Ahmed v. Atty Gen USA ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
8-20-2003
Ahmed v. Atty Gen USA
Precedential or Non-Precedential: Precedential
Docket No. 02-3315P
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PRECEDENTIAL
Filed August 20, 2003
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-3315
OMAR F. AHMED,
Petitioner
v.
JOHN ASHCROFT, ATTORNEY GENERAL
OF THE UNITED STATES OF AMERICA,
Respondent
On Petition for Review of an Order
of the Board of Immigration Appeals
(No. A73-543-250)
Submitted Under Third Circuit LAR 34.1(a)
June 27, 2003
Before: SLOVITER, AMBRO, Circuit Judges, and
TUCKER,* District Judge
(Filed August 20, 2003)
Laraine A. Ryan
Wilmington, DE 19808
Attorney for Petitioner
* Hon. Petrese B. Tucker, United States District Court for the Eastern
District of Pennsylvania, sitting by designation.
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Robert D. McCallum, Jr.
Assistant Attorney General
Civil Division
Emily Anne Radford
Assistant Director
Aviva L. Poczter
Trial Attorney
Office of Immigration Litigation
Civil Division, Department of Justice
Washington, D.C. 20044
Attorneys for Respondent
OPINION OF THE COURT
SLOVITER, Circuit Judge.
Petitioner Omar F. Ahmed, a stateless Palestinian born in
Saudi Arabia, petitions for review of a July 26, 2002 order
of the Board of Immigration Appeals (“BIA”), which affirmed
an Immigration Judge’s decision to deny Ahmed’s
applications for asylum and withholding of deportation.
Ahmed contends that he is entitled to asylum as a refugee
because he has a well-founded fear that, if returned to
Saudi Arabia, he will be persecuted as a member of a
particular social group under 8 U.S.C. § 1101(a)(42), i.e.,
stateless Palestinians.
Because Ahmed was placed in deportation proceedings
before April 1, 1997, and his final order of deportation was
issued by the BIA after October 31, 1996, we have
jurisdiction under 8 U.S.C. § 1105a (1994), as amended by
the transitional rules for judicial review in Section 309(c)(4)
of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat.
3009-306, 3009-625 (Sept. 30, 1996) (“IIRIRA”). See also
Sandoval v. Reno, 166 F.3d 225, 229 (3d Cir. 1999)
(applying IIRIRA transitional rules of jurisdiction).
I.
Ahmed is a 37-year old native of Saudi Arabia of
Palestinian descent. The Immigration and Naturalization
3
Service (“INS”) admitted him into the United States as a
non-immigrant visitor for pleasure on January 31, 1995
with permission to remain in the country until June 30,
1996. He remained beyond that date without authorization
and the INS brought this deportation proceeding against
him on February 19, 1997. On August 26, 1997, Ahmed
admitted that he had overstayed his visitor’s visa and, in
relief of deportation, sought review of his applications for
asylum and withholding of deportation. An Immigration
Judge (“IJ”), following a hearing on the merits of Ahmed’s
application for asylum, determined that Ahmed had not
established past persecution or a well-founded fear of
persecution if returned to Saudi Arabia and denied his
applications for asylum and withholding of deportation.
App. at iii (IJ’s Oral Decision and Order). The BIA affirmed
the IJ’s ruling. App. at ii (BIA order).
The IJ recognized, based on Ahmed’s testimony, that
Palestinians in Saudi Arabia are relegated to officially
sanctioned second-class status incorporated into the legal
and social structure of Saudi Arabia. Ahmed sought to
portray this treatment as persecution providing grounds for
asylum. He testified that although his parents have lived in
Saudi Arabia for 50 years and Ahmed was born in the
country, neither he nor his parents have been able to
obtain Saudi citizenship because Saudi Arabia reserves
citizenship for people of Saudi descent. To remain in the
country, Palestinians must renew their residence permits
every two years for a fee of 2,000 Riyals (about $530).
