Mortagy v. Ashcroft ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
In the August 15, 2003
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
m 02-60544
_______________
HESHAM A. MORTAGY,
Petitioner,
VERSUS
JOHN ASHCROFT,
U.S. ATTORNEY GENERAL,
Respondent.
_________________________
Petition for Review of an Order of
the Board of Immigration Appeals
m A75 345 985
_________________________
Before DAVIS, SMITH, and DUHÉ, dismissed Hesham Mortagy’s appeal of his
Circuit Judges. denial of asylum and withholding of de-
portation, finding that he is ineligible because
JERRY E. SMITH, Circuit Judge:* he has engaged in terrorist activity (as to asy-
lum) and because there exist reasonable
The Board of Immigration Appeals (“BIA”) grounds to believe that he poses a danger to
the security of the United States (as to asylum
and withholding). For purposes of asylum, the
*
Pursuant to 5TH CIR. R. 47.5, the court has de- finding that he engaged in terrorist activity is
termined that this opinion should not be published statutorily unreviewable. The finding that he
and is not precedent except under the limited cir- poses a danger to the security of the United
cumstances set forth in 5TH CIR. R. 47.5.4.
States is supported by the record, and Terrorist Organizations.1
therefore Mortagy is also ineligible for
withholding. Accordingly, we dismiss the II.
petition in part and deny review in part. Mortagy petitions for review, contending
that the BIA erred in its determinations the he
I. has engaged in terrorist activity and that he
Mortagy was admitted to the United States poses a danger to the security of the United
as a nonimmigrant visitor from Syria. The Im- States. Though the Attorney General argues
migration and Naturalization Service issued a that the BIA did not err in determining that
notice to appear, charging Mortagy as remov- Mortagy poses a danger to the nation’s
able under 8 U.S.C. § 1227(a)(1)(B) for security, he does not address the BIA’s finding
overstaying his visa. He admitted the factual under § 1158(b)(2)(A)(v) that Mortagy
allegations in the notice and conceded de- engaged in terrorist activity. Neither party
portability. addresses whether § 1158(b)(2)(D) precludes
review of the finding under § 1158(b)(2)-
Mortagy applied for asylum and (A)(v); we raise the issue sua sponte2 and
withholding of deportation. The immigration conclude that the statute deprives this court of
judge (“IJ”) determined that Mortagy was not appellate jurisdiction to review the asylum
entitled to asylum or withholding of determination.
deportation because he had not shown that he
had a well-founded fear of persecution. The IJ Though the Attorney General has
ordered him removed. discretionary power under § 1158(a) to grant
asylum, the general asylum rule does not apply
Mortagy appealed to the BIA. It dismissed if he determines that the alien meets any of
the appeal, finding that he is ineligible for asy- several enumerated exceptions. See § 1158-
lum pursuant to 8 U.S.C. § 1158(b)(2)(A)(iv) (b)(2). One such exception is listed under
because there are reasonable grounds to subparagraph (A)(v), which, inter alia,
believe he poses a danger to the security of the declares ineligible all aliens inadmissable under
United States, and pursuant to § 1158(b)(2)- 8 U.S.C. § 1182 (a)(3)(B)(i) for having
(A)(v) because he had engaged in terrorist ac- “engaged in a terrorist activity.” See
tivity. It also found he is ineligible for § 1158(b)(2)(A)(v).3
withholding of deportation pursuant to 8
U.S.C. § 1231(b)(3)(B)(iv), again because
there are reasonable grounds to believe he 1
The PFLP is also known as the Popular
poses a danger to the security of the United Liberation Front and as the George Habash
States. In its order, the BIA noted that Morta- Organization.
gy was associated with the Popular Front for 2
the Liberation of Palestine (“PFLP”) from See Giles v. NYLCare Health Plans, Inc., 172
F.3d 332, 335 (5th Cir. 1999) (“Before reaching
1980 to 1984; this group is on the State
the merits, we must examine the basis of our ap-
Department’s List of Designated Foreign
pellate jurisdiction and, if there is doubt, we must
address it, sua sponte if necessary.”).
