Bassam E. Fangary v. U.S. Atty. General , 184 F. App'x 932 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
------------------------------------------- U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Nos. 05-10173 & 05-13712 June 22, 2006
Non-Argument Calendar THOMAS K. KAHN
-------------------------------------------- CLERK
BIA No. A79-489-668
BASSAM E. FANGARY,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of a Decision of the
Board of Immigration Appeals
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(June 22, 2006)
Before EDMONDSON, Chief Judge, ANDERSON and BIRCH, Circuit Judges.
PER CURIAM:
Bassam E. Fangary, a native and citizen of Egypt, petitions for review of the
orders of the Board of Immigration Appeals (“BIA”) (1) affirming the immigration
judge’s (“IJ”) denial of asylum, withholding of removal, and relief under the
United Nations Convention Against Torture (“CAT”), and (2) denying Fangary’s
motion to reopen proceedings. We dismiss the petition in part and deny it in part.
“We review only the [BIA’s] decision, except to the extent it expressly
adopts the IJ’s opinion.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.
2001). Here, the BIA affirmed the IJ’s denial of asylum, withholding of removal,
and CAT relief without expressly adopting that decision: we review the BIA’s
decision. We review the BIA’s factual determinations under the substantial
evidence test. Id. at 1283-84. Under the highly deferential substantial evidence
test, we “must affirm the BIA’s decision if it is supported by reasonable,
substantial, and probative evidence on the record considered as a whole.” Id.
at 1284 (quotation omitted). “To reverse the [BIA’s and] IJ’s fact findings, we
must find that the record not only supports reversal, but compels it.” Mendoza v.
U.S. Attorney Gen., 327 F.3d 1283, 1287 (11th Cir. 2003) (emphasis added).
Fangary argues that the IJ and the BIA erred in determining that his asylum
application was time-barred. He concedes that we have no authority to review a
decision on whether he complied with the one-year time limit or established
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extraordinary circumstances that would excuse a late filing. But Fangary, citing
nonbinding authority about staying voluntary departure orders, contends that we
can stay the one-year time limit.
Even after the enactment of the REAL ID Act of 2005, Pub.L. No. 109-13,
119 Stat. 231, we lack jurisdiction to review a decision about the untimeliness of
Fangary’s asylum application. See 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D);
Chacon-Botero v. U.S. Attorney Gen., 427 F.3d 954, 957 (11th Cir. 2005). And
we decline to apply the case law on staying voluntary departure orders in the way
Fangary suggests. We dismiss the portion of Fangary’s petition on his asylum
claim.
But we do consider Fangary’s arguments challenging the BIA’s denial of
withholding of removal and CAT relief. Fangary contends that he was persecuted
in the past because of his religion (Christian) and that, because of the massacre of
21 Coptic Christians in El-Kosheh, Egypt, in January 2000 and the increasing
strain between minority Coptic Christians and “Muslim fundamentalists,” his life
or freedom more likely than not would be threatened if he were forced to return to
Egypt.
To seek withholding of removal, Fangary must show that his life would be
threatened in Egypt on account of, in pertinent part, his religion. See Mendoza,
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327 F.3d at 1287. Fangary “bears the burden of demonstrating that he
more-likely-than-not would be persecuted or tortured upon his return to” Egypt.
Id. If credible, his testimony may be enough to satisfy this burden without
corroboration. Id.If Fangary establishes past persecution, it is presumed that his life or
freedom would be threatened upon returning to Egypt. 8 C.F.R. § 208.16(b)(1)(i).
If Fangary does not establish past persecution, he “may still be entitled to
withholding of removal if he can demonstrate a future threat to his life or freedom
on a protected ground in his country.” Mendoza, 327 F.3d at 1287.
Substantial evidence supports the determination that Fangary did not suffer
past persecution because of his religion. Fangary was the target of religious
discrimination as a child and as a student: other children spat on him and threw
dirt in his face, his Muslim teachers treated him with hostility, and Muslim college
students insulted and beat him. But this poor treatment does not compel a
conclusion that Fangary was persecuted. See, e.g., Mansour v. Ashcroft, 390
F.3d 667, 670-73 (9th Cir. 2004) (Egyptian Christian asylum applicant’s claims of
being struck with a leather swath, being slapped and struck by schoolteachers, and
being chased by Muslim children throwing rocks did not rise to the level of
persecution).
