Abou Rawash Hassan Abdel Moaty Zakaria v. US Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-12635 ELEVENTH CIRCUIT
Non-Argument Calendar MARCH 4, 2011
________________________ JOHN LEY
CLERK
Agency No. A089-086-811
ABOU RAWASH HASSAN ABDEL MOATY ZAKARIA,
a.k.a. Abou Zakaria,
a.k.a. Tony Zakaria,
lllllllllllllllllllll Petitioner,
versus
U.S. ATTORNEY GENERAL,
lllllllllllllllllllll Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(March 4, 2011)
Before HULL, MARTIN and KRAVITCH, Circuit Judges.
PER CURIAM:
Abou Rawash Hassan Abdel Moaty Zakaria seeks review of the Board of
Immigration Appeals’s (BIA) final order affirming the Immigration Judge’s (IJ)
denial of his application for asylum, withholding of removal, and relief under the
United Nations Convention Against Torture (CAT). Upon review of the record,
the petition is denied.
I.
Zakaria entered the United States with his wife and children as a
nonimmigrant visitor in September 2007. Under his visitor’s visa, he was
permitted to stay until March 1, 2008; he received an extension to stay until
August 1, 2008. Although a native and citizen of Egypt, Zakaria had entered
Germany on a work visa in 1993 and had received an offer of permanent residency
in October 2003.
In June 2008, Zakaria received a Notice to Appear issued by the Department
of Homeland Security, charging him with violations as a nonimmigrant alien
present and working in the United States in violation of 8 U.S.C. § 1227 (a)(1)(B)
and (a)(1)(C)(i). Zakaria filed an application for asylum and withholding of
removal, based upon his religion and membership in a social group, and for relief
under CAT.
At his removal hearing, Zakaria argued that he would be in danger if he
were deported to Egypt because he had converted from Islam to Christianity in
2003 and when he revealed this to his family on his last visit to Egypt they
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rejected his conversion and threatened him. Although Zakaria had obtained
German residency in 2003, he explained that he never felt he belonged there, and
that he had lost his status in March 2008 after remaining outside of Germany for
more than six months. The IJ denied Zakaria’s applications for asylum,
withholding of removal, and CAT protection, concluding that he had been firmly
resettled in Germany where he lived from 1993 until coming to the United States
in 2007, and that Zakaria had failed to show that he would more likely than not be
persecuted or tortured upon returning to Egypt. Zakaria appealed to the BIA,
which dismissed his claims. This petition followed.
II.
We review only the BIA’s decision, except to the extent that it adopts the
IJ’s opinion or reasoning. Najir v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.
2001). Because the BIA’s decision did not expressly adopt the IJ’s opinion or
reasoning concerning the firm resettlement rule, we only review the BIA’s
decision as to that issue. See Imelda v. U.S. Att’y Gen, 611 F.3d 724, 728 (11th
Cir. 2010). Further, we review administrative fact findings under the substantial-
evidence standard, and must affirm the decision if, when viewing the evidence in
light most favorable to the decision, they are supported by reasonable, substantial,
and probative evidence. Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27 (11th Cir.
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2004) (en banc). We will only reverse a finding of fact where the record compels
it, and not where it merely supports a contrary conclusion. Id. at 1027.
III.
A.
Zakaria argues that the BIA erred in concluding that he was firmly resettled
in Germany because he was not fleeing from religious persecution at the time he
lived there. Zakaria contends that his fear of religious persecution began once he
lost his German residency in 2008 because he would have to return to Egypt if
deported from the United States. The government counters that Zakaria lived in
Germany from 1993 through 2007, was offered permanent residency, and was
firmly resettled there, thus barring him from claiming asylum in the United States.
Under the INA, an applicant is not eligible for asylum is he was “firmly
resettled in another country prior to arriving in the United States.” INA §
208(b)(2)(A)(vi), 8 U.S.C. § 1158 (b)(2)(A)(vi). “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.”
8 C.F.R. § 1208.15. An alien can be excepted from the firm resettlement rule if
(a) his or her entry into that county was a necessary consequence of his
or her flight from persecution, . . . he or she remained in that county only
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as long as was necessary to arrange onward travel, and . . . he or she did
not establish significant ties in that country; or
(b) conditions of his or her residence in that country were so
substantially and consciously restricted by the authority country of
refuge that he or she was not in fact resettled.
Id. at § 1208.15(a)-(b) (emphasis added).
