Majd v. Gonzales

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 8, 2006
• Docket: 05-60141
• Status: Published

Opinion

United States Court of Appeals Fifth Circuit F I L E D In the March 8, 2006 United States Court of Appeals Charles R. Fulbruge III for the Fifth Circuit Clerk _______________

m 05-60141 _______________

LAOI SALAH MAJD; RAJAA TAHSIN NAJI BARAKAT; TAREQ LAOI MAJD,

Petitioners,

VERSUS

ALBERTO R. GONZALES, UNITED STATES ATTORNEY GENERAL,

Respondent.

____________________________________

Petition for Review of an Order of the Board of Immigration Appeals ______________________________

Before KING, SMITH, and BENAVIDES, the Convention Against Torture (“CAT”). We Circuit Judges. dismiss the petition in part and deny it in part.

JERRY E. SMITH, Circuit Judge: I. A. Laoi Majd, together with his wife and son Majd, a native of Libya holding a Palestin- as derivative beneficiaries, petitions for review ian Authority (“PA”) passport, was admitted of the denial by the Board of Immigration to the United States in January 2002 as a non- Appeals (“BIA”) of his application for asylum, immigrant visitor. He overstayed his visa and witholding of removal, and protection under in April 2003 was charged by the Department of Homeland Security (“DHS”) with remov- by an Israeli soldier who demanded to know ability under 8 U.S.C. § 1227(a)(1)(B) for re- their destination. Majd stated he was going maining in the country longer than permitted. home, but the soldier ordered him back inside In a September 2003 hearing before an im- the bank. migration judge (“IJ”), Majd conceded he was removable as charged but requested asylum, When the soldier was distracted by one of witholding of removal, and protection under his comrades, Majd and the other person tried CAT, or, in the alternative, voluntary depar- to escape. The soldiers ordered them to stop, ture, claiming he was entitled to all such relief but when they did not obey the soldiers fired because, as a Palestinian living in the West upon them. The other individual was shot, but Bank, he had been persecuted by Israeli forces. Majd made it home safely. Majd testified that he had done nothing to deserve detention but confirmed that the building in which he B. worked housed the office of a Fatah leader. Majd testified as follows: Before entering the United States, he and his family lived in In August 2001, Majd took a taxi from Ramallah, where he and his wife were bankers. Ramallah to visit his father. While his taxi was In March 2000, on returning to the West Bank in line at a security checkpoint, another taxi from a vacation in Jordan, he was stopped by tried to change lanes and pass in front of Israeli security forces at a checkpoint and another car. Because getting out of a check- detained for hours. He did not say why he was point line is generally considered suspicious detained, but he claimed that the security activity, the Israeli forces opened fire. A pas- forces kicked him while walking up and down senger riding in the same taxi as Majd was the corridor where he was being held and that shot and killed, and Majd fainted out of fear. they questioned him about his job, family, and Majd eventually reached his destination and party affiliations. While he was being de- did not testify that the Israeli forces were tained, his wife, one month pregnant, had to sit shooting specifically at him. in a chair for eight hours without food or water. The PA occupied the ground floor and basement of the building in which Majd lived. In May 2000, Majd was arrested while on One day, after inspecting the location and sus- his way to pick up his sister, was detained for pecting that some PA soldiers has escaped two hours, and again was questioned regard- through the building, Israeli soldiers searched ing his destination, family, job, and affiliations. the building from top to bottom, including He stated that on both occasions when he was Majd’s home. The soldiers broke some ob- detained, he presented the security forces with jects there, and Majd’s family was terrified, an identification card indicating that he was a particularly after hearing shots fired in the low security risk. building. It was that event that prompted Majd and his family to take a vacation to the In March 2001, as he was leaving the bank United States to “wait for the situation [in the where he worked, Majd noticed tanks and sol- West Bank] to get better.” diers in the street. The soldiers were “shoot- ing from everywhere.” Majd and another per- After Majd his wife and son fled to the son tried to leave the area but were confronted United States, numerous problems befell his

