Mekheel v. Holder

08-3351-ag
Mekheel v. Holder
BIA
LaForest, IJ
A 096 262 196
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 20 th day of January, two thousand ten.
5
6 PRESENT:
7 JON O. NEWMAN,
8 ROBERT D. SACK,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11
12 ______________________________________
13
14 FAWZY BOSHRA HAKEEM MEKHEEL,
15 Petitioner,
16
17 v. 08-3351-ag
18 NAC
19
20 ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL, *
21
22 Respondent.
23
24 ______________________________________
25
26
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr., is
automatically substituted for former Attorney General
Michael B. Mukasey as respondent in this case.
1 FOR PETITIONER: Robert M. Birach, Detroit, MI.
2
3 FOR RESPONDENT: Michael F. Hertz, Deputy Assistant
4 Attorney General; M. Jocelyn Lopez
5 Wright, Senior Litigation Counsel;
6 Kristin K. Edison, Attorney, United
7 States Department of Justice, Office
8 of Immigration Litigation,
9 Washington, D.C.
10
11 UPON DUE CONSIDERATION of this petition for review of a
12 Board of Immigration Appeals (“BIA”) decision, it is hereby
13 ORDERED, ADJUDGED, AND DECREED that the petition for review
14 is DENIED.
15 Petitioner Fawzy Boshra Hakeem Mekheel, a native and
16 citizen of Egypt, seeks review of a June 9, 2008 order of
17 the BIA denying his application for withholding of removal
18 and relief under the Convention Against Torture (“CAT”). In
19 re Fawzy Boshra Hakeem Mekheel, No. A 96 262 196 (BIA June
20 9, 2008). We assume the parties’ familiarity with the
21 underlying facts and procedural history of the case.
22 When the BIA issues an independent decision on remand
23 from this Court, the Court reviews the BIA's decision alone.
24 See Belortaja v. Gonzales, 484 F.3d 619, 622-23 (2d Cir.
25 2007). The applicable standards of review are well-
26 established. Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.
27 2008); Gao v. BIA, 482 F.3d 122, 126-27 (2d Cir. 2007).
28 Here, we find that the BIA's denial of Mekheel's application
29 for withholding of removal and CAT relief is supported by
2
1 substantial evidence. The BIA reasonably determined that
2 Mekheel failed to show that he was persecuted as a Coptic
3 Christian by groups the Egyptian government was either
4 unable or unwilling to control. See Ivanishvili v. U.S.
5 Dep’t of Justice, 433 F.3d 332, 342 (2d Cir. 2006).
6 Mekheel argues that our holding in Poradisova v.
7 Gonzales, 420 F.3d 70, 79-80 (2d Cir. 2005), precluded the
8 BIA from giving adverse weight to the fact that Mekheel
9 never reported any of the alleged incidents of persecution
10 to the Egyptian authorities. However, the BIA reasonably
11 noted that country reports contained in the record stated
12 that “Egyptian authorities respond to reports of violence
13 against Christians, which is not inconsistent with the
14 opinion of the respondent’s expert,” and Mekheel points to
15 no evidence overlooked by the BIA showing why it was
16 unreasonable to require him to seek redress from the
17 Egyptian government.
18 The BIA also did not err in relying on the 2002
19 Religious Freedom Report and the 2003 Country Report in its
20 decision. While we have warned the immigration courts
21 against placing excessive reliance on State Department
22 Reports, we have held that the courts “may consider that
23 evidence,” but are “obligated to consider also any contrary
3
1 or countervailing evidence with which [they are] presented,
2 as well as the particular circumstances of the applicant’s
3 case demonstrated by testimony and other evidence.” Tian-
4 Yong Chen v. INS, 359 F.3d 121, 130 (2d Cir. 2004). Here,
5 the BIA considered contrary and countervailing evidence in
6 the record; thus, it did not place excessive reliance on the
7 State Department Reports. See id. Furthermore, while we
8 have also warned against reliance on “outdated versions of
9 State Department Reports,” Mekheel never sought to submit
10 new background country materials.
11 Mekheel also contends that the BIA’s use of the phrase
12 “purported expert witness affidavit” indicates that the BIA
13 displayed “obvious” prejudice against his expert, Dr.
14 Marshall. Petitioner’s Brief at 21, 23. We will remand
15 based on agency prejudice when the conduct “results in the
16 appearance of bias or hostility such that [the Court] cannot
17 conduct a meaningful review of the decision below.” See Ali
18 v. Mukasey, 529 F.3d 478, 490 (2d Cir. 2008) (quoting Islam
19 v. Gonzales, 469 F.3d 53, 55 (2d Cir. 2006)). Aside from
20 the BIA’s use of the word “purported,” its decision gives no
21 indication that it was in any way biased or hostile toward
22 Dr. Marshall.
4
1 Finally, Mekheel argues that the BIA erred by reviewing
2 the IJ’s factual findings de novo, rather than under the
3 required “clearly erroneous” standard. See 8 C.F.R.
4 §§ 1003.1(d)(3)(i), (ii). However, the BIA properly noted
5 that it reviews questions of law de novo. Accordingly, it
6 was entitled to review de novo the question of whether
7 Mekheel established that his fear was on account of groups
8 that the Egyptian government was unable or unwilling to
9 control, finding that it was not.
10 Because the BIA did not err in determining that Mekheel
11 failed to establish his eligibility for withholding of
12 removal, it did not err in denying his claim for CAT relief
13 based on the same factual predicate. See Khouzam v.
14 Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004).
15 For the foregoing reasons, the petition for review is
16 DENIED. As we have completed our review, any pending motion
17 for a stay of removal in this petition is DISMISSED as moot.
18 Any pending request for oral argument in this petition is
19 DENIED in accordance with Federal Rule of Appellate
20 Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
21
22 FOR THE COURT:
23 Catherine O’Hagan Wolfe, Clerk
24
25 By:___________________________
5