Saqer Salman v. Eric H. Holder, Jr.

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 11-2416
___________________________
Saqer Salman; Dina Salman; N. Salman; A. Salman
lllllllllllllllllllllPetitioners
v.
Eric H. Holder, Jr., Attorney General of United States
lllllllllllllllllllllRespondent
____________
Petition for Review of an Order of the
Appeal from Board of Immigration Appeals
____________
Submitted: January 11, 2012
Filed: August 6, 2012
____________
Before RILEY, Chief Judge, MELLOY and SHEPHERD, Circuit Judges.
____________
MELLOY, Circuit Judge.
Saqer Salman petitions for review of a decision by the Board of Immigration
Appeals (BIA) denying his application for asylum and withholding of removal. We
deny the petition for review.
I. Facts
Saqer Salman is a native and citizen of Israel. In 2005, Salman traveled to the
United States with his wife and son after witnessing the murder of his uncle. Salman's
uncle was murdered after he saw another man, Tawfiq Faroney, speeding past his
house, and asked Faroney to slow down where children were playing. Following this
confrontation, Faroney and his three brothers came to Salman's uncle's house while
he was away, tried to break in, and slashed the tires on his car. Later that day,
Salman's uncle filed a complaint with the police, and that night, Faroney and his son
came to Salman's uncle's house and shot and killed him. The Israeli police
subsequently investigated the murder and arrested Faroney and his son. Fearing for
his safety, Salman, his wife Dina, and their son traveled to the United States. They
entered the United States in September 2005.
Meanwhile, several members of the Faroney family called Salman's cousin and
told him that if Salman returned to Israel to testify in the murder trial, they would
shoot him. Nevertheless, Salman returned to Israel testify in December 2005 and
remained there for twenty-five days. Salman's cousin, father, aunt, uncle, and cousin's
friend also testified at the murder trial, which ended in Faroney's and his son's
conviction for murder. The two men were sentenced to twenty and twenty-four years'
imprisonment, respectively. After the trial, on February 22, 2006, Salman returned
to the United States and was admitted as a nonimmigrant visitor for pleasure. In
Israel, the Faroney family continued to harass several members of the Salman family.
However, Salman's father, who also testified at the trial, continues to live in Israel and
has not been harmed.
On September 21, 2006, the government commenced removal proceedings
against Salman. In response, Salman submitted an application for asylum under
8 U.S.C. § 1158, claiming he feared persecution if he were to return to Israel. Because
he submitted this application after removal proceedings were commenced, his
-2-
application was also considered a request for withholding of removal under 8 U.S.C.
§ 1231(b)(3). After a hearing, an Immigration Judge (IJ) found against Salman and
ordered that his application for asylum and withholding of removal be denied. In his
decision, the IJ found Salman's testimony to be consistent and credible. However, he
found no evidence that any mistreatment Salman suffered rose to the level of past
persecution, that the government of Israel would be unable or unwilling to protect
him, or that Salman's fear of returning was based on any of the statutorily enumerated
grounds in 8 U.S.C. § 1231(b)(3).
After changing counsel, Salman filed a motion with the BIA to reopen and
remand the case based on new evidence—an expert report on "the unique clan
structure of Arab society in the Middle East," which involves "deep-seeded hatred
among certain clans, and long-lasting feuds that fall outside the protections of civil
society." Salman also filed an appeal on the merits of the IJ's decision to the BIA.
The BIA adopted and affirmed the IJ's decision regarding Salman's failure to meet his
burden of establishing standards for asylum and withholding of removal. The BIA
also denied the motion to reopen and remand, holding that the new evidence Salman
sought to present was not previously unavailable and would not materially change the
outcome of the IJ's decision.
From this decision, Salman petitioned to this Court. Here, he argues that the
BIA erred in (1) accepting the IJ's conclusion that he did not meet his burden of proof
for establishing his claim of asylum and withholding of removal, and (2) denying his
motion to reopen and remand. We affirm the BIA and IJ on both grounds.
II. Asylum and Withholding of Removal
Because the BIA affirmed the IJ's decision without a separate opinion, we treat
the IJ's decision as the final agency decision. Mamana v. Gonzales, 436 F.3d 966,
968 (8th Cir. 2006). The findings of the IJ "are conclusive unless any reasonable
-3-
adjudicator would be compelled to conclude to the contrary." 8 U.S.C.
§ 1252(b)(4)(B). We review the IJ's legal determinations de novo, "according
substantial deference to the BIA's interpretation of the statutes and regulations it
administers." Hassan v. Ashcroft, 388 F.3d 661, 665 (8th Cir. 2004) (citation
omitted). "This Court will affirm the decision of the IJ and the BIA if it is supported
by substantial evidence on the administrative record as a whole." Id. at 665. "We
may not reverse merely because we would have decided the case differently." Id.An applicant for asylum "bears the burden of demonstrating statutory eligibility
for asylum by showing that a reasonable person in his or her position would have a
well-founded fear of persecution on account of race, religion, nationality, membership
in a particular social group, or political opinion." Feleke v. I.N.S., 118 F.3d 594, 598
(8th Cir. 1997); see also 8 U.S.C. §§ 1158(b)(1)(B)(i), 1231(b)(3). To meet this
burden, the applicant must show both that he subjectively fears persecution, and that
"a reasonable person in his position would fear persecution." Feleke, 118 F.3d at 598.
