Yusif v. Gonzales , 130 F. App'x 797 ( 2005 )

No. 03-4534
File Name: 05a0408n.06
Filed: May 17, 2005
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Paten Yusif,
Petitioner, ON PETITION FOR REVIEW FROM THE
BOARD OF IMMIGRATION APPEALS
v.
John Ashcroft,
Respondent.
Before: Daughtrey and Clay, Circuit Judges; Graham, District Judge1
OPINION
Graham, District Judge.
Petitioner seeks review of a decision of the Board of
Immigration Appeals that affirms the denial of asylum and
withholding of removal.
Petitioner is a 21-year-old native citizen of Iraq. He is a
member of the Chaldean community and attended the Chaldean Catholic
Church in Iraq. Petitioner has about six-and-a-half years of
education, roughly equivalent to a seventh grade education in the
United States. Petitioner testified that he left school in 1995 to
work in his family liquor business. He and his cousin (who
1
The Honorable James L. Graham, United States District Judge for the
Southern District of Ohio, sitting by designation.
previously petitioned for asylum) were in the business on October
7, 1999, when “intelligence” officers came in and began beating and
insulting them. The officers took petitioner away in a car with a
hood over his head and did not tell him where they were taking him.
He was taken to a place that he could not identify and held in a
small room. Petitioner stated that the cramped conditions required
that he squat on the floor sitting on his buttocks, with his knees
pulled up to his chest.
After two weeks, petitioner was taken into another room where
officers demanded that he sign a document ceding the liquor
business to the government. Petitioner testified that he did not
sign the document and was held for two months and three days. He
further testified that although he was not beaten, he was often
taken into another dark room where he was held naked and splashed
with cold water. Petitioner was detained until he signed a
document ceding the liquor business to the government.
Petitioner testified that the officers warned him not to tell
anyone about his detention or they would kill him. Petitioner
returned to his hometown and told his family and friends about the
experience once he was released. Petitioner discovered that a new
building was built around the family business. Petitioner
testified that he decided to leave Iraq and paid $1,000 for an
Iraqi passport. Petitioner traveled to Jordan with his cousin, who
was also released, and then to Thailand, and then to China. From
2
China, they came to the United States. Petitioner arrived in the
United States on November 8, 2000, using a fraudulent Belgian
passport and seeking admission pursuant to the Visa Waiver Program.
He requested asylum at the airport, which was denied by an
Immigration Officer and was referred to an immigration judge for a
hearing.
Petitioner appeared before an immigration judge in Lancaster,
California, on December 5, 2000. Petitioner’s case was
subsequently transferred to Detroit, Michigan. Petitioner appeared
for his asylum hearing in Michigan on March 28, 2002. At the
beginning of the hearing, petitioner’s counsel suggested that he
expected a Chaldean interpreter. The immigration judge stated,
however, that petitioner had always indicated a preference for
Arabic. Petitioner’s cousin did not attend petitioner’s
proceedings because he was also involved in immigration
proceedings. Petitioner’s aunt, Mrs. Faiza Putris, did testify at
petitioner’s hearing. She testified that she was a Chaldean
Catholic who lived in Iraq before coming to the United States and
that she intended to return to Iraq. Mrs. Putris further testified
that the Iraqi government agreed to allow petitioner to leave Iraq
if he transferred the liquor business to the government
At the end of the hearing, the immigration judge rendered an
oral decision on March 28, 2002. The judge noted that petitioner
had gone over the asylum application documents line by line with an
3
interpreter who speaks the Chaldean language. Petitioner said
there were no more changes to the applications. The judge
explained that petitioner had the burdens of proof and persuasion
and that he was denying petitioner’s claim because petitioner was
not credible. The judge stated that even if petitioner had
presented a credible claim, he did not establish that any harm he
suffered was a result of one of the protected statutory reasons.
