Abufayad v. Holder ( 2011 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TAREQ I.J. ABUFAYAD,  No. 09-70136
Petitioner, Agency No.
v.
 A055-372-964
ERIC H. HOLDER Jr., Attorney ORDER AND
General, AMENDED
Respondent.
 OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
November 1, 2010—San Francisco, California
Filed February 16, 2011
Amended March 25, 2011
Before: Ronald M. Gould, Sandra S. Ikuta, Circuit Judges,
and James C. Mahan, District Judge.*
Opinion by Judge Gould
*The Honorable James C. Mahan, United States District Judge for the
District of Nevada, sitting by designation.
4005
4008 ABUFAYAD v. HOLDER
COUNSEL
Love Macione Suh, Oakland, California, for the petitioner.
Tony West, Assistant Attorney General, Department of Jus-
tice, Civil Division, Washington, D.C., Ethan B. Kanter and
Daniel I. Smulow, Office of Immigration Litigation, Depart-
ment of Justice, Washington, D.C., for the respondent.
ORDER
The opinion filed on February 16, 2011 and published at
632 F.3d 623 (9th Cir. 2011), is AMENDED as follows: the
ABUFAYAD v. HOLDER 4009
sentence appearing id. at 625 that states “Contact information
on the defunct Islamic Association for Palestine, a designated
terrorist organization, was found in Abufayad’s luggage.” is
deleted in its entirety.
Parties may file any petitions for panel rehearing or for
rehearing en banc on the opinion as amended.
IT IS SO ORDERED.
OPINION
GOULD, Circuit Judge:
Tareq I.J. Abufayad, a native of Saudi Arabia and citizen
of Palestine, petitions for review of a decision of the Board of
Immigration Appeals (“BIA”) affirming an immigration
judge’s (“IJ”) determination that he is removable, pursuant to
8 U.S.C. § 1182(a)(3)(B)(i)(II), for being likely to engage in
terrorist activity after entering the United States. He also
seeks review of the BIA’s determination that he does not
qualify for a grant of protection under the Convention Against
Torture (“CAT”) based on his fear of being mistreated upon
returning to Palestine as a consequence of being removed on
terrorism-related grounds. Because we conclude that substan-
tial evidence supports the BIA’s conclusions, we deny the
petition.
I
A Palestinian born in Saudi Arabia, Tareq I.J. Abufayad
lived in Gaza from age six to about age nineteen, when he left
to attend university in the West Bank and, later, Egypt. His
father and five siblings are U.S. residents or permanent citi-
zens, and Abufayad obtained an IR-2 immigrant visa to move
from Egypt to the United States with his father’s sponsorship
4010 ABUFAYAD v. HOLDER
in January of 2007. On February 17, 2007, when attempting
to enter the United States at San Francisco International Air-
port, a Customs and Border Protection agent randomly
approached Abufayad. Alerted by Abufayad’s “confrontation-
al” attitude, he took Abufayad to a secondary examination
area, where agents inspected Abufayad’s luggage, as well as
his laptop computer and external hard drive (collectively
“computer”). Opening Abufayad’s computer and examining
its contents, materials that they described as “anti-American”
came to their attention. This in turn led to more extensive
interviewing and Abufayad’s detention.
Upon seizing Abufayad’s computer, Immigration and Cus-
toms Enforcement (“ICE”) conducted a detailed forensic
search of its contents at headquarters. An investigation of
Abufayad’s hard drive, conducted by Rita Katz, led to her
conclusion that, “[w]hile the majority of the data stored on
this hard drive is not considered jihadist, the hard drive none-
theless also contains a significant amount of jihadist materi-
al,” including “jihadist videos, audio clips, songs, pictures,
rhetoric, training manuals, and justifications of violence.”
Katz’s report noted that the material was “consistent with the
jihadist material found on jihadist websites and shared within
the global jihadist community.” The computer also contained
hacking programs and stolen credit card numbers.
