                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-19-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3397




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                                                            NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT


                              Nos. 05-3397 & 05-4228


           SARA SAMIR GENDI HAKIM; ADEL ABDELMASSIH ASAAD,

                                     Petitioners

                                          v.

                ATTORNEY GENERAL OF THE UNITED STATES,

                                     Respondent


                       Petition for Review of an Order of the
                        United States Department of Justice
                           Board of Immigration Appeals
                     (Agency Nos. A95-459-895, A95-459-896)
                     Immigration Judge: Donald Vincent Ferlise


                               Argued: June 16, 2006

            Before: FISHER, CHAGARES, and REAVLEY,* Circuit Judges.

                                (Filed: July 19, 2006)



Counsel:     Alex G. Isbell
             David E. Piver (argued)
             Law Offices of David Piver



      *
       Honorable Thomas M. Reavley, Senior Circuit Judge of the United States Court
of Appeals for the Fifth Circuit, sitting by designation.
             150 Strafford Avenue, Suite 115
             Wayne, PA 19087

             William J. Vandenberg
             Hogan & Vandenberg
             11 Bala Avenue
             Suite 8
             Bala Cynwyd, PA 19004

             Attorneys for Petitioners

             Peter D. Keisler
             Richard M. Evans
             Nancy E. Friedman
             David E. Dauenheimer
             Sarah Maloney (argued)
             Office of Immigration Litigation
             Civil Division
             U.S. Department of Justice
             P.O. Box 878, Ben Franklin Station
             Washington, D.C. 20044

             Attorneys for Respondent



                              OPINION OF THE COURT


CHAGARES, Circuit Judge.

             Petitioners Sara Hakim and Adel Asaad are a married, Christian couple

from Egypt. Asaad is from a Coptic Christian family, but Hakim converted to

Christianity from Islam. Hakim sought asylum, withholding of removal, and relief under

the Convention Against Torture (CAT), because she fears persecution and torture upon

removal to Egypt. Asaad’s application is derivative of Hakim’s. The IJ found Petitioners


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credible but denied their claims. The IJ admitted expert affidavits from Petitioners but

prohibited the expert from testifying by telephone. Petitioners contend that the denial of

telephonic testimony violated their due process rights and they also challenge the denial

of their claims for relief. Because Petitioners’ due process rights were not violated and

the denial of claims was supported by substantial evidence, we will deny the petitions.

                                             I.

              As we write only for the parties, our summary of the facts is brief. Hakim

converted to Christianity on September 25, 1998, and married Asaad on January 10,

1999, but out of fear of persecution, they kept both facts secret and lived separately.

Later in 1999, Hakim’s brothers became suspicious and threatened her, slapped and

pushed her once, and would not let her leave the house alone. Further, in 1999 and 2000,

they pressured her into becoming engaged to marry a Muslim man. Asaad, meanwhile,

was detained by local police for proselytization, jailed for two days, and exposed by the

police to Islamic extremists who threatened him in 2000. Asaad’s photo store was later

vandalized by suspected extremists.

              Hakim arrived in the United States in September, 2001, and was authorized

to stay until March, 2002. However, Hakim overstayed her visa and was noticed into

removal proceedings. The IJ conducted a hearing in August, 2003, at which Petitioners

testified and submitted country condition evidence, including an affidavit from their

expert Dr. Paul Marshall. Due to lack of time at the August hearing, and because Hakim

said Dr. Marshall could later testify in person, the IJ continued the hearing to December,

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2003. A scheduling conflict arose, which prevented Dr. Marshall from appearing at the

December hearing. The IJ refused to permit Dr. Marshall to testify by telephone, because

Hakim’s attorney told the IJ that if Dr. Marshall were to testify he would state what was

in his affidavit, and because of the IJ’s policy of never permitting telephonic testimony.

              The IJ denied Petitioners’ claims and issued a full written decision on

December 9, 2003. Petitioners appealed, and the BIA affirmed both cases without

opinion on June 13, 2005. Petitioners filed a motion to reconsider based on the exclusion

of telephonic testimony, which the BIA denied in a written opinion on August 26, 2005.

                                             II.

