Mahmut Uzun v. Attorney General United States , 533 F. App'x 145 ( 2013 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 13-2142
____________
MAHMUT UZUN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
__________________________________
On a Petition For Review of an Order
of the Board of Immigration Appeals
(Agency No. A087-391-974)
Immigration Judge: Dorothy Harbeck
__________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 14, 2013
Before: VANASKIE, SCIRICA and COWEN, Circuit Judges
(Opinion filed: August 14, 2013)
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OPINION
____________
PER CURIAM
Mahmut Uzun (“Uzun”) petitions for review of the Board of Immigration
Appeals’ final order of removal. For the reasons that follow, we will deny the petition for
review.
Uzun, a native and citizen of Turkey, was admitted to the United States as a non-
immigrant F-1 student in October, 2005 with authorization to remain for a period of six
months. He subsequently received extensions permitting him to remain in the United
States until May 15, 2008. On March 30, 2010, the Department of Homeland Security
issued a Notice to Appear, charging that Uzun was removable under Immigration &
Nationality Act § 237(a)(1)(C)(i) and (B), 8 U.S.C. § 1227(a)(1)(C)(i) and (B), for having
failed to maintain his student status, and as an alien who remained in the United States
for a time longer than permitted. He does not contest that he is removable. On
September 15, 2010, Uzun applied for asylum, withholding of removal, and protection
under the Convention Against Torture, claiming a fear of persecution on the basis of his
secularism in an allegedly increasingly Islamic Turkey.
On January 5, 2011, Uzun appeared for his removal hearing. He testified as
follows. He was born in 1980 in Ankara. His parents and eldest brother continue to live
in Turkey; his other brother and sister are here in the United States. He began
experiencing problems in 1995 while attending high school. A friend enrolled him in a
nationalist, or religious extremist, group without his knowledge or consent, and thereafter
he was pressured to attend meetings. He attended two meetings, fearing punishment by
the group for failing to obey its rules. In 1997, he was forced to act as a bodyguard for
one of the party leaders at a party meeting. In 1998, his older brother was caught having
a meal with a friend in a cafeteria during the month of Ramadan. After the two men left
the cafeteria, they were followed by Islamic fundamentalists and attacked. His brother’s
friend was stabbed many times and his brother was beaten. The friend succumbed to his
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injuries a few days later. The story was picked up by the media and widely reported
throughout Turkey. Uzun, however, was not present during this incident.
In 2000, Uzun graduated from high school and enrolled in a university. Many
extremists were in attendance at the university. On one occasion he was threatened and
humiliated because he wore a “goatee,” which this group told him was not accepted in the
religion because it is not a full beard. Another time he was harassed while holding his
girlfriend’s hand and warned that what he was doing was prohibited outside of marriage.
Then, while waiting at a bus stop near the university, five members of the nationalist
group surrounded him and beat him up; he was not seriously injured but he required a
week of rest and recuperation.
In 2003, Uzun moved in with a friend after his family moved away. He and his
friend were harassed and threatened for drinking alcohol in the privacy of their
apartment. Eventually, they were evicted. They moved to another apartment closer to
the university, but were harassed by their neighbors when female students would come
over to study. They were only able to stay in the apartment because they stopped having
female visitors. Uzun decided to study in the United States to improve his English, get a
Master’s Degree in Engineering, and get away from the problems in Turkey. He initially
came to the U.S. on a student visa in 2004, and then returned to Turkey after four months.
He subsequently departed Turkey for good in October, 2005.
Uzun testified that he is afraid that, if he is removed to Turkey, he will be targeted
by Islamic fundamentalists. He believes that the AK party, the regime currently in
power, is seeking to impose Sharia law. Uzun cannot live in this environment. In
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support of his claim, his brother, who was beaten in Turkey, and his former roommate
from Turkey, both testified. His brother confirmed the attack where he was beaten and
his friend was stabbed and killed. Uzun also submitted news articles substantiating the
attack, and dozens of background documents addressing country conditions in Turkey,
including the 2009 State Department Report on Human Rights Practices.
