Soha Abdelhalim v. Eric Holder , 417 F. App'x 536 ( 2011 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0368n.06
No. 09-4276
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Jun 01, 2011
SOHA FAROUK FAHMY )
ABDELHALIM, ) LEONARD GREEN, Clerk
)
Petitioner, )
) ON APPEAL FROM THE BOARD OF
v. ) IMMIGRATION APPEALS
)
ERIC H. HOLDER, JR., Attorney )
General, )
)
Respondent.
Before: GIBBONS and WHITE, Circuit Judges; and OLIVER, Chief District Judge.*
JULIA SMITH GIBBONS, Circuit Judge. Petitioner Soha Abdelhalim (“Abdelhalim”)
appeals a final order of the Board of Immigration Appeals (“BIA”), affirming the decision of an
Immigration Judge (“IJ”), denying her request for asylum, withholding of removal, and protection
under Article III of the United Nations Convention Against Torture (“CAT”). For the following
reasons, we deny the petition for review.
I.
Abdelhalim was born in Kuwait but is a citizen of Egypt. Her parents live in Amman,
Jordan. After attending medical school in Egypt, Abdelhalim first came to the United States on a
visitor’s visa in 1996, but she changed to a student visa when she started studying for the Medical
*
The Honorable Solomon Oliver, Jr., Chief United States District Judge for the Northern
District of Ohio, sitting by designation.
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Licensing Exam (“MLE”). Abdelhalim passed the MLE, but she departed for Jordan in October,
1998, to assist her parents with family matters. In Jordan, she was prevented from working or even
obtaining a driver’s license, so she returned to the United States—again on a visitor’s visa—to “start
applying for hospitals, and [to] try to get into a training program.” But before she got into any
programs, she met her ex-husband. They were married in July 1999, and Abdelhalim gave birth to
a son, Anasar, in October 2000. Because her husband was in a residency program, he had a J-1
student visa, and she had a J-2 dependent’s visa.
The marriage was troubled. Abdelhalim reports that her ex-husband abused both her and
their son verbally and physically. She eventually contacted the police, which—had she not dropped
her case—would have caused her ex-husband to face nine months in jail for abuse. The two
divorced in 2004, and Abdelhalim was left with the child but no support or legal ability to find work.
Eventually, her ex-husband paid her $400 a month in child support, but it was not enough. In the
summer of 2007, Abdelhalim gave her ex-husband custody of their son because in her current job
as a dental assistant she barely made enough to support herself, let alone a child. Despite not having
custody, however, she was able to visit her son whenever she wanted.
Following her divorce, Abdelhalim lost the right to remain in the United States. She applied
for asylum on October 1, 2004,1 and the Department of Homeland Security (“DHS”) denied her
1
The regulations require an alien to file for asylum “within 1 year of the date of the alien’s
arrival in the United States.” 8 C.F.R. § 1208.4(a)(2)(i)(A). However, the one-year period may be
extended for “extraordinary circumstances.” See 8 C.F.R. § 1208.5(a)(5)(iv). Both the IJ and the
BIA found that Abdelhalim’s application was timely in light of the extraordinary circumstance of
her divorce. Because the government does not contest the timeliness of Abdelhalim’s application,
we do not address the question.
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application on April 10, 2007. That same day, DHS charged her with removability under §
237(a)(1)(B) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1227(a)(1)(B), as an alien
who had overstayed her nonimmigrant visa.
At a hearing before the IJ on February 4, 2008, Abdelhalim was the only witness to testify.
She explained that she had lived in Egypt as a student, that it was “risky” then, and that now—as
a single, divorced woman—it would be particularly dangerous, as she would be without any
protection. She also noted that her modern dress and potential employment put her at further risk
in Egypt because “everybody is supposed to be wearing the traditional clothes” and “going out and
working is not . . . acceptable.”
Abdelhalim noted many problems with Egypt. As a student, she heard about women being
attacked and raped while walking the streets, and now she fears returning to Egypt because the law
does not punish men for attacks against women. Although she could practice medicine in Egypt, she
would have to work late nights, which would expose her during her walk home at night to precisely
the attacks she feared. Abdelhalim also noted that she has few connections in Egypt now and that
the old dean of her medical school has died, thus implying that it will be difficult for her to find
employment in Egypt.
Abdelhalim also voiced concerns about her son. She stated both that the environment in
Egypt is not safe for him and that her ex-husband could take the boy away from her under Sharia
law. She stated that one of his relatives could make the request, a court would order it, and the
police would come “grab” her son.
