Ali El Said v. Loretta E. Lynch ( 2015 )

FILED
NOT FOR PUBLICATION
OCT 05 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALI MUSTAFA EL SAID, No. 11-72011
Petitioner, Agency No. A097-854-107
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted September 3, 2015
Pasadena, California
Before: GRABER and WATFORD, Circuit Judges, and TUNHEIM,** Chief
District Judge.
Ali Mustafa El Said, a native and citizen of Egypt, petitions for review of an
order of the Board of Immigration Appeals (BIA) denying his application for
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable John R. Tunheim, Chief District Judge for the U.S.
District Court for the District of Minnesota, sitting by designation.
Page 2 of 4
asylum, withholding of removal, and relief under the Convention Against Torture
(CAT).
1. The record does not compel the conclusion that El Said suffered past
persecution. El Said was undoubtedly the target of threats and harassment, and a
motorcyclist apparently attempted to run him down shortly after the conclusion of
Detective Saleh’s trial. We cannot say, however, that all reasonable finders of fact
would determine that those incidents were so menacing or placed El Said in such
fear for his life as to cause “significant actual ‘suffering or harm.’” Lim v. INS,
224 F.3d 929, 936 (9th Cir. 2000) (quoting Sangha v. INS, 103 F.3d 1482, 1487
(9th Cir. 1997)).
Nor does the record compel the conclusion that El Said’s troubles in Egypt
bore a nexus to a statutorily enumerated ground. See 8 U.S.C. § 1101(a)(42)(A).
El Said helped litigate a civil suit against one abusive local official, Detective
Saleh, but did not target the “systemic nature” of police brutality in Egypt in
general. Cf. Hasan v. Ashcroft, 380 F.3d 1114, 1120 (9th Cir. 2004). On this
record, we cannot say that all reasonable finders of fact would conclude that the
Egyptian officers’ apparent enmity toward El Said was at least partly on account of
his actual or imputed political opinion. See Molina-Morales v. INS, 237 F.3d
1048, 1051–52 (9th Cir. 2001).
Page 3 of 4
2. We lack jurisdiction over El Said’s claim that he suffered discrimination
on account of his membership in a “particular social group,” namely attorneys in
Egypt. This claim was not presented to or decided by the BIA; El Said thus cannot
raise it here. See 8 U.S.C. § 1252(d)(1); Farhoud v. INS, 122 F.3d 794, 796 (9th
Cir. 1997).
3. Substantial evidence does not support the BIA’s denial of El Said’s CAT
claim. The BIA held that El Said established “some” likelihood that he will be
tortured if he is returned to Egypt, but it ultimately concluded that the likelihood
was less than fifty percent. Yet the undisputed evidence showed that Detective
Saleh, who threatened in open court to kill El Said, had previously tortured a
prisoner in his custody by dousing him with kerosene and burning him alive.
According to the immigration judge, Egypt has a “horrendous” “record for
torture,” which the Government concedes is “rife in ordinary police stations.” In
addition, an extraordinary warrant was issued for El Said’s arrest, even though he
has committed no crime, which renders it highly likely that he will be taken into
police custody if he returns to Egypt. In light of this evidence, we conclude that
the record compels the conclusion that El Said is more likely than not to be
tortured if returned to Egypt. See 8 C.F.R. § 1208.16(c)(2).
Page 4 of 4
PETITION DENIED in part, DISMISSED in part, and GRANTED in
part. Costs on appeal awarded to Petitioner.