Abdel-Rahman v. Gonzales ( 2007 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
AMR ALI ABDEL-RAHMAN, 
Petitioner,
v.
 No. 06-1619
ALBERTO R. GONZALES, Attorney
General,
Respondent.

On Petition for Review of an Order of
the Board of Immigration Appeals.
(A77-045-405)
Argued: March 16, 2007
Decided: July 12, 2007
Before WILLIAMS, Chief Judge, and KING
and DUNCAN, Circuit Judges.
Petition for review denied by published opinion. Judge King wrote
the opinion, in which Chief Judge Williams and Judge Duncan joined.
COUNSEL
ARGUED: Andres Cayetano Benach, MAGGIO & KATTAR, Wash-
ington, D.C., for Petitioner. Daniel Eric Goldman, UNITED STATES
DEPARTMENT OF JUSTICE, Office of Immigration Litigation,
Washington, D.C., for Respondent. ON BRIEF: Michael Maggio,
Melissa Frisk, MAGGIO & KATTAR, Washington, D.C., for Peti-
tioner. Peter D. Keisler, Assistant Attorney General, Civil Division,
2 ABDEL-RAHMAN v. GONZALES
M. Jocelyn Lopez Wright, Assistant Director, UNITED STATES
DEPARTMENT OF JUSTICE, Office of Immigration Litigation,
Washington, D.C., for Respondent.
OPINION
KING, Circuit Judge:
Petitioner Amr Abdel Rahman Ali, an Egyptian Army deserter,
seeks our review of an Order of the Board of Immigration Appeals
(the "BIA"), entered May 2, 2006, denying his application for asylum
and withholding of removal.1 Ali maintains that the BIA erred in two
respects in denying his requests for asylum and withholding of
removal. First, Ali asserts that the BIA erroneously decided that he
had not established a well-founded fear of persecution on the basis of
his actual or imputed political opinions. Second, Ali contends that the
BIA erred in ruling that a disclosure to Egyptian officials by the
Department of Homeland Security (the "DHS") that he was applying
for asylum in this country failed to establish an independent ground
for relief. As explained below, we reject these contentions and deny
the petition for review.
I.
A.
Ali is a citizen of Egypt who entered the United States on June 27,
2004, on a diplomatic visa. As a Major in the Egyptian Army, Ali
came to this country to undergo training at the United States Army’s
Logistics Management College in Fort Lee, Virginia. When Ali over-
stayed his visa and failed to depart the United States in October 2004,
the DHS detained him and charged that he was removable under the
Immigration and Nationality Act (the "INA"). In June 2005, Ali
appeared before an Immigration Judge (the "IJ") in Arlington, Vir-
1
Although the style of this proceeding designates the petitioner as
"Amr Ali Abdel-Rahman," his correct name appears to be "Amr Abdel
Rahman Ali." We refer to him simply as "Ali."
ABDEL-RAHMAN v. GONZALES 3
ginia, where he conceded removability and filed an application for
relief under the INA (the "Application"). More specifically, Ali
sought three types of relief — asylum, withholding of removal, and
protection under the United Nations Convention Against Torture (the
"CAT").2 In support thereof, Ali contends that he will be persecuted,
tortured, and possibly even executed if he is returned to Egypt.
According to Ali, he is and will be perceived by the Egyptian govern-
ment to possess pro-Israeli political opinions because he married an
American woman of Jewish descent, applied for asylum in the United
States, and deserted his high-ranking, sensitive position in the Egyp-
tian Army.
The IJ conducted a merits hearing concerning Ali’s Application on
September 27, 2005 (the "IJ hearing"). By his order of December 6,
2005, the IJ denied Ali’s requests for asylum and withholding of
removal (the "IJ Order").3 On the other hand, the IJ Order granted
Ali’s request for protection under the CAT, concluding that "it is
more likely than not that upon his return to Egypt, [Ali] would be
detained and tortured by the Egyptian government to punish him for
deserting the Egyptian army and to extract information from him on
what he may have revealed while in the United States." IJ Order 21.
