Yusif v. Gonzales

No. 03-4534
File Name: 05a0408n.06
Filed: May 17, 2005

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

Paten Yusif,

Petitioner, ON PETITION FOR REVIEW FROM THE
BOARD OF IMMIGRATION APPEALS
v.

John Ashcroft,

Respondent.

Before: Daughtrey and Clay, Circuit Judges; Graham, District Judge1

OPINION

Graham, District Judge.

Petitioner seeks review of a decision of the Board of

Immigration Appeals that affirms the denial of asylum and

withholding of removal.

Petitioner is a 21-year-old native citizen of Iraq. He is a

member of the Chaldean community and attended the Chaldean Catholic

Church in Iraq. Petitioner has about six-and-a-half years of

education, roughly equivalent to a seventh grade education in the

United States. Petitioner testified that he left school in 1995 to

work in his family liquor business. He and his cousin (who

1
The Honorable James L. Graham, United States District Judge for the
Southern District of Ohio, sitting by designation.
previously petitioned for asylum) were in the business on October

7, 1999, when “intelligence” officers came in and began beating and

insulting them. The officers took petitioner away in a car with a

hood over his head and did not tell him where they were taking him.

He was taken to a place that he could not identify and held in a

small room. Petitioner stated that the cramped conditions required

that he squat on the floor sitting on his buttocks, with his knees

pulled up to his chest.

After two weeks, petitioner was taken into another room where

officers demanded that he sign a document ceding the liquor

business to the government. Petitioner testified that he did not

sign the document and was held for two months and three days. He

further testified that although he was not beaten, he was often

taken into another dark room where he was held naked and splashed

with cold water. Petitioner was detained until he signed a

document ceding the liquor business to the government.

Petitioner testified that the officers warned him not to tell

anyone about his detention or they would kill him. Petitioner

returned to his hometown and told his family and friends about the

experience once he was released. Petitioner discovered that a new

building was built around the family business. Petitioner

testified that he decided to leave Iraq and paid $1,000 for an

Iraqi passport. Petitioner traveled to Jordan with his cousin, who

was also released, and then to Thailand, and then to China. From

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China, they came to the United States. Petitioner arrived in the

United States on November 8, 2000, using a fraudulent Belgian

passport and seeking admission pursuant to the Visa Waiver Program.

He requested asylum at the airport, which was denied by an

Immigration Officer and was referred to an immigration judge for a

hearing.

Petitioner appeared before an immigration judge in Lancaster,

California, on December 5, 2000. Petitioner’s case was

subsequently transferred to Detroit, Michigan. Petitioner appeared

for his asylum hearing in Michigan on March 28, 2002. At the

beginning of the hearing, petitioner’s counsel suggested that he

expected a Chaldean interpreter. The immigration judge stated,

however, that petitioner had always indicated a preference for

Arabic. Petitioner’s cousin did not attend petitioner’s

proceedings because he was also involved in immigration

proceedings. Petitioner’s aunt, Mrs. Faiza Putris, did testify at

petitioner’s hearing. She testified that she was a Chaldean

Catholic who lived in Iraq before coming to the United States and

that she intended to return to Iraq. Mrs. Putris further testified

that the Iraqi government agreed to allow petitioner to leave Iraq

if he transferred the liquor business to the government

At the end of the hearing, the immigration judge rendered an

oral decision on March 28, 2002. The judge noted that petitioner

had gone over the asylum application documents line by line with an

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interpreter who speaks the Chaldean language. Petitioner said

there were no more changes to the applications. The judge

explained that petitioner had the burdens of proof and persuasion

and that he was denying petitioner’s claim because petitioner was

not credible. The judge stated that even if petitioner had

presented a credible claim, he did not establish that any harm he

suffered was a result of one of the protected statutory reasons.

