Toumi v. Attorney General of the United States , 244 F. App'x 504 ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
8-7-2007
Toumi v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-1888
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-1888
MUSTAPHA TOUMI,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES;
SECRETARY OF DEPARTMENT OF HOMELAND SECURITY,
Respondents
PETITION FOR REVIEW OF A DECISION OF
THE BOARD OF IMMIGRATION APPEALS
Agency No. A79-733-433
Immigration Judge: Miriam K. Mills
Submitted Under Third Circuit LAR 34.1(a)
May 21, 2007
Before: BARRY, CHAGARES, and TASHIMA,* Circuit Judges
(Opinion Filed: August 7, 2007)
OPINION
BARRY, Circuit Judge
*
The Honorable A. Wallace Tashima, Senior Circuit Judge, United States Court of
Appeals for the Ninth Circuit, sitting by designation.
Mustapha Toumi, a native and citizen of Algeria, petitions for review of an order of
the Board of Immigration Appeals (“BIA”) affirming an Immigration Judge’s (“IJ”)
denial of Toumi’s application for political asylum, withholding of removal, and relief
under Article III of the Convention Against Torture (“CAT”). For the following reasons,
we will deny the petition.
I.
Toumi entered the United States on August 19, 1997, as a nonimmigrant visitor for
business. On May 5, 1998, he was granted F-1 status as a nonimmigrant student.
When it came to the attention of the Department of Homeland Security that Toumi
had never enrolled in school, he was served with a Notice to Appear, which alleged that
he was removable for failing to comply with the conditions of his F-1 status, in violation
of section 1227(a)(1)(C)(I) of the Immigration and Nationality Act (“INA”), 8 U.S.C. §
1227(a)(1)(B). Toumi conceded the charge but applied for asylum, withholding of
removal, and protection under the CAT.
On October 25, 2004, the IJ held a hearing on his application. Toumi testified that
in 1993 military police arrested his father for allegedly collaborating with terrorist groups.
His father was convicted and imprisoned for ten months. Unnamed colleagues at the
Office of Housing and Real Estate Development in Medea, which Toumi headed,
threatened to expose the fact that Toumi’s father had been convicted of collaborating with
terrorists to pressure Toumi into approving licenses and permits that would not otherwise
have been approved, but he never gave in to their demands. Other than the “negative
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climate” the demands created, Toumi suffered no harm by virtue of the father/son
relationship. Toumi also maintained that he had received threatening phone calls from
persons he believed were Islamic fundamentalists because of his pro-Western,
progressive political views.
Following the hearing, the IJ issued an oral decision denying Toumi’s claims. The
IJ found Toumi to be ineligible for asylum because he had failed to file his asylum
application within one year of his arrival in the United States and had not demonstrated
changed circumstances materially affecting his eligibility for asylum or extraordinary
circumstances relating to the delay in filing his application. Additionally, the IJ found
that Toumi lacked credibility: the harm he allegedly suffered was implausible, his
testimony lacked specificity, and inconsistencies between his testimony and that of his
sole witness were unexplained. The IJ denied Toumi withholding of removal and
protection under the CAT, specifically rejecting for a variety of reasons the anonymous
threatening phone calls on which the withholding claim was based, and concluded that his
claims were not only unreliable, but frivolous.
On February 16, 2006, the BIA adopted and affirmed the IJ’s denial of Toumi’s
asylum claim on the basis of his failure to file his application for asylum within one year
of his arrival. The BIA also adopted and affirmed the IJ’s denial of Toumi’s withholding
and CAT claims because Toumi failed to show that he would be persecuted on account of
a protected ground. Finally, the BIA rejected Toumi’s claims that he was denied due
process by the IJ and that the IJ’s decision was based on errors in the translation at the
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hearing.
II.
We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). When, as here, the BIA
both adopts the findings of the IJ and discusses some of the bases for the IJ's decision, we
have authority to review the decisions of both the IJ and the BIA. He Chun Chen v.
Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). We treat factual findings as conclusive
"unless any reasonable adjudicator would be compelled to conclude to the contrary." 8
U.S.C. § 1252(b)(4)(B).
III.
While not contesting the IJ’s application of the one-year bar, Toumi claims, first,
that he is eligible for asylum on the basis of his membership in a particular social group
and political opinion. Even assuming that Toumi meant to say withholding instead of
asylum, he has not met the statutory requirements for relief.
To qualify for withholding of removal, Toumi must establish that his “life or
freedom would be threatened in [Algeria] because of [his] race, religion, nationality,
membership in a particular social group or political opinion.” 8 U.S.C. § 1231(b)(3)(A).
We have interpreted this standard as requiring an applicant to demonstrate that, because
of one of the enumerated grounds, “it is more likely than not that he will face persecution
if he is deported.” Li Wu Lin v. INS, 238 F.3d 239, 244 (3d Cir. 2001). The
determination of whether a person “has suffered from persecution or whether that
individual has a well-founded fear of persecution is factual and thus is entitled to
4
deference." Neng Long Wang v. Gonzales, 405 F.3d 134, 138 (3d Cir. 2005).
Specifically, Toumi argues that his colleagues at the Office of Housing and Real
Estate Development pressured him because of his membership in a social group
consisting of people in his family who were “public official[s] and . . . closely identified
with [Toumi’s] father,” Petr.’s Br. 18, and that pro-Islamist individuals threatened him
because they did not like his progressive ideas.
