Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
6-4-2004
Hebishy v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-3313
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 02-3313 and 03-1962
MAMADOUH HEBISHY,
Petitioner
v.
JOHN ASHCROFT, Attorney General
of the United States,
Respondent
ON PETITIONS FOR REVIEW OF THE
BOARD OF IMM IGRATION APPEALS
Agency No. A73 586 474
Submitted Under Third Circuit LAR 34.1(a)
June 6, 2003
Before: BARRY, FUENTES, Circuit Judges, and McLAUGHLIN *
(Opinion Filed: June 4, 2004)
OPINION
*
Honorable Mary A. McLaughlin, United States District Judge for the Eastern District
of Pennsylvania, sitting by designation.
BARRY, Circuit Judge
Mamadouh Hebishy, an Egyptian national of the Coptic Christian faith, petitions
for review of two decisions issued by the Board of Immigration Appeals (“BIA”). In the
first decision, the BIA affirmed without opinion the findings of an Immigration Judge
(“IJ”) who denied Hebishy’s asylum and withholding of removal applications. In the
second, the BIA denied Hebishy’s motion to reopen or to reconsider this decision. We
have jurisdiction under 8 U.S.C. § 1252 and will deny Hebishy’s petitions for review.
As we write only for the litigants, who are familiar with the facts of this case, we
provide only a brief summary of those facts at the outset, incorporating additional facts as
relevant to our discussion of the issues. Mamadouh Hebishy came to the United States on
or about August 9, 1992 as a B-2 visitor with authorization to remain in the United States
until February 8, 1993. He overstayed his visa, and on November 26, 1997, was charged
with violating § 237(a)(1)(B) of the Immigration and Nationality Act. Hebishy admitted
the allegations in his Notice to Appear, conceded removability, and filed applications for
political asylum and withholding of removal.
On April 14, 1998, an IJ denied these applications. The IJ set forth in detail his
findings that Hebishy’s testimony was “inconsistent, incredible, not to be believed and . . .
unresponsive.” The IJ also found that although “Coptics [we]re having a difficult time in
Egypt,” there existed no pattern or practice of persecution against Coptic Christians. The
IJ concluded that Hebishy did not meet his burden as to asylum; i.e., he did not show that
2
he was persecuted or has a well-founded fear of persecution. The IJ further concluded
that because Hebishy failed to show a reasonable probability of future persecution, he
cannot meet the more stringent standard required for withholding of deportation.
Hebishy filed a timely appeal to the BIA, which appeal was denied on July 31,
2002 in a summary affirmance without opinion (“AWO”). On August 23, 2002, Hebishy
filed a petition for review of the BIA’s decision with this Court. Hebishy raised the
following issues: (1) whether summary affirmance was appropriate; (2) whether the IJ’s
finding of lack of credibility is supported by the record; (3) whether the IJ erred in
concluding that Hebishy had not established past persecution and/or a well-founded fear
of future persecution; and (4) whether the IJ erred in not finding a pattern or practice of
persecution against Coptic Christians. In support of his petition, Hebishy argues that his
fear of persecution is greater now due to changed circumstances, namely his marriage to
his wife on September 12, 2000, also a Coptic Christian, who was granted asylum on
March 8, 2000, and the fact that his brother, nephew, niece and wife’s sister were granted
asylum on August 19, 1999.1 Hebishy also argues that conditions in Egypt have changed
since the September 11, 2001 terrorist attacks.
Hebishy next filed a motion to reopen or reconsider with the BIA on October 28,
2002. He raised essentially the same issues set forth in his petition for review. On March
11, 2003, the BIA denied the motion. In so doing, the BIA held: “[T]he respondent has
1
Hebishy’s hearing was held on April 14, 1998 and, thus, pre-dated these events.
3
failed to establish how his relatives [sic] asylum status impact [sic] his claim for relief.”
That is, Hebishy did not set forth a nexus between this information and his claim. The
BIA found, as well, that Hebishy did not adequately explain the inconsistencies in his
testimony. It concluded that the issuance of an AWO was permissible.
On M ay 19, 2003, we stayed Hebishy’s petition for review of the BIA’s summary
affirmance, Hebishy v. Ashcroft, No. 02-3313, pending the decision of the en banc Court
in Dia v. Ashcroft, No. 02-2460. An opinion in Dia was issued on January 20, 2004. 353
F.3d 228 (3d Cir. 2003). Meanwhile, on April 7, 2003, Hebishy had filed another petition
for review with this Court, this time challenging the BIA’s March 11, 2003 denial of his
motion to reopen or reconsider, Hebishy v. Ashcroft, No. 03-1962. We consolidated both
petitions for review, and they are before us today.
I.
We begin by reviewing the BIA’s summary affirmance of the IJ’s denial of asylum
and withholding of removal. We quickly dispose of Hebishy’s argument that the BIA’s
issuance of an AWO violates the Due Process Clause of the Constitution. In Dia, we held
that the streamlining regulations allowing the BIA to issue AWOs do not violate the Due
Process Clause. Dia, 353 F.3d at 245. The requirements of due process are met so long
as either the IJ or the BIA (both now part of the Department of Homeland Security) “put
forth a sufficiently reasoned opinion,” id. at 243, and here the IJ did just that.
