Ballad v. Holder ( 2014 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 4, 2014
Elisabeth A. Shumaker
Clerk of Court
HAMZA BALLAD,
Petitioner,
v. No. 13-9541
(Petition for Review)
ERIC H. HOLDER, JR.,
United States Attorney General,
Respondent.
ORDER AND JUDGMENT*
Before KELLY, ANDERSON, and MATHESON, Circuit Judges.
Hamza Ballad, a native and citizen of Morocco, seeks review of an order
entered by the Board of Immigration Appeals (BIA) affirming the removal order of
an Immigration Judge (IJ). The BIA dismissed Mr. Ballad’s asylum claim as
untimely, and denied his claims for restriction on removal and protection under the
Convention Against Torture (CAT). We dismiss the asylum claim for lack of
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
jurisdiction, and, exercising jurisdiction under 8 U.S.C. § 1252, we deny the claims
for restriction on removal and CAT protection.
I. BACKGROUND
Mr. Ballad legally entered the United States in May 2008. He conceded that
he remained after his authorized stay expired and that he is subject to removal for
having overstayed his visa. On June 15, 2010, he filed his application for asylum,
restriction on removal, and CAT protection.
At a hearing before the IJ, Mr. Ballad testified that when he was fourteen years
old, he was attacked by a group of Muslims who stole money from him. His parents
filed a police report. He also testified that when he was seventeen, his parents
punished him severely, including beating him and imprisoning him in a pantry, for
not engaging in Muslim prayers and practices. He further testified that at age
eighteen during Ramadan in September 2001, a group of Muslims attacked him
because he was eating before sundown, contrary to Muslim doctrine. He did not seek
assistance from the police.
Mr. Ballad testified that he married a Catholic woman in January 2010. He
stated that if he returned to Morocco, he would share his Christian faith with others
and that his family would expect him to marry a Muslim woman.
The IJ found Mr. Ballad’s testimony not credible, citing discrepancies between
his testimony and his application documents; inconsistencies in his testimony
concerning his in-home imprisonment, such as whether he was let out to eat and go to
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school; the implausibility that a seventeen-year-old would repeatedly return to
in-home captivity after having been released to attend school; and the fact that
Ramadan 2001 was in November, not September. The IJ characterized the robbery
when he was fourteen as a general crime that did not appear to be based on Mr.
Ballad’s beliefs. In addition, the IJ found it inconsistent that Mr. Ballad continued to
send $500 to $1,000 to his parents each month despite their maltreatment of him.
The IJ found that Mr. Ballad had not established the requisite changed or
extraordinary circumstances for an exception to the one-year period to file an asylum
application and, further, that he had not stated sufficient grounds for asylum,
restriction on removal, or CAT protection. Accordingly, the IJ ordered Mr. Ballad
removed to Morocco.
Mr. Ballad timely appealed to the BIA, challenging the IJ’s credibility
determination and asserting that his parents’ abuse and his own conversion to
Catholicism warranted relief. The BIA affirmed the IJ’s findings and removal order.
II. UNTIMELY ASYLUM CLAIM
To be considered for asylum, an alien is required to demonstrate by clear and
convincing evidence that his application was filed within one year after his arrival in
the United States. 8 U.S.C. § 1158(a)(2)(B). Mr. Ballad did not file his asylum
application until two years after he arrived in the United States. An asylum
application may nevertheless be considered “if the alien demonstrates to the
satisfaction of the Attorney General either the existence of changed circumstances
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which materially affect the applicant’s eligibility for asylum or extraordinary
circumstances relating to the delay in filing an application within the [one-year
period].” Id. § 1158(a)(2)(D). “Changed circumstances,” within the meaning of
§ 1158(a)(2)(D), include “[c]hanges in the applicant’s circumstances that materially
affect the applicant’s eligibility for asylum.” 8 C.F.R. § 1208.4(a)(4)(i)(B).