The immigration judge reviewed the documentary evidence. The

petitioner’s “naturalization certificate,” which indicates that

petitioner is from Iraq, raised some credibility concerns. The

certificate issued by the government of Iraq was dated only seven

days after he claimed to have been released from detention. The

judge found it odd that even though the Iraqi authorities allegedly

detained petitioner for months, they had no problem issuing him the

certificate shortly after his detention. In addition, although the

naturalization certificate stated that petitioner had no

distinguishing characteristics, the judge noted for the record that

petitioner in fact had scars and distinguishing features all over

his face. The document was not signed and there was no

fingerprint. The immigration judge found that all of these issues

raised questions concerning petitioner’s credibility and identity.

The judge also noted that the 2001 Country Reports issued by

the United States State Department in March 2002, which detailed

Saddam Hussein’s mistreatment of Chaldeans, were not relevant

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because petitioner did not claim he was persecuted on that basis.

Instead, petitioner’s claim was purely personal and financial,

pertaining to the family liquor business. The judge also reviewed

other documents submitted by the petitioner, which he also found

unpersuasive and which undermined petitioner’s claim. Thus, the

immigration judge denied petitioner’s application because he was

not credible, and because the alleged harm petitioner suffered was

not a matter covered by the asylum statute.

On October 27, 2003, the Board of Immigration Appeals affirmed

the decision of the immigration judge without opinion.

Discussion

In reviewing the factual determinations of petitioner’s

statutory ineligibility for asylum or withholding of removal, the

court must uphold the Board’s decision if it is “‘supported by

reasonable, substantial, and probative evidence on the record

considered as a whole.’” Mikhailevitch v. INS, 146 F.3d 384, 388.

(6th Cir. 1998) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481,

117 L. Ed. 2d 38, 112 S.Ct. 812 (1992)). This standard is

deferential and the court may not reverse the Board’s determination

simply because the court would have reached a different conclusion.

Id. “The appropriate inquiry is whether the applicable evidence

‘was such that a reasonable factfinder would have to conclude that

the requisite fear of persecution existed.’” Id. (quoting Elias-

Zacarias, 502 U.S. at 481.

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 Petitioner argues that he was assigned a translator who could

not speak his native language or his Arabic dialect. According to

petitioner, the translator could only communicate with him in

classical Arabic, a language which is only learned in school and

has no native speakers. Petitioner argues that because he had only

six-and-a-half years of education, his answers to the translator

repeatedly reflected a misunderstanding of the questions.

Petitioner argues that the instances where the judge held

petitioner’s testimony incredible were either because the judge

misinterpreted the testimony or because petitioner misunderstood

the questions due to the inadequate translation.

Petitioner argues further that the immigration judge also

erred when he stated that even if everything petitioner testified

to was true, petitioner still has no basis for relief under the

asylum laws. Petitioner alleges that he feared retaliation by the

Iraqi security agencies for telling family and friends what had

occurred to him while in custody. Petitioner argues that even if

retaliation by the Iraqi forces is not political, it is evidence

that petitioner is likely to be subject to torture upon return to

Iraq.

Petitioner’s arguments miss the mark. In order to establish

a claim for asylum, an alien must qualify as a “refugee” under the

Immigration and Nationality Act (“the Act” or “INA”).

Mickhailevitch v. INS, 146 F.3d 384, 389 (6th Cir. 1998); Perkovic

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v. INS, 33 F.3d 615, 620 (6th Cir. 1994). The Sixth Circuit

defines a refugee “as a person unable or unwilling to return to his

country ‘because of persecution or a well-founded fear of

persecution on account of race, religion, nationality, membership

in a particular social group, or political opinion.’” Perkovic, 33

F.3d at 620 (quoting 8 U.S.C. § 1101(a)(42)(A)).

As the applicant seeking asylum, petitioner bears the burden

of proof of establishing eligibility for asylum as a refugee

“either because he has suffered actual past persecution or because

he has a well-founded fear of future persecution.” See 8 C.F.R. §

208.13; Mikhailevitch, 146 F.3d at 389. “An applicant’s fear of

persecution must be both subjectively genuine and objectively

reasonable.” Mikhailevitch, 146 F.3d at 389. Thus, the objective

fear must be based in reality because “[m]ere irrational

apprehension is not enough[.]” Cuadras v. INS, 910 F.2d 567, 571

(9th Cir. 1990). Petitioner’s alleged fear of persecution must be

“on account of” the Act’s protected grounds: race, religion,

nationality, membership in a particular social group, or political

opinion. Sale v. Haitian Ctrs. Council, 509 U.S. 155, 162 (1993).

