Saliba v. Mukasey

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 07-1647
GHOSN SALIBA,
Petitioner,
v.
MICHAEL B. MUKASEY,*
ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.
Peter A. Allen on brief for petitioner.
Joan H. Hogan, Attorney, Office of Immigration Litigation,
Peter D. Keisler, Assistant Attorney General, and Greg D. Mack on
brief for respondent.
January 10, 2008
*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Michael B. Mukasey has been substituted for former Attorney General
Alberto R. Gonzáles as the respondent herein.
STAHL, Senior Circuit Judge. The Board of Immigration
Appeals (BIA) affirmed, per curiam, an Immigration Judge's (IJ's)
denial of Ghosn Saliba's claims for asylum, withholding of removal,
and protection under the Convention Against Torture (CAT). Saliba,
a native and citizen of Lebanon, now petitions this court for a
review of the BIA's denial of his claims. Because this court lacks
jurisdiction over the asylum claim, and because a reasonable fact-
finder would not be compelled to conclude that Saliba has met his
burden of proof for the additional relief he seeks, we deny
Saliba's petition for review.
I. BACKGROUND
The IJ found Saliba credible. Therefore, we relate the
facts of the case as he testified to them.
Before leaving Lebanon in May 1993, Saliba, a Greek
Orthodox Christian, worked as a commercial fisherman. During this
time, Lebanon was partially occupied by the Syrian army. Saliba
preferred to sell his fish in the Christian section of the city of
Anfeh, as the mixed-religion area in which he lived was too poor to
provide a good market. When Saliba attempted to haul his catch to
the Christian section, Syrian officials at the pier would demand
one or two kilograms of his fish before letting him pass.1 Saliba
1
It is unclear precisely how many times Saliba encountered
such difficulties. Some of his testimony, set out more fully
below, indicates that he was detained on four specific occasions.
Other portions of his testimony suggest, however, that he was
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testified that he assumed that the guards took a portion of his
catch because he was Christian, based on the fact that the Syrians
"used to kill people" and "do abnormal things to people" and also
because they confiscated the fish when he wished to cross over to
the Christian section of the city.
Between 1991 and 1993, Saliba was detained by members of
the Syrian army on several occasions when he attempted to travel to
the Christian section of Anfeh to sell his fish. Each detention
occurred after the officers reviewed Saliba's identification card,
which revealed his last name "Saliba," which he claims means
"cross" in Arabic. The Syrian officers would then proceed to
detain him in a "very dark room" for "two [or] three hours" before
releasing him. He testified that, at times, the conditions were
very uncomfortable. He claimed that, during these episodes, the
guards would slap his face and say "very bad words" to him, some of
which related to his Christian faith. Although Saliba's relatives
reported the incidents, he was unable to obtain any assistance to
stop the harassment.
Saliba arrived in the United States on May 15, 1993, on
a nonimmigrant visa for pleasure travel, with authorization to
remain for a period not to exceed sixty days. Saliba neglected to
leave and failed to file for asylum within the one-year time limit.
harassed less severely on a more frequent basis. The IJ's findings
do not explicate the matter.
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On January 9, 2003, the Immigration and Naturalization Service
charged Saliba with remaining in the United States longer than
permitted and informed him that he was subject to removal. In
response, Saliba admitted the allegations and conceded removability
as charged but sought relief in the form of asylum, withholding of
removal, and protection under the CAT.
At the merits hearing before the IJ, Saliba also
testified that, based on his previous experiences, he is afraid to
return to Lebanon, for fear that the Syrian military will hurt or
arrest him. In order to rebut the grounds for Saliba's claimed
apprehension, the government introduced evidence indicating that
the Syrian military has withdrawn from the country. Saliba
maintains that, despite such reports, the Syrian military remains
present in Lebanon to some degree, intelligence which he apparently
acquired from watching television. Additionally, some documentary
evidence in the record supports this position. During Saliba's
presence in the United States, his wife and four children have
remained in Lebanon, and he admitted to the IJ that they have not
been subjected to any problems.
The IJ denied Saliba's asylum application and other
attendant claims, finding that, while credible, Saliba failed to
apply for asylum within one year of arriving in the United States,
failed to present a sufficient basis to substantiate a well-founded
fear of future persecution, and had not shown he would be tortured
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if returned to Lebanon. Saliba now seeks review of the BIA's
decision adopting the IJ's findings.
II. DISCUSSION
A. Asylum
We review the BIA's denial of asylum for substantial
evidence and accept the BIA's findings of fact if they are
supported by "reasonable, substantial, and probative evidence on
the record considered as a whole." Njenga v. Ashcroft, 386 F.3d
335, 338 (1st Cir. 2004) (quoting INS v. Elias-Zacarias, 502 U.S.
