Abdel Malek v. Mukasey ( 2008 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 07-1851
ABDOU ABDEL MALEK and AMAL NASR SAMAAN,
Petitioners,
v.
MICHAEL B. MUKASEY,*
ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Howard, Circuit Judge,
Stahl, Senior Circuit Judge,
and Besosa, District Judge.**
Saher J. Macarius on brief for petitioner.
Drew C. Brinkman, Attorney, Office of Immigration
Litigation, Jeffrey S. Bucholtz, Assistant Attorney General, and
Francis W. Fraser on brief for respondent.
April 14, 2008
*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Michael B. Mukasey has been substituted for former Attorney General
Alberto R. Gonzales as the respondent.
**
Of the District of Puerto Rico, sitting by designation.
STAHL, Senior Circuit Judge. The Board of Immigration
Appeals (BIA) affirmed, per curiam, an Immigration Judge's (IJ's)
denial of Abdou Wehba Abdel Malek's1 claims for asylum, withholding
of removal, and protection under the Convention Against Torture
("CAT"). Malek, a native and citizen of Egypt, now petitions this
court for a review of the BIA's denial of his claims. We affirm.
I. BACKGROUND
The IJ found Malek credible. Therefore, we relate the
facts of the case as he testified to them.
Malek legally entered the United States on January 30,
2000, on a nonimmigrant visa with authorization to remain until
July 29, 2000. On July 31, 2000, Malek timely applied for asylum,
withholding of removal, and protection under the CAT. On January
22, 2004, the Department of Homeland Security commenced removal
proceedings against Malek. In response, Malek admitted the
allegations and conceded removability as charged but argued that he
is entitled to relief in the form of asylum, withholding of
removal, and protection under the CAT.
Malek, a Coptic Orthodox Christian, resided in the town
of Port Said, Egypt. Along with one of his brothers-in-law,
Maurice Aziz Abdel Malek, he owned and operated a business related
1
Malek's wife, Amal Nasr Samaan, a native and citizen of
Egypt, is a derivative applicant for asylum, withholding of
removal, and protection under the Convention Against Torture, based
on Malek's application.
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to the import and export of used automobile parts. Another
brother-in-law, Gamel Wehba Guirgis Atteah, worked as an employee.
The license that authorized Malek to operate his business
restricted its operations to Port Said, a free trade zone. In
March 1991, five men--two of whom, Nabil Mohamed Sharan and Mohamed
Atwan, Malek knew from his business affairs--came to Malek's
workplace, ostensibly to discuss business with Malek. Soon,
however, the ostensible businessmen, particularly an individual
named Radab Abu Abir, embarked on an extended discourse proposing
that Malek convert to Islam. When Malek indicated his reluctance
to do so, the men became "very angry" and extolled the propriety of
forced conversion.
Later that month, Sharan and Atwan, this time accompanied
by Sheik Mohamed Abu Abir, returned to Malek's workplace to
proselytize. This time, Sheik Abir, Sharan, and Atwan firmly
ordered Malek to convert to Islam. As an incentive, they promised
to provide Malek with money and business assistance if he
converted. The men chided Malek that Christianity is a not a "true
religion" and that Islam is the only true religion. Malek, angered
by their insulting and intolerant behavior, attempted to throw his
unwanted guests out of his office. They proceeded to denounce him
as a "kafir," which apparently means a particularly bad kind of
infidel, against whom any action is justified. Malek interpreted
the use of this word as a death threat.
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On April 11, Malek received a call from his sister, who
was hysterical. She indicated that her husband, Atteah, had
converted to Islam. Atteah had purportedly proceeded to instruct
her to convert to Islam as well, and informed her that their
children were now Muslim by default. She fled to her parents'
house, where Malek apparently lived as well. The same day, Malek
received another call, this time from Nabil Shaber, one of the
Muslim businessmen who had visited him in March. Shaber
congratulated Malek on Atteah's conversion, and urged Malek to
reconsider his prior refusals.
With the assistance of Father Raphael, a local priest,
Malek endeavored to relocate his sister and her children to Tonton,
a nearby town. From there, Father Raphael helped them escape to
the nation of Jordan. On June 25, Malek, his father, and two
brothers were arrested at their home at approximately 4:00 a.m. A
police officer indicated that Atteah had accused them of kidnaping
his wife and children and, additionally, threatening to kill him.
Malek responded that he had never threatened to kill Atteah, but
conceded that his sister had fled the area. He falsely denied any
knowledge of his sister's whereabouts. He was forced to promise to
inform the authorities if he learned his sister's location and not
to harm Atteah. Malek and his family were released at some point
between 6:00 and 7:00 a.m.