Ali thereafter appealed to the BIA from the IJ Order’s denial of asy-
lum and withholding of removal, and the DHS cross-appealed to the
BIA on the IJ Order’s award of CAT relief. On May 2, 2006, the BIA
affirmed the IJ Order in all respects (the "BIA Order").4 In this pro-
ceeding, we assess Ali’s requests for asylum and withholding of
2
Applicants for asylum and related forms of relief are obliged to com-
plete and appropriately file DHS Form I-589, entitled "Application for
Asylum and for Withholding of Removal," together with supporting evi-
dence. The filing of this single application form permits the applicant to
request three forms of relief — asylum, withholding of removal, and pro-
tection under the CAT. See 8 C.F.R. § 208.3. Ali completed and filed his
Application in June 2005, requesting all three forms of relief. See J.A.
278-87. (Citations herein to "J.A. ___" refer to the contents of the Joint
Appendix filed by the parties.)
3
The IJ Order is found at J.A. 1271-91.
4
The BIA Order is found at J.A. 1377-79.
4 ABDEL-RAHMAN v. GONZALES
removal only, as the Attorney General has not sought review of the
BIA’s affirmance of the IJ Order’s award of CAT relief.5
B.
Ali, who entered the Egyptian Army in 1985 and attended military
school in Cairo, rose to the rank of Major and served as a computer
engineer prior to his 2004 arrival in the United States.6 He contends
that his Egyptian Army office handled "[m]any of the most important
and sensitive matters of what was going on in Egypt." J.A. 574. In
testifying at the IJ hearing, Ali explained that his office received "in-
formation about the Egyptian military capabilities," including infor-
mation regarding military relations with Israel. Id. at 344-49. Ali
described living in Egypt as a "good life" with "many of the privileges
of being an officer in the Egyptian Army." Id. at 575. He reported get-
ting along well with his fellow soldiers and enjoying his service in the
Egyptian Army. Ali’s only reason for coming to the United States was
to attend training at Fort Lee from approximately July to October
2004.
Once in the United States, Ali decided to stay beyond the term of
his visa because of his relationship with Kelly Stine, an American he
met during his training in this country and whom he married on
November 8, 2004. Ali asserted that he could not leave his new wife
behind in the United States and that she would not be allowed to live
with him in Egypt. For this reason, Ali "decided to divorce my [Egyp-
tian] wife, not return home, and stay in the United States to be with
Kelly." J.A. 575. Although not herself Jewish, Stine testified that the
ethnic and religious origin of her family name is Jewish and German.7
5
Although the IJ and BIA Orders do not spell out the specific relief
awarded to Ali under the CAT, such relief is generally "granted either in
the form of withholding of removal or in the form of deferral of
removal." 8 C.F.R. § 208.16(c)(4).
6
The facts underlying this proceeding are drawn from the administra-
tive record. We rely to a substantial extent on Ali’s own testimony,
which the IJ found credible. See IJ Order 16-17.
7
There is some indication in the record that Ali may have been corre-
sponding with Stine prior to his arrival in the United States. This point
ABDEL-RAHMAN v. GONZALES 5
When Ali failed to return to Egypt following his 2004 training pro-
gram at Fort Lee, various Egyptian officials began to communicate
with the DHS seeking Ali’s return. These communications, occurring
as early as November 2004, reflect that Ali was deemed absent with-
out leave ("AWOL") from the Egyptian Army, and that he was
believed to have committed the Egyptian offenses of military deser-
tion, fraud in connection with his Egyptian marriage, and causing
Egypt to lose the cost of his military training and travel. These com-
munications urged that the necessary steps be taken to return Ali to
Egypt, and warned that "Mr. Ali is a security risk to the United
States." J.A. 603. In addition, a DHS agent testified at the IJ hearing
that, during the preceding year, she had spoken with the Egyptian
Embassy about Ali at least five times, including an August 2005 con-
versation in which she revealed to her Embassy contact that Ali was
seeking asylum in this country.
