Nasri G. Al Yatim v. Peter D. Keisler ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
Nos. 06-3321/07-1456
___________
Nasri George Al Yatim; *
Jihan Elias Al Yatim; Eyad Nasri *
Al Yatim; George Nasri Al Yatim, *
*
Petitioners, *
* Petition for Review
v. * of an Order of the
* Board of Immigration Appeals.
Michael B. Mukasey, United *
States Attorney General,1 *
*
Respondent. *
___________
Submitted: October 18, 2007
Filed: July 3, 2008
___________
Before RILEY, MELLOY, and COLLOTON, Circuit Judges.
___________
RILEY, Circuit Judge.
The Immigration and Naturalization Service (INS) initiated removal
proceedings against Nasri George Al Yatim (Al Yatim) and his family, Jihan Elias Al
Yatim, Eyad Nasri Al Yatim, and George Nasri Al Yatim (collectively, Al Yatims).
The Al Yatims requested asylum, withholding of removal, and protection under the
1
Michael B. Mukasey is substituted as United States Attorney General pursuant
to Rule 43(c)(2) of the Federal Rules of Appellate Procedure.
Convention Against Torture (CAT). An Immigration Judge (IJ) determined the Al
Yatims were not likely to experience either persecution on the basis of a protected
classification, or torture if returned to the Palestinian territory. The Board of
Immigration Appeals (BIA) affirmed. After the radical Islamic political group Hamas
won electoral control of the Palestinian Authority, the Al Yatims filed a motion to
reopen, arguing that changed country conditions warranted a reevaluation. The BIA
denied the motion to reopen. The Al Yatims challenge both the original agency
determination they were ineligible for relief, and the denial of their motion to reopen.
These petitions for review have been consolidated. We deny both petitions.
I. BACKGROUND
Al Yatim is a Palestinian Christian. Prior to coming to the United States, Al
Yatim lived with his family in Beit Sahour, near Bethlehem, in the Palestinian
territory of the West Bank. In the late 1980’s, many young Palestinians, mostly
Muslims, undertook an uprising against the Israeli government, known as the
“Intifada.” These Palestinians erected barricades and attacked the Israeli army by
throwing rocks and other projectiles. The Al Yatims’ house was located in the center
of the conflict. At night, the Israeli army required the Al Yatims, at significant risk,
to enter the street to clear rocks and other debris. During these clearings, the Al
Yatims were fired upon, and Al Yatim suffered a significant back injury from the
work, requiring surgery. Al Yatim was beaten several times by Israeli troops and his
parked car was destroyed by gun fire exchanged between the warring parties.
In 1995, the area came under control of the Muslim dominated Palestinian
Authority. In 2000, wide scale hostilities again erupted in a second “Intifada.” Al
Yatim testified that because many Christians were not participating in opposing the
Israelis, Muslim animosity toward the Christians increased. Muslims even began
firing weapons and throwing stones at the Israelis from Christian dominated
neighborhoods, in order to draw Israeli fire to those areas. The Al Yatims’ backyard
water tank and the windows of his home were damaged repeatedly.
-2-
The Al Yatims observed and experienced numerous individual difficulties with
Muslim Palestinians. Al Yatim testified (1) his friend was beaten after blowing his
horn at a Muslim driver; (2) he had some tools stolen and Palestinian authorities did
nothing; (3) the authorities would help Muslims, but would do little to help Christians;
(4) his business, making crosses and religious sculptures for tourists visiting
Bethlehem, was seriously vandalized by a Muslim employee, after Al Yatim declined
the employee’s request for a salary increase; and (5) Muslims would harass Christian
women, making sexual comments and touching them inappropriately.
After overstaying their visas and being charged with removability, the Al
Yatims conceded removability. The IJ denied asylum, withholding of removal, and
CAT relief. The BIA upheld this decision on appeal. After Hamas, a radical Muslim
group, won electoral control of the Palestinian Authority, the Al Yatims filed a motion
to reopen the BIA proceedings, on the basis that changed circumstances warranted
reconsideration. This motion was denied.
II. STANDARDS OF REVIEW
Where “[t]he BIA’s decision is the final decision of [the] agency . . . it is the
subject of our review.” Salkeld v. Gonzales, 420 F.3d 804, 808 (8th Cir. 2005)
(citation omitted). “To the extent, however, that the BIA adopted the findings or the
reasoning of the IJ, we also review the IJ’s decision as part of the final agency action.”
