Hikmat Salameh Abedalfattah v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 10-11901 U.S. COURT OF APPEALS
Non-Argument Calendar ELEVENTH CIRCUIT
________________________ APRIL 22, 2011
JOHN LEY
CLERK
Agency No. A094-889-312
HIKMAT SALAMEH ABEDALFATTAH,
llllllllllllllllllll0 Petitioner,
versus
U.S. ATTORNEY GENERAL,
lllllllllllllllllllllRespondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(April 22, 2011)
Before CARNES, PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM:
Hikmat Abedalfattah seeks review of the Board of Immigration Appeals’
decision affirming and adopting the Immigration Judge’s order of removal to
Jordan and denial of his applications for asylum, withholding of removal under the
Immigration and Nationality Act, and relief under the United Nations Convention
Against Torture and Other Cruel, Inhuman, or Degrading Treatment or
Punishment, 8 U.S.C. §§ 1158(a), 1231(b)(3), 8 C.F.R. § 208.16(c). Abedalfattah
is a Jordanian citizen.1 He lived in that country from his birth in 1966 until 1994,
when he moved to the city of Ramallah in the Occupied Territories on the West
Bank.2 He has a Jordanian and a Palestinian passport.
Abedalfattah contends that his credible testimony was sufficient to meet his
burden of proof to establish eligibility for asylum, withholding of removal, and
CAT relief. He argues that if corroborative evidence were required, the IJ should
have given him notice of that. He also asserts that substantial evidence does not
support the BIA’s decision that he failed to show that he would be singled out for
1
Abedalfattah was born in Ramallah in 1966 as a Jordanian citizen because at the time of
his birth Ramallah was under Jordanian rule. In 1967 his family, including Abedalfattah, moved
from Ramallah to another part of Jordan where he remained until he returned to Ramallah in
1994. At the time of his return, Ramallah was no longer under Jordanian rule.
2
For consistency, we use the BIA’s terminology of “the Occupied Territories” to describe
Ramallah and the West Bank area.
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persecution, that he would be tortured, or that he was part of a group that suffered
from a pattern or practice of persecution.
I.
Abedalfattah’s amended asylum application alleged persecution based on
his race, religion, and nationality. He stated that in December 2000 while driving
home to Ramallah from his work in Israel, Jewish settlers threw rocks at the car,
causing him to lose control and flip the car. As a result of the accident he suffered
a spinal injury and lost consciousness. A hospital discharge order detailing
treatment following a traffic accident in December 2000 was one of the documents
Abedalfattah submitted in support of his application. That document, dated
January 2001, stated that Abedalfattah suffered head and spinal injuries but noted
there was “no history of lost consciousness.”
Abedalfattah’s amended application also alleged that Israelis and
Palestinians harassed him frequently at the checkpoints on his way to and from
work. He asserted that Israelis believed he was aligned with the Intifada
Movement, while Palestinians believed he was an Israeli spy. On one occasion in
2004, Israeli soldiers stopped the cab that he was sharing with a group of teachers.
The soldiers questioned Abedalfattah and did not believe that he was returning
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home from work. They pushed him to the ground, kicking and punching him for
about twenty minutes. He eventually escaped but did not seek medical attention
even though he was bruised and in pain from the beating.
At a hearing before the IJ, Abedalfattah testified about the December 2000
incident when some Israeli settlers threw rocks at the car he was driving, and he
lost control of the car and wrecked. He testified that he was driving a taxi for the
taxi driver, who was sleepy. Abedalfattah did not make any attempt to reach the
taxi driver in order to get a corroborating statement or affidavit from him.
Abedalfattah also testified about the 2004 incident when he was beaten by Israeli
soldiers. He stated that he did not seek medical treatment and did not have
documentary evidence of the incident. He admitted that Israelis were targeting all
Palestinians that day and did not single him out.
In her oral decision the IJ noted several inconsistencies in Abedalfattah’s
testimony but made no adverse credibility finding. Instead, the IJ determined that
Abedalfattah did not meet his burden under the REAL ID Act because he failed to
provide sufficiently detailed testimony or corroborating evidence to support his
claims, and his failed to show why corroborating evidence was not available. The
IJ found that Abedalfattah’s testimony was “full of generalities” and that he had
not established past persecution or a well-founded fear of future persecution.
4
Abedalfattah also did not show why he could not safely relocate to Jordan, his
country of citizenship at birth and at the present time, where he still has family.
The IJ ordered Abedalfattah removed to Jordan or alternatively to the “Palestinian
Authority.” He appealed to the BIA.
