Barsoum v. Holder

United States Court of Appeals
For the First Circuit

No. 09-1968

EMAD BARSOUM,

Petitioner,

v.

ERIC H. HOLDER, JR., ATTORNEY GENERAL,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS

Before

Lynch, Chief Judge,
Selya and Lipez, Circuit Judges.

David L. Yavner was on brief for petitioner.
Liza S. Murcia, Attorney, Office of Immigration Litigation,
Tony West, Assistant Attorney General, Civil Division, and Anthony
C. Payne, Senior Litigation Counsel, were on brief for respondent.

August 24, 2010
 LYNCH, Chief Judge. Emad Wagdi Barsoum, of Egypt,

entered the United States on August 30, 2002 on a non-immigrant

visitor visa and overstayed. He petitions for review of a July 6,

2009 final order of removal by the Board of Immigration Appeals

(BIA). The BIA denied Barsoum's application for asylum,

withholding of removal, and protection under the Convention Against

Torture (CAT), affirming the August 13, 2007 decision of an

Immigration Judge (IJ). Barsoum petitions for review of (1) the

BIA's finding that he failed to establish that he had been

persecuted in Egypt for his Coptic Christian beliefs or that he

would face persecution in the future and (2) the BIA's denial of

his motion to remand his case to the IJ in light of changed country

conditions and purported new evidence. The petition for review is

denied.

I.

On March 25, 2003 Barsoum applied for asylum, withholding

of removal, and protection under CAT on the basis of religious

persecution. He was issued a Notice to Appear on November 19, 2004

and, conceding removability, appeared for a removal hearing before

an IJ on August 13, 2007.

We summarize Barsoum's testimony before the IJ. Barsoum

is a Coptic Christian. He entered medical school at Alexandria

University in 1996. During his third year, he befriended Wissam,

-2-
a Muslim woman and fellow student. The two of them discussed their

coursework each day at school.

In 2001, a member of a fundamentalist group called the

Muslim Brotherhood approached Barsoum on campus and warned him not

to stand side-by-side with a Muslim girl. As a result, Barsoum

told Wissam that they should stay away from one another. Wissam

told Barsoum she was in love with him, and Barsoum began avoiding

Wissam.

In June 2001, Wissam followed Barsoum on campus and told

him in public that she wanted to marry him. At that point, another

student approached and said, "Didn't I warn you before?" That

student and others hit Barsoum in the face and head. The commotion

attracted campus guards who, assuming Barsoum had been bothering

Wissam, made him sign a document promising to stay away from her.

Barsoum did not seek any medical treatment.

The next month, in July 2001, a caller identifying

himself as a member of the Muslim Brotherhood threatened to beat

Barsoum up, ruin his career, and prevent him from "enter[ing] the

university" if he was seen with a Muslim woman. This may have been

a reference to physically entering the university grounds.

In February 2002, Barsoum was threatened again in person.

He was told he would be killed if he refused to convert to Islam

and marry Wissam. The threat was not specific as to when any

conversion and marriage had to take place.

-3-
 That Easter, driving home from a midnight mass, Barsoum

was pursued by two other cars that corralled him and pushed his car

off the road and into a trash container. He was then charged with

vandalizing the container (the charges were later dropped). In the

crash, Barsoum sustained injuries to the face and head, requiring

hospitalization, a blood transfusion, and plastic surgery. Barsoum

testified that he recognized a passenger in one of the cars as a

Muslim fundamentalist whom he knew from school, and Barsoum assumed

that the attack was motivated by religious animosity. He also

testified that the police refused to take his formal statement

about the incident, and that they failed to investigate his claims.

After the Easter attack in 2002, Barsoum moved from

Alexandria to Cairo to hide from the Muslim Brotherhood. He moved

in with a relative, George, also a Coptic Christian and medical

student. Barsoum planned to transfer to a medical school in Cairo.

He testified that one day in August 2002, he received a phone call

from George, who said that four members of the Muslim Brotherhood

had come to George's apartment looking for Barsoum, and had beaten

George around the face. That month, Barsoum fled to the United

States.

The IJ denied Barsoum's application for asylum and

withholding of removal. The IJ made no express credibility

finding, but noted a few apparent inconsistencies between Barsoum's

asylum application and his testimony, and noted that Barsoum had

-4-
not provided documentation supporting his story. The IJ found that

Barsoum had not shown that the Easter car attack was part of the

harassment related to his perceived relationship with Wissam. Nor

had he demonstrated that his troubles amounted to religious

persecution rather than social difficulties arising from that

perceived relationship. The IJ also found that the harm Barsoum

had suffered did not rise to the level of persecution, particularly

because Barsoum did not try to solve his problems through anything

short of flight and, even then, did not flee to the United States

until more than a year after receiving a visa to the United States.

