                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-30-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1406




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                                                      NOT PRECEDENTIAL

                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                              _______________

                                     No. 03-1406
                                  ________________

                             MAGDA FEKRY ASRAIL,
                                                           Petitioner

                                           v.

              JOHN ASHCROFT, Attorney General of the United States,
                                                   Respondent

                     ____________________________________

                      On Petition for Review of an Order of the
                           Board of Immigration Appeals
                               (INS No. A95-146-011)
                   _______________________________________

                     Submitted Under Third Circuit LAR 34.1(a)
                               March 26, 2004
                    Before: AMBRO, CHERTOFF and BECKER,
                                  Circuit Judges

                                (Filed: March 30, 2004)


                             _______________________

                                    OPINION
                             _______________________

BECKER, Circuit Judge.

      This is a petition for review by Magda Fekry Asrail of an order of the Board of

Immigration Appeals, which affirmed, without a separate opinion (under the new
“streamlining regulations”), the decision of the Immigration Judge (“IJ”) denying Asrail’s

applications for asylum and withholding of removal, and for protection under the

Convention Against Torture (“CAT” or “the Torture Convention”). Asrail maintains that,

contrary to the IJ’s opinion, the record reflects sufficient credible evidence support of her

claims. Referencing the stringent standard of review in these cases, the government

responds that substantial evidence supports the opinion of the IJ that Asrail failed to

present a credible asylum claim, primarily because of numerous material inconsistencies

and omissions throughout her written application and her testimony.

       Because Asrail has failed to argue her eligibility for withholding of removal and

protection under the CAT before the Board and before this Court, she has waived review

of these issues, and hence we shall confine our discussion to the asylum claim. Because

the parties are fully familiar with the background facts and procedural history we need not

set them forth, except as necessary to explain our ratio decidendi.

                                              I.

       Asrail is a thirty-two year old female from Egypt, who is Coptic Orthodox

Christian. She grounds her claim for asylum on several incidents she experienced in

Egypt which, she submits, were due to her religion. More particularly, she contends that

she was persecuted by Islamic fundamentalists on account of her religious faith and her

employment with Benetton. Her application states that the extremists “would wait for me

early in the morning when I was going to work or in the evening when I was returning



                                              2
from work. They would abuse me by beating me and throwing me in the street.”

       Asrail says that she came to the United States but returned to Egypt in 1999 and

was subjected to threats not to go back to work or practice any kind of activity at church.

She represents that when she returned to Egypt again in 2000 after another sojourn in the

United States, two bearded men attacked her, snatched her chain with the attached cross,

beat her and started to rip her clothes off, and tried to force her into an empty house to

rape her. Asrail states that her attackers fled when a man and woman were passing while

she was screaming, and that she was treated at a hospital and a report was filed at a police

station.

       Asrail’s application also states that on April 16, 2001, the extremists called and

threatened to kill her. She then fled to the United States on April 21, 2001. She

maintains that after her departure to the United States her family was contacted by the

extremists and told that she would be killed if she returned to Egypt.

       Along with her asylum application, Asrail submitted corroborating material,

including a police and hospital report, and articles on the persecution of Coptic Christians

in Egypt. Her birth certificate states she is born of Coptic Christian parents. Asrail

testified that she could not return to her home country and that if she were to return to

Egypt “my life will be in danger because somebody might try to attack me or rape me or

kill me.” She attributes her persecution to the Gamaat Islamia, an Islamic group. She

also testified that she was attacked a total of five times by this group—in August 1997,



                                              3
February 1998, August 1998, September 1999, and April 2001, though the incidents in

1997, 1998 and 1999 were not mentioned in her asylum application.

       Asrail’s legal argument is that she is a refugee within INA § 101(a)(42)(A), who is

unwilling or unable to return to her country because of persecution or well-founded fear

of persecution on account of race, religion, nationality, membership in a social group or

political opinion. More specifically she contends that: (1) she is unable or unwilling to

return to her home country because of persecution and a well founded fear of persecution;

(b) the beatings, threats and attempted rape she suffered are persecution on account of her

religion; (c) her fear of persecution is well founded arising out of past persecution and

country conditions in Egypt; (d) her fear of persecution is well founded since her

government was unable or unwilling to control her persecutors; and (e) she suffered the

persecution on account of her religion—Coptic Orthodox Christian.

                                             II.

       The IJ’s decision held that Asrail had not provided credible evidence, hence failed

to meet her burden of proof and persuasion necessary to establish eligibility for any of the

remedies for which she applied. Under our jurisprudence, we review the Board’s

decision as the final agency determination, see INA § 242(a)(1), except where, as here,

the Board of Immigration Appeals does not render its own opinion but simply affirms the

decision of an immigration judge. In that instance, “the IJ’s opinion effectively becomes

the BIA’s, and, accordingly, a court must review the IJ’s decision.” Abdulai v. Ashcroft,



                                             4
239 F.3d 542, 549 n.2 (3d Cir. 2001)(citing Chen v. INS, 87 F.3d 5, 7 n.3 (1st Cir. 1996)).

The IJ’s factual determination that petitioner failed to offer sufficient evidence to

establish her eligibility for asylum is reviewed under the highly deferential “substantial

evidence” standard. See Dia v. Ashcroft, 353 F.3d 228 (3d Cir. 2003).

       To establish eligibility for asylum on the basis of past persecution, an alien must

show that she suffered some harm rising to the level of persecution on account of a

statutorily protected ground, and that it was committed by the government or forces the

government is unable or unwilling to control. See Abdulrahman v. Ashcroft, 330 F.3d

587, 592 (3d Cir. 2003)(citing Chen Yun Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.

