Abdel Malek v. Mukasey

Not for Publication in West's Federal Reporter

United States Court of Appeals
For the First Circuit

No. 07-1851

ABDOU ABDEL MALEK and AMAL NASR SAMAAN,

Petitioners,

v.

MICHAEL B. MUKASEY,*
ATTORNEY GENERAL,

Respondent.

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

Before

Howard, Circuit Judge,
Stahl, Senior Circuit Judge,
and Besosa, District Judge.**

Saher J. Macarius on brief for petitioner.
Drew C. Brinkman, Attorney, Office of Immigration
Litigation, Jeffrey S. Bucholtz, Assistant Attorney General, and
Francis W. Fraser on brief for respondent.

April 14, 2008

*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Michael B. Mukasey has been substituted for former Attorney General
Alberto R. Gonzales as the respondent.
**
Of the District of Puerto Rico, sitting by designation.
 STAHL, Senior Circuit Judge. The Board of Immigration

Appeals (BIA) affirmed, per curiam, an Immigration Judge's (IJ's)

denial of Abdou Wehba Abdel Malek's1 claims for asylum, withholding

of removal, and protection under the Convention Against Torture

("CAT"). Malek, a native and citizen of Egypt, now petitions this

court for a review of the BIA's denial of his claims. We affirm.

I. BACKGROUND

The IJ found Malek credible. Therefore, we relate the

facts of the case as he testified to them.

Malek legally entered the United States on January 30,

2000, on a nonimmigrant visa with authorization to remain until

July 29, 2000. On July 31, 2000, Malek timely applied for asylum,

withholding of removal, and protection under the CAT. On January

22, 2004, the Department of Homeland Security commenced removal

proceedings against Malek. In response, Malek admitted the

allegations and conceded removability as charged but argued that he

is entitled to relief in the form of asylum, withholding of

removal, and protection under the CAT.

Malek, a Coptic Orthodox Christian, resided in the town

of Port Said, Egypt. Along with one of his brothers-in-law,

Maurice Aziz Abdel Malek, he owned and operated a business related

1
Malek's wife, Amal Nasr Samaan, a native and citizen of
Egypt, is a derivative applicant for asylum, withholding of
removal, and protection under the Convention Against Torture, based
on Malek's application.

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to the import and export of used automobile parts. Another

brother-in-law, Gamel Wehba Guirgis Atteah, worked as an employee.

The license that authorized Malek to operate his business

restricted its operations to Port Said, a free trade zone. In

March 1991, five men--two of whom, Nabil Mohamed Sharan and Mohamed

Atwan, Malek knew from his business affairs--came to Malek's

workplace, ostensibly to discuss business with Malek. Soon,

however, the ostensible businessmen, particularly an individual

named Radab Abu Abir, embarked on an extended discourse proposing

that Malek convert to Islam. When Malek indicated his reluctance

to do so, the men became "very angry" and extolled the propriety of

forced conversion.

Later that month, Sharan and Atwan, this time accompanied

by Sheik Mohamed Abu Abir, returned to Malek's workplace to

proselytize. This time, Sheik Abir, Sharan, and Atwan firmly

ordered Malek to convert to Islam. As an incentive, they promised

to provide Malek with money and business assistance if he

converted. The men chided Malek that Christianity is a not a "true

religion" and that Islam is the only true religion. Malek, angered

by their insulting and intolerant behavior, attempted to throw his

unwanted guests out of his office. They proceeded to denounce him

as a "kafir," which apparently means a particularly bad kind of

infidel, against whom any action is justified. Malek interpreted

the use of this word as a death threat.

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 On April 11, Malek received a call from his sister, who

was hysterical. She indicated that her husband, Atteah, had

converted to Islam. Atteah had purportedly proceeded to instruct

her to convert to Islam as well, and informed her that their

children were now Muslim by default. She fled to her parents'

house, where Malek apparently lived as well. The same day, Malek

received another call, this time from Nabil Shaber, one of the

Muslim businessmen who had visited him in March. Shaber

congratulated Malek on Atteah's conversion, and urged Malek to

reconsider his prior refusals.

With the assistance of Father Raphael, a local priest,

Malek endeavored to relocate his sister and her children to Tonton,

a nearby town. From there, Father Raphael helped them escape to

the nation of Jordan. On June 25, Malek, his father, and two

brothers were arrested at their home at approximately 4:00 a.m. A

police officer indicated that Atteah had accused them of kidnaping

his wife and children and, additionally, threatening to kill him.

