Badawy v. Attorney General of the United States , 390 F. App'x 165 ( 2010 )

IMG-272 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-3300
___________
SALAMA RABABA BADAWY,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A36 355 093)
Immigration Judge: Honorable Alberto J. Riefkohl
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 4, 2010
Before: FUENTES, VANASKIE and VAN ANTWERPEN, Circuit Judges
(Opinion filed: August 6, 2010)
___________
OPINION
___________
PER CURIAM
Salama Rababa Badawy, a citizen of Egypt, was admitted to the United States in
July 1978, at age 3. In September 2007, she was convicted in New Jersey of possession
of a controlled dangerous substance with intent to distribute. See N.J. Stat. Ann.
§§ 2C:35-5b(10)(b); 2C:35-7. Badawy was charged with removability for having been
convicted of an aggravated felony as defined in Immigration and Nationality Act (“INA”)
§ 101(a)(43)(B) [8 U.S.C. § 1101(a)(43)(B) ] (illicit trafficking in controlled substance),
see INA § 237(a)(2)(A)(iii) [8 U.S.C. § 1227(a)(2)(A)(iii) ], and for having been
convicted of a controlled substance offense, see INA § 237(a)(2)(B)(i) [8 U.S.C.
§ 1227(a)(2)(B)(i)]. Badawy conceded that she was removable as charged and sought
relief under the United Nations Convention Against Torture (“CAT”), alleging that she
will be tortured or killed in Egypt because she is a lesbian and because she has two
children born out of wedlock, visible tattoos, and a criminal record involving drugs.
Despite “recogniz[ing] the weakness” in Badawy’s CAT application, the
Immigration Judge (“IJ”) granted relief. Specifically, the IJ concluded that Badawy’s
“characteristics,” when considered in conjunction with other “factors” that were
specifically related to her, made it more likely than not that she would be subject to
torture if removed.1 This determination was based in part on In re G-A-, 23 I. & N. Dec.
366, 372 (BIA 2002), where the Board of Immigration Appeals (“BIA”) granted CAT
relief to an Iranian Christian of Armenian descent who had lived in the United States for
over 25 years “based on the combination of factors presented, including [the applicant’s]
religion, his ethnicity, the duration of his residence in the United States, and his
1
Those “factors” included Badawy’s long residence in this country, her inability to
communicate in Arabic, the absence of any family in Egypt, her lack of job skills, and a
learning disability.
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drug-related convictions in this country.” The Government appealed.
The BIA sustained the appeal and ordered Badawy removed to Egypt. The Board
concluded that Matter of G-A- was distinguishable because the record in that case clearly
established that Armenian Christians, persons associated with drug trafficking, and
citizens forcibly returned (especially those returning from the United States) were subject
to harsh treatment in Iran. See 23 I. & N. Dec. at 369-372. By contrast, the BIA held,
“there is no reason that the [Egyptian] government would even be aware that [Badawy]
bore children out of wedlock,” where she testified that her children would not return to
Egypt with her. In addition, the Board cited a lack of evidence that the Egyptian
government tortures lesbians, tattooed individuals, or returning citizens who have been
convicted of drug crimes abroad. Badawy filed a timely petition for review.
We exercise jurisdiction to review the BIA’s final order of removal under INA
§ 242(a) [8 U.S.C. § 1252(a)].2 The CAT prevents the United States government from
removing an alien to a country where torture will occur. See 8 C.F.R. § 1208.16(d)(1).
The torture must be “inflicted by or at the instigation of or with the consent or
acquiescence of” an official person. 8 C.F.R. § 1208.18(a)(1). It is the applicant’s
burden to establish “that it is more likely than not” that she will be tortured if removed. 8
C.F.R. § 1208.16(c)(2). The applicant must meet this burden with objective evidence.
2
Contrary to the Government’s contention, Badawy raises questions of law, which we
have jurisdiction to review. See INA § 242(a)(2)(D) [8 U.S.C. § 1252(a)(2)(D)]; Singh v.
Gonzales, 432 F.3d 533, 537-38 (3d Cir. 2006).
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See Sevoian v. Ashcroft, 290 F.3d 166, 175 (3d Cir. 2002). The BIA’s denial of relief
under the CAT is reviewed under the substantial-evidence test. See Zubeda v. Ashcroft,
333 F.3d 463, 471 (3d Cir. 2003).
We agree that Badawy has failed to establish that she is “more likely than not” to
be tortured if returned to Egypt. Her testimony did not “establish, by objective evidence
that [she] is entitled to relief.” Sevoian, 290 F.3d at 175 (internal quotation marks and
citation omitted). On direct examination, Badawy stated that in Egypt “they don’t believe
in having kids out of wedlock, . . . they’re very strict on women[,]” and that tattoos are
“against the Muslim religion.” Later, however, when asked by her attorney, “[w]hat do
you know about Egypt that makes you afraid to go there,” Badawy responded, “I don’t
know [any]thing about Egypt. . . . I just know how Muslims are, and I know how people
from my county are.” Part of this knowledge apparently came from Badawy’s brother,
who told her that Egyptian citizens have been known to harm and kill women because of
their tattoos. But this nonspecific, secondhand assertion fails to meet Badawy’s burden of
proof.
In addition, the documents that Badawy submitted in support of her application are
not sufficient to sustain a claim for CAT relief. Badawy relied on a non-governmental
organization report concerning “Honour Killings,” which “refer to the murder of a
woman by her male family members for a perceived violation of the social norms of
sexuality, or a suspicion of women having transgressed the limits of social behaviour
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imposed by traditions.” Badawy does not fear harm from her family, however. In fact,
Badawy claimed that she has no family living in Egypt and that her brothers are “very
supportive” of her. Badawy also provided a document titled “The Islamic Sexual
Morality,” which states that pre-marital sex is a sin, identifies homosexuality as a crime,
and specifies that the punishment for unmarried lesbians is 100 lashes, while married
lesbians are to be stoned to death. Notably, however, this document appears to provide
details about the “Islamic legal system,” and does not demonstrate that Badawy would be
tortured under Egyptian law. The State Department Country Reports indicate that there is
discrimination and violence against women in Egypt, and that in the past the police have
targeted homosexuals using “Internet-based ‘sting’ operations.” The record also contains
documents indicating that tattooing is prohibited by Islam, an article about the dangers
faced by a homosexual man in an Egyptian prison, and a report describing increased
punishments for drug violations. While this evidence suggests that an individual with
Badawy’s characteristics may face discrimination or harassment, it does not compel the
conclusion that it is likely that she will be tortured if removed to Egypt.
Badawy has not adequately supported her arguments that the Board prevented her
from presenting evidence, rendered an arbitrary decision, imposed an “impermissible
burden of proof,” and failed to consider her evidence in the aggregate. The discussions in
her brief of her subjective fears, the standard for granting asylum, and review of adverse
credibility determinations are not relevant to this petition. To the extent Badawy contends
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that the BIA improperly weighed the evidence she presented, we lack jurisdiction. See
Jarbough v. Att’y Gen., 483 F.3d 184, 189 (3d Cir. 2007) (“Specifically, courts have
recognized arguments such as that an Immigration Judge or the BIA incorrectly weighed
evidence, failed to consider evidence or improperly weighed equitable factors are not
questions of law under” INA § 242(a)(2)(D) [8 U.S.C. § 1252(a)(2)(D)]).
For the foregoing reasons, we will deny Badawy’s petition for review.
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