the IJ’s determi- larly well, it cannot be said that roughing an
nation regarding Majd’s ineligibility for asylum individual up and questioning him about his
and witholding of removal, and Majd points to work, family, and political affiliations amounts
no evidence that compels any contrary conclu- to torture.
sion. Indeed, every piece of evidence pre-
sented by Majd indicates that he and his family Similarly, the Israeli soldiers were certainly
have been the victims of circumstance, not the intending to harm Majd when they shot at him
special targets of brutality. As another circuit outside the bank. They did not so intend,
stated with regard to a region living under however, with a discriminatory purpose or a
disorder similar to that existing in the West goal of extracting information or a confession
Bank, “[t]he general political upheaval that has from Majd, but rather because they were try-
been the unfortunate reality in Gaza is obvi- ing to halt his escape. Thus, Majd’s claim for
ously threatening for those who live there, but relief under CAT fails.
such conditions in and of themselves do not
merit asylum.” Al-Fara, 404 F.3d at 742. Ac- V.
cordingly, we have no basis to question the Majd contends that he qualifies as a refugee
IJ’s denial of asylum and withholding of re- pursuant to the 1951 Convention Relating to
moval. the Status of Refugees (the “1951 Conven-
tion”) and attendant United Nations protocol.
B. He further argues that the handling of Pales-
With regard to Majd’s claim for relief under tinian asylum claims such as his violates the
CAT, the IJ found that none of the harm done ABC Settlement Agreement, which arose out
to Majd constituted “severe pain or suffering of a class action lawsuit by immigrants from El
. . . intentionally inflicted [upon him] for such Salvador and Guatemala challenging the man-
purposes as obtaining from him . . . or a third ner in which United States immigration au-
person information or a confession, punishing thorities processed asylum claims filed under §
him . . . for an act he . . . or a third person has 208(a) of the INA. See Am. Baptist Churches
committed or is suspected of having commit- v. Thornburgh, 760 F. Supp. 796, 799 (N.D.
ted, or intimidating or coercing him . . . or a Cal. 1991). Because, however, these claims
third person, or for any reason based on dis- were not raised before the IJ or the BIA, we
crimination of any kind . . . .” 8 C.F.R. § lack jurisdiction to consider them and must
208.18(a)(1) (2000) (emphasis added). dismiss the petition for review in regard to
those issues. See Goonsuwan v. Ashcroft, 252
Again, Majd has brought forth no evidence F.3d 383, 388-89 (5th Cir. 2001) (stating that
that compels us to reverse the IJ. Most of the Ҥ 106(c) [of the INA] contains a jurisdictional
suffering he described was inflicted without bar where an issue sought to be raised was not
any specific intent on the part of the Israeli first presented to the agency”).
forces in the West Bank. Additionally, on the
two occasions when Majd was detained, the Majd’s petition for review is accordingly
harm inflicted by the Israelis, although inten- DISMISSED in part and DENIED in part.
tional and for the purpose of extracting infor-
mation, did not rise to the level of severe pain
or suffering. Majd was held for only a short
time, and although he was not treated particu-
6