2 family remaining in the West Bank. His cousin fired upon. was detained by Israeli forces, and the cousin’s blacksmith shop was destroyed. Majd’s II. brother was detained for three months under After hearing this evidence, the IJ denied an Israeli law that permits judges to authorize Majd’s applications for asylum, witholding of administrative detention for that length of removal, and relief under CAT but granted him time.1 Majd’s family, who raised vegetables in voluntary departure, allowing him sixty days to addition to holding other jobs, could not bring leave the country of his own accord.2 The IJ their harvest to market because of the general ordered Majd forcibly removed to Israel if he unrest in the area and the fact that “everything did not depart during that sixty-day period. is closed and surrounded by Israeli authori- ties.” In particular, the wall the Israelis are The IJ determined that although Majd was building to secure the West Bank border runs credible, the mistreatment he suffered did not through the middle of his family’s olive groves, constitute persecution on account of one of depriving them of their land. the five statutory grounds that rendered an individual eligible for asylum and/or witholding Majd offered the testimony of his brother, of removal. The IJ found that the harm in- Modard Salah Jousef Majd, via telephone. flicted on Majd did not rise to the level of The brother confirmed that he had been taken torture, so relief under CAT was unavailable. and detained for three months by the Israelis after telling them that Majd had gone to the The BIA affirmed without opinion. Majd United States. He also confirmed the destruc- appeals and further contends that he is a refu- tion of the family’s olive groves and stated that gee under the 1951 Convention Relating to the because o f his experiences, he is essentially Status of Refugees and that the United States’ confined to his village. The telephonic testi- handling of Palestinian asylum claims such as mony of Majd’s father similarly confirmed his violates the ABC Settlement Agreement, Majd’s accounts. which arose out of a class action lawsuit by immigrants of certain nationalities against the Majd also offered the testimony of Emily immigration authorities. Watchsmann, a student at the University of North Texas who had visited the West Bank in III. conjunction with an organization known as the A. International Solidarity Movement. Watchs- Generally, we have authority to review only mann commented on the general conditions of the decision of the BIA, but where, as here, unrest in the West Bank but stated that she the BIA summarily affirms the IJ’s decision had no personal knowledge of Majd’s experi- without opinion, we review the IJ’s decision. ences and had never been to Ramallah. She See Mikhael v. INS, 115 F.3d 299, 302 (5th explained the usual procedure at security Cir. 1997). Although we review the legal con- checkpoints and suggested that any vehicle that attempted to evade a checkpoint would be 2 By statute, permission to depart the United States voluntarily at the conclusion of removal pro- 1 Majd did not testify that his brother was mis- ceedings “shall not be valid for a period exceeding treated during his period of detention. 60 days.” 8 U.S.C. § 1229c(b)(2).

