United States Court of Appeals
For the First Circuit
No. 06-2137
FADY LOUIS HANA,
Petitioner,
v.
ALBERTO GONZALES, Attorney General,
Respondent.
ON PETITION FOR REVIEW OF A FINAL ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Lynch and Lipez, Circuit Judges.
Peter A. Allen on brief for petitioner.
Siu P. Wong, Office of Immigration Litigation Trial Attorney,
Peter D. Keisler, Assistant Attorney General, and Terri J.
Scandron, Office of Immigration Litigation Assistant Director, on
brief for respondent.
September 17, 2007
LIPEZ, Circuit Judge. The petitioner, Fady Louis Hana,
a native and citizen of Egypt, appeals an order of the Board of
Immigration Appeals ("BIA") affirming a decision of the Immigration
Judge ("IJ") that rejected his application for asylum as untimely,
found no extraordinary circumstances that would excuse the late
filing, and denied his claims for withholding of removal and
protection under the Convention Against Torture. We affirm the
BIA's decision.
I.
Hana, a Coptic Christian, claims that he faced
persecution in Egypt on account of his religion.1 In 2000, Hana,
who volunteered as a driver for his church’s religious school, was
assaulted by two bearded men while he was waiting for two of his
passengers. He believes that he was targeted for his religious
views. Over the next two years, Hana was twice approached by other
men who tried to convince him to abandon his church duties by
offering him a higher-paying position or by threatening him. In
November of 2000, after having spent the day delivering pamphlets
to churches, Hana was run off the road by two bearded men driving
1
We note that there are several discrepancies between Hana’s
written declaration in his initial application for asylum and his
testimony at the removal hearing. In her decision, the IJ
discussed one such discrepancy (regarding whether an assault on
January 7, 2000 comprised one or two incidents), but added that
“[o]ther than [that] discrepancy, the respondent’s testimony was
consistent with that in his written statement.” We recount the
facts as Hana described them in his oral testimony, except where
otherwise noted.
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a black micro-bus; Hana was unable to give the police any
information about the men or their vehicle. The following month,
Hana was involved in a more serious accident, when two men who had
been following his car for an hour suddenly pulled in front of him
and stopped short, forcing Hana’s car into the back of their
vehicle and Hana’s head through his windshield. Hana did not offer
any evidence suggesting that this accident was related to any of
the prior incidents or that it was related to his religious
beliefs.
Soon after this second accident, Hana sought treatment
from a psychiatrist, who diagnosed him as suffering from a
persistent case of depression due to external stress factors in his
environment. The psychiatrist prescribed medication, and suggested
that Hana change his environment. Hana had obtained a visa prior
to the accident and took the first of two trips to the United
States, arriving on January 3, 2001 and returning to Egypt
approximately six months later, without attempting to seek asylum.
Within two weeks of returning to Egypt, Hana received an
anonymous phone call in which the caller told him, “Welcome home.
We are waiting for you; we won’t forget you.” This phone call
apparently caused Hana to suffer a nervous breakdown. During this
period, Hana was visited at home several times by his priest; on
one occasion, the priest’s car was vandalized, with the words
“Mohammad is the messenger of Allah” scratched on the side.
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Frightened by what he viewed as acts of persecution, Hana
left Egypt for the United States on December 19, 2001 and was
admitted on a six-month, non-immigrant visa. After he recovered
from this period of extreme mental stress, Hana, who had by then
overstayed his visa, hired a lawyer. Almost sixteen months after
entering the country, he filed an Application for Asylum and for
Withholding of Removal. At a hearing before an IJ, Hana conceded
removability but, in addition to asylum, sought withholding of
removal under section 241(b)(3) of the Immigration and Nationality
Act ("INA")2 and the Convention Against Torture (“CAT”). The IJ
issued an oral decision denying Hana's asylum claim because it was
not filed within the one-year deadline, see 8 U.S.C. §
1158(a)(2)(B), and Hana had not demonstrated "extraordinary
circumstances" that would excuse the tardy filing, see id. §
1158(a)(2)(D). The IJ also rejected Hana's claims for withholding
of removal and protection under the CAT, but granted Hana voluntary
departure to leave the country before May 3, 2005. Hana filed a
timely appeal to the BIA. The BIA dismissed his appeal, stating
2
Section 241(b)(3) provides for withholding of removal if the
"Attorney General decides that the alien's life or freedom would be
threatened in [the destination country] because of the alien's
race, religion, nationality, membership in a particular social
group, or political opinion." 8 U.S.C. § 1231(b)(3)(A). The alien
bears the burden of proof and must show either that she has
suffered past persecution, which creates a rebuttable presumption
of future persecution, or that "it is more likely than not that he
or she would be persecuted" on account of one of the five
enumerated grounds if she were removed. 8 C.F.R. § 1208.16(b).
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that “no clear error has been demonstrated with respect to any
factual finding” made by the IJ, and reinstated the voluntary
departure period. This appeal followed.