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Fangary also points to mistreatment by Egyptian police on two occasions.
Police interrogated him about the theft of 40 million Italian lira from his employer.
Fangary, though, did not establish that he was singled out for his religion or that
the police seriously mistreated him.1 Police also questioned him about a magazine
he published for children in Christian Sunday school; but Fangary conceded that
he only was threatened with detention and not harmed. And although Fangary
asserts that the police did not respond promptly on two occasions when he
suffered mistreatment from private citizens,2 Fangary conceded that he was injured
slightly during one incident and was not injured during the other incident.
The evidence shows that Fangary at times suffered religion-based
discrimination. But the evidence does not compel us to conclude that this
discrimination rises to the level of persecution. See Sepulveda v. U.S. Attorney
Gen., 401 F.3d 1226, 1231 (11th Cir. 2005) (stating that persecution is an
“extreme concept” and that mere harassment does not amount to persecution); see
also Nelson v. INS, 232 F.3d 258, 263 (1st Cir. 2000) (persecution “must rise
above unpleasantness, harassment, and even basic suffering”).
1
Fangary was interrogated for about 8 hours, during which he was not allowed to eat or use the
bathroom, and he heard a coworker, who was Christian, yelling and being beaten.
2
A group of Muslim teens threw bottles and stones through a grocery store window at Fangary
and the Christian store owner, injuring Fangary; and Fangary’s church was vandalized by a group
of Muslims.
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And substantial evidence supports the determination that Fangary failed to
establish a well-founded fear of future persecution if he returned to Egypt. Recent
State Department reports indicate that the government has taken steps to promote
religious harmony and that conditions are improving for Christians in Egypt.
Fangary’s family remains in Egypt: he conceded that his family has not been
harmed. And Fangary admitted that police responded when they were called after
an attack on his father’s church. The evidence does not compel us to conclude that
Fangary was entitled to withholding of removal.
In a similar way, Fangary has not shown that it is more likely than not that
he will be tortured by the Egyptian government or that the government will
acquiesce in his torture if he is removed to Egypt. See Sanchez v. U.S. Attorney
Gen., 392 F.3d 434, 438 (11th Cir. 2004). He, thus, has not shown his eligibility
for CAT relief.
Fangary next argues that the BIA abused its discretion in denying his
motion to reopen,3 based on his allegedly bona fide marriage and on evidence he
claims satisfies the requirements set out in Matter of Velarde-Pacheco, 23 I&N
3We review the BIA’s denial of a motion to reopen for an abuse of discretion. Abdi v. U.S.
Attorney Gen., 430 F.3d 1148, 1149 (11th Cir. 2005). Our review is limited to determining “whether
there has been an exercise of administrative discretion and whether the matter of exercise has been
arbitrary or capricious.” Id. (citations omitted).
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Dec. 253 (BIA 2002).4 Fangary submitted documents supporting his claim that his
marriage was bona fide in a supplement to the motion to reopen. But our review
of the record shows that the BIA did not receive this evidence until after it had
denied his motion to reopen. When the BIA denied his motion to reopen, Fangary,
thus, had presented no evidence--let alone the “clear and convincing evidence”
required by Velarde--demonstrating a strong likelihood that his marriage was bona
fide. And although Fangary asserts that the BIA did not provide enough
explanation in its denial order, the BIA stated that it was denying his motion to
reopen because of the lack of clear and convincing evidence of a bona fide
marriage. The BIA did not act arbitrarily or capriciously in denying the motion to
reopen.
PETITION DISMISSED IN PART, DENIED IN PART.
4
In Velarde, the BIA explained that a properly filed motion to reopen for adjustment of status
based on a marriage may be granted, at the BIA’s discretion, if: (1) the motion is timely filed; (2) the
motion is not numerically barred by the regulations; (3) the motion is not barred on any procedural
grounds; (4) clear and convincing evidence is presented indicating a strong likelihood that the
marriage is bona fide; and (5) the INS does not oppose the motion. 23 I&N Dec. at 256.
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