Kurdi v. Sessions

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 16-2029
MUSTAFA AHMAD KURDI,
Petitioner,
v.
JEFFERSON B. SESSIONS, III,
Attorney General of the United States,*
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Howard, Chief Judge,
Thompson and Barron, Circuit Judges.
Saher J. Macarius, Audrey Botros, and Law Offices of Saher J.
Macarius LLC on brief for petitioner.
Victoria M. Braga, Trial Attorney, Office of Immigration
Litigation, U.S. Department of Justice, Joyce R. Branda, Acting
Assistant Attorney General, Civil Division, and Cindy S. Ferrier,
Assistant Director, on brief for respondent.
April 14, 2017
* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Jefferson B. Sessions, III has been substituted for former Attorney
General Loretta E. Lynch as respondent.
HOWARD, Chief Judge. Petitioner Mustafa Ahmad Kurdi, a
native and citizen of Lebanon, asks us to review a Board of
Immigration Appeals ("BIA") order denying his claims for asylum,
withholding of removal, and protection under the United Nations
Convention Against Torture (“CAT”). After careful consideration
of the briefs and the administrative record, we deny the petition.
I.
Kurdi entered the United States on a visitor's visa in
2006 and remained longer than permitted. That same year, he
married a U.S. citizen. Kurdi's wife filed a visa petition on his
behalf, but the Department of Homeland Security ("DHS") denied the
petition and filed a Notice to Appear charging Kurdi as removable
pursuant to Immigration and Nationality Act § 237(a)(1)(B).
An immigration judge ("IJ") continued Kurdi's
proceedings to allow his spouse to file another visa petition on
his behalf, which she did in December 2009. Nearly two years
later, DHS denied this second petition, finding that the couple
had failed to meet their burden of proving the bona fides of their
marriage. Only after this second denial -- some six years after
Kurdi entered the United States -- did Kurdi seek asylum,
withholding of removal, and protection under the CAT.
In his asylum application and in testimony before the
IJ, Kurdi claimed that between 1998 and 1999 -- that is, while he
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was completing a one-year period of compulsory service in the
Lebanese military -- a member of a group considered by the United
States to be a terrorist organization ("the organization")
approached Kurdi and asked him to act as an informant. Kurdi
refused because he worried that becoming an informant would put
him and his family at risk; however, he also worried that he could
be killed for refusing. Therefore, after rejecting the request,
Kurdi successfully sought transfer to another military post. He
completed his military service without being contacted, let alone
threatened or harmed, by any members of the organization.
Kurdi applied for a visa to study in Germany after his
military service. He studied there between 2001 and 2006 but never
applied for asylum or refugee status in Germany because it was
"not on [his] mind. [He] wasn't thinking of it."
Kurdi returned to Lebanon on three occasions while
living in Germany. He claimed that he returned, in spite of his
fears, because his father was ill, and his parents asked him to
visit. During the first of these three visits, local police
detained Kurdi for one night; the detention, he speculated, was
spurred by interest in the car he was driving. Though Kurdi
described the police as "rude," they never threatened or otherwise
harmed him. Nor did any members of the organization threaten or
harm him. No incidents occurred during Kurdi's two subsequent
visits to Lebanon.
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At his immigration hearing, Kurdi conceded that he had
not received any threats from the organization while living in the
United States. Further, he admitted that his mother and several
of his siblings continued to live in Lebanon unharmed. He claimed,
however, that he remained fearful that the organization would seek
to harm him if he returned to Lebanon.
The IJ issued an oral decision denying Kurdi's claims
for relief on the merits and ordered him removed to Lebanon. The
IJ found that, although Kurdi was credible, he failed to meet his
burden of showing either past persecution or a well-founded fear
of future persecution.1 The BIA affirmed the IJ's decision.
This timely petition for review followed.
II.
Kurdi challenges the BIA's denial of his claims for
asylum, withholding of removal, and protection under the CAT.
Where, as here, the BIA adopts the IJ's decision and reasoning, we
review both decisions under the deferential substantial evidence
standard. Conde Cuatzo v. Lynch, 796 F.3d 153, 156 (1st Cir.
2015). Under this rubric, we will not reverse "unless 'the record
1 Kurdi argues at some length on appeal that he was credible.
Yet, this is so much wasted breath, as the IJ accepted Kurdi's
testimony as credible, and the BIA did not disturb that finding.
Our analysis proceeds under the assumption that Kurdi testified
credibly.
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would compel a reasonable adjudicator to reach a contrary
determination.'" Id. (quoting Lin v. Holder, 561 F.3d 68, 72 (1st
Cir. 2009)). Kurdi cannot clear this high hurdle.
A. Asylum
In order to qualify for asylum, an applicant must
establish either past persecution, or a well-founded fear of future
persecution if repatriated, on account of one of five enumerated
grounds: race, religion, nationality, membership in a particular
social group, or political opinion. See 8 U.S.C. § 1101(a)(42)(A).
Ample evidence supports the IJ's conclusion that Kurdi's
experiences in Lebanon did not rise to the level of persecution.