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When asked if she could return to Jordan instead, Abdelhalim responded in the negative. She
explained that Jordan was not her country because her father is Egyptian. Although she was raised
in Kuwait, she stated that she could not return there because she is not a Kuwaiti citizen, nor could
she obtain a work visa to practice medicine in Kuwait because physicians’ salaries are very high in
the gulf states and competition for the right to work there is too fierce.
In addition to her testimony, Abdelhalim submitted several articles and the State
Department’s 2006 Country Report for Egypt to buttress her claims regarding torture, rape,
opportunities for women, and Sharia law. On torture, the Report indicated that torture “is pervasive
in Egyptian detention centers,” listed numerous political opponents and others who had been tortured
while being held in detention centers, and noted that the government failed to investigate instances
of police abuse. The Report concluded that the Egyptian government’s “respect for human rights
remained poor.” The Report noted that spousal rape is permitted and that some 47.4% of Egyptian
women have suffered some form of domestic violence. Non-spousal rape, however, is illegal,
although some activists stated rape is “not uncommon, despite strong social disapproval.” With
regard to employment opportunities, the Report stated that the law provides equal pay for men and
women in public-sector jobs. Women make up 17% of private business owners and hold 25% of
managerial positions in the country’s four largest banks. Educated women “had employment
opportunities, but social pressure against women pursuing a career was strong.” And on Sharia law,
one of Abdelhalim’s articles noted, “despite declarations of the equality of the sexes before God,
women are considered inferior to men, and have fewer rights and responsibilities.” A State
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Department report on Islamic Family Law conceded that, in the event of divorce, the father will
always gain possession of a son, although a daughter may be permitted to remain with her mother.
The IJ found Abdelhalim credible, but concluded that the evidence to allow her to remain
was weak. The IJ noted that Abdelhalim has not suffered any past persecution and therefore does
not enjoy the statutory presumption of a well-founded fear of future persecution. Her fear of
returning to Egypt centered on three points: (a) if she took her son to Egypt, her ex-husband could
take him away from her under Sharia law; (b) if she goes to Egypt as a single, divorced woman she
would likely be a victim of crime, including rape; and (c) as a “modern woman” who does not abide
by traditional Muslim dress or other practices, she will face persecution.
The IJ did not find that these arguments justified granting asylum. As to her son, the IJ noted
that the boy lives with his father and is a United States citizen. The evidence shows no reason
Abdelhalim’s son would have to go with her to Egypt; rather, the evidence suggests he would remain
in the United States with his father. As to crime, the IJ noted that “becoming a victim of crime
generally is not a basis for asylum” because crime affects all people. That women may suffer more
from crime than men does not make Abdelhalim “a member of a particular social group.” The IJ
conceded that women face discrimination in Egypt but did not find any evidence that “modern
women” are persecuted. Rather, the IJ found that Abdelhalim’s “concerns are not supported by the
evidence that she has submitted.” The IJ noted that, according to the Report, women make up a
substantial proportion of professionals and have employment opportunities. The IJ believed that
Abdelhalim would have good employment prospects as a physician who has passed the MLE. The
IJ conceded that Abdelhalim might have to work late or irregular shifts and thus have to commute
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home late at night in potentially dangerous circumstances, but the IJ dismissed this as an
unconvincing argument by noting that “in many, many locations in the United States . . . this same
fear is justified.” Moreover, the IJ found there is no reason Abdelhalim could not have a car in
which to commute safely. The IJ thus concluded that, although Abdelhalim might subjectively have
real fears about returning to Egypt, “the evidence . . . does not support the idea that those fears are
objectively reasonable.”2
The IJ determined that Abdelhalim had not experienced past persecution or presented
evidence sufficient to establish a well-founded fear of future persecution on account of the factors
enumerated by the INA. Having failed to meet the threshold for an asylum claim, the IJ also found
Abdelhalim “necessarily failed to meet the higher standard required to prove her eligibility for relief
in the form of withholding of removal under Section 241 of the [INA].” Finally, the IJ noted that
she had presented “no evidence of any sort to establish that she would be subjected to torture by, or
at the instigation of, or with the acquiescence of the government of Egypt” and thus failed to prove
eligibility for withholding of removal under the CAT. The IJ therefore ordered that Abdelhalim be
removed to Egypt and that her applications for asylum, withholding of removal, and protection under
the CAT be denied.
The BIA reviewed the IJ’s decision as to law and fact, affirmed the decision, and dismissed
Abdelhalim’s appeal. The appeals panel noted that Abdelhalim “was unable to meet her burden of
proof for relief or protection.” Although the BIA noted potential problems Abdelhalim might face
2
The IJ also noted that Abdelhalim has both parents and siblings in Jordan, but she did not
explain why she could not live there. (AR 76.)