Ali asserted that the Egyptian government’s efforts to ensure his
return to Egypt demonstrate an interest in his circumstances beyond
that ordinarily accorded a military deserter, and that these efforts sup-
port his contention that he will face persecution in Egypt. In addition
to the potential punishment that he faces for desertion, fraud, and
causing losses to the Egyptian military, Ali contended that he will be
persecuted in Egypt for his "actual and imputed political opinion[s]."
Petr.’s Br. 14. According to Ali, the Egyptian government will impute
pro-Israeli political opinions to him because of his marriage to Stine,
because he sought asylum in the United States, and because of his
desertion from the Egyptian Army. Ali asserted that, upon returning
to Egypt, he will be subjected to various types of torture, including
simulated drownings, cigarette burns, severe beatings with rubber
sticks, electric shocks, and sexual assaults. Although his work in the
Egyptian Army did not involve the punishment of accused deserters,
Ali recalled his "co-workers joking about how when the military
of dispute has no bearing on Ali’s requests for asylum and withholding
of removal, and we need not resolve it. We also do not seek herein to
assess or determine the validity of Ali’s marriage to Stine, the timing of
his divorce from his Egyptian wife, or the facts surrounding bigamy and
perjury charges initiated against him by the Commonwealth of Virginia.
6 ABDEL-RAHMAN v. GONZALES
found such men, they would face torture for their disloyalty." J.A.
574.
To substantiate his fear of persecution upon returning to Egypt, Ali
presented the IJ with the testimony of an expert on Egyptian law and
practice and human rights issues. That witness, a Mr. Sadek, was born
in Egypt and became a citizen of the United States after arriving in
1999. He testified that torture is systemic and ongoing in Egypt and
that the Egyptian legal system will not protect Ali from it. Sadek con-
firmed that Ali "will be treated by the Egyptian authorities as a defec-
tor and will be subjected to severe torture during the interrogation
process to ascertain whether he has disclosed any sensitive military
information to any foreign intelligence services." J.A. 592. Sadek also
testified that Ali will face persecution in Egypt because he applied for
asylum in the United States.8
According to Sadek, the Egyptian government would "cut [Ali] to
pieces" because he married Stine, due to her Jewish last name. J.A.
459. This is so, Sadek said, because "Jews are the enemy of the Egyp-
tians and the Arabs, and this is mentioned in the Koran." Id. For these
reasons, Ali faces "a very real and significant threat of persecution
and torture by the Egyptian government." Id. at 585. Sadek admitted,
however, that before the Egyptian government would charge Ali with
being a spy because of his wife, it would first investigate her identity
and religion. Sadek also opined that Egyptian military officers under-
going training in the United States are generally under scrutiny by the
Egyptian authorities, especially the Embassy, and that such authorities
would be aware of any asylum applications filed by such officers.
II.
The decisions of the BIA concerning asylum eligibility or with-
holding of removal are deemed conclusive "if supported by reason-
able, substantial and probative evidence on the record considered as
a whole." INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (citations
8
Sadek explained that the Egyptian Criminal Code provides for
charges of espionage against members of the Egyptian military who seek
asylum in a foreign country. Sadek asserted that this offense is punish-
able by death.
ABDEL-RAHMAN v. GONZALES 7
and internal quotation marks omitted). As we have heretofore recog-
nized, "[w]e review the BIA’s administrative findings of fact under
the substantial evidence rule, and we are obliged to treat them as con-
clusive unless the evidence before the BIA was such that any reason-
able adjudicator would have been compelled to conclude to the
contrary." Haoua v. Gonzales, 472 F.3d 227, 231 (4th Cir. 2007) (cit-
ing 8 U.S.C. § 1252(b)(4)(B)). Pursuant to the applicable regulations,
the BIA reviews factual determinations made by an IJ, including cred-
ibility rulings, only "to determine whether [such] findings . . . are
clearly erroneous." 8 C.F.R. § 1003.1(d)(3)(i). In order to secure judi-
cial relief from the denial of an application for asylum or withholding
of removal, an alien "must show that the evidence he presented was
so compelling that no reasonable factfinder could fail to find the req-
uisite fear of persecution." Elias-Zacarias, 502 U.S. at 483-84.
