Haidar Namer Saleh v. U.S. Atty. Gen. , 148 F. App'x 862 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 13, 2005
No. 05-10140 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency Nos. A97-190-630, A97-190-631
HAIDER NAMER SALEH,
CHADIA IBRAHIM SALEH,
ALI HAIDAR SALEH,
WAIL HAIDAR SALEH,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(September 13, 2005)
Before DUBINA, BLACK and PRYOR, Circuit Judges.
PER CURIAM:
Haider Namer Saleh (“Haidar”) 1, his wife Chadia Ibrahim Saleh (“Chadia”),
and their children, Ali Haidar Saleh (“Ali”) and Wail Haidar Saleh (“Wail”)
(collectively referred to as “Petitioners”), seek review of the Board of Immigration
Appeals’s (“BIA’s”) decision affirming the Immigration Judge’s (“IJ’s”) order
denying their application for asylum, withholding of removal under the
Immigration and Nationality Act (“INA”) and the United Nations Convention
Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
(“CAT relief”), 8 U.S.C. §§ 1158(a), 1231(b)(3), 8 C.F.R. § 208.16(c).
In their application, the Petitioners sought relief from being removed to
Nigeria and Lebanon. On appeal, with respect to their Nigerian claims, Petitioners
argue that the IJ mischaracterized certain facts to which Haidar testified and
erroneously applied a “singled out” theory of persecution to their claims. They
submit that they may establish a well-founded fear through a pattern and practice
of persecution of people similarly situated to them. They contend that Haidar’s
testimony as well as the documentary evidence established that white Lebanese in
Nigeria were subject to a pattern and practice of persecution on account of race by
black ethnic Nigerians. They assert that the evidence showed that ethnic Nigerian
1
It is not clear whether the lead Petitioner’s name is “Haidar” or “Haider,” as both spellings
are used in various locations in the record.
2
civilians were agents of the Nigerian government such that they qualified for CAT
relief.
With respect to their Lebanese claims, the Petitioners argue that Haidar’s
testimony is corroborated by country conditions in the record that show that the
Lebanese government is controlled by Syria, and the Petitioners have a well-
founded fear of future persecution based on a pattern and practice of persecution of
similarly situated Muslims in Lebanon who believe in democracy and western
values. They contend that they are eligible for asylum, withholding of removal,
and CAT relief in Lebanon.
When the BIA issues a decision, we review only that decision, except to the
extent that the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257
F.3d 1262, 1284 (11th Cir. 2001). To the extent that the BIA’s decision was based
on a legal determination, review is de novo. Mohammed v. Ashcroft, 261 F.3d
1244, 1247-48 (11th Cir. 2001). The BIA’s factual determinations are reviewed
under the substantial-evidence test, and we “must affirm the BIA’s decision if it is
‘supported by reasonable, substantial, and probative evidence on the record
considered as a whole.’” Al Najjar, 257 F.3d at 1283-84 (citation omitted). The
substantial evidence test is “deferential” and does not allow “re-weigh[ing] the
evidence from scratch.” Mazariegos v. U.S. Att’y Gen., 241 F.3d 1320, 1323 (11th
Cir. 2001). “To reverse the IJ’s fact findings, we must find that the record not only
3
supports reversal, but compels it.” Mendoza v. U.S. Att’y Gen., 327 F.3d 1283,
1287 (11th Cir. 2003) (considering withholding of removal claim). Because the
BIA did not issue a decision in this case, we review the IJ’s decision.
An alien who arrives in or is present in the United States may apply for
asylum. See INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). The Secretary of the
Department of Homeland Security or the Attorney General has discretion to grant
asylum if the alien meets the INA’s definition of a “refugee.” See INA §
208(b)(1), 8 U.S.C. § 1158(b)(1), as amended by § 101(a) of the REAL ID Act of
2005, Pub. L. No. 109-13 (May 11, 2005), 119 Stat. 231, 302-03. A “refugee” is
any person who is outside any country of such person’s nationality or,
in the case of a person having no nationality, is outside any country in
which such person last habitually resided, and who is unable or
unwilling to return to, and is unable or unwilling to avail himself or
herself of the protection of, 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)(A). The asylum applicant carries the burden of proving
statutory “refugee” status. Al Najjar, 257 F.3d at 1284. To establish asylum
eligibility, the alien must, with specific and credible evidence, establish (1) past
persecution on account of a statutorily listed factor, or (2) a “well-founded fear”
that the statutorily listed factor will cause such future persecution. 8 C.F.R.