Importantly, our cases and those of the BIA also hold that "persecution" requires the
harm applicant fears to be "inflicted either by the government of a country or by
persons or an organization that the government was unable or unwilling to control."
Menjivar v. Gonzales, 416 F.3d 918, 921 (8th Cir. 2005) (citations and internal marks
omitted).
Where an applicant seeks to establish that he fears persecution by a private
party, the claim fails unless he shows that the incidents of abuse "occured with the
imprimatur" of government officials. Id. (citation omitted). To make this showing,
the applicant must show more than just a "difficulty controlling private behavior." Id.(internal quotation marks, citations, and alterations omitted). Rather, he must
demonstrate that the government condoned the private behavior "or at least
demonstrated a complete helplessness to protect the victims." Id. (citation omitted).
In particular, "the fact that police take no action on a particular report does not
-4-
necessarily mean that the government is unwilling or unable to control criminal
activity, because there may be a reasonable basis for inaction." Id.Here, the IJ did not err in finding that Salman failed to establish that the
government condoned or was powerless to protect against the private behavior that is
the basis of his fear of persecution.1 The basis of Salman's fear of persecution is the
harassment of himself and his family by Faroney's family—a group of private actors.
Salman claims that because he and his family (and the Faroneys) are of Arabic
descent, they "will not be adequately protected by the Israeli government." But
Salman did not present any evidence to the IJ or to this Court to support this claim.
Moreover, the events that occurred after the murder of Salman's uncle belie this claim.
Within one year of the murder, the Israeli police arrested Faroney and his father, and
an Israeli court tried and convicted them of murder and sentenced them to
imprisonment. This is hardly a "complete helplessness to protect the victims."
Mejivar, 416 F.3d at 921.
Salman did not establish that the government condoned this harassment or was
helpless to protect against it, and the IJ therefore did not err in holding that Salman
failed to meet his burden of demonstrating statutory eligibility for asylum. Because
we hold that the IJ did not err on this issue, we need not decide whether the IJ erred
in holding that Salman did not establish that his mistreatment rose to the level of past
persecution, or that his persecution was not based on the statutorily enumerated
grounds in 8 U.S.C. §§ 1158(b)(1)(B)(I) and 1231(b)(3).
1
The government argues that Salman has waived this issue on appeal because
he "does not specifically argue he established a nexus between his fears of persecution
and a protected ground, or the record evidence shows the government is unwilling or
unable to protect him from harm." However, while Salman's arguments on this issue
may not be fully developed, they are present in his brief, and thus the issue is not
waived.
-5-
III. Motion to Reopen and Remand
Salman argues that the BIA violated his right to due process in denying his
motion to reopen and remand. We review Salman's due process challenge de novo,
as it presents a purely legal issue. Bracic v. Holder, 603 F.3d 1027, 1032 (8th Cir.
2010). Salman may establish a due process violation by "demonstrat[ing] both a
fundamental procedural error and that the error resulted in prejudice." Id. (quoting
Lopez v. Heinauer, 332 F.3d 507, 512 (8th Cir. 2003). Here, Salman's claim fails
because he has shown no procedural error.
The evidence for which Salman sought to reopen his deportation proceedings
is an expert report on country conditions and Arabic culture in Israel. The report paid
special attention to "[t]he problem of blood feuds and honor codes in Arab society."
Motions to reopen and remand are "disfavored because of the strong public interest
in bringing litigation to a close" and because granting them can allow endless
prolongation of asylum proceedings. Gebremaria v. Ashcroft, 378 F.3d 734, 737 (8th
Cir. 2004). There are at least three grounds on which the BIA may deny a motion to
reopen: (1) "failure to establish a prima facie case for asylum;" (2) "failure to
introduce previously unavailable, material evidence, or failure to reasonably explain
why asylum was not initially sought;" or (3) "a determination that the movant would
not be entitled to this discretionary relief." Id.Salman has not demonstrated that the report he seeks to introduce was
previously unavailable. Salman's counsel claims that he did not introduce this
evidence at the hearing with the IJ because "it was not until the IJ actually delivered
his decision that we discovered that the IJ felt that the blood feud between the
Faroneys and the Salmans was not the basis of an objectively reasonable fear."
However, as discussed above, Salman bears the burden of establishing that his fear
was objectively reasonable. That the IJ did not inform Salman of his opinion on the
case while he was presiding over a hearing does not absolve Salman of his burden.
-6-
Moreover, the BIA did not err in holding that "respondent did not assert or
demonstrate that prior counsel provided ineffective assistance of counsel pursuant to
Matter of Lozada, 19 I & N Dec. 637 (BIA 1988), aff'd, 857 F.2d 10 (1st Cir. 1988)."
As Salman's current counsel reiterates in the brief to this Court, there was no attempt
to make an ineffective assistance of counsel motion to the BIA. Nor could there have
been under Matter of Lozada: Salman has not shown that "the proceeding was so
fundamentally unfair that the alien was prevented from reasonably presenting his
case." Matter of Lozada, 19 I & N at 638. Because Salman has not pointed to any
other reason why this report was previously unavailable, the BIA did not commit a
fundamental procedural error in denying Salman's motion.
IV. Conclusion
For the foregoing reasons, the petition for review is denied.
______________________________
-7-