Fouad Youssef Hakim Mansour v. John Ashcroft, Attorney General, Soheir Gamil Shaker Ewada v. John Ashcroft, Attorney General

390 F.3d 667, 2004 U.S. App. LEXIS 24996, 2004 WL 2784854

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 6, 2004
• Docket: 02-72515, 02-72516
• Status: Published

Opinions

Opinion by Judge Beezer; Partial Concurrence and Partial Dissent by Judge Pregerson

BEEZER, Circuit Judge.

Fouad Mansour petitions for review from a summary affirmance by the Board of Immigration Appeals (“BIA”) of the decision of an Immigration Judge (“IJ”). His wife, Soheir Ewada, is a derivative applicant whose petition depends exclusively on the merits of Mansour’s petition. The IJ determined that Mansour had not established past persecution or a well-founded fear of future persecution. Mans-our and Ewada (“Petitioners”) contend that: (1) the IJ’s adverse credibility finding was not supported by substantial evidence; (2) the IJ erred in concluding that Mansour had not suffered past persecution; (3) the IJ erred by not evaluating whether Mansour had a well-founded fear of future persecution; (4) the IJ erred in denying Petitioners’ requests for voluntary departure; and (5) the BIA erred in affirming without opinion the decision of the IJ. We have jurisdiction under 8 U.S.C. § 1252 and we deny the petition for review in part and dismiss in part.

I

Petitioners are natives and citizens of Egypt who entered the United States as non-immigrant tourists on November 26, 1988, and March 13, 1989 respectively. Petitioners remained in the United States beyond the departure dates fixed by their visas. Mansour and Ewada, as a derivative applicant, applied for asylum on March 31, 1998. Petitioners were served with Notices to Appear on June 3, 1998. On August 17, 1998 Petitioners conceded removability and renewed their requests for asylum and withholding of removal and requested voluntary departure in the alternative.

On October 27, 1998, Petitioners appeared before an IJ for a hearing on the merits of their case. Mansour testified that he feared persecution because as “a Coptic Christian I’ve been persecuted everyday [sic], mentally, maybe some physically ... I was persecuted mentally I would say on a daily basis, every day since I was a child until I came to the United States.” Mansour stated that as a child he was treated differently by his school teachers because of his faith. He testified that he was struck by Arabic teachers “[w]ith a whip if he had it, if he doesn’t have a whip with his hands in my face.” Mansour testified that he had one Arabic teacher each year that he was in school but that not all of these teachers used physical force against him: “Some of them [ ] used force and the rest they kinda mentally persecute you and this was actually worse than hitting you with a whip or his hand.” Mans-our said that if he returned to Egypt he would be persecuted because he spent time in a Western country.

Ewada testified that she had been singled out and treated differently since childhood because she was a practicing Coptic Christian. Ewada said that the children at her school called her a nonbeliever and that the teachers did nothing to stop the teasing. She also stated that teachers were unwilling to provide assistance when she needed additional help with her studies. Ewada described a school system where “hitting is normal [ ] every single teacher has their own weapon.” Ewada testified teachers hit her with a leather swath and slapped her numerous times. Ewada recalled one instance where she was hit by a teacher and removed from the classroom because she refused to recite Muslim prayers. She also testified that the teachers at her school would only strike Muslim children for disciplinary reasons but that Christian children were often struck for no reason. Ewada also described incidents where she was forced to run on her way to church because neighborhood children threw rocks at her. As a result of one of these incidents Ewada’s brother had to seek medical attention because the children, “opened his head with a rock.”

Ewada also testified regarding her fear for her two children born in the United States and her desire for them to avoid what she went through as a child in Egypt. She related her fear, that her children might be killed if the family was forced to return to Egypt and that her children would not be able to live “normal” lives because of physical and mental abuse.

Mansour also testified that Coptic Christians were treated as second class citizens or worse and that people treated him differently after they found out that he was Christian rather than Muslim. Mansour described the difficulties faced by his brother who runs a grocery store in Egypt: “[M]ost of the neighbors [are] against him because there’s another store in front of him and this store [is] own[ed] by a Muslim and they both do the same business ... he’s taking all[my brother’s] customers from him.”

Petitioners both testified about the death of Ewada’s cousin, a taxidriver who they alleged was killed because he was an outspoken Coptic Christian. Ewada’s cousin was described as a large man who had tattoos of the cross and Virgin Mary-on his hands and chest. Mansour discussed how Ewada’s cousin “felt like he had a message and wanted to give it to whoever sees him.” Her cousin was murdered and his body was found by authorities in a dumpster. Ewada’s cousin was buried by the authorities in a Muslim cemetery even though they likely knew that he was Christian. When Ewada’s family was finally able to determine what happened to her cousin, his body was exhumed and he was properly buried in a Christian cemetery.