Id. (citation omitted). When we review a BIA determination regarding eligibility for
asylum, the BIA’s findings are reviewed under a substantial evidence standard. See
Zheng v. Gonzales, 415 F.3d 955, 959 (8th Cir. 2005). The BIA’s findings regarding
eligibility for withholding of removal or CAT relief are also reviewed for substantial
evidence. See Mouawad v. Gonzales, 485 F.3d 405, 413 (8th Cir. 2007). This is an
“extremely deferential standard of review[.]” Salkeld, 420 F.3d at 809. Under the
substantial evidence standard, the agency’s findings of fact “must be upheld unless the
alien demonstrates that the evidence he presented not only supports a contrary
-3-
conclusion but compels it.” Sultani v. Gonzales, 455 F.3d 878, 881 (8th Cir. 2006)
(citation omitted) (emphasis added).
III. RELIEF REQUIREMENTS
The Attorney General has discretion to grant asylum to a refugee. See
Makatengkeng v. Gonzales, 495 F.3d 876, 881 (8th Cir. 2007). To establish eligibility
for asylum, the Al Yatims must show they are “unable or unwilling to return to . . .
[the West Bank] 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)(A). “[P]ersecution is an extreme concept”
that excludes “[l]ow-level intimidation and harassment.” Shoaira v. Ashcroft, 377
F.3d 837, 844 (8th Cir. 2004) (internal quotation marks and citations omitted).
Persecution includes the credible threat of death, torture, or injury to one’s person or
liberty on account of a protected ground. See Regalado-Garcia v. INS, 305 F.3d 784,
787 (8th Cir. 2002). If past persecution is established, a well-founded fear of future
persecution must be presumed. 8 C.F.R. § 1208.13(b)(1). “Without the benefit of the
presumption, an asylum applicant may prove a well-founded fear of future persecution
by showing an objectively reasonable fear of particularized persecution.”
Makatengkeng, 495 F.3d at 881 (internal quotation marks and citation omitted). “The
fear must also be ‘subjectively genuine.’” Id. (citation omitted).
Although non-discretionary, “[t]he burden of proof for withholding of removal
is higher than that required for asylum.” Aziz v. Gonzales, 478 F.3d 854, 858 (8th
Cir. 2007) (citation omitted). To qualify for withholding of removal, the Al Yatims
must show a clear probability of persecution in the proposed country of removal on
the basis of race, religion, nationality, membership in a particular social group, or
political opinion. See Mouawad, 485 F.3d at 411 (citing 8 C.F.R. § 1208.16(b)).
To obtain CAT relief, the Al Yatims must show they will “more likely than not”
suffer torture if returned to Palestine. 8 C.F.R. § 1208.16(c)(2). “Torture is defined
-4-
as an act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted, and it is an extreme form of cruel and inhuman treatment; it
does not include lesser forms of cruel, inhuman, or degrading treatment.”
Krasnopivtsev v. Ashcroft, 382 F.3d 832, 840 (8th Cir. 2004) (citation omitted).
IV. DISCUSSION
A. Asylum
The Al Yatims assert two manners in which they will be subjected to
persecution if returned to the Palestinian territory. First, the Al Yatims contend they
were persecuted, and face future persecution, by the government of Israel on the basis
of their Palestinian ethnicity. Second, the Al Yatims claim they face persecution “at
the hands of the Muslim Palestinian authorities” on the basis of their Christianity.2
2
As an initial matter, the government contends the Al Yatims’ claim they
suffered persecution as members of a “particular social group” is waived for failure
to exhaust the issue during the agency proceedings, and failure to specifically
articulate the nature of the “particular social group” on appeal. During the agency
proceedings and on appeal, the Al Yatims only claimed persecution on the bases of
their religion and status as Palestinians. Thus, the government is correct that any
argument the Al Yatims were persecuted on account of their membership in any other
“particular social group” is waived. See 8 U.S.C. § 1252(d)(1); see also Viking
Supply v. National Cart Co., Inc., 310 F.3d 1092, 1099 (8th Cir. 2002) (stating “it is
not this court’s job to research the law to support an appellant’s argument.” (internal
alterations and citations omitted)). The Al Yatims may be arguing their religion and
ethnicity are the particular social groups on the bases of which they will be subject to
persecution. This is misguided, given that “religion” and “nationality” are separately
listed as protected classes. See 8 U.S.C. § 1101(a)(42)(A). We consider the Al
Yatims’ claims only as they relate to their religion and ethnicity.
-5-
1. Persecution by the Israeli Government
The IJ determined the Al Yatims failed to demonstrate they would be
persecuted by the Israeli government on the basis of their Palestinian ethnicity or
Christianity. The BIA affirmed this finding, noting “the lead respondent stated that
he does not fear harm from the Israeli government.” The BIA further determined the
difficulties the Al Yatims face in the Palestinian territories are not “on account of” a
protected ground, but rather simply due to a “general state of unrest throughout the
area.”
