Qumseya v. Gonzales

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0908n.06
Filed: November 17, 2005
No. 04-4052
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
GEORGE QUMSEYA, )
)
Petitioner, ) ON PETITION FOR REVIEW OF AN
) ORDER OF THE BOARD OF
v. ) IMMIGRATION APPEALS
)
ALBERTO GONZALES, Attorney General, )
)
Respondent. )
)
Before: RYAN, GILMAN, and COOK, Circuit Judges.
PER CURIAM. Petitioner, George Qumseya, seeks review of a decision of the Board of
Immigration Appeals (“BIA”) affirming an immigration judge’s (“IJ”) denial of his application for
asylum and withholding of removal. Because substantial evidence supports the IJ's decision, we
deny Qumseya’s petition for review.
I.
Qumseya, a Palestinian Christian, came to the United States because the armed conflict
between Israelis and Palestinians made living conditions in Palestine unbearable. Once in the
United States, Qumseya applied for asylum with the former Immigration and Naturalization Service
(“INS”). The INS determined Qumseya was ineligible for asylum and initiated removal
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proceedings. Before an IJ, Qumseya conceded his removability, but sought asylum, withholding of
removal, and protection under the Convention Against Torture
Qumseya testified that his hometown was under Israeli occupation and that his family home
had been shelled—its windows blown out and its foundation split apart. Qumseya also testified he
was not permitted to travel to Jerusalem to pray because of Israeli-erected barricades. The IJ found
Qumseya to be credible, yet nonetheless ineligible for relief because he did not meet the definition
of a refugee. Qumseya timely appealed to the BIA, which affirmed without opinion. This petition
for review followed.
Qumseya argues on appeal that the IJ’s decision to deny relief for failure to “individualize”
his claims represents “clear legal error.” Qumseya points to federal regulations and “binding”
precedent to support his claim. Applying the oft-cited appellate review standards, we uphold the
decision of the IJ and BIA.
II.
A. Asylum
The IJ determined that Qumseya failed to establish eligibility for asylum because he “failed
to individualize his claims to show that he was persecuted on account of his membership or on
account of his being in one of the five protected categories”— the IJ concluded that “[Qumseya] has
failed to show anything in this case other than that there are horrible country conditions.” Because
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“‘conditions of political upheaval . . . are generally insufficient to establish eligibility for asylum,’”
Ali v. Ashcroft, 366 F.3d 407, 410 (6th Cir. 2004) (quoting Meghani v. INS, 236 F.3d 843, 847 (7th
Cir. 2001)), and because Qumseya’s evidence does not compel a conclusion to the contrary, we
cannot agree with Qumseya that this determination warrants reversal.
Qumseya’s brief contends he was individually persecuted because he was prevented from
practicing his religion. Specifically, Qumseya testified that Israeli troops prevented Christians from
traveling to Jerusalem to pray on Christmas and Easter. The IJ concluded, however, that the travel
restrictions were not imposed to prevent the practice of religion, but rather for security purposes.
Furthermore, the IJ determined the restrictions were equally enforced against all Palestinians, not
just Christians, and found that Qumseya could practice his religion at local churches without any
interference. The IJ based its conclusions in part upon a United States Department of State Country
Report, a source of information we consider reliable. See Mullai v. Ashcroft, 385 F.3d 635, 639 (6th
Cir. 2004) (“[W]e have relied on State Department reports when reviewing an IJ’s decision. Thus,
the IJ’s reliance on these reports is supportable.”) (internal citations omitted). Accordingly, we find
substantial evidence supports the IJ’s determination that Qumseya failed to demonstrate he was
individually persecuted on the basis of his religion.
Qumseya calls our attention to two cases in which individualized persecution was not an
absolute requirement for relief. We find both cases distinguishable from his. In Ouda v. INS, 324
F.3d 445 (6th Cir. 2003), an alien demonstrated a well-founded fear of persecution by establishing
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that her family, still living in Kuwait, was subjected to beatings and torture by the Kuwaiti
government because they were Palestinian. Qumseya, on the other hand, testified that his sister was
still living in Palestine and that his parents, who were visiting the United States, intended to
voluntarily return there after his court proceedings. He did not testify that his family suffered any
harm. This weakens Qumseya’s claim of persecution. See Hakeem v. INS, 273 F.3d 812, 816 (9th
Cir. 2001) (“An applicant’s claim of persecution . . . is weakened, even undercut, when
similarly-situated family members continue to live in the country without incident . . . .”).
Qumseya also points us to Singh v. INS, 94 F.3d 1353 (9th Cir. 1996). The court in Singh
held that an individualized showing of persecution was not necessary where the alien established
“a pattern or practice . . . of persecution of groups of persons similarly situated to the applicant.”
Singh, 94 F.3d at 1359 (quotations omitted); see also 8 C.F.R. § 1208.13(b)(2)(iii)(A). As we
discussed above, however, Qumseya’s testimony did not demonstrate persecution against a group,
but rather demonstrated the harsh consequences civilians suffer as a result of an armed conflict.
B. Withholding of Removal
The government contends Qumseya abandoned his claim for withholding of removal by
failing to challenge the denial of that claim on appeal. Yet this court holds that where an alien
“argued before the BIA that the IJ had erred in finding that the incidents described . . . did not
constitute persecution . . . [the] argument is pertinent to both the claim for asylum and the claim for
withholding of removal.” Gilaj v. Gonzales, 408 F.3d 275, 289 (6th Cir. 2005). Nevertheless,
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Qumseya is not entitled to relief absent a showing of a “clear probability that he [would] be subject
to persecution if forced to return to the country of removal.” Pilica v. Ashcroft, 388 F.3d 941, 951
(6th Cir. 2004); see also 8 C.F.R. § 208.16(b). Given our decision regarding his failure to hurdle
the lesser standard required for asylum relief, it follows that Qumseya falls short of meeting the
more stringent withholding standard. Koliada v.INS, 259 F.3d 482, 489 (6th Cir 2001).
III.
We deny the petition for review.
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