                                                                                  United States Court of Appeals
                                                                                           Fifth Circuit
                                                                                         F I L E D
                                                  In the                                 August 15, 2003
                         United States Court of Appeals                               Charles R. Fulbruge III
                                       for the Fifth Circuit                                  Clerk
                                            _______________

                                              m 02-60544
                                            _______________



                                       HESHAM A. MORTAGY,

                                                                        Petitioner,

                                                 VERSUS

                                           JOHN ASHCROFT,
                                        U.S. ATTORNEY GENERAL,

                                                                        Respondent.


                                     _________________________

                                   Petition for Review of an Order of
                                   the Board of Immigration Appeals
                                             m A75 345 985
                                     _________________________




Before DAVIS, SMITH, and DUHÉ,                         dismissed Hesham Mortagy’s appeal of his
  Circuit Judges.                                      denial of asylum and withholding of de-
                                                       portation, finding that he is ineligible because
JERRY E. SMITH, Circuit Judge:*                        he has engaged in terrorist activity (as to asy-
                                                       lum) and because there exist reasonable
   The Board of Immigration Appeals (“BIA”)            grounds to believe that he poses a danger to
                                                       the security of the United States (as to asylum
                                                       and withholding). For purposes of asylum, the
   *
    Pursuant to 5TH CIR. R. 47.5, the court has de-    finding that he engaged in terrorist activity is
termined that this opinion should not be published     statutorily unreviewable. The finding that he
and is not precedent except under the limited cir-     poses a danger to the security of the United
cumstances set forth in 5TH CIR. R. 47.5.4.
States is supported by the record, and                   Terrorist Organizations.1
therefore Mortagy is also ineligible for
withholding. Accordingly, we dismiss the                                        II.
petition in part and deny review in part.                   Mortagy petitions for review, contending
                                                         that the BIA erred in its determinations the he
                      I.                                 has engaged in terrorist activity and that he
    Mortagy was admitted to the United States            poses a danger to the security of the United
as a nonimmigrant visitor from Syria. The Im-            States. Though the Attorney General argues
migration and Naturalization Service issued a            that the BIA did not err in determining that
notice to appear, charging Mortagy as remov-             Mortagy poses a danger to the nation’s
able under 8 U.S.C. § 1227(a)(1)(B) for                  security, he does not address the BIA’s finding
overstaying his visa. He admitted the factual            under § 1158(b)(2)(A)(v) that Mortagy
allegations in the notice and conceded de-               engaged in terrorist activity. Neither party
portability.                                             addresses whether § 1158(b)(2)(D) precludes
                                                         review of the finding under § 1158(b)(2)-
   Mortagy applied for asylum and                        (A)(v); we raise the issue sua sponte2 and
withholding of deportation. The immigration              conclude that the statute deprives this court of
judge (“IJ”) determined that Mortagy was not             appellate jurisdiction to review the asylum
entitled to asylum or withholding of                     determination.
deportation because he had not shown that he
had a well-founded fear of persecution. The IJ               Though the Attorney General has
ordered him removed.                                     discretionary power under § 1158(a) to grant
                                                         asylum, the general asylum rule does not apply
    Mortagy appealed to the BIA. It dismissed            if he determines that the alien meets any of
the appeal, finding that he is ineligible for asy-       several enumerated exceptions. See § 1158-
lum pursuant to 8 U.S.C. § 1158(b)(2)(A)(iv)             (b)(2). One such exception is listed under
because there are reasonable grounds to                  subparagraph (A)(v), which, inter alia,
believe he poses a danger to the security of the         declares ineligible all aliens inadmissable under
United States, and pursuant to § 1158(b)(2)-             8 U.S.C. § 1182 (a)(3)(B)(i) for having
(A)(v) because he had engaged in terrorist ac-           “engaged in a terrorist activity.”            See
tivity. It also found he is ineligible for               § 1158(b)(2)(A)(v).3
withholding of deportation pursuant to 8
U.S.C. § 1231(b)(3)(B)(iv), again because
there are reasonable grounds to believe he                  1
                                                              The PFLP is also known as the Popular
poses a danger to the security of the United             Liberation Front and as the George Habash
States. In its order, the BIA noted that Morta-          Organization.
gy was associated with the Popular Front for                2
the Liberation of Palestine (“PFLP”) from                     See Giles v. NYLCare Health Plans, Inc., 172
                                                         F.3d 332, 335 (5th Cir. 1999) (“Before reaching
1980 to 1984; this group is on the State
                                                         the merits, we must examine the basis of our ap-
Department’s List of Designated Foreign
                                                         pellate jurisdiction and, if there is doubt, we must
                                                         address it, sua sponte if necessary.”).
                                                            3
                                                                “Terrorist activity” is defined with exacting
                                                                                                (continued...)

