Sharari v. Ashcroft

United States Court of Appeals
For the First Circuit

No. 03-2635

AHMAD SAID SHARARI, RAMDA ADNAN MOUSSA,

Petitioners,

v.

ALBERTO GONZÁLES,*

Respondent.

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

Before

Lynch, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge.

Peter A. Allen on brief for petitioner.
Peter D. Keisler, Assistant Attorney General, Linda S.
Wernery, Senior Litigation Counsel, and William C. Minick, Office
of Immigration Litigation, Civil Division, United States Department
of Justice, on brief for respondent.

May 17, 2005

*
Alberto Gonzáles was sworn in as Attorney General of the
United States on February 3, 2005. We have substituted him for
John Ashcroft, previous holder of that office, as the respondent.
See Fed. R. App. P. 43(c)(2).
 LIPEZ, Circuit Judge. The petitioners, Ahmad Said

Sharari and his wife, Ramda Adnan Moussa, seek review of a final

order of the Board of Immigration Appeals (BIA) denying their

application for asylum, withholding of removal, and relief under

the Convention Against Torture. We affirm the Board's decision.1

I.

Sharari was born to Palestinian parents in the ancient

city of Sidon, Lebanon, and has lived in that country for much of

his life. Because of his Palestinian ethnicity, however, he is not

a citizen under Lebanese law. On May 23, 1997, he and his then-

pregnant wife entered the United States; their visa entitled them

to stay six months as visitors for pleasure, but they did not leave

when it expired. Moussa would later give birth to a daughter on

September 11, 1997.

On January 20, 1999, Sharari submitted an application for

asylum, supported by affidavits from him and his wife, to the

Immigration and Naturalization Service (INS).2 On April 30, 1999,

1
The claims of Sharari's wife derive from his. See 8 U.S.C.
§ 1158(b)(3)(A).
2
On March 1, 2003, the INS ceased to exist as an independent
agency, and many of its duties were transferred to U.S. Citizenship
and Immigration Services, a bureau of the newly created Department
of Homeland Security. See Homeland Security Act of 2002, Pub. L.
No. 107-296, § 471, 116 Stat. 2135, 2205 (codified as amended at 6
U.S.C. § 291(a)); Lattab v. Ashcroft, 384 F.3d 8, 13 n.2 (1st Cir.
2004). Because Sharari's dealings were mostly with the INS, we
refer to that agency throughout this opinion for simplicity's sake.

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Sharari was interviewed by an asylum officer. The INS then

referred the matter to an immigration judge (IJ) and, on May 24,

1999, charged Sharari with being subject to removal for overstaying

his visa. See 8 U.S.C. § 1227(a)(1)(B). At a hearing on March 8,

2000, Sharari admitted the factual allegations against him,

conceded removability, and requested three kinds of relief: asylum,

withholding of removal, and protection under Article 3 of the

Convention Against Torture (CAT).3 Sharari also applied for

voluntary departure in lieu of removal.

A. Sharari's affidavit

In its twelve single-spaced pages, Sharari's affidavit

describes a pervasive atmosphere of discrimination against

Palestinians in Lebanon, as well as several specific incidents of

harassment that he faced.4 In general, Sharari says, "Palestinians

are treated as unwanted persons with no political or economic or

human rights in Lebanon today." More specifically, discrimination

against Palestinians is also based on what sect of Islam one

belongs to: Sunni or Shi'a. Sunni Palestinians were subjected to

3
The CAT's full name is the United Nations Convention Against
Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or
Punishment, Dec. 10, 1984, 23 I.L.M. 1027, 1465 U.N.T.S. 85.
Congress implemented Article 3 of the Convention, with some
changes, as part of the Foreign Affairs Reform and Restructuring
Act of 1998, Pub. L. No. 105-277, § 2242, 112 Stat. 2681, 2681-822
(codified in a note to 8 U.S.C. § 1231).
4
Sharari later submitted an amended affidavit, which added
a few factual details but made no major changes. We refer here to
that amended version.