For several days thereafter, Abufayad was interviewed by,
inter alia, Agent Gregory Mandoli, a Department of Home-
land Security (“DHS”) Special Agent assigned to the ICE
National Security Unit and detailed to the Federal Bureau of
Investigation’s (“FBI”) Joint Terrorism Task Force. Abu-
fayad’s inconsistent statements did not alleviate concern.
After first saying that he did not remember having jihadist
materials on his computer, and later saying that he had them
for potential use in a future school project, Abufayad told
Agent Mandoli that he had downloaded the files out of curios-
ity about current events and often forgot that he had such files
after saving them. When Agent Mandoli asked Abufayad
ABUFAYAD v. HOLDER 4011
about Hamas founder Sheikh Yassin, some of whose writings
were found on Abufayad’s computer, Abufayad responded
that he respected him as a religious figure but did not agree
with his politics.
Abufayad was also questioned about his background and
potential affiliations with Hamas. Abufayad said that, while
growing up in Gaza, he attended a local mosque whose main
imam was Younis al-Astal, a childhood friend of his father
who later became a fundamentalist member of the Hamas
government. Until about age fifteen, Abufayad occasionally
donated small amounts to the mosque’s charity donation box,
which he characterized as going to Hamas social programs.
Abufayad also said that he had two cousins who were Hamas
members—one had conducted a suicide attack in Gaza during
the Second Intifada in 2001, and the other was living in
Yemen. Abufayad also discussed having briefly shared an
apartment with four Hamas members when he first arrived at
Bir Zeit University in the West Bank. He said he was
approached to join Hamas at least twice but that he did not
join and was not involved in Hamas activities.
The Government charged Abufayad as removable on the
basis that there were reasonable grounds to believe that he
was likely to engage after entry in terrorist activity, pursuant
to 8 U.S.C. § 1182(a)(3)(B)(i)(II), and for having engaged in
terrorist activity by affording material support to a terrorist
organization, pursuant to 8 U.S.C. § 1182(a)(3)(B)(i)(I).
A
Both the Government and Abufayad presented substantial
documentary and testimonial evidence at Abufayad’s hearing
before the IJ. Agent Mandoli testified about the computer’s
content and his interviews of Abufayad. The Government also
presented FBI Special Agent Robert Miranda as an expert
witness. Agent Miranda testified that—based on his review of
videotapes of Abufayad’s interviews with ICE, a disk of
4012 ABUFAYAD v. HOLDER
materials found on Abufayad’s computer, and Katz’s report—
there were reasonable grounds to believe that Abufayad was
likely to engage in terrorist activity in the United States.
Given Abufayad’s “connections and his past activities as well
as . . . his interest in matters relating to Jihad,” Miranda
believed that Abufayad “would afford material support to
individuals connected to terrorist groups if given the opportu-
nity.” Agent Miranda stated that his suspicions regarding
Abufayad were cumulative, as Abufayad had “significant ele-
ments [that] would have made him an exceptionally attractive
target for recruitment.” Because Hamas sought recruits among
the college-educated class, Agent Miranda thought that the
organization Hamas “would definitely seek [Abufayad’s] tal-
ents,” which included a university background in computer
science. A green card would increase Abufayad’s desirability
as a recruitment target.
Agent Miranda further testified that, based on his knowl-
edge of the organizational structure and operational security
of Hamas, he did not believe Abufayad’s claim that he had
lived with Hamas members at Bir Zeit University but had no
Hamas affiliations. After speaking with a Hamas expert in the
Israeli Security Agency, Agent Miranda had concluded that it
was unlikely that Hamas members would permit an outsider
who “doesn’t share their opinions” into their inner cell.
According to the Israeli expert, it was a “common excuse”
among captured Hamas members to say that Hamas was
merely trying to recruit them.
Abufayad testified at length about the contents of his com-
puter, his alleged connections to Hamas, and his religious and
political beliefs. He stated that, if admitted as a lawful U.S.
permanent resident, he intended to live with his family and
continue his studies. He reiterated that he had downloaded the
jihadist materials found on his computer out of interest in cur-
rent events, including several events that had occurred in the
vicinity of his hometown in Gaza, and said that he had never
looked at many downloaded items. He testified that he was
ABUFAYAD v. HOLDER 4013
not and had never been a member of Hamas or any other
organization advocating the use of violence. He denied
receiving any training or support from any such groups or giv-
ing donations to any organization advocating violence. He
said that he had occasionally dropped a few shekels for the
needy in the mosque’s collection box, which was not nomi-
nally affiliated with Hamas or any other group. Abufayad dis-
avowed any approval of or close relationship with his cousins
who were members of Hamas.