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in Egypt, it concluded that her fear “remains generally speculative.” The BIA found the submitted
evidence insufficient to demonstrate that she would be “targeted for persecution on account of a
ground enumerated in the definition of refugee found in the [INA].” Therefore, Abdelhalim failed
to establish her eligibility for asylum and, having failed that lower standard, necessarily failed the
higher burden for withholding of removal. The BIA concluded by finding that Abdelhalim had also
failed to meet her burden of proof with respect to the CAT.
The matter now comes before this court.
II.
This court’s review is restricted to the administrative record. 8 U.S.C. § 1252(b)(4)(A).
Where the BIA affirms the IJ’s ruling but adds its own comments, this court reviews both the IJ’s
decision and the BIA’s remarks. Karimijanaki v. Holder, 579 F.3d 710, 714 (6th Cir. 2009) (citing
Gilaj v. Gonzales, 408 F.3d 275, 283 (6th Cir. 2005)).
Where the BIA reviews the IJ's decision and issues a separate opinion, rather than summarily
affirming the IJ’s decision, this court reviews the BIA’s decision as the final agency determination.
Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009) (citing Morgan v. Keisler, 507 F.3d 1053, 1057
(6th Cir. 2007)). However, to the extent the BIA adopted the IJ’s reasoning, this court also reviews
the IJ’s decision. Id.; see also Patel v. Gonzales, 470 F.3d 216, 218 (6th Cir. 2006). Questions of
law are reviewed de novo, but substantial deference is given to the BIA’s interpretation of the INA
and accompanying regulations. Khalili, 557 F.3d at 435. “The BIA’s interpretation of the statute
and regulations will be upheld unless the interpretation is arbitrary, capricious, or manifestly contrary
to the statute.” Id. (internal citations and quotation marks omitted).
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“[T]he administrative findings of fact are conclusive unless any reasonable adjudicator would
be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Findings of fact are reviewed
under the deferential substantial evidence standard and “must be upheld if supported by reasonable,
substantial, and probative evidence on the record considered as a whole.” Mikhailevitch v. I.N.S.,
146 F.3d 384, 388 (6th Cir. 1998) (quoting I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 (1992)).
Under this standard, this court may reverse if the evidence presented “not only supports a contrary
conclusion, but indeed compels it.” Id. (quoting Klawitter v. I.N.S., 970 F.2d 149, 152 (6th Cir.
1992). This court will not reverse simply on the ground that it would have decided the matter
differently. Koliada v. I.N.S., 259 F.3d 482, 486 (6th Cir. 2001). Rather, this court will look to the
evidence presented to determine if “a reasonable factfinder would have to conclude” that Abdelhalim
established her claims for asylum, withholding of removal, or protection under the CAT. See Elias-
Zacarias, 502 U.S. at 481.
III.
To establish her claim for asylum, Abdelhalim must establish that she is a refugee within the
meaning of §101(a)(42) of the INA, which provides, in relevant part:
‘refugee’ means . . . any person who is outside any country of such person’s
nationality . . . and who is unable or unwilling to return to . . . that 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). Abdelhalim bears the burden of proof. 8 C.F.R. § 1208.13(a). To prevail,
she must show that the potential harm rises to the level of persecution on account of one of the
protected grounds and that the government, or persons the government is unable or unwilling to
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control, is the source of the persecution. Pilica v. Ashcroft, 388 F.3d 941, 950–51 (6th Cir. 2004).
“[H]arassment or discrimination without more does not rise to the level of persecution.”
Mikhailevitch, 146 F.3d at 389. An applicant who has suffered past persecution enjoys a rebuttable
presumption that she has a well-founded fear of future persecution, 8 C.F.R. § 1208.13(b)(1), but
the IJ and BIA found that Abdelhalim did not suffer past persecution, and she does not challenge that
finding on appeal.
Abdelhalim’s argument that she has a well-founded fear of future persecution centers on law
from other circuits and general statements about fear of persecution. This court must uphold the
BIA’s decision—even if the panel would have decided the matter differently, Koliada, 259 F.3d at486—provided the decision is supported by substantial evidence. As our review of the record
indicates, the record in this case does include reasonable, substantial, and probative evidence
supporting the IJ and BIA’s decisions. Because the decision is supported by substantial evidence,
while Abdelhalim has offered no evidence that compels a different conclusion, we deny the petition
for review of the BIA decision.