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Around noon, Malek left the house to purchase food. Once
outside, he was forced into a taxi by men who were apparently
lurking in wait for him, taken to a nearby police station, and
searched. The police, led by the same officer as in the morning,
confiscated his possessions and drove him to another location
approximately an hour and a half distant. Again, the police
officer demanded to know where Malek's sister was. When Malek
protested his innocence, the police officers stripped off his
clothes, tied his hands and legs, and hung him from a stick. The
police officers then beat him with another stick, which was "very
painful," and ultimately caused Malek to bleed and lose
consciousness. Then, the police officers doused him with water and
administered electrical shocks.
As a direct result of this abuse, Malek agreed to
cooperate. At this point, his captors untied him and took him to
another room, where an officer stated that he was "glad that [Malek
was] able to remember what happened to [his] sister." Malek
admitted helping his sister, with the aid of Father Raphael, escape
to Jordan. He continued, however, to deny knowledge of her precise
location. Although Malek was then taken to his home, he was
instructed that "severe consequences" would occur if he told anyone
about the incident. Fearing that the police officers would divulge
his sisters' location to Atteah, Malek traveled to visit his sister
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in Jordan,2 at which point he accompanied her to Syria and helped
her relocate to Lebanon. He was absent from Egypt for
approximately one month.
Upon his return to Egypt, Malek relocated his residence
to Cairo from Port Said, in order to avoid future confrontations
with the police and Atteah. He also traveled to support his
business. Because his business license was restricted to Port
Said, however, Malek had to return there periodically to fill out
paperwork and conduct essential transactions. In September 1993,
due to continuing problems with Muslim fundamentalists, Malek and
Maurice Malek dissolved their partnership. Thereafter, Malek
continued to operate his business alone.
In 1998, Atteah attempted to intercept Malek at his place
of business in Port Said. Atteah, accompanied by several other
individuals, instructed Malek to leave Port Said and "the area."
On another occasion, also while Malek was doing business in Port
Said, he was attacked by a group of Muslims, including Mohamed
Atwan and Sheik Abir. During this confrontation, one of his
2
As the IJ recognized, it is unclear from the testimony
precisely when Malek traveled to Jordan to help his sister
relocate. Malek consistently testified that he only traveled to
Jordan on one occasion; nevertheless, his testimony is self-
contradictory and, in part, conflicted with his affidavit as to
whether this trip occurred before or after the beating described
above. Regardless, the IJ attributed the confusion to Malek's
nervousness as a witness, rather than any duplicitous motive, and
found any discrepancy to be immaterial.
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assailants cut Malek's hand, requiring stitches. Malek, however,
did not report this incident to local authorities.
Acting on the advice and with the assistance of Father
Raphael, Malek departed Egypt for Germany. After approximately
nineteen months, part of which he spent in the United States, he
returned to Egypt, married Samaan, and attempted to resume his
business operations. Yet again, in January 2000, Atteah,
accompanied by two other individuals, forced his way inside Malek's
business office in Port Said. Atteah threatened Malek, stating
"this is the last day in your life." One of his associates accused
Malek of being an infidel. While Atteah and one of the men beat
Malek, the other assailant began to break "everything" in the
office. A friendly neighbor helped Malek extract himself from the
office and called the police, who arrived about twenty-five minutes
later. The police, however, refused to report the incident after
learning that the alleged perpetrator was Atteah, a Muslim.
Nonetheless, Malek was able to fill out a complaint at the district
attorney's office.3 With Father Raphael's assistance, Malek and
Samaan,4 now pregnant, fled to Cairo and then to the United States.
3
The complaint was later dismissed due to Malek's absence from
the country.
4
Apparently, Samaan spent time in both Cairo, where she was a
student, and at Malek's family residence in Port Said.
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II. ANALYSIS
We uphold factual determinations of the BIA if "supported
by reasonable, substantial and probative evidence on the record
considered as a whole." Attia v. Gonzales, 477 F.3d 21, 23 (1st
Cir. 2007) (per curiam) (quoting Carcamo-Recinos v. Ashcroft, 389
F.3d 253, 256 (1st Cir. 2004)). "This so-called 'substantial
evidence' standard applies to claims for asylum, withholding of
removal, and relief under the CAT." Sharari v. Gonzales, 407 F.3d
467, 473 (1st Cir. 2005) (citing Settenda v. Ashcroft, 377 F.3d 89,
93 (1st Cir. 2004)). Under this highly deferential standard, a
determination will not be reversed unless "any reasonable
adjudicator would be compelled to conclude to the contrary." 8
U.S.C. § 1252(b)(4)(B). "Merely identifying alternative findings
that could be supported by substantial evidence is insufficient to
supplant the BIA’s findings." Albathani v. INS, 318 F.3d 365, 372
(1st Cir. 2003). Rather, "the record must compel the contrary
conclusion." López de Hincapie v. Gonzales, 494 F.3d 213, 218 (1st
Cir. 2007). Conversely, we review de novo the legal conclusions of
the BIA. Wang v. Mukasey, 508 F.3d 80, 83-84 (1st Cir. 2007).
