                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-28-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4829




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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                    No. 06-4829


                                   ALI ABUALI,
                                       Petitioner

                                         v.

                ATTORNEY GENERAL OF THE UNITED STATES,
                                Respondent


                       Petition for Review of an Order of the
                        United States Department of Justice
                           Board of Immigration Appeals
                              (BIA No. A96-204-591)
                   Immigration Judge: Honorable Donald V. Ferlise


                     Submitted Under Third Circuit LAR 34.1(a)
                                 March 25, 2008

            Before: McKEE, RENDELL and TASHIMA*, Circuit Judges.

                                (Filed May 28, 2008)


                             OPINION OF THE COURT



__________________

   * Honorable A. Wallace Tashima, Senior Judge of the United States Court of
Appeals for the Ninth Circuit, sitting by designation.
RENDELL, Circuit Judge.

         Petitioner Ali Abuali (“Abuali”) seeks review of a decision by the Board of

Immigration Appeals (“BIA” or “the Board”) to dismiss his appeal from an Immigration

Judge’s (“IJ”) denial of his requests for asylum, withholding of removal, and protection

under the Convention Against Torture (“CAT”). For the reasons set forth below, we will

deny the Petition for Review.

                                      BACKGROUND1

         Abuali was born in Palestine and, before entering the United States, had resided in

the West Bank. Although the Palestinian authority took control of some cities in the early

1990s, Abuali did not experience significant difficulties and was “never . . . involved in

any groups or political parties.” (A.R. 207.) “Maybe [in] 2001,” a fight erupted in a

Ramallah market, and Abuali was shot.2 (A.R. 145.) Abuali testified that the Ramallah


  1
   As we write for the benefit of the parties alone, we need not undergo a lengthy
recitation of the facts.
  2
    In an affidavit filed in support of Abuali’s I-589 application, Abuali claimed that he
had been shot in the head by someone who told him to “stop being a spy.” (A.R. 207.) In
his live testimony before the IJ, however, Abuali stated that he had been shot by accident,
that he did not know who shot him, and that the shooter did not say anything to him when
he was shot. When questioned by the IJ, Abuali acknowledged that their were
discrepancies between his affidavit and his live testimony and seemed to be unaware of
some of the representations made in the affidavit. (See, e.g., A.R. 157 (“Q: [Your
affidavit says] that the person who shot you said something to you, but this is incorrect?
A: I don’t recall mentioning that I even got shot in my affidavit.”).) Later in his
testimony, Abuali explained that he did not write the affidavit himself; someone else
helped him to prepare it.

      In its decision on appeal, the BIA based its analysis on the assumption that Abuali had

                                               2
police, possessing only batons, were unable to intervene in the shooting, and that, in

general, no safety or security exists in Palestine.

       On February 27, 2002, Abuali was admitted to the United States as a visitor

authorized to remain until August 26, 2002. On May 12, 2003, Abuali was issued a

Notice to Appear charging him with removability under section 237(a)(1)(B) of the

Immigration and Nationality Act (“the Act”), as an alien who overstayed his admission as

a non-immigrant. Abuali admitted the factual allegations in the Notice to Appear and

conceded the grounds for removal. On February 5, 2004, Abuali requested asylum,

withholding of removal, and CAT protection.

        In an April 20, 2005 Oral Decision and Order, an IJ pretermitted Abuali’s asylum

application (as it had been filed well after the Act’s one-year filing deadline) and denied

his requests for withholding of removal and CAT protection. Abuali appealed the IJ’s

decision to the BIA,3 and on October 23, 2006, the BIA affirmed the decision and

dismissed Abuali’s appeal. The BIA found, inter alia, that even assuming Abuali

provided credible testimony, he did not meet his burden of proof for withholding of

removal and/or CAT protection. Specifically, the BIA found that Abuali “failed to

establish that it is more likely than not that he would be subject to persecution in Palestine


“provide[d] credible testimony” before the IJ. (A.R. 3.) For the purposes of our review,
we make the same assumption.
  3
    Abuali did not challenge the IJ’s findings that (1) he filed his asylum application more
than one year after he entered the United States and (2) no changed or extraordinary
circumstances excused the untimely filing.

                                               3
on account of a protected ground,” and further, he did not demonstrate that “it is more

likely than not that he will be tortured for any reason if removed to Palestine.” (A.R. 3.)