              This Court has recognized that aliens facing removal have due process

rights. See Sewak v. INS, 900 F.2d 667, 671 (3d Cir. 1990); see also Bridges v. Wixon,

326 U.S. 135, 154 (1945) (deportation proceedings must meet “essential standards of

fairness”). The requirements of due process “depend[] on the circumstances of the

particular situation.” Dia v. Ashcroft, 353 F.3d 228, 239 (3d Cir. 2003) (en banc)

(quoting Marincas v. Lewis, 92 F.3d 195, 203 (3d Cir. 1996)). “The fundamental

requirement of due process is the opportunity to be heard at a meaningful time and in a

meaningful manner.” Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001) (emphasis

added) (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). There is “no due

process violation in the absence of prejudice.” Wilson v. Ashcroft, 350 F.3d 377, 381 (3d

Cir. 2003).

              Petitioners’ due process rights were not violated. There is no right to

                                             4
telephonic testimony—the IJ “may,” or may not, permit it. 8 C.F.R. § 1003.25(c).

Petitioners accuse the IJ of being disrespectful, but his brief comments relating to Dr.

Marshall did not rise to the level of a due process violation. Nor is the IJ’s general policy

against telephonic testimony at issue; the question is whether due process was afforded in

this case. The IJ gave Dr. Marshall the opportunity to testify in person at the continued

hearing, and the IJ accepted Dr. Marshall’s affidavits into evidence and considered them

in detail. When Dr. Marshall was unable to appear, Petitioners conceded that Dr.

Marshall would only testify to what he wrote in his affidavit. The fact that Dr. Marshall

may have elaborated on his views or answered the IJ’s objections during telephonic

testimony does not establish that Petitioners were deprived of a meaningful opportunity to

be heard in the first instance or that they suffered prejudice. The Seventh Circuit recently

rejected a due process claim in a case that is highly persuasive here, relying on the fact

that the IJ admitted the expert’s written testimony, as well as the petitioner’s concession

that the expert would not have testified differently at the hearing. Hamid v. Gonzales,

417 F.3d 642, 646–47 (7th Cir. 2005).

                                             III.

              Since the BIA affirmed the denial of Petitioners’ claims without opinion,

we review the IJ’s decision. Wang v. Att’y Gen., 423 F.3d 260, 267 (3d Cir. 2005). We

review findings of fact under the “extremely deferential” substantial evidence standard.

Chen v. Ashcroft, 376 F.3d 215, 223 (3d Cir. 2004). We will not vacate the IJ’s findings

unless “[a] reasonable adjudicator would be compelled to conclude to the contrary.”

                                              5
Toure v. Att’y Gen., 443 F.3d 310, 316 (3d Cir. 2006) (quoting Shardar v. Ashcroft, 382

F.3d 318, 323 (3d Cir. 2004)).

              A thorough review of the record leads us to conclude that substantial

evidence supported the denial of Petitioners’ claims. Regarding past persecution, the

harm that Hakim suffered from her family could reasonably be viewed as failing to rise to

the extreme level of harm that constitutes either persecution or torture.

              A closer issue is whether substantial evidence supports the denial of

Petitioners’ asylum claims. In addition to Petitioners’ past experience, the record

contains country condition evidence in the form of U.S. State Department Reports, Dr.

Marshall’s two affidavits, and several reports and articles from non-governmental

organizations. The IJ relied on the fact that Petitioners actually avoided persecution, and

on the State Department’s conclusions that (1) there was a trend toward improvement in

religious freedom, (2) only “several dozen” incidents of convert persecution were

reported in the past two decades, and (3) no arrests of converts for document falsification

were reported in the year covered by the 2001 Report. The IJ used this evidence to doubt

the testimony of Dr. Marshall that the government sometimes participates and often

acquiesces in convert persecution, that several of such incidents occurred in recent years,

and that the situation is getting worse.

              Our deferential standard leads us to conclude that substantial evidence in

the record supported the IJ’s denial of Petitioners’ asylum claims. See Sevoian v.

Ashcroft, 290 F.3d 166, 176 (3d Cir. 2002) (denying a petition where the BIA gave more

                                              6
weight to State Department Reports than to non-governmental evidence, and citing other

cases). Finally, because the eligibility threshold for withholding of removal is higher than

for asylum, and because Petitioners’ CAT claims rely on the same allegations of future

harm, we also find that substantial evidence supported the denial of those claims.

                                            IV.

              For the above reasons, we will deny the petitions.




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