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


2-28-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3342




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 06-3342


                           MICHEL HABIL TAWFIK SAID,

                                                       Petitioner

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES,

                                                       Respondent


                        On Petition for Review of an Order of
                         The Board of Immigration Appeals
                      Immigration Judge: Honorable Annie Garcy
                                 (No. A95-831-837)


                      Submitted Under Third Circuit LAR 34.1(a)
                                  February 7, 2008

                     Before: MCKEE and AMBRO, Circuit Judges,
                             and TUCKER,* District Judge

                               (Filed: February 28, 2008)




                                       OPINION



      *
       Honorable Petrese B. Tucker, United States District Judge for the Eastern District
of Pennsylvania, sitting by designation.
AMBRO, Circuit Judge

       Michel Habil Tawfik Said, a native and citizen of Egypt, petitions for review of

the affirmance by the Board of Immigration Appeal (“BIA”) of an order denying him

asylum, withholding of removal, and relief under the Convention Against Torture

(“CAT”).1 He argues that the BIA and immigration judge (“IJ”) who heard his case erred

by making an incorrect adverse credibility finding, failing to consider corroborating

evidence, incorrectly analyzing his CAT claim, and denying him due process. For the

reasons set forth below, we affirm.

                                              I

       As we write for the parties principally, our reference to facts is truncated. Said

arrived in the United States in July 1999. He subsequently received a student visa,

extending his legal stay in the United States until November 2001. The Department of

Homeland Security served Said with notice to appear in April 2003, thus beginning

removal proceedings.

       Said conceded removability at a hearing before the IJ but applied for asylum,

withholding of removal, and relief under the CAT on the basis that he is a Coptic

Christian who has been persecuted by Egyptian authorities because of his involvement in

groups that seek to enhance the welfare of that religious minority. The IJ denied the



       1
       The IJ reached an interlocutory decision denying Said asylum. The IJ
incorporated her interlocutory decision into her later decision denying withholding of
removal and relief under the CAT.

                                              2
requested relief but granted Said voluntary departure.

       Said appealed to the BIA, which affirmed the opinion of the IJ in June 2006. Said

timely petitions our Court for review.

                                             II

       The BIA had jurisdiction over Said’s appeal under 8 C.F.R. § 1003.1(b)(3). We

have jurisdiction to review a final order of removal under 8 U.S.C. § 1252(a)(1). We

generally review the decision of the BIA, but where, as here, the opinion of the IJ

effectively becomes that of the BIA, we review the IJ’s decision. Ashcroft v. Abdulai,

239 F.3d 542, 549 n.2 (3d Cir. 2001). We review adverse credibility determinations for

substantial evidence. He Chun Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004).

“Under this deferential standard of review, we must uphold the credibility determination

of the BIA or IJ unless ‘any reasonable adjudicator would be compelled to conclude to the

contrary.’” Id. (quoting 8 U.S.C. § 1252(b)(4)(B)). However, we may reverse a

credibility determination if it is not grounded in the record. Dia v. Ashcroft, 353 F.3d

228, 249 (3d Cir. 2003) (en banc).

                                             III

       The IJ found Said non-credible for several reasons. First, she noted the apparent

amplification over time of his testimony regarding his 1989 arrest, observing that his

hearing testimony described physical abuse that he had not mentioned in previous

interviews. The IJ emphasized that she gave Said many opportunities to explain his



                                             3
failure to describe this abuse in earlier interviews but that he provided inadequate

explanations. Despite assurances to the contrary by the IJ, Said ultimately stated that

descriptions of such physical abuse could be found in his earlier applications.

       Second, the IJ pointed out that although Said testified at the hearing that police

called upon him “all the time,” he did not make similar assertions in his asylum

application. The IJ observed that the asylum application indicates that the police ceased

harassing him in 1989, whereas he testified at the hearing that he was questioned

repeatedly between 1990 and 1999.

       Third, the IJ cited Said’s failure to testify consistently regarding the length of

detention resulting from his arrests by the Egyptian police.

       Fourth, the IJ noted that Said had not stated in his asylum application, as he did in

hearing testimony, that the police had interrogated, beaten, and threatened him, telling

him that Egypt was a Muslim country.

       Finally, the IJ explained that Said’s testimony conflicted with State Department

reports on Egypt. Those reports indicate that no pattern or practice of persecution against

Coptic Christians exists in Egypt.

       These discrepancies left the IJ “perplexed about what the facts are in this case . . .

[and] wondering whether [Said] had been arrested as described.” A reasonable

adjudicator could have evaluated the record in this fashion. Accordingly, we affirm the

adverse credibility finding as to his testimony that it is more likely than not that he would



                                              4
be persecuted in Egypt on the basis of his religion. The inconsistencies in Said’s

testimony equally undermine his assertions that he is more likely than not to be subjected

to torture upon removal to Egypt.

       Said also argues that the IJ erred by failing to consider his corroborating evidence

regarding conditions in Egypt. This argument amounts to the claim that the IJ should

have given more weight to Said’s evidence and less weight to the State Department

reports. It fails because a reasonable adjudicator could have weighed the evidence in the

manner the IJ did in this case.

       We are unpersuaded by Said’s argument that the IJ failed to keep separate her

analysis of Said’s application for withholding of removal and relief under the CAT. He

ignores the IJ’s statement that she “considered very carefully the respondent’s testimony

because the nature of a Convention claim is so different.” The IJ reasonably concluded,

however, that a claim under the CAT fails as readily as a claim for withholding of

removal if a petitioner does not convince the presiding IJ “of the truth of his factual

claims.”

       Finally, we reject Said’s due process argument because he failed to raise it before

the BIA. 8 U.S.C. § 1252(d)(1) requires the exhaustion of administrative remedies,

barring us from considering “particular questions not raised in an appeal to the Board.”

Zheng v. Gonzales, 422 F.3d 98, 107-08 (3d Cir. 2005) (quoting Alleyne v. I.N.S., 879

F.2d 1177, 1192 (3d Cir. 1989)); see also Bonhometre v. Gonzales, 414 F.3d 442, 448 (3d



                                              5
Cir. 2005) (explaining that the failure to raise due process argument before BIA is “fatal

to our jurisdiction over” a petition for review).2

                                        *****

       We deny the petition for review.




       2
       We also note that Said does not argue that the BIA erred in affirming the IJ’s
conclusion that his asylum application was time-barred.

                                               6