Abuali filed a timely petition for review with this Court.4

                                      DISCUSSION

         Abuali contends that “the BIA/Immigration Judge” erred in finding that

(1) Abuali’s credibility was “seriously impacted in a negative fashion” due to

discrepancies between his April 20, 2005 hearing testimony and previously submitted

affidavit; (2) Abuali did not establish that he had suffered past persecution on account of

a statutorily protected ground; and (3) Abuali did not establish that he had a well-founded

fear of persecution upon return to Palenstine. (Pet’r’s Br. 5.) None of these issues

present a meritorious ground for review.

I.       Standard of Review

         We review the BIA’s factual determinations under a substantial evidence standard.

Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). “‘Substantial evidence is more than a

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

adequate to support a conclusion.’” Senathirajah v. INS, 157 F.3d 210, 216 (3d Cir.

1998) (quoting Turcios v. INS, 821 F.2d 1396, 1398 (9th Cir. 1987)). The BIA’s

determination will not be disturbed unless “any reasonable adjudicator would be

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



     4
     We have jurisdiction to review the BIA’s decision under 8 U.S.C. § 1252(a).

                                              4
II.    Credibility Determination

       As recognized above, Abuali argues that “the BIA/Immigration Judge” erred in

assessing his credibility “in a negative fashion.” (Pet’r’s Br. 5.) While the IJ did make an

adverse credibility determination, the BIA did not. Where, as here, the BIA issued a

decision on the merits and not a summary affirmance, we review the BIA’s, not the IJ’s

decision. See Gao, 299 F.3d at 271. Because it is clear from the BIA’s opinion that it did

not make an adverse credibility finding, but instead assumed that Abuali had “provide[d]

credible testimony” (A.R. 3), we easily reject this ground for review.

III.   Past Persecution

       Abuali next challenges the BIA’s finding that he failed to establish past

persecution on account of a statutorily protected ground. This finding was made in the

context of the Board’s withholding of removal analysis.

       In order to obtain withholding of removal, a petitioner has the burden of showing a

“clear probability” of persecution in the country designated for removal. See INS v.

Stevic, 467 U.S. 407, 424 (1984) (noting that the question under the “clear probability”

standard is “whether it is more likely than not that the alien would be subject to

persecution”). The persecution must be on account of one of five statutorily protected

grounds: race, religion, nationality, membership in a particular social group, or political

opinion. 8 U.S.C. § 1231(b)(3)(A).

       If the withholding of removal applicant is determined to have suffered past



                                             5
persecution in the proposed country of removal on account of one of these five grounds,

“it shall be presumed that the applicant’s life or freedom would be threatened in the future

in the country of removal on the basis of the original claim.” 8 C.F.R. § 208.16(b)(1)(i).

An applicant who has not suffered past persecution may demonstrate that his life or

freedom would be threatened in the future if he can establish that it is “more likely than

not” that he would be persecuted upon removal on account of a protected ground.

8 C.F.R. § 208.16(b)(2).

       As noted above, the BIA found that Abuali did not establish that he had suffered

past persecution on account of a protected ground. After a thorough review of the record,

we conclude that the Board’s finding is supported by substantial evidence.

       In his testimony before the IJ, Abuali explained that, upon returning to Palestine

after a 6-month stay in the United States, he was grazed in the head by a stray bullet while

shopping at the Ramallah Market. In the following colloquy with the IJ, Abuali was

asked to describe exactly what happened the day of the shooting:

       Abuali:       We were in the market, and something was going on. They
                     were having a fight, and everybody was shooting, and I got
                     shot. I was one of those people.


       IJ:           Okay. Who was, who was fighting? Who was shooting at
                     one another?


       Abuali:       Just people. I don’t know them. A lot of people.


(A.R. 43.) As the BIA recognized in its decision, Abuali did not claim to be politically

                                             6
involved at the time (nor does he claim to be politically involved at present), he did not

claim to be involved in the disturbance, and he knew neither his shooter’s identity nor

motivation.5 In fact, in his testimony before the IJ, Abuali specifically stated: “I know I

wasn’t meant to be shot, but it’s the chaos. It’s the mess that was there.” (A.R. 150.)

When asked by the IJ if Abuali thought he was shot by accident, Abuali answered, “Yes.”

(A.R. 150.) He also admitted that nothing similar had happened to him prior to or after

the shooting.

