                        RECOMMENDED FOR FULL-TEXT PUBLICATION
                             Pursuant to Sixth Circuit Rule 206
                                     File Name: 09a0280p.06

                UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                   _________________


                                                X
                                                 -
 ESSAM SALEH MOHAMED ALHAJ,
                                                 -
                                          Petitioner,
                                                 -
                                                 -
                                                      No. 08-3322
           v.
                                                 ,
                                                  >
                                                 -
                                  Respondent. -
 ERIC H. HOLDER, JR., Attorney General,
                                                 -
                                                N
                     On Petition for Review from a Final Order
                       of the Board of Immigration Appeals.
                                 No. A95 457 870.
                                   Submitted: March 9, 2009
                                                                    *
                              Decided and Filed: July 10, 2009

            Before: DAUGHTREY, ROGERS, and KETHLEDGE, Circuit Judges.

                                      _________________

                                           COUNSEL
ON BRIEF: David K. Wenger, WENGER & ASSOCIATES, PC, Detroit, Michigan, for
Petitioner. Nehal H. Kamani, James A. Hunolt, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent.
                                      _________________

                                           OPINION
                                      _________________

        MARTHA CRAIG DAUGHTREY, Circuit Judge. Essam Saleh Mohamed Alhaj
petitions this court for review of a decision of the Board of Immigration Appeals affirming
rulings by an immigration judge that mandated Alhaj’s removal from the United States to
his native Yemen. In challenging that administrative order, Alhaj contends that he is a
member of a persecuted social group, that he would be subjected to persecution and torture


        *
         This decision was originally issued as an “unpublished decision” filed on July 10, 2009. On
August 7, 2009, the court designated the opinion as one recommended for full-text publication.


                                                 1
No. 08-3322              Alhaj v. Holder                                             Page 2


if returned to Yemen, and that the immigration judge erred in denying his request for
voluntary departure from this country. We conclude that we do not have jurisdiction to
review the factual aspects of Aljah’s challenge to the denial of his request for voluntary
departure and, moreover, that his remaining assignments of error are without merit. We
therefore deny the petition for review.

                   FACTUAL AND PROCEDURAL BACKGROUND

        The petitioner is a Yemeni national who was admitted to the United States as a non-
immigrant visitor in 1997, overstayed his visa, and was placed in removal proceedings in
January 2003. He conceded removability at an initial hearing in 2005 but requested asylum,
withholding of removal, and protection under the United Nations Convention Against
Torture. Because his application for asylum was filed more than a year after entry in 1997,
he was forced to concede that he was statutorily ineligible for asylum. Alhaj nevertheless
renewed his application for withholding of removal and relief under the Convention Against
Torture.

        In support of his application, Alhaj testified at a 2006 hearing in the immigration
court that he was born in Yemen in 1974 and lived in that country for the first 23 years of
his life. By 1995, Alhaj and a partner owned a retail shop in the capital city of Sana’a and
sold clothing, perfume, and other cosmetic items. He recalled that in January or February
1995, a young woman entered his shop with an older man and an older woman. Thinking
that the young woman “looked so nice and . . . looked like she was under persecution,” Alhaj
supposedly slipped a bottle of perfume and a note containing his telephone number into the
bag holding the woman’s purchases. Two days later, Alhaj said, the woman telephoned him
to thank him for the gift. During the course of the ensuing conversation, the woman, Ekhlas
Ahmed Ali, revealed that the older man with whom she had entered the petitioner’s store was
actually her husband and that she had been forced to marry him because the man’s first wife,
the older woman who was also with them at the shop, was unable to bear children. Alhaj
said that over the next few months, he and Ekhlas continued to talk and, by April or May,
had established a secret relationship. However, four months after they began seeing each
other, he testified, two men sent by Ekhlas’s husband lured him outside his shop, where they
No. 08-3322                 Alhaj v. Holder                                            Page 3


struck him repeatedly with the butt of a gun, fired a number of shots between his legs, and
delivered an oral message that Alhaj should no longer associate with another man’s wife.

           The petitioner further testified that, approximately two weeks later, Ekhlas
telephoned the petitioner and explained that she needed to meet with him immediately. At
the rendezvous, she informed him that she was pregnant with the petitioner’s child. After
receiving that news, and in light of the prior altercation with Ekhlas’s husband’s
“representatives,” Alhaj said that he tried to avoid going to his shop and seeing or
telephoning Ekhlas as often as he had previously. Eventually, the petitioner testified, he sold
his interest in the shop and, in July 1997, traveled to Germany to attempt to start a new life
away from the man whose associates had threatened him. According to Alhaj, his efforts to
relocate failed because of difficulty in mastering a new language, and he eventually returned
to Yemen.

