Samra v. Attorney General

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
8-28-2008
Samra v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-2053
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-2053
___________
SAMIA RAYMOND BOU SAMRA,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A97-207-338)
Immigration Judge: Honorable Charles M. Honeyman
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
AUGUST 27, 2008
Before: BARRY, SMITH AND HARDIMAN, Circuit Judges
(Opinion filed : August 28, 2008)
___________
OPINION
___________
PER CURIAM
Petitioner, Samia Raymond Bou Samra (“Bou Samra”), petitions for review of a
final order of the Board of Immigration Appeals (“BIA”). For the following reasons, we
will deny the petition for review.
I.
Bou Samra is a forty-four year old native and citizen of Lebanon. She arrived in
the United States in 2002 as a non-immigrant B-2 visitor. In 2003, she filed an
application for asylum, withholding of removal, and protection under the United Nations
Convention Against Torture (“CAT”). In her application and removal hearing testimony,
she claimed to be an active supporter of the Free Patriotic Movement, an organization that
was created to oppose “the interference and control of all sectors of the [Lebanese]
government by the Syrians.” (A.R. at 396.) While in Lebanon, she was allegedly
targeted by Syrian intelligence agents because of her involvement with the Free Patriotic
Movement and her support of its then-exiled leader, General Michel Aoun. In particular,
she testified that Syrian agents chased her and tried to run her over with a car as she was
returning home from work in 1998. She also claimed to have eluded arrest by Syrian
agents after they interrupted a demonstration that she attended in Beirut on August 9,
2001. In 2002, during a government crackdown against supporters of General Aoun, Bou
Samara allegedly went into hiding at the home of a friend. Bou Samra claimed that,
while she was in hiding, a neighbor received a call on her intercom from an unidentified
man with a Syrian accent who was looking for Bou Samra. The neighbor subsequently
notified Bou Samra of this visit. The neighbor also stated that she saw a man driving
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back and forth in the neighborhood looking up toward Bou Samra’s apartment and
checking the parking lot. Shortly afterward, Bou Samra departed for the United States.
Following a removal hearing on August 31, 2005, the Immigration Judge (“IJ”)
issued an oral decision denying the application because Bou Samra had not shown past
persecution, a well-founded fear of future persecution, or a likelihood of torture. Bou
Samra appealed that decision to the BIA. In challenging the IJ’s past persecution finding,
Bou Samra argued that the IJ did not sufficiently consider her claims that she had
participated in demonstrations where others were arrested, and that “individuals” came to
her home to look for her. She also argued that a remand was warranted because
conditions in Lebanon had substantially changed since the IJ rendered his decision. The
BIA dismissed the appeal. First, the BIA concluded that the incidents mentioned in Bou
Samra’s brief did not rise to the level of persecution. The BIA also determined that her
testimony did not establish that she suffered any physical harm or mistreatment that
amounted to persecution. As for her alleged fear of future persecution, the BIA agreed
with the IJ that there was insufficient evidence to establish that supporters of General
Aoun and the Free Patriotic Movement were being targeted following the 2005
withdrawal of Syrian troops from Lebanon, and the subsequent election of Free Patriotic
Movement members to the Lebanese Parliament. Finally, the BIA determined that Bou
Samra was not entitled to a remand based on the new evidence submitted on appeal, and
that she was not eligible for CAT relief.
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Bou Samra now petitions for review of the BIA’s decision. In the petition, she
challenges the BIA’s decision to uphold the IJ’s denial of her claims for asylum and
withholding of removal. She does not challenge the denial of CAT relief, nor does she
argue that the BIA improperly denied her request for a remand.
II.
We have jurisdiction over the petition pursuant to 8 U.S.C. § 1252(a). Our review
is generally limited to the BIA’s order. See Li v. Att’y Gen., 400 F.3d 157, 162 (3d Cir.
2005) (citing Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002)). Where, as here, the
BIA discusses and adopts some of the bases for the IJ’s decision, we may consider the
decisions of both the BIA and the IJ. See Santana Gonzalez v. Att’y Gen., 506 F.3d 274,
276 (3d Cir. 2007). “Whether an asylum applicant has demonstrated past persecution or a
well-founded fear of future persecution is a factual determination reviewed under the
substantial evidence standard.” Gao, 299 F.3d at 272. Under that deferential standard,
the findings must be upheld “unless any reasonable adjudicator would be compelled to
conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
To qualify for asylum under the Immigration and Nationality Act (“INA”), an
applicant must establish that he or she is a “refugee” under 8 U.S.C. § 1158(b). A refugee
is a person unable or unwilling to return to the country of removal “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.” Id. § 1101(a)(42). Once
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an alien shows persecution on account of one of the enumerated grounds, there is a
rebuttable presumption that the alien’s fear of future persecution is well founded. 8
C.F.R. § 1208.13(b)(1); Lukwago v. Ashcroft, 329 F.3d 157, 174 (3d Cir. 2003). In the
absence of past persecution, an alien may demonstrate a well-founded fear of persecution
by showing a “subjective fear of persecution that is supported by objective evidence that
persecution is a reasonable possibility.” Abdille v. Ashcroft, 242 F.3d 477, 496 (3d Cir.
