                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-14-2009

Jamil Subhi Al Hashw v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1952




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                                                             NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     ___________

                                     No. 08-1952
                                     ___________

                            JAMIL SUBHI AL HACHWI,
                                              Petitioner

                                           v.

                ATTORNEY GENERAL OF THE UNITED STATES


                     ____________________________________

                      On Petition for Review of an Order of the
                           Board of Immigration Appeals
                            (Agency No. A77-704-792)
                    Immigration Judge: Honorable Robert Owens
                     ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   May 13, 2009

              Before: BARRY, SMITH and HARDIMAN, Circuit Judges

                            (Opinion filed: May 14, 2009)
                                   ___________

                                      OPINION
                                     ___________

PER CURIAM

      Petitioner Jamil Subhi Al Hachwi petitions for review of an order of the Board of

Immigration Appeals (“BIA”) dismissing his appeal from the order of an Immigration
Judge (“IJ”) and denying his motion for remand. For the following reasons, we will deny

the petition for review.

                                              I

       Petitioner is a native and citizen of Syria. He was admitted to the United States as

a visitor on or about July 12, 1990, at or near New York, New York. Hachwi was

authorized to remain in the U.S. until February 11, 1991, and he remained beyond that

date. In May 2003, Hachwi received a notice to appear, which charged him as removable

under INA § 237(a)(1)(B) because he remained in the U.S. longer than permitted.

       Hachwi appeared before the IJ and, through prior counsel, conceded the charge

and removability. Hachwi filed an application for asylum and withholding of removal, or,

in the alternative, voluntary departure.1 In support of his claim, Hachwi testified to seven

incidents occurring between 1972 and 1988 in which Hachwi was mistreated or attacked

by Syrian Muslims, ostensibly because of his affiliation with the Greek Orthodox Church.

He also attempted to introduce three letters – two from his family members in Syria

detailing mistreatment they had experienced based on their Christian faith, and one from

his local church attesting to his continued practice of Christianity. The two family letters

were timely submitted to the IJ and served on the Government, but the church letter was




   1
    After reviewing the transcript of the hearing before the IJ, it remains unclear whether
Hachwi sought relief under the Convention Against Torture. In any event, the IJ
determined that such relief was not available, and Hachwi has not challenged that
determination.

                                              2
produced after the ten-day deadline. However, because of an apparent miscommunication

between the IJ and counsel, the timely letters were not admitted into evidence.

       Following the hearing, the IJ denied Hachwi’s application but granted voluntary

departure. The IJ reasoned that although Hachwi’s testimony was credible, it was too

general to support an asylum claim absent corroboration. The IJ also noted that Hachwi’s

claim was weakened by the fact that his mother, uncle, wife, and children have all

remained in Syria for sixteen years and practice their religion without suffering

persecution.

       Hachwi appealed to the BIA and sought remand. In support of his claim, Hachwi

submitted two articles describing the mistreatment in Syria of Christian refugees from

Iraq. In March 2008, the BIA affirmed the IJ’s decision, dismissed the appeal, and denied

the motion for remand. With regard to the articles, the BIA concluded that they were

cumulative to the testimony Hachwi presented to the IJ. As to the motion to remand, the

Board reasoned that even if the IJ should have considered the letters from Hachwi’s

relatives, the letters did not establish that Hachwi had an objectively reasonable fear of

persecution.

                                             II

       We have jurisdiction under 8 U.S.C. § 1252(a)(1) to review the BIA’s dismissal of

Hachwi’s appeal and denial of his motion for remand. Because the BIA issued its own

opinion, we review the BIA’s decision rather than that of the IJ. See Rranci v. Att’y



                                              3
Gen., 540 F.3d 165, 171 (3d Cir. 2008). We review the BIA’s ruling for abuse of

discretion, and will disturb it “only if it was ‘arbitrary, irrational, or contrary to law.’” Id.

(citation omitted). In applying that standard, we review legal conclusions de novo and

review factual determinations for substantial evidence. See id.

       Petitioner’s counseled brief, though not a model of clarity, can be read as

presenting four claims: (1) the BIA erred in determining that the IJ’s failure to consider

the letters from Hachwi’s relatives was, at most, harmless error; (2) the BIA erred in

affirming the decision of the IJ because Hachwi’s credible testimony was sufficient to

warrant asylum even without corroboration; (3) the BIA erred in affirming the IJ’s past

persecution determination because the evidence on record, read in light of the erroneously

omitted letters from Hachwi’s relatives, demonstrates that he suffered past persecution;

and (4) the BIA erred in failing to remand the case. We will address each of these in turn.