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the harshest treatment, while Shiites fared better: "Shiite

Palestinians who came to Lebanon and sought citizenship were

immediately given citizenship and had all of the rights of full

Lebanese citizens. Only those of us who are Sunni Moslems and who

refuse to denounce their faith are treated like scum and denied all

rights." As a Sunni Palestinian in Lebanon, "[e]veryone persecutes

you, both the Christians and Muslims."

Sharari's affidavit offers a few incidents of specific

mistreatment. As a child, Sharari was denied entry into several

schools near his home, which were supposedly intended for the

general public, because he was Palestinian. Also, after Israeli

aerial bombardments, neighborhood children would blame him for the

attacks, yelling that the Israelis would not be bombing Lebanon if

not for the Palestinians living there. Notwithstanding these

obstacles, Sharari made his way through high school, where in his

junior year he entered and won a national tournament to determine

the ping-pong champion of Lebanon. When the tournament's

organizers found out that he was Palestinian, they denied him the

trophy. Sharari went on to attend the National College of Lebanon,

graduating with a degree in architectural drafting. His ethnicity

prevented him from getting the proper license to work as a

draftsman, however, and he left Lebanon for the Gulf states, where

working conditions were better.

Much of Sharari's working life was spent outside of

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Lebanon. At various times in the 1980s and 1990s, Sharari worked

as a manual laborer or crane operator in the Gulf states, where at

first he found conditions to be more favorable for Palestinians.

Conditions worsened there, too, after Yassir Arafat, chairman of

the Palestine Liberation Organization, declared his support for

Iraq's invasion of Kuwait in 1991. Afterwards, Palestinians "were

treated as pariahs even in the Gulf States," even if, like Sharari,

they did not support the invasion or consider Arafat their leader.

After 1994, Sharari's ability to move easily between Lebanon and

the Gulf states became increasingly hampered. In September 1994,

Lebanon passed a law requiring Palestinians who were traveling

outside of the country to get a new visa every six months; this

renewal could only be done in Lebanon, which was inconvenient for

Sharari.

Sharari's affidavit tells of one incident of physical

abuse. During the Lebanese civil war in the 1970s and 1980s,

according to Sharari, Palestinians were restricted to a strip of

land four miles wide and would be killed if caught outside. In

1986, Sharari was driving his aunt home to a town a few miles away

from Sidon. Suddenly, two Shiite gunmen "came out of nowhere" and

demanded to see his identification. He complied, but they took him

at gunpoint to a crude basement jail, where he was held for three

days along with about twenty other Palestinian men. They were

beaten regularly and given nothing to eat. Sharari's captors told

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him that he and his fellow captives were being held because they

were Palestinian; evidently there had recently been fighting

between Palestinians and Shi'a militia in Beirut. After three

days, Sharari's aunt was able to bribe someone to let him go.

Others not so lucky were killed. Upon his release, Sharari's

captors told him not to tell anyone about what had happened to him.

He believed that if he did and the Shi'a found out, they would kill

him.

Sharari's affidavit also describes an incident of legal

discrimination against him because he was Palestinian. In

September 1990, he opened a store selling beauty supplies.

Business was not so good, and he closed the store in mid-1993. He

continued leasing the space and kept some inventory there, in the

hope that conditions would improve. After spending a few months in

Abu Dhabi for work-related reasons, Sharari returned to Lebanon to

find that his landlord had leased the space to a stranger, who had

taken over Sharari's store and was selling his inventory. When

Sharari protested, the landlord told him of a 1992 law providing

that any Palestinian who closed his store for more than six months

would lose the store and his lease. Indeed, the landlord had

secured a court order declaring Sharari's business to be abandoned

under the law. In the end, Sharari claims that he lost more than

$10,000.

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 B. Moussa's affidavit

Moussa's affidavit describes similar instances of general

harassment and discrimination, but no specific instances of

physical mistreatment. In 1997, when three-months pregnant, she

went to an obstetrician for an examination. The obstetrician, a

Lebanese woman, told her that her unborn baby was dead and that "we

need to take it out." Mousa did not believe her and feared that

"she would give me a pill or an injection that would start a

miscarriage." Moussa sought a second opinion and was told that her

child was alive and normal; indeed, the child was born later in the

United States. Moussa attributes the first obstetrician's advice

to an animus against Palestinians: "Lebanese always say that

Palestinians have too many children." More generally, the incident

reinforced Moussa's belief that "Palestinians do not get careful

attention from doctors like Lebanese [sic]."

