Michael Malak Shenoda v. U.S. Attorney General , 157 F. App'x 130 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Nos. 04-16700, 05-12011 NOVEMBER 22, 2005
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
BIA No. A96-010-824
MICHAEL MALAK SHENODA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petitions for Review of an Order of the
Board of Immigration Appeals
_________________________
(November 22, 2005)
Before DUBINA, MARCUS and HULL, Circuit Judges.
PER CURIAM:
In these consolidated appeals, Michael Malak Shenoda, a native and citizen
of Egypt, petitions for review of the final order of the Board of Immigration
Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) denial of asylum,
withholding of removal, and CAT relief, and the BIA’s order denying his motion
to reopen his proceedings. On appeal, Shenoda argues that (1) substantial evidence
did not support the IJ’s decision to deny withholding of removal,1 and (2) the BIA
abused its discretion by denying Shenoda’s motion to reopen his case based on
changed circumstances in Egypt. After thorough review, we affirm.
We review only the BIA’s 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). “Insofar as the [BIA] adopts the IJ’s reasoning, we will review
the IJ’s decision as well.” Id. Here, the BIA expressly adopted the IJ’s decision
and provided its own reasoning for its denial of Shenoda’s application. Thus, we
review the decisions of both the IJ and BIA.
To the extent that the BIA’s and IJ’s decisions were based on a legal
determination, our review is de novo. Mohammed v. Ashcroft, 261 F.3d 1244,
1247-48 (11th Cir. 2001). The BIA’s and IJ’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 (quotation omitted). “To
1
Shenoda does not challenge, and we do not review, that portion of the BIA’s order
affirming the denial of Shenoda’s asylum application based on untimeliness. We likewise deem
abandoned any challenge to the decision on CAT relief. Cf. Rowe v. Schreiber, 139 F.3d 1381,
1382 n.1 (11th Cir. 1998) (concluding that issues not argued in party’s brief are abandoned).
2
reverse the IJ’s fact findings, we must find that the record not only supports
reversal, but compels it.” Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th
Cir. 2003). “This Court reviews the BIA's denial of [a petitioner’s] motion to
reopen his deportation order for abuse of discretion. In this particular area, the
BIA's discretion is quite broad.” Gbaya v. United States Att’y Gen., 342 F.3d
1219, 1220 (11th Cir. 2003).
An alien seeking withholding of removal under the INA must show that his
life or freedom would “more likely than not” be threatened upon return to his
country because of, among other things, his religion or membership in a particular
social group. See Mendoza, 327 F.3d at 1287; INA § 241(b)(3), 8 U.S.C. §
1231(b)(3). A presumption that the alien’s life or freedom would be threatened
upon return to the proposed country of removal is created if the alien establishes
past persecution on a protected ground. See Sanchez v. U.S. Att’y Gen., 392 F.3d
434, 437 (11th Cir. 2004). This presumption may be rebutted if the INS shows the
alien’s life or freedom are no longer threatened because of changed conditions in
the proposed country of removal, or the alien would avoid persecution by
relocating to another part of the proposed country of removal. Id. Where the alien
has not actually suffered past persecution, he bears the burden of establishing that
it is more likely than not that he would suffer future persecution upon removal. Id.However, as with past persecution, “an alien cannot demonstrate that he more-
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likely-than-not would be persecuted on a protected ground if the IJ finds that the
alien could avoid a future threat by relocating to another part of his country.” Id.(citation omitted).
First, Shenoda did not demonstrate past persecution because his
uncorroborated testimony was not sufficient to establish such persecution based on
his religion (Coptic Christian). The IJ determined that Shenoda did not provide
adequate evidence, some of which was available to Shenoda, of past persecution
that corroborated his testimony, including (1) a copy of a sign, which Shenoda
described during his testimony, stating “no work for non-Muslims”; (2) police
reports; (3) an affidavit from Shenoda’s friend who Shenoda testified was beaten at
work; (4) statements concerning the theft of the machinery at Lockheed Martin, as
described by Shenoda; (5) affidavits from other Christian co-workers; (6) hospital
records; or (7) affidavits from Shenoda’s family members regarding their
participation in his transport and hiding.
Despite Shenoda’s argument that his testimony alone satisfied his burden of
proof to show past persecution, we have held that “[t]he weaker an applicant’s
testimony, however, the greater the need for corroborative evidence.” Yang v.
U.S. Att’y Gen., 418 F.3d 1198, 1201 (11th Cir. 2005); see also Mendoza, 327
F.3d at 1287 (holding that an applicant’s testimony “if credible, may be sufficient
to sustain the burden of proof without corroboration”). Given the IJ’s observation
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that corroborative evidence was available but not presented, we are satisfied the IJ
did not err by concluding Shenoda’s testimony alone did not satisfy his burden to
show past persecution for purposes of withholding removal.
Turning to future persecution, the IJ found that Shenoda likewise did not
meet his burden of proof. The IJ observed that, based on the amount of time
Shenoda spent in Cairo and Cairo’s large population, it is reasonable that Shenoda
could relocate to Cairo without persecution.2 Moreover, relying on the U.S.
