Alami v. Ashcroft , 112 F. App'x 362 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 5, 2004
Charles R. Fulbruge III
Clerk
No. 03-61050
Summary Calendar
YOUSEF MOHAMMED ALAMI,
Petitioner,
versus
JOHN ASHCROFT, U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A77 661 901
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Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Yousef Mohammed Alami (“Alami”), a Palestinian from the West
Bank, petitions this court for review of the Board of
Immigrations Appeals’s (“BIA”) affirmance of the Immigration
Judge’s (“IJ”) decision denying his application for asylum and
withholding of removal. Alami argues that the IJ and BIA’s
rejection of his claim that he had a well-founded fear of
persecution if he returned to the West Bank was not supported by
substantial evidence because the evidence compelled the
conclusion that he had a well-founded fear that he would be
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 03-61050
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individually persecuted and that Israel had a pattern or practice
of persecuting Palestinian Muslims in the West Bank. Alami
further contends that the IJ did not set forth an adequate basis
for the denial of this claim. Alami also asserts that the
evidence compelled the conclusion that he suffered past
persecution and that this matter must be remanded because the IJ
and the BIA failed to address his claim of past persecution.
Because the BIA generally adopted the decision of the IJ,
writing separately only regarding a peripheral issue that is not
raised in Alami’s petition for review, we review that IJ’s
decision in this matter. See Mikhael v. INS, 115 F.3d 299, 302
(5th Cir. 1997). Substantial evidence supports the IJ’s finding
that Alami did not show that he had a well-founded fear of being
persecuted if he returned to the West Bank. See id. at 304.
Furthermore, as the evidence supported the IJ’s finding that the
violence against Palestinians in the West Bank was part of
ongoing civil strife, the IJ’s determination that Alami had not
established a pattern or practice of persecution against
Palestinians or Muslims was supported by substantial evidence.
See id. Because the IJ’s determination that Alami was not
eligible for asylum based upon his claim of a well-founded fear
of persecution was supported by substantial evidence, her denial
of Alami’s request for withholding of removal was also supported
by substantial evidence. See Jukic v. INS, 40 F.3d 747, 749 (5th
Cir. 1994). Additionally, the IJ’s ruling reflects “meaningful
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consideration of the relevant substantial evidence” supporting
Alami’s claim and was sufficiently detailed. See Abdel-Masieh v.
INS, 73 F.3d 579, 585 (5th Cir. 1996).
The record shows, however, that Alami clearly raised the
claim that he suffered past persecution and neither the IJ nor
the BIA considered this claim in their rulings. An alien may
establish that he is eligible for asylum by showing that he
suffered past persecution. See 8 C.F.R. § 208.13(b). As the IJ
and the BIA failed to address this issue, this matter must be
remanded to the BIA for a determination of this issue. See
Eduard v. Ashcroft, 379 F.3d 182, 196 (5th Cir. 2004). Because
this issue was not ruled upon below, we cannot consider Alami’s
assertion that the evidence compelled a finding that he suffered
past persecution. See INS v. Ventura, 537 U.S. 12, 16-17 (2002).
Accordingly, Alami’s petition for review is GRANTED IN PART
and DENIED IN PART. The BIA’s affirmance of the IJ’s denial of
Alami’s application for asylum and withholding of removal is
VACATED IN PART and this matter is REMANDED to the BIA for
further proceedings consistent with this opinion.