Abufayad also testified about his Hamas-affiliated room-
mates at Bir Zeit University. He stated that the Student’s
Board assigned him housing and that his assigned roommates
turned out to be pro-Hamas. Abufayad testified that he had
told Agent Mandoli that the roommates’ “political view was
with Hamas,” not that they were Hamas members. Their
Hamas-related activities were limited to university activities
such as organizing talks and lectures, and their Hamas-related
conversations were confined to politics. The roommates did
not try to recruit Abufayad into Hamas’s military wing and
were indifferent when Abufayad declined to help them in
their pro-Hamas political activities. Abufayad stayed with
them for two to three months before moving in with other stu-
dents.
B
Following the hearing, the IJ found Abufayad inadmissible
on the basis that there were reasonable grounds to believe that
Abufayad was likely to engage in terrorist activity upon his
entry to the United States.1 The IJ stated that the “reasonable
1
The IJ also found Abufayad inadmissible based on a determination that
Abufayad’s small contributions to Hamas’s charitable endeavors as a child
constituted material support to a terrorist organization, in light of the lack
of any de minimis exception. This finding is not properly before us,
because the BIA did not review it and it is not raised on appeal, so we do
not address that ground for the IJ’s decision.
4014 ABUFAYAD v. HOLDER
ground to believe” standard is “akin to the probable cause
standard” and is “satisfied when there is sufficient informa-
tion for a reasonable person to believe the standard is met.”
The IJ observed that the charge of inadmissibility was prem-
ised on future conduct, namely the possibility that “[Abu-
fayad] would utilize his computer expertise in support of
Hamas’ terrorist activities.” The IJ stated that Abufayad was
an attractive target for recruitment but that the statute required
more: evidence of “likelihood to engage after entry in any ter-
rorist activity. This is especially true since respondent has no
past history of terrorist activities and DHS concede[d] that
respondent is not a terrorist.” Unable to find legal authority
defining the term “likely to engage,” as used in the statute, the
IJ looked to the Merriam-Webster Dictionary, which defines
“likely” as “in all probability; probably,” and distinguished it
from a simple possibility.
The IJ determined that Abufayad’s possession of jihadist
materials on his computer “demonstrated his interest and
bias” in terrorism and provided some evidence of Abufayad’s
disposition. Stating that denial alone is insufficient to estab-
lish that an alien is clearly and beyond doubt not inadmissible,
the IJ held that “[m]ere possession of highly inflammatory,
pro-terrorist information along with the factors identified by
Agent Miranda would provide reasonable grounds to believe
that respondent is likely to engage in terrorist activity.” The
IJ described the case as “admittedly . . . close” but found the
evidence sufficient to support a charge of removal under the
relatively low burden imposed by the probable cause standard
of proof.
C
Abufayad then submitted an application for deferral of
removal pursuant to the CAT, arguing that DHS’s investiga-
tion into his background and his detention in relation to terror-
ism charges would subject him to torture upon his return to
the Palestinian territories. He claimed that the immigration
ABUFAYAD v. HOLDER 4015
proceedings, which had “officially . . . labeled [him] a Hamas
supporter and an individual likely to engage in terrorism,”
caused him to fear returning to Palestine because he would
face a cumulative probability of torture by the Israeli security
forces and the Palestinian Authority (“PA”) that exceeded
fifty percent.
In support of his application, Abufayad submitted docu-
mentary evidence about the use of torture in the region to
elicit information from suspected terrorists. Abufayad also
called an expert on country conditions in Israel and Palestine,
who testified that “while it is impossible to say for sure what
can happen in any individual case, between the risk to Mr.
