                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-24-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4328




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 04-4328


                              ADEL YACOUB MUADDI,
                                            Petitioner

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES


                   PETITION FOR REVIEW OF A DECISION OF
                    THE BOARD OF IMMIGRATION APPEALS
                            Agency No. A95-841-025


                      Submitted Under Third Circuit LAR 34.1(a)
                                 November 17, 2005


       Before: BARRY and AMBRO, Circuit Judges, and POLLAK,* District Judge


                           (Opinion Filed: January 24, 2006)


                                       OPINION




   *
   The Honorable Louis H. Pollak, District Judge, United States District Court for the
Eastern District of Pennsylvania, sitting by designation.
BARRY, Circuit Judge

       Adel Muaddi petitions for review of a final order of removal of the Board of

Immigration Appeals (“BIA”). We will deny the petition.

                                     I. Background

A. Facts

       Muaddi is a Christian native of the Israeli-occupied West Bank.1 He fled to the

United States on September 8, 2001, allegedly to escape politically and religiously

motivated violence threatened against him by members of the Palestinian terrorist

organization, Hamas. 2 In May 2001, Muaddi had been working in his auto repair shop in

the West Bank city of Ramallah when he allegedly became engaged in a heated political

discussion about Israeli-Palestinian violence with a long-time customer named Massar

Hmaid. Muaddi argued that “it was not right to kill innocent people,” and Massar Hmaid

replied that Christians like Muaddi had “aligned [them]selves with the Jews against

Muslims and that all Jews should be killed.” (App. 65.) Muaddi then forced Massar



   1
    Formerly a part of Jordan, the West Bank was occupied by Israel after the 1967 War.
Today, pursuant to negotiations with Israel, the elected Palestinian Authority exercises
some jurisdiction in parts of the West Bank, and is responsible for a range of civil
functions, including keeping order. See U.S. Department of State Homepage, Bureau of
Consular Affairs, Israel, the West Bank and Gaza,athttp://travel.state.gov/travel/
cis_pa_tw/cis/cis_1064.html (last visited Nov. 12, 2005).
   2
    Hamas, an Arabic acronym for the “Islamic Resistance Movement,” is on the U.S.
State Department’s list of Foreign Terrorist Organizations. See U.S. Department of State
Homepage, Foreign Terrorist Organizations, at http://www.state.gov/s/ct/rls/fs/37191.htm
(last visited Nov. 12, 2005).

                                            2
Hmaid to leave his shop, and upon leaving Massar Hmaid threatened, “You will pay for

your conduct. You will pay for kicking me out.” (App. 65-66.) Muaddi, who owned his

shop since 1996, never had any difficulty with a customer prior to this confrontation.

       Approximately two weeks later, Massar Hmaid’s cousin Khalid Hmaid appeared at

the shop and claimed that Massar Hmaid “had been killed by the Israelis.” (App. 66.)

Khalid Hmaid threatened Muaddi, and accused him of involvement in the killing. On

June 15, 2001, four members of Hamas allegedly ransacked Muaddi’s shop, and the next

day searched Muaddi’s father’s home looking for Muaddi. Muaddi was not present at

either location, but claims that his assistant witnessed the search of his shop and that his

brother’s family witnessed the search of his father’s home. The four members of Hamas

were purportedly looking for Muaddi because Massar Hmaid was also a member of

Hamas, something Muaddi claims he only learned upon seeing Massar Hmaid’s official

Hamas funeral on television.

       Muaddi testified that, fearful for his life, he left the West Bank for neighboring

Jordan on August 23, 2001, intending to fly to the United States and live with relatives in

New Jersey. He arrived in the United States on September 8, 2001 on a passport issued

by the Palestinian Authority with a United States Visa he had obtained in Jerusalem on

May 8, 2001. Muaddi believed, so he contends, that if forced to go back to the West

Bank, he “would be killed by Hamas.” (App. 75.)




                                              3
B. Procedural History

       1. Removal Hearing

       Muaddi applied for asylum with the Immigration and Naturalization Service

(“INS”) on August 29, 2002. On January 30, 2003, INS issued him a Notice to Appear

before an immigration judge (“IJ”) because the period of his authorized stay had expired

on March 7, 2002. At his removal hearing on May 22, 2003, Muaddi admitted

removability, but requested relief from deportation by applying for (1) asylum, (2)

withholding of removal, and (3) relief under the Convention Against Torture (“CAT”).

       In addition to Muaddi’s testimony before the IJ, detailed above, his uncle Sam

Muaddi, a United States citizen, testified that his nephew is indeed a Christian and owns

an auto repair shop in the West Bank. Additionally, Sam Muaddi stated that he is often in

contact with his family in the West Bank, including Muaddi’s father, who told him that

“the threat to [Muaddi’s] life still exists over there.” (App. 89.)

