Hachwi v. Attorney General of the United States

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
5-14-2009
Jamil Subhi Al Hashw v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-1952
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-1952
___________
JAMIL SUBHI AL HACHWI,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A77-704-792)
Immigration Judge: Honorable Robert Owens
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 13, 2009
Before: BARRY, SMITH and HARDIMAN, Circuit Judges
(Opinion filed: May 14, 2009)
___________
OPINION
___________
PER CURIAM
Petitioner Jamil Subhi Al Hachwi petitions for review of an order of the Board of
Immigration Appeals (“BIA”) dismissing his appeal from the order of an Immigration
Judge (“IJ”) and denying his motion for remand. For the following reasons, we will deny
the petition for review.
I
Petitioner is a native and citizen of Syria. He was admitted to the United States as
a visitor on or about July 12, 1990, at or near New York, New York. Hachwi was
authorized to remain in the U.S. until February 11, 1991, and he remained beyond that
date. In May 2003, Hachwi received a notice to appear, which charged him as removable
under INA § 237(a)(1)(B) because he remained in the U.S. longer than permitted.
Hachwi appeared before the IJ and, through prior counsel, conceded the charge
and removability. Hachwi filed an application for asylum and withholding of removal, or,
in the alternative, voluntary departure.1 In support of his claim, Hachwi testified to seven
incidents occurring between 1972 and 1988 in which Hachwi was mistreated or attacked
by Syrian Muslims, ostensibly because of his affiliation with the Greek Orthodox Church.
He also attempted to introduce three letters – two from his family members in Syria
detailing mistreatment they had experienced based on their Christian faith, and one from
his local church attesting to his continued practice of Christianity. The two family letters
were timely submitted to the IJ and served on the Government, but the church letter was
1
After reviewing the transcript of the hearing before the IJ, it remains unclear whether
Hachwi sought relief under the Convention Against Torture. In any event, the IJ
determined that such relief was not available, and Hachwi has not challenged that
determination.
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produced after the ten-day deadline. However, because of an apparent miscommunication
between the IJ and counsel, the timely letters were not admitted into evidence.
Following the hearing, the IJ denied Hachwi’s application but granted voluntary
departure. The IJ reasoned that although Hachwi’s testimony was credible, it was too
general to support an asylum claim absent corroboration. The IJ also noted that Hachwi’s
claim was weakened by the fact that his mother, uncle, wife, and children have all
remained in Syria for sixteen years and practice their religion without suffering
persecution.
Hachwi appealed to the BIA and sought remand. In support of his claim, Hachwi
submitted two articles describing the mistreatment in Syria of Christian refugees from
Iraq. In March 2008, the BIA affirmed the IJ’s decision, dismissed the appeal, and denied
the motion for remand. With regard to the articles, the BIA concluded that they were
cumulative to the testimony Hachwi presented to the IJ. As to the motion to remand, the
Board reasoned that even if the IJ should have considered the letters from Hachwi’s
relatives, the letters did not establish that Hachwi had an objectively reasonable fear of
persecution.
II
We have jurisdiction under 8 U.S.C. § 1252(a)(1) to review the BIA’s dismissal of
Hachwi’s appeal and denial of his motion for remand. Because the BIA issued its own
opinion, we review the BIA’s decision rather than that of the IJ. See Rranci v. Att’y
3
Gen., 540 F.3d 165, 171 (3d Cir. 2008). We review the BIA’s ruling for abuse of
discretion, and will disturb it “only if it was ‘arbitrary, irrational, or contrary to law.’” Id.
(citation omitted). In applying that standard, we review legal conclusions de novo and
review factual determinations for substantial evidence. See id.
Petitioner’s counseled brief, though not a model of clarity, can be read as
presenting four claims: (1) the BIA erred in determining that the IJ’s failure to consider
the letters from Hachwi’s relatives was, at most, harmless error; (2) the BIA erred in
affirming the decision of the IJ because Hachwi’s credible testimony was sufficient to
warrant asylum even without corroboration; (3) the BIA erred in affirming the IJ’s past
persecution determination because the evidence on record, read in light of the erroneously
omitted letters from Hachwi’s relatives, demonstrates that he suffered past persecution;
and (4) the BIA erred in failing to remand the case. We will address each of these in turn.