Abu Fayad [sic] from both the Israeli government and the Pal-
estinian Authority one can assume that he does face a greater
than 51% risk of being detained by one or both authority and
interrogated using methods that contravene international law.”
In rebuttal, the Government’s expert stated that there was a
fifty-one percent likelihood that Abufayad could be safely
returned to Gaza and that the probability of encountering mis-
treatment in the West Bank, if returned there, was slim.
The IJ granted Abufayad’s request for CAT protection and
deferral of removal from Palestine. The IJ determined that
Agent Miranda’s consultation with an Israeli security official
had made Israeli authorities aware of Abufayad, that any
attempt by Abufayad to enter Gaza would lead to his deten-
tion, and that it was “ ‘more likely than not’ that respondent
would be detained by Israeli security forces and interrogated
by the use of torture or other cruel and inhumane treatment.”
The IJ also concluded that the PA would “take an active inter-
est” in Abufayad “for similar reasons that DHS sought
respondent’s removal as a potential Hamas terrorist.” The PA
would be aware of his return pursuant to U.S. deportation pro-
cedures, it was reasonable to conclude that the PA would
want to question him, and individuals in the PA’s custody
suspected of having Hamas affiliations face a high probability
of torture during interrogation. As a result, the IJ deemed it
4016 ABUFAYAD v. HOLDER
“highly probable” that Abufayad would face “detention and
interrogation by use of torture as a suspected Hamas supporter
or terrorist.”
D
Abufayad appealed the IJ’s October 12, 2007 decision find-
ing him removable, and the Government cross-appealed the
IJ’s decision granting Abufayad deferral of removal from Pal-
estine under the CAT. The BIA dismissed Abufayad’s appeal
and sustained the Government’s appeal.
Addressing the charge of removability as “likely to engage
after entry in any terrorist activity” under 8 U.S.C. § 1182(a)
(3)(B)(i)(II), the BIA noted that the IJ had properly concluded
that the “reasonable ground to believe” standard is akin to the
“probable cause” standard and stated that the IJ had reason-
ably determined that the term “likely” means “probably” and
is distinguishable in degree from a mere “possibility.”
Expressing its agreement with the IJ, it concluded that
the voluminous number of highly inflammatory, pro-
terrorist materials found in the respondent’s com-
puter and hard drive, considered along with the
respondent’s background and other factors cited by
Agent Miranda, adequately provides the DHS with a
reasonable basis upon which to believe that the
respondent would likely engage in terrorist activity
after entering the United States. The respondent’s
claim that he downloaded the numerous files on his
computer simply out of curiosity . . . does not ade-
quately prove that he is “clearly and beyond a doubt
. . . not inadmissible as charged.”
The BIA affirmed that the IJ had properly found Abufayad
ABUFAYAD v. HOLDER 4017
inadmissible under 8 U.S.C. § 1182(a)(3)(B)(i)(II) and remov-
able to Palestine.2
As to the IJ’s decision to grant Abufayad protection under
the CAT, the BIA “agree[d] with the DHS that the [IJ]
engaged in speculation and relied on factual findings relating
to the respondent’s entitlement to protection under the CAT
that are not clearly supported by the record.” For example, the
IJ improperly found that Israeli authorities were aware of the
accusations lodged against Abufayad as a Hamas supporter
and potential terrorist because “it is not evident from Agent
Miranda’s testimony that he provided the Hamas expert or the
Israeli authorities with any information specifically identify-
ing [Abufayad].” The IJ had also failed to cite any objective
evidence that the PA would more likely than not identify
Abufayad as a Hamas supporter, detain him, and torture him
as a result. The BIA therefore sustained the Government’s
appeal and ordered Abufayad removed to Palestine.
II
Where the BIA conducts its own review of the evidence
and law rather than adopting the IJ’s decision, our “review is
limited to the BIA’s decision, except to the extent that the IJ’s
opinion is expressly adopted.” Hosseini v. Gonzales, 471 F.3d
953, 957 (9th Cir. 2006) (citation and internal quotation
marks omitted). We review questions of law de novo. See
Hamazaspyan v. Holder, 590 F.3d 744, 747 (9th Cir. 2009).