The record does not compel a different conclusion. As to the Al Yatims’
contention they faced past persecution from the Israeli government based upon their
status as Palestinians, the record supports the BIA’s determination that these
difficulties were part of a “general state of unrest throughout the area.” Such a
situation is typically insufficient to qualify as persecution. See Mohamed v. Ashcroft,
396 F.3d 999, 1003 (8th Cir. 2005) (“Harm arising from general conditions such as
anarchy, civil war, or mob violence will not ordinarily support a claim of
persecution.” (citations omitted)). There is no indication the Israelis’ treatment of the
Al Yatims was particularized as to them. On the contrary, Al Yatim admitted the
Israelis selected “any Arab they [could] get to clean the streets[,]” and the violence
surrounding their home was due to the home’s unfortunate location where “the
Muslims were at one end of the street and the Israelis at the other.” Thus, the
agency’s determination the Al Yatims did not face past persecution by the Israeli
government is supported by substantial evidence. See id. (“To be eligible for asylum,
the harm suffered must be particularized to the individual rather than suffered by the
entire population.” (citation omitted)).
Even without a showing of past persecution by the Israelis, the Al Yatims could
still earn relief by demonstrating a fear of particularized persecution that is both
objectively reasonable and subjectively genuine. Makatengkeng, 495 F.3d at 881.
-6-
However, as the BIA noted, the record belies such a finding, given that Al Yatim
testified he has no fear of the Israeli government.
2. Persecution by Muslim Palestinians
The IJ further found the Al Yatims had not suffered, and would not likely
suffer, persecution at the hands of Palestinian Muslims whom the authorities were
unwilling or unable to control. The IJ noted many of the harms the Al Yatims
identified were not based upon the Al Yatims’ religion, but arose out of road rage,
employment disputes, or generalized difficulties in the region. In so doing, the IJ
discounted affidavits and evidence indicating Muslims had told Al Yatim’s parents
they knew about the asylum application and the Al Yatims would be harmed if they
returned to the Palestinian territories. The IJ discounted this evidence because the
affidavits were (1) “double or triple hearsay,” (2) not notarized or authenticated, and
(3) their value was undercut by the fact Al Yatim’s parents voluntarily returned to the
region despite the supposed threats and persecution faced there.
The claim of persecution by Palestinian Muslims presents a closer question than
the claim relating to the Israeli government. Although the record might support a
different conclusion than that drawn by the IJ and BIA, the record does not compel it,
as required for us to grant relief. See Sultani, 455 F.3d at 881.
The Al Yatims’ situation is highly analogous to Lengkong v. Gonzales, 478
F.3d 859 (8th Cir. 2007). In Lengkong, the petitioner was an Indonesian Christian,
who had held leadership positions in her church. Id. at 861. On one occasion,
Lengkong and her husband were stopped in their car by a group of men wielding
sticks. Id. The men demanded the couple remove their “Jesus is my Savior” bumper
sticker, and smashed the car windows before the couple could drive away. Id. In a
separate incident, a group of people threw rocks at the couples’ home and vandalized
their fence. Id. During a third incident, Lengkong was singing in a choir at her
church when a group of people attacked, vandalized, and burned down the facility.
-7-
Id. Lengkong testified that, during all three of these incidents, the attackers yelled
“God is the Greatest!” and in the home incident they yelled “Finish the Christians!”
Id. at 861 n.2. Finally, while riding a bus and wearing a cross necklace, a man
approached Lengkong, pressed a knife against her, asked if she was a Christian, and
only left her alone when she gave him a gold ring. Id. at 861, 863. Even in the face
of such evidence of mistreatment on the basis of her religion, the court affirmed the
BIA’s denial of Lengkong’s request for asylum. Id. at 864. The panel affirmed the
IJ’s determination that not all of the incidents were religiously motivated because this
determination was supported by substantial evidence. Id. at 862. In so doing, the
court deferred to the agency’s interpretation that the attack on Lengkong’s home was
part of widespread violence, and not particularized to them. Id. The court also
deferred to the agency’s interpretation the attack on the bus was not religiously
motivated, but was simply “a criminal act of robbery,” notwithstanding the fact
Lengkong had been wearing a cross necklace and was asked if she was a Christian.
Id. at 862-63. Finally, although the court recognized what Lengkong described was
“serious[,]” the court concluded “the injuries suffered by [Lengkong] do not
conclusively rise to the level of persecution.” Id. at 863.