The immigration judge reviewed the documentary evidence. The
petitioner’s “naturalization certificate,” which indicates that
petitioner is from Iraq, raised some credibility concerns. The
certificate issued by the government of Iraq was dated only seven
days after he claimed to have been released from detention. The
judge found it odd that even though the Iraqi authorities allegedly
detained petitioner for months, they had no problem issuing him the
certificate shortly after his detention. In addition, although the
naturalization certificate stated that petitioner had no
distinguishing characteristics, the judge noted for the record that
petitioner in fact had scars and distinguishing features all over
his face. The document was not signed and there was no
fingerprint. The immigration judge found that all of these issues
raised questions concerning petitioner’s credibility and identity.
The judge also noted that the 2001 Country Reports issued by
the United States State Department in March 2002, which detailed
Saddam Hussein’s mistreatment of Chaldeans, were not relevant
4
because petitioner did not claim he was persecuted on that basis.
Instead, petitioner’s claim was purely personal and financial,
pertaining to the family liquor business. The judge also reviewed
other documents submitted by the petitioner, which he also found
unpersuasive and which undermined petitioner’s claim. Thus, the
immigration judge denied petitioner’s application because he was
not credible, and because the alleged harm petitioner suffered was
not a matter covered by the asylum statute.
On October 27, 2003, the Board of Immigration Appeals affirmed
the decision of the immigration judge without opinion.
Discussion
In reviewing the factual determinations of petitioner’s
statutory ineligibility for asylum or withholding of removal, the
court must uphold the Board’s decision if it is “‘supported by
reasonable, substantial, and probative evidence on the record
considered as a whole.’” Mikhailevitch v. INS, 146 F.3d 384, 388.
(6th Cir. 1998) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481,
117 L. Ed. 2d 38, 112 S. Ct. 812 (1992)). This standard is
deferential and the court may not reverse the Board’s determination
simply because the court would have reached a different conclusion.
Id. “The appropriate inquiry is whether the applicable evidence
‘was such that a reasonable factfinder would have to conclude that
the requisite fear of persecution existed.’” Id. (quoting Elias-
Zacarias, 502 U.S. at 481.
5
Petitioner argues that he was assigned a translator who could
not speak his native language or his Arabic dialect. According to
petitioner, the translator could only communicate with him in
classical Arabic, a language which is only learned in school and
has no native speakers. Petitioner argues that because he had only
six-and-a-half years of education, his answers to the translator
repeatedly reflected a misunderstanding of the questions.
Petitioner argues that the instances where the judge held
petitioner’s testimony incredible were either because the judge
misinterpreted the testimony or because petitioner misunderstood
the questions due to the inadequate translation.
Petitioner argues further that the immigration judge also
erred when he stated that even if everything petitioner testified
to was true, petitioner still has no basis for relief under the
asylum laws. Petitioner alleges that he feared retaliation by the
Iraqi security agencies for telling family and friends what had
occurred to him while in custody. Petitioner argues that even if
retaliation by the Iraqi forces is not political, it is evidence
that petitioner is likely to be subject to torture upon return to
Iraq.
Petitioner’s arguments miss the mark. In order to establish
a claim for asylum, an alien must qualify as a “refugee” under the
Immigration and Nationality Act (“the Act” or “INA”).
Mickhailevitch v. INS, 146 F.3d 384, 389 (6th Cir. 1998); Perkovic
6
v. INS, 33 F.3d 615, 620 (6th Cir. 1994). The Sixth Circuit
defines a refugee “as a person unable or unwilling to return to his
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.’” Perkovic, 33
F.3d at 620 (quoting 8 U.S.C. § 1101(a)(42)(A)).
As the applicant seeking asylum, petitioner bears the burden
of proof of establishing eligibility for asylum as a refugee
“either because he has suffered actual past persecution or because
he has a well-founded fear of future persecution.” See 8 C.F.R. §
208.13; Mikhailevitch, 146 F.3d at 389. “An applicant’s fear of
persecution must be both subjectively genuine and objectively
reasonable.” Mikhailevitch, 146 F.3d at 389. Thus, the objective
fear must be based in reality because “[m]ere irrational
apprehension is not enough[.]” Cuadras v. INS, 910 F.2d 567, 571
(9th Cir. 1990). Petitioner’s alleged fear of persecution must be
“on account of” the Act’s protected grounds: race, religion,
nationality, membership in a particular social group, or political
opinion. Sale v. Haitian Ctrs. Council, 509 U.S. 155, 162 (1993).