Unlike asylum, withholding of removal prohibits the Attorney

General from removing “an alien to a country where his life or

freedom would be threatened on account of race, religion,

nationality, membership in a particular social group, or political

opinion.” Section 241(b)(3) of the INA, 8 U.S.C. § 1231(b)(3).

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“The alien must demonstrate a ‘clear probability of persecution’

with ‘objective evidence that it is more likely than not that he or

she will be subject to persecution upon deportation.’” Kapcia v.

INS, 944 f.2d 702, 709 (10th Cir. 1991) (quoting INS v. Cardoza-

Fonseca, 480 U.S. 421, 425 (1987)).

Here, the immigration judge concluded that the alleged harm

about which petitioner complained was not covered by the asylum

statute because petitioner did not establish past persecution or a

well-founded fear of future persecution “on account of” a protected

ground under the Act. This conclusion is supported by substantial

evidence. Petitioner alleges that he was taken into custody and

physically mistreated for weeks, but he does not demonstrate that

this treatment was on account of his race, religion, nationality,

membership in a particular social group, or political opinion.

Instead, petitioner complains about extortion, that the

officers would not release him until he signed over his family’s

liquor business. However, petitioner fails to connect this action

with any protected ground. “Such ordinary criminal activity does

not rise to the level of persecution necessary to establish

eligibility for asylum[.]” Abdille v. Ashcroft, 242 F.3d 477, 494

(3d Cir. 2001); see also Singh v. INS, 103 F.3d 1482, 1487 (9th

Cir. 1997) (“Persecution on account of political opinion can no

longer be inferred merely from acts of random violence. . . .”).

Similarly, petitioner complains about the unstable climate in

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his country, but an applicant for asylum may not establish

persecution simply because of the applicant’s country’s conditions

or civil wars. See, e.g., Perkovic v. INS, 33 F.3d 615, 621 (6th

Cir. 1994); Marquez v. INS, 105 F.3d 374, 381 (7th Cir. 1997)

(noting that “[c]onditions of political upheaval which affect the

populace as a whole or in large part are generally insufficient to

establish eligibility for asylum”) (quoting Gonzalez v. INS, 77

F.3d 1015, 1021 (7th Cir. 1996)). Petitioner’s alleged fear of

returning to Iraq is also undermined by his aunt’s testimony.

The immigration judge’s conclusion that petitioner was not

credible was also supported by substantial evidence. Adverse

credibility findings are “considered findings of fact, and are

reviewed under the substantial evidence standard.” Sylla v. I.N.S.,

388 F.3d 924, 925 (6th Cir. 2004). Here, the immigration judge

considered several contradictions and inconsistencies in

petitioner’s claim. Petitioner merely asserts that these can be

explained away by an untimely assertion that petitioner did not

understand the interpreter. This assertion, however, is

insufficient to compel this court to disturb the findings of the

immigration judge. Klawitter v. INS, 970 F.2d 149, 152 (6th Cir.

1992) (stating that the court must find evidence that compels it to

reverse the Board’s findings). However, even if the court

concluded that the immigration judge erred on this issue, and that

everything petitioner said was true, petitioner’s claim for asylum

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still fails because he still has not established that he was a

refugee entitled to protection under the Act.

Finally, petitioner also asserts a claim for withholding of

removal under the Convention Against Torture. Under the Convention

Against Torture, petitioner must establish that it is more likely

than not that he will be tortured in the proposed country of

removal, but he need not show that he will be tortured on account

of a protected ground. See 8 C.F.R. § 208.16(c)(2); Castellano-

Chacon v. I.N.S., 341 F.3d 533, 551-52 (6th Cir. 2003).

The immigration judge found that petitioner’s claim for

withholding of removal under the Convention Against Torture failed

because his testimony lacked credibility. The record clearly

supports his finding.

Conclusion

For the foregoing reasons, the petition for review is denied.

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