Diab v. Ashcroft

United States Court of Appeals
For the First Circuit

No. 04-1584

JEAZEF ADWARD DIAB,

Petitioner,

v.

JOHN ASHCROFT, ATTORNEY GENERAL,

Respondent.

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

Before

Torruella, Circuit Judge,
Selya, Circuit Judge,
and Stahl, Senior Circuit Judge.

Saher J. Macarius and Law Offices of Saher J. Macarius on
brief for petitioner.
Song E. Park, Office of Immigration Litigation, Peter D.
Keisler, Assistant Attorney General, and Michelle E. Gorden, Senior
Litigation Counsel, Office of Immigration Litigation, on brief for
respondent.

February 8, 2005
 STAHL, Senior Circuit Judge. Petitioner Jaezef Adward

Diab ("Petitioner") seeks review of the Board of Immigration

Appeals' ("BIA") decision to affirm the Immigration Judge's ("IJ")

denial of his petition for relief from removal, withholding of

removal, and protection under the Convention Against Torture

("CAT").1 Finding Petitioner has neither established past

persecution based on a protected category, nor a well-founded fear

of future persecution, we affirm.

I. BACKGROUND

Petitioner is an Egyptian national and a Coptic

Christian. Coptic Christians are a religious minority in Egypt and

historically have been the victims of discrimination by local

Egyptian officials as well as Muslim extremists. The Egyptian

national government, however, has taken affirmative steps to limit

such religious discrimination over the past few years.

Petitioner resided in Egypt until 1988, at which time he

moved to Greece ostensibly to escape religious persecution. He

arrived in the United States on January 12, 1997, and filed a

petition for asylum on March 28, 1998.

1
The Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment is codified at 8 U.S.C. § 1231.
While Petitioner appeals the BIA’s ruling concerning his CAT claim,
he makes no mention of this claim except within his statement of
issues, and therefore we will not consider it upon appeal. See
Strahan v. Coxe, 127 F.3d 155, 172 (1st Cir. 1997) (refusing to
address claim mentioned only in statement of issues).

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 In support of his application for asylum, Petitioner

testified before an Asylum Officer ("AO") that, while he resided in

Egypt, he was often confronted by Muslims who asked (and attempted

to bribe) him to convert to Islam. Petitioner claimed that, in

1973 and 1975, while he was attending school, he was physically

attacked on account of his religion by men that he believed to be

Muslim. Petitioner further testified that, while in the army in

1982, a group of soldiers beat him when he refused to convert to

Islam.

Petitioner further testified that one year after moving

to Greece, a Muslim extremist named Hussein stabbed him thirty-

three times in his home. Petitioner claimed that he spent two

weeks in a Greek hospital as a result of his injuries and that

Hussein was sentenced to ten years in prison for his crime. In his

application, Petitioner noted that Hussein’s sentence was nearly

complete, and that Petitioner had fled to the United States because

he feared that either Hussein or one of his associates would

attempt to harm him upon Hussein's release.

Petitioner also testified that he returned to Egypt in

1993 for twenty-three days to renew his passport, which was cheaper

to renew in Egypt, and returned again in 1995, staying for twenty-

five days in order to renew his visa for his stay in Greece. In

December of 1996, Petitioner returned yet again, this time for a

ten day visit with his mother.

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 The AO determined that Petitioner was not credible

because his testimony was internally inconsistent, inconsistent

with his written application, and vague. Specifically, the AO

found that Petitioner's testimony of the incidents in Egypt did not

contain the substantive detail that a credible witness would be

able to provide, and that Petitioner did not mention any of the

specific assaults in Egypt in his application--he only described

the attack in Greece. The AO was also concerned that material

aspects of the account of the attack in Greece contained in

Petitioner's application were missing from his testimony. The AO’s

report, which recommended that Petitioner’s application for asylum

be denied, was sent to the IJ for use at the removal proceedings.

During the removal proceedings, Petitioner submitted

various news articles and country condition reports detailing the

abuse of Coptic Christians by Muslim extremists in Egypt.