Malek responded that he had never threatened to kill Atteah, but

conceded that his sister had fled the area. He falsely denied any

knowledge of his sister's whereabouts. He was forced to promise to

inform the authorities if he learned his sister's location and not

to harm Atteah. Malek and his family were released at some point

between 6:00 and 7:00 a.m.

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 Around noon, Malek left the house to purchase food. Once

outside, he was forced into a taxi by men who were apparently

lurking in wait for him, taken to a nearby police station, and

searched. The police, led by the same officer as in the morning,

confiscated his possessions and drove him to another location

approximately an hour and a half distant. Again, the police

officer demanded to know where Malek's sister was. When Malek

protested his innocence, the police officers stripped off his

clothes, tied his hands and legs, and hung him from a stick. The

police officers then beat him with another stick, which was "very

painful," and ultimately caused Malek to bleed and lose

consciousness. Then, the police officers doused him with water and

administered electrical shocks.

As a direct result of this abuse, Malek agreed to

cooperate. At this point, his captors untied him and took him to

another room, where an officer stated that he was "glad that [Malek

was] able to remember what happened to [his] sister." Malek

admitted helping his sister, with the aid of Father Raphael, escape

to Jordan. He continued, however, to deny knowledge of her precise

location. Although Malek was then taken to his home, he was

instructed that "severe consequences" would occur if he told anyone

about the incident. Fearing that the police officers would divulge

his sisters' location to Atteah, Malek traveled to visit his sister

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in Jordan,2 at which point he accompanied her to Syria and helped

her relocate to Lebanon. He was absent from Egypt for

approximately one month.

Upon his return to Egypt, Malek relocated his residence

to Cairo from Port Said, in order to avoid future confrontations

with the police and Atteah. He also traveled to support his

business. Because his business license was restricted to Port

Said, however, Malek had to return there periodically to fill out

paperwork and conduct essential transactions. In September 1993,

due to continuing problems with Muslim fundamentalists, Malek and

Maurice Malek dissolved their partnership. Thereafter, Malek

continued to operate his business alone.

In 1998, Atteah attempted to intercept Malek at his place

of business in Port Said. Atteah, accompanied by several other

individuals, instructed Malek to leave Port Said and "the area."

On another occasion, also while Malek was doing business in Port

Said, he was attacked by a group of Muslims, including Mohamed

Atwan and Sheik Abir. During this confrontation, one of his

2
As the IJ recognized, it is unclear from the testimony
precisely when Malek traveled to Jordan to help his sister
relocate. Malek consistently testified that he only traveled to
Jordan on one occasion; nevertheless, his testimony is self-
contradictory and, in part, conflicted with his affidavit as to
whether this trip occurred before or after the beating described
above. Regardless, the IJ attributed the confusion to Malek's
nervousness as a witness, rather than any duplicitous motive, and
found any discrepancy to be immaterial.

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assailants cut Malek's hand, requiring stitches. Malek, however,

did not report this incident to local authorities.

Acting on the advice and with the assistance of Father

Raphael, Malek departed Egypt for Germany. After approximately

nineteen months, part of which he spent in the United States, he

returned to Egypt, married Samaan, and attempted to resume his

business operations. Yet again, in January 2000, Atteah,

accompanied by two other individuals, forced his way inside Malek's

business office in Port Said. Atteah threatened Malek, stating

"this is the last day in your life." One of his associates accused

Malek of being an infidel. While Atteah and one of the men beat

Malek, the other assailant began to break "everything" in the

office. A friendly neighbor helped Malek extract himself from the

office and called the police, who arrived about twenty-five minutes

later. The police, however, refused to report the incident after

learning that the alleged perpetrator was Atteah, a Muslim.

Nonetheless, Malek was able to fill out a complaint at the district

attorney's office.3 With Father Raphael's assistance, Malek and

Samaan,4 now pregnant, fled to Cairo and then to the United States.

3
The complaint was later dismissed due to Malek's absence from
the country.
4
Apparently, Samaan spent time in both Cairo, where she was a
student, and at Malek's family residence in Port Said.