       To support his claims, Muaddi submitted his Palestinian Authority passport, a

letter from a family friend attesting to his good character, an excerpt from an immigration

publication, and the U.S. State Department’s 2001 Country Report on Human Rights

Practices for Israel and the occupied territories (“Country Report”). The Country Report

indicates that in 2001, 22 Palestinians living in the occupied territories were killed by

other Palestinians for allegedly collaborating with Israel, and that the Palestinian

Authority failed to make any arrests in those cases.


                                              4
       The IJ rejected Muaddi’s applications for asylum, withholding of removal and

relief under CAT in an oral decision dated May 22, 2003. First, the IJ determined that

Muaddi’s testimony indicated that he faced persecution for expressing a political opinion

by a “group the Government of the occupied territories and Israel as well has been unable

to control.” (App. 14.) Nevertheless, the IJ declined to grant Muaddi asylum because he

found his testimony incredible, and because of a lack of evidence corroborating the

existence of Massar Hmaid and the search and ransacking of Muaddi’s shop and his

father’s home. Second, the IJ ruled that because Muaddi failed to meet the standard for

asylum, he also failed to meet the higher standard for withholding of removal. Finally,

the IJ rejected Muaddi’s application for relief under the CAT because even if Muaddi had

a legitimate fear of torture upon his return to the West Bank, it “is at the hands of an

individual or a group and that’s not the Government.” (App. 18.)

       2. Board of Immigration Appeals Ruling

       In an opinion dated October 15, 2004, the BIA dismissed Muaddi’s appeal. The

BIA declined to evaluate Muaddi’s credibility, instead rejecting his claims for lack of

corroboration. It stated that Muaddi offered “no explanation for the absence of

corroborative evidence” of Massar Hmaid’s death and televised funeral, or the ransacking

of his shop and his father’s home. In light of Muaddi’s “frequent contact with his family”

in the West Bank, the BIA explained, corroborative documentary evidence should have

been reasonably available. (App. 3) Thus, the BIA concluded, Muaddi “did not


                                              5
demonstrate a well-founded fear of future persecution” necessary for asylum, and failed

to meet “the higher burdens of proof for withholding of removal and protection pursuant

to the [CAT].” (App. 3)

       Muaddi filed a timely Petition for Review under 8 U.S.C. § 1252(b)(1). We

granted his Motion for a Stay of Removal pending the resolution of his petition.

                        II. Jurisdiction and Standard of Review

       We exercise jurisdiction over the final order of removal pursuant to § 242 of the

Immigration and Nationality Act (“INA”), 8 U.S.C. § 1252(a). Where, as here, the BIA

issues its own opinion rather than adopting that of the IJ, we review only the BIA’s

decision. Abdulai v. Ashcroft, 239 F.3d 542, 548-49 (3d Cir. 2001). The BIA’s findings

of fact will stand so long as they are supported by substantial evidence, which is “more

than a mere scintilla and is such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Abdille v. Ashcroft, 242 F.3d 477, 483 (3d Cir. 2001)

(quoting Senathirajah v. INS, 157 F.3d 210, 216 (3d Cir. 1998)). The BIA’s findings can

only be overturned if “the evidence not only supports a contrary conclusion, but compels

it.” Abdille, 242 F.3d at 483-84.

                                     III. Discussion

A. The BIA Correctly Denied Muaddi’s Asylum Application

       An alien who is removable from the United States may avoid deportation by

qualifying for a grant of asylum. Abdulai, 239 F.3d at 545. The Attorney General has


                                             6
discretion to grant asylum to an alien determined to be a “refugee”: a person unable or

unwilling to return to his or her country “because of persecution or a well-founded fear of

persecution on account of race, religion, nationality, membership in a particular social

group or political opinion . . . .” Abdille, 242 F.3d at 482 (quoting 8 U.S.C. §§

1158(b)(1)(A) and 1101(a)(42)(A)). An asylum applicant bears the burden of proof, id.

(citing 8 C.F.R. § 208.13(a)), and can demonstrate a “well-founded fear of persecution by

showing that she has a genuine fear, and that a reasonable person in her circumstances

would fear persecution if returned to her native country.” Gao v. Ashcroft, 299 F.3d 266,

272 (3d Cir. 2002) (citing Elnager v. INS, 930 F.2d 784, 786 (9th Cir. 1991)).

