Yosef Khatib v. Jefferson Sessions

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 13, 2018
• Docket: 15-73952
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 13 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

YOSEF KHATIB, No. 15-73952

Petitioner, Agency No. A098-442-381

v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

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

Submitted April 11, 2018** San Francisco, California

Before: McKEOWN and WARDLAW, Circuit Judges, and KATZMANN,*** International Trade Judge.

Yosef Khatib, a native and citizen of Israel, petitions for review of the Board

of Immigration Appeals’ (“BIA”) order denying withholding of removal. Khatib

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Gary S. Katzmann, United States International Trade Judge for the U.S. Court of International Trade, sitting by designation. does not challenge the Immigration Judge’s (“IJ”) denial of his asylum and

Convention Against Torture applications. We have jurisdiction under 8 U.S.C.

§ 1252, and we deny the petition.

Khatib asserts a violation of his due process rights, and seeks review of the

BIA’s finding about his risk of persecution upon return to Israel. We review de

novo Khatib’s constitutional claim. Khan v. Holder, 584 F.3d 773, 776 (9th Cir.

2009). Factual findings made by the IJ and the BIA, however, are reviewed for

substantial evidence. Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir. 2009).

The IJ did not violate Khatib’s due process rights when she denied Khatib’s

request to re-examine his expert witness. We reverse such IJ decisions on due

process grounds only when “(1) the proceeding was so fundamentally unfair that

the alien was prevented from reasonably presenting his case, and (2) the alien

demonstrates prejudice, which means that the outcome of the proceeding may have

been affected by the alleged violation.” Ibarra-Flores v. Gonzales, 439 F.3d 614,

620–21 (9th Cir. 2006) (internal quotations and citations omitted). Neither

condition is met here.

Khatib received a fair opportunity to present his case to the IJ. Not only did

Khatib present written statements and oral testimony on his own behalf, the IJ

admitted Khatib’s expert witness’s written analysis and allowed the expert to

testify and be cross-examined. Khatib did not wish for his expert to present new

2 evidence or testimony, but simply wanted to reiterate his view that although

women are more likely to be the victim of honor killings, Khatib was absolutely

likely to be subject to an honor killing as well. The IJ responded that she accepted

“[the expert’s] testimony as he indicated last time” and that she was “not

challenging that in any way.” Thus, there was no “misunderstanding” or

“mischaracterization,” and the IJ afforded Khatib a fair opportunity to present his

case. See Almaghzar v. Gonzales, 457 F.3d 915, 921 (9th Cir. 2006).

Nor has Khatib demonstrated prejudice. The record does not suggest that

the IJ’s determination would have differed had the expert testified again, and there

is no evidence that the expert would have testified differently. Indeed, Khatib’s

counsel stated that he only wished to re-examine the expert in order to

“reemphasize” a few points and to “improve the Court’s understanding.” Without

any suggestion that the expert would have presented additional relevant evidence,

Khatib failed to show that he was prejudiced by the IJ’s denial of his motion for

additional expert testimony.

Substantial evidence supports the BIA’s conclusion that Khatib did not

qualify for withholding of removal. To qualify for withholding of removal, an

applicant must show a “clear probability” of persecution on account of a statutorily

enumerated ground, such as religion. Garcia v. Holder, 749 F.3d 785, 791 (9th

Cir. 2014). The “clear probability” standard is a high one, and requires that an

3 alien establish it is “more likely than not” he will be subject to persecution upon

deportation. INS v. Cardoza-Fonseca, 480 U.S. 421, 430 (1987).

The BIA identified substantial evidence to support its decision that Khatib

had not met that high standard. The BIA properly considered Khatib’s willingness

to return to Israel in 2001 after he had already been cohabiting with his non-Druze

partner. Loho v. Mukasey, 531 F.3d 1016, 1017–18 (9th Cir. 2008) (“[A]n alien’s

history of willingly returning to his or her home country militates against a finding

of past persecution or a well-founded fear of future persecution.”). The BIA

highlighted the IJ’s finding that Khatib was not the victim of persecution during

this 2001 return to Israel because he did not suffer any serious injuries. Gu v.

Gonzales, 454 F.3d 1014, 1020 (9th Cir. 2006) (stating that a single instance of

detention and beating, which results in non-serious injuries, does not constitute

persecution). The BIA also pointed out the low incidence of honor killings in

Israel; that a majority of those honor killings are perpetrated against women; and

that Khatib’s own expert stated that “men can get away with” marrying non-Druze

spouses.

PETITION DENIED.