At the end of the hearing the IJ determined that Mansour and therefore his wife Ewada, as a derivative applicant, had not established eligibility for asylum or withholding of removal and denied them voluntary departure. A timely appeal was filed with the BIA, which summarily affirmed the IJ. Petitioners then timely filed this appeal.

II

Petitioners’ appeal is governed by the permanent provisions of the Illegal Immigration Reform and Immigrant Responsibility Act because immigration proceedings were initiated after April 1, 1997. See Kalaw v. INS, 133 F.3d 1147, 1149-50 (9th Cir.1997). When the BIA affirms the decision of the IJ without opinion, we review the decision of the IJ as the final agency decision. Falcon Carache v. Ashcroft, 350 F.3d 845, 849 (9th Cir.2003). We review the IJ’s decision that an alien has not established eligibility for asylum to determine whether it is supported by substantial evidence. See Gonzalez-Hernandez v. Ashcroft, 336 F.3d 995, 998 (9th Cir.2003). The IJ’s determination must be upheld if “ ‘supported by reasonable, substantial, and probative evidence on the record considered as a whole.’ ” Li v. Ashcroft, 356 F.3d 1153, 1157 (9th Cir.2004) (en banc) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). “To reverse the [IJ] we must find that the evidence presented by Petitioners was such that a reasonable fact-finder would be compelled to conclude that Petitioners were persecuted or had a well-founded fear of persecution based on their [religious beliefs].” Li, 356 F.3d at 1157.

Ill

Petitioners argue that the IJ made an adverse credibility determination and that it was error for him to do so. Whether the IJ made an adverse credibility determination against Mansour is not entirely clear from the record. The IJ stated that he was “troubled by [ ] certain inconsistencies in the evidence,” that Mansour’s credibility was “suspect,” and that there was a question raised about whether Mansour “provided false information in his asylum application and/or exaggerated some of the facts.” The IJ determined that “respondent’s asylum claim fails because it does not establish that he has been persecuted in the past within the meaning of the statute” and that Mansour did not present evidence that reflected whether he had a well-founded fear of future persecution if he was to return to Egypt.

“[T]he law of this circuit does not permit implicit adverse credibility determinations.” Shoafera v. INS, 228 F.3d 1070, 1074 n. 3 (9th Cir.2000); see also Manimbao v. Ashcroft, 329 F.3d 655, 658-59 (9th Cir.2003) (noting “[w]hen the IJ makes implicit credibility observations in passing, however, this does not constitute a credibility finding”); de Leon-Barrios v. INS, 116 F.3d 391, 394 (9th Cir.1997) (stating that although an adverse credibility finding does not require the recitation of unique or particular words, it must be explicit); Aguilera-Cota v. INS, 914 F.2d 1375, 1383 (9th Cir.1990) (noting that “[t]he mere statement that a petitioner is ‘not entirely credible’ is not enough”). “In the absence of an explicit adverse credibility finding, we must assume that [Petitioners’] factual contentions are true.” Kataria v. INS, 232 F.3d 1107, 1114 (9th Cir.2000).

In Kataña, we declined to recognize an implicit adverse credibility finding and assumed the petitioner’s factual contentions to be true, notwithstanding the IJ’s “con-eern[s] about mistakes in [the petitioner’s] application” and “concerns about whether [the petitioner] was in fact a Sikh.” Id. at 1111. The IJ’s “troubles” with Mansour’s and Ewada’s testimony, like the “concerns” expressed by the IJ in Katana, amount to nothing more than an implicit adverse credibility determination, which we have refused to recognize.¹ We will review Mansour’s claim for asylum and withholding on the merits taking as true the testimony presented before the IJ.

IV

The Attorney General may grant asylum to an alien who qualifies as a refugee, that is, one who is unable or unwilling to return to her home 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.’ ” Melkonian v. Ashcroft, 320 F.3d 1061, 1064 (9th Cir.2003) (quoting 8 U.S.C. § 1101(a)(42)(A)). The “heavily fact-dependent” issue of persecution can be framed as follows: “looking at the cumulative effect of all the incidents Petitioner has suffered, [does] the treatment she received rise[ ] to the level of persecution^]” Singh v. INS, 134 F.3d 962, 967 (9th Cir.1998). Persecution is “ ‘the infliction of suffering or harm upon those who differ (in race, religion or political opinion) in a way regarded as offensive.’ ” Prasad v. INS, 47 F.3d 336, 339 (9th Cir.1995) (quoting Desir v. Ilchert, 840 F.2d 723, 726-27 (9th Cir.1988)). “[P]ersecution is an extreme concept that does not include every sort of treatment our society regards as offensive.” Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir.1995). “Discrimination on the basis of race or religion, as morally reprehensible as it may be, does not ordinarily amount to ‘persecution’ within the meaning of the Act.” Id. However, discrimination can in “extraordinary cases, be so severe and pervasive as to constitute ‘persecution’ within the meaning of the Act.” Id. “Persecution need not be directly at the hands of the government; private individuals that the government is unable or unwilling to control can [be held to have] persecuted] someone” for the purposes of asylum. Singh, 134 F.3d at 967 n. 9.