2001) (citation omitted).
First, we conclude that substantial evidence supports the BIA’s finding that Bou
Samra was not persecuted in Lebanon. Persecution under the INA “connotes extreme
behavior, including ‘threats to life, confinement, torture, and economic restrictions so
severe that they constitute a threat to life or freedom.’” Ahmed v. Ashcroft, 341 F.3d
214, 217 (3d Cir. 2003) (quoting Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993)); see
also Jarbough v. Att’y Gen., 483 F.3d 184, 191 (3d Cir. 2007) (“Abusive treatment and
harassment, while always deplorable, may not rise to the level of persecution.”); Voci v.
Gonzales, 409 F.3d 607, 615 (3d Cir. 2005) (stating that isolated acts that do not result in
serious injury may not amount to persecution). The BIA properly found that Bou Samra
failed to demonstrate persecution based on her testimony, found credible, that she
attended political rallies where others were arrested, and that she heard from a neighbor
that an unidentified man with a Syrian accent visited her apartment building while she
was not at home. The BIA also acted within its discretion to the extent it determined that
5
the other incidents recounted in Bou Samra’s testimony did not amount to persecution.
We reject Bou Samra’s contention that the BIA denied her claims of past
persecution because she did not allege physical injury. There is no indication that the
BIA viewed the absence of physical injury as dispositive of her claims. Rather, the BIA
found that Bou Samra did not “suffer[] any physical harm or mistreatment that rises to the
level of persecution.” (A.R. at 2) (emphasis added). We also reject her argument
concerning the significance of the IJ’s statement that “some members of General Aoun’s
party or movement were targeted, threatened, jailed and sometimes mistreated in a
manner that would rise [to] the level of persecution in 2001.” (A.R. at 61.) The IJ’s
recognition that other group members might have suffered persecution in 2001 is not
relevant here, inasmuch as substantial evidence supports the BIA’s determination that
Bou Samra herself did not experience persecution.
Substantial evidence also supports the BIA’s determination that Bou Samra did not
demonstrate a well-founded fear of persecution. As observed in the agency decisions,
certain events have occurred since Bou Samra’s departure from Lebanon which weaken
her claim that she is in danger because of her political opinion. Notably, the record
indicates that Syrian troops withdrew from Lebanon in April 2005 and that General Aoun
returned from exile shortly afterward. The record also contains articles indicating that the
Free Patriotic Movement is now an official political party in Lebanon, that several of its
6
members hold seats in the Lebanese Parliament, and that General Aoun has made efforts
to conciliate with pro-Syrian factions. Bou Samra has not cited to any evidence in the
record showing that supporters of General Aoun or the Free Patriotic Movement were still
being targeted following the withdrawal of Syrian troops. Moreover, she has not cited to
objective evidence indicating that such mistreatment took place in the years between her
departure from Lebanon and the troop withdrawal. Although she notes that the record
contains news articles indicating that Syrian intelligence agents remain in Lebanon and
that anti-Syrian activists continue to be targeted, that evidence is not so compelling as to
constitute grounds for reversing the BIA’s finding that Bou Samra did not demonstrate an
objectively reasonable fear of being singled out for persecution.
We further conclude that there is no merit to Bou Samra’s claim that the IJ made
credibility and corroboration findings that are unworthy of deference. It is far from clear
that the IJ issued such findings, and even if he did, those findings are not before us
because the BIA did not adopt or defer to them in the order dismissing the appeal. See
Kayembe v. Ashcroft, 334 F.3d 231, 234-35 (3d Cir. 2003). We also reject Bou Samra’s
claim that the IJ improperly took administrative notice of facts relevant to his decision
without giving her notice and an opportunity to respond. Although the IJ based his
decision in part on recent changes in country conditions, there is no indication that he
relied on evidence that was not part of the agency record as of the date of the removal
hearing.
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Because Bou Samra failed to meet her burden of establishing her eligibility for
asylum, she necessarily failed to meet the higher standard of eligibility for withholding of
removal. See Lukwago, 329 F.3d at 182.
Finally, we note that Bou Samra has submitted an appendix containing documents
that were not part of the administrative record when the agency issued its final order of
removal. Because we lack jurisdiction to consider this evidence in the first instance, see 8
U.S.C. § 1252(b)(4)(A), Respondent’s motion to strike these materials and the arguments
associated with them is granted.
III.
For the foregoing reasons, we will deny the petition for review.
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