Talim Sulaman v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 6, 2005
No. 04-15884 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA Nos. A95-225-699 & A95-225-700
TALIM SULAMAN,
Petitioner-Appellant,
versus
U.S. ATTORNEY GENERAL,
Respondent-Appellee.
________________________
Petition for Review of an Order of the
Board of Immigration Appeals
_________________________
(September 6, 2005)
Before ANDERSON, BIRCH and MARCUS, Circuit Judges.
PER CURIAM:
Talim Sulaman, through counsel, petitions us for review of the Bureau of
Immigration Affairs’ (“BIA”) adoption and affirmance of the Immigration Judge’s
(“IJ”) order denying his petition for asylum and withholding of removal under the
Immigration and Nationality Act (“INA”) and relief under the United Nations
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (“CAT”). We DENY Sulaman’s PETITION.
I. BACKGROUND
Sulaman is a native and citizen of South Africa but is of Indian descent. On
1 August 2001, Sulaman, his wife Shereen, and their four children, Muhammed
Waseen, Sumehyah, Muhammed Safwaan, and Aalia, were admitted to the United
States as non-immigrant visitors with authorization to remain until 31 January
2002. On 29 March 2002, the Immigration and Naturalization Service1 (“INS”)
issued all of the petitioners notices to appear, charging them with removability
under the INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), for remaining in the
United States for a time longer than permitted. On 23 January 2002, Sulaman filed
an application for asylum, withholding of removal, and CAT relief.
1
On 25 November 2002, President Bush signed into law the Homeland Security Act of 2002
(“HSA”). Pub. L. No. 107-296, 116 Stat. 2135. The HSA abolished the INS and transferred its
functions to a new Department of Homeland Security (“DHS”). This opinion refers to the agency
as the INS because the case was initiated while the INS was still in existence.
2
In his application and testimony before the IJ, Sulaman claimed that he and
his family had suffered past persecution because they are of Indian descent.2 In
support of his claim, he recounted four specific incidents of alleged persecution, all
of which occurred after he and his family relocated from Durban to Phuthadit
Jhaba3 sometime in 1995 or 1996.4 First, in December 2000, a group of blacks
approached Sulaman and his family while they were at the beach. The group
threatened to kill him and his family and then robbed them. They said it was time
for them to go “back to India” and called them “mongrel dogs,” an epithet for
people of Indian descent. Second, in June or July of 2001, Sulaman was robbed by
a different group of black people. Third, Sulaman’s children were targeted by
other children at school because they were wealthy. His children were beaten by
“mainly black children” two or three times weekly if they did not give them
money, their book bags and lunches were stolen, and they suffered daily verbal
abuse. According to Sulaman, the bullies attacked only other Indian children, and
2
According to Sulaman’s testimony, “blacks,” “whites,” and “Indians” are the primary racial
groups in South Africa. Id. at 162. Throughout his testimony, Sulaman used the terms “coloreds”
and “Indians” interchangeably to refer to South Africans of Indian descent. For consistency, we
refer to the group as “Indians” throughout this opinion.
3
According to Sulaman’s testimony, Phuthadit Jhaba was called “Qwa Qwa” before 1994.
Although Sulaman at some points referred to the city as Qwa Qwa, we refer to the city as Phuthadit
Jhaba thoughout this opinion.
4
Sulaman testified that he and his family moved from Durban in order to improve his
business and also because of racial tensions between blacks and Indians there.
3
any complaints made to the school were ignored. Fourth, in March 2001, three
black men visited Sulaman’s factory when he was away and spoke to his wife.
They asked why she was married to an Indian and offered to kill Sulaman to get
him “out of the way” so that she could marry them. Sulaman believed that these
men would kill his entire family if they came back. Neither Sulaman nor his wife
saw these men again before they left the country, and Sulaman did not know their
names and had never seen them before the incident.
Sulaman never reported these incidents to the police because he believed
that they would be unresponsive to his complaints because he is Indian and the
police are black. Sulaman fears that, if he and his family return to South African,
black people would kill his family and kidnap and rape his wife and daughters
because the circumstances in South Africa were worsening. Although Sulaman
and his family have never been arrested or detained in South Africa, he also would
fear the government and the police.