The record supports the BIA’s determination that Zakaria had firmly
resettled in Germany and that his circumstances do not place him within the
exceptions to the firm resettlement rule. Zakaria admitted that he received an offer
of permanent residency in 2003. Although he did not initially move to Germany
because he feared religious persecution, he returned to Germany after he was
threatened by family members while visiting Egypt in 2005. Furthermore, he still
enjoyed Germany’s offer of permanent residency when he came to the United
States in 2007. The fact that this status was subject to abandonment for remaining
outside of Germany for more than six months does not affect our analysis.
Zakaria lived in Germany for fourteen years, married and had children while
there, and made two trips to Egypt, one before and one after receiving his offer of
permanent residency. Although Zakaria points to the fact that he remained in
Germany because two of his children reside in the German foster care system,1 the
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Zakaria has two children from his first marriage that ended in divorce and two children
with his current wife. According to Zakaria, his first wife told the German authorities that he
was Muslim, which he was at the time, and that he was planning to kidnap the children and take
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BIA determined that this did not constitute such a substantial restriction on his
residence as to bring him within an exception to the firm resettlement rule.
Because substantial evidence in the record supports the BIA’s findings, it did not
err in concluding that Zakaria’s asylum application is barred.
B.
Zakaria also argues that the BIA erred in concluding that he was not entitled
to withholding of removal or CAT protection, avenues of relief that are not barred
by the firm resettlement rule. We review a denial of an application for
withholding of removal under the substantial-evidence standard. Imelda, 611 F.3d
at 727-28. Under the INA, the Attorney General may not remove an alien to a
country where it is more likely than not that his “life or freedom would be
threatened because of [his] race, religion, nationality, membership in a particular
social group, or political opinion.” INA § 241(b)(3)(A), 8 U.S.C. §
1231(b)(3)(A). If the alien establishes past persecution in his country based upon
a protected ground, “it is presumed that his life or freedom would be threatened
upon return to his country,” Sanchez Jiminez v. U.S. Att’y Gen., 492 F.3d 1223,
1238 (11th Cir. 2007) (quotation marks and citation omitted); however, an alien
them to Egypt. As a result, the German government took temporary custody of the children.
Later, the German court said the children had to remain in foster care until Zakaria was able to
provide for them financially. These two children are still wards of the German foster care
system, even though Zakaria, his new wife and their children currently reside in Florida.
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who cannot show past persecution can still qualify for withholding of removal by
showing that he would more likely than not be persecuted on account of a
protected ground. Id.To qualify for protection under the CAT, Zakaria must establish that it is
more likely than not that he will be tortured upon repatriation. 8 C.F.R. §
208.16(c)(2). Torture is defined as
any act by which pain or suffering, whether physical or mental, is
intentionally inflicted on a person . . . for any reason based on
discrimination 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.
8 C.F.R. § 208.18(a)(1).
Here, the BIA did not err in concluding that Zakaria was not entitled to
relief. There is substantial evidence in the record to support the BIA’s and the IJ’s
determinations that Zakaria did not suffer harm amounting to past persecution.
Although Zakaria was subject to harassment from his family, in the form of yelling
and physical shaking, when he told them he converted to Christianity the events to
not rise to the level of harm required for withholding from removal. See
Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005) (finding that
persecution is an “extreme concept, requiring more than a few isolated incidents of
verbal harassment or intimidation.”).
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Moreover, the record supports the BIA’s and the IJ’s findings that Zakaria
failed to show that he would more likely than not be subject to future persecution
or torture upon a return to Egypt. The State Department Country Reports in
evidence state that some members who have converted from Islam to Christianity
experience problems once returning to Egypt. But the studies also report that
many Christians worship without incident. Additionally, Zakaria’s fears that he
could be harmed by his family members who are members of the Muslim
Brotherhood are offset by the record evidence that the Egyptian government, in
power at the time the BIA reviewed Zakaria’s claim, had banned the Muslim
Brotherhood and worked, albeit sporadically, to curtail their illegal activities.
Although we take notice of the current political situation in Egypt, we cannot say
that this fact alone compels reversal of the BIA’s decision. Thus, the possibility
that Zakaria could face persecution when he returns to Egypt falls short of the
“more likely than not” standard promulgated by the agency.
For the reasons set forth above, we conclude that the BIA did not err in
finding Zakaria’s application for asylum barred and in denying his petition for
withholding of removal or CAT protections. Accordingly, Zakaria’s petition is
denied.
PETITION DENIED.
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