The IJ's determination that Toumi’s had not shown any evidence of persecution is
supported by substantial evidence. See Zhen Hua Li v. Attorney Gen., 400 F.3d 157, 167
(3d Cir. 2005) (defining persecution as "threats to life, confinement, torture, and
economic restrictions so severe that they constitute a threat to life or freedom"). Toumi
testified that he never succumbed to the pressure to approve licenses but suffered only a
“negative climate” at work. He left his job at the Office of Housing and Real Estate
Development to pursue a Masters Degree in France, but returned safely to Algeria on
several occasions. Moreover, the social group he identifies, members of his family who
live at home and occupy public positions in government, does not amount to what has
been defined as a social group. A particular social group refers to a group of people who
share a common, immutable characteristic, a characteristic that they cannot change or
should not be required to change because it is fundamental to their identities or
consciences. See In re Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985); Lukwago v.
Ashcroft, 329 F.3d 157, 171 (3d Cir. 2003) (accepting BIA's construction of "particular
social group"). Neither place of residence nor profession qualifies under this definition.
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While it is plausible that Islamic fundamentalists believed Toumi to hold pro-
Western views because of his professional position and French degree, and even if the
telephone calls he received were intended as threats, Toumi does not claim to have ever
been harmed. It was also reasonable for the IJ to conclude, based on Toumi’s testimony,
that the unnamed persons who telephoned his family’s house and asked if he had returned
to Algeria could have been seeking to contact him for any number of innocent reasons.
IV.
In his second point, Toumi argues that the IJ incorrectly assessed and discounted
his sister’s testimony, and, had the IJ not done so, the IJ would not have required
corroboration or found that his sister contradicted him. Our review of his sister’s
testimony, however, indicates that it does contradict several of Toumi’s statements.
Although Toumi testified that his father’s imprisonment tarnished his family’s reputation
and that his colleagues sought to accuse his family of terroristic associations, Toumi’s
sister stated that the rest of the family “was able to continue their normal life.” Petr.’s Br.
19. Toumi contends that the IJ ignored the fact that the rest of the family did not live at
home or work in government, but these distinctions do not negate the inconsistency.
Toumi’s sister also described the telephone calls the family received in which unnamed
persons asked about Toumi’s whereabouts, but she admitted that she had never personally
answered the telephone. Toumi maintains that the fact that the callers did not leave their
names is probative of their hostility towards him. It was, however, wholly appropriate for
the IJ to expect statements from the members of Toumi’s family who did answer the calls
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and who have allegedly advised him not to return to Algeria.
Even if the IJ had accepted Toumi’s sister’s testimony in its entirety, the IJ still
would have been justified in requiring Toumi to corroborate his claims that he was
harmed by his father’s arrest and that it would be dangerous for him to return to Algeria.
While an applicant's testimony may sometimes be sufficient to sustain his burden of proof
without corroboration, see 8 C.F.R. § 208.13(a); 208.16(b), an IJ may nonetheless require
corroboration when the applicant may be "reasonably expected" to provide it, Dia v.
Ashcroft, 353 F.3d 228, 253 (3d Cir. 2003). We have described this analysis as requiring
of the IJ: "(1) an identification of facts for which it is reasonable to expect corroboration;
(2) an inquiry as to whether the applicant has provided information corroborating those
facts; and, if he or she has not, (3) an analysis of whether an applicant has adequately
explained why s/he was unable to do so." Mulanga v. Ashcroft, 349 F.3d 123, 134 (3d
Cir. 2003).
We conclude that it was not unreasonable for the IJ to expect Toumi to corroborate
his testimony as to the harm caused him by his father’s arrest and the danger he would
face were he to return to Algeria. See 8 U.S.C. § 1252(b)(4)(D). Although corroborating
evidence may be unavailable in some cases because of the conditions under which a
petitioner has fled his country, see Mulanga, 349 F.3d at 136-37, the record in this case
does not suggest any such conditions here. We cannot conclude that the IJ erred in
finding that, given the dearth of corroboration on key assertions, Toumi failed to show
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that he was entitled to withholding of removal.1
V.
Third, Toumi contends that given what happened to his father in 1993, he qualifies
for asylum on humanitarian grounds. Because of the statutory time bar, which he does
not dispute, and because he did not raise this claim before the BIA, we do not consider it.
VI.
Finally, Toumi argues that he was deprived of competent translation at his removal
hearing. In support of this argument, he cites a single instance where the translator
advised the IJ that he was having difficulty understanding Toumi. The IJ asked Toumi to
repeat his response, and no further difficulty was indicated. Toumi’s counsel never
objected to the quality of the translation at the hearing. As the BIA observed, “review of
the transcript fails to reveal any significant misunderstanding or that the respondent
complained that he did not understand the interpreter at that time.” We agree.
VII.
For the foregoing reasons, we will deny the petition for review.
1
Toumi also suggests that the IJ erred in using the Country Reports, which indicate
that the Algerian government has violated the human rights of accused terrorists, to
discount his fear of the alleged threats from Islamic fundamentalists. According to him,
the IJ should have viewed the Country Reports as confirming his independent fear of his
co-workers, who allegedly pressured him because of his father’s arrest as a terrorist
collaborator. This argument, however, lacks merit. Toumi has made no credible showing
that he was harmed by his failure to accommodate his co-workers’ demands.
8