Finally, we review de novo any legal issues determined by the BIA.
Blanco de Belbruno v. Ashcroft, 362 F.3d 272, 278 (4th Cir. 2004).
III.
In this proceeding, Ali seeks our review of the BIA Order to the
extent that it affirmed the IJ Order’s denial of his requests for asylum
and withholding of removal. Under the INA, the Secretary of the
DHS and the Attorney General are both authorized to grant asylum
to an alien who has satisfied the statutory definition of a refugee. 8
U.S.C. § 1158(b)(1). A "refugee" under the INA is a person who is
"unable to or unwilling to return to . . . [his home] 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." Id. § 1101(a)(42)(A).9 An applicant becomes eligi-
ble for asylum upon establishing that he has suffered from past perse-
cution, or that he has a well-founded fear of future persecution. See
8 C.F.R. § 208.13(b). Such an applicant may establish a well-founded
fear of future persecution by demonstrating "(1) that a reasonable per-
9
Although neither the INA nor the pertinent regulations define "perse-
cution," we have characterized it as involving "the infliction or threat of
death, torture, or injury to one’s person or freedom, on account of one
of the enumerated grounds in the refugee definition." Li v. Gonzales, 405
F.3d 171, 177 (4th Cir. 2005) (citations and internal quotation marks
omitted).
8 ABDEL-RAHMAN v. GONZALES
son in the circumstances would fear persecution; and (2) that the fear
has some basis in the reality of the circumstances and is validated
with specific, concrete facts." Huaman-Cornelio v. BIA, 979 F.2d
995, 999 (4th Cir. 1992) (citations and internal quotation marks omit-
ted). In other words, an asylum applicant must demonstrate a subjec-
tively genuine and objectively reasonable fear of future persecution
on account of a statutorily protected ground. Yong Hao Chen v. INS,
195 F.3d 198, 201-02 (4th Cir. 1999); see also 8 C.F.R. § 208.13
(b)(2)(B) (providing that applicant’s fear of persecution is well-
founded if it is on account of protected ground and there is "reason-
able probability of suffering such persecution"). Importantly, an
applicant for asylum bears the burden of establishing his eligibility for
such relief. 8 C.F.R. § 208.13(a); Gonahasa v. INS, 181 F.3d 538, 541
(4th Cir. 1999).
An award of relief in the form of withholding of removal, on the
other hand, implicates a more demanding standard of proof than the
"well-founded fear" standard applicable to asylum requests, in that a
"[w]ithholding of removal is available only to an alien who can dem-
onstrate a clear probability of persecution on account of his race, reli-
gion, nationality, membership in a social group, or political opinion."
Ngarurih v. Ashcroft, 371 F.3d 182, 189 n.7 (4th Cir. 2004) (citations
and internal quotation marks omitted). Thus, an applicant for relief
who has failed to satisfy the less stringent "well-founded fear" stan-
dard of proof required for asylum relief is necessarily also unable to
establish an entitlement to withholding of removal. Id.10
10
In order to secure relief under the CAT, an applicant is obliged to
establish that "it is more likely than not that he or she would be tortured
if removed to the proposed country of removal." 8 C.F.R. § 208.16(c)(2).
The regulation implementing the CAT defines "torture" as
any act by which severe pain or suffering, whether physical or
mental, is intentionally inflicted on a person for such purposes
as obtaining from him or her or a third person information or a
confession, punishing him or her for an act he or she or a third
person has committed or is suspected of having committed, or
intimidating or coercing him or her or a third person, or for any
reason based on discrimination of any kind, when such pain or
suffering is inflicted by or at the instigation of or with the con-
sent or acquiescence of a public official or other person acting
in an official capacity.
ABDEL-RAHMAN v. GONZALES 9
Ali maintains that the BIA erred in two respects in denying his
requests for asylum and withholding of removal. First, he asserts that
the BIA erroneously decided that he had not established a well-
founded fear of persecution on the basis of his actual or imputed polit-
ical opinions. Second, Ali contends that the BIA erred in ruling that
the DHS’s disclosure to Egyptian officials that he was applying for
asylum failed to establish an independent ground for relief. We assess
these contentions in turn.