       The BIA correctly determined that the exclusion of Hachwi’s family letters was, at

most, harmless error. To demonstrate eligibility for asylum based on a fear of future

persecution, an applicant must demonstrate that he “has a genuine fear, and that a

reasonable person in [his] circumstances would fear persecution if returned to [his] native

country.” Abdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d Cir. 2003). To satisfy the

objective prong, a petitioner must show that he would be individually singled out for

persecution or demonstrate a pattern or practice of persecution of similarly situated

individuals. Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir. 2005). Persecution includes



                                                4
“threats to life, confinement, torture, and economic restrictions so severe that they

constitute a threat to life or freedom.” Id. (internal quotations omitted). Abusive

treatment and harassment do not establish persecution per se. See Jarbough v. Att’y Gen.,

483 F.3d 184, 191-92 (3d Cir. 2007). Further, for acts to constitute persecution, they

must be “committed by the government or forces the government is either unable or

unwilling to control.” Myat Thu v. Att’y Gen., 510 F.3d 405, 413 (3d Cir. 2007) (internal

citations and quotation marks omitted). The letters from Hachwi’s relatives indicate that,

on a number of occasions over the years, they have been subject to harassment and

discrimination, and have been physically attacked and spat upon. While extremely

disturbing, these incidents do not rise to the level of severity described in Lie. Nor has

Hachwi shown that the conduct was committed by government officials or those the

government is unwilling or unable to control. Indeed, one incident described in the letters

suggests that police responded to and resolved the matter. Considering the letters and the

testimony on record, Hachwi has demonstrated neither that he would be singled out based

on his religion nor a pattern or practice of persecution against similarly situated

individuals.

       Hachwi’s second argument – that his credible testimony was sufficient to warrant

asylum even without corroboration – also fails. “An alien’s testimony, if credible, may be

sufficient to sustain the burden of proof without corroboration.” Kamara v. Att’y Gen.,

420 F.3d 202, 213 (3d Cir. 2005) (emphasis added). However, a failure to corroborate



                                              5
may undermine a claim if the IJ and/or BIA has: (1) identified the facts for which “it is

reasonable to expect corroboration;” (2) inquired as to whether the applicant has provided

corroborating information; and (3) if not, analyzed “whether the applicant has adequately

explained his or her failure to do so.” Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir.

2001). The IJ reasoned, and the BIA agreed, that Hachwi alleged generalized

discrimination against the entire Christian population in Syria, rather than a personal

claim of severe discrimination and, absent corroborative evidence that Syrian Christians

endured such pervasive discrimination, the claim was too general to support an asylum

claim. Hachwi’s argument that his testimony was deemed detailed and credible misses

the mark. The question at issue is not whether his testimony lacked specificity as to the

incidents in which he was involved, but whether his claim of nationwide discrimination

against Christian Syrians was so general that further evidence of widespread conduct was

reasonably required. We agree with the BIA that requiring such evidence was reasonable.

       Hachwi’s third claim is also meritless. He argues that the record before the IJ,

when read in light of the letters from Hachwi’s relatives, demonstrates that he suffered

past persecution. This is simply inaccurate. The IJ reasoned that the incidents Hachwi

described do not rise to the level of persecution. We agree. See Jarbough, 483 F.3d at

191-92. Nothing in the letters sheds any additional light on Hachwi’s past encounters, let

alone demonstrates that he suffered persecution. They merely describe similar incidents

suffered by his family.



                                             6
       Finally, we conclude that the BIA appropriately denied Hachwi’s motion for

remand. Motions for remand, which are treated as motions to reopen proceedings, are

disfavored forms of relief, and the BIA receives broad deference to its decision to deny

such a motion. See Korytnyuk v. Ashcroft, 369 F.3d 272, 293 & n.27 (3d Cir. 2005). We

will disturb the Board’s decision to deny a motion to remand only if it is “arbitrary,

irrational, or contrary to law.” Id. at 293 (internal quotation omitted). A litigant must

provide evidence sufficient to demonstrate a reasonable likelihood of prevailing on

remand. See Sevoain v. Ashcroft, 290 F.3d 166, 175 (3d Cir. 2002). However, mere

cumulative evidence demonstrating that conditions asserted in the original application

persist is insufficient. See Zhao v. Gonzales, 440 F.3d 405, 407 (7th Cir. 2005). Here,

Hachwi presented two recent articles detailing the continued problems faced by Christians

in Syria. However, these articles do no more than demonstrate the persistence of the

conditions considered by the IJ and BIA to be below the threshold for persecution. The

articles fail to show an individualized danger of persecution should Hachwi return to

Syria. Hachwi has not shown that he would likely prevail on remand, so we agree with

the BIA’s denial of his motion.

       Accordingly, we deny the petition for review.




                                              7
