Zakhary v. Ashcroft

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-1498
ONSY ZAKHARY and FADIA SADEK,
a/k/a FADI ZAKHARY, MONA LABIB,
Petitioners,
v.
JOHN ASHCROFT, ATTORNEY GENERAL
OF THE UNITED STATES,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lynch, Circuit Judge.
Saher Joseph Macarius, was on brief, for petitioners.
John M. McAdams, Jr., Attorney, Office of Immigration
Litigation, Civil Division, with whom Peter D. Keisler, Assistant
Attorney General, Civil Division, and Douglas E. Ginsburg, Senior
Litigation Counsel, were on brief, for respondent.
May 26, 2004
PER CURIAM. Petitioner Onsy Zakhary1 seeks review of the
Board of Immigration Appeals's ("BIA") order affirming the denial
of his application for asylum, withholding of removal and relief
under the Convention Against Torture. We affirm.
I.
Petitioner, a native and citizen of Egypt, was a resident
of Italy when he entered this country at Boston, Massachusetts, on
February 12, 1998, as a nonimmigrant visitor with authorization to
remain in the United States for a temporary period ending
February 12, 1999. On October 18, 1999, the Immigration and
Naturalization Service ("INS") commenced removal proceedings
against petitioner by filing a Notice to Appear in immigration
court. He was charged with being removable under 8 U.S.C.
§ 1227(a)(1)(B), as an alien who, after admission to the United
States as a nonimmigrant, remained in the United States longer than
permitted.
At the hearing before the Immigration Judge ("IJ") the
petitioner, through counsel, admitted some factual allegations
against him, conceded removability and requested asylum. The IJ
found that the application was untimely under 8 U.S.C. § 1158(a)
(2)(B). The IJ also found, in the alternative, that petitioner had
1
Fadia Sadek also seeks asylum. The basis of her claim is that
she married Onsy Zakhary in Massachusetts in 2001. Because her
claim is derivative, our affirmance of the BIA's denial of
Zakhary's claim necessarily affirms the denial of her claim.
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filed a frivolous asylum application after receiving warnings about
filing such an application. Further, the IJ found that the
petitioner had been firmly resettled in Italy before entering the
United States. Accordingly, he was ordered removed to Italy, or in
the alternative, to Egypt.
Some confusion exists as to whether petitioner will be
allowed into Italy. Petitioner bases his claim of asylum on his
assertion that he will not be accepted into Italy and will be
returned to Egypt, where he claims to fear persecution. We may
affirm, however, without addressing whether petitioner will be
accepted into Italy because, even assuming arguendo he were
returned to Egypt, his claim for asylum fails. That is because we
conclude that petitioner was firmly resettled in Italy and so
ineligible for asylum. The finding of firm resettlement precludes
asylum relief whether or not petitioner will have difficulty
returning to Italy. See Salazar v. Ashcroft, 359 F.3d 45, 51 (1st
Cir. 2004).
Petitioner's appeal to the BIA claims that he had
established extraordinary circumstances to excuse his untimely
application and that he had a valid asylum claim. The BIA affirmed
the application's denial for the reasons contained in the IJ's oral
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decision but reversed the finding that the petition was frivolous.
This appeal followed.2
II.
Petitioner bears the burden of demonstrating his
eligibility for asylum. He must meet that burden by showing past
persecution or fear of future persecution. "Determinations of
eligibility for asylum or withholding of deportation are reviewed
under the substantial evidence standard." Fesseha v. Ashcroft, 333
F.3d 13, 18 (1st Cir. 2003); Albathani v. INS, 318 F.3d 365, 373
(1st Cir. 2003). The agency decision is upheld if it is "supported
by reasonable, substantial, and probative evidence on the record
considered as a whole." Fesseha, 333 F.3d at 18 (quoting INS v.
Elías-Zacarias, 502 U.S. 478, 481 (1992)). "This standard is a
deferential one: the petitioner must demonstrate that the evidence
he presented was so compelling that no reasonable factfinder could
fail to find the requisite fear of persecution." Id. (internal
quotations and citation omitted). Applicants must provide
conclusive evidence that they were targeted or fear becoming
targets for persecution. Id. To show fear of future persecution,
applicants must meet both subjective and objective prongs. Id.The asylum applicant's fear must be genuine and objectively
reasonable. To satisfy the objective prong, an applicant's
2
Petitioner argued in his brief that the IJ's finding that his
application was untimely should be reversed. Because we affirm on
the merits, we need not address this procedural claim.
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testimony alone may be sufficient, but it must constitute credible,
direct and specific evidence of a reasonable fear of persecution.
El Moraghy v. Ashcroft, 331 F.3d 195, 203 (1st Cir. 2003).