Petitioner also submitted an article, in Greek, that purportedly

describes the knife attack.2 When Petitioner testified before the

IJ, he again asserted that he was afraid to return to Egypt because

of Islamic fundamentalists generally, as well as of Hussein and his

2
The article’s apparent translation, written in pen on
notebook paper and not in complete sentences, does not name
Petitioner; it refers to the victim of the attack as "County Joseph
Di from Cairo." The translation also asserts that the victim was
stabbed nineteen times, not thirty-three. Respondent questions
both the authenticity of the translation and whether the article
actually refers to Petitioner or his story.

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associates in particular.3 The IJ, like the AO, found Petitioner

not credible. Primarily, the IJ doubted Petitioner’s expressed

fear of returning to Egypt, given that he had returned in 1993,

1995, and 1996 for extended periods of time. In addition, the IJ

found that Petitioner had not provided sufficient corroborating

evidence. Petitioner submitted no hospital records or evidence

corroborative of the specific allegations he made about his

persecution in Egypt or the attack in Greece. The IJ denied

Petitioner relief from removal under 8 U.S.C. §§ 1101(a)(42)(A) and

1158(a), withholding of removal under 8 U.S.C. § 1231(b)(3), and

protection under CAT. The BIA issued an order summarily affirming

the IJ’s decision, and Petitioner filed this timely petition for

judicial review.

II. DISCUSSION

While this case involves judicial review of a decision by

the BIA, when the BIA summarily affirms an IJ’s opinion, we review

the IJ’s analysis. See El Moraghy v. Ashcroft, 331 F.3d 195, 203

(1st Cir. 2003). The BIA’s determination must be upheld if

"supported by reasonable, substantial, and probative evidence on

the record considered as a whole," INS v. Elias-Zacarias, 502 U.S.

478, 481 (1992), and will be overturned, "only when the record

evidence would compel a reasonable factfinder to make a contrary

3
Petitioner claims, but provides no evidence, that his
attacker was a member of the Muslim fundamentalist group, Gamat Al
Islamiyah.

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determination." Aguilar-Solis v. INS, 168 F.3d 565, 569 (1st Cir.

1999) (citing Elias-Zacarias, 502 U.S. at 481 & n.1).

In order to qualify for asylum, an applicant bears the

burden of establishing that he is a "refugee" as defined by 8

U.S.C. § 1101(a)(42)(A). 8 U.S.C. § 1158(b)(1); Mukamusoni v.

Ashcroft, 390 F.3d 110, 119 (1st Cir. 2004). An applicant can meet

this burden in one of two ways: (1) by demonstrating a well-founded

fear of persecution on account of race, religion, nationality,

membership in a particular social group, or political opinion, or

(2) by proving past persecution on account of one of the

aforementioned grounds, which entitles an applicant to a

presumption of a well-founded fear of persecution. 8 U.S.C. §

1101(a)(42)(A); 8 C.F.R. § 208.13(b); see Yatskin v. INS, 255 F.3d

5, 9 (1st Cir. 2001). Proving past persecution, in the words of

this Circuit, is "a daunting task," Guzman v. INS, 327 F.3d 11, 15

(1st Cir. 2003), and the identified conduct must go beyond

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

INS, 232 F.3d 258, 263 (1st Cir. 2000). Without the benefit of the

presumption, an applicant must satisfy both a subjective and an

objective test in order to prove a well-founded fear of future

persecution. Velasquez v. Ashcroft, 342 F.3d 55, 58-59 (1st Cir.

2003); El Moraghy, 331 F.3d at 203. "The subjective test requires

the applicant to prove his fear is genuine, while the objective

test requires a showing by credible and specific evidence that this

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fear is reasonable." Mukamusoni, 390 F.3d at 120. An applicant’s

testimony alone, "if credible, may be sufficient to sustain the

burden of proof without corroboration." 8 C.F.R. § 208.13(a); El

Moraghy, 331 F.3d at 203. Should the applicant be found not

entirely credible, corroborating evidence, such as country

condition reports, may be used to bolster an applicant’s

credibility. See El Moraghy, 331 F.3d at 204; see also Mukamusoni,

390 F.3d at 124. Here, Petitioner asserts that he should have been

found credible, and additionally, that he produced enough

corroborating evidence to support his claim of both past

persecution and well-founded fear of future persecution. We

disagree.