478, 481 (1992)) (internal quotation marks omitted). We will
reverse factual determinations contained in the decision below only
if "any reasonable adjudicator would be compelled to conclude to
the contrary." 8 U.S.C. § 1252(b)(4)(B). Where, as here, "the BIA
adopts an IJ's decision, we review the relevant portion of the IJ's
opinion as though it were the decision of the BIA." Guillaume v.
Gonzáles, 504 F.3d 68, 72 (1st Cir. 2007).
An application for asylum must be filed within one year
of the alien's arrival in the United States, absent changed
circumstances affecting eligibility for asylum or extraordinary
circumstances relating to the delay in filing. See 8 U.S.C.
§ 1158(a)(2)(B). In this case, it is undisputed that Saliba
resided in the United States for more than nine years before he
filed for asylum. The IJ rejected Saliba's contention that changed
or extraordinary circumstances exist warranting wavier of this time
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limit.2 We lack jurisdiction to review this determination. See 8
U.S.C. § 1158(a)(3); Sharari v. Gonzáles, 407 F.3d 467, 473 (1st
Cir. 2005) (explaining that we lack jurisdiction to review the
BIA's findings regarding compliance with the one-year time limit as
well as whether there are extraordinary or changed circumstances
sufficient to merit an exception).
Saliba concedes, as he must, that "the judicial review
bar of § 1158(a)(3) does not represent a due process violation."
Hana v. Gonzáles, 503 F.3d 39, 44 (1st Cir. 2007). Simply put,
"[d]ue process rights do not accrue to discretionary forms of
relief, and asylum is a discretionary form of relief." Id. at 43(alteration in original) (quoting Ticoalu v. Gonzáles, 472 F.3d 8,
11 (1st Cir. 2006)) (internal quotation marks omitted).
Nevertheless, he maintains that the application of the
jurisdictional bar to review, in the instant case, violates his
procedural due process rights under the United States Constitution.
The vast majority of Saliba's briefing on this subject, however,
focuses on general, prudential concerns related to the wisdom of
vesting review of decisions rendered under § 1158(a)(2)(B)
exclusively with the executive branch of government, thus
insulating it from external review of its own decisions. Whatever
2
Saliba argued that conditions in Lebanon grew worse during
his time in the United States and that he belatedly discovered the
availability of the asylum process.
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their merits, these arguments are more properly addressed to
Congress.
Saliba's attempt to circumvent the jurisdictional bar is
likewise unavailing. He argues that, notwithstanding the
constitutionality of § 1158(a)(3), "the failure of the IJ to make
an individualized analysis [of the relevant issues] was a violation
of due process . . . ." He maintains that the IJ should have
"explore[d] the reasons for [Saliba's] late filing," but that
"there is no evidence that the IJ outside of his oral decision or
the BIA ever undertook such an exploration." Thus, Saliba reasons
that the IJ and the BIA violated his right to a fair and efficient
procedure to evaluate his asylum claim.
It is true that we retain jurisdiction to consider
"constitutional claims or questions of law raised [in compliance
with the statute]." 8 U.S.C. § 1252(a)(2)(D). Nevertheless, "[a]
petitioner may not create the jurisdiction that Congress chose to
remove simply by cloaking an . . . argument in constitutional
garb." Mehilli v. Gonzáles, 433 F.3d 86, 93 (1st Cir. 2005)
(second alteration in original) (quoting Torres-Aguilar v. INS, 246
F.3d 1267, 1271 (9th Cir. 2001)) (internal quotation marks
omitted). "[T]o invoke our jurisdiction, a petitioner must allege
at least a colorable constitutional violation." Id. (alteration in
original) (quoting Torres-Aguilar, 246 F.3d at 1271) (internal
quotation marks omitted). Thus, "the putative constitutional or
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legal challenge must be more than a disguised challenge to factual
findings." Pan v. Gonzáles, 489 F.3d 80, 84 (1st Cir. 2007); see
also Mehilli, 433 F.3d at 94 (holding that arguments relating to
whether an IJ properly weighs or even considers a petitioner's
evidence fail to raise constitutional concerns).
Here, Saliba's contention fails for two reasons. First,
the essence of the argument is simply that the IJ did not consider
the evidence of changed or extraordinary circumstances to the
extent deemed appropriate by Saliba. Even if true, such an error
relates to the IJ's discretion in formulating his findings and,
thus, is unreviewable by this court because it does not implicate
the Constitution. See Hana, 503 F.3d at 43-44; De Araujo v.
Gonzáles, 457 F.3d 146, 153-55 (1st Cir. 2006); Mehilli, 433 F.3d
at 93-94.