Moreover, with the exception of the Easter attack, Barsoum and his

Coptic Christian family members, all of whom remained in Egypt, had

always been able to practice their religion freely. Finally, the

IJ denied CAT relief because there was no evidence that Barsoum

would be tortured if returned to Egypt.

Barsoum appealed the IJ's ruling to the BIA and on March

5, 2008, filed a motion to remand, presenting family photos and a

physician's report to document his claims, and an affidavit

explaining why this evidence was previously unavailable. Two weeks

later, on March 19, 2008, Barsoum filed documentation of his

enrollment in medical school and his church involvement. Seven

months later, on October 22, 2008, Barsoum further supplemented his

motion to remand, claiming that his risk of persecution had

increased due to worsening country conditions in Egypt for Coptic

-5-
Christians. He provided a statement from a researcher specializing

in religious freedom that catalogued reports of violence and

discrimination against Coptic Christians. He filed an update to

the statement on March 19, 2009.

On July 6, 2009, the BIA, upholding the IJ's ruling,

found that Barsoum's experiences did not amount to past

persecution, even if he had been targeted because of his religion.

The BIA also found that there was no established pattern or

practice in Egypt of persecuting Coptic Christians, though Barsoum

had never raised the issue. The BIA found that Barsoum had not

connected any general conditions of persecution against Coptic

Christians in Egypt to his own individualized risk of future

persecution. Finally, the BIA upheld the IJ's denial of CAT

protection.

Addressing Barsoum's motion to remand, the BIA found that

the corroborating documentation that Barsoum had submitted could

not have changed the outcome before the IJ, because the IJ's

holding was not based on a lack of credibility. The BIA found that

the statements describing changed country conditions in Egypt were

also insufficient to merit a remand because they were generalized

and did not demonstrate Barsoum's individualized risk of future

persecution. The BIA denied Barsoum's motion to remand and

dismissed his appeal.

-6-
 II.

"Where, as here, the BIA adopted and affirmed the IJ's

ruling, but also discussed some of the bases for the IJ's opinion,"

we review both opinions. Ru Xiu Chen v. Holder, 579 F.3d 73, 77

(1st Cir. 2009) (quoting Mam v. Holder, 566 F.3d 280, 282 (1st Cir.

2009)) (internal quotation marks omitted). No pure issues of law

are raised by this petition. We review the BIA's determinations

under the deferential substantial evidence standard. Balachandran

v. Holder, 566 F.3d 269, 273 (1st Cir. 2009).

The BIA will be upheld as long as the record as a whole

provides "reasonable, substantial, and probative evidence"

supporting its findings. Anacassus v. Holder, 602 F.3d 14, 18 (1st

Cir. 2010) (quoting Attia v. Gonzales, 477 F.3d 21, 23 (1st Cir.

2007)). We will only reverse the BIA's findings if "any reasonable

adjudicator would be compelled to conclude to the contrary."

Rasiah v. Holder, 589 F.3d 1, 4 (1st Cir. 2009) (quoting Budiono v.

Mukasey, 548 F.3d 44, 48 (1st Cir. 2008)) (internal quotation marks

omitted).

Barsoum bears the burden of establishing his eligibility

for asylum by demonstrating that he "has suffered past persecution

or has a well-founded fear of future persecution on the basis of"

his religion. Anacassus, 602 F.3d at 19 (quoting Decky v. Holder,

587 F.3d 104, 110 (1st Cir. 2009)). If past persecution is

demonstrated, this establishes a rebuttable presumption that the

-7-
petitioner may reasonably fear future persecution upon return. Id.

The petitioner must have a subjective fear of future persecution

and that fear must be objectively reasonable.

Substantial evidence supports the BIA's and IJ's

conclusion that even if the harms Barsoum has endured are assumed

attributable to his religious beliefs, they did not rise to the

level of persecution.

To show persecution, an alien must show more than

"unpleasantness, harassment, and even basic suffering." Jorgji v.

Mukasey, 514 F.3d 53, 57 (1st Cir. 2008) (quoting Nelson v. INS,

232 F.3d 258, 263 (1st Cir. 2000)). The "severity, duration, and

frequency of physical abuse" are factors relevant to this

determination, see Topalli v. Gonzales, 417 F.3d 128, 133 (1st Cir.

