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


3-5-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3528




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                                                           NOT PRECEDENTIAL

  UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT



                                No. 05-3528


                             ADEM OZMEN,
                                    Petitioner

                                     v.

          ATTORNEY GENERAL OF THE UNITED STATES,
                                         Respondent


                    On Petition for Review of an Order
                   of the Board of Immigration Appeals
                            (No. A97-849-045)
                Immigration Judge: Hon. Daniel A. Meisner


                Submitted Under Third Circuit LAR 34.1(a)
                             March 5, 2007

Before: SLOVITER and AMBRO, Circuit Judges, and BRODY,* District Judge

                           (Filed: March 5, 2007)




                                 OPINION




            *
              Hon. Anita B. Brody, United States District Court for the
      Eastern District of Pennsylvania sitting by designation.
SLOVITER, Circuit Judge

       Adem Ozmen (“Petitioner”) has filed a petition for review from the decision of the

Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) decision

to deny his application for asylum, withholding of removal and relief under the

Convention Against Torture (“CAT”). We have jurisdiction to review the petition based

upon 8 U.S.C. § 1252(a)(1). For the reasons stated below, we will deny the petition for

review.

                                            I.

       Ozmen is a native and citizen of Turkey. He arrived in the United States on

August 20, 1998 as a non-immigrant student. He initially attended Rutgers University but

stopped attending college in April 2003. Ozmen thereafter applied for asylum on

September 15, 2003, claiming fear of persecution because he is a homosexual. After an

interview with the Department of Homeland Security (“DHS”), Ozmen was placed in

removal proceedings. The DHS referred Ozmen’s application to the Immigration Court

in Newark, New Jersey, where he was given a hearing before an IJ on February 3, 2004.

At the hearing, Ozmen conceded removability, but applied for asylum, withholding of

removal, and relief under the CAT.

       Ozmen’s claim both before the IJ and here is that he has been persecuted in Turkey

on account of his sexual orientation and has a well-founded fear of persecution if he is

returned to Turkey. Ozmen, who was the only witness, testified that as a young child he

was teased and tormented by his fellow classmates due to his effeminate nature. He

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testified that authorities in the school refused to do anything about the situation because

they hoped such treatment would make him “more a man.” App. at 72. Ozmen stated

that while at college in Turkey he attempted to start a “gay student association” but the

Dean refused, stating that a gay student union was illegal. App. at 273-74. Shortly

thereafter, according to his application for asylum, he and four other gay university

students were arrested. According to Ozmen, the police questioned, harassed, and kept

him overnight before permitting him to leave the next morning. He testified that while

detained he was struck by the police but did not say he sought medical treatment as a

result of the incident. He and the other students returned to the university, but as a result

of his arrest his fellow students learned that he was gay. This “outing” led to an

altercation whereby three students attacked him in the shower: stealing his towel,

throwing him to the ground, kicking him, and threatening him with rape if he did not

“become straight.” App. at 71-274.

       Ozmen and the Government introduced documents at the hearing before the IJ in

support of their respective positions. Following the hearing the IJ issued an oral decision

rejecting Ozmen’s application for asylum, withholding of removal, and relief under the

CAT. The IJ did grant him a 60-day period of voluntary departure, but he appealed to the

BIA.

       On June 23, 2005, the BIA affirmed the IJ’s decision without opinion. This timely

petition for review followed.

                                             II.

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       Where, as here, the BIA has not rendered its own opinion but rather has deferred to

or adopted the opinion of an IJ, we review the decision of the IJ as the final agency

decision. Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir. 2004); Dia v. Ashcroft, 353 F.3d

228, 243 (3d Cir. 2003) (en banc). Furthermore,

       [w]hether an asylum applicant has demonstrated past persecution or a well-
       founded fear of future persecution is a factual question, which we review
       under the substantial evidence standard. Adverse credibility determinations
       are also reviewed for substantial evidence. We will uphold the findings of
       the BIA to the extent that they are supported by reasonable, substantial and
       probative evidence on the record considered as a whole, and will reverse
       those findings only if there is evidence so compelling that no reasonable
       factfinder could conclude as the BIA did.

Mulanga v. Ashcroft, 349 F.3d 123, 131 (3d Cir. 2003) (internal citations and quotations

omitted).

       To qualify as a “refugee” who may receive asylum, an alien must establish that

s/he is unable or unwilling to return to his or her country of nationality “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 persecution alleged must be at the hands of the government or

individuals the government is either unable or unwilling to control. Gao v. Ashcroft, 299

F.3d 266, 272 (3d Cir. 2002).

       To establish a well-founded fear of persecution, an asylum applicant must

demonstrate a subjective fear of persecution through credible testimony that his or her

fear is genuine. Sukwanputra v. Gonzales, 434 F.3d 627, 637 (3d Cir. 2006); Zubeda v.


