Abdeen v. Attorney General of the United States

449 F. App'x 181
CourtCourt of Appeals for the Third Circuit
DecidedOctober 31, 2011
DocketNo. 11-1265
StatusPublished
Cited by1 cases

This text of 449 F. App'x 181 (Abdeen v. Attorney General of the United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Abdeen v. Attorney General of the United States, 449 F. App'x 181 (3d Cir. 2011).

Opinion

OPINION

PER CURIAM.

Izzadeen Shiabdeen Jainul Abdeen (“Abdeen”) petitions for review of a final removal order entered by the Board of Immigration Appeals (“BIA”). For the reasons that follow, we will deny the petition for review.

I.

Abdeen, presently age fifty-two, is a native and citizen of Sri Lanka who entered the United States in 2007 on a non-immigrant visitor visa and overstayed. He submitted an application for asylum, which was referred to an Immigration Judge (“IJ”). Abdeen conceded before the IJ that he is removable as charged for overstaying his visa, and he pursued asylum, withholding of removal, and Convention Against Torture (“CAT”) relief. The IJ denied relief after a hearing, concluding that, while Abdeen provided credible testimony about his experience as a wealthy businessman who was abducted and forced to pay a substantial ransom, he failed to establish that a statutorily protected ground was one central reason for his mistreatment, that he has a well-founded fear of future persecution in Sri Lanka, or that it is more likely than not that he would be tortured if repatriated. The BIA adopted and affirmed the IJ’s decision, agreeing that Abdeen failed to show that a protected ground was one central reason for his mistreatment, or that there exists a likelihood of torture by or with the acquiescence of a government official. Abdeen timely petitioned for review.

II.

We have jurisdiction under 8 U.S.C. § 1252(a)(1). When, as here, “the BIA both adopts the findings of the IJ and discusses some of the bases for the IJ’s decision, we have authority to review the decisions of both the IJ and the BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). We review agency factual determinations for substantial evidence and must accept those determinations as conclusive unless “a reasonable adjudicator would be compelled to arrive at a contrary conclusion.” Mendez-Reyes v. Att’y Gen., 428 F.3d 187, 191 (3d Cir.2005); see 8 [183]*183U.S.C. § 1252(b)(4)(B). Factual determinations must be “supported by reasonable, substantial and probative evidence on the record considered as a whole.... ” Kayembe v. Ashcroft, 834 F.3d 231, 234 (3d Cir.2003). We review legal conclusions de novo, subject to established principles of deference. Patel v. Att’y Gen., 599 F.3d 295, 297 (3d Cir.2010).

Abdeen first contends that the IJ applied an incorrect legal standard in addressing whether a statutorily protected ground was one central reason for his mistreatment. According to Abdeen, the IJ erred by using a “hierarchical order in analyzing the nexus requirement under the REAL ID Act by stating that the reason [for the persecution] should be the dominant one.” Petitioner’s Br. at 17. We conclude that we lack jurisdiction to review this issue because Abdeen failed to exhaust it. “A court may review a final order of removal only if ... the alien has exhausted all administrative-remedies available to the alien as of right-” 8 U.S.C. § 1252(d)(1). Abdeen did not raise, or even suggest, his “hierarchical order” argument in his notice of appeal or brief to the BIA. See App. at 10-21, 29. Consequently, we are precluded from reaching the merits of the issue. See Lin v. Att’y Gen., 543 F.3d 114, 120-21 (3d Cir.2008).1

Abdeen next contends that the IJ erred by focusing too heavily upon a letter that Abdeen submitted from Rauff Hakeem, a member of Sri Lanka’s parliament, and he argues that the BIA and the IJ erred in analyzing the evidence showing that Ab-deen was abducted for political reasons. See Petitioner’s Br. at 17-30. We discern no error.

The record establishes that Abdeen was a successful businessman who owned a clothing factory in Sri Lanka. By his own account, Abdeen was “rich” and “able to live comfortably.” App. at 150. In 2006, four or five individuals posing as police officers entered Abdeen’s home on the pretext of conducting a search for illegal fabrics. These individuals proceeded to abduct Abdeen, and they held him for three days in handcuffs at an unknown location until Abdeen’s wife paid one-half of a substantial ransom to secure his release. Ab-deen had been a supporter of the Muslim Congress Party since 2001, and he testified that the kidnappers twice disparaged his party affiliation: once at the outset of the ordeal, when they “scolded” Abdeen and suggested that he used “illegal money” to support his party, App. at 104-05, 134-35; and a second time upon his release, when they told Abdeen to cease work for the party or he would be killed. Id. at 113, 135. Abdeen was released on the understanding that he would pay the other half of the ransom within ten days. Abdeen did not report the incident to the police. Instead, he closed his factory, went into hiding at the home of his brother in another city, and ultimately left the country. His wife and three children remain in Sri Lanka.

Under the REAL ID Act of 2005, which applies here, Abdeen “must establish that ... political opinion was or will be at least one central reason for persecuting the applicant.” 8 U.S.C. § 1158(b)(l)(B)(i). This standard requires that the applicant “es[184]*184tablish more than that the persecutor is motivated ‘in part’ by a protected ground; ‘asylum may not be granted if a protected ground is only an ‘incidental, tangential, or superficial’ reason for persecution of an asylum applicant.” Li v. Att’y Gen., 633 F.3d 136, 142 n. 4 (3d Cir.2011) (quoting Ndayshimiye v. Att’y Gen., 557 F.3d 124, 130 (3d Cir.2009)).

Applying this standard, the BIA agreed with the IJ that “the totality of the record indicates that [Abdeen] was kidnapped based on his apparent ability to pay a ransom,” App. at 3, and that Abdeen failed to show that “a protected ground comprised at least ‘one central reason’ for his mistreatment.” Id. Substantial evidence in the record supports these findings. As the IJ observed, “the bulk of the conversations [between Abdeen and his abductors] were about the money. There were only two references at most [to Abdeen]’s political group, without any discussion.” App. at 53. Further, Abdeen’s political affiliation was “referenced peripherally, ... casually,” and “[a]t no time was the money demanded in a way that was connected to [Abdeen]’s political party membership, or to [his] political opinions.” Id. at 54.

Abdeen suggests that the IJ failed to consider the “totality of the evidence,” Petitioner’s Br. at 18, but we find no indication in the IJ’s thorough analysis that this is so. Nor does it appear that the IJ placed undue emphasis on the Hakeem letter.

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Related

Izzadeen Jainul Abdeen v. Attorney General United States
566 F. App'x 144 (Third Circuit, 2014)

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Bluebook (online)
449 F. App'x 181, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abdeen-v-attorney-general-of-the-united-states-ca3-2011.