A.
1.
In disposing of Ali’s Application, the IJ Order credited his testi-
mony regarding the likelihood that he would be tortured upon being
returned to Egypt, and the BIA Order recognized that Ali "clearly has
a heightened fear of — and risk of — torture in Egypt." BIA Order
3. Despite this conclusion and its award of CAT relief, the BIA
agreed with the IJ Order that Ali "has not met his burden of establish-
ing a well-founded fear of persecution on account of a protected
ground under the Act, as is required to establish eligibility for asy-
lum." Id. at 2. Instead, the BIA Order ruled that Ali faces punishment
upon his return to Egypt because of "his failure to continue his 2-year
term of military service," which "would constitute prosecution, not
persecution." Id. The BIA rejected Ali’s claim that he would be perse-
cuted on the basis of political opinions imputed to him because he had
sought asylum in the United States and married an American woman
of Jewish descent, finding instead that Ali’s fears "did not stem from
suspected political opinion grounds." Id. Because Ali failed to satisfy
the burden of proof necessary for an asylum award, the BIA con-
cluded that he had also failed to satisfy the more stringent "clear prob-
ability standard of eligibility required for withholding of removal." Id.
Ali contends that the BIA erred in so ruling, and that he is entitled to
Id. § 208.18(a)(1). The IJ and BIA have already agreed that Ali is enti-
tled to protection under the CAT. Although the CAT issue was unsuc-
cessfully appealed to the BIA, the Attorney General has not pursued it
further.
10 ABDEL-RAHMAN v. GONZALES
both asylum and withholding of removal on the basis of his "actual
or imputed" pro-Israeli political opinions.
2.
As a preliminary matter, there is no evidentiary support for the
proposition that Ali possessed any actual pro-Israeli political opin-
ions. His wife is not Jewish; he left Egypt to attend a training course
for the Egyptian Army, not because of his political beliefs; he has
protected sensitive Egyptian military information during the applica-
tion process; and he has not asserted any political opinions. Accord-
ingly, Ali must, to establish the merit of his Application, show that
he is deemed by Egypt to hold "imputed" political opinions that are
applicable in this proceeding. See In re S-P-, 21 I. & N. Dec. 486, 489
(BIA 1996) ("Persecution for ‘imputed’ grounds (e.g., where one is
erroneously thought to hold particular political opinions or mistakenly
believed to be a member of a religious sect) can satisfy the ‘refugee’
definition."). In this regard, Ali bore the burden of establishing the
necessary nexus between his future treatment in Egypt and his
imputed political opinions, as well as the burden to "show that his
persecutors actually imputed a political opinion to him." Sangha v.
INS, 103 F.3d 1482, 1489 (9th Cir. 1997). Although Ali may properly
be prosecuted in Egypt for desertion and other criminal acts, he con-
tends that he will in fact be persecuted, and thereby suffer from tor-
ture, prolonged detention, or even death, on account of his imputed
political opinions. We thus assess the more specific aspects of this
contention.
a.
First, Ali contends he will be persecuted in Egypt because his wife
is not Egyptian and has a "Jewish surname." Petr.’s Br. 13. Because
of his wife’s name, Ali maintains that the Egyptian government will
impute pro-Israeli political opinions to him, and that he will be
accused of sharing sensitive information with the Israeli or United
States governments. Ali also asserts that, as an Egyptian Army offi-
cer, he will face an investigation for marrying a non-Egyptian,
because the Egyptian government will believe that he would be influ-
enced to discuss matters of national security with his wife or her fam-
ily.
ABDEL-RAHMAN v. GONZALES 11
There are readily apparent problems with this contention. First,
although Ali’s wife may be of Jewish descent, she is not Jewish.