C. Sharari's testimony

Sharari's testimony was taken at different times in 2000

and 2001 because of continuances granted to obtain additional

pieces of evidence. In sum, Sharari generally confirmed the

statements in his affidavit. However, he also testified to two

additional incidents of abuse and torture in the mid-1980s, which

he was describing for the first time.

First, Sharari testified that in 1985, while traveling to

Beirut, he was shot at by members of the Amal militia, a Shi'a

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group, because he was Palestinian. After shooting Sharari in the

leg, the militiamen seized him and brought him to the basement of

a house. There, Sharari was held for fifteen days and "tortured

every single day," which included being punched in the face. Other

people also being held with Sharari were killed. Eventually,

Sharari was released. He was treated at a hospital for sixteen

days, although he did not have any medical records from his stay

there.

Second, Sharari testified that in 1986, he was again

seized by the Amal militia while traveling to Beirut. He was taken

blindfolded to a crude basement jail, where he was detained for

thirty days and interrogated. During interrogations he was beaten,

burned, hung upside down "[a]lmost every day," and deprived of

sleep at night by having water thrown on him.

Sharari also testified that the lone account of physical

abuse in his affidavit had been inaccurate in three respects: the

year, the length of detention, and the reason for his release. He

testified that he had been seized in 1987, not 1986; that he had

been detained for a day and a half, not three days; and that,

although his aunt had tried to bribe someone, he was in fact

released "in a different manner," without explaining what he meant

by that remark.

When the government pressed Sharari to explain why he had

omitted the 1985 and 1986 incidents from his affidavit, Sharari

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said: "I was afraid that from the injury I received, it would give

the impression that I was a troublemaker or I was fighting or

something like that."

D. Immigration judge's decision
and the Board's affirmance

On March 28, 2002, at the end of the last hearing, the

immigration judge made an oral ruling. He recited the pertinent

details of Sharari's application, affidavits, and testimony; found

him removable as charged; and denied his application for relief.

Regarding the claim of asylum, the judge found that Sharari had

failed to establish that he would be persecuted or had a well-

founded fear of persecution upon returning to Lebanon. Sharari's

next claim, for withholding of removal, was necessarily dismissed

because its burden of proof is higher than an asylum claim's

burden. Finally, as to the CAT claim, the judge found no credible

evidence that the Lebanese government would more likely than not

torture Sharari if he returned to Lebanon. Specifically, the

immigration judge found that Sharari's only evidence on this point

was his own testimony, which he had not included in his original

application and was now giving for the first time. The court

granted Sharari's request for voluntary departure in lieu of

removal.

On October 28, 2003, the Board affirmed the immigration

judge's decision in its entirety, although it affirmed the denial

of the asylum claim on different grounds. The Board held that

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Sharari was ineligible for asylum because he did not file his

application within a year after arriving in the United States, see

8 U.S.C. § 1158(a)(2)(B), and because the record did not reveal any

"extraordinary circumstances relating to the delay" or any "changed

circumstances" that might otherwise affect his eligibility, see id.

§ 1158(a)(2)(D). As for the rest of Sharari's appeal, the Board

deferred to the immigration judge's "adverse credibility finding,

which is based on material, inadequately explained omissions in the

record." These "significant discrepancies" left Sharari without

any credible evidence to support his application, thereby dooming

his attempt to qualify for withholding of removal and relief under

the CAT.

This appeal followed.

II.

An alien who has applied for asylum must "demonstrate[]

by clear and convincing evidence that the application has been

filed within 1 year after the date of the alien's arrival in the

United States." 8 U.S.C. § 1158(a)(2)(B). Otherwise, the

government may consider an application only if "the alien

demonstrates to the satisfaction of the Attorney General either the

existence of changed circumstances which materially affect the

applicant's eligibility for asylum or extraordinary circumstances

relating to the delay in filing an application." Id. §

1158(a)(2)(D).

