                                   File Name: 07a0557n.06
                                    Filed: August 8, 2007

                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                         No. 06-3313

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

MAGDI LAMEY MOSSAAD,

          Petitioner,

v.                                                      ON PETITION FOR REVIEW FROM
                                                        THE BOARD OF IMMIGRATION
ALBERTO R. GONZALES, Attorney General of                APPEALS
the United States of America,

          Respondent.


                                                    /

Before:          MARTIN, BATCHELDER, and CLAY, Circuit Judges.

          BOYCE F. MARTIN, JR., Circuit Judge. Magdi Lamey Mossaad, a native of Egypt,

petitions for review of a Board of Immigration Appeals decision affirming an Immigration Judge’s

order that Mossaad be removed from the United States to Egypt. Mossaad argues that the

Immigration Judge (IJ) and the Board of Immigration Appeals (BIA) committed error by

retroactively applying the Immigration and Nationality Act (INA) to bar him from seeking asylum

and withholding of removal. He additionally argues that the Immigration Judge and the Board erred

in denying his claim for protection under the United Nations Convention Against Torture. For the

following reasons, we DENY his petition for review.
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                                                I.

       Mossaad, a native of Egypt, was admitted into the United States as a lawful permanent

resident in 1979. He was nine years old. According to Mossaad’s testimony, he and his family are

Coptic Christians. Coptic Christians are the largest Christian minority group in the Middle East,

numbering more than 6 million in Egypt alone. They have been subject to persecution for decades

by both the Egyptian government and rogue Islamic militant groups.

       In 1989, having lived in the United States for approximately ten years, Mossaad pled guilty

to armed robbery. He served approximately six years in prison and was released in 1995. In 2000,

the Immigration and Naturalization Service (INS) commenced removal proceedings against

Mossaad. He was charged with removability under § 237(a)(2)(A)(iii) of INA, as an alien who, at

any time after admission, was convicted of an aggravated felony, including a crime of violence for

which the term of imprisonment is at least one year. See 8 U.S.C. §§ 1101(a)(43)(F)-(G),

1227(a)(2)(A)(iii). He was also charged with removability under § 237(a)(2)(C) of the INA, as an

alien who, at any time after admission, was convicted of a firearms offense. See 8 U.S.C. §

1227(a)(2)(C). On October 8, 2004, the IJ found that Mossaad’s conviction for armed robbery

barred him from applying for asylum and withholding of removal pursuant to 8 C.F.R. §

208.13(c)(2)(i)(A). The IJ also denied his claim for protection under the United Nations Convention

Against Torture and ordered him removed to Egypt. The BIA affirmed the findings of the IJ.

                                                II.

       The immigration laws of the United States have always stated that aliens may be deported

or excluded from entry for the commission of certain crimes. Under the Immigration and Nationality
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Act of 1952, aliens were deportable (now known as removable) upon conviction for two crimes of

“moral turpitude,” or for one such crime if it occurred within five years of entry and resulted in a jail

term of at least one year. INS v. St. Cyr, 533 U.S. 289, 295 (2001) (citing 8 U.S.C. § 1227

(a)(2)(A)(i)-(iii) (1994 ed., Supp. V.)). The Anti-Drug Abuse Act of 1988 further specified that an

alien is removable upon conviction for any “aggravated felony,” which was defined to include

numerous offenses without regard to how long ago they were committed. Id. Before 1990, however,

aliens who were removable due to a conviction for an aggravated felony or for crimes of moral

turpitude were still eligible for discretionary relief from deportation. Section 212(c) of the

Immigration and Nationality Act of 1952 was “interpreted by the Board of Immigration Appeals to

authorize any permanent resident alien with a lawful unrelinquished domicile of seven consecutive

years to apply for a discretionary waiver from deportation.” Id. (internal quotations and citations

omitted). If relief was granted, the alien remained a permanent resident despite his or her conviction.

        The Immigration Act of 1990 amended § 212(c) to preclude from discretionary relief anyone

convicted of any aggravated felony who had served a term of imprisonment of at least five years.

Id. (citing 104 Stat. 4978, 5052 (1990) (amending 8 U.S.C. § 1182(c))). The Act expressly stated

that the aggravated felony bar to discretionary relief applied to “convictions entered before, on, or

after the date of the enactment of this Act.” Immigration Act of 1990, Pub. L. No. 101-649, §

515(b)(2), 104 Stat. 4978. One year later, further restrictive amendments were passed. See

Miscellaneous and Technical Immigration and Naturalization Amendments of 1991 (MTINA), Pub.

L. No. 102-232, 105 Stat. 1733 (1991). MTINA provided that any alien convicted of an aggravated
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felony is barred from seeking asylum and is also barred from applying for withholding of removal

for convictions entered before, on, or after the date of enactment. Id. at § 306(a)(13).