Additionally, Sulaman testified about racial and ethnic tensions in South
Africa generally. Prior to 1994, Indians were discriminated against by whites on
account of their race. Since the end of apartheid, Indians were discriminated
against by blacks.5 Sulaman believes that authorities will not protect his family
5
In his application, Sulaman stated that black South Africans have a “racially motivated ‘Pay
Back’ mentality” and believe that Indians and other non-black minority groups do not have the right
to be in South Africa.
4
because they are part of the Indian minority. Because of the lack of police
protection, many Indians have formed vigilante groups, such as the People Against
Gangsterism and Drugs (“PAGAD”), as a way to protect themselves.
Sulaman’s wife also testified before the IJ. She recounted, among other
things, an incident in which her nephew was carjacked by blacks carrying AK-47
assault rifles. The police were called, and they chased the assailants and eventually
killed them in a shootout.
The IJ also reviewed the U.S. State Department’s South Africa Country
Reports on Human Rights Practices for 2002 (“2002 Country Report” or
“Report”). The 2002 Country Report noted continued incidents of “vigilante
action and mob justice” throughout South Africa and stated that a recent study
attributed the continuation to “police inefficiency and the perception that courts
failed to deliver justice.” Additionally, the 2002 Country Report indicated that
there was widespread concern among white farmers that they would be targeted for
political and racial reasons, but according to police and academic studies, the
perpetrators were “usually common criminals motivated by financial gain.” Id. at
281-82. A 2002 study showed that the government failed to protect the inhabitants
of commercial farms in general, and that black women farm residents were
especially vulnerable. The 2002 Country Report also noted that the government
had banned from the nation’s airwaves a song considered to be racist and anti-
5
Indian. In the section discussing discrimination against national, racial, or ethnic
minorities, the Report made no mention of Indians suffering at the hands of blacks
and instead noted that blacks, as well as other “previously disadvantaged groups,”
were still underrepresented in managerial and professional positions within the
workforce.6 Id. at 299.
The IJ denied Sulaman’s application for asylum, withholding of removal,
and CAT relief. After summarizing the evidence presented by Sulaman, the IJ
made the following specific findings: (1) Sulaman’s claim that the authorities will
not protect his family was undermined by his wife’s testimony that the police
responded when her nephew carjacked and ultimately killed the perpetrators; (2)
there was evidence that the South African government is making efforts to ensure
that “there is no . . . racism against those of Indian descent,” id. at 118, such as its
banning a song perceived to be anti-Indian; (3) Sulaman and his family were
victims of crimes, or, in some instances were perhaps verbally harassed because of
their ethnicity, but there was no evidence which indicated that they were being
persecuted on account of race; and (4) there was evidence that the difficulties
encountered by Sulaman and his family began only after they moved to Phuthadit
6
Sulaman submitted various other supporting documentation to the IJ.
6
Jhaba, and that there was no evidence of a threat of persecution on a country-wide
basis.
Based on the background materials presented, the IJ also took note of the
difficulties which plague South Africa as it makes its transition from the previous
apartheid government to its current multiparty parliamentary democracy. The IJ
noted that the country suffers from a “certain amount of lawlessness,” id. at 117, is
rife with racial tensions between whites and blacks, and has seen episodes of
vigilante justice. However, the IJ found that the background materials did not
indicate that individuals of Indian descent are being targeted specifically. The IJ
also noted that Sulaman talked only in general terms of discrimination against
Indians by blacks.
The IJ found that Sulaman failed to show past persecution or a well-founded
fear of future persecution and that he failed to meet his burden of proving that
“anyone in South Africa is interested in [him] due to any of the five enumerated
grounds necessary for a grant of asylum.” Id. at 119. Because Sulaman did not
prove he was entitled to asylum, the IJ found that Sulaman also did not establish
that he would “more likely than not” experience persecution on account of race, as
required to obtain withholding of removal relief. Id. at 121. Finally, the IJ
concluded that Sulaman was not eligible for CAT relief. Id. Accordingly, the IJ
ordered Sulaman, his wife, and his children removed from the United States.
