         08-3351-ag
         Mekheel v. Holder
                                                                                        BIA
                                                                                  LaForest, IJ
                                                                               A 096 262 196
                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
     APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
     IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
     MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 20 th day of January, two thousand ten.
 5
 6       PRESENT:
 7                           JON O. NEWMAN,
 8                           ROBERT D. SACK,
 9                           DEBRA ANN LIVINGSTON,
10                                    Circuit Judges.
11
12       ______________________________________
13
14       FAWZY BOSHRA HAKEEM MEKHEEL,
15                Petitioner,
16
17                           v.                                 08-3351-ag
18                                                              NAC
19
20       ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL, *
21
22                Respondent.
23
24       ______________________________________
25
26


                      *
                   Pursuant to Federal Rule of Appellate Procedure
             43(c)(2), Attorney General Eric H. Holder, Jr., is
             automatically substituted for former Attorney General
             Michael B. Mukasey as respondent in this case.
 1   FOR PETITIONER:          Robert M. Birach, Detroit, MI.
 2
 3   FOR RESPONDENT:          Michael F. Hertz, Deputy Assistant
 4                            Attorney General; M. Jocelyn Lopez
 5                            Wright, Senior Litigation Counsel;
 6                            Kristin K. Edison, Attorney, United
 7                            States Department of Justice, Office
 8                            of Immigration Litigation,
 9                            Washington, D.C.
10
11       UPON DUE CONSIDERATION of this petition for review of a

12   Board of Immigration Appeals (“BIA”) decision, it is hereby

13   ORDERED, ADJUDGED, AND DECREED that the petition for review

14   is DENIED.

15       Petitioner Fawzy Boshra Hakeem Mekheel, a native and

16   citizen of Egypt, seeks review of a June 9, 2008 order of

17   the BIA denying his application for withholding of removal

18   and relief under the Convention Against Torture (“CAT”).     In

19   re Fawzy Boshra Hakeem Mekheel, No. A 96 262 196 (BIA June

20   9, 2008).    We assume the parties’ familiarity with the

21   underlying facts and procedural history of the case.

22       When the BIA issues an independent decision on remand

23   from this Court, the Court reviews the BIA's decision alone.

24   See Belortaja v. Gonzales, 484 F.3d 619, 622-23 (2d Cir.

25   2007).   The applicable standards of review are well-

26   established.    Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.

27   2008); Gao v. BIA, 482 F.3d 122, 126-27 (2d Cir. 2007).

28   Here, we find that the BIA's denial of Mekheel's application

29   for withholding of removal and CAT relief is supported by


                                    2
1    substantial evidence.   The BIA reasonably determined that

2    Mekheel failed to show that he was persecuted as a Coptic

3    Christian by groups the Egyptian government was either

4    unable or unwilling to control.    See Ivanishvili v. U.S.

5    Dep’t of Justice, 433 F.3d 332, 342 (2d Cir. 2006).

6        Mekheel argues that our holding in Poradisova v.

7    Gonzales, 420 F.3d 70, 79-80 (2d Cir. 2005), precluded the

8    BIA from giving adverse weight to the fact that Mekheel

9    never reported any of the alleged incidents of persecution

10   to the Egyptian authorities.   However, the BIA reasonably

11   noted that country reports contained in the record stated

12   that “Egyptian authorities respond to reports of violence

13   against Christians, which is not inconsistent with the

14   opinion of the respondent’s expert,” and Mekheel points to

15   no evidence overlooked by the BIA showing why it was

16   unreasonable to require him to seek redress from the

17   Egyptian government.

18       The BIA also did not err in relying on the 2002

19   Religious Freedom Report and the 2003 Country Report in its

20   decision.   While we have warned the immigration courts

21   against placing excessive reliance on State Department

22   Reports, we have held that the courts “may consider that

23   evidence,” but are “obligated to consider also any contrary


                                    3
1    or countervailing evidence with which [they are] presented,

2    as well as the particular circumstances of the applicant’s

3    case demonstrated by testimony and other evidence.”     Tian-

4    Yong Chen v. INS, 359 F.3d 121, 130 (2d Cir. 2004).     Here,

5    the BIA considered contrary and countervailing evidence in

6    the record; thus, it did not place excessive reliance on the

7    State Department Reports.   See id.   Furthermore, while we

8    have also warned against reliance on “outdated versions of

9    State Department Reports,” Mekheel never sought to submit

10   new background country materials.

11       Mekheel also contends that the BIA’s use of the phrase

12   “purported expert witness affidavit” indicates that the BIA

13   displayed “obvious” prejudice against his expert, Dr.

14   Marshall.   Petitioner’s Brief at 21, 23.   We will remand

15   based on agency prejudice when the conduct “results in the

16   appearance of bias or hostility such that [the Court] cannot

17   conduct a meaningful review of the decision below.”     See Ali

18   v. Mukasey, 529 F.3d 478, 490 (2d Cir. 2008) (quoting Islam

19   v. Gonzales, 469 F.3d 53, 55 (2d Cir. 2006)).    Aside from

20   the BIA’s use of the word “purported,” its decision gives no

21   indication that it was in any way biased or hostile toward

22   Dr. Marshall.



                                   4
1        Finally, Mekheel argues that the BIA erred by reviewing

2    the IJ’s factual findings de novo, rather than under the

3    required “clearly erroneous” standard.     See 8 C.F.R.

4    §§ 1003.1(d)(3)(i), (ii).   However, the BIA properly noted

5    that it reviews questions of law de novo.     Accordingly, it

6    was entitled to review de novo the question of whether

7    Mekheel established that his fear was on account of groups

8    that the Egyptian government was unable or unwilling to

9    control, finding that it was not.

10       Because the BIA did not err in determining that Mekheel

11   failed to establish his eligibility for withholding of

12   removal, it did not err in denying his claim for CAT relief

13   based on the same factual predicate.     See Khouzam v.

14   Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004).

15       For the foregoing reasons, the petition for review is

16   DENIED.   As we have completed our review, any pending motion

17   for a stay of removal in this petition is DISMISSED as moot.

18   Any pending request for oral argument in this petition is

19   DENIED in accordance with Federal Rule of Appellate

20   Procedure 34(a)(2), and Second Circuit Local Rule 34(b).

21

22                               FOR THE COURT:
23                               Catherine O’Hagan Wolfe, Clerk
24
25                               By:___________________________


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