Darwich v. Holder ( 2013 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 12-1336
IMAD ALI DARWICH; RANA SAAD DARWICH,
Petitioners,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Souter,* Associate Justice,
and Lipez, Circuit Judge.
Saher J. Macarius, Avni J. Amin, and Audrey Botros on brief
for petitioners.
Kathryn M. Mckinney, Attorney, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, Stuart F.
Delery, Acting Assistant Attorney General, and Stephen J. Flynn,
Assistant Director, on brief for respondent.
June 24, 2013
*
Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
SOUTER, Associate Justice. Petitioners, Imad Ali Darwich
and Rana Saad Darwich, seek review of a Board of Immigration
Appeals (BIA) decision, dismissing their appeal of an Immigration
Judge’s decision finding them removable. We deny the petition.
I
Petitioners are Lebanese citizens, raised Muslim, who
lived in Lebanon until 2001, when they resettled in the Ivory
Coast. They converted to Christianity in 2005 during a visit to
the United States, and upon their return to the Ivory Coast they
received a number of threats, which they plausibly attributed to
the Muslim population’s reaction to their religious conversion.
They traveled to the United States again and were admitted on
six-month visas in 2006, though they remained beyond the expiration
date. Despite a timely request for asylum, the United States began
proceedings for removing them to Lebanon, which they resisted
because they associate its large Muslim population with the threats
they received in the Ivory Coast.
The Immigration Judge (IJ) found them removable by
“clear, convincing, and unequivocal evidence.” AR 95-96.
Specifically, the IJ determined that even the Ivory Coast threats
did not rise to the level of past persecution on account of
religion or any other ground that might have supported petitioner’s
claims, and found that in any event they “do not have a
well-founded fear of returning to the country of Lebanon on account
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of their religion or any of the other enumerated grounds.” AR 98.
The IJ, therefore, rejected petitioners’ claims for asylum and
withholding of removal, and likewise found that they qualified for
no protection from removal under the Convention Against Torture
(CAT).
On appeal, the BIA dismissed their request for relief,
finding that petitioners had proven neither past persecution in
Lebanon, nor a well-founded fear of future persecution there,
stemming from a likelihood that Lebanon’s majority Muslim
population would carry out the threats made in the Ivory Coast.
The BIA also rejected petitioners’ claim that CAT prohibited their
transfer to Lebanon owing to a likelihood that they would be
tortured there.
Petitioners filed a petition for review in this court,
which has jurisdiction under 8 U.S.C. § 1252. See Jianli Chen v.
Holder, 703 F.3d 17, 21 (1st Cir. 2012).
II
“Because the BIA adopted the IJ’s opinion as well as
commenting separately, we review the two decisions as a unit.”
Lopez Perez v. Holder, 587 F.3d 456, 460 (1st Cir. 2009).
“[A]dministrative 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), and our review, accordingly,
is highly deferential, see Arevalo-Giron v. Holder, 667 F.3d 79,
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81-82 (1st Cir. 2012). See also Lopez de Hincapie v. Gonzales, 494
F.3d 213, 218 (1st Cir. 2007) (observing that this standard “is not
petitioner-friendly”). Legal determinations receive de novo
review. See Aponte v. Holder, 683 F.3d 6, 10 (1st Cir. 2012).
A
Petitioners argue that the BIA erroneously found that
they failed to qualify for asylum, which may be granted “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). The term
“persecution,” as it is used in § 1101, “connotes a level of harm
that ‘add[s] up to more than mere discomfiture, unpleasantness,
harassment, or unfair treatment,’” Gilca v. Holder, 680 F.3d 109,
114 (1st Cir. 2012) (quoting Nikijuluw v. Gonzales, 427 F.3d 115,
120 (1st Cir. 2005)), and “always implies some connection to
government action or inaction.” Harutyunyan v. Gonzales, 421 F.3d
64, 68 (1st Cir. 2005). “[A]n alien must pass both a subjective
test (by showing that she genuinely fears persecution) and an
objective test (by showing an objectively reasonable basis for that
fear).” Lopez Perez, 587 F.3d at 461-62.
Because the Government intends to remove petitioners to
Lebanon, they must show that they were persecuted in Lebanon or
have a well-founded fear of future persecution there. See 8 U.S.C.
§ 1101(a)(42)(A). In his testimony, Darwich disclaimed that they
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had ever been persecuted in that country, and their request,
therefore, is predicated exclusively on a fear of persecution upon
their return, on account of their conversion to Christianity.1 As
to that, they testified about their apprehension and offered
documentary evidence that they said demonstrates persecution
against Muslim converts to Christianity in Lebanon, but the BIA
found that petitioners had failed to prove the well-founded fear
that the law requires.