        The question before this Court is whether the aggravated felony bar provisions of the

Immigration Act of 1990 and MTINA apply retroactively to Mossaad’s 1989 conviction for armed

robbery. The Supreme Court has provided a two-pronged approach for determining if a statute

should be applied retroactively. See St. Cyr, 533 U.S. at 291. First, a court must ascertain whether

Congress has “directed with the requisite clarity that the law be applied retrospectively.” Id. If the

court finds that Congress clearly intended for the law to be applied retroactively, the analysis ends

and the law may be applied as Congress clearly intended. While the presumption against

retroactivity is strong, “it is beyond dispute that, within constitutional limits, Congress has the power

to enact laws with retrospective effect.” Id. If, however, the court finds that Congress was not clear

enough in its intention to apply the law retroactively, it must determine whether the law attaches new

legal consequences to events completed before its enactment. Id. (citing Landgraf v. USI Film

Products, 511 U.S. 244, 270 (1994)). A law will be found to be impermissibly retroactive if it “takes

away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a

new duty, or attaches a new disability, in respect to transactions or considerations already past.” Id.

at 321 (internal quotations and citations omitted).

        Here, we need not reach the second prong of the St. Cyr/Landgraf inquiry, as Congress more

than adequately dictated that the aggravated felony bars contained in the Immigration Act of 1990

and MTINA should apply retroactively to all such convictions. See Immigration Act of 1990, §

515(b)(1); MTINA § 306(a)(13) (stating that the aggravated felony bar applies to “convictions
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entered before, on, or after” the date of enactment) . And while this issue appears to be a matter of

first impression in the Sixth Circuit, almost every other Circuit that has addressed it has come to one

of two conclusions: (1) that Congress adequately stated its intent to apply the aggravated felony bar

retroactively,1 or (2) that the BIA’s interpretation that the aggravated felony bar applies

retrospectively is a permissible construction of the statute.2

       Petitioner nevertheless argues that the BIA and the IJ impermissibly applied the immigration

regulation barring individuals convicted of aggravated felonies from seeking asylum and

withholding of removal retroactively to his 1988 conviction for armed robbery.3 This Court finds


       1
         Some courts have found that Congress clearly intended to make 8 U.S.C. § 1158(d) –
currently § 1158(b) – retroactive. See Feroz v. INS, 22 F.3d 225, 226-27 (9th Cir. 1994) (affirming
the BIA’s retroactive application of 8 U.S.C. § 1158(d) to bar petitioner’s asylum application, stating
that “Congress has made clear its intention in this regard”); Buitrago-Cuesta v. INS, 7 F.3d 291, 295
(2d Cir. 1993) (noting that, with respect to 8 U.S.C. § 1158(d), “the concept of aggravated felony
expressly applies retroactively”); Martins v. INS, 972 F.2d 657, 660 (5th Cir. 1992) (reasoning that
Congress inserted the “before, on, or after” language in order to bar all aggravated felons from
applying for asylum).
       2
         Other courts have found the statute ambiguous, but have nonetheless deferred to the BIA's
interpretation as set forth in Matter of A-A, 20 I. & N. Dec. 492 (1992). See Barreiro v. INS, 989 F.2d
62, 64 (1st Cir. 1993) (holding that the BIA’s interpretation is persuasive despite “presumption
against retroactivity”); De Osorio v. INS, 10 F.3d 1034, 1039 (4th Cir. 1993) (concluding that “the
Board’s interpretation [as to the effective date of the term ‘aggravated felony’] is a permissible
construction of the statute and is more consistent with the intent of Congress”).
       3
         Petitioner relies on Kankamalage v. INS, 335 F.3d 858 (9th Cir. 2003), where the Ninth
Circuit held that the immigration regulation that outlines the procedures for determining asylum and
withholding of removal could not be applied retroactively to convictions occurring before the
regulation was enacted. We believe the Kankamalage Court erred in its analysis. While that court
found that the regulation could not be retroactively applied to convictions entered before its
enactment, the court did not analyze the statute passed by Congress which governs whether an
individual is eligible for asylum or withholding of removal. The Ninth Circuit itself had previously
held that Congress intended the aggravated felony bars contained in the Immigration Act of 1990 and
MTINA to apply retroactively. See Feroz v. INS, 22 F.3d 225, 226-227 (9th Cir. 1994). Thus it
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that while the IJ and the BIA both cited to 8 C.F.R. § 208.13(c)(2)(i)(A), that regulation does not

control this Court’s decision. “If the statute is clear and unambiguous that is the end of the matter,

for the court, as well as the agency, must give effect to the unambiguously expressed intent of

Congress. . . . The traditional deference courts pay to agency interpretation is not to be applied to

alter the clearly expressed intent of Congress.” K-Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291

(1988) (internal quotation marks and citations omitted)). As discussed above, Congress clearly

expressed its intent to apply the aggravated felony bar retroactively in the Immigration Act of 1990

and MTINA. The fact that the INS regulation governing asylum procedures does not contain the

same clear expression of retroactivity does not undo Congress’s clear intent.

