                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-14-2004

Manal Maher Ayad v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1079




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                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 03-1079


                              MANAL MAHER AYAD,

                                                      Petitioner

                                           v.

                         JOHN ASHCROFT, Attorney General
                               of the United States,

                                                      Respondent


                        On Petition for Review of a Final Order
                         of the Board of Immigration Appeals
                                  (No. A75-992-519)


                      Submitted Under Third Circuit LAR 34.1(a)
                                  March 23, 2004

               Before: ROTH, AMBRO, and CHERTOFF, Circuit Judges

                             (Opinion filed April 14, 2004 )




                                       OPINION


AM BRO, Circuit Judge

      Manal Maher Ayad seeks review of a final order of the Board of Immigration

Appeals (“Board”) affirming the denial by an Immigration Judge (“IJ”) of her application
for asylum and witholding of removal. Because we conclude that the IJ’s decision was

supported by substantial evidence, we deny the petition for review.

                           I. Factual and Procedural History

       Ayad, a native and citizen of Egypt, is a Coptic Orthodox Christian. She claims

that she was persecuted by Egyptian Muslims based on her religion and therefore

qualifies as a refugee for the purposes of section 101(a)(42)(A) of the Immigration and

Nationality Act (“INA”), 8 U.S.C. § 1101(a)(42)(A) .

       Ayad’s application for asylum is based primarily on the conduct of her co-worker,

Mohammed Asure, a Muslim Fundamentalist who repeatedly sought to convert Ayad to

Islam and allegedly threatened to kill her if she refused to convert. Ayad worked in Cairo

as a secretary for an American company, General Dynamics. Asure, also an employee of

General Dynamics, pressured Ayad on multiple occasions to convert to Islam.

       In March 1997, Asure and two Muslim clerics allegedly appeared at Ayad’s home

and, when she opened her door, “pushed their way” inside. They urged her to convert to

Islam. When she declined, the clerics threatened that she would “pay for it dearly” if she

did not convert. Ayad stated that she and her father reported the incident to the police.

She then began to receive threatening phone calls. When she confronted Asure at work,

he told her, “We tried the nice way with you but you refused to come to Islam. Now you

will learn the hard way and if need be by murder.” Ayad testified that Asure’s conduct

became so distressing that she was forced to leave her job, though she admitted on cross-



                                             2
examination that she never reported his behavior to her superiors.

       Ayad also claims that in April 1997, while she was returning home from a friend’s

house, she was attacked from behind. The attacker allegedly fled when a neighbor

appeared. She and the neighbor reported the attack to the same police station to which

she had reported the previous incident. The police told her that they had no record of her

earlier report.

       Finally, Ayad stated that in May 1997 her brother was in a car accident. According

to Ayad, after the accident her brother received a phone call asserting that “this was a

small lesson for [him] but most importantly for me, and to get ready for what was coming

up for us all.” A police inspector subsequently told Ayad’s father that she and her brother

should leave Egypt “before it was too late, because soon death would be the only

alternative.” On cross-examination, Ayad was asked whether she made any effort to

relocate within Egypt. She replied, “W e moved every once in a while. . . . We stayed with

my aunt where nobody knows.”

       Ayad entered the United States in November 1997 on a temporary nonimmigrant

visitor’s visa. Her visa expired on May 8, 1998. On September 2, 1998, the INS issued a

notice to appear, charging her with remaining in the United States after the expiration of

her visa in violation of 8 U.S.C. § 1227(a)(1)(B). Ayad appeared before an IJ on October

29, 1998. She admitted the Government’s allegations, conceded that she was removable,

and applied for asylum, withholding of deportation, and, if all else failed, voluntary



                                             3
departure.

       An IJ conducted a hearing on the merits of Ayad’s application on February 16,

1999. With the approval of Ayad’s counsel, the parties treated the information in her

application as direct examination. The IJ found that Ayad failed to establish past

persecution or a well-founded fear of future persecution, and therefore denied Ayad’s

application, but granted her request for voluntary departure. He concluded that Asure

“was the main reason [Ayad] left Egypt.” While he found Ayad’s testimony regarding

Asure credible, he concluded that his conduct “amount[ed] to . . . work place harrassment

by a religious zealot” and noted that “[i]njury rising from the actions of persons not

connected with any government is not persecution.” Similarly, he concluded that the

clerics’ visit to Ayad’s home, while “offensive,” “rude,” and “even threatening,” did not

rise to the level of persecution.