Likewise, although the Al Yatims had a hard life in the West Bank, the
difficulties they faced do not rise to the level of persecution. Even more so than the
petitioner in Lengkong, the Al Yatims mostly faced difficulties arising as a result of
generalized violence. For example, even though Al Yatim’s business involved
making crosses, the IJ reasonably interpreted the vandalism as relating to an
employment dispute rather than his Christianity, and the theft of his tools was simply
generalized crime. Although Al Yatim’s wife had been sexually harassed, such
treatment does not equate with the extreme concept of persecution. See Setiadi v.
Gonzales, 437 F.3d 710, 713 (8th Cir. 2006) (“Even minor beatings or limited
-8-
detentions do not usually rise to the level of past persecution.”).3 Finally, the IJ
reasonably discounted evidence Al Yatim’s parents had told him threats had been
made against the family. As the IJ noted, this evidence was unauthenticated, and the
fact the parents willingly returned to the region undercut the viability of their claim.
See Setiadi, 437 F.3d at 714.
B. Withholding of Removal and CAT Relief
The IJ denied withholding of removal and CAT relief, reasoning that because
the Al Yatims could not meet the lower standard required for asylum, they also could
not meet the higher standard needed to obtain withholding of removal, and had not
presented any evidence they would face torture if returned to the Palestinian territory.
This determination is, for the same reasons outlined in the previous section, supported
by substantial evidence. The conclusion is also legally correct. See Samedov v.
Gonzales, 422 F.3d 704, 708-09 (8th Cir. 2005) (explaining that if a petitioner is
found ineligible for asylum for failure to demonstrate a well-founded fear of
persecution, he is ineligible for withholding of removal, because it requires a clear
probability of future persecution). Additionally, although “[t]orture . . . is not
coterminous with persecution[,] . . . only in limited circumstances, such as when an
alien claims that torture would occur for a reason other than one of the statutory
grounds giving rise to refugee status . . . must an IJ examine a claim for relief under
[the CAT] separately from claims for asylum and for withholding removal[.]” Id. at
708. Because the reasons the Al Yatims claim they fear persecution are identical to
the reasons they claim they fear torture, the CAT claim fails alongside the Al Yatims’
asylum claim. See id. at 708-09 (concluding no independent consideration of a CAT
claim is required where the petitioner “[did] not predict any future acts against him
that would qualify as torture even if they failed to be persecution”).
3
The Al Yatims also point to difficulties encountered by friends and relatives.
The panel is, however, precluded from considering evidence not particularized to the
petitioners. See Lengkong, 478 F.3d at 863 n.5.
-9-
C. Motion to Reopen
Although the election of Hamas may cause increased difficulties for Christians
in the Palestinian territories, the Al Yatims have not identified any additional
difficulties they will face which would rise to the level of persecution. To support
changed country conditions, the Al Yatim’s submitted news articles reporting
parliamentary elections placing Hamas in control of the Palestinian territories. The
BIA found the articles did not demonstrate significantly changed country conditions.
After the Hamas election, acts of violence occurred, but for years before the election,
hostilities existed between the Palestinians and Israelis, and numerous incidents of
violence occurred, resulting in a general state of unrest. The BIA previously held
these previous conditions did not constitute persecution or torture of the Al Yatims
based on a protected ground under the Immigration and Nationality Act (INA). As
described earlier, the evidence does not compel a contrary ruling. The Al Yatims’
new evidence does not show country conditions have materially changed. Cf.
Quomsieh v. Mukasey, No. 07-2279, slip op. at 2 (8th Cir. April 18, 2008) (per
curiam) (unpublished).
The Al Yatims also have not explained how the new circumstances would
impact them specifically, as opposed to creating a generalized increase in regional
hostilities. This omission supports the conclusion the BIA did not abuse its discretion
in denying the motion to reopen. See Mohamed, 396 F.3d at 1003. The record also
demonstrates Al Yatim’s Christian parents have remained in the region unharmed,
which further undercuts the Al Yatims’ claim. See Setiadi, 437 F.3d at 714 (finding
no error in the agency’s determination the petition lacked a well-founded fear of
persecution where there was no showing of nationwide persecution of Christians, and
the petitioner’s family remained unharmed in a contentious region). Based on this
record, the BIA did not abuse its considerable discretion in denying the motion to
reopen.
-10-
V. CONCLUSION
The record does not compel a conclusion the BIA erred in finding the Al
Yatims ineligible for asylum, withholding of removal, or CAT relief. The BIA did not
abuse its discretion in denying the Al Yatims’ motion to reopen. The consolidated
petitions for review are denied.
______________________________
-11-