       Given the clarity with which Congress has spoken with regard to the retroactive effect of the

aggravated felony bar, we DENY Mossaad’s petition for review of the Board’s determination that

Mossaad’s 1989 conviction for armed robbery bars his claims for asylum and withholding of

removal pursuant to 8 U.S.C. § 1158(b)(2)(A)(ii), (B)(i) (asylum bar) and 8 U.S.C. § 1231(b)(3)(B)

(withholding of removal bar).

                                                 III.

       Because Mossaad’s conviction for armed robbery bars him from applying for asylum or

withholding of removal, his only remaining avenue of relief is via a claim for protection under the




appears Kankamalage is not in accord with its own binding precedent. This analysis may all be moot
as the regulation at issue, 8 C.F.R. § 208.13(c)(2)(i)(A), only applies to petitions for asylum filed
before April 1, 1997. Petitioner’s immigration case did not begin until 2000, thus this regulation
does not even apply to him.
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Convention Against Torture. Mossaad argues that the IJ’s decision denying his Convention claim

was based on erroneous factual determinations.

        This Court has jurisdiction over Mossaad’s appeal of the BIA’s denial of his request for relief

under the Convention pursuant to 8 U.S.C. § 1252(b)(4). See Castellano-Chacon v. INS, 341 F.3d

533, 545-53 (6th Cir. 2003). Because the BIA adopted the IJ’s factual findings regarding Mossaad’s

eligibility for Convention relief, we review the IJ’s decision directly to determine whether the BIA’s

decision should be upheld. Denko v. INS, 351 F.3d 717, 723 (6th Cir. 2003).

        We may reverse the IJ’s determination against withholding of removal pursuant to the

Convention Against Torture if it is “manifestly contrary to law.” Almuhtaseb v. Gonzales, 453 F.3d

743, 749 (6th Cir. 2006) (citing 8 U.S.C. § 1252(b)(4)(C)). We defer to the IJ’s findings of fact

except when “any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.

§ 1252(b)(4)(B); accord Yu v. Ashcroft, 364 F.3d 700, 702-03 (6th Cir. 2004).

        “[T]o be eligible for withholding of removal under the [Convention], the applicant bears the

burden of establishing ‘it is more likely than not that he or she would be tortured if removed to the

proposed country of removal.’” Almuhtaseb, 453 F.3d at 749 (quoting 8 C.F.R. § 1208.16(c)(2)).

Furthermore, to qualify for withholding of removal under the Convention, Mossaad must establish

a “particularized threat of torture.” Castellano-Chacon, 341 F.3d at 551. In relevant part, “torture”

means

               any act by which severe pain or suffering, whether physical or mental, is
               intentionally inflicted on a person for such purposes as . . . punishing him or
               her for an act he or she or a third person has committed or is suspected of
               having committed, or intimidating or coercing him or her or a third person,
               or for any reason based on discrimination of any kind, when such pain or
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               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. § 1208.18(a)(1). The term “torture” only describes “an extreme form of cruel and inhuman

treatment and does not include lesser forms of cruel, inhuman or degrading treatment or punishment

that do not amount to torture.” Almuhtaseb, 453 F.3d at 749 (quoting 8 C.F.R. § 1208.18(a)(2)).

       In considering whether it is more likely than not that Mossaad would be subject to torture

were he returned to Egypt, all evidence related to the chance of future torture should be assessed by

the IJ, including, but not limited to

       (i) Evidence of past torture inflicted upon the applicant;

       (ii) Evidence that the applicant could relocate to a part of the country of removal where he
       or she is not likely to be tortured;

       (iii) Evidence of gross, flagrant or mass violations of human rights within the country of
       removal, where applicable; and

       (iv) Other relevant information regarding conditions in the country of removal.

8 C.F.R. § 208.16(c)(3).

       Mossaad presented documentary and testimonial evidence that he and his family were Coptic

Christians and that Coptic Christians have been ill-treated in Egypt for many years. The IJ, in a

detailed and lengthy order, discussed all of the evidence presented by Mossaad with regard to the

treatment of Coptic Christians in Egypt, including the testimony of Mossaad and his mother.

