Marzouk v. Attorney General of United States , 180 F. App'x 393 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
5-18-2006
Marzouk v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-2008
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 05-2008
SAMY E. MARZOUK,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A73 554 637
Submitted Pursuant to Third Circuit LAR.34.1(a)
March 27, 2006
Before: McKee, Van Antwerpen, Circuit Judges, and
Pollak, District Judge*
(Opinion filed May 18, 2006)
OPINION
McKee, Circuit Judge
Samy Marzouk petitions for review of a decision of the Board of Immigration
Appeals affirming the Immigration Judge’s denial his applications for asylum and
withholding of removal. For the reasons that follow, we will dismiss the petition for
*
The Honorable Louis H. Pollak, Senior District Judge, United States District Court
for the Eastern District of Pennsylvania, sitting by designation.
review.
Inasmuch as we write primarily for the parties, who are familiar with the factual
and procedural background of this case, we need not reiterate them here. We have
jurisdiction pursuant to § 242(b) of the Immigration and Nationality Act, 8 U.S.C. §
1252(b) (2000), as amended by the REAL ID Act. See REAL ID Act of 2005, § 106(a),
Pub. L No. 109-13, Div. B, 119 Stat. 231 (May 11, 2005).
We must affirm the denial of asylum and withholding of removal unless the
evidence before us is “so compelling that no reasonable factfinder could fail to find the
requisite fear of persecution.” INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992). In
order to establish eligibility for grant of asylum, Marzouk must show either past
persecution on account of his religion (the protected trait he relies upon) or that he has
“well founded fear” of future persecution based upon his religion. Lukwago v. Ashcroft,
329 F.3d 153, 167 (3d Cir. 2003), See 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1).
He can establish past persecution by introducing sufficient evidence that, because
of his religion, he has endured persecution from agents of the Egyptian government, or
from “forces that the government [was] either unable or unwilling to control.” Mulanga
v. Ashcroft, 349 F.3d 123, 132 (3d Cir. 2003). A showing of past persecution gives rise to
a rebuttable presumption of a well founded fear of future persecution that will support his
claim for asylum. Id. at 132.
In order to establish eligibility for withholding of removal pursuant to 8 U.S.C. §
1231(b)(3)(A), Marzouk would have to show a “clear probability” that he would face
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persecution in Egypt if he were to return there. INS v. Stevic (467 U.S. 407, 430) (1984).
The “clear probability” standard is higher than the “well founded fear” standard for
asylum because it requires that an alien show that it is “more likely than not” that he
would be subject to persecution if returned to his native country. INS v. Cardoza-
Fonseca, 480 U.S. 421, 430-32 (1987). Accordingly, if Marzouk can not establish
eligibility for asylum, he can not establish the well founded fear required to satisfy the
higher threshold for withholding of removal. Zubeda v. Ashcroft, 333 F.3d 463, 469-70
(3d Cir. 2003).
The Immigration Judge relied upon several inconsistencies between Marzouk’s
testimony at his immigration hearing and his asylum affidavit as well as inconsistencies in
the testimony which he gave during the course of his asylum hearing to conclude that he
was not credible. Those findings are supported by the record.
We realize that we have been critical of adverse credibility findings that rely upon
minor inconsistencies between asylum affidavits and testimony which petitioners give
during the course of an asylum hearing. See Senathirajah v. INS, 157 F.3d 210, 218 (3d
Cir. 1998). Here, however, the Immigration Judge detailed inconsistencies that could not
easily be ignored. Those inconsistencies are detailed in the Immigration Judge’s decision.
We realize that some of the perceived inconsistencies in Marzouk’s testimony may result
from a failure to allow for possible cultural differences. For example, Marzouk’s concern
that the hospital nurse’s attempts to bring him coffee and tea or go out to dinner were a
form of harassment, could readily be dismissed if viewed from the context of a different
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culture. Regardless of how we view that testimony, it simply does not rise to the level of
persecution required for relief under the INA. See Manzoor v. United States Dept. of
Justice, 254 F.3d 342, 346 (1st Cir. 2001) (“[W]e can say that while persecution is not
restricted to threats to life or freedom, it requires more that ‘mere harassment or
annoyance.’”) (citation omitted). Nevertheless, given the many inconsistencies here, this
record still would not contain sufficient evidence to compel us to conclude that the
Immigration Judge erred in finding that Marzouk was not credible.
Accordingly, for the foregoing reasons, we will dismiss Marzouk’s petition for
review.1
.
1
In his brief, Marzouk lists as one of his issues that the BIA erred in denying his
motion to reopen removal proceedings. Petitioner’s Br. at 19-22. However, because he
did not file a petition for review of the denial of his motion to reopen, that issue is not
properly before us. See INA § 242(b), 8 U.S.C. § 1252(b), as amended by the REAL ID
Act of 2005, § 106(a), Pub. L. No. 109-13, Div. B, 119 Stat. 231 (May 11, 2005), which
confers exclusive jurisdiction in the Court of Appeals to review final orders of removal.
We have previously held that a final order of deportation includes a BIA order denying a
motion to reopen. Korytnyuk v. Ashcroft, 396 F.3d 272, 280 (3d Cir. 2005).
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