                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-12-2008

Guirgis v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1483




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                                                     NOT PRECEDENTIAL

              UNITED STATES COURT OF APPEALS
                   FOR THE THIRD CIRCUIT
                        ____________

                            No. 07-1483
                           ____________

                     AYOUB AZIZ GUIRGIS,

                                 Petitioner,


                                  v.

        ATTORNEY GENERAL OF THE UNITED STATES,

                                  Respondent.

                           ____________

                   On Petition for Review from an
              Order of the Board of Immigration Appeals
                      (Board No. A95-829-976)
            Immigration Judge: Honorable Eugene Pugliese
                            ____________

             Submitted Under Third Circuit LAR 34.1(a)
                           May 6, 2008

Before: SCIRICA, Chief Judge, BARRY and HARDIMAN, Circuit Judges.

                       (Filed: May 12, 2008)

                           ____________

                    OPINION OF THE COURT
                         ____________
HARDIMAN, Circuit Judge.

       Petitioner Ayoub Aziz Guirgis petitions for review of the Board of Immigration

Appeals’ (BIA) denial of his application for withholding of removal and protection under

the Convention Against Torture (CAT).1 We will deny the petition.

                                             I.

       Guirgis is a native and citizen of Egypt and a practicing Coptic Orthodox

Christian. He was active in his church throughout his youth and eventually became a

deacon. Until the age of nineteen, Guirgis encountered no resistance to his religious

beliefs or practices.

       On May 12, 1990, while Guirgis was marching in a funeral procession from his

church in Alexandria, Egyptian police harassed and beat the participants. Guirgis

testified that he was beaten, shoved into a police car, and taken to the station where he

was beaten further, and lost consciousness. Guirgis was later informed that his father

retrieved him from the police station and took him to a medical clinic where he regained

consciousness. After this incident, Guirgis moved to his family’s summer home in El

Agamy, Egypt.




       1
         Guirgis also argues that the Immigration Judge (IJ) “abused his discretion when
determining what evidence was admissible.” Because Guirgis failed to raise this claim
before the BIA, it is waived. See Joseph v. Att’y Gen., 465 F.3d 123, 126 (3d Cir. 2006).
In any event, the claim lacks merit. See Singh v. Gonzales, 432 F.3d 533, 541 (3d Cir.
2006).

                                             2
        In El Agamy, Guirgis had an altercation with his neighbor, an Islamic extremist

named Isham. On March 15, 1991, as Guirgis was returning from his father’s store,

Isham insulted Guirgis’s religion and told him to stop playing his religious music and to

get rid of his dogs, which were “filthy” and “dirty” according to Isham’s religion. Guirgis

countered, “according to Islam, when you die you’re going to have 40 women that you

will sleep with . . . what happens when your mother dies, is she going to have 40 men to

sleep with?” This comment so incensed Isham that he stabbed Guirgis in the side.

Guirgis was taken to a clinic, but his injury resulted in permanent nerve damage.

        On November 11, 1992, Guirgis left Egypt for Austria, where he remained for four

years. While in Austria, an unidentified person broke into Guirgis’s apartment and stole

his diary. The diary contained Guirgis’s thoughts on Islam, and Guirgis feared, based on

a warning from his father, that “there were people looking for [him]” who “were . . .

gonna beheaded [sic] [him] and hang [his] head at the door.”

        Afraid to remain in Austria or return to Egypt, Guirgis entered the United States on

September 24, 1996. His parents and siblings remain in Egypt, where, according to

Guirgis, they are “doing lots of great things.”

        On April 8, 2003, Guirgis was served with a Notice to Appear before an

Immigration Judge (IJ). Guirgis requested withholding of removal and CAT protection.

The IJ denied his application on January 3, 2006, and the BIA affirmed on January 19,

2007.



                                              3
                                              II.

       We have jurisdiction pursuant to 8 U.S.C. § 1252(a). Because the BIA adopted the

IJ’s decision and expanded upon it, we review both decisions. Chen v. Ashcroft, 376 F.3d

215, 222 (3d Cir. 2004). We employ the familiar substantial evidence standard,

overturning the agency’s decision only if record evidence compels us to do so. 8 U.S.C.

§ 1252(b)(4); INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992); Kibinda v. Att’y Gen., 477

F.3d 113, 119 (3d Cir. 2007).