When the BIA issues an AWO, we review the IJ’s opinion to determine whether it
4
is supported by substantial evidence. Dia, 353 F.3d at 248. The scope of this review is
quite narrow, as “the question whether an agency determination is supported by
substantial evidence is the same as the question whether a reasonable fact finder could
make such a determination based upon the administrative record.” Id. at 249. Under this
deferential standard, findings must be upheld unless the evidence not only supports a
contrary conclusion, but compels it. Abdille v. Ashcroft, 242 F.3d 477, 483 (3d Cir.
2001). The IJ’s opinion is supported by substantial evidence.
The law regarding Hebishy’s substantive claims is clear. The Attorney General
may grant asylum if an applicant meets the definition of “refugee”; i.e, he or she is unable
or unwilling to return to his or her home 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.” Immigration and Nationality Act, 8 U.S.C.
§ 1101(a)(42)(A). To establish a well-founded fear of future persecution, Hebishy was
not required to show that he would be singled out for persecution, as long as there is a
pattern or practice of persecution against Coptic Christians by the Egyptian Government.
See 8 C.F.R. § 208.13(b)(2)(i)(A)-(B). To qualify for withholding of removal, Hebishy
needed to show that there was a “clear probability” that if returned to his native country,
he would be persecuted on the basis of a specified ground. See Zubeda v. Ashcroft, 333
F.3d 463, 469 (3d Cir. 2003); 8 C.F.R. § 208.16(b).
Even if we assume that Hebishy alleged facts sufficient to establish a prima facie
5
case for past persecution or a well-founded fear of future persecution, the IJ found
Hebishy incredible: “I don’t believe his story.” In reviewing the denial of asylum, other
than our examination of evidence of any pattern or practice of persecution, which
evidence we find lacking,2 the only relevant inquiry is whether the IJ’s adverse credibility
determination is supported by substantial evidence. We find that it is. The IJ set forth
several, detailed pages explaining that determination. The IJ found, for example, that
when testifying, Hebishy was unresponsive, and questions often had to be repeated,
although the interpreter was accurate. His story was riddled with inconsistencies, his
testimony varied from his detailed asylum application, and at times he contradicted
himself. Moreover, he failed to corroborate his testimony. Also troublesome to the IJ
was the fact that Hebishy claimed to have come to the United States in an effort to seek
asylum, yet he entered on a B-2 visa and only applied for asylum after he was found
overstaying his visa.
In sum, the IJ’s adverse credibility determination is supported by substantial
evidence and, given the lack of other evidence, so too is the IJ’s conclusion that Hebishy
should not be afforded refugee status. Finally, the IJ correctly found that because
Hebishy failed to show a reasonable probability of future persecution, he could not meet
the more stringent standard for withholding of deportation. See Lin v. INS, 238 F.3d 239,
2
Evidence that Muslims in Egypt have persecuted Coptic Christians was presented to
the IJ, but this evidence did not compel a conclusion that any such persecution rose to the
level of a pattern or practice.
6
244 (3d Cir. 2001).
II.
We turn now to the BIA’s denial of Hebishy’s motion to reopen or reconsider.
The denial of a motion to reconsider is reviewed under the same standard as the denial of
a motion to reopen. See INS v. Abudu, 485 U.S. 94, 110 (1988). We review the denial of
such motions for abuse of discretion. See id., 485 U.S. 94 (1988). We will reverse only
if the decision to not reopen (or reconsider) is “‘arbitrary, irrational, or contrary to law.’”
Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002) (quoting Tipu v. INS, 20 F.3d 580,
582 (3d Cir. 1994)). Motions to reopen “shall not be granted unless it appears to the
Board that evidence sought to be offered is material and was not available and could not
have been discovered or presented at the former hearing.” INS v. Doherty, 50 U.S. 314,
323 (1992) (citing 8 C.F.R. § 3.2 (1987)). A motion to reconsider, on the other hand,
seeks a new decision based on the record that was previously before the BIA. The BIA
did not abuse its discretion in denying Hebishy’s motion.
We have already indirectly concluded that the BIA did not abuse its discretion
insofar as the motion asked the BIA to reconsider the evidence previously before the IJ,
as we determined that the IJ’s adverse credibility determination was supported by
substantial evidence. Moreover, Hebishy failed to explain to the BIA why the problems
the IJ found and, most particularly, the inconsistencies, did not exist. We must still
determine, however, whether, in light of the evidence of the events which post-dated its
7
earlier review, the BIA abused its discretion in choosing to not reopen. W e find it did
not.
As the BIA noted, Hebishy failed to provide any nexus between the evidence of his
marriage and the various grants of asylum and his claim for relief; indeed, the record does
not even contain any indication as to why his family members were granted asylum.
Similarly, Hebishy fails to convincingly explain how marrying a woman who had earlier
been granted asylum affects his status. The only plausible nexus between his marriage
and his claim for relief is the contention that being associated with his wife and her family
makes him more likely to be persecuted. But there is no evidence to support any such
contention.
Finally, the evidence of country conditions presented on the motion does not
materially differ from the evidence of country conditions Hebishy previously submitted to
the IJ. Stated differently, Hebishy has not set forth sufficient evidence of changed
country conditions such that we could say that the BIA abused its discretion in denying
his motion to reopen or reconsider.
For the foregoing reasons we will deny the petitions for review.