Jainul Abdeen v. Atty Gen USA

• Court: Court of Appeals for the Third Circuit
• Decided: October 31, 2011
• Docket: 11-1265
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 11-1265 ___________

IZZADEEN SHIABDEEN JAINUL ABDEEN, Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES, Respondent ____________________________________

On Petition for Review of an Order of the Board of Immigration Appeals (A088-379-465) Immigration Judge: Honorable Annie S. Garcy ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) October 19, 2011

Before: AMBRO, ALDISERT and NYGAARD, Circuit Judges

(Opinion filed: October 31, 2011) ___________

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

1 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 2 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 U.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, 334 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

1 If we were to reach the merits, we would agree with respondent that relief must be denied. The BIA addressed and rejected the merits of Abdeen’s asylum claim based on an unambiguously correct statement of the “one central reason” standard, see App. at 3, and thus any perceived error in the IJ’s articulation of that standard could be 3 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 Abdeen 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. Abdeen 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.

rejected as harmless. See Yuan v. Att’y Gen., 642 F.3d 420, 427 (3d Cir. 2011) (“[W]e will view an error as harmless and not necessitating a remand to the BIA when it is highly probable that the error did not affect the outcome of the case.”). 4 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)(1)(B)(i). This standard requires that the applicant

“establish 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. As the IJ 5 explained, Abdeen’s testimony conflicted in material respects with a supporting letter that

he submitted from Hakeem, a Sri Lankan government official. In particular, Abdeen

provided conflicting testimony with regard to whether the government had any role in his

abduction. Hakeem expressed the view that Abdeen’s abduction was part of an

unfortunate trend in which “wealthy Tamil and Muslim businessmen had been abducted

and ransom demanded by some unidentified groups in Sri Lanka.” App. at 206. While

noting the inconsistency between Abdeen’s testimony (that the government was

involved) and Hakeem’s statement, the IJ concluded that the evidence taken as a whole,

including Hakeem’s letter, failed to show that Abdeen’s political views were anything

more than incidental or peripheral to the reasons for his abduction. This determination is

consistent with the record, which, as the BIA fairly concluded, reflects that Abdeen’s

mistreatment was centrally motivated by his wealth, not his political views.

Abdeen cites to various portions of the record – including statements in his written

asylum application, his testimony before the IJ, and his wife’s affidavit – and argues that

this evidence “compels a conclusion that [his] political activities was [sic] a central

reason for the persecution.” Petitioner’s Br. at 30. We cannot agree. While there may be

some evidence of record to support Abdeen’s view of the incident, the record as a whole

does not compel a reasonable adjudicator to conclude that political opinion was other

than a small part of the motivation for the abduction. In short, what happened to Abdeen

was certainly criminal and repugnant, but the evidence does not require that we overturn

6 the agency’s refusal to grant asylum under the law. 2

Abdeen next contends that the IJ erred in rejecting his claim of a well-founded fear

of future persecution. Petitioner’s Br. at 31-34. Because Abdeen failed to establish past

persecution, he was not entitled to the presumption of a well-founded fear. See 8 C.F.R.

§ 1208.13(b)(1). The IJ rejected Abdeen’s claimed fear of future persecution, observing

that Abdeen did not receive any direct threats against his life after the abduction, that

there was no evidence of efforts by the abductors to locate Abdeen, and that “the only

reasonable interpretation of the events is that the individuals who abducted [Abdeen]

have essentially ‘settled’ for half of the ransom demanded and not come looking for

more.” App. at 57. The IJ added that Abdeen’s wife and children have not faced danger

while living at the brother’s home in Sri Lanka, and the IJ found that Abdeen can seek

protection from the human rights commission and civil monitoring groups, as suggested

by Hakeem in his letter. Finally, the IJ observed that any subjective fear that Abdeen

might have of future kidnapping would not be based on a statutorily protected ground,

and that Abdeen can safely relocate within Sri Lanka.