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 II. ANALYSIS

We uphold factual determinations of the BIA if "supported

by reasonable, substantial and probative evidence on the record

considered as a whole." Attia v. Gonzales, 477 F.3d 21, 23 (1st

Cir. 2007) (per curiam) (quoting Carcamo-Recinos v. Ashcroft, 389

F.3d 253, 256 (1st Cir. 2004)). "This so-called 'substantial

evidence' standard applies to claims for asylum, withholding of

removal, and relief under the CAT." Sharari v. Gonzales, 407 F.3d

467, 473 (1st Cir. 2005) (citing Settenda v. Ashcroft, 377 F.3d 89,

93 (1st Cir. 2004)). Under this highly deferential standard, a

determination will not be reversed unless "any reasonable

adjudicator would be compelled to conclude to the contrary." 8

U.S.C. § 1252(b)(4)(B). "Merely identifying alternative findings

that could be supported by substantial evidence is insufficient to

supplant the BIA’s findings." Albathani v. INS, 318 F.3d 365, 372

(1st Cir. 2003). Rather, "the record must compel the contrary

conclusion." López de Hincapie v. Gonzales, 494 F.3d 213, 218 (1st

Cir. 2007). Conversely, we review de novo the legal conclusions of

the BIA. Wang v. Mukasey, 508 F.3d 80, 83-84 (1st Cir. 2007).

Where, as here, "the BIA adopts an IJ's decision, we review the

relevant portion of the IJ's opinion as though it were the decision

of the BIA." Guillaume v. Gonzales, 504 F.3d 68, 72 (1st Cir.

2007).

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 The petitioner bears the burden of proof to establish

eligibility for asylum. Bocova v. Gonzales, 412 F.3d 257, 262 (1st

Cir. 2005). To meet this burden, a petitioner ordinarily must not

only show that he subjectively fears future persecution, but also

adduce credible and specific evidence that this fear is reasonable.

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

omitted). A petitioner may satisfy the subjective component

through his own credible testimony. See Makhoul v. Ashcroft, 387

F.3d 75, 80-81 (1st Cir. 2004). To demonstrate that his subjective

fear is objectively reasonable, a petitioner must present evidence

showing either (1) that if returned he will be singled out for

persecution; or (2) that there is a pattern or practice of

persecuting a similarly situated group of persons on account of a

protected ground in his country of origin. See Pieterson v.

Ashcroft, 364 F.3d 38, 43-44 (1st Cir. 2004); accord 8 C.F.R.

§ 208.13(b)(2). Alternatively, a petitioner who demonstrates past

persecution creates a rebuttable presumption that his fear of

future persecution, if repatriated, is well-founded. See Tobon-

Marin v. Mukasey, 512 F.3d 28, 31 (1st Cir. 2008); accord 8 C.F.R.

§ 208.13(b)(1).

A. Asylum

Here, the IJ found that the harm inflicted upon Malek did

not amount to persecution and, in any event, that such acts were

not perpetrated on account of a protected ground. The Immigration

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and Nationality Act does not define "persecution." See Negeya v.

Gonzales, 417 F.3d 79, 83 (1st Cir. 2005). Thus, we have taken a

case-by-case approach to determine whether the injuries suffered by

a particular petitioner amount to persecution under the statute.

Id. In deciding whether specific facts arise to the level of

persecution, relevant factors include the "severity, duration, and

frequency of physical abuse." Topalli v. Gonzales, 417 F.3d 128,

133 (1st Cir. 2005). We have noted that "[t]o qualify as

persecution, a person's experience must rise above unpleasantness,

harassment, and even basic suffering." Jorgji v. Mukasey, 514 F.3d

53, 57 (1st Cir. 2008) (internal quotation marks omitted) (quoting

Nelson v. INS, 232 F.3d 258, 263 (1st Cir. 2000)). Additionally,

a petitioner must show that the state participated in or at least

acquiesced in the alleged acts of persecution. Id.

We assume arguendo that Malek has experienced past

persecution. Even the IJ described the June 25 incident--which

involved an abduction, severe restraint, beatings, a loss of

consciousness, and electrical shocks, all at the hands of the

police--as "torture."

Moreover, we note our skepticism regarding the IJ's

conclusion that the alleged acts of persecution were exclusively

attributable to Malek's decision to aid his sister's escape from

Egypt, rather than his Christian faith. On these facts, it seems

that the assistance Malek rendered to his sister is inextricably

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intertwined with Malek's religious beliefs and the pressures that

were placed on Malek, Maurice Malek, Malek's sister and Atteah, who

succumbed, to convert to Islam. If not for the underlying

religious antagonism, the alleged persecution would never have

taken place. We are doubtful that Malek's actions in support of

his sister can be parsed so neatly from the underlying religious

motivations of both Malek and his alleged persecutors. A

petitioner need not show that persecution occurred or will occur

solely on account of a protected ground. See 8 U.S.C.

