Lobar Berdieva v. Attorney General United States of America

• Court: Court of Appeals for the Third Circuit
• Decided: January 22, 2024
• Docket: 23-1343
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________

No. 23-1343 _______________

LOBAR AMINOVNA BERDIEVA, ABDURASHID ABDUKHALILOVICH MUMINOV, K.A.Q.A., A.A.Q.A., A.A.O.A., Petitioners

v.

ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA _______________

On Petition for Review of a Final Order of the Board of Immigration Appeals (Agency Nos. A202-024-337, A202-024-338, A202-024-339, A202-024-340, and A202-024-341) Immigration Judge: John B. Carle _______________

Submitted Under Third Circuit L.A.R. 34.1(a) on January 17, 2024

Before: JORDAN, BIBAS, and AMBRO, Circuit Judges

(Filed: January 22, 2024) _______________

OPINION* _______________

* This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding precedent. BIBAS, Circuit Judge.

Lobar Berdieva, a Muslim, is a native and citizen of Uzbekistan. So are her husband

(Abdurashid Muminov) and their three minor children (K.A.Q.A., A.A.Q.A., and

A.A.O.A.). Fifteen years ago, Berdieva decided to start covering her head with a hijab. Her

decision was costly. She was shunned by friends, denied a job, and harassed by officials.

And Uzbek law bars her from driving while wearing a hijab.

The family came to the United States on student visas but overstayed. So the

government sought to remove them. The family admitted removability but applied for

asylum, withholding of removal, and protection under the Convention Against Torture.

The immigration judge recognized as a particular social group Uzbek Muslim women

who wear the hijab. And he was rightly “troubled” that Berdieva was “mistreat[ed]” for

visibly practicing her faith. AR 89. But he found that the harassment and discrimination

that she and her family suffered did not rise to the level of past or future persecution, let

alone torture. So he denied all relief and ordered them removed. A single judge of the Board

of Immigration Appeals affirmed without opinion. The family now petitions for review.

The Board may affirm without opinion when (1) it finds that existing precedent controls

the issues and would not need to be applied to novel facts, or (2) the factual and legal issues

are not substantial enough to call for a written opinion. 8 C.F.R. § 1003.1(e)(4). When the

Board does so, we review the immigration judge’s opinion. Dia v. Ashcroft, 353 F.3d 228,

245 (3d Cir. 2003) (en banc). We review constitutional claims and issues of law de novo.

Duhaney v. Att’y Gen., 621 F.3d 340, 345 (3d Cir. 2010). And we defer to the agency’s

2 findings of fact, treating them as “conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).

The family claims that the Board should not have affirmed without opinion because this

case presents novel facts that require statutory interpretation. Though there are no cases

specifically about hijab-wearing in Uzbekistan, plenty of precedent discusses persecution.

And the conduct here does not qualify: Discrimination, harassment, threats, and economic

hardship are unwelcome. But even taken together, they are not enough for persecution (let

alone torture). See Ahmed v. Ashcroft, 341 F.3d 214, 217 (3d Cir. 2003). No one in the

family was physically harmed, required to renounce her religion, or barred from praying,

worshipping, or wearing a hijab. Cf. Fatin v. INS, 12 F.3d 1233, 1242 (3d Cir. 1993)

(Alito, J.). No one had to worship in secret. Nor was anyone fined.

True, Berdieva was stopped and searched by police perhaps eight times, and once police

threatened to visit her house and watch her family. But that single threat was hardly “con-

crete and menacing” enough to threaten her life or freedom. Herrera-Reyes v. Att’y Gen.,

952 F.3d 101, 108 (3d Cir. 2020). The lack of past persecution, likely future persecution,

or torture defeats the family’s claims. We will thus deny the petition.