The BIA held that the IJ did not err by concluding that Abedalfattah failed
to provide or adequately explain the absence of reasonably available corroborating
evidence. He did not submit affidavits from his wife or other family members
corroborating any alleged threats. He did not submit photographs of the car wreck
incident in 2000, or police reports, or affidavits from the cab driver or other
witnesses. The BIA found that the evidence he did submit was inadequate. He
relied on medical reports that were written in English, one of which was dated
nearly two years after the alleged incident. Those reports did not provide details
about the incident, and the hospital discharge report contradicted his claim that he
lost consciousness. Finally, he provided no corroboration for his claim that he was
beaten by soldiers in 2004, even though in his account of that incident, several
teachers were in the car with him. The BIA found that corroborating evidence for
these events should have been readily available. In addition to failing to establish
past persecution, the BIA concluded that Abedalfattah had not shown a well-
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founded fear of future persecution because he had failed to show that it would be
unreasonable for him to relocate to Jordan.
II.
“Where the BIA issues its own opinion, but expressly adopts the IJ’s
reasoning, we review both the BIA’s and the IJ’s decision.” Shkambi v. U.S. Att’y
Gen., 584 F.3d 1041, 1048 (11th Cir. 2009). The BIA adopted the IJ’s reasoning
in denying relief to Abedalfattah but did so “[i]n light of” the reasons set forth in
its own opinion, so we review both the BIA’s and the IJ’s decisions. See id.A.
Abedalfattah contends that the IJ and the BIA erred by requiring him to
produce corroborative evidence because his credible testimony entitled him to
relief. He argues that the IJ should have given him notice that corroborating
evidence was required to support his claim, and because he did not get that notice,
the BIA should not have denied his claims based on the lack of corroborating
evidence.
Abedalfattah’s application for asylum, which was filed after May 11, 2005,
is governed by the REAL ID Act of 2005. The Act provides that when the IJ
“determines that the applicant should provide evidence that corroborates otherwise
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credible testimony, such evidence must be provided unless the applicant does not
have the evidence and cannot reasonably obtain the evidence.” 8 U.S.C. §
1158(b)(1)(B)(ii); see also Rapheal v. Mukasey, 533 F.3d 521, 527 (7th Cir. 2008)
(“[U]nder the REAL ID Act, corroborating evidence may be required even if the
applicant is credible.”). Furthermore, “[n]o court shall reverse a determination
made by a trier of fact with respect to the availability of corroborating evidence . .
. unless the court finds . . . that a reasonable trier of fact is compelled to conclude
that such corroborating evidence is unavailable.” 8 U.S.C. § 1252(b)(4).
Possibly anticipating that corroboration might be necessary, Abedalfattah
submitted some documents along with his asylum application. Cf. Rapheal, 533
F.3d at 530 (“[T]he REAL ID Act clearly states that corroborative evidence may
be required, placing immigrants on notice of the consequences for failing to
provide corroborative evidence.”). Instead of corroborating his testimony,
however, at least one of those documents, the hospital discharge order dated
January 2001, contradicted his testimony that he lost consciousness during the
December 2000 incident involving the car wreck. Another report was dated nearly
two years after the car wreck. The IJ found that other aspects of Abedalfattah’s
testimony were uncorroborated despite the fact that corroboration should have
been readily available. Even though the IJ made no adverse credibility finding,
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the IJ and the BIA acted within their discretionary authority when they considered
Abedalfattah’s failure to provide sufficient corroborative evidence. See Singh v.
Holder, 602 F.3d 982, 988 (9th Cir. 2010) (“With section 1158(b)(1)(B)(ii),
Congress has expressly empowered the IJ to require corroborating evidence even
when the applicant has provided otherwise credible testimony. Should the
applicant fail to offer corroboration, the IJ may conclude that despite the
applicant’s credible testimony, he has failed to meet his burden of demonstrating
that he is entitled to asylum relief.”). Nothing in the record compels the
conclusion that corroborating evidence was unavailable. See 8 U.S.C. §
1158(b)(1)(B)(ii).
B.
Abedalfattah contends that substantial evidence does not support the IJ’s
and BIA’s conclusion that failed to establish past persecution on account of his
political opinion, religion, or national origin. We review the IJ’s and BIA’s
factual determinations under the substantial evidence test. Mohammed v. U.S.
