                        IN THE UNITED STATES COURT OF APPEALS
                                 FOR THE FIFTH CIRCUIT



                                               No. 00-60708



RAED ABDULMATALES SAYMEH,
                                                                                      Petitioner,

                                                    versus

JOHN ASHCROFT, U.S. Attorney General,
                                                                                      Respondent.



                                 Petition for Review of an Order of the
                                     Board of Immigration Appeals

                                                July 25, 2002


Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

        Raed Abdulmatales Saymeh (“Saymeh”) appeals the Board of Immigration Appeals’s

(“BIA”) decision denying his application for asylum. For the following reasons, we hereby AFFIRM.

                                             BACKGROUND

        Saymeh is a stateless Palestinian. He was born on the West Bank, previously claimed by

Jordan, but now controlled by Israel. He has never resided in Jordan and has only visited there for

three very brief periods of time. At one time, Saymeh was issued a five-year Jordanian passport,



    *
     Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not
precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
which has since expired. He is married to a Jordanian citizen and they have two children. He also

has a brother who resides in Washington, D.C.

       Saymeh moved to Kuwait when he was eighteen years old to work. He lived in Kuwait until

he entered the United States on October 10, 1990 with a B-2 visa, which authorized him to remain

until April 5, 1991. On April 15, 1992, the Immigration and Naturalization Service (“INS”) issued

an Order to Show Cause against Saymeh charging him with deportability as a nonimmigrant alien who

overstayed his visa. He sought relief in the form of asylum, withholding of deportation, or, in the

alternative, voluntary departure.

       Saymeh sought asylum on the grounds that he feared persecution on account of his race,

ethnicity, and imputed political opinion. He contended that his life would be in danger if he were

forced to return to Kuwait, the country of his last habitual residence, due to the Kuwaiti perception

that the Palestinians aided the Iraqis during the Gulf War. Kuwait, however, would not allow Saymeh

back into the country. As such, the INS sought to deport him to Jordan if Honduras, the country he

designated for voluntary departure, would not accept him.

       The IJ determined that the poor conditions in Kuwait were the result of general violence.

Consequently, she found that Saymeh would be at no greater risk than the population at large. The

IJ observed that a perso n fleeing generally violent conditions is not a refugee. Thus, she denied

Saymeh’s request for asylum based upon her conclusion that Saymeh did not have a well-founded fear

of persecution on account of his race, ethnicity, or imputed political opinion. She also noted that

there was no evidence that Saymeh had a well-founded fear of persecution in Jordan. The IJ was

clear, however, that even if Saymeh established a well-founded fear of persecution, she would deny

his application as a matter of discretion. She also denied Saymeh’s request for withholding of


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deportation. Finding that Saymeh had been a person of good moral character, she granted his request

for voluntary departure. Administrative appeal was taken and the BIA upheld the IJ’s decision. On

appeal, Saymeh contests the IJ’s decision to deny his application for asylum.

                                    STANDARD OF REVIEW

        We review factual findings of the BIA to determine if they are supported by substantial and

probative evidence in the record. INS v. Elias- Zacarias, 502 U.S. 478, 481 (1992). We will reverse

only when the evidence is so compelling that no reasonable factfinder could fail to find the requisite

fear of persecution. Id. We accord deference to the BIA’s interpretation of immigration statutes

unless the record reveals compelling evidence that the BIA’s interpretation is incorrect. Rojas v. INS,

937 F.2d 186, 189 (5th Cir. 1991). We have authority to review only an order of the BIA, not the

IJ, unless the IJ’s decision has some impact on the BIA’s decision. Chun v. INS, 40 F.3d 76, 78 (5th

Cir. 1994). Here, the BIA, in its brief per curiam order essentially adopted the IJ’s decision. Thus,

we must review the IJ’s decision. Id.

                                              ASYLUM

        Under section 208 of the Immigration and Nationality Act, amended as 8 U.S.C. § 1158(b)(1),

the Attorney General has the authority to grant asylum to any alien determined to be a refugee

according to the definition provided in section 1101(a)(42)(A). For the purpose of asylum, a refugee

is defined as

                       any person who is outside any country of such person’s
                       nationality or, in the case of a person having no nationality, is
                       outside any country in which such perso n last habitually
                       resided, and who is unable or unwilling to return to, and is
                       unable or unwilling to avail himself or herself of the protection
                       of, that country 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.

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8 U.S.C. § 1101(a)(42)(A). Once an individual is classified as a refugee, he or she is not

automatically entitled to asylum, as the Attorney General still retains discretion. Jukic v. INS, 40

F.3d 747, 749 (5th Cir. 1994).

       Saymeh’s asserted entitlement to asylum is based on two factors. First, he maintains that he

is unable to return to Kuwait because of a well-founded fear of persecution. Second, he contends that

there is no discretionary basis for denying his asylum claim. Essentially, Saymeh asserts that the IJ

erred because she required Saymeh to prove a well-founded fear of returning to both Kuwait and

Jordan. Saymeh points out that section 1101(a)(42)(A)’s “unable or unwilling” language is written

in the disjunctive. He concludes that even though he is “unable” to return to Kuwait, the IJ was still

required to review the evidence to determine whether Saymeh had a well-founded fear of persecution

in Kuwait and only Kuwait. Instead, according to Saymeh, the IJ erroneously addressed whether he

had a well-founded fear of returning to Kuwait and Jordan.

       Even if Saymeh is correct that he proved a well-founded fear of persecution if forced to return

to Kuwait, and even if the IJ erroneously required him to prove a well-founded fear of persecution

in Jordan as well, this is irrelevant for purposes of this appeal. The IJ found that Saymeh’s fear was

ameliorated by the fact that he was not being forced to return to Kuwait. As such, she denied his

application as a matter of discretion after assuming arguendo that Saymeh’s fear was well-founded.

Thus, we are limited to a determination of whether the IJ abused her discretion in making this

alternative holding. See Elias- Zacarias, 502 U.S. at 481.

       A well-founded fear of persecution is established if there “is a reasonable possibility of actually

suffering such persecution if [the individual] were to return to [their country of last habitual

residence].” 8 C.F.R. § 208.13(b)(2). After reviewing the reco rd, this court recognizes that

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reasonable persons might differ as to whether Saymeh’s fear of persecution was well-founded. There

is conflicting evidence in the record regarding his claim. However, to prove that the IJ abused her

discretion, Saymeh is required to show, as a matter of law, that it was an abuse of discretion to deny

his application based on the fact that Saymeh will not be forced to return to the country which is the

situs of his fears. Saymeh has not cited case law which undermines the IJ’s alternative determination.

Moreover, the BIA order expressly adopted the IJ’s alternative determination by stating:

                       “In addition, regarding the issue of the respondent’s fear of
                       returning to Kuwait, we note that the Immigration Judge did
                       not order respondent deported to Kuwait. Rather the
                       respondent was ordered deported to Honduras or, in the
                       alternative to Jordan. We therefore affirm the Immigration
                       Judge’s decision.”


       Having reviewed the record and the applicable law, we cannot say, as a matter of law, that

it was an abuse of discretion for the IJ to deny asylum based on these facts.

                                          CONCLUSION

       For the foregoing reasons we therefore affirm the BIA’s decision to deny Saymeh’s request

for asylum.

       AFFIRMED.




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