The BIA correctly determined that the exclusion of Hachwi’s family letters was, at
most, harmless error. To demonstrate eligibility for asylum based on a fear of future
persecution, an applicant must demonstrate that he “has a genuine fear, and that a
reasonable person in [his] circumstances would fear persecution if returned to [his] native
country.” Abdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d Cir. 2003). To satisfy the
objective prong, a petitioner must show that he would be individually singled out for
persecution or demonstrate a pattern or practice of persecution of similarly situated
individuals. Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir. 2005). Persecution includes
4
“threats to life, confinement, torture, and economic restrictions so severe that they
constitute a threat to life or freedom.” Id. (internal quotations omitted). Abusive
treatment and harassment do not establish persecution per se. See Jarbough v. Att’y Gen.,
483 F.3d 184, 191-92 (3d Cir. 2007). Further, for acts to constitute persecution, they
must be “committed by the government or forces the government is either unable or
unwilling to control.” Myat Thu v. Att’y Gen., 510 F.3d 405, 413 (3d Cir. 2007) (internal
citations and quotation marks omitted). The letters from Hachwi’s relatives indicate that,
on a number of occasions over the years, they have been subject to harassment and
discrimination, and have been physically attacked and spat upon. While extremely
disturbing, these incidents do not rise to the level of severity described in Lie. Nor has
Hachwi shown that the conduct was committed by government officials or those the
government is unwilling or unable to control. Indeed, one incident described in the letters
suggests that police responded to and resolved the matter. Considering the letters and the
testimony on record, Hachwi has demonstrated neither that he would be singled out based
on his religion nor a pattern or practice of persecution against similarly situated
individuals.
Hachwi’s second argument – that his credible testimony was sufficient to warrant
asylum even without corroboration – also fails. “An alien’s testimony, if credible, may be
sufficient to sustain the burden of proof without corroboration.” Kamara v. Att’y Gen.,
420 F.3d 202, 213 (3d Cir. 2005) (emphasis added). However, a failure to corroborate
5
may undermine a claim if the IJ and/or BIA has: (1) identified the facts for which “it is
reasonable to expect corroboration;” (2) inquired as to whether the applicant has provided
corroborating information; and (3) if not, analyzed “whether the applicant has adequately
explained his or her failure to do so.” Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir.
2001). The IJ reasoned, and the BIA agreed, that Hachwi alleged generalized
discrimination against the entire Christian population in Syria, rather than a personal
claim of severe discrimination and, absent corroborative evidence that Syrian Christians
endured such pervasive discrimination, the claim was too general to support an asylum
claim. Hachwi’s argument that his testimony was deemed detailed and credible misses
the mark. The question at issue is not whether his testimony lacked specificity as to the
incidents in which he was involved, but whether his claim of nationwide discrimination
against Christian Syrians was so general that further evidence of widespread conduct was
reasonably required. We agree with the BIA that requiring such evidence was reasonable.
Hachwi’s third claim is also meritless. He argues that the record before the IJ,
when read in light of the letters from Hachwi’s relatives, demonstrates that he suffered
past persecution. This is simply inaccurate. The IJ reasoned that the incidents Hachwi
described do not rise to the level of persecution. We agree. See Jarbough, 483 F.3d at
191-92. Nothing in the letters sheds any additional light on Hachwi’s past encounters, let
alone demonstrates that he suffered persecution. They merely describe similar incidents
suffered by his family.
6
Finally, we conclude that the BIA appropriately denied Hachwi’s motion for
remand. Motions for remand, which are treated as motions to reopen proceedings, are
disfavored forms of relief, and the BIA receives broad deference to its decision to deny
such a motion. See Korytnyuk v. Ashcroft, 369 F.3d 272, 293 & n.27 (3d Cir. 2005). We
will disturb the Board’s decision to deny a motion to remand only if it is “arbitrary,
irrational, or contrary to law.” Id. at 293 (internal quotation omitted). A litigant must
provide evidence sufficient to demonstrate a reasonable likelihood of prevailing on
remand. See Sevoain v. Ashcroft, 290 F.3d 166, 175 (3d Cir. 2002). However, mere
cumulative evidence demonstrating that conditions asserted in the original application
persist is insufficient. See Zhao v. Gonzales, 440 F.3d 405, 407 (7th Cir. 2005). Here,
Hachwi presented two recent articles detailing the continued problems faced by Christians
in Syria. However, these articles do no more than demonstrate the persistence of the
conditions considered by the IJ and BIA to be below the threshold for persecution. The
articles fail to show an individualized danger of persecution should Hachwi return to
Syria. Hachwi has not shown that he would likely prevail on remand, so we agree with
the BIA’s denial of his motion.
Accordingly, we deny the petition for review.
7