The Immigration Judge denied Uzun’s application for relief and granted him
voluntary departure, with an alternate order of removal. The IJ found Uzun credible, but
held that his asylum application was untimely, and that he had not met his burden of
proof with respect to withholding of removal and CAT relief. Preliminarily, the IJ recited
the names of all of Uzun’s media articles, and announced that only one – from Wikinews
– would not be afforded evidentiary weight. The IJ then turned to the withholding of
removal claim and determined that what happened to Uzun constituted harassment or
discrimination, not persecution. The IJ concluded that what Uzun experienced at the
hands of Islamists or nationalists did not rise to the level of the severe harm required to
constitute persecution. The IJ further determined that Uzun did not establish a well-
founded fear of persecution in Turkey, and thus necessarily a clear probability of
persecution. The IJ determined that Uzun’s fear that Turkey will become an Islamic state
ruled by Sharia law was mere speculation that lacked support in the record. There was no
evidence that Uzun would be singled out for persecution, or evidence that the
mistreatment of secularists in Turkey is pervasive. The IJ noted Uzun’s documents
reporting, for example, on Prime Minister Erdogan’s fundamentalist AK political party,
but observed that Erdogan became Prime Minister in 2002 and had yet to force Sharia
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law on Turkey. The IJ noted media reports that the Turkish government continues to
enforce the head scarf ban in public buildings, and, that, according to the State
Department, the Turkish Constitution protects religious freedom. As for the other articles
Uzun submitted discussing topics such as the Israeli blockade of Gaza and the Turkish
Gaza-bound aid ship that was attacked, and Turkey’s treatment of conscientious
objectors, the IJ found that these articles were not directly probative of Turkish
secularism. The IJ also noted that Uzun’s parents and eldest brother remain in Turkey
and have not been harmed, and Uzun voluntarily returned to Turkey in 2004 and was not
harmed. Last, the IJ concluded that Uzun had not shown that it was more likely than not
that he would be tortured in Turkey.
Uzun timely appealed to the Board of Immigration Appeals. On March 29, 2013,
the Board dismissed Uzun’s appeal and adopted and affirmed the IJ’s decision. The
Board agreed with the IJ that Uzun failed to demonstrate that the harm he suffered, even
if the incidents were considered in the aggregate, rose to the level of persecution. The
Board also agreed that there was insufficient evidence to demonstrate that Uzun has a
well-founded fear of persecution, either because he will be singled out for persecution or
because there is a pattern or practice in Turkey of persecution of secularists. In reaching
this conclusion, the Board took administrative notice of, and considered, the State
Department’s 2010 Human Rights Report, which Uzun submitted for the first time on
appeal. The Board also affirmed the IJ’s denial of CAT relief.
Uzun has timely petitioned for review of the Board’s decision. We have
jurisdiction under 8 U.S.C. § 1252(a)(1), (b)(1). Uzun contends in his brief that the
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agency erred by limiting its past persecution analysis to only five specific instances of
harm, and that the agency’s determination that he failed to demonstrate a clear probability
of persecution in Turkey is not supported by substantial evidence.1
We will deny the petition for review. Where the Board determines, as it did here,
that the IJ’s factual findings are not clearly erroneous and expressly adopts the IJ’s legal
conclusions, we review the decisions of both the IJ and the Board. See Chen v. Ashcroft,
376 F.3d 215, 222 (3d Cir. 2004). The agency’s “findings of fact are conclusive unless
any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. §
1252(b)(4)(B). See also Immigration & Naturalization Serv. v. Elias-Zacarias, 502 U.S.
478, 481 (1992).
An alien may qualify for withholding of removal by demonstrating that he has
suffered persecution in the past, in which case a rebuttable presumption of future
persecution applies. See Garcia v. Att’y Gen. of U.S., 665 F.3d 496, 505 (3d Cir. 2011).
See also 8 U.S.C. § 1231(b)(3)(C) (“In determining whether an alien has demonstrated
that the alien’s life or freedom would be threatened … the trier of fact shall determine
whether the alien has sustained the alien’s burden of proof” in the manner described in
the asylum statute). If the rebuttable presumption of future persecution does not apply,
an alien may meet his burden by showing a “clear probability” that his life or freedom
would be threatened on account of a protected ground in the proposed country of
removal. Immigration & Naturalization Serv. v. Stevic, 467 U.S. 407 (1984). Clear
1
Uzun does not challenge the agency’s CAT determination or determination that his
asylum application was untimely filed. These issues are waived. See Kost v.
Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993).
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probability is defined to mean that it is more likely than not that an alien would be subject
to persecution. See id. at 429-30. And, as with any claim of persecution, the acts must
be committed by the government or forces the government is either unable or unwilling
to control. See Garcia, 665 F.3d at 505.
