NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0534n.06
No. 09-3478 FILED
Aug 20, 2010
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
FADI HUSSEIN NASSER, )
)
Petitioner, )
)
v. ) ON PETITION FOR REVIEW OF AN
) ORDER OF THE BOARD OF
) IMMIGRATION APPEALS
ERIC H. HOLDER, JR. )
)
Respondent. )
Before: SILER, and CLAY Circuit Judges; GRAHAM, District Judge.*
SILER, Circuit Judge. Petitioner Fadi Hussein Nasser, a citizen of Lebanon, petitions for
review of a Board of Immigration (“BIA”) order. The order, while overruling the Immigration
Judge’s (“IJ”) adverse credibility determination and remanding for review of Nasser’s request for
voluntary departure, affirmed the IJ’s denial of Nasser’s applications for withholding of removal
under the Immigration and Nationality Act (“INA” or “the Act”), 8 U.S.C. §§ 1158 and 1231, and
Article 3 of the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or
Degrading Treatment or Punishment (“CAT” or “the Treaty”), 8 C.F.R. § 208.16(c).
For the following reasons, we DENY Nasser’s petition.
*
The Honorable James L. Graham, United States District Judge for the Southern District of
Ohio, sitting by designation.
No. 09-3478
Nasser v. Holder
I. FACTS AND PROCEDURAL BACKGROUND
Nasser illegally entered the United States through Mexico in 2001. After being served with
a notice to appear pursuant to 8 U.S.C. § 1182(a)(6)(A)(i), Nasser attended an initial hearing in May
2005. Eventually, he submitted an application for withholding of removal and voluntary departure
under the Act and a petition for withholding of removal under the Treaty.1
In May 2007, Nasser testified in support of his application at the merits hearing. He stated
that he was a citizen of Lebanon; his father had died ten years earlier; his mother was currently
residing in the family home in Kfarhatta, Lebanon; and his brother and sister were living in Dubai
and Germany, respectively.
He stated that he served in the Lebanese army after high school. Upon his release from the
military in 1994, he opened an ice cream and liquor store. Every two or three months, Hizballah2
requested permission to place a donation box in his store. Each time, Nasser declined. Hizballah
then began to spread gossip about his store selling alcohol. According to Nasser, Hizballah’s actions
resulted in a sharp decline in his business, because his Muslim patrons were prohibited from
purchasing alcohol and his remaining patrons—mostly Christian—stopped frequenting his store due
to Hizballah’s perceived presence. In 2000, Nasser closed his store because, according to him, he
could no longer afford to eat. Although he found other work, the pay was not enough to feed himself.
1
He did not object to the IJ’s conclusion that he was time barred from receiving asylum,
pursuant to the INA, nor did he seek asylum.
2
We employ the spelling used by the State Department.
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Nasser v. Holder
He considered re-locating his store to Beirut, but decided against it after determining that the cost
was prohibitive.
Nasser departed for the Netherlands in 2001. From there, he traveled to Mexico, and then
to the United States. He stated that he would not have entered the United States if he had been able
to “feed [him]self” in Mexico.
Nasser also recalled a 1995 neighborhood shooting during which his family home was burned
down, an act he attributed to Hizballah. In addition, he testified that his father had resisted
Hizballah. Finally, he recalled that when his older brother was recruited by Hizballah to work as a
guard at the age of eighteen, Nasser’s father sent him to work in the United Arab Emirates.
None of Nasser’s family members provided affidavits in support of his petition. He
explained that his mother was illiterate and could not find anyone to help her write a letter. He did
not think to ask his brother to corroborate his testimony. However, he maintained that he would be
unable to earn a living if returned to Lebanon. He also submitted Country Reports and other
documents to support his claims.
The IJ made an adverse credibility determination, held that Nasser did not meet his burden
to demonstrate persecution under either the Act or the Treaty, and denied his application. He also
denied Nasser’s request for voluntary departure and ordered Nasser removed.
On appeal, the BIA reversed the IJ’s credibility determination and denial of voluntary
departure and remanded for a re-consideration of Nasser’s eligibility for voluntary departure pursuant
to INA § 240(B)(b). However, the BIA affirmed the IJ’s denial of withholding of removal claims.
After the BIA’s order issued, Nasser withdrew his petition for voluntary departure. He argues that
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the BIA erred by applying the wrong standard of review to his withholding claims. He also
maintains that substantial evidence does not support the BIA’s order affirming the IJ’s denial of his
withholding claims.