§ 208.13(a), (b); Al Najjar, 257 F.3d at 1287. “Demonstrating such a connection
4
requires the alien to present specific, detailed facts showing a good reason to fear
that he or she will be singled out for persecution on account of such an opinion [or
other statutory factor].” Al Najjar, 257 F.3d at 1287 (internal quotation omitted).
An asylum applicant may not show merely that he has a political opinion, but must
show that he was persecuted because of that opinion. INS v. Elias-Zacarias, 502
U.S. 478, 483, 112 S. Ct. 812, 816, 117 L. Ed. 2d 38 (1992).
To qualify for withholding of removal under the INA, an alien must show
that it is more likely than not that if returned to his or her country, the alien’s life or
freedom would be threatened on account of race, religion, nationality, membership
in a particular social group, or political opinion. INA § 241(b)(3); 8 U.S.C.
§ 1231(b)(3). “An alien bears the burden of demonstrating that he more-likely-
than-not would be persecuted or tortured upon his return to the country in
question.” Mendoza, 327 F.3d at 1287. For both asylum and withholding of
removal, an alien must demonstrate some nexus between the alleged persecution or
fear of persecution and one of the five protected grounds. See Perlera-Escobar v.
Executive Office for Immigration, 894 F.2d 1292, 1297 (11th Cir. 1990) (“Even a
clear probability that an alien’s life is threatened without any indication that the
basis of the threat is related to a statutorily enumerated ground is insufficient to
establish eligibility for relief.”).
5
An alien who has not shown past persecution may still be entitled to asylum
or withholding of removal if he can demonstrate a future threat to his life or
freedom on a protected ground in his country. 8 C.F.R. §§ 208.13(b)(2),
208.16(b)(2). To establish a “well-founded fear,” “an applicant must demonstrate
that his or her fear of persecution is subjectively genuine and objectively
reasonable.” Al Najjar, 257 F.3d at 1289 (discussing well-founded fear as it
applies to asylum). An applicant may establish a well-founded fear without
showing that he would be singled out for persecution if
(A) The applicant establishes that there is a pattern or practice in his
or her country of nationality or, if stateless, in his or her country of
last habitual residence, of persecution of a group of persons similarly
situated to the applicant on account of race, religion, nationality,
membership in a particular social group, or political opinion; and
(B) The applicant establishes his or her own inclusion in, and
identification with, such group of persons such that his or her fear of
persecution upon return is reasonable.
8 C.F.R. § 208.13(b)(2)(iii) (asylum); see also 8 C.F.R. § 208.16(b)(2)(i), (ii)
(withholding of removal). “An imputed political opinion, whether correctly or
incorrectly attributed, may constitute a ground for a ‘well-founded fear’ of political
persecution within the meaning of the INA.” Al Najjar, 257 F.3d at 1289
(quotation omitted). If, however, “an applicant is unable to meet the ‘well-founded
fear’ standard for asylum, he is generally precluded from qualifying for either
asylum or withholding of [removal].” Id. at 1292-93 (quotation omitted).
6
To obtain withholding of removal under the CAT’s implementing
regulations, an alien must establish that he “more likely than not” will be tortured
upon his return to his home country. 8 C.F.R. § 208.16(c)(2). “Torture” is defined
as
any act by which severe pain or suffering, whether physical or mental,
is intentionally inflicted on a person for such purposes as obtaining
from him or her or a third person information or a confession,
punishing him or her for an act he or she or a third person has
committed or is suspected of having committed, or intimidating or
coercing him or her or a third person, or for any reason based on
discrimination of any kind, when such pain or suffering is inflicted by
or at the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity.
Id. § 208.18(a)(1). If the petitioners “failed to demonstrate a ‘well-founded fear of
persecution’ sufficient to support an asylum claim, they likewise cannot establish
‘torture’ sufficient to warrant relief under CAT” because “[t]he burden of proof for
an applicant seeking withholding of removal under the Convention, like that for an
applicant seeking withholding of removal under the statute, is higher than the
burden imposed on an asylum applicant.” Al Najjar, 257 F.3d at 1303.
“Not all exceptional treatment is persecution.” Gonzalez v. Reno, 212 F.3d
1338, 1355 (11th Cir. 2000). “[W]e have discussed other circuits’ holdings that
‘persecution’ is an ‘extreme concept,’ requiring more than a few isolated incidents
of verbal harassment or intimidation, and that mere harassment does not amount to
persecution.” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005)
7
(quotation omitted). “[D]iscrimination on the basis of race or religion, as morally
reprehensible as it may be, does not ordinarily amount to ‘persecution.’” Singh v.