3 clusions of the BIA and the IJ de novo, see id., 739 (3d Cir. 2005) (internal quotations and ci- we review their factual findings for substantial tations omitted). evidence. See Zhang v. Gonzales, 432 F.3d 339, 343-44 (5th Cir. 2005). Under the sub- There is a well-founded fear of persecution stantial evidence standard, “reversal [of the IJ] if the alien has a subjective fear of persecution is improper unless we decide ‘not only that the that is objectively reasonable. See Lopez-Go- evidence supports a contrary conclusion, but mez v. Ashcroft, 263 F.3d 442, 445 (5th Cir. [also] that the evidence compels it.’” Id. at 344 2001). “[A]n applicant’s fear of persecution (quoting Zhao v. Gonzales, 404 F.3d 295, 306 cannot be based solely on general violence and (5th Cir. 2005)). The alien bears the burden of civil disorder.” Eduard, 379 F.3d at 190. proving the requisite compelling nature of the evidence. See Chun v. INS, 40 F.3d 76, 78 Unlike asylum, witholding of removal is not (5th Cir. 1994). discretionary. An alien may not be removed to a particular country if it is determined that “the B. alien’s life or freedom would be threatened in The Attorney General has complete discre- that country because of the alien’s race, reli- tion whether to grant asylum to eligible indi- gion, nationality, membership in a particular viduals. “[A]sylum is not available to every social group, or political opinion.” 8 U.S.C. § victim of civil strife, but is restricted to those 1231(b)(3)(A). To be eligible for witholding persecuted for particular reasons.” Hallman v. of removal, an alien must demonstrate an INS, 879 F.2d 1244, 1247 (5th Cir. 1989). To objective “clear probability” of persecution in be eligible for asylum, an alien must prove that the proposed country of removal. INS v. he is “unable or unwilling to return to . . . [his Stevic, 467 U.S. 407, 413 (1984). Because home] country because of persecution or a the level of proof required to establish eligibil- well-founded fear of persecution on account of ity for witholding of removal is higher than race, religion, nationality, membership in a that required for asylum, failure to establish particular social group, or political opinion.” eligibility for asylum is dispositive of claims for 8 U.S.C. § 1101(a)(42)(A). witholding of removal. See Eduard, 379 F.3d at 186 n.2. “Neither discrimination nor harassment or- dinarily amounts to persecution under the [Im- To obtain relief under CAT, an alien must migration and Nationality Act (“INA”)] . . . .” demonstrate not that he is a member of one of Eduard v. Ashcroft, 379 F.3d 182, 188 (5th the five protected categories of individuals ar- Cir. 2004). Similarly, “[p]ersecution is not a ticulated in the eligibility standards for asylum limitless concept . . . . [I]t does not encom- and witholding of removal, but rather that it is pass all treatment that our society regards as more likely than not that he will be tortured if unfair, unjust, or even unlawful or unconstitu- he is removed to his home country. See Efe v. tional. If persecution were defined that expan- Ashcroft, 293 F.3d 899, 907 (5th Cir. 2002).3 sively, a significant percentage of the world’s population would qualify for asylum in this countrySSand it seems most unlikely that Con- 3 The relevant regulation defines torture as gress intended such a result. Persecution must be extreme conduct to qualify for asylum pro- as any act by which severe pain or suffering, tection.” Al-Fara v. Gonzales, 404 F.3d 733, (continued...)

4 To meet this burden, the alien may produce group. Rather, the Israeli forces were looking evidence of past torture, an inability to relo- to apprehend other individuals believed to be cate to a safer part of the country, human hiding in the building, an operation that re- rights abuses committed within the country, quired a search of the entire building. and any other relevant information. See 8 C.F.R. § 208.16(c)(3). Similarly, the IJ concluded that Majd was a mere bystander to the shooting incident at the IV. security checkpoint. That action by the Israeli A. forces was again not directed specifically at The IJ determined that Majd was ineligible Majd, but was precipitated by the suspicious for asylum and withholding of removal be- activity of the occupants of another vehicle. cause the evidence demonstrated that his suf- The IJ also found that the frustration of the fering was the result of the generally danger- Majd family’s attempts to bring their harvest ous conditions in the West Bank and did not to market and the destruction of the family’s rise to the level of persecution on account of olive groves were caused by the pervasive one of the five statutorily-protected grounds. unstable conditions in the region, not by Israeli For example, with regard to the March 2001 actions directed at the family in particular. incident at Majd’s place of employment, the IJ found that the evidence suggested that the Is- With regard to the two occasions on which raelis were attempting to apprehend a suspect- Majd was detained, the IJ found that he did ed terrorist in the area and that they fired on not suffer any long-term deprivation of liberty Majd not because he was a Palestinian, but be- or permanent physical injury. Accordingly, the cause he disobeyed a soldier’s order. IJ concluded that though the detentions could be considered harassment, they did not consti- The IJ found that the search of Majd’s tute persecution. house was not an action directed specifically at Majd because of his race, nationality, religion, Finally, the IJ determined that the detention political affiliation, or membership in a social of Majd’s brother and cousin shed no light on how Majd would likely be treated on returning to Israel, because those detentions were the re- 3 (...continued) sult of circumstances specific to each man.4 whether physical or mental, is intentionally in- Given that none of Majd’s suffering rose to the flicted on a person for such purposes as obtain- level of persecution on account of one of the ing from him or her or a third person informa- five relevant statutory factors, the IJ concluded tion or a confession, punishing him or her for that Majd did not have a well-founded fear of an act he or she or a third person has committed future persecution. or is suspected of having committed, or in- timidating or coercing him or her or a third 4 person, or for any reason based on discrimina- Majd’s brother was detained because the Is- tion of any kind, when such pain or suffering is raelis were investigating reports that there was a inflicted by or at the instigation of or with the weapons manufacturing facility located in the consent or acquiescence of a public official or building in which he lived. Majd’s cousin was de- other person acting in an official capacity. tained and his blacksmith shop destroyed because the Israelis suspected he was using the shop to 8 C.F.R. § 208.18(a)(1) (2000). manufacture weapons.