Abdelhalim relies on a Ninth Circuit opinion in support of her argument that she has a well-
founded fear of future persecution. The court in that case states: “[d]iscrimination, harassment, and
violence by groups the government is unwilling or unable to control can also constitute persecution.”
Singh v. I.N.S., 94 F.3d 1353, 1359 (9th Cir. 1996). Singh, however, is not binding on this court, and
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it is directly contradicted by our post-Singh precedent that “harassment or discrimination without
more does not rise to the level of persecution.” Mikhailevitch, 146 F.3d at 389.3
Abdelhalim’s brief is also incorrect in that she argues that “the regulations do not define what
constitutes a pattern or practice of persecution,” implying that this panel can define persecution
however it wishes. We disagree. Abdelhalim’s application focuses on crime, and this court has
previously held that “[the] fear of crime . . . [is] legitimate but [is] not relevant to [her] fear of future
. . . persecution.” Koliada, 259 F.3d at 488.4 Abdelhalim offers no compelling argument that the
IJ or BIA applied the wrong legal standards.
Abdelhalim focuses much of her brief on an argument that the record facts, as argued and
presented to the IJ, show she had a well-founded fear of future persecution. This court, however,
must uphold the IJ and BIA’s factual findings unless the evidence compels us to hold otherwise. We
find that Abdelhalim’s recitation of the same facts previously raised before the IJ offers no ground
for reversal. Her brief notes that “Egypt’s human rights record remains poor” and includes
“discrimination and violence against women.”5 But as noted above, discrimination and crime are
3
Abdelhalim also emphasizes that persons other than the government can be the cause of
persecution. While this point is true, it applies only to “persons a government is unwilling or unable
to control.” Pilica, 388 F.3d at 950. Because Egypt has laws making crimes against single,
divorced, women illegal and these laws are enforced, Abdelhalim’s emphasis on persecution by other
groups is misleading.
4
Koliada is slightly different from this case in that Koliada’s fear was of political persecution,
which Abdelhalim is not alleging. However, Koliada establishes that a general fear of crime is not
relevant to a fear of future persecution, and we see no reason to distinguish that holding here.
5
Whether the situation in Egypt is still the same today, in light of the recent revolution and
changing political circumstances, is unclear. Our current review is limited to the administrative
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not enough to establish persecution. Additionally, not only is discrimination not persecution, but
also the extent of discrimination against women in Egypt is debatable considering that women may
be employed and hold a substantial proportion of professional jobs. Moreover, Abdelhalim offers
no evidence that any harm that would come to her would stem from the government or groups that
the government cannot control; quite the contrary, the crime and harassment she fears is illegal under
Egyptian law. The Report does cite real violence that women face in Egypt, but that violence is
primarily domestic violence against married women. In summary, Abdelhalim has not offered a
compelling reason to reverse the IJ and BIA’s holding that she failed to show a well-founded fear
of future persecution and is not entitled to asylum.
To establish a claim for withholding of removal, Abdelhalim must either establish that “her
life or freedom would be threatened in the proposed country of removal on account of [her] race,
religion, nationality, membership in a particular social group, or political opinion,” 8 C.F.R. §
1208.16(b), or show “a clear probability that [she] will be subject to persecution if forced to return
to the country of removal.” Pilica, 388 F.3d at 951. This burden is “a more stringent burden than
what is required on a claim for asylum.” Id. Abdelhalim argues that she has met this burden “for
the reasons set forth herein,” but since her argument on appeal is simply a recitation of her initial
argument that both the IJ and BIA found insufficient for asylum, it follows that Abdelhalim’s appeal
does not compel reversal on the withholding of removal claim if reversal is not compelled for the
asylum claim.
record. 8 U.S.C. § 1252(b)(4)(A).
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Abdelhalim’s claim for protection under the CAT fails for similar reasons. To be protected
under the CAT, she must show it is “more likely than not that . . . she would be tortured if removed
to the proposed country of removal.” Liti v. Gonzales, 411 F.3d 631, 641 (6th Cir. 2005) (quoting
8 C.F.R. § 1208.16(c)(2)). Abdelhalim asserts that she qualifies because “she fears harm that would
constitute torture by the Government.” The IJ found, however, that Abdelhalim “has presented no
evidence of any sort to establish that she would be subjected to torture by . . . the government of
Egypt.” Although the Report states that torture does take place in Egypt, Abdelhalim has never
explained why she would be the victim of such torture. She offered no evidence to the IJ, and on
appeal, she makes no new argument save broad assertions. Assertions without evidence or support
do not compel us to reach a different conclusion.
IV.
For the foregoing reasons, we deny the petition for review.
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