The attempted recruitment alone is inadequate. Cf. I.N.S. v.
Elías-Zacarías, 502 U.S. 478, 482 (1992) (attempted recruitment
does not constitute persecution on account of an individual's
political opinion). Here, Kurdi claims that he suffered
persecution because "he was forced to change his lifestyle" out of
"fear and paranoia on a daily basis of being harmed" by the
organization because he declined to help it. Yet, the record
plainly shows that no one in Lebanon threatened or harmed Kurdi at
any time. Even accepting that Kurdi felt fearful, his experience
simply does not fit within our understanding of "'persecution'
[a]s an extreme concept," Fatin v. I.N.S., 12 F.3d 1233, 1243 (3d
Cir. 1993), that goes beyond mere "unpleasantness, harassment, and
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even basic suffering," Nelson v. I.N.S., 232 F.3d 258, 263 (1st
Cir. 2000).
Kurdi also points to his overnight detention by Lebanese
police. But Kurdi himself linked this detention to interest in
his car rather than to a protected ground. Even if we assume
arguendo that the detention was a harm rising to the level of
persecution, because Kurdi fails to "provide sufficient evidence
to forge an actual connection between the harm and some statutorily
protected ground," he cannot show eligibility for asylum on this
basis. Lopez de Hincapie v. Gonzales, 494 F.3d 213, 218 (1st Cir.
2007).
We find no reason to disturb the IJ and BIA's conclusion
that Kurdi failed to show past persecution, as "[w]e cannot say on
these facts that the 'record compels a contrary conclusion.'"
Lumataw v. Holder, 582 F.3d 78, 91 (1st Cir. 2009) (quoting Elías-
Zacarías, 502 U.S. at 481 n.1). Because Kurdi did not show that
he suffered past persecution, he was not entitled to a presumption
that he had a well-founded fear of future persecution. See
8 C.F.R. § 1208.13(b)(1).
Kurdi argues that he nevertheless qualifies for asylum
because he provided evidence that he would be persecuted if
repatriated to Lebanon.2 Absent a showing of past persecution,
2 Kurdi also asserts that "the IJ failed to take into
consideration the country reports in considering [his] fear of
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Kurdi has a higher hurdle here. Under the circumstances, he must
harbor a genuine fear of future persecution and must establish an
objectively reasonable basis for that fear. See Nikijuluw v.
Gonzales, 427 F.3d 115, 121–122 (1st Cir. 2005). Kurdi's credible
testimony suffices to satisfy the subjective component. See id.
at 122. Therefore, as the IJ did, we focus our inquiry on the
objective component. "An objectively reasonable fear . . . exists
if a reasonable person in the petitioner's circumstances would
fear persecution based on a statutorily protected ground." Id.On this record -- including the U.S. Department of State Country
Report -- there was substantial evidence for the IJ to conclude
that, although Lebanon is characterized by "general conditions of
violence and political instability," a reasonable person in
Kurdi's position would not fear persecution on account of a
protected ground.
We do not minimize reports of the organization's acts of
violence, but general criminal activity cannot ground a well-
founded fear of future persecution. See Vasili v. Holder, 732
F.3d 83, 91 (1st Cir. 2013) (finding no well-founded fear of future
persecution despite Country Report that indicated presence of
criminal violence "as well as some corruption and incompetence
within the police force"). Moreover, Kurdi did not (conclusory
future persecution." On the contrary, the record shows that the
IJ cited and discussed current U.S. State Department reports.
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claims aside) show he would be targeted personally: there was no
evidence that members of the organization were looking for him,
and he lived in and visited Lebanon without threat or harm after
refusing to aid the organization. Cf. Zhang v. Holder, 330 F.
App'x 201, 203 (1st Cir. 2009) (citing similar reasons to deny
petition for review). In sum, the record considered as a whole
does not compel the conclusion that Kurdi has a well-founded fear
of future persecution.
Accordingly, we conclude that substantial evidence
supports the agency's asylum determination.
B. Withholding of Removal
Because Kurdi failed to carry the burden of persuasion
for his asylum claim, his related claim for withholding of removal
necessarily fails. See Villa-Londono v. Holder, 600 F.3d 21, 24
n.1 (1st Cir. 2010).
C. CAT
This brings us to Kurdi's final claim. The BIA concluded
that Kurdi had not established eligibility for protection under
the CAT, explaining that he failed to "demonstrate that [he] would
more likely than not be tortured in Lebanon by or with the
acquiescence of a public official or other person acting in an
official capacity." The infliction of harm does not constitute
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torture within the meaning of the CAT unless the harm "is inflicted
by, at the direction of, or with the acquiescence of government
officials." Lopez de Hincapie, 494 F.3d at 221. Kurdi argues
here that the Lebanese government would be unable to control the
organization if he returns. Though the record is murky on this
point, "[t]he very murkiness of the record means that we are not
compelled to decide otherwise, and it therefore makes the BIA's
conclusion invulnerable." Flores-Coreas v. Mukasey, 261 F. App'x
287, 291 (1st Cir. 2008).
III.
For the forgoing reasons, we deny Kurdi's petition.
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