Palestinians must also be “sponsored” by a Saudi Arabian
citizen to own real property, work, or own a business. To
illustrate the harsh effects of this requirement, Ahmed
related that his father had successfully operated and
expanded a grocery store for 15 years, only to see his Saudi
sponsor — the de jure owner of the store — take the
business away once it became profitable. Each time a
Palestinian wishes to change jobs, he must change
sponsors for a fee of 6,000 Riyals (about $1,600).
Ahmed testified about his experience while growing up in
Saudi Arabia. He was barred from certain activities during
high school and initially was not allowed to attend a
university because he was an alien. Although he was able
4
to gain admission to King Saud University in Riyadh
because of his talent for soccer and the connections of a
family friend, he was forced to study political and
administrative science at the university because aliens
could not choose their own topic of study. After graduating
from the university and searching for a job for more than
a year, Ahmed was hired in 1993 to sell cars. He testified
that he was paid one-third as much as his Saudi
counterparts and had to work significantly longer hours.
As a consequence of Palestinian support for Iraq during
the Gulf War, there were heightened restrictions on
Palestinians in Saudi Arabia and apparently increased
tensions. Ahmed was stopped by a police officer in late
1992 for passing through a red light while driving, which
Ahmed claims was merely a pretext to harass a Palestinian.
Ahmed was jailed for two days on this occasion. In mid-
1993, Ahmed was jailed by Saudi Arabian coast guard
officials for five days because he was suspected of planting
mines while fishing. Ahmed alleges that on both occasions
the police abused and mistreated him while he was in
custody.
Ahmed obtained a visitor’s visa from the U.S. Consul in
July 1995 and visited the United States for four months
which, he testified, strengthened his desire to live in the
United States and “make this wonderful country my home.”
App. at viii. He returned to Saudi Arabia but re-entered the
United States for the last time in December 1995.
II.
The IJ found Ahmed to be credible but denied his
application for asylum. He concluded that Ahmed only
showed that Palestinians living in Saudi Arabia are subject
to discrimination but that such discrimination did not rise
to the level of persecution. The BIA affirmed the IJ’s
decision to deny Ahmed asylum or withholding of
deportation.
We apply a deferential standard of review to the BIA’s
decision. While we must ascertain whether the BIA’s factual
determinations are supported by substantial evidence,
Senathirajah v. INS, 157 F.3d 210, 216 (3d Cir. 1998), we
5
may decline to uphold the BIA’s findings only if the
evidence compels a contrary conclusion. INS v. Elias-
Zacarias, 502 U.S. 478, 481 n.1 (1992); Abdille v. Ashcroft,
242 F.3d 477, 483-84 (3d Cir. 2001). We defer to the BIA’s
interpretation of the Immigration and Nationality Act (“INA”)
unless the interpretation is “ ‘arbitrary, capricious, or
manifestly contrary to the statute.’ ” Katsis v. INS, 997 F.2d
1067, 1070 (3d Cir. 1993) (quoting Chevron U.S.A. Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837, 844
(1984)).
Section 208(b) of the INA, 8 U.S.C. § 1158(b), provides
that the Attorney General has discretion to grant asylum to
refugees. The INA defines a refugee as a person who is
unable or unwilling to return to his 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 bears the burden of
establishing that he falls within this definition. 8 C.F.R.
§ 208.13(a) (2003); Abdille, 242 F.3d at 482. Establishing
eligibility for withholding of deportation requires a showing
of a “clear probability of persecution,” a higher standard
than that for asylum. INS v. Stevic, 467 U.S. 407, 430
(1984); Fatin v. INS, 12 F.3d 1233, 1238 (3d Cir. 1993).