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 Sharari arrived in the United States on May 23, 1997, and

he does not dispute that he did not file his application for asylum

until January 20, 1999, almost twenty months later. In its order,

the BIA found that this delay rendered Sharari's application

hopelessly untimely:

While we agree with the Immigration Judge's determination
that the respondents [i.e., Sharari and Moussa] are
ineligible for asylum, we find their ineligibility is
based upon a failure to file an asylum application within
the 1-year filing deadline, rather [than] on a failure of
proof. The record does not reflect any changed
circumstances affecting the respondents['] eligibility or
extraordinary circumstances relating to the delay in
filing an application within 1 year.

(Citation and footnote omitted.) The Board did not explain its

reasoning further other than to cite the part of Sharari's

application that offered his excuses for the delay: the poor health

of his daughter, who was born about four months after they arrived;

trying to "learn how to get around" in the United States and find

"more stable" living conditions; and his not knowing English or the

law.

Fatally for Sharari's claim, we have no power to review

the Board's determination. "No court shall have jurisdiction to

review any determination of the Attorney General under paragraph

(2)" of § 1158(a). 8 U.S.C. § 1158(a)(3). Paragraph (2) includes

both aspects of the Board's determination--first, that Sharari's

petition was untimely, and second, that there were no changed or

extraordinary circumstances that might have justified considering

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his application nevertheless. See Njenga v. Ashcroft, 386 F.3d

335, 339 (1st Cir. 2004); Haoud v. Ashcroft, 350 F.3d 201, 204-05

(1st Cir. 2003) (acknowledging lack of jurisdiction, although

remanding because the Board failed to explain whether its decision

was based on timeliness or on the merits); Tarrawally v. Ashcroft,

338 F.3d 180, 185 (3d Cir. 2003) (no jurisdiction to review Board's

determination); Mendoza v. Att'y Gen., 327 F.3d 1283, 1286-87 (11th

Cir. 2003) (same); Tsevegmid v. Ashcroft, 336 F.3d 1231, 1234-35

(10th Cir. 2003) (same); Hakeem v. INS, 273 F.3d 812, 815 (9th Cir.

2001) (same).

Here, although the Board's explanation of its reasoning

was rather abbreviated, it made clear that it was denying Sharari's

asylum claim because of unexcused tardiness, not the claim's

merits. (The Board agreed with the immigration judge that

Sharari's claim failed on the merits, too.) Therefore, we cannot

review this ruling of the Board. That ends the matter.

III.

When we have jurisdiction to review, we uphold

determinations by the Board or the immigration judge 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) (internal quotation marks omitted). This so-called

"substantial evidence" standard applies to claims for asylum,

withholding of removal, and relief under the CAT. Settenda v.

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Ashcroft, 377 F.3d 89, 93 (1st Cir. 2004). "We will reverse only

if the petitioner's evidence would compel a reasonable factfinder

to conclude that relief was warranted." Id.; see also 8 U.S.C. §

1252(b)(4)(B) ("administrative findings of fact are conclusive

unless any reasonable adjudicator would be compelled to conclude to

the contrary").

Usually, we would confine our review to the BIA's order

that is being challenged by the petitioner. If the BIA has simply

adopted or deferred to the immigration judge's reasoning, however,

we must look to that decision instead, "treat[ing] the findings and

conclusion of the IJ as the Board's own opinion." Herbert v.

Ashcroft, 325 F.3d 68, 71 (1st Cir. 2003); see also Chen v. INS, 87

F.3d 5, 7-8 (1st Cir. 1996) ("[I]f the Board's view is that the IJ

'got it right,' the law does not demand that the Board go through

the idle motions of dressing the IJ's findings in its own prose.").

A. Withholding of removal

To ensure withholding of removal, Sharari must prove that

upon deportation, he is more likely than not to face persecution on

account of race, religion, nationality, membership in a particular

social group, or political opinion. Salazar v. Ashcroft, 359 F.3d

45, 52 (1st Cir. 2004). Courts have derived some general

principles as to the definition of "persecution": "[P]ersecution

encompasses more than threats to life or freedom, but less than

mere harassment or annoyance." Aguilar-Solis v. INS, 168 F.3d 565,

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569-70 (1st Cir. 1999) (citations omitted). Persecution does not

include

all treatment that our society regards as unfair, unjust,
or even unlawful or unconstitutional. If persecution
were defined that expansively, a significant percentage
of the world's population would qualify for asylum in
this country--and it seems most unlikely that Congress
intended such a result.

Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993). "Between these

broad margins, courts have tended to consider the subject on an ad

hoc basis." Aguilar-Solis, 168 F.3d at 570.5

While deferring generally to decisions by an immigration

judge, we pay special heed to credibility determinations: "[W]hen

5
As we have said, the standard for proving a claim for
withholding of removal is higher than for asylum. Because of that
higher standard, if a petitioner has lost on the merits of his
asylum claim, he automatically loses on his claim for withholding
of removal. Indeed, that is how the IJ decided the case below.
However, because the Board affirmed the denial of Sharari's asylum
claim for a procedural reason--holding that the claim was time-
barred--he is still entitled to an analysis on appeal of the merits
of his withholding claim.
The Supreme Court has explained the relation between the two
kinds of claims thusly:

Under the immigration laws, withholding is distinct from
asylum, although the two forms of relief serve similar
purposes. Whereas withholding only bars deporting an
alien to a particular country or countries, a grant of
asylum permits an alien to remain in the United States
and to apply for permanent residency after one year. In
addition, whereas withholding is mandatory unless the
Attorney General determines one of the exceptions
applies, the decision whether asylum should be granted to
an eligible alien is committed to the Attorney General's
discretion.

INS v. Aguirre-Aguirre, 526 U.S. 415, 419-20 (1999) (citations
omitted).

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a hearing officer who saw and heard a witness makes an adverse

credibility determination and supports it with specific findings,

an appellate court ordinarily should accord it significant

respect." Id. at 571. In this case, the immigration judge found

Sharari's "testimony not to be credible." Referring to the three

alleged incidents of physical abuse in the 1980s, the IJ noted that

"none of that information was disclosed in the male respondent's

asylum application nor did he disclose that information to the

political asylum officer who questioned him in 1999 in connection

with his application for political asylum and withholding of

removal."

The IJ did "offer a specific, cogent reason for [his]

disbelief," as required. Gailius v. INS, 147 F.3d 34, 47 (1st Cir.

1998) (alteration in original) (internal quotation marks omitted).

While Sharari mentioned one of the three incidents, the 1987

incident, in his affidavit, he contradicted himself on the year it

occurred, how long he was detained, and the reason for his

release.6 More importantly, Sharari omitted the 1985 and 1986

incidents entirely from his application, his two affidavits (an

original and an amended version), and his interview with an asylum

officer in April 1999. Only in his testimony did he claim for the

first time that he had been shot, burned, brutally beaten, and

6
The IJ was therefore wrong to say that Sharari disclosed
"none of th[e] information" in his application. He disclosed the
1987 incident, albeit with some differences.

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detained for weeks on end. His explanation for omitting these

details was that he feared being labeled a "troublemaker" or

disruptive. The IJ was entitled to find this explanation

unpersuasive.

The evidence in the record on general discrimination

against Palestinians in Lebanon, although substantial, does not

establish the persecution required for withholding of removal.

Evidence of conditions in Lebanon was supplied by the State

Department's Country Report on Human Rights Practices in Lebanon

for the years 2000 and 2001. The 2001 report describes most

Palestinian refugees as being "subject to government and societal

discrimination." Most cannot obtain citizenship and are barred

from work in 72 professions. In April 2001, the Parliament passed

a law depriving Palestinian refugees of the right to own property:

"Under the new law, Palestinians no longer may purchase property

and those who own property will be prohibited from passing it on to

their children."7

7
The IJ limited his discussion of these reports to the
observation that neither report mentioned Sharari by name, stating
that a "review of the document does not refer to the respondent or
any members of his family." Sharari interprets that remark as a
refusal to consider the reports at all.
The IJ intimated that he had read and considered the reports,
and we will take him at his word. However, we cannot fathom why he
looked for Sharari's name in the reports in the first place and
what possible relevance the IJ could have placed on not finding the
name there. Country reports are valuable tools, of course, for
learning about a country's respect for human rights in general; but
one should not expect them to contain the individual names of
asylum-seekers. Besides, Sharari had been in the United States