This court generally lacks jurisdiction to review an IJ determination about the
timeliness of an asylum application. 8 U.S.C. § 1158(a)(3); Diallo v. Gonzales, 447
F.3d 1274, 1281 (10th Cir. 2006). We do have jurisdiction, however, to review a
claim that the BIA’s application of the one-year deadline violated an alien’s
constitutional rights. 8 U.S.C. § 1252(a)(2)(D); Diallo, 447 F.3d at 1281.
Mr. Ballad asserts that his conversion to Catholicism beginning in March
2010, and his marriage to a Catholic woman in January 2010, qualify as changed
circumstances that materially affected his eligibility for asylum. He maintains that if
returned to Morocco, he will suffer social ostracism due to his Catholic faith. In
addition, he points out that anti-Islam proselytizing in public would subject him to
arrest.
In his brief to this court, Mr. Ballad does not claim that the BIA committed
constitutional or legal error in refusing to excuse his late filing. Rather, he argues
that the evidence demonstrated that he would be persecuted due to his conversion to
Catholicism. In particular, he challenges the agency’s finding that his testimony was
not credible. Because his arguments concerning the merits of his asylum claim are
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“directed solely at the agency’s discretionary and factual determinations, [they]
remain outside the scope of judicial review,” Diallo, 447 F.3d at 1281.1 We dismiss
Mr. Ballad’s asylum claim for lack of jurisdiction.
III. RESTRICTION ON REMOVAL
The time limit for filing an asylum application does not apply to an application
for restriction on removal. Wei v. Mukasey, 545 F.3d 1248, 1250 (10th Cir. 2008);
8 C.F.R. § 208.4(a). “To obtain restriction on removal, the alien must demonstrate
that [his] ‘life or freedom would be threatened in [the proposed country of removal]
because of [his] race, religion, nationality, membership in a particular social group,
or political opinion.’” Tulengkey v. Gonzales, 425 F.3d 1277, 1280 (10th Cir. 2005)
(quoting 8 U.S.C. § 1231(b)(3)(A)).
An alien may create a rebuttable presumption of eligibility for
restriction on removal by either (1) demonstrating past persecution in
the proposed country of removal on account of one of the protected
grounds; or (2) showing that it is more likely than not that the alien
would be subject to persecution on one of the specified grounds upon
returning to the proposed country of removal.
Sidabutar v. Gonzales, 503 F.3d 1116, 1123-24 (10th Cir. 2007) (citations and
internal quotation marks omitted).
We review the BIA’s decision to determine whether it is supported by
substantial evidence, considering the record as a whole. Neri-Garcia v. Holder,
1
Mr. Ballad’s brief states that the BIA erred as a matter law in denying his
application, Aplt. Br. at 10, but this conclusory statement does not change the
substance of his arguments that relate only to the agency’s credibility determinations
and evidence weighing.
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696 F.3d 1003, 1008 (10th Cir. 2012). “Agency findings of fact are conclusive
unless the record demonstrates that any reasonable adjudicator would be compelled
to conclude to the contrary.” Sarr v. Gonzales, 474 F.3d 783, 788-89 (10th Cir.
2007) (internal quotation marks omitted). We neither reweigh the evidence nor
assess witness credibility. Id. at 789. The BIA issued a single-member decision.
Therefore, “although we will not affirm on grounds raised in the IJ decision unless
they are relied upon by the BIA, we are not precluded from consulting the IJ’s more
complete explanation of those same grounds.” Maatougui v. Holder, 738 F.3d 1230,
1237 n.2 (10th Cir. 2013) (internal quotation marks, brackets and ellipsis omitted).
Mr. Ballad claims past persecution based on being robbed at the age of
fourteen, his parents’ punishing him for failing to observe Muslim practices when he
was seventeen and living at home, and the beating he sustained during Ramadan 2001
by Muslims. The IJ found Mr. Ballad’s reports of these incidents to be not credible.
The BIA agreed. An IJ “must give specific, cogent reasons” for his credibility
determination, a determination we review for substantial evidence. Uanreroro v.
Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006) (internal quotation marks omitted).