II. DISCUSSION
A. BIA’s Standard of Review
Nasser argues that the BIA incorrectly applied a de novo standard of review in deciding his
withholding claims. We will vacate and remand the BIA’s decision if it applies an improper legal
standard. See Tran v. Gonzales, 447 F.3d 937, 943-44 (6th Cir. 2006). However, we have never
held that the BIA’s failure to state its level of review automatically warrants vacation. In Preldakaj
v. Keisler, 252 F. App’x 79 (6th Cir. 2007), for example, we addressed the question of whether the
BIA was required to “explicitly describe its level of review” when reviewing an IJ’s adverse
credibility finding. Id. at 84. We determined that such a statement was not required, because the
“text of the [BIA’s] opinion” demonstrated that “the BIA engaged in the appropriate review for clear
error” of the IJ’s factual findings. Id. In contrast, in Tran we vacated the BIA’s order overruling an
IJ’s decision to grant withholding under the CAT, where the BIA failed to state a standard of review
in its order. 447 F.3d at 943-44. Unlike Preldakaj, the BIA’s “treatment of Tran’s claims [did] not
make it evident to this Court what standard of review the BIA employed.” Id. at 944. Moreover,
on appeal, Tran alleged that the BIA improperly elevated his burden of proof from the “more likely
than not” standard under CAT. Id. These concerns led the panel to remand to the BIA “for its
consideration of Tran’s CAT claim under the correct standard of review and burden of proof.” Id.
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Here, Nasser does not argue that the BIA applied an incorrect burden of proof to his case, as
did the petitioner in Tran. Instead he claims only that the BIA used an incorrect standard of
review—namely, that the BIA made a de novo inquiry into the facts of his case. The BIA’s opinion,
however, belies such a conclusion. After reviewing the IJ’s findings of fact for clear error, the BIA
affirmed the IJ’s decision that Nasser failed to sustain the proof necessary to qualify for withholding
of removal under the INA or the CAT. To reach this decision, the BIA reviewed the IJ’s factual
findings and determined that they did not support a finding of either past or future persecution. It
noted that Nasser’s testimony about his store, Hizballah’s part in its failure, and his unsuccessful
efforts to procure new employment, were not sufficient facts to establish past persecution. See
Daneshvar v. Ashcroft, 355 F.3d 615, 625 n.9 (6th Cir. 2004) (“Economic deprivation constitutes
persecution only when the resulting conditions are sufficiently severe.” (citations omitted)). In
addition, the BIA briefly stated that Nasser failed to demonstrate that he was more likely than not
to face persecution or torture if returned to Lebanon.
Although the BIA’s decision, in addressing Nasser’s withholding claim, does not explicitly
state that it is reviewing the facts for clear error, the opinion as a whole demonstrates the BIA’s
cognizance and application of both the correct standard of review and burden of proof. Thus, the
“text of the [BIA’s] opinion” demonstrated that it “engaged in the appropriate review for clear error
[as to the IJ’s factual determinations]” and a de novo review when applying those facts to the
applicable burden of proof. Preldakaj, 252 F. App’x at 84; 8 C.F. R. § 1003.1(d)(3)(ii) (“The [BIA]
may review questions of law, discretion, and judgment and all other issues in appeals from decisions
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of [IJs] de novo.”); Matter of A-S-B, 24 I&N Dec. 493, 497 (BIA 2008)3 (interpreting 8 C.F.R. §
1003.3(d)(3) to require that the BIA review whether an applicant has met his burden of proof under
a de novo standard).4
B. Withholding of Removal
1. Standard of Review
“[We] review[] the decision of the BIA where, as here, it has rendered its own opinion.” Koulibaly
v. Mukasey, 541 F.3d 613, 619 (6th Cir. 2008) (citing Anssari-Gharachedaghy v. INS, 245 F.3d 512,
513 (6th Cir. 2000)). “[W]e uphold a BIA determination as long as it is supported by reasonable,
substantial, and probative evidence on the record considered as a whole.” Marku v. Ashcroft, 380
F.3d 982, 986 (6th Cir. 2004) (internal quotation marks and citation omitted). “A reviewing court
should not reverse simply because it is convinced that it would have decided the case differently.”
Sylla v. INS, 388 F.3d 924, 925-26 (6th Cir. 2004) (internal quotation marks and citation omitted).
Rather, to reverse, we must find that the evidence compels a contrary conclusion. Id.
3
We defer to this interpretation, unless “plainly erroneous or inconsistent with the [language
of 8 C.F.R. § 1003.3(d)(3)].” Auer v. Robbins, 519 U.S. 452, 461 (1997) (internal quotation marks
and citation omitted).