Petitioner is an Egyptian Coptic Christian. He testified
to the following facts. While growing up in Egypt, he was a
practicing Christian. His first alleged experience of persecution
was in 1960 while he attended an academy for electronic studies.
He alleges that he was subject to harassment, including insults and
the burning of his books. The administrators threatened to fail
him, and he left the academy.
Petitioner returned home from the academy and remained
there for two years. He worked in a variety of jobs and then
enlisted to perform his mandatory service in the Egyptian army,
where the petitioner faced what he alleges to be the second
instance of persecution. The alleged persecution involved a
commander who, according to petitioner, ordered him to attend
lectures about Islam, knowing he was a Christian. At the lecture,
a cleric took him aside and spoke to him about conversion to Islam.
After he refused to convert, the cleric reported this to
petitioner's commander. Petitioner alleges that his off-base
privileges were revoked. He was thereafter confined for about
twenty days in what he alleges were harsh conditions. Petitioner
said that after his release from confinement he went to his brother
Yousry Zakhary's house. Petitioner never returned to the army. He
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worked in his brother's store until he left for Lebanon in February
1975.
Petitioner eventually settled in Italy, where he stayed
from 1977 until his departure for the United States in 1998.
During that time, petitioner had a valid Italian work permit and
operated a dry-cleaning business. Petitioner and Fadia Sadek had
two daughters while they lived in Italy. Petitioner visited the
United States fifteen times during the time he lived in Italy and
never applied for asylum.
The government argues that petitioner is ineligible for
asylum in the United States because he had "firmly resettled" in
Italy. Under the regulatory scheme, 8 C.F.R. §§ 208.13 and 208.15,
an IJ may not grant asylum to any applicant who "has been firmly
resettled within the meaning of § 208.15." 8 C.F.R. § 208.13(c)
(2)(i)(B); see also Yang v. INS, 79 F.3d 932, 939 (9th Cir.
1996)(holding that resettlement in a third country normally
precludes asylum). The definition of "firm resettlement" states
that:
An alien is considered to be firmly resettled if, prior
to arrival in the United States, he or she entered into
another country with, or while in that country received,
an offer of permanent resident status, citizenship, or
some other type of permanent resettlement unless he or
she establishes:
(a) That his or her entry into that country was a
necessary consequence of his or her flight from
persecution, that he or she remained in that
nation only as long as was necessary to arrange
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onward travel, and that he or she did not
establish significant ties in that country; or
(b) That the conditions of his or her residence in
that country were so substantially and
consciously restricted by the authority of the
country of refuge that he or she was not in fact
resettled.
8 C.F.R. § 208.15.
There is substantial evidence that petitioner was firmly
resettled in Italy. Courts have consistently upheld BIA decisions
in which asylum was denied because the applicants were found to
have firmly resettled. See Salazar v. Ashcroft, 359 F.3d 45, 51
(1st Cir. 2004); see also Mussie v. INS, 172 F.3d 329, 332 (4th
Cir. 1999); Cheo v. INS, 162 F.3d 1227, 1229-30 (9th Cir.
1998)(firm resettlement in Malaysia after Cambodian nationals lived
there for three years). Petitioner lived in Italy for more than
two decades, operated a business, lived with Fadia Sadek, had two
daughters with her, and by his own admission, did not want to leave
because he was happy in Italy. There are no indicia that
petitioner was still "in flight" in Italy or that Italy, as country
of refuge, restricted him in any way. Therefore, we affirm the
denial of asylum.
If a petitioner is unable to satisfy the less stringent
standard for asylum, he is a fortiori unable to satisfy the test
for withholding of removal. Albathani, 318 F.3d at 372. Since
petitioner has not met the standard for well-founded fear of
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persecution, he cannot meet the standard for withholding of
removal. The IJ's decision as to withholding is affirmed.
Petitioner makes a final argument, based on his belief
that if he is returned to Italy he will be subsequently deported to
Egypt, where he alleges he will be tortured. Under Article III of
the Convention Against Torture, petitioner must demonstrate that it
is more likely than not that he will be tortured if removed to
Egypt in order to obtain relief. 8 C.F.R. § 208.16(c)(2).
Petitioner produced only his own testimony that he was tortured in
the past, which the IJ did not find credible. Petitioner presented
no documentary evidence to substantiate his allegations of torture
in Egypt. Further, his accounts were contradicted by a witness who
saw petitioner frequently during the time he alleges he was
tortured. We see no reason to disturb the IJ's findings as to the
Torture Convention claims and the BIA's affirmance thereof.
III.
For the reasons stated above, the BIA's order is
affirmed.
Affirmed.
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