Though the INA provides no definition of persecution, this
court has held that persecution connotes extreme behavior,
including “threats to life, confinement, torture, and
economic restrictions so severe that they constitute a threat
to life or freedom.” Id. at 1240. This definition does not
include “all treatment that our society regards as unfair,
unjust, or even unlawful or unconstitutional.” Id. The
thrust of Ahmed’s claim is that his account of widespread
legal and economic discrimination against Palestinians in
Saudi Arabia, and his imprisonment on two occasions (for
a total of seven days), provides the basis for a well-founded
fear of persecution. While we appreciate Ahmed’s strong
desire to remain in the United States, the BIA’s decision
was based on a reasonable interpretation of the definition
of persecution under the INA. A holding that the treatment
to which Ahmed was subject constitutes persecution would
lower the bar for asylum and mean that “a significant
6
percentage of the world’s population would qualify for
asylum in this country.” Id.Ahmed has not shown that Palestinians in Saudi Arabia
experience treatment that rises to the level of persecution.
See Matter of Mogharrabi, 19 I. & N. Dec. 439, 446 (BIA
1987) (a well-founded fear of persecution “can be based on
what has happened to others who are similarly situated”).
Indeed it appears that the disadvantages he faces in Saudi
Arabia apply not just to Palestinians but more broadly to all
foreigners, who are also denied Saudi citizenship.
Addressing substantially the same claim from another
Saudi-born Palestinian in Faddoul v. INS, the Court of
Appeals for the Fifth Circuit denied asylum, holding that
“[t]o find persecution under these circumstances would
require a finding that jus sanguinis is persecution per se.”
37 F.3d 185, 189 (5th Cir. 1994). The Eleventh Circuit
recently concurred with this holding in Najjar v. Ashcroft,
257 F.3d 1262, 1291-92 (11th Cir. 2001).
Ahmed points to the two instances of his imprisonment
in 1992 and 1993 for a total of seven days as a basis for
his fear of persecution. Although Ahmed contends he was
imprisoned because he was Palestinian, the IJ found that
in both instances the police had grounds to hold Ahmed.
We have no basis to reverse that finding of fact.
Ahmed also seeks to characterize the economic
disadvantages he faces as persecution, but his testimony
belies this conclusion. He is a graduate of King Saud
University, something that apparently few other
Palestinians in Saudi Arabia can claim. With the exception
of one year after his graduation from the University, he was
able to obtain employment. Ahmed’s brother-in-law is a
Saudi citizen who would be able to sponsor him for a
residence permit or job in the future. Other courts of
appeals have held that comparable economic hardship does
not rise to the level of persecution. See, e.g., Sharif v. INS,
87 F.3d 932, 935 (7th Cir. 1996) (finding that economic
hardship did not amount to persecution where alien lost
one job but found another); Saballo-Cortez v. INS, 761 F.2d
1259, 1264 (9th Cir. 1985) (holding that denial of food
discounts and work permit for more desirable type of
employment was not persecution). We also hold that the
7
economic restrictions Ahmed describes are not so severe as
to constitute a threat to life or freedom amounting to
persecution.
Nor are we persuaded that Ahmed’s status as a stateless
Palestinian is a basis for finding the requisite fear of
persecution. Notwithstanding the recognition by both the
United States and the international community of the
problem of statelessness, statelessness alone does not
warrant asylum. Najjar, 257 F.3d at 1293. We agree with
the Fifth Circuit which also was unwilling to consider Saudi
Arabia’s treatment of stateless Palestinians as
“persecution.” Faddoul, 37 F.3d at 190.
III.
Ahmed also argues that the BIA’s summary affirmance
procedure offends due process and rules of administrative
law. Every court of appeals that has examined this issue
has found the BIA’s procedure for streamlining reviews
under 8 C.F.R. § 3.1(a)(7) to be constitutional. Although this
issue is currently pending before this court en banc, we
conclude that Ahmed’s claim on the merits is insufficiently
compelling to warrant our holding up disposition of this
appeal until that decision is forthcoming.
IV.
For the reasons set forth, we will deny Ahmed’s petition
for review.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit