                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-20-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1692




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                                                                NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                                        No. 06-1692


                                        JOHN DOE,
                                                Petitioner

                                              v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                       Respondent


                          On Petition for Review of an Order
                         of the Board of Immigration Appeals
                       Immigration Judge: Hon. Eugene Pugliese


                                 Argued December 10, 2007

         Before: SLOVITER, AMBRO, Circuit Judges, and RESTANI * , Judge

                                 (Filed: December 20, 2007)
                                           ______

Julia J. Peck   (Argued)
Daniel R. Margolis
Skadden, Arps, Slate, Meagher & Flom
New York, NY 10036

Steven J. Kolleeny
New York, NY 10036-6422
      Attorneys for Petitioner


                   *
                     Hon. Jane A. Restani, Chief Judge, United States Court of
            International Trade, sitting by designation.
Richard M. Evans
Emily A. Radford
Aviva L. Poczter
Patricia A. Smith
Vanessa O. Lefort (Argued)
United States Department of Justice
  Office of Immigration Litigation
Washington, D.C. 20044

      Attorneys for Respondent

Lena Ayoub
National Center for Lesbian Rights
San Francisco, CA 94102

      Attorney Amicus-Appellant

                                         _____

                                       OPINION


SLOVITER, Circuit Judge.

      John Doe, a native and citizen of Egypt, petitions for review of an order of the

Board of Immigration Appeals (“BIA”) denying his requests for withholding of removal

under the Immigration and Nationality Act (“INA”) and relief under the Convention

Against Torture (“CAT”). The government moves the court to remand the petition to the

BIA so that the BIA may address Doe’s claim that the conditions for homosexual men in

Egypt have deteriorated since Doe’s departure from that country.




                                            2
                                              I.

       Doe entered the United States on a nonimmigrant visa on October 6, 2001, with

authorization to remain until April 5, 2002. In March of 2003, Doe applied for asylum

and withholding of removal under the INA and the CAT. On August 6, 2004, Doe

appeared for a merits hearing on his application.

       Doe claims that he was beaten on account of his homosexuality on two separate

occasions while living in Egypt: once by his high school gym instructor because the

teacher suspected he was gay and once by a police officer in a public park who saw Doe

holding hands with, kissing and hugging his boyfriend. Both attacks resulted in lengthy

hospital stays and further harassment. Doe then moved to Qatar, where he was beaten on

three additional occasions and violently threatened on another, before he entered the

United States in 2001. Doe claims that the Qatar incidents occurred after a former

Egyptian classmate began to spread rumors that he was gay.

       Doe testified that he retains an apartment in Egypt and visited his family on several

occasions while living in Qatar, but that he continued to be harassed whenever he

returned to Egypt. Moreover, Doe testified and introduced corroborating letters that his

family notified him after his arrival in the United States that the authorities were looking

for him and that he would be imprisoned if he returned to Egypt.

       Scott Long, whom both parties accepted as an expert on the conditions for

homosexuals in Egypt, also testified at Doe’s hearing. Long testified that the incidents



                                              3
reported by Doe, and his hesitance to report such incidents to the police, were consistent

with the country’s attitude towards homosexuals during the 1980s and 90s. Further, Long

testified that “since 2001, there has been an ongoing crackdown on men who engage in . .

. homosexual conduct.” App. at 242. Long testified that hundreds of men have been

arrested on account of their homosexuality and brutally tortured. Long also testified

about the Queen Boat Trial, a successful government prosecution of over fifty

homosexuals, which was heavily publicized in Egypt during 2001 and 2002. Long

testified that individuals, including homosexuals, are subjected to torture within the

Egyptian criminal justice system and that Doe could face arrest, and likely torture, merely

by returning to Egypt following his significant residence abroad. A 2003 Department of

State report on country conditions in Egypt, which corroborates much of Long’s

testimony, was also placed into evidence.

       The Immigration Judge (“IJ”) held that Doe’s asylum claim must fail because he

did not file for asylum within the one-year statute of limitations and did not demonstrate

changed or extraordinary circumstances to excuse his delay. Doe does not seek review of

this holding. The IJ also concluded that the incidents in Qatar were of little relevance to

Doe’s claims because he would be removed to Egypt rather than Qatar. The IJ found that

the two incidents in which Doe was beaten in Egypt did not constitute torture. Moreover,

the IJ concluded that Long’s testimony regarding the hundreds of gay men arrested in

Egypt did not compel a conclusion that it was more likely than not that Doe would be



                                             4
tortured upon his return to Egypt. Because Doe has not lived in Egypt since 1989, the IJ

issued an adverse credibility finding regarding Doe’s assertion that the police were

looking for him at present. Therefore, the IJ rejected Doe’s CAT claim. The IJ also

concluded that Doe was not entitled to withholding under the INA because he had not

corroborated his homosexuality or his past abuse, and he had continued to visit Egypt

after his alleged persecution.

