United States Court of Appeals
For the First Circuit
No. 04-2734
ADNAN SULAIMAN,
Petitioner,
v.
ALBERTO GONZALES, Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.
Edward J. Bailey on brief for petitioner.
Jimmy Rodriguez, Trial Attorney, United States Department of
Justice, Environment and Natural Resources Division, Peter D.
Keisler, Assistant Attorney General, Civil Division, and Linda S.
Wernery, Assistant Director, Office of Immigration Litigation, on
brief for respondent.
November 21, 2005
STAHL, Senior Circuit Judge. This appeal involves a
Kurdish Syrian who came to the United States 17 years ago and has
been living here illegally ever since. Notwithstanding his long
residence in the United States, the Department of Homeland Security
is endeavoring to remove him to Syria. Finding no error by the
Board of Immigration Appeals in rejecting his claim for relief from
removal, we deny his petition for review.
I. Background
The IJ who heard Adnan Sulaiman's case found his
testimony to be credible. We therefore take his assertions before
the IJ as true in setting forth the facts of the case.
Sulaiman is a 57-year-old Syrian citizen of Kurdish
descent. While he was growing up and throughout his adult life in
Syria, he suffered discrimination at the hands of the ruling Ba'ath
Party, which suppresses Kurdish nationalism among Syrian Kurds.
The Ba'athists denied Sulaiman the opportunity to get a public
education and, to some degree, frustrated his efforts to find
employment. Sulaiman did obtain a privately financed education,
and went on to find work for a Syrian company. While at that job
he was harassed by government security forces who attempted to
coerce him into hiring Ba'ath party members to positions in the
company, and who tried to extract benefits -- use of company cars,
free gasoline, and the like -- by threatening Sulaiman with harm if
he did not comply. At some point in 1987, he was detained and
-2-
harassed for a full day by government security forces, which the IJ
acknowledged must have been a "fearful experience" for him. After
he was released from that detention he experienced increased
harassment from security forces. He received this treatment
because of his Kurdish origin and his membership in the Kurdish
Democratic Party, a separatist organization disfavored by the
Syrian government because it advocates independence for Syrian
Kurds.
As a result of the harassment, Sulaiman decided to leave
Syria. He obtained a tourist visa from the U.S. embassy in Syria
and in June 1988 came to the United States. His visa soon expired,
but Sulaiman stayed on. Many years later, he was located by what
was then the Immigration and Naturalization Service (INS) during a
round-up of potentially removable aliens that the INS conducted in
the days following the attacks of September 11, 2001. The INS, now
the Department of Homeland Security (DHS), began removal
proceedings. Sulaiman requested withholding of removal and relief
under the Convention Against Torture (CAT).
The Immigration Judge (IJ) who heard his case noted that
Sulaiman would not be eligible for asylum because, with few
exceptions, an application for asylum is barred if not filed within
one year of a petitioner's arrival in the United States, and
Sulaiman did not allege that his case met any of the exceptions.
The IJ therefore concluded that the only issue facing it was
-3-
whether Sulaiman had demonstrated a "clear probability" that he
would suffer from either persecution (meriting withholding of
removal) or torture (meriting relief under the CAT) if he returned
to Syria. While expressing sympathy for the petitioner, given the
length of time he had resided in the United States, the IJ found
that the requirements for relief had not been met. Sulaiman, the
IJ noted, suffered no physical harm at the hands of government
security forces while in Syria, and his stories of harassment were
not sufficient to demonstrate that it was more likely than not that
he would suffer persecution or torture upon his return. The IJ
granted voluntary departure.
Sulaiman timely appealed to the Board of Immigration
Appeals, which adopted the opinion of the IJ and affirmed her
decision. Sulaiman now appeals the decision of the Board.
II. Analysis
Sulaiman raises a number of issues in his petition. He
contends that the IJ should have made a finding as to whether
Sulaiman experienced past persecution, should have admitted and
considered certain evidence, should have applied a different legal
standard, and in any event reached the wrong conclusion on the
facts presented. We review each claim in turn, finding no error.
We note at the outset that, while we normally review the decisions
of the Board, not of the IJ, the Board here adopted the opinion of
the IJ. We therefore review the opinion of the IJ as if it were
-4-
that of Board. Njenga v. Ashcroft, 386 F.3d 335, 338 (1st Cir.
2004).
A. Sufficiency of the IJ's Opinion
Sulaiman faults the IJ for failing to make specific
findings as to whether or not he suffered from past persecution.
He also complains that the IJ did not thoroughly consider the State
Department country report for Syria. These claims go to the
sufficiency of the IJ's opinion to support meaningful review,
rather than to the procedures the IJ employed at the hearing or to
the merits of the decision. On a challenge to the sufficiency of
an opinion, the usual remedy is remand, which we will order "if the
BIA's opinion fails to state with sufficient particularity and
clarity the reasons" for denying relief. Xu v. Gonzales, 424 F.3d
45, 49 (1st Cir. 2005) (quoting Halo v. Gonzales, 419 F.3d 15, 18
(1st Cir. 2005)).
