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


11-7-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3935




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                                                    NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT

                                   NO. 05-3935
                                ________________

           ADEL BISHARA TANIOUS; ANDREW ADEL BISHARA,

                                                         Petitioners

                                         v.

      ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,

                                                  Respondent
                   ____________________________________

                   On Petition for Review of a Decision of the
                        Board of Immigration Appeals
                      Immigration Judge Henry S. Dogin
                   (Agency Nos. A95 829 852, A95 829 853)
                 _______________________________________

                   Submitted Under Third Circuit LAR 34.1(a)
                             August 11, 2006

       Before: MCKEE, FUENTES AND NYGAARD, CIRCUIT JUDGES




                            (Filed: November 7, 2006 )

                           _______________________

                                   OPINION
                           _______________________

PER CURIAM

    Adel Tanious and Andrew Bishara, citizens of Egypt, petition for review of a final
order of removal of the Board of Immigration Appeals (“BIA”). We will deny the

petition.

       Tanious came to the United States in 1997 as a visitor with authorization to stay

for six months. Bishara, who is Tanious’ son, came to the United States in 2001 at the

age of fourteen. He also was authorized to visit for six months. In 2003, notices to

appear were issued charging them with removability for remaining here for a time longer

than permitted. See 8 U.S.C. § 1227(a)(1)(B). Through counsel, Tanious and Bishara

conceded they were removable as charged. They applied for withholding of removal and

relief under the Convention Against Torture. Bishara’s requests for relief were derivative

of his father’s requests. It appears that Tanious and Bishara did not pursue asylum claims

because Tanious’ asylum application was untimely filed.

       In support of their applications for relief from removal, Tanious testified that he

obtained a university degree in accounting and had an import/export business in Egypt.

In September 1997, he came to the United States to sign documents related to his

business. He returned to Egypt less than three weeks later. Tanious returned to the

United States in October 1997. Although his testimony is somewhat unclear, Tanious

stated he did not return to Egypt again because he could not continue his business. In his

asylum application, Tanious explained that the Egyptian government did not allow

Christians to open a business without a Muslim partner. Tanious, who is a Coptic

Christian, stated that his Muslim partner forced him out of the business when it became



                                              2
profitable.

       Tanious further testified that he was unable to play for the national soccer team in

Egypt unless he changed his name to a Muslim name. He also stated that the Egyptian

government watched his family for years because it believed that his father, who was in

Israel during the Israeli conflict with Egypt, was a spy. As a result, he was unable to

become a police officer. In addition, Tanious stated in his asylum application that his

brother lost an eye as a child due to the fact he is Christian, his sister had acid thrown on

her because she refused to convert to Islam, and the factory where his wife worked was

burned down by Muslim extremists. Tanious did not testify about these three incidents,

other than confirming that they occurred in response to questions by the IJ.

       Tanious stated that he was able to practice his religion and attend church in Egypt.

He was never physically harmed there. Tanious fears returning to Egypt because he does

not know how he will start his life again. He does not believe the Egyptian government

will allow him to work. On cross-examination, the Government pointed out that a year

earlier Tanious had told an immigration officer that he had no fear of persecution or

torture if he returned to Egypt.

       The IJ found Tanious’ story incredible and noted that he seemed to argue a number

of different theories. The IJ stated that he did not explain why Muslims would harm his

business, and he did not provide documentation showing that he had a business that was

closed or harmed. In addition, the IJ did not believe that Tanious would have been able to



                                              3
go to the university, open a business, and visit the United States if his father was

perceived as a spy. The IJ also criticized Tanious for not corroborating his statements

that his family members were injured and for failing to present the testimony of his wife,

who lived with him in the United States. The IJ also noted that, in Tanious’ earlier

statement to immigration officials, he stated he did not fear persecution or torture in

Egypt, that Tanious returned to Egypt after he came here for business in September 1997,

and that it took him six years to apply for asylum. The IJ believed Tanious came here to

pursue business opportunities. The IJ denied withholding of removal and relief under the

Convention Against Torture and granted voluntary departure.

       The BIA adopted and affirmed the IJ’s decision. The BIA stated that Tanious’

testimony was not believable, consistent and sufficiently detailed to provide a plausible

and coherent account of the basis for his fear. Like the IJ, the BIA noted that Tanious

testified before an immigration officer that he had no fear of persecution if removed and

faulted him for failing to present his wife’s testimony. The BIA granted Tanious and

Bishara voluntary departure.

       Tanious and Bishara filed a pro se petition for review. We have jurisdiction

pursuant to 8 U.S.C. § 1252(a)(1). Adverse credibility determinations are reviewed for

substantial evidence. Berishaj v. Ashcroft, 378 F.3d 314, 323 (3d Cir. 2004). If a

reasonable fact finder could make a particular finding on the administrative record, then

the finding is supported by substantial evidence. Id. at 322 (citing Dia v. Ashcroft, 353



                                              4
F.3d 228, 249 (3d Cir. 2003) (en banc)). Conversely, if no reasonable fact finder could

make that finding on the administrative record, the finding is not supported by substantial

evidence. Id. at 322-23.

       In their brief, Tanious and Bishara challenge one of the bases relied upon by the

BIA in affirming the adverse credibility finding. They argue that the reason Tanious told

the immigration officer that he did not fear returning home was because he understood the

officer’s reference to “home” as his home in the United States, not Egypt. This

explanation, however, is contrary to the reason Tanious gave at his hearing before the IJ.

Tanious then explained that he told the immigration officer that he did not fear

persecution or torture if removed because he was afraid that he would be arrested.

       We conclude that this inconsistency, along with the fact that Tanious visited the

United States on business and then returned to Egypt shortly before re-entering the United

States as a visitor, constitute substantial evidence supporting the adverse credibility

finding. We note that Tanious and Bishara do not argue in their brief that they suffered

past persecution. They state only that it was difficult to practice their religion in Egypt.

See Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993) (stating that persecution does not

encompass all treatment that our society regards as unfair, unjust, or even unlawful or

unconstitutional, but denotes extreme conduct).1



   1
   Tanious and Bishara have attached to their brief several articles reflecting violence
which erupted in October 2005 during protests at a Christian church against a play that
Muslims found offensive. These articles are not part of the administrative record and we

                                              5
       Finally, Bishara appeals to this Court to allow him to remain here to pursue his

education. Although we appreciate Bishara’s desire to remain here and continue his

studies, his desire does not provide a basis for relief.

       Accordingly, we will deny the petition for review.




may not consider them. Al-Fara v. Gonzales, 404 F.3d 733, 743 (3d Cir. 2005).




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