Second, Saliba's premise is factually incorrect. In his
oral opinion, the IJ specifically examined the issue of whether any
changed or extraordinary circumstances warranted application of an
exception to the one-year time limit (as Saliba seems to
acknowledge in his appellate brief). A petitioner is not entitled
to have every contour and minor detail of his nonmeritorious
argument painstakingly explored to his own satisfaction. See Karim
v. Gonzáles, 424 F.3d 109, 111 (1st Cir. 2005) ("The obligation to
explain and articulate depends importantly on the strength of the
position being urged. Where no plausible reason is offered for a
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request, the word 'no' is plainly sufficient."). Moreover, at the
merits hearing, the IJ actually importuned counsel for Saliba to
address his client's purported entitlement to an exception from the
one-year requirement more thoroughly due to his obvious recognition
that the issue was potentially dispositive. Thus, the IJ paid
ample regard to any constitutional rights to which Saliba might
conceivably be entitled. Accordingly, Saliba's claim for asylum
was properly denied.
B. Withholding of Removal and Protection Under the CAT
Alternatively, Saliba argues that he is entitled to
withholding of removal and protection under the CAT. To qualify
for withholding of removal, Saliba must establish that his "life or
freedom would be threatened in [Lebanon] because of [his] race,
religion, nationality, membership in a particular social group, or
political opinion." 8 U.S.C. § 1231(b)(3)(A). A petitioner "has
the burden of proving that it is more likely than not that his life
or freedom will be threatened on account of one of [these] five
protected grounds were he to be repatriated." Segran v. Mukasey,
___ F.3d ___, ___, 2007 WL 4171217, at *5 (1st Cir. Nov. 27, 2007)
(citing 8 U.S.C. § 1101(a)(42)). "This 'more likely than not'
standard is harder for an alien to satisfy than the 'reasonable
possibility' standard for showing a well-founded fear of future
persecution in asylum cases." Pan, 489 F.3d at 86.
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As with asylum, however, "[a]n applicant for withholding
may . . . create a rebuttable presumption that his life or liberty
would be threatened upon return to his home country by proving that
he suffered past persecution there." Kho v. Keisler, 505 F.3d 50,
54 (1st Cir. 2007) (citing 8 C.F.R. § 208.16(b)(1)). Moreover,
"[a]n alien's credible testimony, standing alone, may sustain his
burden of proving eligibility for withholding of removal." Pan,
489 F.3d at 86.
The IJ found that Saliba was likely targeted for abuse
for financial reasons rather than his religion and that, even were
this not the case, Saliba did not show that he would be persecuted
upon returning to Lebanon because the Syrian army, the source of
the alleged persecution, had withdrawn from the country. Both of
these findings are supported by substantial evidence. Based on
Saliba's testimony, it was permissible for the IJ to infer that the
Syrian officers who demanded part of Saliba's catch were motivated
by greed rather than anti-Christian sentiment. See, e.g.,
Ferdinandus v. Gonzáles, 504 F.3d 61, 63 (1st Cir. 2007) (affirming
decision denying withholding of removal where it was ambiguous
whether the rioters who robbed petitioner were animated by
religious or pecuniary motives). Thus, Saliba cannot show past
persecution on one of the five enumerated grounds and is not
entitled to a presumption of future persecution. See Guillaume,
504 F.3d at 72-73.
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Similarly, while the parties adduced conflicting evidence
concerning whether the Syrian army had completely withdrawn from
Lebanon, the IJ was not compelled to find that the Syrian army
presented a continuing or future threat to Christians in Lebanon
such as Saliba. See Chahid Hayek v. Gonzáles, 445 F.3d 501, 508-09
(1st Cir. 2006) (holding that current State Department reports did
not support the notion of widespread persecution and torture of
Maronite Christians in Indonesia). The IJ's determination that the
Syrian military has withdrawn from Lebanon is plausible in light of
the available documents, including the 2004 Country Report on
Lebanon and an International Religious Freedom Report issued by the
United States Department of State, news articles, and other
analyses of the region. Our deferential standard of review forbids
further inquiry. See Pan, 489 F.3d at 87 n.6 (explaining that "the
factfinder's choice among plausible but conflicting inferences
cannot be clearly erroneous") (paraphrasing United States v. Ruiz,
905 F.2d 499, 508 (1st Cir. 1990)). Additionally, we note that
Saliba's wife and children continue to reside safely in Lebanon,
severely undercutting his claim that he will suffer persecution if
repatriated to his country of origin. Ferdinandus, 504 F.3d at 63.
Finally, we turn to Saliba's claim for relief under the
CAT. "An applicant claiming protection under the CAT bears the
burden of establishing that 'it is more likely than not that he or
she would be tortured if removed to the proposed country.'" Hana,
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503 F.3d at 44 (quoting 8 C.F.R. § 1208.16(c)(2)). The IJ's
permissible finding that the Syrian military no longer maintains a
presence in Lebanon precludes relief on this ground, as Saliba
presented no evidence of any other likely persecutor. Nor did he
present any evidence of the likelihood of torture if he returned.
Thus, Saliba has not demonstrated that he is entitled to protection
under the CAT.
III. CONCLUSION
For the foregoing reasons, we deny Saliba's petition for
review.
Affirmed.
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