Petitioners first argue that the IJ erred by considering only whether Mans-our suffered past persecution and not evaluating whether Mansour had a well-founded fear of future persecution. They point to the IJ’s only specific statement explaining his denial of Mansour’s application for asylum:”the Respondent’s asylum claim fails because it does not establish that he has been persecuted in the past within the meaning of the statute.” The government counters, arguing that the Petitioners are reading the decision too narrowly, and points to the IJ’s discussion of the legal standard for a well-founded fear of future persecution. In his decision the IJ also discussed the educational and work-status of Mansour’s family members living in Egypt and what effect returning to Egypt might have on Petitioners’ United States born children. This discussion, as the government properly notes, is relevant only to claims of future persecution. We hold that the IJ properly considered whether Mans-our demonstrated past persecution and/or a well-founded fear of future persecution.

We believe that substantial evidence supports the IJ’s conclusion that Mansour has not suffered past persecution. The testimony and evidence presented by Petitioners does demonstrate that Coptic Christians are subject to discrimination within Egypt on the basis of their religion. However, the evidence does not compel us to conclude that the discrimination rose to the level of persecution. As the IJ stated, Petitioners failed to establish that those that “bothered” or “mistreated” them were individuals that the government was unable or unwilling to control and noted that the relevant State Department Profile reflected the fact that Egyptian authorities have prosecuted those who have committed “acts of terrorism” against Christians. This case is similar to Ghaly v. INS, a case involving a Coptic Christian petitioner. 58 F.3d at 1431. There we concluded that “where private discrimination is neither condoned by the state nor the prevailing social norm, it clearly does not amount to ‘persecution’ within the meaning of the Act.” Id. We recognize that in some cases discrimination may rise to the level of persecution. See Duarte de Guinac v. INS, 179 F.3d 1156, 1161-63 (9th Cir.1999); Korablina v. INS, 158 F.3d 1038, 1044-45 (9th Cir.1998). The record demonstrates that Petitioners have been the unfortunate targets of discrimination because of their religion; however, the discrimination suffered by Petitioners does not constitute persecution within the meaning of the Act.

Mansour has not demonstrated that he has a well-founded fear of future persecution because of his religion. “An alien’s ‘well-founded fear of persecution’ must be both subjectively genuine and objectively reasonable.” Nagoulko v. INS, 333 F.3d 1012, 1016 (9th Cir.2003). To satisfy the objective component, an alien must show that he has suffered from past persecution or that he has a “good reason to fear future persecution by adducing credible, direct, and specific evidence in the record of facts that would support a reasonable fear of persecution.” Id. (quoting Duarte de Guinac v. INS, 179 F.3d at 1159 (9th Cir.1999)). The IJ pointed out that Petitioners have several family members who continue to live in Egypt and who have been able to obtain university educations and employment after graduation. The record does not demonstrate that Mansour has an objectively reasonable fear of future persecution.

Because Mansour was unable to meet his burden to demonstrate that he is eligible for asylum he necessarily fails to satisfy the more stringent standard for withholding of removal. See Lata v. INS, 204 F.3d 1241, 1244 (9th Cir.2000).

Y

Petitioners argue that the IJ erred when he denied their request for voluntary departure on the basis that they were unable to produce current non-expired Egyptian passports. We lack jurisdiction over this issue. “The INA provides that ‘no court shall have jurisdiction over an appeal from denial of a request for an order of voluntary departure..." Alvarez-Santos v. INS, 332 F.3d 1245, 1255 (9th Cir.2003) (quoting 8 U.S.C. § 1229c(f)).

VI

Petitioners argue that the BIA erred by affirming without opinion the decision of the IJ. This argument is foreclosed by our decision in Falcon Carriche, 350 F.3d at 851.

PETITION FOR REVIEW DISMISSED in part and DENIED in part.

1 . Even if we were to hold that the IJ’s statements constituted an adverse credibility determination, his various “troubles” with different aspects of the testimony of Mansour and Ewada are legally insufficient to support an adverse credibility determination.