Samer Abuasfour v. Eric Holder, Jr.

364 F. App'x 200
CourtCourt of Appeals for the Sixth Circuit
DecidedFebruary 4, 2010
Docket09-3181
StatusUnpublished
Cited by1 cases

This text of 364 F. App'x 200 (Samer Abuasfour v. Eric Holder, Jr.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Samer Abuasfour v. Eric Holder, Jr., 364 F. App'x 200 (6th Cir. 2010).

Opinion

PER CURIAM.

Samer A. Abuasfour petitions for review of a Board of Immigration (“BIA”) order upholding the decision of the Immigration Judge (“IJ”) denying his applications for asylum and withholding of removal under the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1158 and 1231, and relief under Article 3 of the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”), 8 C.F.R. § 208.16(c). We DISMISS his asylum claim on jurisdictional grounds, and, because there is insufficient evidence to compel a reversal of the BIA’s decision, we DENY his petition for review of his INA withholding of removal claim. 1

I. Background

Abuasfour, a Palestinian, entered the United States illegally in December 1999. On October 26, 2004, he formally sought asylum and withholding of removal under the INA and protection under the CAT. In support of his application, Abuasfour testified that in 1998 he began working as a police officer for the Palestinian Authority, an assignment that required him to patrol the border to stop Israelis from entering the West Bank city of Ramallah. Typically, he worked four consecutive days, after which he would take a taxi from Ramallah to his hometown of Sinjil. One day he rode home with several men from his vil *202 lage, Harrod, Ned, and Mohammad, 2 who called him an “informer” and a “snitch.” After Abuasfour disembarked, the men chased him to his uncle’s house, where he hid for several hours. He testified that thereafter he avoided sharing taxis with other men, and that masked individuals threw rocks at his house and threatened his life after the taxi incident. 3

Several months later, he transferred to an emergency call center, where he was provided a gun for his protection. At some point, he again shared a taxi with Harrod, Ned, Mohammad, and a fourth man named Samer. The men threatened to kill him, and Samer punched him, after which Abuasfour jumped out of the moving taxi. The men also disembarked, chased him, and threw rocks at him. After he fired a few shots in the air, the men ceased their pursuit, and he reached home safely. One week after this second incident, he quit his job and left Palestine two to three months later. Abuasfour maintained that he could not return home, because Hamas, the organization he believed was threatening him, would have him killed.

The IJ denied Abuasfour’s applications, and ordered him removed to Israel. The IJ first denied his asylum application as untimely, noting that he failed to demonstrate changed or extraordinary circumstances to qualify for an exception to the statutory bar. Turning to the merits of the asylum and two withholding claims, the IJ held that Abuasfour was not credible. Even assuming, arguendo, that he was credible, the IJ denied his applications because he failed to qualify for asylum or withholding of removal.

The BIA affirmed the IJ’s decision regarding the untimeliness of his asylum claim. It declined to address the court’s adverse credibility finding, concluding that, even taking Abuasfour’s testimony as true, he failed to establish his eligibility for withholding of removal under the INA or the CAT.

II. Analysis

A. Asylum Application

In the absence of a constitutional or legal question, we lack jurisdiction to review the BIA’s rejection of an asylum application as untimely. 8 U.S.C. § 1158(a)(3); Almuhtaseb v. Gonzales, 453 F.3d 743, 748 (6th Cir.2006) (interpreting § 1158(a)(3) to bar review of asylum applications for untimeliness when the appeal seeks review of discretionary or factual questions). The BIA summarily affirmed the IJ’s finding that Abuasfour was ineligible to apply for asylum because he failed to timely file his asylum application, and because he failed to demonstrate changed or extraordinary circumstances to qualify for an exception to the filing deadline. Abuasfour objects to the IJ’s application of the changed circumstances provision, which is “a predominantly factual determination.” Almuhtaseb, 453 F.3d at 748. Since his only challenge is a factual one, we dismiss his asylum claim for lack of appellate jurisdiction.

B. Withholding of Removal

To be eligible for withholding of removal under the INA, Abuasfour must demonstrate a “clear probability,” that is, that “ ‘it is more likely than not,’ ” that he would be subject to persecution on the basis of one of five statutory grounds— race, religion, nationality, membership in a particular social group, or political opinion. *203 Liti v. Gonzales, 411 F.3d 631, 640-41 (6th Cir.2005) (quoting 8 C.F.R. § 1208.16(b)(2)).

We review the BIA’s determination against withholding of removal pursuant to either the INA or the CAT under the deferential substantial evidence standard, and we will reverse only if it is “manifestly contrary to law.” 8 U.S.C. § 1252(b)(4)(D). In other words, “we must find that the evidence ‘not only supports a contrary conclusion, but indeed compels it.’ ” Almuhtaseb, 453 F.3d at 749 (quoting Yu v. Ashcroft, 364 F.3d 700, 702-03 (6th Cir.2004)).

Under the INA, when an applicant “is determined to have suffered past persecution in the proposed country of removal on account of [a protected ground],” a rebut-table presumption of future persecution arises. 8 C.F.R. § 208.16(b)(1)(i). Past persecution consists of “more than a few isolated incidents of verbal harassment or intimidation, unaccompanied by any physical punishment, infliction of harm, or significant deprivation of liberty.” Mikhailevitch v. INS, 146 F.3d 384, 390 (6th Cir.1998) (discussing past persecution in the context of an asylum claim). Moreover, while offensive, even one beating “does not [necessarily] compel a finding of persecution.” Gjokic v. Ashcroft, 104 Fed.Appx. 501, 505 (6th Cir.2004) (emphasis in original) (citing Dandan v. Ashcroft,

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364 F. App'x 200, Counsel Stack Legal Research, https://law.counselstack.com/opinion/samer-abuasfour-v-eric-holder-jr-ca6-2010.