A. Past Persecution

To establish past persecution, Petitioner must

demonstrate either through credible testimony, or a combination of

testimony and corroborative evidence, that he was persecuted on the

basis of his religion. See 8 C.F.R. §§ 208.13(a)and (b)(1); El

Moraghy, 331 F.3d at 203-04. We begin by noting that the IJ found

Petitioner's testimony not credible, and that the IJ was reasonable

in this determination.4

4
In addition to concurring with the AO’s determination that
Petitioner’s testimony was internally inconsistent and vague, the
IJ determined that Petitioner could not sufficiently justify his
trips back to Egypt, discussed infra p. 12-13.

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 In addition, the IJ reasonably found that the evidence

Petitioner provided did not adequately bolster his credibility.

See Aguilar-Solis, 168 F.3d at 572. For example, to corroborate

his account of the attack in Greece, Petitioner submitted an

article in Greek, without providing an adequate English

translation. And, the rough translation he did provide does not

identify Petitioner as the victim, nor does it say that the attack

was religiously motivated. As further evidence, Petitioner

submitted a letter from a doctor in the United States dated June

24, 1998 (nine years after the attack) that mentions scars

consistent with an attack similar to the one Petitioner described.

Petitioner did not, however, submit any contemporaneous medical

records from his attack or from his alleged two-week hospital stay.

And, even assuming the letter from the doctor is sufficient to

corroborate Petitioner’s claim that he was attacked as described,

it does not establish that he was attacked on the basis of his

religion. Cf. Aguilar-Solis, 168 F.3d at 572 (Without

corroborating evidence to prove that attacks on petitioner’s

village were politically motivated, the court was not compelled to

find for petitioner.). Furthermore, Petitioner did not provide any

police records from Hussein's arrest, nor any court records from

Hussein's alleged criminal conviction.5 Thus, looking at the

5
It is significant that Petitioner's attack occurred in
Greece. Unlike some of the cases we review where documentation is
difficult to obtain, such as in the genocide-ravaged country of

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record as a whole, the IJ did not err in determining that

Petitioner has not proven past persecution and therefore is not

entitled to a presumption of a well-founded fear of future

persecution. See 8 C.F.R. §208.13; Nelson, 232 F.3d at 264.

B. Well-Founded Fear of Future Persecution

We now turn to whether Petitioner has proven a well-

founded fear of future persecution. As mentioned above, this

requirement has both an objective and subjective component. See

Mukamusoni, 390 F.3d at 120.

1. Objective Fear

Beginning with the objective component, Petitioner must

prove that "a reasonable person . . . would fear persecution on

account of" his religion. Nelson, 232 F.3d at 264 (quoting

Aguilar-Solis, 168 F.3d at 572). Petitioner must provide "credible

and specific evidence that this fear is reasonable." Mukamusoni,

390 F.3d at 120 (citing El Moraghy, 331 F.3d at 203).

Although the IJ found Petitioner generally not credible,

Petitioner provided supporting evidence in the form of multiple

news articles concerning the treatment of Coptic Christians in

Egypt, as well as a 1997 terrorist attack by Muslim fundamentalists

Rwanda, Greece is a modern country, and therefore Petitioner
reasonably may be expected to provide such documentation, or at a
minimum, an explanation for the absence of such documentation.

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in Egypt.6 Petitioner also supplied country condition reports on

Egypt for the years 1995, 1996, 2000, and 2001. The 2000 and 2001

reports state that Muslim extremists continue to persecute

religious minorities, specifically Coptic Christians, despite the

national government’s efforts to ensure free exercise of religion.

The 2000 report also identifies four assaults by Muslim extremists

on Coptic Christians, and notes that a trial had commenced that

year for the premeditated murder of a Coptic priest by a Muslim

extremist. The 1996 report explicitly states that "[t]errorist

violence against Christians was a problem," and that "[t]errorist

groups seeking to overthrow the Government and establish an Islamic

state continued their attacks on police, Coptic Christians, and

tourists." MB, Country Reports on Human Rights Practices, Egypt

(1997) (emphasis added).

Despite what appears to be helpful background evidence,

the IJ devotes one sentence in his opinion summarizing these

reports, as well as the various news articles submitted by

Petitioner, concluding that they only “indicate that Moslem

fundamentalists are seeking to overthrow the government of Egypt

and establish a[n] Islamic fundamentalist government in Egypt."

