Morkos v. Holder ( 2009 )

09-0973-ag
Morkos v. Holder
BIA
Brennan, IJ
A099-682-901
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS
FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A
LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
“(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 23 rd day of December, two thousand nine.
5
6 PRESENT:
7 RALPH K. WINTER,
8 PIERRE N. LEVAL,
9 REENA RAGGI,
10 Circuit Judges.
11 _______________________________________
12
13 MINA MAKRAM MORKOS,
14 Petitioner,
15
16 v. 09-0973-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: David A. Barnett, Frenkel,
24 Hershkowitz, & Shafran LLP, New
25 York, New York.
1 FOR RESPONDENT: Tony West, Assistant Attorney
2 General, Civil Division; Russell
3 J.E. Verby, Senior Litigation
4 Counsel; Carmel A. Morgan, Trial
5 Attorney, Office of Immigration
6 Litigation, United States Department
7 of Justice, Washington, D.C.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 decision of the Board of Immigration Appeals (“BIA”), it is
11 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
12 review is DENIED.
13 Petitioner Mina Makram Morkos, a native and citizen of
14 Egypt, seeks review of a February 13, 2009 order of the BIA
15 affirming the April 26, 2007 decision of Immigration Judge
16 (“IJ”) Noel A. Brennan denying Morkos’s applications for
17 asylum, withholding of removal, and relief under the
18 Convention Against Torture (“CAT”). In re Mina Makram
19 Morkos, No. A099 682 901 (B.I.A. Feb. 13, 2009), rev’g No.
20 A099 682 901 (Immig. Ct. N.Y. City, Apr. 26, 2007). 1 We
21 assume the parties’ familiarity with the underlying facts
22 and procedural history of the case.
1
Although the BIA remanded to the IJ to allow her to
consider Morkos’s request for voluntary departure, “a BIA
order denying relief from removal and remanding for the
sole purpose of considering voluntary departure is a
final order of removal that this Court has jurisdiction
to review.” Alibasic v. Mukasey, 547 F.3d 78, 83-84 (2d
Cir. 2008).
2
1 When the BIA reverses the IJ’s decision in whole, this
2 Court reviews only the decision of the BIA. See Yan Chen v.
3 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review the
4 agency’s factual findings under the substantial evidence
5 standard. 8 U.S.C. § 1252(b)(4)(B); see also Corovic v.
6 Mukasey, 519 F.3d 90, 95 (2d Cir. 2008). We review de novo
7 questions of law and the application of law to undisputed
8 fact. See, e.g., Salimatou Bah v. Mukasey, 529 F.3d 99, 110
9 (2d Cir. 2008).
10 We find no error in the BIA’s denial of Morkos’s
11 application for asylum. As the BIA found, he failed to
12 establish that the harm he fears bears a nexus to one of the
13 protected grounds enumerated in the Immigration and
14 Nationality Act (“INA”). See 8 U.S.C. § 1101(a)(42). For
15 applications governed by the amendments to the INA made by
16 the REAL ID Act of 2005, “the applicant must establish that
17 race, religion, nationality, membership in a particular
18 social group, or political opinion was or will be at least
19 one central reason for persecuting the applicant.” 8 U.S.C.
20 § 1158(b)(1)(B)(ii); see also Matter of J-B-N-, 24 I. & N.
21 Dec. 208, 212 (BIA 2007).
22 Here, Morkos, a Coptic Christian, was threatened and
3
1 beaten by the family of a Muslim woman with whom he
2 allegedly had an affair. Although Morkos argues that the
3 woman’s family was motivated by his religious beliefs, as
4 reflected by the family’s desire for him to convert to
5 Islam, substantial evidence supports the BIA’s conclusion
6 that religion was not a central reason for the alleged
7 persecution. See 8 U.S.C. § 1158(b)(1)(B)(ii); Matter of
8 J-B-N-, 24 I. & N. at 216. In particular, Morkos testified
9 that his assailants were angry because “they say there was
10 an affair between me and their daughter” and that they
11 pressured him to convert to Islam to marry the Muslim woman
12 under Egyptian law. Given such testimony, we are not
13 compelled to reach a conclusion contrary to that of the
14 agency. See Ahmed v. Ashcroft, 286 F.3d 611, 612 (2d Cir.
15 2002) (“To reverse under the substantial evidence standard,
16 we must find that the evidence not only supports that
17 conclusion, but compels it.”) (internal quotation marks
18 omitted) (emphasis in original).
19 Even if Morkos had demonstrated the requisite nexus,
20 the BIA found that he failed to show that the Egyptian
21 government is unwilling or unable to control his attackers.
22 See Matter of Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985),
4
1 overruled on other grounds by Matter of Mogharrabi, 19 I. &
2 N. Dec. 439 (BIA 1989); Aliyev v. Mukasey, 549 F.3d 111, 119
3 (2d Cir. 2008). Morkos does not challenge this finding,
4 which was, alone, a proper basis for the denial of his
5 application for asylum.
6 For the foregoing reasons, the petition for review is
7 DENIED. As we have completed our review, any stay of
8 removal that the Court previously granted in this petition
9 is VACATED, and any pending motion for a stay of removal in
10 this petition is DISMISSED as moot. Any pending request for
11 oral argument in this petition is DENIED in accordance with
12 Federal Rule of Appellate Procedure 34(a)(2), and Second
13 Circuit Local Rule 34(b).
14
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
17
18
19 By:___________________________
5