       The BIA adopted and affirmed the IJ’s decision. The BIA disagreed that Doe did

not corroborate his homosexuality, and instead stated that “there is enough evidence in

the record to establish this fact.” App. at 3a. However, the BIA held that Doe’s isolated

incidents of harassment in Egypt did not amount to persecution and that the incidents in

Qatar did not have bearing on his application for withholding of removal to Egypt. The

BIA concluded that Doe’s several return visits to Egypt undermined his claims, and

questioned the validity of Doe’s assertion that he is currently being sought by the police.

Ultimately, the BIA agreed with the IJ that Doe had not met his burden of proving that it

is more likely than not that he would be persecuted or tortured in Egypt on account of his

homosexuality, and thus denied his requests for withholding of removal under the INA or

the CAT.

       Doe filed a petition for review, challenging the BIA’s determination that he was

not entitled to withholding of removal under either the INA or the CAT. The government

then filed a motion asking this court to remand Doe’s petition to the BIA so that the BIA



                                             5
may address his claim that conditions for homosexual men in Egypt have deteriorated

since 2001. Doe agreed that both the IJ and BIA failed to adequately consider that

evidence but opposed the remand motion, contending that the BIA’s decision contained a

number of other interrelated errors such that this court may finally dispose of his petition.

When this court declined to immediately grant that motion, the government

reiterated its position that a remand is appropriate. The government has not otherwise

addressed the grounds of Doe’s petition. We have jurisdiction over the petition under 8

U.S.C. § 1252.

                                             II.

       The government recognizes that there is objective evidence in the record that the

conditions for homosexual men in Egypt may have deteriorated since Doe left that

country. The government argues that this change in conditions is material to Doe’s

claims for withholding of removal and CAT protection, that neither the BIA nor the IJ has

properly considered that issue, and that thus the agency should evaluate the issue in the

first instance. Doe counters that the undisputed record evidence and the government’s

failure to otherwise oppose his petition demonstrate his entitlement to withholding of

removal, and thus we should reverse the BIA’s decision, rather than remand for further

proceedings. Alternatively, Doe asks us to vacate and remand the BIA’s decision in its

entirety.

       The Supreme Court has stated that “[g]enerally speaking, a court of appeals should



                                              6
remand a case to an agency for decision of a matter that statutes place primarily in agency

hands.” INS v. Ventura, 537 U.S. 12, 16 (2002). This not only ensures that primary

decision-making authority is vested in the agency with expertise in a given field, but also

provides for the creation of a record to aid the reviewing court’s analysis. Id. at 17.

Therefore, courts should be hesitant to “create[] potentially far-reaching legal precedent

. . . without giving the BIA the opportunity to address the matter in the first instance in

light of its own expertise.” Id.

       It is uncontested that the record contains evidence of deteriorating conditions for

homosexuals in Egypt. In its decision affirming the IJ’s removal order, the BIA

summarily stated that it had reviewed the record. However, the BIA did not make any

findings regarding those conditions or their effect on Doe’s request for withholding of

removal under the INA and the CAT. Thus, even if we could reverse, a disposition

questionable in light of Ventura, we cannot meaningfully review the BIA’s decision

where it failed to address key evidence or adequately explain the basis of its decision.

See Cruz v. Attorney General, 452 F.3d 240, 248-49 (3d Cir. 2006). Accordingly,

reversal of the IJ’s decision with an instruction to grant Doe’s request for withholding is

not appropriate on the basis of the record currently before us.

       In the absence of reversal, then, the parties agree that the petition should be

remanded to the BIA. They only contest the scope of our review prior to remand. We

decline to fracture our review of the BIA’s decision by addressing the remaining grounds



                                              7
of Doe’s petition at this time. In its brief, the government states that “remand serves the

interests of both the parties and the judiciary when the disposition of a petition for review

may benefit from further investigation or consideration by the Board.” Respondent’s Br.

at 25. We see no reason to fracture the remand so that only the changed circumstances

for homosexual men in Egypt is before the BIA. Instead, on remand the BIA should

consider all of the remaining issues presented in Doe’s petition for review.1

                                             III.

       For the above-stated reasons, we will vacate the decision of the BIA and remand

for further proceedings consistent with this opinion.




                    1
                       In addition to arguing that certain of the BIA’s factual
             findings were clearly erroneous, Doe argues that the BIA
             improperly applied the legal standards governing his claims, and
             thus remanding his petition without further instruction is unlikely
             to affect the ultimate resolution of his claims. For instance, Doe
             argues that the BIA failed to analyze his CAT claim as distinct
             from his withholding claim under the INA, and thus allowed its
             adverse credibility determination to bleed into what should be an
             entirely objective analysis under the CAT. See Zubeda v. Ashcroft,
             333 F.3d 463, 476 (3d Cir. 2003). However, we do not presume
             that the BIA will make legal errors upon its reconsideration of
             Doe’s claims, and anything we would say in that connection would
             be a purely advisory opinion.
                                              8