Abdeen argues that there is evidence that “unidentified people” came looking for

him at his factory, that the IJ’s finding that the abductors have “settled” for half payment

2 Abdeen suggests that his abduction was also motivated by his race, nationality, or religion, see Petitioner’s Br. at 29, but the record is clear that Abdeen failed to raise and exhaust this argument before the BIA, see 8 U.S.C. § 1252(d)(1), and, in any event, his mere “passing reference” to this new theory for his mistreatment is insufficient to obtain review in this Court. See United States v. DeMichael, 461 F.3d 414, 417 (3d Cir. 2006). Accordingly, we do not address this argument. 7 is “speculation,” and that he cannot seek protection from the government because the

human rights commission in Sri Lanka is ineffectual. Petitioner’s Br. at 32-33. Abdeen

also suggests that he cannot relocate within the country.

We are satisfied that substantial evidence supports the IJ’s decision. 3 The well-

founded fear standard requires a petitioner to show “both a subjective and an objective

fear of future persecution” due to race, religion, nationality, membership in a particular

social group, or political opinion. De Leon-Ochoa v. Att’y Gen., 622 F.3d 341, 356 (3d

Cir. 2010). Here, there is no compelling or specific evidence of record that Abdeen’s

abductors have continued to pursue him, and it is undisputed that his wife and children

have remained in Sri Lanka without incident, albeit in a different city. Further, as the IJ

observed, even if Abdeen has a legitimate subjective fear that he would again be targeted

in Sri Lanka, Abdeen has not presented objective evidence to establish that any future

persecution would be on account of a statutorily protected ground.

In sum, we conclude that substantial evidence supports the denial of Abdeen’s

application for asylum. Given the higher standard of proof for withholding of removal,

“an applicant who does not qualify for asylum also does not qualify for withholding of

removal.” Guo v. Ashcroft, 386 F.3d 556, 561 n.4 (3d Cir. 2004).

Finally, Abdeen argues that the IJ and the BIA erred in denying CAT relief,

claiming that the agency employed an incorrect legal standard and that the evidence

3 Because the BIA adopted the IJ’s analysis on the well-founded fear of future persecution, we focus on the IJ’s decision. 8 establishes that the Sri Lankan government fails to protect its citizens from, or is willfully

blind to, abductions for ransom. Petitioner’s Br. at 34-37. To qualify for protection

under the CAT, Abdeen must prove that “it is more likely than not that he . . . would be

tortured if removed to [Sri Lanka].” 8 C.F.R. § 1208.16(c)(2).

The BIA determined that Abdeen was not tortured in the past (a fact that Abdeen

does not dispute), and that he is unlikely to be tortured in the future by or with the

acquiescence of a government official. Abdeen argues that he meets the standard for

CAT relief because “abduction for ransom is prevalent in Sri Lanka.” Petitioner’s Br. at

36. Abdeen fails, however, to point to evidence of record that links the government of

Sri Lanka to the unidentified individuals who kidnapped him, or which establishes that

those individuals are likely to kidnap him again. In addition, as the IJ found, while the

evidence suggests that the Sri Lankan government might be “unable to control this

rampant kidnapping for ransom . . . . [T]he inability of the government to control it is

quite different from having a specific intent to allow individuals to be kidnapped for

ransom, and there is no evidence that the government of Sri Lanka intends for those who

have wealth . . . to suffer kidnaps for ransom.” App. at 61; see Pierre v. Att’y Gen., 528

F.3d 180, 190 (3d Cir. 2008) (en banc) (“[A] petitioner cannot obtain relief under the

CAT unless he can show that his prospective torturer will have the goal or purpose of

inflicting severe pain or suffering.”). We conclude, therefore, that the BIA properly

rejected Abdeen’s application for CAT relief. Cf. Pierre, 528 F.3d at 191 (“As Pierre is

unable to show that the Haitian authorities specifically intend to cause him severe pain or 9 suffering, he cannot fulfill the specific intent requirement of the CAT.”).

III.

We have considered Abdeen’s remaining arguments but conclude that they are

without merit. For the foregoing reasons, we will deny the petition for review.