Persecution is defined as “threats to life, confinement, torture, and economic
restrictions so severe that they constitute a threat to life or freedom.” Kibinda v. Att’y
Gen. of U.S., 477 F.3d 113, 119 (3d Cir. 2007) (quoting Fatin v. Immigration &
Naturalization Serv., 12 F.3d 1233, 1240 (3d Cir. 1993)). Persecution refers only to
“severe” conduct and “does not encompass all treatment our society regards as unfair,
unjust or even unlawful or unconstitutional.” Id. Here, the agency reasonably
determined that Uzun’s two verbal encounters in high school, the beating at the bus stop
where he was not seriously injured, the eviction, and the subsequent harassment when he
and his college roommate moved to a new apartment, considered in the aggregate, were
not severe enough to constitute persecution. Contrary to Uzun’s assertions, the two
incidents of verbal harassment at school, the incidents of discrimination by landlords and
intimidation by neighbors, and a minor physical altercation, do not compel the conclusion
that he suffered persecution in Turkey. See Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir.
2005). Uzun argues that the agency overlooked his testimony that a friend enrolled him
in a nationalist party without his consent and that he was forced to serve as a bodyguard
on one occasion, see Petitioner’s Brief, at 17-18, but, even with this additional testimony,
his evidence of persecution is insufficient. We conclude that substantial evidence
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supports the agency’s determination that what happened to Uzun was not severe enough
to constitute persecution. Fatin, 12 F.3d at 1240.
In the absence of evidence of past persecution, Uzun had to submit evidence of
country conditions in Turkey showing a clear probability of future persecution by Islamic
fundamentalists intent on enforcing Sharia law. Uzun submitted numerous articles
discussing current events in Turkey, and State Department reports, but this documentary
evidence for the most part contradicts his claim that Turkey is no longer a secular
government. On the contrary, the State Department reports show that Turkey remains a
secular government, and that religious freedom is protected. While some of the articles
show that current President Abdullah Gul has roots in political Islam, and posit that this
constitutes a threat to Turkish secularism, this is speculation and not proof of current
country conditions. Other articles, for example, those concerning the Turkish Gaza-
bound aid ship that was attacked, also are insufficient to prove that Turkey is no longer a
secular government. Several of Uzun’s articles concerned general human rights abuses in
Turkey and have no apparent relevance to the issue of Turkish secularism.
In addition, the agency, in considering the issue of future persecution, properly
noted the relevance of Uzun’s testimony that he was not harmed when he returned to
Turkey in 2004, and that his parents and eldest brother remain in Turkey unharmed. Lie,
396 F.3d at 537. Further, we note that the controlling regulation provides that:
In evaluating whether it is more likely than not that the applicant’s life or
freedom would be threatened in a particular country on account of race,
religion, nationality, membership in a particular social group, or political
opinion, the [agency] shall not require the applicant to provide evidence
that he or she would be singled out individually for such persecution if: (i)
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The applicant establishes that in that country there is a pattern or practice of
persecution of a group of persons similarly situated to the applicant on
account of race, religion, nationality, membership in a particular social
group.
8 C.F.R. § 1208.16(b)(2). Uzun argues that the agency failed to properly credit what
happened to his brother in determining the pattern or practice issue, citing Dia v.
Ashcroft, 353 F.3d 228, 259 (3d Cir. 2003) (violence directed at alien’s family members
supports claim of persecution). See Petitioner’s Brief, at 20. Although we agree that this
type of harm is relevant, in Lie, 396 F.3d at 537, we held that, “to constitute a pattern or
practice, the persecution of the group must be “systemic, pervasive, or organized.”
Uzun’s evidence is insufficient to meet this standard, because he failed to show that the
harm perpetrated on his brother was committed by the government or forces the
government is either unable or unwilling to control. See id. Consequently, the record
does not compel the conclusion that Uzun established a clear probability that his life or
freedom would be threatened in Turkey on account of his secularism.2
For the foregoing reasons, we will deny the petition for review.
2
We reject as meritless Uzun’s argument that the Board should have considered the State
Department’s 2010 International Religious Freedom Report even though he did not
submit this report in support of his case. See Petitioner’s Brief, at 22-24. It is the
applicant’s burden to prove his case. 8 C.F.R. § 1208.16(b)(1). As noted by the Attorney
General, “[i]t would be odd indeed if Mr. Uzun could request [that] the Board consider
one report on appeal [the 2010 Human Rights Report], have that report considered, and
then on [a] petition for review argue [that] the Board failed to consider other reports he
chose not to submit.” See Appellee’s Brief, at 22 n.6.
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