7
Sulaman appealed the IJ’s decision to the BIA. In a per curiam opinion, the
BIA adopted and affirmed the IJ’s decision. First, the BIA concurred with the IJ’s
conclusion that the “harm to the respondents constitutes discrimination and
harassment, but not persecution.” Id. at 3. Second, the BIA noted that Sulaman
was not “detained, harmed, or threatened by the government on account of a
protected ground.” Id. Finally, the BIA concluded that Sulaman could not show
that the government was unwilling or unable to control the alleged persecutors
because he failed to request police aid.
II. DISCUSSION
On appeal, Sulaman advances four main arguments. First, he contends that
he proved that he has a well-founded fear of future prosecution because (1) his
testimony established a reasonable possibility of persecution on account of race,
and (2) his testimony and information contained in the 2002 Country Report
showed that the government is unable or unwilling to stop racially motivated
persecution. Second, Sulaman argues that the substantial weight of the evidence
demonstrated that he was persecuted on account of his race because he and his
family were “unprotected racial minorities in a country with an unparalleled
history of violent racial persecution.” Opening Brief of Petitioner Talim Sulaman
8
at 51-52. Third and fourth, Sulaman avers that substantial evidence supports a
finding that he was entitled to withholding of removal and/or CAT relief.7
We review the BIA’s factual determinations under the substantial evidence
test, and we “must affirm the BIA’s decision if it is ‘supported by reasonable,
substantial, and probative evidence on the record considered as a whole.’” Al
Najjar v. Ashcroft, 257 F.3d 1262, 1283-84 (11th Cir. 2001) (citation omitted).
Because the substantial evidence standard is highly deferential, we can reverse the
BIA’s decision “only if the evidence ‘compels’ a reasonable fact finder to find
otherwise.” Sepulveda v. United States Att’y Gen, 401 F.3d 1226, 1230 (11th Cir.
2005) (per curiam) (citation omitted). We review de novo to the extent that the
ruling is based on the interpretation of applicable statutes. Mazariegos v. United
States Att’y Gen., 241 F.3d 1320, 1324 (11th Cir. 2001). Although we normally
review the BIA’s decision only, if the BIA expressly adopted the reasoning of the
IJ, as it did in this case, we review the IJ’s decision as well. Al Najjar, 257 F.3d at
1284.
A. Asylum
7
As Sulaman’s removal proceedings were commenced after 1 April 1997, the effective date
of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208,
110 Stat. 3009 (1996) (“IIRIRA”), his case is governed by the permanent provisions of the INA, as
amended by IIRIRA. Gonzalez-Oropeza v. United States Att’y Gen., 321 F.3d 1331, 1332 (11th
Cir. 2003) (per curiam).
9
An alien who arrives in or is present in the United States may apply for
asylum. See INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). The Attorney General has
discretion to grant asylum if the alien meets the INA’s definition of a “refugee.”
See INA § 208(b)(1), 8 U.S.C. § 1158(b)(1). A “refugee” is
any person who is outside of any country of such person’s nationality
or, in the case of a person having no nationality, is outside any
country in which such person last habitually resided, and who is
unable or unwilling to return to, and is unable or unwilling to avail
himself or herself of the protection of, that country because of
persecution or a well-founded fear of persecution on account of
race, religion, nationality, membership in a particular social group, or
political opinion . . . .
8 U.S.C. § 1101(a)(42)(A) (emphasis added). The asylum applicant carries the
burden of proving statutory “refugee” status. See Al-Najjar, 257 F.3d at 1284. To
establish asylum eligibility, the alien must, with specific and credible evidence,
establish (1) past persecution on account of a statutorily listed factor, or (2) a
“well-founded fear” that the statutorily listed factor will cause future persecution.
8 C.F.R. § 208.13(a), (b); Al-Najjar, 257 F.3d at 1287.
Although the INA does not explicitly define “persecution,” we have
recognized that “[n]ot all exceptional treatment is persecution,” Gonzalez v. Reno,
212 F.3d 1338, 1355 (11th Cir. 2000), that “persecution . . . requir[es] more than a
few isolated incidents of verbal harassment or intimidation,” Sepulveda, 401 F.3d
at 1231 (internal quotations omitted), and that “[m]ere harassment does not amount
10
to persecution,” id. (internal quotations omitted). An alien’s fear of future
persecution generally must be based on an individualized risk of persecution. See
8 C.F.R. § 208.13(b)(2)(i). However, he need not show that he will be singled out
for future persecution if he demonstrates a pattern or practice of persecution of
people who are similarly situated. Id. at (b)(2)(iii).