The IJ also found it significant that none of the articles or

6
In November of 1997, a group of Muslim extremists opened fire
on Egyptians and tourists at the temple of Hachepsut in Luxor,
Egypt. Sixty people were killed, and twenty were wounded. The
attack was believed to be aimed at disrupting the tourist industry.

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country condition reports refer to Petitioner or any of his family

by name. But, the correct use of country condition reports is to

provide "a general description of conditions faced by Coptic

Christians in Egypt." El Moraghy, 331 F.3d at 204 (emphasis

added). Country condition reports need not refer to a petitioner

by name to be probative. See id. ("It is unrealistic to expect

that country condition reports could contain references to all

citizens of that country who have faced . . . persecution" and "to

demand that they do so . . . is clearly erroneous.").

Here, there is simply an "absence of reasoned discussion"

by the IJ of whether the country condition reports and articles

sufficiently support Petitioner's claim that a "reasonable person"

in Petitioner's shoes as a Coptic Christian living Egypt would fear

returning to Egypt. See id. Therefore, we cannot determine if the

IJ properly considered this evidence. But because, as we discuss

below, Petitioner has failed to establish a subjective fear of

persecution, we need not consider whether the IJ's cursory review

of this documentary evidence was in error.7 Cf. id. at 205

(remanding in light of misuse of country condition reports and the

absence of key findings in IJ's discussion of both past persecution

and fear of future persecution).

7
We urge that in the future, an IJ should be more
comprehensive in discussing his analysis of potentially relevant
documentary evidence so that a reviewing court can evaluate whether
such evidence was properly considered. See El Moraghy, 331 F.3d at
204-05.

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2. Subjective Fear

To prove a well-founded fear of future persecution,

Petitioner also must demonstrate a subjective fear of persecution.

Velasquez, 316 F.3d at 58-59. Under this prong, Petitioner must

prove that his fear is genuine. See Aguilar-Solis, 168 F.3d at

572. A crucial aspect in determining whether an applicant has a

genuine fear is the applicant’s credibility. See Mukamusoni, 390

F.3d at 125 (The BIA cannot, as a matter of law, question the

“genuineness” of petitioner’s fear without addressing

credibility.).

We begin, yet again, with the fact that the IJ reasonably

found Petitioner’s testimony not credible. The IJ noted

Petitioner's inability to explain why he returned to Egypt on three

occasions despite his apparent fear of "imminent death" if he were

to return there now. While returning to one’s native country does

not automatically refute the possibility of having a genuine fear,

see, e.g., Mukamusoni, 319 F.3d at 126 (The petitioner’s return to

Rwanda to finish her education, when faced with "no viable means of

support otherwise," did not undercut her claim as "people take

risks in the face of their fears."), Petitioner's three trips to

Egypt, all occurring after the alleged incidents of his

persecution, significantly undercut his claim that he is now afraid

to return. Petitioner’s first return in 1993 was for twenty-three

days, allegedly to renew his passport, which he could have done

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(albeit more expensively) outside of Egypt. His second return in

1995, for twenty-five days, was to renew his visa to stay in

Greece. His third, a trip for ten days in 1996, was to visit his

mother. In his defense, Petitioner claims that he was only able to

return to Egypt on these occasions because he went back in secret

and stayed at a different address from his family. The reasons for

these returns, however, and the length of the stays, support the

IJ’s determination that Petitioner does not have a subjective fear

of returning to Egypt. As such, any error that the IJ may have

made in failing to provide a reasoned analysis of the country

condition reports and articles is harmless, and the BIA’s decision

is affirmed. See, e.g., Mekhoukh v. Ashcroft, 358 F.3d 118, 130

(1st Cir. 2004) (applying harmless error standard).8

The petition for judicial review is DENIED.

8
Having found that Petitioner has failed to prevail on his
asylum claim, we also must affirm the BIA’s denial of withholding
of removal. The burden of proof required for Petitioner to succeed
in a withholding of removal claim is that there is a "clear
probability" of persecution, which is higher than the "well-founded
fear" standard implicated by an asylum claim. See Mediouni v. INS,
314 F.3d 24, 27 (1st Cir. 2002). Petitioner, therefore, cannot
succeed on his claim of withholding of removal.

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