Unlike asylum, withholding of removal prohibits the Attorney
General from removing “an alien to a country where his life or
freedom would be threatened on account of race, religion,
nationality, membership in a particular social group, or political
opinion.” Section 241(b)(3) of the INA, 8 U.S.C. § 1231(b)(3).
7
“The alien must demonstrate a ‘clear probability of persecution’
with ‘objective evidence that it is more likely than not that he or
she will be subject to persecution upon deportation.’” Kapcia v.
INS, 944 f.2d 702, 709 (10th Cir. 1991) (quoting INS v. Cardoza-
Fonseca, 480 U.S. 421, 425 (1987)).
Here, the immigration judge concluded that the alleged harm
about which petitioner complained was not covered by the asylum
statute because petitioner did not establish past persecution or a
well-founded fear of future persecution “on account of” a protected
ground under the Act. This conclusion is supported by substantial
evidence. Petitioner alleges that he was taken into custody and
physically mistreated for weeks, but he does not demonstrate that
this treatment was on account of his race, religion, nationality,
membership in a particular social group, or political opinion.
Instead, petitioner complains about extortion, that the
officers would not release him until he signed over his family’s
liquor business. However, petitioner fails to connect this action
with any protected ground. “Such ordinary criminal activity does
not rise to the level of persecution necessary to establish
eligibility for asylum[.]” Abdille v. Ashcroft, 242 F.3d 477, 494
(3d Cir. 2001); see also Singh v. INS, 103 F.3d 1482, 1487 (9th
Cir. 1997) (“Persecution on account of political opinion can no
longer be inferred merely from acts of random violence. . . .”).
Similarly, petitioner complains about the unstable climate in
8
his country, but an applicant for asylum may not establish
persecution simply because of the applicant’s country’s conditions
or civil wars. See, e.g., Perkovic v. INS, 33 F.3d 615, 621 (6th
Cir. 1994); Marquez v. INS, 105 F.3d 374, 381 (7th Cir. 1997)
(noting that “[c]onditions of political upheaval which affect the
populace as a whole or in large part are generally insufficient to
establish eligibility for asylum”) (quoting Gonzalez v. INS, 77
F.3d 1015, 1021 (7th Cir. 1996)). Petitioner’s alleged fear of
returning to Iraq is also undermined by his aunt’s testimony.
The immigration judge’s conclusion that petitioner was not
credible was also supported by substantial evidence. Adverse
credibility findings are “considered findings of fact, and are
reviewed under the substantial evidence standard.” Sylla v. I.N.S.,
388 F.3d 924, 925 (6th Cir. 2004). Here, the immigration judge
considered several contradictions and inconsistencies in
petitioner’s claim. Petitioner merely asserts that these can be
explained away by an untimely assertion that petitioner did not
understand the interpreter. This assertion, however, is
insufficient to compel this court to disturb the findings of the
immigration judge. Klawitter v. INS, 970 F.2d 149, 152 (6th Cir.
1992) (stating that the court must find evidence that compels it to
reverse the Board’s findings). However, even if the court
concluded that the immigration judge erred on this issue, and that
everything petitioner said was true, petitioner’s claim for asylum
9
still fails because he still has not established that he was a
refugee entitled to protection under the Act.
Finally, petitioner also asserts a claim for withholding of
removal under the Convention Against Torture. Under the Convention
Against Torture, petitioner must establish that it is more likely
than not that he will be tortured in the proposed country of
removal, but he need not show that he will be tortured on account
of a protected ground. See 8 C.F.R. § 208.16(c)(2); Castellano-
Chacon v. I.N.S., 341 F.3d 533, 551-52 (6th Cir. 2003).
The immigration judge found that petitioner’s claim for
withholding of removal under the Convention Against Torture failed
because his testimony lacked credibility. The record clearly
supports his finding.
Conclusion
For the foregoing reasons, the petition for review is denied.
10