       The applicant’s burden of proof may be satisfied solely by his or her

uncorroborated testimony; however, “otherwise-credible applicants may be required,

under certain circumstances, to provide corroborating evidence in order to meet their

burden of proof.” Mulanga v. Ashcroft, 349 F.3d 123, 133-34 (3d Cir. 2003) (citing

Abdulai, 239 F.3d at 554). To determine whether corroboration is required, a court must

(1) identify facts for which “it is reasonable to expect corroboration,” (2) determine

whether the applicant has presented corroborating evidence, and if not, (3) determine

whether the “applicant has adequately explained why s/he was unable to do so.” Abdulai,

239 F.3d at 554 (citing In re S-M-J-, 21 I. & N. Dec. 722 (BIA 1997)). If the applicant

fails to give an adequate explanation, he has failed to meet his burden of proof. Mulanga,

349 F.3d at 134 n.9 (citing In re S-M-J-, 21 I. & N. Dec. 722, 725-26).


                                             7
       Here, the BIA’s reasoning is slim, but it meets the minimum requirements outlined

in Abdulai. First, the BIA identified three facts that it would have been reasonable for

Muaddi to have corroborated: (1) the existence of Massar Hmaid, (2) the search of

Muaddi’s home, and (3) the ransacking of Muaddi’s shop. Second, the BIA

acknowledged the IJ’s conclusion that Muaddi’s “testimony alone [was] insufficient” to

meet his burden of proof for asylum. (App. 3). Third, the BIA rejected Muaddi’s

argument that he was unable to obtain evidence of Massar Hmaid’s Hamas funeral

“because the television station was bombed,” and explained that Muaddi’s failure to

produce corroborating evidence was inexcusable because “[t]he respondent’s frequent

contact with his family indicates that documentary evidence should be readily available.”

(App. 3.)

       The BIA’s conclusions are entitled to great deference. The REAL ID Act of 2005,

§ 101(e), states that “no court shall reverse a determination made by a finder of fact with

respect to the availability of corroborating evidence . . . unless the court finds . . . that a

reasonable finder of fact is compelled to conclude that such corroborating evidence is

unavailable.” 8 U.S.C. § 1252(b)(4). A reasonable finder of fact would not be so

compelled here. The existence of Massar Hmaid and the search and ransacking of

Muaddi’s home and shop are central to his alleged fear of future persecution if he were to

return to the West Bank. Despite his testimony that Massar Hmaid’s funeral was

televised, and despite the existence of dozens of Palestinian media outlets, Muaddi can


                                                8
only point to the alleged destruction of one television station as the justification for his

inability to provide proof that Massar Hmaid even existed. Even assuming that this

justification is adequate, Muaddi presents no reason, compelling or otherwise, why he

could not have obtained an affidavit from either his brother or co-worker corroborating

his account of the alleged home and/or shop break-ins by Hamas. Muaddi’s father and

three brothers still live in Ramallah, and his uncle testified that he speaks with Muaddi’s

father in Ramallah “all the time . . . [a]t least once a month.” (App. 88) Generally, it is

reasonable to expect corroboration of “facts which are central to [an applicant’s] claim

and easily subject to verification,” In re S-M-J-, 21 I. & N. Dec. 722, 725, including

“letters from family members remaining in the applicant’s home country.” Abdulai, 239

F.3d at 554.

       Muaddi, citing Mulanga, 349 F.3d at 136, argues that the BIA erred in not

informing him during the master calendar hearing that he would be required to

corroborate certain parts of his testimony. In Mulanga, we found that the IJ “erred by not

alerting [the applicant] during the removal proceedings that the absence of corroboration

of” certain facts central to the applicant’s testimony “would lead to the denial of her

application, thereby giving her an opportunity to explain her inability to corroborate.”

349 F.3d at 136.

       Although the IJ did not mention corroborating evidence during the master calendar

hearing, he did request evidence corroborating the existence and/or death of Massar


                                               9
Hmaid during the removal hearing, and gave Muaddi an opportunity to explain why he

lacked such evidence. And, while the IJ never requested evidence corroborating the

ransacking of Muaddi’s home and auto shop, any error in this regard was not significant

because the absence of corroborating evidence as to Massar Hmaid’s very existence in

and of itself defeats his asylum claim. Without the confrontation in the shop where

Muaddi allegedly expressed his political view that innocent people should not be killed in

the Palestinian-Israeli conflict, the later ransacking of his home and shop cannot have

caused Muaddi the “well-founded fear of persecution on account of . . . political opinion”

required for a successful asylum claim. See 8 U.S.C. § 1101(a)(42)(A) (emphasis added).