Sulaiman cites El Moraghy v. Ashcroft, 331 F.3d 195, 203
(1st Cir. 2003), in support of his argument that the IJ should have
made a specific finding as to whether he suffered from past
persecution. El Moraghy indicates that a finding with respect to
past persecution may be necessary under some circumstances. It did
not by any means create a per se rule requiring an explicit holding
as to every factor that an IJ might find relevant in making a
determination. This is because, "[w]hen considering whether the
clarity of an administrative decision is sufficient to support our
-5-
review, . . . we are not . . . oblivious of the record on which it
is based." Xu, 424 F.3d at 49. An IJ is obligated to offer more
explanation when the record suggests strong arguments for the
petitioner that the IJ has not considered, see, e.g., Halo, 419
F.3d 15; Gailius v. INS, 147 F.3d 34 (1st Cir. 1998), but that is
not the case here.
The IJ, it is true, did not use the phrase "past
persecution." It is nevertheless evident from her opinion that she
found no indication that Sulaiman's experiences in Syria amounted
to persecution under the withholding of removal statute. The IJ's
opinion indicates with clarity that she considered Sulaiman's
testimony as to his experiences in Syria and concluded that they
did not justify a finding that it was more likely than not that he
would be persecuted if he returned to Syria. We do not require an
IJ to intone any magic words before we will review her
determination. See Morales v. INS, 208 F.3d 323, 328 (1st Cir.
2000).
Sulaiman also claims that the IJ did not sufficiently
consider the Department of State country report that Sulaiman
submitted into evidence, but this claim also fails for similar
reasons. The IJ asserted, though in a bare fashion, that she had
considered the country report: "The Court," she said, "has
considered the Department of State reports put in by the
Government." Although that is the only mention of the report in
-6-
the opinion, it is enough to satisfy a reviewing court that the IJ
did in fact consider it. Had the contents of the report rendered
the IJ's opinion sufficiently unclear by casting doubt on the
reasoning of her decision, we would remand for clarification. But
nothing in the State Department report suggests that Sulaiman would
be more likely than not to be persecuted or tortured if he returned
to Syria, and we therefore require no more detailed explanation
from the IJ than she offered.
B. Exclusion of Evidence
Sulaiman offered certain documents into evidence one day
late, and the court chose not to admit the evidence. We review
procedural decisions at the hearing level for abuse of discretion,
Galicia v. Ashcroft, 396 F.3d 446, 447-48 (1st Cir. 2005), and we
find no such abuse here.1 The documents were untimely submitted.
What is more, the IJ examined the proffered material, and noted
that none of it was probative of Sulaiman's claim. That being the
case, she found there was no good reason to make an exception to
the filing deadline in Sulaiman's case. Her considered procedural
decision was not an abuse of discretion.
1
The government contends that Sulaiman waived the argument
that the IJ abused her discretion with respect to the late evidence
because he did not raise it before the Board. We see no need to
decide whether there was waiver, however, because the argument is
clearly meritless.
-7-
C. Applicable Legal Standard
Sulaiman contends that the IJ applied the wrong standard
in reviewing his claim under the CAT, because the IJ said that, in
order to grant relief, she needed to find a "clear probability"
that he would be tortured if he returned to Syria. This, however,
is the correct standard. "Clear probability" simply means "more
likely than not," which is the correct standard for the IJ to apply
to the relevant claims. See INS v. Stevic, 467 U.S. 407, 429-30
(1984). Sulaiman's contention is meritless.
D. The Merits
We review the determinations of the Board or an IJ under
a deferential standard, which permits us to reverse "only if the
petitioner's evidence would compel a reasonable factfinder to
conclude that relief was warranted." Xu, 424 F.3d at 48 (quoting
Settenda v. Ashcroft, 377 F.3d 89, 93 (1st Cir. 2004)).
A petitioner's burden of proof for withholding of removal
and relief under the CAT is high: the petitioner has to show that
it is more likely than not that he will be persecuted or tortured
in his country of origin. Sulaiman's account of his life in Syria,
which the IJ did deem credible, is an account of significant
harassment, but the IJ could reasonably have concluded that the
events he recounted did not rise to the level of persecution
required by the withholding of removal statute, and there is no
indication of specific threats against him that would give rise to
-8-
an inference that he would probably suffer persecution or torture
if he returned to Syria. Because the IJ did not act unreasonably
in finding that Sulaiman had not met his burden of proof, we affirm
her decision.
III. Conclusion
For the foregoing reasons, we deny Sulaiman's petition
for review and affirm the decision of the Board.
-9-