Where, as here, "the BIA adopts an IJ's decision, we review the
relevant portion of the IJ's opinion as though it were the decision
of the BIA." Guillaume v. Gonzales, 504 F.3d 68, 72 (1st Cir.
2007).
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The petitioner bears the burden of proof to establish
eligibility for asylum. Bocova v. Gonzales, 412 F.3d 257, 262 (1st
Cir. 2005). To meet this burden, a petitioner ordinarily must not
only show that he subjectively fears future persecution, but also
adduce credible and specific evidence that this fear is reasonable.
Journal v. Keisler, 507 F.3d 9, 12 (1st Cir. 2007) (citation
omitted). A petitioner may satisfy the subjective component
through his own credible testimony. See Makhoul v. Ashcroft, 387
F.3d 75, 80-81 (1st Cir. 2004). To demonstrate that his subjective
fear is objectively reasonable, a petitioner must present evidence
showing either (1) that if returned he will be singled out for
persecution; or (2) that there is a pattern or practice of
persecuting a similarly situated group of persons on account of a
protected ground in his country of origin. See Pieterson v.
Ashcroft, 364 F.3d 38, 43-44 (1st Cir. 2004); accord 8 C.F.R.
§ 208.13(b)(2). Alternatively, a petitioner who demonstrates past
persecution creates a rebuttable presumption that his fear of
future persecution, if repatriated, is well-founded. See Tobon-
Marin v. Mukasey, 512 F.3d 28, 31 (1st Cir. 2008); accord 8 C.F.R.
§ 208.13(b)(1).
A. Asylum
Here, the IJ found that the harm inflicted upon Malek did
not amount to persecution and, in any event, that such acts were
not perpetrated on account of a protected ground. The Immigration
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and Nationality Act does not define "persecution." See Negeya v.
Gonzales, 417 F.3d 79, 83 (1st Cir. 2005). Thus, we have taken a
case-by-case approach to determine whether the injuries suffered by
a particular petitioner amount to persecution under the statute.
Id. In deciding whether specific facts arise to the level of
persecution, relevant factors include the "severity, duration, and
frequency of physical abuse." Topalli v. Gonzales, 417 F.3d 128,
133 (1st Cir. 2005). We have noted that "[t]o qualify as
persecution, a person's experience must rise above unpleasantness,
harassment, and even basic suffering." Jorgji v. Mukasey, 514 F.3d
53, 57 (1st Cir. 2008) (internal quotation marks omitted) (quoting
Nelson v. INS, 232 F.3d 258, 263 (1st Cir. 2000)). Additionally,
a petitioner must show that the state participated in or at least
acquiesced in the alleged acts of persecution. Id.We assume arguendo that Malek has experienced past
persecution. Even the IJ described the June 25 incident--which
involved an abduction, severe restraint, beatings, a loss of
consciousness, and electrical shocks, all at the hands of the
police--as "torture."
Moreover, we note our skepticism regarding the IJ's
conclusion that the alleged acts of persecution were exclusively
attributable to Malek's decision to aid his sister's escape from
Egypt, rather than his Christian faith. On these facts, it seems
that the assistance Malek rendered to his sister is inextricably
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intertwined with Malek's religious beliefs and the pressures that
were placed on Malek, Maurice Malek, Malek's sister and Atteah, who
succumbed, to convert to Islam. If not for the underlying
religious antagonism, the alleged persecution would never have
taken place. We are doubtful that Malek's actions in support of
his sister can be parsed so neatly from the underlying religious
motivations of both Malek and his alleged persecutors. A
petitioner need not show that persecution occurred or will occur
solely on account of a protected ground. See 8 U.S.C.