In this case, we conclude that substantial evidence supports the IJ and BIA’s
conclusion that Sulaman did not suffer from past persecution. While Sulaman’s
testimony revealed that he and his family were robbed, his wife threatened, and his
children bullied, these incidents, while certainly unpalatable, do not constitute
persecution because they do not “rise above unpleasantness, harassment, and even
basic suffering.” See Nelson v. INS, 232 F.3d 258, 263 (1st Cir. 2000). As for
Sulaman’s claim that he has a well-founded fear of future persecution, we again
believe that substantial evidence supports the IJ and BIA’s conclusions. Sulaman
offered no particularized instances of violence aimed specifically at Indians nor
evidence that, if he were to relocate to another part of South Africa, he and his
family would still be targeted. Moreover, although the country conditions
information contained in the record reflects that South Africa is still plagued by
widespread racial tensions, it does not compel the conclusion that Sulaman will be
persecuted on account of a protected ground upon his return or that there is a
pattern or practice of persecution of Indians in the country. To the contrary, the
11
record contains evidence of South African government’s intervention when an
anti-Indian song was broadcast as well as evidence of police protection in cases of
violence directed towards Indians. Thus, the IJ and BIA did not err in concluding
that there was no substantial evidence to satisfy the objective and subjective
components of the well-founded fear of future persecution requirement.
B. Withholding of Removal
An alien who seeks withholding of removal under the INA must demonstrate
that his “life or freedom would be threatened in [the country of removal] because
of the alien’s race, religion, nationality, membership in a particular social group, or
political opinion.” 8 U.S.C. § 1231(b)(3)(A); accord Mendoza v. United States
Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003). The alien must show that he
“more-likely-than-not would be persecuted or tortured upon his return” to his
country. Mendoza, 327 F.3d at 1287. The standard for withholding removal is
more stringent than the “well-founded fear” standard for asylum, and an applicant
unable to meet the “well-founded fear” standard for asylum is usually unable to
qualify for withholding of removal. See D-Muhumed v. United States Att’y Gen.,
388 F.3d 814, 819 (11th Cir. 2004).
In this case, Sulaman failed to meet the lower burden required to establish a
“well-founded” fear of future persecution in South Africa. Accordingly, he cannot
12
meet the higher withholding of removal standard. We affirm the BIA’s denial of
Sulaman’s application for withholding of removal.
C. CAT Relief
To obtain withholding of removal under the CAT’s implementing
regulations, an alien must establish that he “more likely than not” will be tortured
upon return to his home country. 8 C.F.R. § 208.16(c)(2). “Torture” is defined as
any act by which severe pain or suffering, whether physical or mental,
is intentionally inflicted on a person for such purposes as obtaining
from him or her or a third person information or a confession,
punishing him or her for an act he or she or a third person has
committed or is suspected of having committed, or intimidating or
coercing him or her or a third person, or for any reason based on
discrimination of any kind, when such pain or suffering is inflicted by
or at the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity.
Id. § 208.18(a)(1). Because applicants seeking CAT relief must meet a higher
burden of proof than applicants seeking asylum, those who cannot prove a “well-
founded fear” to obtain asylum usually cannot prove entitlement to relief under
CAT. See Al Najjar, 257 F.3d at 1303.
In this case, Sulaman failed to demonstrate a “well founded fear” of future
persecution upon return to South Africa. It thus follows that Sulaman failed to
show that it was more likely than not he would be tortured on account of a
protected factor. Accordingly, the IJ and BIA did not err in denying Sulaman CAT
relief.
13
III. CONCLUSION
Upon review of the record and the contentions of the parties, we conclude
that substantial evidence supports the BIA’s denial of Sulaman’s application for
asylum, withholding of removal, and CAT relief. Accordingly, we DENY
Sulaman’s PETITION.
14