       The BIA concluded that the shooting was at most an “isolated incident [that]

occurred during a time of chaos and strife in [Abuali’s] country,” which does not amount

to “persecution” within the meaning of our law. (A.R. 3 (citing Matter of Sanchez and

Escobar, 19 I&N Dec. 276 (BIA 1985), aff’d sub. nom., Sanchez-Trujillo v. INS, 801 F.2d

1571 (9th Cir. 1986)).) We agree. As our Court has noted, country-wide civil strife

(1) does not rise to the level of harm that ordinarily characterizes persecution, and (2) is

not persecution “on account of” a protected ground. Al-Fara v. Gonzales, 404 F.3d 733,

740 (3d Cir. 2005). Abuali did not meet his burden of establishing past persecution so as

to qualify for a presumption of future persecution.

IV.    Well-Founded Fear of Future Persecution

       As his final issue for review, Abuali asserts that “the BIA/Immigration Judge



  5
   The IJ specifically asked Abuali, “Do you know who shot you, sir?”; Abuali
answered, “No.” (A.R. 148; see also A.R. 156.)

                                              7
[erred] by finding that Abuali had no well-founded fear of persecution if he is returned to

Palestine.” (Pet’r’s Br. 5.) Only two sentences in the body of Abuali’s brief seem to

address this issue. Those sentence read as follows: “Abuali presented more than

sufficient evidence that he suffered past persecution and this in and of itself should have

established a presumption of a well-founded fear of future persecution. Accordingly,

Abuali has proven entitlement to withholding relief based upon asylum and under the

CAT . . . .” (Pet’r’s Br. 13 (citations omitted).) We reject Abuali’s argument for several

reasons.

       First, neither the IJ nor the BIA made a finding as to Abuali’s well-founded fear of

persecution (or lack thereof); they simply had no occasion to. An alien’s well-founded

fear of future persecution is only relevant to his request for asylum. Because Abuali did

not—and does not—dispute that his asylum application was untimely filed, asylum was

never a viable avenue of relief for Abuali.

       Second, to the extent that Abuali believes that a well-founded fear of persecution

entitles him to either withholding of removal (under section 241(b)(3) of the Act) or

protection under the CAT, he is misinformed. As set forth above, in order to qualify for

withholding of removal, an applicant who has not suffered past persecution must establish

that it is “more likely than not” that he would be persecuted upon removal on account of a

protected ground. 8 C.F.R. § 208.16(b)(2); INS v. Stevic, 467 U.S. 407, 424 (1984). The

BIA determined that Abuali failed to meet this burden, and we agree. Abuali’s


                                              8
generalized claims that there are no jobs in Palestine (A.R. 151), that the country is

without “law and order” (A.R. 142), and that “[p]eople could kill each other with

impunity claiming that their victim was an Israeli spy” (A.R. 142) are simply not enough

to establish that Abuali is “more likely than not” to be persecuted on account of a

protected ground upon his removal to Palestine.6

       A well-founded fear of future persecution is also not enough to establish eligibility

for protection under the CAT. In order to qualify for CAT protection, an applicant has

the burden of proving that it is “more likely than not” that he would be tortured if

removed to the proposed country of removal. 8 C.F.R. §§ 208.16(c)(2), (4). For CAT

purposes, “torture” is defined as “any act by which severe pain or suffering, whether

physical or mental, is intentionally inflicted on a person . . . 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). Thus, to

obtain CAT protection, Abuali would have to allege more than past or future persecution;

he would have to satisfy the “higher bar of torture.” See Efe v. Ashcroft, 293 F.3d 899,

907 (5th Cir. 2002); see also Samedov v. Gonzales, 422 F.3d 704, 708 (8th Cir. 2005)

(“Torture . . . is not coterminous with persecution.”); 8 C.F.R. § 208.18(a)(2) (noting that

torture is an “extreme form of cruel and inhuman treatment and does not include lesser



  6
   Because Abuali’s withholding of removal claim fails for lack of a showing of
“persecution,” we need not reach the question of whether the claimed persecution was
“on account of” a protected ground.

                                              9
forms of cruel, inhuman or degrading treatment or punishment that do not amount to

torture”).

       We have already explained that the market shooting and general unease that

Abuali endured in Palestine do not rise to the level of persecution so as to warrant

withholding of removal under section 241(b)(3) of the Act. Abuali presents no additional

evidence that would suggest to us that it is “more likely than not” that he would suffer the

even worse fate of being tortured upon his return to Palestine. Accordingly, the BIA’s

finding that Abuali “has failed to establish eligibility for protection under the Torture

Convention” (A.R. 3) will not be disturbed.

                                      CONCLUSION

       For the reasons set forth above, the Petition for Review will be DENIED.

___________________




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