§ 1158(b)(1)(B)(i) (requiring applicants for asylum to show that
membership in a protected category "was or will be at least one
central reason" for past or future persecution (emphasis added));
accord Vumi v. Gonzales, 502 F.3d 150, 159 (2d Cir. 2007)
(explaining that, even where the petitioner was detained for a
legitimate reason, an IJ should employ a mixed-motive analysis in
light of the nature and severity of the interrogation). Here,
where Malek was abducted from his home and subjected to what the IJ
described as torture, it is questionable whether the police were
motivated by legitimate law enforcement concerns, rather than the
underlying religious conflict. See id. (recognizing the inherent
difficulty of "determining whether harm was inflicted because of
the applicant's acts or because of his beliefs underlying those
acts" (internal quotation marks omitted) (quoting In re S-P-, 21
I.&N. Dec. 486, 498 (BIA 1996))).
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Nevertheless, substantial evidence supports the IJ's
determination that it would be reasonable for Malek to avoid future
persecution by relocating away from Port Said. See Tendean v.
Gonzales, 503 F.3d 8, 11 (1st Cir. 2007) (explaining that "the
possibility of internal relocation negates any presumption of
eligibility . . . based on past persecution"); accord 8 C.F.R.
§§ 1208.13(b)(1)(i)(B), 1208.13(b)(3). The alleged acts of
persecution detailed by Malek occurred exclusively in Port Said.
In this case, the possibility of relocation is more than
hypothetical--Malek actually did relocate to Cairo, where he was
not disturbed by Atteah or anyone else. We acknowledge that
Malek's relocation will entail some hardship,5 as his business
license is restricted to Port Said. Such a difficulty, however,
was noted and rejected by the IJ, who explained that "there is no
right under the asylum laws to engage in a particular business";
and that Malek did not show that he could not "provide[] for his
family through another career in Cairo." In these circumstances,
the IJ was not compelled to arrive at a different conclusion. See
Tendean, 503 F.3d at 11 (applying substantial evidence standard to
an IJ's findings concerning the reasonableness of relocation).
Similarly, the IJ did not err by concluding that Malek
failed to establish a well-founded fear of future persecution. The
5
We likewise reject his contention, discussed more fully
below, that he will be subjected to persecution in any location in
Egypt.
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IJ did not fully explain the basis for her decision; given that the
IJ found Malek credible, we assume arguendo that she credited
Malek's assertion that he fears persecution if returned to Egypt,
thus satisfying the subjective component. Nevertheless,
substantial evidence supports the IJ's implied determination that
Malek lacked an objective basis for fearing future persecution in
Egypt.
We are troubled by the IJ's failure to discuss the
substantial documentary evidence regarding conditions in Egypt,
which Malek claims provides an objective basis for his fear of
future persecution. Coptic Christians clearly face considerable
unpleasantness stemming from their religious beliefs. Moreover,
the most recent State Department reports in evidence--the 2004
Country Report for Egypt and 2004 International Religious Freedom
Report for Egypt--suggest that the Egyptian government,
particularly at the local level, is not always responsive to the
wrongs inflicted upon Coptic Christians by the Muslim majority.
Indeed, the reports indicate that the local police may actually
engage in and facilitate religious persecution to some extent.
Finally, the reports reveal that certain of Egypt's laws appear to
lack religious neutrality; to point to an example implicated by the
instant facts, the minor children of a convert to Islam are
automatically classified as Muslims as well, regardless of the
religious persuasion of the spouse and children.
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Nevertheless, "[w]hen considering whether the clarity of
an administrative decision is sufficient to support our review
. . ., we are not blind to the context in which the decision is
made or oblivious of the record on which it is based." Xu v.
Gonzales, 424 F.3d 45, 49 (1st Cir. 2005). In the hearings before
the IJ, Malek relied almost exclusively on a theory of past
persecution. When asked why he could not simply relocate to Cairo,
he replied, "I don't know anything in Cairo and I don't have any
business in Cairo. My business was based on the free trade zone of
Port Said." Malek conceded that he was never harassed while in
Cairo--he did not, as he does now in his brief, expound upon the
sorry state of Coptic Christians throughout Egypt. Additionally,
Malek did not even seek to introduce the most recent State
Department reports into evidence--at the conclusion of the hearing,
the IJ requested that one of the litigants provide her with the
most recent reports. At that point, the government's attorney, not
Malek, submitted the 2004 reports. Thus, it is unsurprising that
the IJ did not focus on a nascent pattern or practice theory in
considering whether Malek had a well-founded fear of persecution,
given the issue's lack of prominence in the actual conduct of the
proceedings, despite the voluminous record.