       With respect to the April 1997 attack, the IJ noted that Ayad had failed to offer any

evidence regarding the attacker’s identity or motive. He deemed Ayad’s claim to have

received multiple telephone threats less credible and in any case insufficient to constitute

persecution. Furthermore, he was skeptical that Ayad had in fact attempted to relocate,

based on her failure to include that information in her asylum application and the

“meager” nature of her testimony on the matter upon cross-examination. He found that

her failure “to come out more fully with that testimony is an indication of the overall lack

of truthfulness that she would have had to pursue had she gone and testified in some



                                              4
detail about her efforts [to] live elsewhere.” Finally, the IJ did not credit Ayad’s

testimony that the police were unhelpful in pursuing Ayad’s aggressors, citing record

evidence reporting that “the police are actively involved in trying to protect Coptic

Christians” in Egypt.

       Ayad appealed the IJ’s decision to the Board. The Board summarily affirmed the

IJ’s decision on December 12, 2002, pursuant to 8 C.F.R. § 3.1(e)(4). Ayad timely filed

this petition for review within thirty days of the Board’s decision. INA § 242(b)(1), 8

U.S.C. § 1252(b)(1).1

                                       II. Discussion

       Ayad alleges that the IJ erred in denying her application for asylum because she

suffered past persecution and demonstrated a well-founded fear of future persecution.

We conclude that the IJ’s decision was supported by substantial evidence.

       A.     Overview of the statutory framework and standard of review

       Section 208(b) of the Immigration and Nationality Act (“INA”), 8 U.S.C.




  1
   The Board had jurisdiction to review the IJ’s decision pursuant to 8 C.F.R. §§ 3.1(b),
3.38, and 240.15. The Department of Justice subsequently reorganized Title 8 of the
Code of Federal Regulations to reflect the creation of the Department of Homeland
Security and its assumption of the functions previously exercised by the Immigration and
Naturalization Service. 68 Fed. Reg. 10349, 2003 WL 724287 (March 5, 2003). The
functions of the Executive Office for Immigration Review, which includes the
immigration courts and the Board, remain within the Department of Justice under the
direction of the Attorney General. Regulations concerning the Board’s jurisdiction,
previously designated at 8 C.F.R. § 3.2, are now designated at 8 C.F.R. §§ 1003.2. We
have jurisdiction under section 242(a)(1) of the INA, 8 U.S.C. § 1252(a)(1).

                                              5
§ 1158(b), confers on the Attorney General discretion to grant asylum to an alien who is a

“refugee.” An individual qualifies as a refugee if she is “unable or unwilling” to return to

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.”

8 U.S.C. § 1101(a)(42)(A).

       The alien bears the burden of proving eligibility for asylum. 8 C.F.R. § 208.13(a);

Abdille v. Ashcroft, 242 F.3d 477, 482 (3d Cir. 2001). In order to demonstrate a well-

founded fear of persecution, an applicant must satisfy three requirements: (1) she has a

fear of persecution in her native country, (2) there is a reasonable possibility of suffering

such persecution upon return to that country, and (3) she is unwilling to return to that

country as a result of her fear. 8 C.F.R. 208.13(b)(2)(i).2 A finding that the applicant has

suffered persecution in the past results in a presumption that she has a well-founded fear

of future persecution. 8 C.F.R. 208.13(b)(1). The Government then bears the burden of

demonstrating either (1) a fundamental change in circumstances such that the applicant no

longer has a well-founded fear of persecution, or (2) that the applicant could avoid future

persecution by “relocating” within the applicant’s country. 8 C.F.R. 208.13(b)(1)(ii).



  2
    The eligibility threshold for withholding of removal is even higher: the Attorney
General must determine that repatriation will more likely than not jeopardize the alien’s
life or freedom on account of one of the protected grounds. INA § 241(b)(3), 8 U.S.C.
§ 1231(b)(3). The applicant must therefore demonstrate a “clear probability” of
persecution. Senathirajah v. INS, 157 F.3d 210, 215 (3d Cir. 1998). Given this higher
standard, an applicant who does not qualify for asylum also will not qualify for
withholding of removal.

                                              6
       Whether an applicant has demonstrated past persecution or a well-founded fear of

future persecution is a factual determination reviewed for substantial evidence. Abdille,

242 F.3d at 483. We will affirm the Board’s decision if it is “supported by reasonable,

substantial, and probative evidence on the record considered as a whole.” INS v. Elias-

Zacarias, 502 U.S. 478, 481 (1992) (quoting 8 U.S.C. § 1105a(a)(4)). Ayad’s burden is

therefore quite onerous. In order to reverse the Board’s finding, “we must find that the

evidence not only supports [a contrary] conclusion, but compels it.” Elias-Zacarias, 502

U.S. at 481 n.1 (emphasis in original). Adverse credibility determinations are also

reviewed for substantial evidence, Balasubramanrim v. INS, 143 F.3d 157, 161 (3d Cir.

1998), and we will affirm the Board’s findings unless “any reasonable adjudicator would

be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).