Att’y Gen., 547 F.3d 1340, 1344 (11th Cir. 2008). Under this test, “we view the
record evidence in the light most favorable to the agency’s decision and draw all
reasonable inferences in favor of that decision,” and “must affirm the BIA’s
decision if it is supported by reasonable, substantial, and probative evidence on the
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record considered as a whole.” Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th
Cir. 2004) (en banc) (quotation marks omitted). We may reverse only when the
record compels it. Id. at 1027. “[T]he mere fact that the record may support a
contrary conclusion is not enough to justify a reversal of the administrative
findings.” Id.In absence of an adverse credibility determination we assume Abedalfattah
to be credible, but even so the BIA’s finding that he failed to meet his burden of
proof is supported by substantial evidence. The evidence fails to demonstrate that
Israeli settlers or soldiers singled out Abedalfattah for harm because of a protected
ground. See Mehmeti v. U.S. Att’y Gen., 572 F.3d 1196, 1199 (11th Cir. 2009)
(explaining that to meet his burden of showing refugee status “the applicant must,
with specific and credible evidence, establish (1) past persecution on account of a
statutorily protected ground or (2) a well-founded fear of future persecution on
account of a protected ground”) (quotation marks omitted). Unless an applicant
shows that he was either persecuted or would be persecuted based on statutory
ground, the fact that the alien may return to a country that is plagued by violence
or conflict does not entitle him to asylum relief. See Silva v. U.S. Att’y Gen., 448
F.3d 1229, 1263 (11th Cir. 2006); see also Matter of Sanchez and Escobar, 19 I. &
N. Dec. 276 (BIA 1985) (“[T]he tragic and widespread savage violence affecting
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all Salvadorans as the result of civil strife and anarchy is not persecution.”). Also,
to the extent that Abedalfattah alleges that suffered harm from Palestinian groups,
it does not amount to more than threats and harassment and is not enough to
establish past persecution. See Silva, 448 F.3d at 1237 (observing that persecution
is “an extreme concept, requiring more than a few isolated incidents of verbal
harassment or intimidation”) (quotation marks omitted). As a result, substantial
evidence shows that Abedalfattah did not suffer past persecution based on a
protected ground.
Abedalfattah also fails to demonstrate that the record compels a finding that
he had a well-founded fear of future persecution. Substantial evidence supports
the BIA’s finding that he could avoid any future harm by relocating to Jordan. See
Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1258–59 (11th Cir. 2006); 8 C.F.R.
§ 1208.13(b)(2)(ii). Abedalfattah is a Jordanian citizen, and he has a valid
Jordanian passport that has not expired. Although he testified that a new law
would require him to give up his Jordanian passport because he also has a
Palestinian passport, he did not provide a citation to or evidence of that new law to
the IJ or the BIA.3 Substantial evidence supports the finding that he could
3
In his brief to this Court Abedalfattah also failed to provide a citation to or evidence of
any Jordanian law that would require him to give up his Jordanian passport. Furthermore, the
record shows that his wife has a Jordanian passport and has used that passport to travel through
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reasonably be expected to relocate to Jordan, the country of removal, to avoid
future harm.4
Because Abedalfattah failed to establish his eligibility for asylum, he has
necessarily failed to meet the higher standard for withholding of removal. See
Djonda v. U.S. Att’y Gen., 514 F.3d 1168, 1177 (11th Cir. 2008). Also, based on
Abedalfattah’s failure to establish a well-founded fear of persecution, he is not
entitled to CAT relief because he “cannot establish that it is more likely than not
that he will be tortured based on a protected factor.” Mehmeti, 572 F.3d at 1201.
C.
Finally, Abedalfattah contends that he is a member of a disfavored group
that is subject to a pattern or practice of persecution. He argues that he will be
persecuted based on his religion and national origin if he is forced to return to the
Jordan to the Occupied Territories on three occasions since 2005.
4
Abedalfattah has abandoned any challenge to the IJ’s determination that Jordan is the
country of removal because he did not raise the issue on appeal. See Sepulveda v. U.S. Att’y
Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005). Furthermore, when an alien refuses to designate
a country of removal, the IJ and BIA have “very broad discretion” in designating a country to
which the alien will be sent. Al Najjar v. Ashcroft, 257 F.3d 1262, 1295 (11th Cir. 2001). If the
alien does not choose a county of removal, he may be removed to: (1) a country of which he is a
citizen or national; (2) a country with which he has a lesser connection in the event that the alien
is stateless, such as where he was born or from which he was admitted to the United States; or (3)
any country whose government will accept the alien into that country. 8 U.S.C. §
1231(b)(2)(A)(i), (b)(2)(C), (D), and (E); Jama v. Immigration and Customs Enforcement, 543
U.S. 335, 125 S.Ct. 694, 699–700 (2005).
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Occupied Territories. As we have already explained, however, the IJ’s order
properly directs removal to Jordan, and Abedalfattah has presented no evidence
that in Jordan there is a pattern or practice of persecution of a group of which he is
a member. See 8 C.F.R. § 1208.13(b)(2)(iii)(A), (B); see also Mehmeti, 572 F.3d
at 1200.
PETITION DENIED.
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