II.
Hana raises two claims on appeal, the first of which
concerns his request for asylum. Both the IJ and the BIA have
determined that his asylum application was untimely. To be
eligible for asylum, an applicant must show by clear and convincing
evidence that he filed his application within one year of arriving
in the United States. 8 U.S.C. § 1158(a)(2)(B). Alternatively,
the applicant may overcome this limitation by demonstrating the
existence of “extraordinary circumstances” sufficient to merit an
exemption from the one-year deadline. Id. § 1158(a)(2)(D); 8
C.F.R. § 1208.4(a)(5) (stating that failure to satisfy the one-year
deadline may be excused if the alien identifies "extraordinary
circumstances," directly related to the delayed filing, and if the
alien "filed the application within a reasonable period given those
circumstances").
A. Timeliness of Asylum Application
Hana first asks us to reverse the BIA's decision to
reject his application on timeliness grounds. Although he concedes
that his asylum application was untimely, he argues that he
presented “extraordinary circumstances” that excuse the delay,
pursuant to 8 U.S.C. § 1158(a)(2)(D). Specifically, Hana claims
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that upon his arrival in the United States, he suffered “extreme
mental distress” (including depression and a nervous breakdown) as
a result of the physical harm and threats made against him in
Egypt, and that his mental condition constituted extraordinary
circumstances.
We do not have jurisdiction to review the agency's
findings regarding timeliness or its application of the
"extraordinary circumstances" exception, 8 U.S.C. § 1158(a)(3),
unless an alien identifies a legal or constitutional defect in the
decision. 8 U.S.C. § 1252(a)(2)(D) (stating that no provision of
the INA "which limits or eliminates judicial review, shall be
construed as precluding review of constitutional claims or
questions of law" raised before the appropriate court of appeals);
see also Pan v. Gonzales, 489 F.3d 80, 84 (1st Cir. 2007)(finding
no jurisdiction over the BIA's determinations that an asylum
application was untimely and there were no extraordinary
circumstances excusing the delay); Sharari v. Gonzales, 407 F.3d
467, 473 (1st Cir. 2005) (noting that the statute's jurisdictional
bar applies both to the BIA's determination that the petition was
untimely and to its decision that no exception applies).
Both the IJ and the BIA have determined that there are no
extraordinary circumstances justifying Hana’s delayed application
for asylum. We have no jurisdiction to review the rejection of
Hana’s asylum application on this ground.
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B. Due Process and Removal of Jurisdiction
Hana also argues that Congress has violated his right to
due process by precluding our review over asylum timeliness
decisions (including "extraordinary circumstances" decisions) under
8 U.S.C. § 1158(a)(3).3 The Supreme Court has recognized
Congress’s plenary power over matters of immigration and
naturalization. See, e.g., Reno v. Flores, 507 U.S. 292, 305
(1993) (“‘[O]ver no conceivable subject is the legislative power of
Congress more complete . . . .’” (quoting Oceanic Steam Navig. Co.
V. Stranahan, 214 U.S. 320, 339 (1909))). Such plenary power has
traditionally included Congress’s power to remove judicial
jurisdiction over executive decisions involving aliens. See, e.g.,
Carlson v. Landon, 342 U.S. 524, 537 (1952) ("The power to expel
aliens, being essentially a power of the political branches of
government, the legislative and executive, may be exercised
entirely through executive officers, 'with such opportunity for
judicial review of their action as congress may see fit to
authorize or permit.'"). “Deportation,” according to the Supreme
3
Hana separately contends that the IJ and BIA violated his
right to due process by failing to provide him with a “fair and
efficient” procedure for considering his claims. This argument
spans only two sentences; the sole authority Hana cites merely
indicates that the IJ and the BIA should consider the
“extraordinary circumstances” question on an individualized basis.
Hana has not identified any specific way in which his hearing was
inadequate or unfair. Because this claim is perfunctory and
unaccompanied by developed argumentation, we deem it waived. See
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
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Court, “is not a criminal proceeding and has never been held to be
punishment . . . [, and thus] [n]o judicial review is guaranteed by
the Constitution." Id.
Relying on the Supreme Court’s holding in Carlson, both
the Third and Ninth Circuits have explicitly rejected the argument
that the jurisdictional bar of 8 U.S.C. § 1158(a)(3) represents a
due process violation. See, e.g., Sukwanputra v. Gonzales, 434
F.3d 627, 632-33 (3d Cir. 2006) (“Because judicial review is not
constitutionally guaranteed, the judicial review bar of §
1158(a)(3) does not violate the Due Process Clause.”); Hakeem v.
INS, 273 F.3d 812, 815-16 (9th Cir. 2001) (holding that the removal
of jurisdiction over timeliness decisions does not violate the Due
Process Clause).
