United States Court of Appeals
For the First Circuit
No. 07-2819
RAOUF SOLIMAN ABDELMALEK, MOFIDA SAMWAIL SALIB,
PETER RAOUF SOLIMAN
Petitioners,
v.
MICHAEL B. MUKASEY,
ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Howard, Selya, and Stahl,
Circuit Judges.
Raja H. Wakim on brief for petitioners.
Jeffrey S. Bucholtz, Acting Assistant Attorney General, James
A. Hunolt, Senior Litigation Counsel, and Vanessa O. Lefort,
Attorney, Office of Immigration Litigation, on brief for
respondent.
August 25, 2008
STAHL, Circuit Judge. The Board of Immigration Appeals
(BIA) adopted and affirmed an Immigration Judge's (IJ's) decision
denying Raouf Soliman Abdelmalek's1 claims for asylum, withholding
of removal, and protection under the Convention Against Torture
(CAT). Abdelmalek, a native and citizen of Egypt, now petitions
this court for a review of the BIA's denial of his claims. We deny
the petition for review.
I. BACKGROUND
Abdelmalek and his family are Coptic Christians who hail
from Alexandria, Egypt. Abdelmalek is a medical doctor with a
specialization in ear, nose, and throat care. He graduated from a
government-run medical school in 1975 and had worked in Egypt for
both a government hospital and a private, Christian hospital.
Although Abdelmalek did allude to being "mistreated" during medical
school, the core problems that seem to motivate this application
for asylum are of a more recent vintage. Abdelmalek's wife owned
an apartment building, which collapsed in June 2000, killing a
number of Muslim tenants. At the time of the collapse, both
Abdelmalek and his wife were out of the country.2 When Abdelmalek
1
Abdelmalek's wife, Mofida Samwail Salib, and his son, Peter
Raouf Soliman, both also natives and citizens of Egypt, are
derivative applicants for asylum, withholding of removal, and
protection under the CAT. Petitioner claims that his other child,
a daughter, was targeted by Muslim extremists in 1998, fled to the
United States, and was subsequently granted asylum.
2
Abdelmalek's wife and son left for the United States shortly
before the building collapsed and have remained in the U.S. ever
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returned to work in Egypt in January 2002, he claimed that he was
harassed a number of times by Muslims who apparently blamed
Abdelmalek's family for the disaster. According to Abdelmalek, he
was visited at work on about ten occasions by Muslim individuals
who threatened his family, pressured him to convert to Islam, and
verbally abused and, on at least one occasion, pushed him.
Abelmalek claimed that he contacted the police for assistance but
they were not responsive.3
As a result of this harassment, Abdelmalek maintains that
he fled Egypt, fearing for his safety. He entered the United
States legally on or about May 30, 2002, as a non-immigrant visitor
with authorization to remain until November 29, 2002. On May 16,
2003, Abdelmalek applied for asylum and withholding of removal.
The Department of Homeland Security subsequently initiated removal
proceedings against Abdelmalek, Mrs. Salib, and their son. At
since. Abdelmalek himself visited the United States twice during
this time but returned to Egypt after each visit; he was admitted
on a B-2 (tourist) visa on October 1, 2000 and again on May 29,
2001. Mrs. Salib filed an affirmative application for asylum and
withholding of removal on June 7, 2001, on behalf of herself and
her son, Peter. On July 7, 2004, an immigration judge granted Mrs.
Salib's motion to consolidate her case with her husband's case.
3
There is some discrepancy in the record regarding whether
Abdelmalek contacted the police. When testifying, Abdelmalek did
not initially mention that he had contacted the police, and only
volunteered the information that he had contacted the police after
the first incident upon questioning by the IJ. There is also some
indication that Abdelmalek initially told the asylum officer that
he had not contacted the police because they would be of no
assistance to a Christian, although in his oral testimony
Abdelmalek maintained that was a misunderstanding.
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hearings before an immigration judge, all three conceded
removability but maintained that they were entitled to relief in
the form of asylum, withholding of removal, and protection under
the CAT.
At the merits hearing, at which Abdelmalek testified but
his wife did not, the IJ noted that Abdelmalek's testimony lacked
corroborative detail and was somewhat inconsistent. Based on these
factors, the IJ stated that she was "unable to make a positive
credibility finding in this case." Stating that even if she were
to accept Abdelmalek's testimony as true, the IJ determined that
the petitioner failed to establish either past persecution or a
well-founded fear of future persecution. In support of this
determination, the IJ pointed to the evidence that Abdelmalek came
from a privileged background in Egypt, graduated from a government-
run medical school, and had a successful career as a medical
doctor, including working for a government hospital. Additionally,
Abdelmalek had traveled to the United States on previous occasions
and had returned to Egypt, which the IJ reasoned is hardly the
conduct of a man who fears persecution upon his return. Finally,
the IJ noted that Abdelmalek had failed to prove that he could not
relocate elsewhere in Egypt to avoid the alleged persecution.
The BIA adopted and affirmed the IJ's decision. The BIA
agreed with the IJ's adverse credibility determination, calling
Abdelmalek's testimony "inconsistent and vague." Even if
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Abdelmalek's testimony were considered credible, the BIA agreed
with the IJ's finding that Abdelmalek failed to proffer sufficient
evidence of past persecution or a well-founded fear of future
persecution.
II. ANALYSIS
We review a BIA decision using a "substantial evidence"
standard, affirming the decision if it is "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) (internal citations omitted). Where, as here, the Board
adopts the immigration judge's ruling but also engages in
discussion of its own, we review both decisions. Lin v. Mukasey,
No. 07-2301, 2008 WL 1994969, at *3 (1st. Cir. May 8, 2008).