       B.     The determinations of the Immigration Judge, affirmed by the Board
              of Immigration Appeals, were supported by substantial evidence

       Reviewing for substantial evidence, we conclude that the IJ’s denial of Ayad’s

application for asylum and the Board’s summary affirmance of the IJ’s decision were

proper.

       In her brief to this Court, Ayad argues that “the record of proceedings does reflect

sufficient credible evidence submitted in support of Petitioner[’]s claim for asylum.”

Thus she notes, “It is reasonable for [Ayad] to believe that if she moved she may still be

pursued by her persecutors.” Similarly, she argues that the record “reflect[s] sufficient

testimony to establish that [she] did try to live safely elsewhere in the country.” The

                                             7
Supreme Court has made clear, however, that any “assertion that ‘the record . . . is more

than adequate to support [the applicant’s] conclusion” is “quite beside the point.” Elias-

Zacarias, 502 U.S. at 480 n.1. To the extent that Ayad urges us to review the record de

novo, she misunderstands our appellate function. As noted above, we will affirm the

Board’s decision unless the record compels a contrary decision.

        We have held that persecution “is an extreme concept that does not include every

sort of treatment our society regards as offensive.” Fatin v. INS, 12 F.3d 1233, 1243 (3d

Cir. 1993). The IJ acknowledged that Asure’s efforts to convert Ayad to Islam were

“unpleasant.” But he concluded that Asure’s conduct, if accurately described, amounted

to workplace harassment that did not fall within the definition of persecution. Moreover,

“having to quit a job is not persecution. Being deprived of all likelihood of earning a

[living] may well be persecution, but quitting a job at an American corporation . . . is

not.”

        The IJ found that the clerics’ visit to Ayad’s home, while “offensive,” “rude,” and

perhaps even “threatening,” was not persecution. Ayad was never actually injured.

Threats alone will rise to the level of persecution only under exceptional circumstances.

See, e.g., Lim v. INS, 224 F.3d 929, 936 (9th Cir. 2000). Similarly, the IJ deemed the

associated telephone threats “less credible, almost an add on,” and in any case insufficient

to constitute persecution for the reasons given above.

        With respect to the attack on Ayad outside her home, the IJ acknowledged the



                                              8
gravity of the incident and its traumatic effect on Ayad. He correctly noted, however, that

Ayad failed to present evidence of the identity of her aggressor or the motive for the

attack. To be sure, he might have concluded that the incident was related to a larger

pattern whereby members of Ayad’s community sought to convert her to Islam through

violence. But the evidence did not compel that interpretation.

       Furthermore, the IJ found that Ayad had not attempted to relocate within Egypt.

He discredited her “vague testimony” alluding to her efforts to live elsewhere. “That

testimony,” he explained, “was not developed,” and “[i]t is contained nowhere in the

written application.” W hile incomplete exposition of the circumstances allegedly

constituting persecution does not alone render later testimony not credible, the IJ’s

evaluation of Ayad’s testimony was thorough. He noted that while the rest of her hearing

testimony credibly tracked her application for asylum, she made no mention of efforts to

relocate. On the contrary, as the Government notes, her application, which expressed that

she “had no other place to turn to,” implied that any effort to relocate would have been

futile.3 The transcript of the hearing reveals that Ayad was inarticulate and imprecise in

describing her alleged moves.

       Finally, the IJ characterized Ayad’s mistreatment as private in nature. To establish

eligibility for asylum, an applicant must demonstrate that she was persecuted “by the




  3
   She did not press this argument at the hearing, presumably because it would have been
inconsistent with her claim to have attempted to relocate.

                                             9
government or forces the government is either unable or unwilling to control.”

Abdulraham v. Ashcroft, 330 F.3d 587, 592 (3d Cir. 2003) (internal quotations omitted).

Ayad, however, was never detained by the police. In light of record evidence indicating

that the Egyptian police have aggressively investigated attacks on Coptic Christians, the

IJ reasonably discredited Ayad’s testimony that the police were unresponsive to her

complaints. He explained, “[T]he known circumstance in Egypt is that the police are

actively involved in trying to protect Coptic Christians. They do not wink at abuses

against the Christian population. The testimony was not persuasive in rebutting the State

Department’s conclusions in that regard.”

                                       III. Conclusion

       In sum, the IJ’s findings were supported by substantial evidence. Ayad’s

testimony, even if accurate in its entirety, does not compel a determination that she has

suffered persecution in the past or is likely to suffer persecution if she is returned to

Egypt. Because Ayad does not qualify as a refugee, she also fails to qualify for

withholding of removal. The Board’s decision affirming the IJ’s denial of Ayad’s

application for asylum was therefore proper, and we deny Ayad’s petition for review.




                                              10