           Once there, Alhaj supposedly asked Ekhlas to accompany him to England, where he
hoped to start a new career and also have a better grasp of the language. She suggested
instead that the couple attempt to move to the United States, where she already had family
connections. As a result, Alhaj testified, he entered the United States on December 27, 1997,
as a “nonimmigrant visitor for pleasure” – and subsequently overstayed his six-month
departure date. In 1999, Ekhlas also traveled to the United States under the pretense of
visiting her brother in this country. Once reunited here, Ekhlas and Alhaj telephoned
Ekhlas’s husband in Yemen, informed him that Ekhlas’s child was conceived with the
petitioner, not the husband, and convinced the husband to divorce Ekhlas. Alhaj and Ekhlas
were then married in 2000 and had three additional children together. Meanwhile, Ekhlas’s
first husband declared her an outcast and, according to the petitioner, would kill both Ekhlas
and Alhaj should the couple return to Yemen. As proof of the ex-husband’s intentions,
Ekhlas’s brother testified that Ekhlas’s ex-husband orchestrated the detention of Ekhlas’s
father in Yemen for two or three days before local government officials insisted upon his
release.

           At the conclusion of the evidentiary hearing, the immigration judge determined that
Alhaj had failed to identify a distinct, persecuted social group to which he belonged.
Consequently, the immigration judge denied the petitioner’s claim for withholding of
No. 08-3322                Alhaj v. Holder                                                  Page 4


removal. Further concluding that Alhaj failed to establish through hearing testimony that
it was more likely than not that he would be tortured should he return to Yemen, the
immigration judge also denied the request for relief under the Convention Against Torture.
Finally, because Alhaj was unable to produce documentation that he had been approved for
admission into another country other than Yemen, and because he refused to return to his
homeland of his own accord, the immigration judge denied the petitioner the right to depart
this country voluntarily. The Board affirmed the immigration judge’s rulings in a separate
written opinion, and Alhaj filed this petition for review.

                                        DISCUSSION

I. Voluntary Departure

        Alhaj contends that the immigration judge and Board erred in ruling that he was not
entitled to depart voluntarily from the United States. Ordinarily, this court is without
jurisdiction to review denials of voluntary departure decisions. See 8 U.S.C. §§ 1229c(f),
1252(a)(2)(B)(i). We may, however, exercise our jurisdiction over such claims that raise
constitutional or legal questions. See 8 U.S.C. § 1252(a)(2)(D); Patel v. Gonzales, 470 F.3d
216, 219 (6th Cir. 2006). In this appeal, the petitioner submits that the immigration judge
committed legal error by improperly requiring him to produce both a valid passport (which
he did) and documentation sufficient to assure lawful entry into another country (which he
did not), in order to be eligible for the discretionary relief sought.

        Pursuant to the provisions of 8 U.S.C. § 1229c(b)(1), the Attorney General may
allow an alien to depart from the United States at the alien’s own expense after the
conclusion of removal proceedings if certain findings can be made. Specifically, the
Attorney General or his designate must find that:

        (1) the alien was present in the United States for at least one year prior to the
        filing of a Notice to Appear;
        (2) the alien has demonstrated good moral character for at least five years
        prior to applying for voluntary departure;
        (3) the alien is not removable as an aggravated felon or as a spy, terrorist, or
        Nazi; and
No. 08-3322                 Alhaj v. Holder                                              Page 5


          (4) the alien has established “by clear and convincing evidence” that the
          alien has both the means and the intention to depart the United States.
The necessary “clear and convincing evidence of the means to depart” requires “presentation
by the alien of a passport or other travel documentation sufficient to assure lawful entry into
the country to which the alien is departing.” 8 C.F.R. § 1240.26(c)(2) (2008) (emphasis
added).

          The petitioner contends that regulation’s use of the disjunctive “or” suggests that the
immigration judge committed a mistake of law in demanding that he produce both a passport
and a visa before becoming eligible for a grant of voluntary departure. This argument rests
on a misreading of the regulation, however. What is required under section 1240.26(c)(2)
is authorization to enter the country to which an alien is voluntarily departing. Were the
petitioner in this case returning to Yemen, the country of removal designated by the
immigration judge, his passport alone would be sufficient to support a grant of voluntary
departure. But, because Alhaj refused to accept removal to Yemen, he was required to
designate an alternate destination and present documentation permitting entry into that
country. Hence, his presentation of the passport alone was insufficient to assure the
immigration judge that the petitioner would be allowed permanent entry into another
country, and the immigration judge did not commit a “constitutional or legal error” in
denying the request for voluntary departure. We therefore uphold the immigration judge’s
decision in this regard.

II. Withholding of Removal

          The petitioner also contests the decision of the immigration judge, upheld by the
Board, that he was not entitled to withholding of removal. When, as in this case, the Board
issues its own separate opinion after reviewing the decision of an immigration judge, the
appellate court treats that Board ruling as the final agency determination. See Morgan v.
Keisler, 507 F.3d 1053, 1057 (6th Cir. 2007). We then review all legal determinations made
in such a Board ruling de novo and grant substantial deference to the Board’s interpretation
of the Immigration and Nationality Act and the Act’s accompanying regulations. See id.
Moreover, the factual components of such an administrative ruling must be sustained if the
determination is “supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). “Under this
No. 08-3322               Alhaj v. Holder                                              Page 6


deferential standard, we may not reverse the Board’s determination simply because we
would have decided the matter differently.” Koliada v. INS, 259 F.3d 482, 486 (6th Cir.
2001) (per curiam) (citing Mikhailevitch v. INS, 146 F.3d 384, 388 (6th Cir. 1998)). Rather,
to overturn such a factual determination, “we must find that the evidence not only supports
[a contrary] conclusion, but compels it.” Elias-Zacarias, 502 U.S. at 481 n.1.