2002)). If past persecution is established, the asylum applicant is entitled to a rebuttable

presumption of a well-founded fear of persecution. See 8 C.F.R. § 208.13(b)(1). Absent

evidence of past persecution, an alien can demonstrate a well-founded fear of future

persecution by showing that she “has a genuine fear, and that a reasonable person in her

circumstances would fear persecution if returned to her native country.” Gao, 299 F.3d at

272 (citation omitted). An applicant for asylum must therefore show that her fear of

persecution is both subjectively genuine and “supported by objective evidence that

persecution is a reasonable possibility.” Chang v. INS, 119 F.3d 1055, 1066 (3d Cir.

1997) (citing INS v. Cardoza-Fonseca, 480 U.S. 421, 430 (1987)). Ultimately, the alien

bears the burden of establishing an affirmative nexus between the past or future

persecution alleged and an enumerated characteristic under the INA. See INA §



                                              5
101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 208.13; Chang, 119 F.3d at 1065.

       In establishing her eligibility for asylum, an alien also has the burden of supporting

her claim through credible evidence. Gao, 299 F.3d at 272. The alien’s own testimony

alone may be sufficient to meet this burden if it is believable, consistent, and sufficiently

detailed to provide a plausible and coherent account of the basis of the claim. See 8

C.F.R. § 208.13(a); Gao, 299 F.3d at 272. In other words, as Asrail argues, corroboration

is not a sine qua non.

                                             III.

       We are satisfied that the IJ’s decision that Asrail was not credible was supported

by substantial evidence. We itemize the following points in support of that conclusion:

       1. There were a number of inconsistencies between Asrail’s written asylum

application and her testimony to the Court. Her asylum application represented that “the

only specific incident of alleged persecution took place on April 13th, 2001.” But, at her

hearing, Asrail testified that she had been similarly assaulted on four other occasions:

once in 1997; twice in 1998; and once in 1999.

       2. On direct examination, Asrail claimed to have resigned from her position with

Benetton following the 1999 assault “at least in part because she felt that the assaults

were caused by her employment with that company,” but she submitted a letter from her

former employer stating that she actually resigned from Benetton “because [the

Petitioner] wanted to pursue career opportunities outside of Egypt.”



                                              6
       3. Asrail failed to reveal her unauthorized employment in the United States (as a

nanny) on her application for asylum.

       4. Asrail failed to corroborate critical aspects of her asylum claim. For example,

she did not attempt to provide the hospital records or police reports that could substantiate

four of the five alleged assaults that made up the bases for her claim of past persecution

or submit any affidavits from the neighbors who allegedly witnessed the assaults.

       5. Although Asrail testified that her individual attackers were all members of a

particular “Islamic group,” she could not specifically identify or otherwise describe them,

other than to say that they had long beards and wore white shirts, and her report to the

police was not sufficiently detailed to identify “the names, identity or addresses of the

perpetrators.” While this failure might be understandable, it contributes to Asrail’s

inability to show that she suffered past persecution in Egypt on account of her religion.

       6. Although Asrail contends that she was “beaten and attacked on five separate

occasions,” and that “[h]er persecutors delivered threatening phone calls during [a] short

trip Petitioner took to Egypt,” she offered, in support of her claim, only her own largely

uncorroborated testimony and various background documents, and in her application for

asylum, Asrail described in detail only one specific incident of alleged persecution.

       7. Although Asrail says that she is “readily identifiable” as a Coptic Orthodox

Christian, that identity does not automatically establish her persecution “on account of”

that characteristic. Asrail presented no testimony indicating that her attackers were even



                                              7
aware of her religious affiliations or that her beliefs were in fact the motivation for the

assaults against her. Indeed, the IJ concluded that the most recent and most serious attack

which Asrail described may have simply been a “criminal, sexual assault.”

       8. There is no evidence in the record demonstrating that the Egyptian government

failed to protect Asrail, or that Islamic fundamentalists and other groups are beyond

governmental control. In support of her claim of past persecution, Asrail argues that she

sought police protection from her attackers but that the police did not express a

willingness to capture those who assaulted her. She testified before the IJ that each time

she was assaulted, the Egyptian police came and filed a written report. However, because

Asrail was unable to specifically describe her attackers, the reports were not detailed

enough to allow officials to identify or further pursue the perpetrators.

       9. The background information in the record indicates that although Coptic

Christians constitute a minority in Egypt, they are a group that the government actively

tries to protect. Moreover, some of the documentary evidence illustrates recent efforts by

the Egyptian government to curb the activities of Islamic fundamentalists and other

militant groups.

       10. Despite Asrail’s uncorroborated claims of past persecution, she provided no

affidavits to substantiate any of the alleged assaults against her. After initially departing

Egypt for the United States, Asrail traveled to Egypt twice more before returning to the

United States in April 2001. See A.R. 132-138, 328; cf. 8 C.F.R. § 208.8(b)(indicating



                                              8
that an applicant who leaves the United States and returns to the country of claimed

persecution is presumed to have abandoned her application, absent compelling reasons).

Moreover, Asrail did not apply for asylum on either of the first two trips she made to the

United States, and following her most recent arrival in this country, the petitioner waited

an additional two months to file her application for asylum.

       11. There is no evidence to support the contention that Asrail would be singled out

for persecution if returned to Egypt. And the fact that she left the United States on two

separate occasions to return to Egypt also undermines any claim of a fear of future

persecution in that country.

       12. Asrail has provided neither allegations nor evidence that any of her family

members (her mother, two sisters, and younger brother, all of whom continue to live in

Egypt) have been subjected to persecution by fundamentalist groups in Egypt.

       The petition for review will be denied.




                                             9