                                              A.

       An alien is eligible for withholding of removal if he can show that it is “more

likely than not” that he will be persecuted on account of his “race, religion, nationality,

membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A);

8 C.F.R. § 1208.16(b). Persecution includes “threats to life, confinement, torture, and

economic restrictions so severe that they constitute a threat to life or freedom,” but not

“all treatment that our society regards as unfair, unjust, or even unlawful or

unconstitutional.” Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993). Furthermore, the

persecution must come at the hands of the government or forces the government is unable

or unwilling to control. Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir. 2005); Gao v.

Ashcroft, 299 F.3d 266 , 272 (3d Cir. 2002). A rebuttable presumption of future

persecution arises if the alien successfully demonstrates past persecution. 8 C.F.R.

§ 208.16(b)(1)(i).



                                              4
       None of the incidents described by Guirgis qualify him for withholding of removal

under the applicable legal standard. The alleged attack by Egyptian police is insufficient

because no substantial evidence compels us to conclude that the attack was on account of

Guirgis’s religion.2 As the BIA observed, Guirgis could not explain with any specificity

why he was arrested,3 and the police made no reference to his religion.

       His alleged attack by Isham is similarly insufficient. See Amanfi v. Ashcroft, 328

F.3d 719, 727 (3d Cir. 2003) (distinguishing persecution “on account of religion” from

“retaliation in response to a personal dispute”); see also Abdille v. Ashcroft, 242 F.3d 477,

494 (3d Cir. 2001) (criminal activity does not rise to the level of persecution). There is no

evidence that Isham was acting at the behest of the Egyptian government or represented a

force the government was unable or unwilling to control. Lie, 396 F.3d at 537; Gao, 299

F.3d at 272. Accordingly, we find that Guirgis suffered no past persecution.

       Guirgis’s additional testimony, detailing incidents in which individuals stole his

diary and confronted his mother and brother about his whereabouts in 1996, does not

represent substantial evidence compelling us to find a clear probability of future

persecution. 8 C.F.R. § 1208.16(b)(2). Guirgis failed to identify these individuals or

       2
         It is unclear whether the attackers were Egyptian police. In an affidavit
submitted by Guirgis’s mother, she said Guirgis told her “he was attacked by Islamic
extremists.”
       3
          Guirgis did speculate, “[m]aybe, because, they were just picking up people that .
. . were walking in the procession . . . [m]aybe, because, I’m Christian.” Mere
uncorroborated speculation is not substantial evidence compelling us to reverse the BIA,
however. See Diallo v. INS, 232 F.3d 279, 285 (2d Cir. 2000).

                                             5
their motives, and we cannot assume that they were targeting Guirgis because of his

religion or acting with the acquiescence of the Egyptian government. Id. Moreover, the

record contains evidence that contradicts Guirgis’s fear of future persecution insofar as

his parents and siblings remain in Egypt where they are “doing lots of great things,” Lie,

396 F.3d at 537, and recent reports show increasing religious tolerance in Egypt.

       Because substantial evidence does not compel us to conclude that it is more likely

than not that Guirgis will be persecuted upon his return to Egypt, we will not disturb the

BIA’s denial of his application for withholding of removal.

                                             B.

       Guirgis also requests withholding under the CAT. We find that the incidents

discussed above do not compel the conclusion that Guirgis suffered, or is likely to suffer,

torture as that term is defined in the CAT implementing regulations. 8 C.F.R.

§ 1208.18(a). For example, Guirgis submitted no substantial evidence that the Egyptian

police beat and arrested him during the funeral procession to obtain information, punish,

intimidate, or discriminate against him. § 1208.18(a)(1). Similarly, no substantial

evidence suggests that Isham stabbed Gurigis “at the instigation of or with the consent or

acquiescence of” the Egyptian government. Id. Finally, whatever harassment Guirgis

and his family suffered after Guirgis left Egypt, it did not amount to “an extreme form of

cruel and inhuman treatment.” 1208.18(a)(2). Accordingly, we will not disturb the BIA’s

denial of Guirgis’s CAT application.



                                             6
                                            III.

       Having considered all of Guirgis’s arguments and finding that no further

discussion is necessary, we will deny Guirgis’s petition for review.




                                             7