We conclude substantial evidence supports the IJ’s finding that Mr. Ballad’s
testimony was not credible. As the BIA noted, Mr. Ballad’s hearing testimony
differed from his written documents concerning whether his family was required to
move frequently due to threats from violent Muslim groups; and his claim of parental
abuse and in-home imprisonment was inconsistent with his testimony that he was let
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out to eat and go to school. Less persuasive but nonetheless having support in the
record were the IJ’s findings that Mr. Ballad’s practice of sending money home to his
parents was inconsistent with his claim of parental abuse; and that the alleged
Ramadan beating for violating Muslim doctrine had not occurred during Ramadan.
We conclude that Mr. Ballad failed to meet his burden of establishing past
persecution on account of one of the statutorily protected grounds.
Based on this conclusion, Mr. Ballad is not entitled to a presumption that his
life or freedom would be threatened in the future. See 8 C.F.R. § 1208.16(b)(1)(i)
(stating if alien demonstrates past persecution, “it shall be presumed that [his] life or
freedom would be threatened in the future in the country of removal”). Even so, we
consider his claim of a well-founded fear of future persecution. See id.
§ 1208.16(b)(2). “Without a showing of past persecution, an alien must demonstrate
that it is more likely than not that he will be individually persecuted in the future.”
Witjaksono v. Holder, 573 F.3d 968, 977 (10th Cir. 2009). “For a fear of future
persecution to be well-founded, it must be both subjectively genuine and objectively
reasonable.” Ritonga v. Holder, 633 F.3d 971, 976 (10th Cir. 2011) (internal
quotation marks omitted).
Mr. Ballad bases his claim of future persecution on his conversion to
Catholicism and his marriage to a Catholic woman, which he contends will subject
him to social ostracism. He does not challenge the BIA’s observation that Moroccan
law does not prohibit interfaith marriages. The BIA thus found that any
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discrimination and ostracism Mr. Ballad may suffer does not rise to the level of
persecution. This finding is supported by substantial evidence. See Zehatye v.
Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006) (holding “some degree of social
ostracism and economic hardship due to her religion did not rise to the level of
persecution”); Chakir v. Gonzales, 466 F.3d 563, 570 (7th Cir. 2006) (stating that
persecution does not include treatment regarded as unfair or unjust); cf. Tulengkey,
425 F.3d at 1280 (noting “denigration, harassment, and threats” are insufficient to
establish persecution).
Mr. Ballad also claims that he would be arrested in Morocco for proselytizing
a non-Islam religion in public. The record indicates that it is illegal in Morocco to
attempt to convert a Muslim to another religion. Admin. R. at 433. But Mr. Ballad
did not testify that he intended to convert Muslims or even that he wished to
proselytize in public. Rather, he said he would share his faith with others by telling
them about his conversion experience. Id. at 257-58. Substantial evidence in the
record supports a conclusion that Mr. Ballad would not be persecuted based on his
religious beliefs.
After reviewing the record, we cannot conclude that a reasonable factfinder
would be compelled to find it more likely than not that Mr. Ballad would be
persecuted upon his return to Morocco. Accordingly, the BIA did not err in finding
that he failed to show past persecution or a well-founded fear of persecution.
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IV. CONVENTION AGAINST TORTURE
“Article 3 of the Convention Against Torture prohibits the [return] of an alien
to a country where it is more likely than not that he will be subject to torture by a
public official, or at the instigation or with the acquiescence of such an official.”
Cruz-Funez v. Gonzales, 406 F.3d 1187, 1192 (10th Cir. 2005) (internal quotation
marks omitted). “A claim under the CAT differs from a claim for asylum or
[restriction on] removal . . . because there is no requirement that the petitioner[] show
that torture will occur on account of a statutorily protected ground.” Sidabutar,
503 F.3d at 1125 (internal quotation marks omitted).
Having affirmed the BIA’s finding that Mr. Ballad has not met his burden to
demonstrate that he will face persecution by the Moroccan government, we also
conclude that the BIA’s denial of CAT relief is supported by substantial evidence.
See id. at 1125-26.
V. CONCLUSION
Mr. Ballad’s asylum claim is dismissed for lack of jurisdiction. The petition
for review is otherwise denied.
ENTERED FOR THE COURT,
Scott M. Matheson, Jr.
Circuit Judge
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