        Pursuant to the provisions of 8 U.S.C. § 1231(b)(3)(A), “the Attorney General may
not remove an alien to a country if the Attorney General decides that the alien’s life or
freedom would be threatened in that country because of the alien’s race, religion, nationality,
membership in a particular social group, or political opinion.” Thus, in order to qualify for
withholding of removal, the petitioner “must establish that there is a clear probability that
he will be subject to persecution if forced to return to the country of removal.” Pilica v.
Ashcroft, 388 F.3d 941, 951 (6th Cir. 2004). To make such a showing, a petitioner “must
demonstrate that ‘it is more likely than not’ that he or she will be persecuted upon return.”
Liti v. Gonzales, 411 F.3d 631, 641 (6th Cir. 2005) (quoting 8 C.F.R. § 1208.16(b)(2)).

        Clearly, Alhaj cannot claim that he, a Muslim and native Yemeni, would “more
likely than not” be persecuted upon a return to Yemen because of his race, religion, or
nationality. Moreover, he identifies no political opinion or position that would subject him
to different treatment. As a result, he maintains only that the expected persecution he would
suffer in his homeland would result from his membership in a particular social group. In
support of that argument, Alhaj suggests that his wife is a member of such a group – the
group of young women forced to marry older men – and that his association with his wife
results in his membership in the group as well. Without regard to whether such a grouping
would even meet the criteria of “a particular social group” entitled to protection under the
Immigration and Nationality Act, see, e.g., Castellano-Chacon v. INS, 341 F.3d 533, 546
(6th Cir. 2003) (defining “the term ‘particular social group’ as composed of individuals who
share a ‘common, immutable characteristic’”), or whether Alhaj’s attempted formulation of
a transitive property of persecution is valid, the fundamental basis of the petitioner’s
argument in this regard is so flawed that it dooms his prospects for success on the issue.

        As noted by the government, any persecution suffered by or threatened toward Alhaj
is not the result of either Ekhlas’s first marriage or of the petitioner’s opposition to the
No. 08-3322                Alhaj v. Holder                                              Page 7


practice of older Yemeni men forcing younger women to marry them. Instead, the purported
violence displayed toward Alhaj by Ekhlas’s ex-husband is solely in the nature of a personal
vendetta against the petitioner for carrying on an affair and conceiving a child with his then-
wife. Because Alhaj thus cannot establish that any past or future mistreatment resulted or
will result from his “race, religion, nationality, membership in a particular social group, or
political opinion,” the restrictions on the removal of an alien who overstays his visitation
period in this country do not come into play and the Board did not err in denying
withholding of removal.

III. Relief Under the United Nations Convention Against Torture

         The petitioner additionally requested relief under the provisions of the United
Nations Convention Against Torture. To obtain withholding of removal under that
convention, “[t]he burden of proof is on the applicant . . . to establish that it is more likely
than not that he or she would be tortured if removed to the proposed country of removal.”
8 C.F.R. § 208.16(c)(2). “Torture,” in any of its myriad manifestations, must entail the
intentional infliction of severe mental or physical pain upon an individual “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).

         The potential harm that might be visited upon Alhaj upon his return to Yemen does
not constitute “torture” under the Convention because it does not originate from pain or
suffering either initiated by a public official or inflicted with the consent or acquiescence of
such an official. Furthermore, even though Alhaj asserts that his wife’s ex-husband is a
powerful man within Yemen, it is also true that when that ex-husband allegedly arranged for
the detention of Ekhlas’s father, government officials intervened and released Alhaj’s father-
in-law unharmed after two or three days of incarceration. Any such treatment by a non-
governmental entity, rectified by official government actors, does not constitute torture under
the Convention Against Torture and, thus, does not entitle the petitioner to the relief he now
seeks.
No. 08-3322                 Alhaj v. Holder                                            Page 8


                                       CONCLUSION

        The Board’s denial of the petitioner’s request for voluntary departure involved no
error. We lack jurisdiction to review the factual aspects of the Board’s decision, i.e., the
factual findings that Alhaj did not produce the necessary documentation for entry into
another country and that Alhaj also did not designate another country as a final destination.

        Furthermore, Alhaj has failed to establish his membership in a particular social group
targeted for persecution within Yemen. In fact, the record before this court establishes
nothing more than a situation in which an extra-marital affair has predictably angered at least
one of the principals involved. Because such a personal vendetta does not constitute
persecution under the Immigration and Nationality Act, Alhaj’s claim for withholding of
removal is without merit.

        Finally, the record establishes that neither the Yemeni government nor any person
acting in an official governmental capacity has tortured, threatened, or acquiesced in such
torture or threats of torture against the petitioner, his family, or his in-laws. He has,
therefore, failed to establish entitlement to relief under the United Nations Convention
Against Torture.

        For these reasons, we DENY Alhaj’s petition for review.