Factual findings by the BIA, including those underlying the
BIA’s decision that an applicant is not eligible for CAT pro-
tection, are reviewed for substantial evidence. See id. at 747;
Silaya v. Mukasey, 524 F.3d 1066, 1070 (9th Cir. 2008). “To
reverse the BIA finding, we must find that the evidence not
only supports that conclusion, but compels it . . . .” INS v.
Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992).
2
Having so determined, the BIA declined to review the IJ’s finding that
Abufayad was also removable under 8 U.S.C. § 1182(a)(3)(B)(i)(I).
4018 ABUFAYAD v. HOLDER
III
An applicant for admission in a removal proceeding carries
the burden to establish that he “is clearly and beyond a doubt
entitled to be admitted and is not inadmissible under section
1182 of this title.” 8 U.S.C. § 1229a(c)(2)(A). An applicant is
inadmissible under 8 U.S.C. § 1182(a)(3)(B)(i)(II) if “a con-
sular officer, the Attorney General, or the Secretary of Home-
land Security knows, or has reasonable ground to believe,
[that the applicant] is engaged in or is likely to engage after
entry in any terrorist activity,” as defined in
§ 1182(a)(3)(B)(iv). The “reasonable ground to believe stan-
dard” in the removal context is similar to the “probable cause”
standard. See Malakandi v. Holder, 576 F.3d 906, 914 (9th
Cir. 2009) (holding that “ ‘reasonable’ grounds should be
evaluated against a reasonable person, probable cause stan-
dard”). Where, as here, an applicant possesses a valid visa
upon entry, constituting prima facie evidence of admissibility,
the burden shifts to the Government to submit “some evi-
dence” that he is not admissible under the charged grounds.3
Kepilino v. Gonzales, 454 F.3d 1057, 1059-60 (9th Cir. 2006).
If the Government meets its burden by introducing “reason-
able, substantial, and probative evidence” of inadmissibility,
Alarcon-Serrano v. INS, 220 F.3d 1116, 1119 (9th Cir. 2000),
the applicant bears the burden of rebuttal in proving that he
is “clearly and beyond a doubt . . . not inadmissible,”
Kepilino, 454 F.3d at 1060 (citation and internal quotation
marks omitted).
[1] Stated another way, because Abufayad possessed a
valid visa upon entry, for Abufayad to be found inadmissible
on this ground, the government had initially to provide “some
evidence” that it had “reasonable ground to believe” that Abu-
fayad was “likely” to engage in terrorist activity after entry to
the United States. This standard requires an assessment of
3
This burden-shifting does not apply where an applicant for admission
does not possess a valid visa upon entry.
ABUFAYAD v. HOLDER 4019
probabilities, and not a certainty that Abufayad would engage
in terrorist activity upon entry. Here, the government plainly
presented “some evidence” of Abufayad’s future likelihood to
engage in terrorism sufficient to meet its burden, including the
large quantity of jihadist materials found on Abufayad’s com-
puter, evidence of inconsistent statements by Abufayad when
confronted with it, and the testimony of a terrorism expert
stating that there were reasonable grounds to believe Abu-
fayad would likely engage in terrorism given Abufayad’s
background and connections with Hamas.
Abufayad argues that substantial evidence does not support
the BIA’s finding that there are reasonable grounds to believe
that he is likely to engage in terrorism. He contends that his
possession of admittedly objectionable but legal materials
downloaded from the internet and Agent Miranda’s testi-
mony, based on “speculation” and “twisted logic,” are not
sufficiently reasonable, substantial, and probative to support
the BIA’s conclusion. We disagree.