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 Standing alone, the discrimination described does not

compel a finding of persecution. "Discrimination is not the

equivalent of persecution . . . ." Pieterson v. Ashcroft, 364 F.3d

38, 44 (1st Cir. 2004). "To qualify as persecution, a person's

experience must rise above unpleasantness, harassment, and even

basic suffering." Nelson v. INS, 232 F.3d 258, 263 (1st Cir.

2000); see also Ahmed v. Ashcroft, 341 F.3d 214, 217 (3d Cir. 2003)

("widespread legal and economic discrimination against

Palestinians" in Saudi Arabia does not amount to persecution).

Sharari's claim for withholding of removal therefore

fails. We cannot see anything in the record that compels a

conclusion contrary to that reached by the immigration judge and

the Board.

B. Relief under the CAT

To secure relief under the CAT, Sharari must show "that

it is more likely than not that he . . . would be tortured if

removed" to Lebanon. 8 C.F.R. § 208.16(c)(2). Federal regulations

define torture as the intentional infliction of severe pain or

suffering for such purposes as forcing a confession or intimidating

someone; the pain or suffering must be inflicted by the government,

or with its acquiescence. 8 C.F.R. § 208.18(a)(1); see also Elien

v. Ashcroft, 364 F.3d 392, 398 (1st Cir. 2004). Pain or suffering

as a result of lawful sanctions does not count. 8 C.F.R. §

since 1997.

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208.18(a)(3).

As we have already established, Sharari has not refuted

the IJ's adverse credibility determination, which undermined his

evidence of physical abuse he suffered while in Lebanon.

Furthermore, he has not shown that the Amal militia, which

allegedly abused him in the mid-1980s, operated with the

acquiescence of the government or would be likely to still be doing

so now.

C. Due-process claim

To his main claims for relief, Sharari adds a claim that

the IJ violated his right to due process by refusing to admit a

videotaped news program into evidence. According to Sharari, the

program reported on the harsh conditions experienced by

Palestinians living in Lebanon. Sharari mentioned the program for

the first time while on direct examination by his counsel. When

his counsel proffered the tape, the IJ refused to take it into

evidence, saying, "I'll mark it for identification, but I'm not

going to make it part of the record." When asked why, the judge

said that it was "obvious. It's a tape."

"An immigration judge, like other judicial officers,

possesses broad (though not uncabined) discretion over the conduct

of trial proceedings." Aguilar-Solis, 168 F.3d at 568. Sharari

must show that the IJ's exclusion of evidence was an abuse of that

discretion and that he was prejudiced as a result. Galicia v.

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Ashcroft, 396 F.3d 446, 447-48 (1st Cir. 2005).

Just as in Galicia, here "[t]he offer of evidence was

made on the day of the hearing, in violation of . . . the local

rule requiring pre-hearing marking of exhibits." Id. at 448.

Sharari's case had been continued several times--ultimately, for

more than two years--to allow him time to get copies of certain

Lebanese laws from the Library of Congress. The record does not

reveal why he waited until the day of the hearing to proffer this

news report. Moreover, the report had nothing to do with Sharari's

personal circumstances--only general discrimination against

Lebanese Palestinians, which, as we have said, does not entitle him

to withholding of removal or relief under the CAT. He could not

have been prejudiced, therefore, by the tape's exclusion. Whatever

the deficiencies in the IJ's explanation of that decision, he did

not abuse his discretion in excluding the videotape from evidence.8

Affirmed.

8
Admittedly, we do not fully understand the IJ's reason for
rejecting the videotape. He said that it was "obvious" why he did
so, implying that videotapes in themselves are inadmissible. We do
not know why the IJ's broad authority to regulate the course of a
hearing would not encompass admitting a videotape into evidence, as
long as it met the usual requirements of being "material and
relevant." 8 C.F.R. § 1240.1(c).

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