2005), as is whether harm is "systematic rather than reflective of

a series of isolated incidents," Anacassus, 602 F.3d at 20 (quoting

Journal v. Keisler, 507 F.3d 9, 12 (1st Cir. 2007)) (internal

quotation mark omitted). The state must also be implicated,

whether by participation or acquiescence, for harm to amount to

persecution. Jorgji, 514 F.3d at 57.

Barsoum was first harassed in 2001, when a fellow student

issued a vague warning, unaccompanied by any threat, that he should

not stand side-by-side with a Muslim girl. This was clearly not

persecution.

-8-
 In June 2001, when Wissam told Barsoum in public that she

wanted to marry him, nearby students hit Barsoum in the face and

head. He was not seriously injured, and did not report the assault

to the police; only the campus guards were notified. This

incident, again, clearly was not persecution.

Nor did the BIA err in holding that the two threats

Barsoum received did not constitute persecution. He received a

phone call in July 2001 in which the caller identified himself as

a member of the Muslim Brotherhood from school and issued a vague

threat to beat Barsoum up, ruin his career, and prevent him from

"enter[ing] the university" if he was seen with a Muslim girl.

Barsoum was already a student there, and had been so for several

years. Even if the vague threat to keep him from entering the

university was a threat to physically prevent him from accessing

the campus, Barsoum made no effort to report this physical threat

to the university or police.

Barsoum was threatened again in 2002, when he was told he

would be killed if he did not convert to Islam and marry Wissam.

While "credible verbal death threats may fall within the meaning of

'persecution,'" Un v. Gonzales, 415 F.3d 205, 210 (1st Cir. 2005),

the BIA was not required to conclude that this vague threat was

persecution.

Barsoum claims that his Easter 2002 car accident was

itself sufficient to show past persecution because it resulted in

-9-
serious physical injuries. A one-time incident of physical injury,

even assuming connectedness to the threats, does not necessarily

establish that what Barsoum suffered rose to the level of

persecution. See Bocova v. Gonzalez, 412 F.3d 257, 261 (1st Cir.

2005) (finding that harms including a beating serious enough to

require hospitalization did not amount to persecution).

Independently, no facts required a conclusion that

Barsoum had established the needed causal connection. That the IJ

and BIA treated Barsoum's testimony as credible did not require

them to treat his "speculation as to motive" as conclusive. Ziu v.

Gonzales, 412 F.3d 202, 204 (1st Cir. 2005).

Barsoum's testimony about the August 2002 incident, in

which his cousin George told him members of the Muslim Brotherhood

tracked Barsoum to Cairo and hit George in the face, does not

compel a conclusion of persecution. Barsoum was not present at the

time, and reported only George's inconclusive statements. There

was also no indication that George was himself seriously injured.

The BIA was not compelled to find that the harms Barsoum

suffered, even viewed collectively, rose to the level of

persecution. Also fatal to Barsoum's claim is that the harm he

suffered, on his own account, was all inflicted by fellow students,

without the government involvement, complicity, or condonation

required to establish persecution. See Jorgji, 514 F.3d at 57.

Barsoum sought assistance from the police only once, after the

-10-
Easter 2002 car chase, and he claims that they failed to

investigate his story, but he never again sought their help and has

not established that the police were actually unable or unwilling

to protect him. That the vandalism charges against him stemming

from the Easter incident were dropped suggests that the police were

not actively targeting him.

There is also substantial evidence supporting the BIA's

finding that Barsoum failed to demonstrate a well-founded fear of

future persecution. Absent a showing of past persecution, he is

not entitled to a presumption that his fear is well-founded. See

Anacassus, 602 F.3d at 21. His evidence was not persuasive, much

less compelling, that he faced a risk of future persecution. He

did not show the connection between evidence of attacks on other

Coptic Christians in Egypt and "his own individualized risk of

harm" required to demonstrate objectively reasonable fear of future

persecution. Tawadrous v. Holder, 565 F.3d 35, 39 (1st Cir. 2009)

(quoting Tandayu v. Mukasey, 521 F.3d 97, 101 (1st Cir. 2008))

(internal quotation marks omitted).

"[S]imply because civil strife causes substantial

hardships" for a minority group, such as Coptic Christians, "does

not automatically entitle all members of that minority to asylum."

