Yosef Khatib v. Jefferson Sessions ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 13 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
YOSEF KHATIB, No. 15-73952
Petitioner, Agency No. A098-442-381
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 11, 2018**
San Francisco, California
Before: McKEOWN and WARDLAW, Circuit Judges, and KATZMANN,***
International Trade Judge.
Yosef Khatib, a native and citizen of Israel, petitions for review of the Board
of Immigration Appeals’ (“BIA”) order denying withholding of removal. Khatib
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Gary S. Katzmann, United States International Trade
Judge for the U.S. Court of International Trade, sitting by designation.
does not challenge the Immigration Judge’s (“IJ”) denial of his asylum and
Convention Against Torture applications. We have jurisdiction under 8 U.S.C.
§ 1252, and we deny the petition.
Khatib asserts a violation of his due process rights, and seeks review of the
BIA’s finding about his risk of persecution upon return to Israel. We review de
novo Khatib’s constitutional claim. Khan v. Holder, 584 F.3d 773, 776 (9th Cir.
2009). Factual findings made by the IJ and the BIA, however, are reviewed for
substantial evidence. Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir. 2009).
The IJ did not violate Khatib’s due process rights when she denied Khatib’s
request to re-examine his expert witness. We reverse such IJ decisions on due
process grounds only when “(1) the proceeding was so fundamentally unfair that
the alien was prevented from reasonably presenting his case, and (2) the alien
demonstrates prejudice, which means that the outcome of the proceeding may have
been affected by the alleged violation.” Ibarra-Flores v. Gonzales, 439 F.3d 614,
620–21 (9th Cir. 2006) (internal quotations and citations omitted). Neither
condition is met here.
Khatib received a fair opportunity to present his case to the IJ. Not only did
Khatib present written statements and oral testimony on his own behalf, the IJ
admitted Khatib’s expert witness’s written analysis and allowed the expert to
testify and be cross-examined. Khatib did not wish for his expert to present new
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evidence or testimony, but simply wanted to reiterate his view that although
women are more likely to be the victim of honor killings, Khatib was absolutely
likely to be subject to an honor killing as well. The IJ responded that she accepted
“[the expert’s] testimony as he indicated last time” and that she was “not
challenging that in any way.” Thus, there was no “misunderstanding” or
“mischaracterization,” and the IJ afforded Khatib a fair opportunity to present his
case. See Almaghzar v. Gonzales, 457 F.3d 915, 921 (9th Cir. 2006).
Nor has Khatib demonstrated prejudice. The record does not suggest that
the IJ’s determination would have differed had the expert testified again, and there
is no evidence that the expert would have testified differently. Indeed, Khatib’s
counsel stated that he only wished to re-examine the expert in order to
“reemphasize” a few points and to “improve the Court’s understanding.” Without
any suggestion that the expert would have presented additional relevant evidence,
Khatib failed to show that he was prejudiced by the IJ’s denial of his motion for
additional expert testimony.
Substantial evidence supports the BIA’s conclusion that Khatib did not
qualify for withholding of removal. To qualify for withholding of removal, an
applicant must show a “clear probability” of persecution on account of a statutorily
enumerated ground, such as religion. Garcia v. Holder, 749 F.3d 785, 791 (9th
Cir. 2014). The “clear probability” standard is a high one, and requires that an
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alien establish it is “more likely than not” he will be subject to persecution upon
deportation. INS v. Cardoza-Fonseca, 480 U.S. 421, 430 (1987).
The BIA identified substantial evidence to support its decision that Khatib
had not met that high standard. The BIA properly considered Khatib’s willingness
to return to Israel in 2001 after he had already been cohabiting with his non-Druze
partner. Loho v. Mukasey, 531 F.3d 1016, 1017–18 (9th Cir. 2008) (“[A]n alien’s
history of willingly returning to his or her home country militates against a finding
of past persecution or a well-founded fear of future persecution.”). The BIA
highlighted the IJ’s finding that Khatib was not the victim of persecution during
this 2001 return to Israel because he did not suffer any serious injuries. Gu v.
Gonzales, 454 F.3d 1014, 1020 (9th Cir. 2006) (stating that a single instance of
detention and beating, which results in non-serious injuries, does not constitute
persecution). The BIA also pointed out the low incidence of honor killings in
Israel; that a majority of those honor killings are perpetrated against women; and
that Khatib’s own expert stated that “men can get away with” marrying non-Druze
spouses.
PETITION DENIED.
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