§ 1158(b)(1)(B)(i) (requiring applicants for asylum to show that

membership in a protected category "was or will be at least one

central reason" for past or future persecution (emphasis added));

accord Vumi v. Gonzales, 502 F.3d 150, 159 (2d Cir. 2007)

(explaining that, even where the petitioner was detained for a

legitimate reason, an IJ should employ a mixed-motive analysis in

light of the nature and severity of the interrogation). Here,

where Malek was abducted from his home and subjected to what the IJ

described as torture, it is questionable whether the police were

motivated by legitimate law enforcement concerns, rather than the

underlying religious conflict. See id. (recognizing the inherent

difficulty of "determining whether harm was inflicted because of

the applicant's acts or because of his beliefs underlying those

acts" (internal quotation marks omitted) (quoting In re S-P-, 21

I.&N. Dec. 486, 498 (BIA 1996))).

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 Nevertheless, substantial evidence supports the IJ's

determination that it would be reasonable for Malek to avoid future

persecution by relocating away from Port Said. See Tendean v.

Gonzales, 503 F.3d 8, 11 (1st Cir. 2007) (explaining that "the

possibility of internal relocation negates any presumption of

eligibility . . . based on past persecution"); accord 8 C.F.R.

§§ 1208.13(b)(1)(i)(B), 1208.13(b)(3). The alleged acts of

persecution detailed by Malek occurred exclusively in Port Said.

In this case, the possibility of relocation is more than

hypothetical--Malek actually did relocate to Cairo, where he was

not disturbed by Atteah or anyone else. We acknowledge that

Malek's relocation will entail some hardship,5 as his business

license is restricted to Port Said. Such a difficulty, however,

was noted and rejected by the IJ, who explained that "there is no

right under the asylum laws to engage in a particular business";

and that Malek did not show that he could not "provide[] for his

family through another career in Cairo." In these circumstances,

the IJ was not compelled to arrive at a different conclusion. See

Tendean, 503 F.3d at 11 (applying substantial evidence standard to

an IJ's findings concerning the reasonableness of relocation).

Similarly, the IJ did not err by concluding that Malek

failed to establish a well-founded fear of future persecution. The

5
We likewise reject his contention, discussed more fully
below, that he will be subjected to persecution in any location in
Egypt.

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IJ did not fully explain the basis for her decision; given that the

IJ found Malek credible, we assume arguendo that she credited

Malek's assertion that he fears persecution if returned to Egypt,

thus satisfying the subjective component. Nevertheless,

substantial evidence supports the IJ's implied determination that

Malek lacked an objective basis for fearing future persecution in

Egypt.

We are troubled by the IJ's failure to discuss the

substantial documentary evidence regarding conditions in Egypt,

which Malek claims provides an objective basis for his fear of

future persecution. Coptic Christians clearly face considerable

unpleasantness stemming from their religious beliefs. Moreover,

the most recent State Department reports in evidence--the 2004

Country Report for Egypt and 2004 International Religious Freedom

Report for Egypt--suggest that the Egyptian government,

particularly at the local level, is not always responsive to the

wrongs inflicted upon Coptic Christians by the Muslim majority.

Indeed, the reports indicate that the local police may actually

engage in and facilitate religious persecution to some extent.

Finally, the reports reveal that certain of Egypt's laws appear to

lack religious neutrality; to point to an example implicated by the

instant facts, the minor children of a convert to Islam are

automatically classified as Muslims as well, regardless of the

religious persuasion of the spouse and children.

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 Nevertheless, "[w]hen considering whether the clarity of

an administrative decision is sufficient to support our review

. . ., we are not blind to the context in which the decision is

made or oblivious of the record on which it is based." Xu v.

Gonzales, 424 F.3d 45, 49 (1st Cir. 2005). In the hearings before

the IJ, Malek relied almost exclusively on a theory of past

persecution. When asked why he could not simply relocate to Cairo,

he replied, "I don't know anything in Cairo and I don't have any

business in Cairo. My business was based on the free trade zone of

Port Said." Malek conceded that he was never harassed while in

Cairo--he did not, as he does now in his brief, expound upon the

sorry state of Coptic Christians throughout Egypt. Additionally,

Malek did not even seek to introduce the most recent State

Department reports into evidence--at the conclusion of the hearing,

the IJ requested that one of the litigants provide her with the

most recent reports. At that point, the government's attorney, not

Malek, submitted the 2004 reports. Thus, it is unsurprising that

the IJ did not focus on a nascent pattern or practice theory in

considering whether Malek had a well-founded fear of persecution,

given the issue's lack of prominence in the actual conduct of the

proceedings, despite the voluminous record.