[2] Under our deferential standard of review, we cannot
conclude that any reasonable adjudicator would be compelled
to conclude that the Government did not meet its burden. See
Elias-Zacarias, 502 U.S. at 481 n.1 (1992). Abufayad con-
ceded Agent Miranda’s expertise in the field of terrorism and
did not object to his proffering his opinion on Abufayad’s
proclivity to engage in terrorist activity if given the opportu-
nity. The BIA was entitled to agree with the Agent Miranda’s
expert opinion. Informed by his extensive counter-terrorism
experience, Agent Miranda’s conclusions were based on his
review of DHS interviews of Abufayad, Katz’s report, and a
computer disk containing a portion of Abufayad’s files. Agent
Miranda explained that his opinion that Abufayad would
likely engage in terrorist activity, if given the chance, was
cumulative and based on Abufayad’s background, connec-
tions, and apparent proclivities. Agent Miranda found Abu-
fayad’s connections with his hometown significant because
the town is considered a Hamas stronghold. Abufayad would
4020 ABUFAYAD v. HOLDER
be a “known entity” to Hamas because he had attended a
mosque whose imam was a Hamas leader. That Abufayad had
two first cousins involved in Hamas’s military operations
would indicate to Hamas that “his family is one to be trusted.”
Agent Miranda also found Abufayad’s admission that he
respected opinions of Hamas leaders to “speak[ ] volumes
about his [political] leanings.”
[3] Abufayad contends that the BIA’s reliance on Agent
Miranda’s testimony was erroneous because Agent Miranda
relied on inferences he drew from the evidence that are con-
trary to the facts as Abufayad recounts them. Abufayad
stresses that the IJ made no adverse credibility determination
and suggests that, therefore, Abufayad’s portrayal of the facts
must be accepted as true. Although our established jurispru-
dence in the area of asylum law mandates that “[t]estimony
must be accepted as true in the absence of an explicit adverse
credibility finding,” Kalubi v. Ashcroft, 364 F.3d 1134, 1137
(9th Cir. 2004), there is no general requirement that the testi-
mony of an applicant seeking admission to the United States
outside of the asylum context be regarded as true. The
“deemed true” convention is justified in the asylum context in
large part because of the difficulty of proving threats by per-
secutors, see Ladha v. INS, 215 F.3d 889, 899-901 (9th Cir.
2000), overruled on other grounds by Abebe v. Mukasey, 554
F.3d 1203, 1208 (9th Cir. 2009) (en banc). We decline to
extend its application to contexts where such an adjustment to
normal evidentiary burdens is not warranted. That Agent
Miranda drew different conclusions from the record than
those that Abufayad would have us draw does not mean that
the BIA was unreasonable in crediting his opinion, nor does
it compel us to conclude that substantial evidence does not
support the BIA’s inadmissibility finding.
[4] We hold that the BIA’s determination that the Govern-
ment met its burden of introducing “some evidence” of Abu-
fayad’s inadmissibility is supported by substantial evidence.
The evidence adduced was sufficient to support a determina-
ABUFAYAD v. HOLDER 4021
tion that Abufayad was likely to engage in terrorism by assist-
ing in the preparation and planning of terrorist activity, see 8
U.S.C. § 1182(a)(3)(B)(iv)(II); gathering information on
potential targets for terrorist activity, see 8 U.S.C.
§ 1182(a)(3)(B)(iv)(III); or committing an act he knows or
reasonably should know will afford material support to a ter-
rorist organization, see 8 U.S.C. § 1182(a)(3)(B)(iv)(VI).
Once the Government met its burden, the burden then shifted
to Abufayad to prove that he was “clearly and beyond doubt
. . . not inadmissible.” 8 U.S.C. § 1229a(c)(2)(A). A reason-
able adjudicator would not be compelled to conclude, con-
trary to the BIA’s finding, that Abufayad’s various
explanations for the jihadist material on his computer and
claims about his religious and political beliefs met that bur-
den. We therefore deny Abufayad’s petition for review of the
BIA’s decision finding him removable.
IV
[5] Article 3 of the CAT, implemented domestically pursu-
ant to 8 C.F.R. § 1208.16-1208.18, prohibits states from
returning anyone to a country where he or she is likely to be
tortured. See Al-Saher v. INS, 268 F.3d 1143, 1146 (9th Cir.
2001). Applicants subject to mandatory denial of withholding
may seek CAT protection in the form of deferral of removal
under 8 C.F.R. 1208.17(a). See Hosseini, 471 F.3d at 958-59.
An applicant seeking CAT protection bears the burden of
establishing that “he is more likely than not to suffer
intentionally-inflicted cruel and inhuman treatment,” Nuru v.