                                                     2
   Section 1158(b)(2)(D) provides that                     exception at § 1231(b)(3)(B)(iv), which
“[t]here shall be no judicial review of a                  precludes withholding if “there are reasonable
determination of the Attorney General under                grounds to believe that the alien is a danger to
subparagraph (A)(v).”        This language                 the security of the United States.” § 1231(b)-
unambiguously denies this court jurisdiction to            (3)(B)(iv).5 Mortagy contends that this finding
consider the BIA’s finding under                           is erroneous. We must review this finding
§ 1158(b)(2)(A)(v).4 Because we may not                    (unlike the finding that he is ineligible for asy-
review the BIA’s determination that Mortagy                lum), both because there is no statutory bar to
was ineligible for asylum pursuant to                      review of this claim and because withholding
§ 1158(b)(2)(A)(v), we will not consider the               is a separate remedy from asylum. Mikhael v.
remainder o f his petition with respect to                 INS, 115 F.3d 299, 306 (5th Cir. 1997).
asylumSSthat the BIA’s determination under
§ 1158(b)(2)(A)(iv) was erroneous.                             We review the BIA’s legal rulings de novo.
                                                           Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444
                        III.                               (5th Cir. 2001). Mortagy urges de novo
    Mortagy also seeks relief from the BIA’s               review here, asking us to consider whether his
determination that he is ineligible for                    past membership in the PFLP is, by itself, le-
withholding of deportation. An alien is eligible           gally sufficient to support the BIA’s finding
for withholding of deportation if he shows that            that he is a danger to the security of the United
returning him to a certain country would result            States. The decision that an alien is not
in threats to his life or freedom and would be             eligible for withholding of deportation is itself
on account of his “race, religion, nationality,            a factual finding, which we review “only to
membership in a particular social group, or po-            determine whether it is supported by
litical opinion.” § 1231(b)(3)(A). The BIA,                substantial evidence.” Zamora-Morel v. INS,
however, found that Mortgagy meets the                     905 F.2d 833, 838 (5th Cir. 1990).

                                                              Beyond Mortagy’s membership in the
   3
       (...continued)                                      PFLP, the Attorney General points to other
detail at § 1182 (a)(3)(B)(iii).                           evidence in the record that supports the BIA’s
                                                           decision. For example, Mortagy testified that
   4
       We treat the powers of “judicial review” and        in 1980 he spent several months in Lebanon
“jurisdiction” synonymously by this court, and             undergoing military and weapons training pro-
provisions similar to § 1158(b)(2)(D), in statute          vided by the Palestinian Liberation
and regulation, have been consistently interpreted         Organization. He later returned to Lebanon to
to deny jurisdiction. See Balogun v. Ashcroft, 270         fight with the PFLP. Also according to his
F.3d 274, 277 n.9 (5th Cir. 2001) (finding that a
lack of jurisdiction was “confirmed in” 8 C.F.R
§ 208.18(e)(1), which states that “there shall be no
                                                              5
judicial appeal or review of” decisions under a sub-            Because the BIA did not perform an analysis
section of the act there at issue); Garcia-Ortega v.       of the merits of Mortagy’s claim apart from wheth-
INS, 862 F.2d 564, 566 (5th Cir. 1989) (endorsing          er he qualified for an exception, his case would be
the decision of an IJ who found that 8 U.S.C. §            remanded, and he would still have to make the
1255a(f), which provides that “[t]here shall be no         requisite showings under § 1231(b)(3)(A) to
administrative or judicial review of a determination       receive withholding, even if he succeeds on this
. . . ,” deprived this court of jurisdiction).             claim.

                                                       3
testimony, he at various times gathered
intelligence for Syrian and Turkish officials.
He was recruited by Syria and Turkey for
numerous other spying duties, though he
asserts that he refused many of their requests.
   Mortagy attempts, at times persuasively, to
mitigate this evidence and to characterize him-
self as a victim of manipulation and
persecution. We must, however, be mindful of
our limited standard of review. The BIA’s
finding that Mortagy is ineligible for
withholding of deportation because there exist
“reasonable grounds to believe” that he poses
a threat to the security of this country is
supported by substantial evidence.

   For the foregoing reasons, the petition for
review is DISMISSED in part and DENIED in
part.




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