3
“Terrorist activity” is defined with exacting
(continued...)
2
Section 1158(b)(2)(D) provides that exception at § 1231(b)(3)(B)(iv), which
“[t]here shall be no judicial review of a precludes withholding if “there are reasonable
determination of the Attorney General under grounds to believe that the alien is a danger to
subparagraph (A)(v).” This language the security of the United States.” § 1231(b)-
unambiguously denies this court jurisdiction to (3)(B)(iv).5 Mortagy contends that this finding
consider the BIA’s finding under is erroneous. We must review this finding
§ 1158(b)(2)(A)(v).4 Because we may not (unlike the finding that he is ineligible for asy-
review the BIA’s determination that Mortagy lum), both because there is no statutory bar to
was ineligible for asylum pursuant to review of this claim and because withholding
§ 1158(b)(2)(A)(v), we will not consider the is a separate remedy from asylum. Mikhael v.
remainder o f his petition with respect to INS, 115 F.3d 299, 306 (5th Cir. 1997).
asylumSSthat the BIA’s determination under
§ 1158(b)(2)(A)(iv) was erroneous. We review the BIA’s legal rulings de novo.
Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444
III. (5th Cir. 2001). Mortagy urges de novo
Mortagy also seeks relief from the BIA’s review here, asking us to consider whether his
determination that he is ineligible for past membership in the PFLP is, by itself, le-
withholding of deportation. An alien is eligible gally sufficient to support the BIA’s finding
for withholding of deportation if he shows that that he is a danger to the security of the United
returning him to a certain country would result States. The decision that an alien is not
in threats to his life or freedom and would be eligible for withholding of deportation is itself
on account of his “race, religion, nationality, a factual finding, which we review “only to
membership in a particular social group, or po- determine whether it is supported by
litical opinion.” § 1231(b)(3)(A). The BIA, substantial evidence.” Zamora-Morel v. INS,
however, found that Mortgagy meets the 905 F.2d 833, 838 (5th Cir. 1990).
Beyond Mortagy’s membership in the
3
(...continued) PFLP, the Attorney General points to other
detail at § 1182 (a)(3)(B)(iii). evidence in the record that supports the BIA’s
decision. For example, Mortagy testified that
4
We treat the powers of “judicial review” and in 1980 he spent several months in Lebanon
“jurisdiction” synonymously by this court, and undergoing military and weapons training pro-
provisions similar to § 1158(b)(2)(D), in statute vided by the Palestinian Liberation
and regulation, have been consistently interpreted Organization. He later returned to Lebanon to
to deny jurisdiction. See Balogun v. Ashcroft, 270 fight with the PFLP. Also according to his
F.3d 274, 277 n.9 (5th Cir. 2001) (finding that a
lack of jurisdiction was “confirmed in” 8 C.F.R
§ 208.18(e)(1), which states that “there shall be no
5
judicial appeal or review of” decisions under a sub- Because the BIA did not perform an analysis
section of the act there at issue); Garcia-Ortega v. of the merits of Mortagy’s claim apart from wheth-
INS, 862 F.2d 564, 566 (5th Cir. 1989) (endorsing er he qualified for an exception, his case would be
the decision of an IJ who found that 8 U.S.C. § remanded, and he would still have to make the
1255a(f), which provides that “[t]here shall be no requisite showings under § 1231(b)(3)(A) to
administrative or judicial review of a determination receive withholding, even if he succeeds on this
. . . ,” deprived this court of jurisdiction). claim.
3
testimony, he at various times gathered
intelligence for Syrian and Turkish officials.
He was recruited by Syria and Turkey for
numerous other spying duties, though he
asserts that he refused many of their requests.
Mortagy attempts, at times persuasively, to
mitigate this evidence and to characterize him-
self as a victim of manipulation and
persecution. We must, however, be mindful of
our limited standard of review. The BIA’s
finding that Mortagy is ineligible for
withholding of deportation because there exist
“reasonable grounds to believe” that he poses
a threat to the security of this country is
supported by substantial evidence.
For the foregoing reasons, the petition for
review is DISMISSED in part and DENIED in
part.
4