An IJ's duty to expound upon his or her reasons for
rejecting a particular argument is concomitant with a litigant's
actual articulation of that argument. Malek may have subjectively
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feared renewed conflict with Atteah. This problem, however, could
seemingly be avoided if Malek relocated within Egypt. Malek did
not indicate that he is fearful of the general conditions within
Egypt. Thus, there is a disconnect between Malek's subjective fear
of persecution and the objective evidence of country conditions in
Egypt. The IJ provided an extensive, individualized analysis of
Malek's experiences with Atteah and the Muslim fundamentalists in
Port Said; more was not required because Malek failed to urge a
pattern or practice theory either through his testimony or the oral
argument of counsel.6
Moreover, the IJ's opinion contains sufficient references
to countrywide conditions to lead us to believe that she considered
but rejected a pattern or practice theory. See Rotinsulu v.
Mukasey, 515 F.3d 68, 72-73 (1st Cir. 2008) (explaining that an
IJ's findings may be either implicit or explicit). The IJ held
that "the harm inflicted on the respondent by his brother-in-law
does not constitute persecution," in part, because such conditions
6
We note that Malek did assert a pattern or practice theory
before the BIA. Because we hold that the IJ did, if implicitly,
reject Malek's evidence of country conditions, we need not
determine the extent to which the BIA should have considered an
argument developed largely on appeal. See Pinos-Gonzalez v.
Mukasey, ___ F.3d ___, 2008 WL 583677, at *2-3 (8th Cir. Mar. 5,
2008)(enforcing procedural bar imposed by BIA where petitioner
failed to first articulate an argument before the IJ); De la Cruz
v. Mauer, 483 F.3d 1013, 1022-23 (10th Cir. 2007) (same). But see
Zhong v. U.S. Dep't of Justice, 480 F.3d 104, 118-19 (2d Cir. 2007)
(indicating exhaustion of issues, as opposed to claims for relief,
to be an affirmative defense subject to waiver where not urged).
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"[did] not exist on a countrywide basis." While the related
discussion pertained to the specific threat posed by Atteah, the IJ
clearly contemplated conditions throughout Egypt. Additionally,
the IJ determined that requiring Malek to relocate within Egypt
would not be "unreasonable," a conclusion that could only be
justified if the IJ determined that Malek would not face
persecution outside of Port Said. Indeed, we note that the IJ
addressed the one explicit concern that Malek articulated
concerning relocation within Egypt, dismissing the inconvenience
that Malek might face given that his business license was
restricted to Port Said. Finally, we cannot ignore the fact that
the IJ, not Malek, requested sua sponte the submission of the 2004
State Department reports; it seems unlikely that, having
specifically solicited the introduction of these documents, the IJ
would have ignored them in rendering her decision. In these
circumstances, we are satisfied that the IJ's decision contemplated
country conditions throughout Egypt--"[w]e do not require an IJ to
intone any magic words before we will review her determination."
Sulaiman v. Gonzales, 429 F.3d 347, 351 (1st Cir. 2005).
In the past, we have noted that "[t]he obligation to
explain and articulate depends importantly on the strength of the
position being urged. Where no plausible reason is offered for a
request, the word 'no' is plainly sufficient." Karim v. Gonzales,
424 F.3d 109, 111 (1st Cir. 2005). Moreover, in any context, a
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litigant "cannot switch horses midstream in hopes of locating a
swifter steed." United States v. Lilly, 13 F.3d 15, 18 (1st Cir.
1994) (citation omitted). Essentially, Malek now seeks relief
based on an argument that he presented, if at all, in a threadbare,
conclusory fashion before the IJ. We will not, on appeal, reverse
the decision of the IJ for failing to make Malek's arguments for
him.
B. Withholding of Removal and Protection Under the CAT
We likewise reject Malek's claims for withholding of
removal and protection under the CAT. Because Malek has not
satisfied the more lenient standard for asylum, a fortiori he
cannot satisfy the higher burden for withholding of removal.
Segran v. Mukasey, 511 F.3d 1, 7 (1st Cir. 2007). Even if not
waived, his claim for protection under the CAT fails on the merits.
"An applicant claiming protection under the CAT bears the burden of
establishing that 'it is more likely than not that he or she would
be tortured if removed to the proposed country.'" Hana v.
Gonzales, 503 F.3d 39, 44 (1st Cir. 2007) (quoting 8 C.F.R.
§ 1208.16(c)(2)). No record evidence supports the notion it is
more likely than not that Malek would be tortured if returned to
Egypt. While the IJ accepted Malek's testimony that he was
tortured by the Egyptian government on a single occasion in 1991,
no evidence suggests that he is likely to be tortured in the
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future. At the very least, the IJ's conclusion in this regard is
supported by substantial evidence.
III. CONCLUSION
For the foregoing reasons, we deny Malek's petition for
review.
Affirmed.
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