       Parenthetically, there is little or no evidence that Muaddi faces future persecution

on account of his Christian religious beliefs. Muaddi testified that it was well known that

he was Christian, yet from 1996 through 2001 he was not persecuted because of his

religious beliefs. Also, many of Muaddi’s family members, who are also Christian, still

reside in Ramallah and have not been persecuted because of their religious beliefs. If

Muaddi faces persecution at all, and he has not shown that he does, it is on account of

Massar Hmaid’s and Hamas’ belief that he supported and collaborated with Israelis—an

imputed political belief.3

       Finally, Muaddi argues that in order to be based on substantial evidence, the BIA



   3
   It is irrelevant whether Muaddi actually supported or collaborated with the Israelis
because “an asylum claim may be based on imputed political opinion.” Johnson v.
Gonzales, 416 F.3d 205, 211 (3d Cir. 2005).

                                             10
was required to consider the Country Report he submitted. For this proposition, he points

to our decision in Berishaj v. Ashcroft, 378 F.3d 314, 325 (3d Cir. 2004). In Berishaj, we

found that because “[a]dverse credibility determinations based on speculation or

conjecture, rather than on evidence in the record, are reversible,” it was error for the IJ to

rule that the applicant’s testimony regarding his experience as an ethnic Albanian in the

Serbian Army was incredible without addressing an article in the administrative record

recounting another soldier’s similar experience. Id. at 323, 325. Berishaj is inapposite

here. The BIA expressly declined to address the IJ’s finding that Muaddi’s testimony was

not credible, rejecting his application for lack of corroboration.4 The Country Report

does not address the specific events about which Muaddi testified but only describes

general conditions in Israel and the occupied territories and, thus, would not have been

helpful to the BIA.

         In sum, the BIA’s conclusion that Muaddi failed to meet his burden of proof for

his asylum application is supported by substantial evidence.


B.       The BIA Correctly Denied Muaddi’s Applications for Withholding of
         Removal and Relief Under the CAT

         Muaddi also argues that the BIA “failed to consider” his withholding of removal

and CAT claims and erred by simply “dismiss[ing] these claims out of hand.” (Pet. Br. at



     4
    Because our review is limited to the BIA’s decision, Adbulai, 239 F.3d at 548-49, we
do not address Muaddi’s argument that the IJ made his adverse credibility finding “based
upon speculation, not on the record.” (Pet. Br. at 16.)

                                              11
19.)

       An applicant qualifies for withholding of removal by demonstrating a “‘clear

probability’ that, more likely than not, his or her life or freedom would be threatened if

s/he is deported.” Mulanga, 349 F.3d at 132 (citing Lin v. INS, 238 F.3d 239, 244 (3d

Cir. 2001)). The “more likely than not” standard for withholding of removal is more

difficult to satisfy than asylum’s “well-founded fear” standard and, thus, one who has

failed to qualify for asylum necessarily fails to qualify for withholding of removal. Id.

Because Muaddi failed to demonstrate a “well-founded fear” of persecution necessary for

asylum, the BIA correctly dismissed his withholding of removal claim.

       The same is not always true, however, for an applicant’s CAT claim. Under the

CAT, an applicant can obtain relief from deportation if he or she can show “that it is more

likely than not that he or she would be tortured if removed to the proposed country of

removal.” Id. (quoting 8 C.F.R. § 208.16(c)(2)). Torture is defined as

       any act by which severe pain or suffering, whether physical or mental, is
       intentionally inflicted on a person for . . . any reason based on
       discrimination of any kind, when such pain or suffering is inflicted by or at
       the instigation of or with the consent or acquiescence of a public official or
       other person acting in an official capacity.

8 C.F.R. § 208.18(a)(1).

       The BIA’s decision implies that because Muaddi failed to establish a successful

asylum claim, his CAT claim fails as well. Unlike withholding of removal, however, a

CAT claim is not automatically doomed by a related, unsuccessful asylum claim. While


                                             12
an asylum applicant must demonstrate persecution on account of certain characteristics

such as race or religion, a CAT claim “focuses broadly on torture without regard for the

reasons for the treatment.” Ramsameachire v. Ashcroft, 357 F.3d 169, 185 (2d Cir.

2004). Therefore, a CAT claim need only be analyzed separately “when there is evidence

that the alien might be tortured for reasons unrelated to her claims for asylum and

withholding of removal.” Alemu v. Gonzales, 403 F.3d 572, 576 (8th Cir. 2005).

Because Muaddi has proffered no such evidence here, the BIA’s analysis of his asylum

claim is applicable to his CAT claim as well. Simply stated, Muaddi failed to

demonstrate that it is more likely than not that he will be tortured upon returning to the

West Bank.

                                      IV. Conclusion

       For the foregoing reasons, the petition for review will be denied, and the stay of

removal will be vacated.




                                             13