Gonzales, 404 F.3d 1207, 1221 (9th Cir. 2005) (citation and
internal quotation marks omitted), “inflicted by or at the insti-
gation of or with the consent or acquiescence of a public offi-
cial or other person acting in an official capacity,” 8 C.F.R.
§ 1208.18(a)(1).
[6] Abufayad’s claim that the outcome of his immigration
proceedings have rendered him vulnerable to torture upon
return to Palestine does not present an issue of first impres-
4022 ABUFAYAD v. HOLDER
sion. In Hosseini v. Gonzales, we concluded that petitioner
Hosseini was entitled to CAT relief because he had presented
sufficient evidence showing that Iranian officials would iden-
tify him, upon his return, as being affiliated with a terrorist
organization and that he would more likely than not be tor-
tured as a consequence. 471 F.3d at 960-961. Upon removal
to Iran, Hosseini would have been required to submit papers
from U.S. immigration proceedings adjudicating him a strong
supporter of a particular terrorist organization; and state
department reports indicated that someone so identified was
likely to be tortured. Id. Hosseini counsels that a petitioner
asserting a CAT claim predicated on the outcome of immigra-
tion proceedings in the United States must show both that the
authorities in the country of removal will know of those pro-
ceedings and that the petitioner will likely face torture as a
result.
The BIA’s reasoning indicates that it did not find both of
these prongs adequately satisfied in this case. The BIA con-
cluded that objective evidence in the record did not support
the IJ’s “assumption[s]” that Israeli authorities would know
about terrorist allegations against Abufayad and that Abu-
fayad would be perceived as possibly having information
about an imminent terrorist attack, which could render him
vulnerable to physical pressure. With regard to the PA, the
BIA concluded that, even if the PA would want to question
Abufayad on his return, the IJ did not cite objective evidence
that Abufayad would more likely than not be detained, identi-
fied as a suspected Hamas supporter, and tortured by the PA.
[7] Substantial evidence in the record supports the BIA’s
determination that Abufayad is not entitled to CAT protec-
tion. Even if the Israeli authorities believe Abufayad to be a
Hamas supporter as a consequence of his immigration pro-
ceedings, the record does not compel a conclusion that he
faces any significant risk of torture by the Israeli government.
The State Department country reports for 2006 and 2007 indi-
cate that Israel uses “moderate physical pressure” against
ABUFAYAD v. HOLDER 4023
detainees thought to possess information about imminent ter-
rorist attacks. There is no evidence in the record suggesting
that Abufayad would be thought to fit in this category, and the
record does not indicate that Hamas sympathizers face a risk
of cruel and inhuman treatment. Although the PA would be
informed of Abufayad’s removal pursuant to ICE reentry pro-
cedures for Palestine, there is no record evidence indicating
that the PA would be told of the reasons for Abufayad’s
removal, or that his being identified as a potential Hamas
sympathizer, as opposed to an active member of the organiza-
tion, would render him vulnerable to torture. As evidence that
the PA tortures not only Hamas members but also its believed
sympathizers, Abufayad proffers an Amnesty International
press release from October 2007, which reported that the PA
had arbitrarily detained hundreds of Hamas supporters and
presumed sympathizers and noted the PA’s increasingly fre-
quent use of torture and other ill-treatment. However, this evi-
dence of detention and an increase in incidents of torture does
not compel the conclusion that Abufayad has met his CAT
burden, as it does not show that Abufayad would more likely
than not be tortured if removed to Palestine.
[8] On the evidence here, reasonable factfinders could dif-
fer, as the experts did in this case, over whether Abufayad
faces a more than fifty percent probability of torture upon
return. The Government expert testified that Abufayad faced
at least a fifty-one percent likelihood of safe return to Pales-
tine. In light of the record, a reasonable factfinder would not
be compelled to conclude that the BIA erred in its determina-
tion that the IJ’s award of CAT protection was based on
undue speculation. We deny Abufayad’s petition for review
of the BIA’s finding that Abufayad is not entitled to CAT pro-
tection.
DENIED.