Substantial evidence supported this determination. See
Lopez de Hincapie, 494 F.3d at 218. Whether or not petitioners
genuinely believe that they will be persecuted by practicing
Muslims, at the very least they failed to prove an “objectively
reasonable basis” for fearing persecution that would implicate the
government of Lebanon, which it was their burden to show. Lopez
Perez, 587 F.3d at 461-62; see Harutyunyan, 421 F.3d at 68. The
documents they submitted almost exclusively concern other
1
Throughout their brief, petitioners argue that they have
presumptively shown a credible fear of future persecution in light
of their past persecution. To be sure, they would be entitled to
such a presumption upon a finding of relevant past persecution. See
8 C.F.R. § 1208.13(b)(1). But as the IJ and BIA found, their
allegations of past persecution exclusively concern conduct in the
Ivory Coast, which gives rise to no such presumption about future
conduct in Lebanon. Although petitioners argue that their
experience in the Ivory Coast provides an objective basis to fear
future persecution in Lebanon, they have failed to allege any
concrete connection between their past persecution in the Ivory
Coast and potential persecution in Lebanon. On the deferential
review appropriate here, we have no sufficient basis to reject the
administrative findings.
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countries, and the one piece of written evidence specific to
Lebanon fails to meet their burden. This document purports to be
a response to an enquiry addressed to the “Office of the Mufti in
Lebanon,” advising that an unrepentant apostate from Islam “should
be put to death” by “the imam (ruler or leader in Islam).”2 AR
214-215. Although the version in English bears a date in 2008, the
date of this advice is unknown, and it refers to a request made
“[s]everal years ago.” Nothing is disclosed about its translator
from (supposedly) the original Arabic, and nothing attests to its
authenticity. Just as significantly, not even the text itself
suggests that the Lebanese government would overlook such an
infliction of death by a religious authority, which must be shown
before even an otherwise reasonable fear of persecution can qualify
as a ground for asylum.
Indeed, to the extent the record addresses a possible
government role, the evidence supports doubt that religious
execution would be tolerated. As the BIA explained, the Lebanese
Constitution guarantees equal Muslim and Christian representation
in the government. According to a 2009 State Department report, 12
2
Petitioners submitted a number of other documents to the IJ
and BIA, but as they note in their brief, these sources concerned
“similarly situated” countries, not Lebanon, Pet’rs’ Br. 11, and so
fail to provide an objective basis on which to find a well-founded
fear of future persecution in Lebanon. To the extent petitioners
have offered new evidence that was not presented to the IJ and BIA,
we do not consider it, as we only assess the record on which the
tribunals below based their decisions. See 8 U.S.C.
§ 1252(b)(4)(A).
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of the 18 official religions in Lebanon are Christian
denominations, and Lebanon is a refuge for those (including
Christians) fleeing religious persecution in neighboring countries.
Since granting the petition for review would require the evidence
to “point[] unerringly in the opposite direction [from the BIA’s
decision],” Laurent v. Ashcroft, 359 F.3d 59, 64 (1st Cir. 2004),
this record falls far short of calling the administrative denial of
asylum into question.3
Petitioners also say that the BIA erred by rejecting
their claim for withholding of removal, but their position is even
weaker here. Withholding of removal will be granted only on
showing a “clear probability” that petitioners’ life or freedom
will be threatened upon return. See 8 U.S.C. § 1231(b)(3)(A); Teng
v. Mukasey, 516 F.3d 12, 15 (1st Cir. 2008). Because withholding
thus implicates a higher burden of proof, rejection of petitioners’
asylum claim necessarily dooms withholding of removal. See Lobo v.
Holder, 684 F.3d 11, 19-20 (1st Cir. 2012) (noting that “if a
petitioner cannot meet the lesser burden for establishing
eligibility for asylum, then, sure as night follows day, so too
will it hold true that he will be unable to satisfy the higher
standard for withholding of removal.”).
3
Petitioners also take issue with the BIA’s failure to assess
whether the persecution they are said to have suffered in the Ivory
Coast was on the basis of their religion, in rejecting their asylum
claim. But the BIA rejected asylum on other grounds, obviating any
need to make the specific finding that petitioners now request.
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B
Finally, petitioners contend that CAT required the BIA to
forestall their return to Lebanon. For that to be so, petitioners
would have had to prove that “it is more likely than not that
[they] would be tortured if removed” to Lebanon. 8 C.F.R.
§ 1208.16(c)(2). The BIA found that no such showing had been made,
and in this court petitioners cite nothing in the record to disturb
that finding. Rather, they urge us to remand for the BIA to
discuss explicitly whether relief is warranted under the torture
statute. But the IJ was explicit in rejecting any such
possibility, stating that petitioners have not “made any claim that
they would be subjected to torture by the government of Lebanon,
nor any other party, if returned to the country of Lebanon,” AR 98-
99, and the BIA came to the same conclusion. No remand, therefore,
is warranted.
III
We accordingly deny the petition for review.
It is so ordered.
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