Ahmed v. Atty Gen USA

106 F. App'x 111
Court of Appeals for the Third Circuit·Decided July 20, 2004·No. 02-3637·Unpublished

Opinion

OPINION

McKEE, Circuit Judge.

Mohamad Selim Ahmed petitions for review of the Board of Immigration Appeals’ order affirming the Immigration Judge’s order of removal. For the reasons that follow, we will affirm.

I.

Because we write only for the parties, we need not reiterate the facts except insofar as may be helpful to our brief discussion.

Ahmed is a native and citizen of Syria. He entered the United States on June 12, 1988 as a nonimmigrant with authorization to remain until August 2 of the same year. A.R. 227. Sometime in 1989, he filed an application for asylum with the Immigration and Naturalization Service 1 in Newark, New Jersey. A.R. 143-44. 2 On October 11, 1990, he filed a second application for asylum in Los Angeles, California and was interviewed by an asylum officer the same day. A.R. 211-15. However, no decision was reached at that time. On August 26, 1998, almost eight years later, the INS conducted a second asylum interview, and determined that Ahmed was ineligible for relief. A.R. 186-87. Shortly thereafter, the INS initiated removal proceedings against Ahmed for overstaying his visa in violation of 8 U.S.C. § 1227(a)(1)(B). A.R. 227.

Ahmed conceded removability before the immigration court, but applied for asylum and withholding of removal or, in the alternative, voluntary departure. A.R. 59-60. As part of his asylum application, he submitted a declaration describing two incidents of “abuse and mistreatment on account of [his] political views.” A.R. 195. First, Ahmed stated that in 1979, he was “beaten and abused for voting in opposition to President Assad in a national election.” Id. Second, he claimed that, in 1983, he was detained and beaten for twenty-five days because he wrote a paper expressing his disapproval of the Syrian government’s economic policies. Ahmed *113 stated that he was eventually released on the condition that he become a government informant and never tell anyone about his detention. A.R. 196-97. Neither incident was mentioned in his 1990 application or during his immigration interviews.

On January 14, 1999, the IJ set a hearing date of April 27 and stated that he would not consider “anything” submitted less than 10 days prior to the hearing. A.R. 63. At the hearing, Ahmed’s counsel requested, for the first time, that his psychiatrist, Dr. Delston, be allowed to testify on his client’s behalf and that his written report be submitted into evidence. A.R. 67-68. The IJ refused both requests. A.R. 72. Thereafter, Ahmed testified on his own behalf and described the 1979 and 1983 incidents.

The IJ ultimately denied Ahmed’s claim, finding that his testimony was not credible. A.R. 39. Alternatively, the IJ found that, even if Ahmed testified truthfully, he had not established a well-founded fear of future persecution because the most recent incident of abuse occurred more than 16 years prior to the hearing. A.R. 42. However, the IJ did grant Ahmed’s request for voluntary departure. On August 29, 2002, the BIA issued a per curium order affirming the IJ’s decision without opinion pursuant to 8 C.F.R. § 1003.1(e)(4), thereby making it the final agency determination. A.R. 2. This appeal followed.

II.

A. Credibility Determination

The Attorney General has discretion to grant asylum to an alien who qualifies as a “refugee.” 8 U.S.C. § 1158(b). The Immigration and Nationalization Act defines “refugee” as:

any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country 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.

8 U.S.C. § 1101(a)(42)(A). In order to meet this standard, an alien must possess “a subjective fear of persecution that is supported by objective evidence that persecution is a reasonable possibility.” Chang v. INS, 119 F.3d 1055, 1166 (3d Cir. 1997). In other words, “[t]he applicant's statements ... must be viewed in the context of the relevant background situation.” Matter of Dass, 20 I. & N. Dec. 120, 125 (1989). However, an alien does not have to show a clear probability of persecution in order to be granted asylum. As the Supreme Court noted in INS v. Cardoza-Fonseca, 480 U.S. 421, 431, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987), “[o]ne can certainly have a well-founded fear of an event happening when there is less than a 50% chance of the occurrence taking place.” If an alien establishes that he/she suffered past persecution, a rebuttable presumption arises that he/she has a well-founded fear of persecution in the future. 8 C.F.R. § 208.13(b)(1).

In order to withstand appellate review, the agency’s decision must be supported by “substantial evidence.” Balasubra-manrim v. INS, 143 F.3d 157, 161 (3d Cir.1998). “Substantial evidence is more than a scintilla, and must do more than create a suspicion of the existence of the fact to be established. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclu *114 sion....” N.L.R.B. v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300, 59 S.Ct. 501, 83 L.Ed. 660 (1939) (citation and internal quotation marks omitted). In other words, “the administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary....” 8 U.S.C. § 1252(b)(4)(B). This standard applies with equal force to adverse credibility determinations. Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002) (“[Ajdverse credibility determinations are reviewed for substantial evidence.”) (citation omitted).

As stated above, the IJ denied Ahmed’s claim for lack of credibility.

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Ahmed v. Atty Gen USA, 106 F. App'x 111 (3d Cir. 2004).

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