Indeed, Stine testified that, while she prays to God, she does not con-
sider herself a member of any specific faith, informing the IJ that her
mother is Protestant and that she does not know the religion of her
deceased father. Furthermore, the record does not contain any evi-
dence that the Egyptian government will actually seek to persecute
Ali for his marriage to Stine or for any political opinions imputed to
him on the basis thereof. Finally, Ali’s expert acknowledged that the
Egyptian government would investigate whether Stine is Jewish
before making any such assumption or seeking to punish Ali on that
basis.
b.
Second, Ali fears persecution by Egypt because he has applied for
asylum in the United States. Specifically, Ali believes that he will be
interrogated and punished more severely because he has spoken of his
fear of torture at the hands of the Egyptian Army and has applied for
asylum in this country. Indeed, Ali contends that "[b]eing accused of
treason is a political accusation," both historically and in this case.
Petr.’s Br. 24. This is so, Ali maintains, because "[t]reason, of course,
involves throwing ones [sic] lot with another country and the accusa-
tion that one has betrayed his or her country." Id. at 25. Given his
"imputed political treason" against Egypt, Ali maintains that he will
be persecuted there and is entitled to asylum in the United States. Id.
There are obvious problems with this contention. First and fore-
most, Egypt has not charged Ali with treason, but instead has indi-
cated, in communications about Ali between DHS and the Egyptian
Embassy, its desire to prosecute Ali for military desertion, fraud in
connection with his Egyptian marriage, and causing Egypt to lose the
cost of his military training and travel. On these undisputed facts, we
are unable to say that he will be persecuted in Egypt because he has
applied for asylum, or disturb the BIA’s ruling that Egypt intends to
prosecute Ali solely for legitimate reasons.
c.
Ali also maintains that, although the Egyptian government has
accused him of desertion from its Army and other offenses, it has
12 ABDEL-RAHMAN v. GONZALES
exhibited an eagerness for his return to Egypt that betrays its actual
desire to persecute him for an illegitimate and statutorily protected
reason — his actual or imputed political opinions. Indeed, Ali asserts
that the fact that the Egyptian government has gone to great lengths
to seek his return "underscore[s] the political opinion they have
imputed to [him]." Petr.’s Br. 24. We are, however, unable to accept
this contention or the notion that the Egyptian interest in Ali’s return
to his country necessarily indicates a persecutory motive. Ali has con-
ceded that he was a high-ranking Egyptian Army officer, that he pos-
sesses an ongoing obligation to the Egyptian military, that he was
privy to sensitive Egyptian military information, that he came to the
United States on a visa to gain further military training, and that he
is now considered an Egyptian Army deserter. In these circumstances,
the strong Egyptian interest in Ali’s return to his country fails to
establish that Egypt has imputed any political opinions to Ali.
d.
Ali has been accorded protection under the CAT by both the IJ and
the BIA due to the likelihood that he will be tortured as punishment
for his alleged desertion and other offenses. Ali argues that because
of this "excessive" punishment, "it is reasonable to believe that such
torture would be motivated at least in part due to an imputed political
opinion of hostility toward the Egyptian state and treason in favor of
Israel." Petr.’s Br. 24. Although the IJ found that it is more likely than
not that Ali will be tortured upon his return to Egypt, the IJ observed
that "any harm [Ali] would suffer would be on account of a person
of his rank and knowledge deserting from the military." IJ Order 18-
21. Under the applicable legal principles, this potential harm was
deemed legally insufficient by the IJ and the BIA for an award of
either asylum or withholding of removal.
Although Ali’s present situation may be unfortunate, the IJ and
BIA Orders were correct in determining that punishment for desertion
or the other identified criminal offenses does not constitute a pro-
tected ground for the purpose of asylum eligibility. See Matter of
Maldonado-Cruz, 19 I. & N. Dec. 509, 516 (BIA 1988) (finding that
punishment or threat of punishment for desertion is disciplinary tool;
thus, such threat is neither act of persecution, nor evidence of perse-
cution on account of political opinion or any other ground set forth
ABDEL-RAHMAN v. GONZALES 13
in Act); Matter of A-G-, 19 I. & N. Dec. 502, 507 (BIA 1987) (hold-
ing that government has right to require military service and may
enforce that requirement with reasonable penalties).11 This is so
because the potential for a criminal prosecution in an applicant’s
native country does not alone constitute persecution under the INA.