While we have not previously addressed the question
whether the jurisdictional bar of 8 U.S.C. § 1158(a)(3) represents
a due process violation, we have held that removal of judicial
review in the immigration context does not raise constitutional
issues when some avenue for judicial relief remains available to
address core legal and constitutional concerns. See Kolster v.
INS, 101 F.3d 785, 791 (1st Cir. 1996). We have also held that the
one-year deadline for submission of asylum applications does not
violate aliens' due process rights. Ticoalu v. Gonzales, 472 F.3d
8, 11 (1st Cir. 2006) (rejecting a due process challenge to the
enforcement of the one-year limitation on asylum applications
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because "[d]ue process rights do not accrue to discretionary forms
of relief, and asylum is a discretionary form of relief").
Drawing on these precedents, we now join our sister
circuits in holding that the judicial review bar of § 1158(a)(3)
does not represent a due process violation. Accordingly, we have
no jurisdiction to review the BIA's rejection of Hana's application
for asylum on timeliness grounds.
III.
Hana also claims that he is entitled to withholding of
removal under § 241(b)(3)(A) of the INA or relief under the CAT.
To qualify for withholding of removal or CAT relief, Hana must
demonstrate that he is “more likely than not” to face persecution
or torture, respectively, upon return to Egypt. 8 C.F.R. §
1208.16(b), (c); Awad v. Gonzales, 463 F.3d 73, 76-77 (1st Cir.
2006); Guzman v. INS, 327 F.3d 11, 16 (1st Cir. 2003). Both the IJ
and the BIA determined that Hana has not made such a showing. We
review the BIA's factual findings under the deferential
“substantial evidence” standard. Guzman, 327 F.3d at 15. This
means that we must affirm the BIA's findings if they were
“supported by reasonable, substantial, and probative evidence on
the record considered as a whole.” Dine v. Gonzales, 464 F.3d 89,
92 (1st Cir. 2006) (citing INS v. Elias-Zacarias, 502 U.S. 478, 481
(1992)).
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A. Withholding of Removal
An applicant seeking withholding of removal under INA §
241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A), see supra note 2, bears the
burden of demonstrating that “his or her life or freedom would be
threatened in the proposed country of removal on account of race,
religion, nationality, membership in a particular social group, or
political opinion.” 8 C.F.R. § 1208.16(b). The applicant must
“establish a clear probability of persecution to avoid
deportation.” INS v. Stevic, 467 U.S. 407, 413 (1984); see also
Pan, 489 F.3d at 86 (noting that the "more likely than not"
standard requires greater evidence than the "reasonable
possibility" standard applied in asylum cases).
The BIA correctly concluded that Hana has not met this
standard. We have previously stated that mere harassment does not
rise to the level of persecution, Susanto v. Gonzales, 439 F.3d 57,
59-60 (1st Cir. 2006), and that a finding of persecution requires
more than unpleasantness or unfair treatment, Nikijuluw v.
Gonzales, 427 F.3d 115, 120-21 (1st Cir. 2005). Here, Hana has
identified only two incidents in which he suffered any physical
harm at all, and in one of those incidents (the car accident),
there was no evidence that his religion was known by the people who
harmed him. Thus, Hana was harmed by someone who knew of his
religion only once, suffered very minor injuries, and has no
evidence suggesting that the violence he suffered there was
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organized, planned, or otherwise part of a larger pattern
characterized by government involvement or acquiescence. See id.
("[P]ersecution 'always implies some connection to government
action or inaction.'" (quoting Harutyunyan v. Gonzales, 421 F.3d
64, 68 (1st Cir. 2005))). Hana has not demonstrated that he would
more likely than not suffer persecution if he returned to Egypt.
We affirm the BIA's rejection of Hana’s request for withholding of
removal.
B. Relief Under the CAT
An applicant claiming protection under the CAT bears the
burden of establishing that “it is more likely than not that he or
she would be tortured if removed to the proposed country.” 8
C.F.R. § 1208.16(c)(2); see, e.g., Guzman, 327 F.3d at 16.
Although there need not be any connection between the likely
torture and the alien's religion (or race, or political opinions,
etc.), the alien must provide some specific evidence that he will
likely suffer "severe physical or mental pain or suffering" that is
"intentionally inflicted," "by or at the instigation of or with the
consent or acquiescence of a public official who has custody or
physical control" of him. Romilus v. Ashcroft, 385 F.3d 1, 8 (1st
Cir. 2004) (quoting Elien v. Ashcroft, 364 F.3d 392, 398 (1st Cir.
2004)).
Hana has presented no evidence that he has experienced
any torture while in Egypt, nor that there is any likelihood of
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torture upon his return. The IJ noted that Hana had no evidence
that his family members, including his mother and two sisters, who
are members of the same faith, have been subjected to torture, or
even lesser violence. On this record, the BIA's rejection of
relief under the CAT is supported by substantial evidence and we
affirm.
For the foregoing reasons, we deny the petition for
review.
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