Department of State Country Report and International Religious Freedom Report,
the IJ found that, while Christians comprise approximately 10 percent of Egypt’s
population, they exist in higher numbers in Cairo and Alexandria and, further, the
Egyptian government has attempted to alleviate the tensions between Christians
and Muslims. The IJ concluded, then, that Shenoda failed to show it was more
likely than not that he would be subjected to persecution on the basis of his religion
as he failed to demonstrate that he could not avoid persecution by relocating to
another part of Egypt. Cf. 8 C.F.R. § 208.16(b)(2) (“An applicant who has not
suffered past persecution may demonstrate that his or her life or freedom would be
2
Thus, even if he had shown past persecution, the IJ’s analysis suggests that the
government’s evidence rebutted any presumption of future persecution to which Shenoda may have
been entitled at that point in the proceedings. Cf. 8 C.F.R. § 208.16(b)(1)(i)(B) (“If the applicant
is determined to have suffered past persecution . . . it shall be presumed that the applicant's life or
freedom would be threatened in the future . . . . This presumption may be rebutted if an . . .
immigration judge finds by a preponderance of the evidence . . . the applicant could avoid a future
threat to his or her life or freedom by relocating to another part of the proposed country of removal
and, under all the circumstances, it would be reasonable to expect the applicant to do so”).
5
threatened in the future in a country if he or she can establish that it is more likely
than not that he or she would be persecuted on account of . . . religion . . . . Such
an applicant cannot demonstrate that his or her life . . . would be threatened if the .
. . immigration judge finds that the applicant could avoid a future threat . . . by
relocating to another part of the proposed country of removal, and, under all the
circumstances, it would be reasonable to expect the applicant to do so”).
Given the substantial record evidence, which was cited by the IJ in his order,
that the Egyptian government had made significant strides toward improving
religious relations in its country, we cannot conclude that the record compels the
finding that Shenoda will more likely than not be subjected to persecution upon
removal. See Adefemi v. Ashcroft, 386 F.3d 1022, 1029 (11th Cir.) (en banc),
cert. denied, 125 S.Ct. 2245 (2005) (explaining that we “consider only whether
there is substantial evidence for the findings made by the BIA, not whether there is
substantial evidence for some other finding that could have been . . . made”)
(quotation omitted). The IJ’s decision on future persecution, therefore, was
supported by substantial evidence.
Given Shenoda’s failure to carry his burden on past persecution or future
persecution, he was not entitled to withholding of removal and we deny his petition
for review of the BIA’s order.
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We likewise are unpersuaded by Shenoda’s argument that the BIA abused its
discretion by denying his motion to reopen based on new evidence, not previously
available, of changed country conditions. Pursuant to 8 C.F.R. § 1003.2(a), “[t]he
decision to grant or deny a motion to reopen or reconsider is within the discretion
of the Board, subject to the restrictions of this section. The Board has discretion to
deny a motion to reopen even if the party moving has made out a prima facie case
for relief.” 8 C.F.R. § 1003.2(a). The BIA shall not grant a motion to reopen
unless:
[I]t appears to the Board that evidence sought to be offered is material
and was not available and could not have been discovered or
presented at the former hearing; nor shall any motion to reopen for the
purpose of affording the alien an opportunity to apply for any form of
discretionary relief be granted if it appears that the alien's right to
apply for such relief was fully explained to him or her and an
opportunity to apply therefore was afforded at the former hearing,
unless the relief is sought on the basis of circumstances that have
arisen subsequent to the hearing. Subject to the other requirements
and restrictions of this section, and notwithstanding the provisions in
§ 1001.1(p) of this chapter, a motion to reopen proceedings for
consideration or further consideration of an application for relief
under section 212(c) of the Act (8 U.S.C. 1182(c)) may be granted if
the alien demonstrates that he or she was statutorily eligible for such
relief prior to the entry of the administratively final order of
deportation.
8 C.F.R. § 1003.2(c)(1). We have held that, “[a]t a minimum, there are at least
three independent grounds upon which the Board may deny a motion to reopen: 1)
failure to establish a prima facie case; 2) failure to introduce evidence that was
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material and previously unavailable; and 3) a determination that despite the alien's
statutory eligibility for relief, he or she is not entitled to a favorable exercise of
discretion.” Najjar, 257 F.3d at 1302.
In the instant case, the BIA did not abuse its discretion by denying
Shenoda’s motion to reopen because the documentary evidence that Shenoda
presented in support of his motion did not establish a change in country conditions
sufficient to demonstrate a prima facie case of eligibility for withholding of
removal. The documentary evidence Shenoda submitted enumerated new incidents
of violence against Christians in Egypt and the BIA recognized as much in its
order: “[W]e acknowledge that Coptic Christians, such as respondent, continue to
suffer discrimination and isolated instances of violence in Egypt.” However, as the
BIA observed, the new evidence did not demonstrate that the frequency of the
incidents had increased since his case was before the IJ, nor did the evidence refute
the fact that relocation is possible for him in Egypt. In short, the proffered new
evidence did not establish changed circumstances sufficient to show that country
conditions had changed in Egypt such that he was now eligible for withholding of
removal.3
3
We have rejected Shenoda’s additional argument that the REAL ID Act provides us with
jurisdiction to review a BIA decision that an asylum application was untimely. See Chacon-Botero
v. U.S. Att’y Gen., --- F.3d ----, 2005 WL 2456877 *3 (11th Cir. Oct. 6. 2005) (holding that even
after enactment of Real ID Act, this Court lacks jurisdiciton to review decision that asylum
application was untimely). The REAL ID Act does not provide a basis for reopening of Shenoda’s
8
Upon review of the record, consideration of the parties’ briefs, and for the
above stated reasons, we discern no reversible error. Accordingly, we deny
Shenoda’s petitions for review.
PETITIONS DENIED.
case. Finally, we can find no abuse of discretion on the other grounds on which Shenoda challenges
the denial of his motion to reopen.
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