5 The record fully supports the IJ’s determi- larly well, it cannot be said that roughing an nation regarding Majd’s ineligibility for asylum individual up and questioning him about his and witholding of removal, and Majd points to work, family, and political affiliations amounts no evidence that compels any contrary conclu- to torture. sion. Indeed, every piece of evidence pre- sented by Majd indicates that he and his family Similarly, the Israeli soldiers were certainly have been the victims of circumstance, not the intending to harm Majd when they shot at him special targets of brutality. As another circuit outside the bank. They did not so intend, stated with regard to a region living under however, with a discriminatory purpose or a disorder similar to that existing in the West goal of extracting information or a confession Bank, “[t]he general political upheaval that has from Majd, but rather because they were try- been the unfortunate reality in Gaza is obvi- ing to halt his escape. Thus, Majd’s claim for ously threatening for those who live there, but relief under CAT fails. such conditions in and of themselves do not merit asylum.” Al-Fara, 404 F.3d at 742. Ac- V. cordingly, we have no basis to question the Majd contends that he qualifies as a refugee IJ’s denial of asylum and withholding of re- pursuant to the 1951 Convention Relating to moval. the Status of Refugees (the “1951 Conven- tion”) and attendant United Nations protocol. B. He further argues that the handling of Pales- With regard to Majd’s claim for relief under tinian asylum claims such as his violates the CAT, the IJ found that none of the harm done ABC Settlement Agreement, which arose out to Majd constituted “severe pain or suffering of a class action lawsuit by immigrants from El . . . intentionally inflicted [upon him] for such Salvador and Guatemala challenging the man- purposes as obtaining from him . . . or a third ner in which United States immigration au- person information or a confession, punishing thorities processed asylum claims filed under § him . . . for an act he . . . or a third person has 208(a) of the INA. See Am. Baptist Churches committed or is suspected of having commit- v. Thornburgh, 760 F. Supp. 796, 799 (N.D. ted, or intimidating or coercing him . . . or a Cal. 1991). Because, however, these claims third person, or for any reason based on dis- were not raised before the IJ or the BIA, we crimination of any kind . . . .” 8 C.F.R. § lack jurisdiction to consider them and must 208.18(a)(1) (2000) (emphasis added). dismiss the petition for review in regard to those issues. See Goonsuwan v. Ashcroft, 252 Again, Majd has brought forth no evidence F.3d 383, 388-89 (5th Cir. 2001) (stating that that compels us to reverse the IJ. Most of the “§ 106(c) [of the INA] contains a jurisdictional suffering he described was inflicted without bar where an issue sought to be raised was not any specific intent on the part of the Israeli first presented to the agency”). forces in the West Bank. Additionally, on the two occasions when Majd was detained, the Majd’s petition for review is accordingly harm inflicted by the Israelis, although inten- DISMISSED in part and DENIED in part. tional and for the purpose of extracting infor- mation, did not rise to the level of severe pain or suffering. Majd was held for only a short time, and although he was not treated particu-