See Matter of Nagy, 11 I. & N. Dec. 888, 891 (BIA 1966) (concluding
that prosecution for violations of law "and consequently, [exposure]
to legal penalties which may be comparatively severe by United
States standards of justice does not . . . establish the likelihood of
‘persecution’ within the contemplation of" the INA). Indeed, we have
observed that "[t]his important principle respects a government’s free-
dom to devise its own laws and penalties for criminal conduct."
Menghesha v. Gonzales, 450 F.3d 142, 147 n.2 (4th Cir. 2006). As we
have observed, however, "where the motive underlying a purported
prosecution is illegitimate, such prosecution is more aptly called per-
secution." Id. As the IJ Order recognized, even treatment that is
regarded as "morally reprehensible" does not constitute "persecution"
qualifying for protection under the INA unless it occurs on account
of one of the protected grounds spelled out therein. IJ Order 15 (quot-
ing Matter of T-M-B-, 21 I. & N. Dec. 775, 777 (BIA 1997) (citations
and internal quotation marks omitted)). And the IJ Order specifically
concluded that Ali had "failed to establish how or why the Egyptian
government would impute a political opinion [to] him because of his
desertion." Id. at 18. The IJ Order also found that "there is no evi-
dence that the [Egyptian] government would impute a political opin-
ion to [Ali] and persecute him for [his marriage to an American with
a Jewish last name]." Id. Concluding that "any harm [Ali] would face
would be on account of someone in his sensitive position deserting
the military," the IJ Order determined that Ali had failed to establish
a well-founded fear of persecution on account of a protected ground.
Id.
11
In support of his position here, Ali relies on M.A. v. INS, 899 F.2d
304, 312 (4th Cir. 1990) (en banc), maintaining that "although a country
has a sovereign right to enforce its military laws, when punishment for
violation of such laws is disproportionately severe on account of a pro-
tected ground, an individual will be considered eligible for asylum."
Petr.’s Reply Br. 7. Because Ali has failed to show that the punishment
he might receive in Egypt would be "on account of a protected ground,"
our decision in M.A. is inapplicable in this proceeding.
14 ABDEL-RAHMAN v. GONZALES
In its appeal ruling, the BIA agreed that the IJ Order had been "rea-
sonable in concluding that [Ali’s] fears did not stem from suspected
political opinion grounds." BIA Order 2. These factual determinations
are not clearly erroneous, and they compel us to conclude that the
BIA Order is supported by substantial evidence. As a result, Ali is
unable to establish a well-founded fear of future persecution on
account of an INA protected ground (that is, his political opinions),
and we are obliged to reject this aspect of his petition for review.12
12
In support of his contention that the BIA erroneously determined that
he had not established a well-founded fear of persecution, Ali asserts that
the IJ and the BIA failed to assess the possibility that Egypt has a mixed
motive for his anticipated torture, that is, that it will be "motivated at
least in part on account of a protected ground." Petr.’s Br. 17. In support
of this proposition, Ali relies primarily on our decision in Menghesha v.
Gonzales, where we recognized that "[u]nder the INA’s ‘mixed-motive’
standard, an asylum applicant need only show that the alleged persecutor
is motivated in part to persecute him on account of the protected trait."
450 F.3d 142, 147-48 (4th Cir. 2006). Accordingly, Ali contends that the
Egyptian government’s lawful motive for punishing him (military deser-
tion) is not conclusive, and that the BIA and IJ were also obliged to
assess the evidence that Egypt would impute political opinions to him.