Rasiah, 589 F.3d at 5. Rather, a petitioner ordinarily must

provide "individualized evidence that [he] will be 'singled out'

for persecution upon return to his home country," Kho v. Keisler,

-11-
505 F.3d 50, 54 (1st Cir. 2007), and Barsoum utterly failed to do

so before the IJ.1

Barsoum cannot meet the higher burden of proof required

for withholding of removal. See Singh v. Mukasey, 543 F.3d 1, 7

(1st Cir. 2009). Barsoum's CAT claim is based solely on a

characterization of his past experiences as "torture" likely to be

repeated. Because his past suffering does not rise to the level of

persecution, let alone torture, his CAT claim was properly denied.

See id.

III.

There was no abuse of discretion in the BIA's denial of

Barsoum's motion to remand. See Dong v. Holder, 587 F.3d 8, 13

(1st Cir. 2009). We would reverse only if the refusal to remand

was made absent a "rational explanation, inexplicably departed from

the established policies, or rested on an impermissible basis."

Pakasi v. Holder, 577 F.3d 44, 48 (1st Cir. 2009) (quoting Zhang v.

INS, 348 F.3d 289, 293 (1st Cir. 2003)) (internal quotation marks

omitted).

1
Barsoum has waived the argument that there is a pattern or
practice of persecution against Coptic Christians in Egypt because
he did not pursue a pattern or practice claim before the IJ or the
BIA and does not seriously develop the argument in this court. See
Ahmed v. Holder, No. 09-2085, 2010 WL 2740018, at *6 (1st Cir. July
13, 2010) ("[A]ppellate arguments advanced in a perfunctory manner,
unaccompanied by citations to relevant authority, are deemed
waived.").

-12-
 A motion to remand made before the BIA is treated under

the standards for a motion to reopen. See Falae v. Gonzales, 411

F.3d 11, 14 (1st Cir. 2005). Motions to reopen are generally

disfavored because they undermine interests in finality. INS v.

Abudu, 485 U.S. 94, 107 (1988); Olujoke v. Gonzales, 411 F.3d 16,

23 (1st Cir. 2005). They can be granted only if the petitioner

produces new, previously unavailable material evidence, Ratnasingam

v. Holder, 556 F.3d 10, 15 (1st Cir. 2009), that "establishes a

prima facie case for the underlying substantive relief," Chikkeur

v. Mukasey, 514 F.3d 1381, 1383 (1st Cir. 2008).

We reject the claim that the BIA abused its discretion in

not remanding Barsoum's case to the IJ. Because the IJ made no

adverse credibility finding, and the BIA treated Barsoum's

testimony as true, the documents corroborating certain aspects of

Barsoum's testimony could not change the outcome in his case.

We also reject his claim that the BIA failed to address

his claim of worsening country conditions for Coptic Christians.

The BIA acknowledged the statements he submitted on changed country

conditions and found that they did not warrant a remand because

they were generalized and did not detail why Barsoum specifically

would be persecuted in the future in Egypt. See Tawadrous, 565

F.3d at 39. The BIA also pointedly addressed one claim made in the

statements, that Barsoum would face a heightened individual risk of

harm in Egypt because he was a member of a church in Alexandria

-13-
that has been targeted for violence in the past. The BIA rightly

indicated that Barsoum never testified to or documented his

membership in this church.2

In addition, much of the material presented was obviously

available earlier and not proper on a motion for remand. It was

not an abuse of discretion for the BIA to refuse to remand to the

IJ on the basis of such material. See Ratnasingam, 556 F.3d at 15;

8 C.F.R. § 1003.2(c)(1) (authorizing the BIA to grant a motion to

reopen only if underlying evidence "was not available and could not

have been discovered or presented at the former hearing").

The material relating to events since August 2007 may or

may not show deterioration in country conditions for religious

minorities in Egypt. The State Department reports summarized in

the statements say that religious freedom for religious minorities

in Egypt has generally declined in recent years, but say nothing

specific about Coptic Christians in those trends. General trend

statements summarizing the treatment of all religious minorities,

devoid of any indication of severity, cannot excuse Barsoum from

his burden of demonstrating a connection between any changes in

2
In his brief, Barsoum makes much of the BIA's apparent
misreading of an affidavit he submitted with his motion to remand.
The affidavit was written by a Coptic priest in Egypt and named
various churches with which Barsoum has had some passing
affiliation. The BIA read this affidavit to contradict Barsoum's
claim of membership at St. George's Coptic Church in Alexandria.
Whether the BIA was in error is immaterial, as Barsoum has not
demonstrated his membership at St. George's in any way.

-14-
conditions and his own individualized risk of harm. Tawadrous, 565

F.3d at 39. The BIA did not abuse its discretion by refusing to

remand to consider changed country conditions on the basis of these

statements.

The petition for review is denied.

-15-