                                              4
Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003). The BIA and this court have defined

persecution as “‘threats to life, confinement, torture, and economic restrictions so severe

that they constitute a threat to life or freedom.’” Lie v. Ashcroft, 396 F.3d 530, 536 (3d

Cir. 2005) (citing Fatin v. INS, 12 F.3d 1233, 1240 (3d. Cir. 1993)). However,

persecution does not “encompass all treatment that our society regards as unfair, unjust,

or even unlawful or unconstitutional.” Fatin, 12 F.3d at 1240.

       The threshold for establishing eligibility for withholding of removal is higher than

that for establishing entitlement to asylum and requires the alien to demonstrate a “clear

probability of persecution,” or that it is “more likely than not” that he or she will be

persecuted upon return to his home country. INS v. Cardozo-Fonseca, 480 U.S. 421, 430

(1987); Li Wu Lin v. INS, 238 F.3d 239, 244 (3d Cir. 2001). An applicant who does not

qualify for asylum necessarily does not qualify for withholding of removal. Guo v.

Ashcroft, 386 F.3d 556, 561 n.4 (3d Cir. 2004).

       Finally, to qualify for relief under the CAT, an applicant for relief bears the burden

of proving through objective evidence that it is “more likely than not” that s/he would be

tortured in the country to which the applicant would be removed. Wang v. Ashcroft, 368

F.3d 347, 349 (3d Cir. 2004) (quoting 8 C.F.R. § 1208.16(c)(2)). Furthermore, 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.

. . .” 8 C.F.R. § 1208.18(a)(1). While a petitioner is not required to show that s/he would

be tortured on account of one of the statutorily enumerated factors, petitioner does carry

                                              5
the burden of proving the torture would occur “with the consent or acquiescence of a

public official or other person acting in an official capacity.” Id.; see also Lukwago v.

Ashcroft, 329 F.3d 157, 183 (3d Cir. 2003).

       The IJ found that Ozmen was ineligible for asylum because, inter alia, he failed to

meet his burden of proof to establish persecution. This conclusion is supported by

substantial evidence. Although he was teased about being a homosexual and was

attacked on one occasion by three fellow students for being a homosexual, this does not

rise to the level of persecution. Additionally, these incidents did not involve the essential

element of government action. In contrast, his arrest and detention overnight by police

did involve government action, but it did not rise to the level of persecution. Rather, as

the IJ noted, although Ozmen stated that he was “beat[en] up” and “slapped” by the

police, App. at 65, the conduct of the police, while reprehensible, does not in this “single

incident of detention for some hours [followed by release] the next morning,” App. at 6,

amount to persecution.

       Because Ozmen has not satisfied the required burden of proof to show eligibility

for asylum, we also find that he has failed to meet the higher burden of proof to show

withholding of removal or withholding of removal under the CAT.

       Ozmen contends that the IJ failed to act as a neutral and impartial factfinder. It is

undisputed that an IJ may introduce evidence into the record. Mulanga, 349 F.3d at 135.

Furthermore, “‘[when] the Immigration Judge relies on the country conditions in

adjudicating the alien’s case, the source of the Immigration Judge’s knowledge of the

                                              6
particular country must be made part of the record.’” Caushi v. Atty. Gen., 436 F.3d 220,

231 n.7 (3d Cir. 2006) (quoting In re S-M-J, 21 I. & N. Dec. 722, 727, 1997 WL 80984

(B.I.A. 1997)).

       In this case, the IJ provided a portion of a United Kingdom country report of

Turkey to both parties at the February 3, 2004 hearing, and neither party objected. The

portion of the report at issue contained data on Turkey’s treatment of “homosexuals,

transsexuals, and transvestites.” App. at 7. However, in addition to this report, the IJ also

questioned Ozmen on two articles found on the internet entitled “Gay Times” and

“Lambda Istanbul.” App. at 81-83.

       Ozmen contends that it was error for the IJ to “conduct[ ] his own research.”

Petr.’s Br. at 11. Neither of these articles became part of the record. The IJ did not

commit error in asking Ozmen about these internet articles. Although the IJ used the

articles to question Ozmen about the “gay scene,” App. at 81, in Turkey and to determine

whether he knew of any homosexual organizations in Turkey, in his oral opinion the IJ

did not rest his decision on these two articles. At most, it would have been harmless

error. Instead, he referred to the United Kingdom country report that he did provide to

both parties without objection. According to that report, there is a “fairly well-developed

homosexual scene” in cities “like Istanbul, Izmir or Ankara,” and there are some “active

homosexual rights organisations.” App. at 88. The IJ recognized that Ozmen may be

subjected to harassment and discrimination because of his sexual orientation if he returns

to Turkey, but held that such treatment does not equate to persecution. Ozmen failed to

                                             7
present evidence that his treatment rose to the level of persecution. The country report

provided evidence to support the IJ’s conclusion that Ozmen failed to establish that his

life or freedom would be threatened if he were to return to Turkey or that the Turkish

government would torture him or acquiesce or consent to his torture.

                                           III.

       In sum, we conclude that Ozmen failed to provide evidence of past persecution or

future persecution and, as such, the IJ did not abuse its discretion in denying Ozmen’s

applications. For the reasons stated above, we will deny Ozmen’s petition for review.




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