As an initial matter, we turn to the IJ's determination
that Abdelmalek was not credible. This finding is "conclusive
unless any reasonable adjudicator would be compelled to conclude to
the contrary." 8 U.S.C. § 1252(b)(4)(B); see also Lopez de
Hincapie v. Gonzales, 494 F.3d 213, 218 (1st Cir. 2007). Although
that standard is deferential, the IJ must provide a "specific,
cogent, and supportable explanation for rejecting an alien's
testimony." Teng v. Mukasey, 516 F.3d 12, 16 (1st Cir.
2008)(internal citations omitted). Here, the IJ delivered a
lengthy oral decision, detailing her doubts as to Abdelmalek's
credibility and veracity with some care. The IJ pointed to the
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fact that Abdelmalek's account of being threatened at work was very
light on corroborative detail, as was his account of reporting the
incidents to the police and the police reaction. The IJ also
highlighted several discrepancies within Abdelmalek's testimony,
particularly with regard to whether or not he reported the
purported harassment at work to the police. Additionally,
Abdelmalek was not able to offer any documentary evidence to
corroborate his vague oral testimony about the events that he
claimed amounted to persecution, and his wife did not testify to
buttress his account. The IJ also implied that Abdelmalek may have
other reasons for wanting to remain in the United States, pointing
to some confusion in the record over whether his son is in school
here, and whether his family is under investigation in Egypt
because of the building collapse. Overall, the record hardly
compels a favorable credibility determination.
Even if Abdelmalek's testimony were deemed credible,
however, the IJ's conclusion that Abdelmalek failed to demonstrate
past persecution or a well-founded fear of future persecution is
supported by substantial evidence. In order to be entitled to
asylum, a petitioner must demonstrate that he has been subjected to
past persecution or that he harbors a well-founded fear of future
persecution on account of his race, religion, nationality,
political opinion, or membership in a particular social group.
Carcamo-Recinos v. Ashcroft, 389 F.3d 253, 257 (1st Cir. 2004). To
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establish a well-founded fear of future persecution, the petitioner
must show that his fear is both genuine and objectively reasonable.
Id. "To 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
citations omitted). Additionally, a petitioner must show that the
state participated in or at least acquiesced in the alleged acts of
persecution. Id.
It is never a pleasant task to attempt to quantify an
individual's suffering and measure it against the suffering of
others, but it must be remarked that this court has recently denied
petitions for review filed by other Egyptian Copts who suffered
mistreatment at least equal to, if not greater than, that allegedly
suffered by Abdelmalek. See generally Malek v. Mukasey, No. 07-
1851, 2008 WL 1704157 (1st Cir. Apr. 14, 2008); Hana v. Gonzales,
503 F.3d 39 (1st Cir. 2007); Attia, 477 F.3d at 24. A series of
somewhat vague verbal threats, seemingly unaccompanied by any
significant physical abuse and any government involvement or
acquiescence, simply does not rise to the level of persecution in
these circumstances. See Attia, 477 F.3d at 24 (two beatings over
the course of nine years and general climate of discrimination does
not constitute past persecution); Awad v. Gonzales, 463 F.3d 73, 75
(1st Cir. 2006)(childhood bullying, being slapped by an officer
during military service, seeing discrimination against Christians,
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and learning a friend's sister had been sexually assaulted by
Muslims and forced to convert to Islam does not constitute past
persecution). We do not lend particular weight to the IJ's
observation that Abdelmalek came from a "privileged background" and
was "financially extremely solvent," as the very financial success
of a minority group may be an additional motivator in targeting the
group for persecution. Nevertheless, it is worth noting that
Abdelmalek was able to graduate from a government-run medical
school and work at a government-run hospital, undercutting his
argument that the government is unwilling to deploy its resources
to assist Christians.
Furthermore, Abdelmalek's claimed fear of future
persecution "is significantly undermined by the fact that he
willingly returned to Egypt after his earlier trip to the United
States." Attia, 477 F.3d at 24; see also Awad, 463 F.3d at 76.
And Abdelmalek failed to prove that he could not avoid any
potential future persecution by simply relocating elsewhere in
Egypt, where the locals would know nothing about the collapsed
building. 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").
The government maintains that this court lacks
jurisdiction to review Abdelmalek's claims for withholding of
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removal and protection under the CAT, because he did not challenge
the denial of those claims in his appeal to the BIA. See Sunoto v.
Gonzales, 504 F.3d 56, 59 (1st Cir. 2007)("A petitioner who fails
to present a claim to the BIA has failed to exhaust his
administrative remedies on that issue, and we consequently lack
jurisdiction to review the claim."). It is true that Abdelmalek's
BIA appeal brief did not mention his withholding of removal or CAT
claims; however, the BIA did review those portions of the IJ's
decision as well, and Abdelmalek does raise those issues in his
petition for judicial review before this court. Nevertheless, even
if we were to apply the exhaustion of remedies standard generously,
see id., and review the claims, we would deny them on the merits.
Because Abdelmalek has failed to establish that he is entitled to
asylum, he necessarily fails to meet the higher standard for
withholding of removal. Segran v. Mukasey, 511 F.3d 1, 7 (1st Cir.
2007). Regarding Abdelmalek's CAT claim, we find nothing in the
record that would compel the conclusion that it is more likely than
not that Abdelmalek would be tortured if he were to return to
Egypt. See id.
III. CONCLUSION
For the foregoing reasons, Abdelmalek's petition for
review is DENIED.
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