An IJ's duty to expound upon his or her reasons for

rejecting a particular argument is concomitant with a litigant's

actual articulation of that argument. Malek may have subjectively

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feared renewed conflict with Atteah. This problem, however, could

seemingly be avoided if Malek relocated within Egypt. Malek did

not indicate that he is fearful of the general conditions within

Egypt. Thus, there is a disconnect between Malek's subjective fear

of persecution and the objective evidence of country conditions in

Egypt. The IJ provided an extensive, individualized analysis of

Malek's experiences with Atteah and the Muslim fundamentalists in

Port Said; more was not required because Malek failed to urge a

pattern or practice theory either through his testimony or the oral

argument of counsel.6

Moreover, the IJ's opinion contains sufficient references

to countrywide conditions to lead us to believe that she considered

but rejected a pattern or practice theory. See Rotinsulu v.

Mukasey, 515 F.3d 68, 72-73 (1st Cir. 2008) (explaining that an

IJ's findings may be either implicit or explicit). The IJ held

that "the harm inflicted on the respondent by his brother-in-law

does not constitute persecution," in part, because such conditions

6
We note that Malek did assert a pattern or practice theory
before the BIA. Because we hold that the IJ did, if implicitly,
reject Malek's evidence of country conditions, we need not
determine the extent to which the BIA should have considered an
argument developed largely on appeal. See Pinos-Gonzalez v.
Mukasey, ___ F.3d ___, 2008 WL 583677, at *2-3 (8th Cir. Mar. 5,
2008)(enforcing procedural bar imposed by BIA where petitioner
failed to first articulate an argument before the IJ); De la Cruz
v. Mauer, 483 F.3d 1013, 1022-23 (10th Cir. 2007) (same). But see
Zhong v. U.S. Dep't of Justice, 480 F.3d 104, 118-19 (2d Cir. 2007)
(indicating exhaustion of issues, as opposed to claims for relief,
to be an affirmative defense subject to waiver where not urged).

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"[did] not exist on a countrywide basis." While the related

discussion pertained to the specific threat posed by Atteah, the IJ

clearly contemplated conditions throughout Egypt. Additionally,

the IJ determined that requiring Malek to relocate within Egypt

would not be "unreasonable," a conclusion that could only be

justified if the IJ determined that Malek would not face

persecution outside of Port Said. Indeed, we note that the IJ

addressed the one explicit concern that Malek articulated

concerning relocation within Egypt, dismissing the inconvenience

that Malek might face given that his business license was

restricted to Port Said. Finally, we cannot ignore the fact that

the IJ, not Malek, requested sua sponte the submission of the 2004

State Department reports; it seems unlikely that, having

specifically solicited the introduction of these documents, the IJ

would have ignored them in rendering her decision. In these

circumstances, we are satisfied that the IJ's decision contemplated

country conditions throughout Egypt--"[w]e do not require an IJ to

intone any magic words before we will review her determination."

Sulaiman v. Gonzales, 429 F.3d 347, 351 (1st Cir. 2005).

In the past, we have noted that "[t]he obligation to

explain and articulate depends importantly on the strength of the

position being urged. Where no plausible reason is offered for a

request, the word 'no' is plainly sufficient." Karim v. Gonzales,

424 F.3d 109, 111 (1st Cir. 2005). Moreover, in any context, a

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litigant "cannot switch horses midstream in hopes of locating a

swifter steed." United States v. Lilly, 13 F.3d 15, 18 (1st Cir.

1994) (citation omitted). Essentially, Malek now seeks relief

based on an argument that he presented, if at all, in a threadbare,

conclusory fashion before the IJ. We will not, on appeal, reverse

the decision of the IJ for failing to make Malek's arguments for

him.

B. Withholding of Removal and Protection Under the CAT

We likewise reject Malek's claims for withholding of

removal and protection under the CAT. Because Malek has not

satisfied the more lenient standard for asylum, a fortiori he

cannot satisfy the higher burden for withholding of removal.

Segran v. Mukasey, 511 F.3d 1, 7 (1st Cir. 2007). Even if not

waived, his claim for protection under the CAT fails on the merits.

"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.'" Hana v.

Gonzales, 503 F.3d 39, 44 (1st Cir. 2007) (quoting 8 C.F.R.

§ 1208.16(c)(2)). No record evidence supports the notion it is

more likely than not that Malek would be tortured if returned to

Egypt. While the IJ accepted Malek's testimony that he was

tortured by the Egyptian government on a single occasion in 1991,

no evidence suggests that he is likely to be tortured in the

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future. At the very least, the IJ's conclusion in this regard is

supported by substantial evidence.

III. CONCLUSION

For the foregoing reasons, we deny Malek's petition for

review.

Affirmed.

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