Mossaad was unable to provide any evidence that he personally had been tortured in the past. The

closest thing to torture Mossaad experienced were incidents of bullying as a child by Muslim

neighbors and that Christians (including himself) were hit with palms during a Palm Sunday
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processional by Muslim neighbors. Mossaad did present documentary evidence of the plight of

Coptic Christians in Egypt. But while this evidence outlined the historic ill-treatment of Coptic

Christians, the IJ found that the articles and other documents presented appeared to show “that on

the overall, things at least on the surface appear to be getting better, not worse.” Joint App’x at 31.

The IJ found Mossaad credible, but did not find that he would “more likely than not” be subject to

torture were he returned to Egypt. As the IJ adequately put it, “[t]he bottom line is that while the

respondent certainly will be placed in danger if he is removed to Egypt, the respondent has not

demonstrated that is more likely than not that [he] . . . would be subjected to torture . . . .” Id. at 44.

This finding is supported by substantial evidence, and nothing presented by Mossaad compels this

Court to conclude to the contrary.

                                                   IV.

        Finally, Mossaad contends that the IJ’s failure to continue his removal hearing until he was

able to obtain counsel was a violation of due process.

        We review de novo alleged due process violations in removal hearings. Mikhailevitch v. INS,

146 F.3d 384, 391 (6th Cir. 1998). The Sixth Circuit has stated that “Fifth Amendment guarantees

of due process extend to aliens in [removal] proceedings, entitling them to a full and fair hearing.

To constitute fundamental unfairness, however, a defect in the removal proceedings must have been

such as might have led to a denial of justice.” Huicochea-Gomez v. INS, 237 F.3d 696, 699 (6th Cir.

2001) (internal quotation and citations omitted). “Therefore, reviewing an alleged due process

violation is a two-step inquiry: first, whether there was a defect in the removal proceeding; and
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second, whether the alien was prejudiced because of it.” Vasha v. Gonzales, 410 F.3d 863, 872 (6th

Cir. 2005).

       Mossaad was issued a Notice to Appear on June 28, 2000 and his first hearing before the IJ

was held on November 28, 2000. On February 13, 2001, Mossaad filed for deferral of removal under

the Convention. A hearing to decide whether his removal should be deferred was set for September

9, 2004. At that hearing, Mossaad requested a continuance in order to seek new counsel. He

believed his present counsel was not preparing his case vigorously enough and had not thoroughly

prepared for the hearing. Mossaad informed the IJ that his church had contacted an immigration

attorney from New York. During the hearing, the IJ called the immigration attorney who said that

he had not yet been retained, but if details were worked out, he could represent Mossaad and appear

on October 8, 2004 for the removal hearing. Relying on the representations of Mossaad and the

immigration attorney, the IJ continued the hearing until October 8, 2004.

       On October 8, 2004, Mossaad appeared at his removal hearing without counsel. He informed

the IJ that he had been unable to come to terms with the attorney from New York. At the hearing,

Mossaad did not ask for another continuance to seek new counsel. The IJ allowed the hearing to go

forward.

       In order to establish a due process violation, Mossaad must show that his lack of counsel at

his removal hearing rose to the level of a constitutional defect, and that had he been represented by

counsel he would not have been ordered removed. See Sako v. Gonzales, 434 F.3d 857, 864 (6th Cir.

2006) (“[Petitioner] must establish that, but for the ineffective assistance of counsel, he would have

entitled to continue residing in the United States.”). This Court has held that where an alien has
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effective assistance of counsel at the BIA stage, the fact that he was unrepresented or had ineffective

assistance of counsel in front of the IJ does not constitute a due process violation. See Aguilera-

Enriquez v. INS, 516 F.2d 565 (6th Cir. 1975). Mossaad does not argue that he did not have

effective assistance of counsel at the BIA stage. In fact, he submitted briefs to the BIA which were

prepared by attorneys, revealing that he was assisted by counsel during his appeal. Thus, Mossaad’s

due process rights were not abridged by the IJ’s failure to grant an additional continuance so that

Mossaad could have retained new counsel because he was adequately represented in front of the BIA

and received a full administrative consideration of his arguments. See id. at 569 (“[t]he lack of

counsel before the Immigration Judge did not prevent full administrative consideration of his

argument. . . .    Fundamental fairness, therefore, was not abridged during the administrative

proceedings, and the order of deportation [was] not subject to constitutional attack for a lack of due

process.” (internal quotation marks omitted)).

                                                  V.

       For the reasons stated above, this Court DENIES the petition for review of the BIA’s and the

IJ’s findings that Mossaad is ineligible for asylum and withholding of removal, DENIES the petition

for review of the BIA’s and IJ’s denial of Mossaad’s claim for protection under the Convention

Against Torture, and DENIES the petition for review of the BIA’s and IJ’s denial of Mossaad’s

request for a further continuance of his removal hearing in order to obtain new counsel.