INS, 134 F.3d 962, 967 (9th Cir. 1998) (quotation omitted). “Mere generalized
lawlessness and violence between diverse populations, of the sort which abounds
in numerous countries and inflicts misery upon millions of innocent people daily
around the world, generally is not sufficient to permit the Attorney General to
grant asylum to everyone who wishes to improve his or her life by moving to the
United States . . . .” Id. “[A]cts of common criminality or personal hostility . . . do
not implicate asylum eligibility.” Vatulev v. Ashcroft, 354 F.3d 1207, 1209 (10th
Cir. 2003). Forced recruitment by a guerilla organization does not constitute
persecution merely because the guerilla group has a particular political opinion,
and an individual who refuses to side with any particular political group or faction
does not express a political opinion. See Elias-Zacarias, 502 U.S. at 482-83, 112
S. Ct. at 816.
In the instant case, substantial evidence supports the IJ’s determination that
the Petitioners were not entitled to asylum, withholding of removal, or CAT relief
with respect to either Nigeria or Lebanon. Haidar related incidents in Nigeria in
which (1) he and some friends were robbed by thieves; (2) his brother was severely
beaten by police looking for bribes; (3) a Lebanese “big businessman” was killed
and his wife raped by employees; (4) his babysitter possibly abused his son, later
8
demanded money, and began threatening Haidar and his family; and (5) his
brother-in-law’s water factory was closed, allegedly by ethnic Nigerians.2 This
treatment does not rise to the level of persecution. The country conditions indicate
that (1) ethno-religious violence is widespread across many of Nigeria’s ethnicities
and regions; (2) police regularly mistreat civilians to extort money; and (3)
Nigeria’s economy is in decline. Additionally, the Petitioners have not established
a nexus between one of the five protected grounds and the treatment. Although
Haidar testified that the events were motivated by race or nationality, no other
evidence in the record compels the conclusion that the Nigerian government or
Nigerians in general persecute Lebanese or other non-Nigerians on account of race
or nationality. The evidence suggests that Nigeria suffers from widespread conflict
due to its numerous internal ethnic populations. Further, evidence relating to the
Petitoners’ departure from Nigeria suggests, as the IJ found, that Haidar was not
fleeing persecution. Therefore, the Petitioners failed to establish past persecution
in Nigeria. The Petitioners offered no evidence of persecution in Lebanon.
Therefore, they failed to establish past persecution in Lebanon as well.
The Petitioners also did not demonstrate a well-founded fear of future
persecution. While evidence of a pattern and practice of persecution against
2
We acknowledge that the Petitioners are correct in their assertions that the IJ misstated
some of the facts. However, even as correctly stated, the facts do not warrant relief.
9
similarly situated individuals may be used to establish a well-founded fear of
future persecution, as discussed above, the treatment in Nigeria does not rise to the
level of persecution, and the Petitioners offer no evidence that compels the
conclusion that a nexus existed between the treatment and a statutory factor. The
fact that numerous members of Haidar’s family continue to reside in Nigeria
without incident suggests that Haidar’s subjective fear of future persecution in
Nigeria is not objectively reasonable. Haidar’s subjective fear of future
persecution in Lebanon is also not objectively reasonable. The evidence on
country conditions in Lebanon does not compel a conclusion that “political parties”
or terrorist groups actively recruit members involuntarily in Lebanon. Even if it
did compel such a conclusion, recruitment is not persecution as stated earlier.
Further, the Petitioners have not established a nexus between any future
persecution, or a pattern and practice of persecution against similarly situated
individuals, and a statutory factor. The Petitioners claim that the groups persecute
Lebanese who believe in democracy and western values. However, nothing in the
record compels the conclusion that the groups sought to recruit Haidar on account
of his beliefs, and Haidar’s mere refusal to join by itself is not an expression of
political opinion. Thus, the evidence does not compel the finding that the
Petitioners have a well-founded fear of future persecution in either Nigeria or
10
Lebanon, and they are ineligible for withholding of removal, as they did not
establish eligibility for asylum, which carries a lower burden of proof.
Finally, the Petitioners’ claim for CAT relief fails because (1) they did not
demonstrate that the harm they suffered or will suffer was inflicted at the
instigation of, or with the consent or acquiescence of, a public official, and (2) they
failed to demonstrate a well-founded fear sufficient to support a claim of asylum,
and CAT relief requires a higher burden of proof. Thus, substantial evidence
supports the IJ’s determination that the Petitioners are not entitled to relief;
accordingly, we deny the petition.
PETITION DENIED.
11