4
Nasser also argues that the BIA violated his due process rights by engaging in de novo fact
finding. As previously discussed, the BIA did not engage in improper fact finding. Moreover, the
general “clearly erroneous” standard is constitutional even where the reviewing body “discovers that
some of the fact-finder’s conclusions were erroneous.” Assi v. Gonzales, 193 F. App’x 456, 463 (6th
Cir. 2006).
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2. Merits
“To prevail on a petition for withholding of removal under the INA [or] the CAT, an alien
must show that there is a clear probability that [he] would be subject to persecution [on account of
race, religion, nationality, membership in a particular social group, or political opinion], for the INA,
or to torture, for the CAT.” Kouljinski v. Keisler, 505 F.3d 534, 544 (6th Cir. 2007) (internal
quotation marks and citation omitted). “The regulations define the ‘clear probability’ standard as
requiring that ‘[a]n applicant who has not suffered past persecution . . . establish that it is more likely
than not’ that [he] would be persecuted or tortured on the basis of one of the protected grounds upon
[his] return.” Jin Zhou Zheng v. Holder, 339 F. App’x 592, 595 (6th Cir. 2009) (quoting 8 C.F.R.
§ 1208.16(b)(2)).
i. Withholding Under the Act
Under the INA, when an applicant “is determined to have suffered past persecution in the
proposed country of removal on account of [a protected ground],”5 a rebuttable presumption of future
persecution arises. 8 C.F.R. § 208.16(b)(1)(i). Persecution consists of “more than a few isolated
incidents of verbal harassment or intimidation, unaccompanied by any physical punishment,
infliction of harm, or significant deprivation of liberty.” Mikhailevitch v. I.N.S., 146 F.3d 384, 390
(6th Cir. 1998). Although economic persecution may constitute past persecution, Nasser must
demonstrate that he endured a “deliberate imposition of severe economic disadvantage or the
5
Because Nasser failed to demonstrate “persecution,” we need not decide whether he
sufficiently connected his difficulties in finding employment in Lebanon to one of five statutory
grounds, as required by the Act. Thus, we do not address his imputed political opinion argument.
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deprivation of liberty, food, housing, employment, or other essentials of life.” Scavenger v.
Mukasey, 313 F. App’x 816, 818 (6th Cir. 2008) (internal quotation marks and citation omitted).
An applicant’s own actions—for example, his refusal to consider alternate types of
employment—may preclude a finding of persecution. Id. at 819-20 (noting that petitioner “refused
to look into or accept certain types of employment before she left [her home country]” and further
remarking that “one cannot bring a cognizable economic persecution claim merely because a weak
economy has undermined one’s job prospects or because it has undermined one’s preferred job
prospects”).
Neither Nasser’s forced change in occupation nor the fact that Hizballah is gaining influence
in Lebanon compels a finding that Nasser was completely unable to find a means of support in his
home country. For example, Nasser testified that his cousin supported his mother in his hometown
with his earnings as a taxi driver. Nasser’s family also owned property in Lebanon, and he had
siblings who lived abroad. It is reasonable to assume that Nasser could have sought assistance from
one of these family members upon losing his store. See Jaars v. Gonzales, 148 F. App’x 310, 315
(6th Cir. 2005) (“The newspaper articles provided by petitioners do not support their assertions that
it would be nearly impossible for them to find jobs.”). Consequently, the BIA’s conclusion that
Nasser failed to demonstrate past persecution based on severe economic deprivation was a
reasonable one, and the record does not compel otherwise.
Similarly, the BIA’s conclusion that Nasser failed to establish a clear probability of future
persecution is not one that no reasonable factfinder could reach. Although, economic deprivation
that is “purposeful, direct, and substantial” may constitute future persecution, id., such is not the case
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here. Nasser testified that he had no contact with Hizballah after his store closed in 2000, and he has
not alleged that Hizballah would purposefully prevent him from getting a job on his return to
Lebanon. Moreover, the evidence of Hizballah’s growing strength in Lebanon fails to show that
Hizballah will interfere with Nasser’s job search. Consequently, the record does not compel a
contrary conclusion.
ii. Withholding Under the Treaty
In contrast to the Act, the Treaty requires that an applicant establish a “particularized threat
of torture,” Castellano-Chacon, 341 F.3d at 551, although he need not demonstrate that the “harm
[he] faces is based on one of the five [statutory] grounds . . . required under the INA.” Almuhtaseb
v. Gonzales, 453 F.3d 743, 751 (6th Cir. 2006). Substantial evidence supports the BIA’s
determination that Nasser failed to establish past or future torture.
For the aforementioned reasons, we DENY review.
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