The mixed-motive legal principles that Ali relies upon have been
somewhat narrowed by amendments made to the INA in the REAL ID
Act of 2005. See REAL ID Act of 2005, Pub. L. No. 109-13, Div. B.,
119 Stat. 231 (May 11, 2005). These amendments, applicable here (but
not in Menghesha) because they "apply to applications for asylum, with-
holding, or other relief from removal made on or after [May 11, 2005],"
id. § 101(h)(2), 119 Stat. 230, 305, added, in pertinent part, a require-
ment that an applicant establish that a protected ground (here, political
opinion) was or will be "at least one central reason" for persecution. 8
U.S.C. § 1158(b)(1)(B)(i).
Thus, in order to demonstrate his eligibility for asylum or withholding
of removal, Ali is obliged to establish that his imputed political opinions
are "at least one central reason" for his anticipated persecution. Contrary
to Ali’s contentions, the IJ and BIA considered all possible motives and
did not end their review of the evidence after discovering a lawful reason
for Ali’s anticipated harm. Because we agree with the BIA Order that Ali
has failed to show a well-founded fear of persecution based in any degree
on his political opinions, Ali remains unable to secure relief by way of
asylum or withholding of removal.
ABDEL-RAHMAN v. GONZALES 15
B.
In the second contention of Ali’s petition for review, he maintains
that he is entitled to relief because a DHS agent revealed the existence
of his asylum application to an Egyptian Embassy official. In that
regard, it is undisputed that, in August 2005, a DHS agent phoned the
Egyptian Embassy and advised her contact there that Ali was seeking
asylum. The Attorney General concedes that this disclosure was an
improper one, but contends that it does not render Ali eligible for asy-
lum or withholding of removal. The applicable regulation, found at 8
C.F.R. § 208.6(a), provides that "[i]nformation contained in or per-
taining to any asylum application . . . shall not be disclosed without
the written consent of the applicant."
In support of his contention that he is eligible for relief because of
the DHS agent’s improper disclosure, Ali urges us to be guided by the
Second Circuit’s 2006 decision in Lin v. Department of Justice, 459
F.3d 255 (2d Cir. 2006). Unfortunately for Ali, the Lin case is distin-
guishable from this proceeding on its facts. In Lin, the court deter-
mined that our government’s release of an unredacted document to
Chinese authorities for authentication gave them notice of Lin’s asy-
lum application and breached the confidentiality owed to him. 459
F.3d at 262. Although the Lin decision recognized that "the violation
of a regulation does not necessarily require the vacatur of an order of
removal," the court observed that a violation of § 208.6 is "not merely
a procedural flaw in an immigration proceeding." Id. at 267-68.
Instead, the court concluded that the United States "through its negli-
gence has potentially exposed Lin and his family to risks beyond
those that he claims caused him to flee China." Id. at 268. Because
this "new risk of persecution" was "independent of his original
claim," Lin’s application was remanded to the BIA for consideration
of whether Lin had established a well-founded fear of persecution. Id.
As the Attorney General points out here, however, any risk of per-
secution Ali might face in Egypt from the filing of his Application
was not a "new risk of persecution" that was "independent of his orig-
inal claim." Id. Unlike in Lin, Ali’s fears in this regard were specifi-
cally outlined in his Application and thus considered by the BIA.
Accordingly, the BIA assessed and rejected Ali’s assertion that his
Application gave rise to a claim of persecution on account of a pro-
16 ABDEL-RAHMAN v. GONZALES
tected ground. The BIA concluded that, although Ali may face pun-
ishment upon returning to Egypt, his treatment there will be due to his
military desertion and other alleged criminal activity and not on
account of a protected ground. In these circumstances, we also reject
Ali’s petition for review on this basis.13
IV.
Pursuant to the foregoing, we deny Ali’s petition for review of the
denial of his requests for asylum and withholding of removal.
PETITION FOR REVIEW DENIED
13
Of note, the Egyptian government was interested in Ali’s return to
Egypt well before the DHS agent improperly disclosed the existence of
his asylum request. It tracked Ali closely while he was here, and it was
seeking his return to Egypt prior to both his Application (in June 2005)
and the DHS agent’s improper disclosure to the Egyptian Embassy (in
August 2005). In these circumstances, the Egyptian government would
have likely discovered Ali’s Application in any event.