Al-Fara v. Atty Gen USA

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit

4-14-2005

Al-Fara v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 02-4580

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 PRECEDENTIAL

UNITED STATES COURT OF APPEAL
FOR THE THIRD CIRCUIT

No. 02-4580

SAID HUSNI AL-FARA;
BAHYA SAFI,

Petitioners

v.

ALBERTO GONZALES, ATTORNEY GENERAL
OF THE UNITED STATES*

*Caption amended pursuant to Rule 43(c), Fed. R. App. P.

Respondent

On Petition for Review from an Order of the
Board of Immigration Appeals
(D.C. No. 0090-1: A73-623-415;
D.C. No. 0090-1: A73-623-416)

Submitted Pursuant to Third Circuit LAR 34.1(a)
May 27, 2004
B EFORE: RENDELL and COWEN, Circuit Judges and
SCHWARZER*, District Judge

(Filed: April 14, 2005)

Tahani Salama
1420 Walnut Street, Suite 1107
Philadelphia, PA 19102

Counsel for Petitioners

Anthony W. Norwood
Earle B. Wilson
Linda S. Wernery
Terri J. Scadron
John M. McAdams, Jr.
United States Department of Justice
Office of Immigration Litigation
Ben Franklin Station
P.O. Box 878
Washington, DC 20044

Counsel for Respondent

OPINION

COWEN, Circuit Judge.

*Honorable William W Schwarzer, Senior United States District
Judge for the Northern District of California, sitting by
designation.

2
 Said Al-Fara (“Petitioner” or “Al-Fara”) and Bahya Safi1
petition for review of an order of the Board of Immigration
Appeals (“BIA”), which summarily affirmed an Immigration
Judge’s (“IJ”) decision to deny Al-Fara’s applications for asylum
and withholding of deportation under the Immigration and
Nationality Act (“INA” or “Act”). Al-Fara challenges the
propriety of the BIA’s summary affirmance in his case. For the
following reasons, we will deny the petition for review.

I.

A.
The IJ found Al-Fara to be credible regarding his
subjective narrative. The facts below are accordingly taken
largely from his testimony.

Petitioner was born on June 24, 1947, in Khan Younis, a
town located in the area known as the Gaza Strip of what was
then Palestine. During the War of 1967, Israeli forces occupied
the Gaza Strip, and entered Petitioner’s house by force. In
response, Petitioner attacked one of the Israeli soldiers with a
stick. Recalling a fearful memory from the 1956 Sinai War
where he had witnessed Israeli soldiers lining up and shooting a
group of Palestinian youths, Al-Fara fled as the Israeli soldiers
shot at him. Petitioner believed that the Israeli soldiers had
come to destroy his home, and that if he remained in Gaza they
would arrest and kill him in retaliation for his attack on the
Israeli soldier. He escaped to Jordan.

From 1967 through 1976, Israeli soldiers approached
Petitioner’s parents and other family members demanding his
whereabouts. Specifically in 1976, Israeli soldiers forced Al-
Fara’s parents from their home and demolished it. As a result of

1
Petitioner Bahya Safi is Al-Fara’s wife and a derivative
applicant on his applications for asylum and withholding of
deportation. See 8 C.F.R. § 208.3(a) (2004). While our opinion
refers to the primary applicant, it is understood to include the
derivative applicant as well.

3
this ordeal, Al-Fara’s mother became mentally ill and was
admitted to a psychiatric hospital, where she passed away in
1991. Other relatives were killed by Israeli authorities.
Petitioner’s cousin, a judge in the Gaza Strip, was tortured and
killed by Israeli authorities for refusing to impose unlawful
judgments against Palestinian youths. According to Petitioner’s
testimony and an affidavit from the office of the Palestinian
National Liberation Movement, Petitioner’s cousin Essam Al-
Fara was arrested during the Great Intifada in 1987 but managed
to escape. Petitioner testified that Essam was tortured.

Petitioner remained in Jordan until October 1968, when
Jordan agreed to issue travel documents to any Palestinian
refugee willing to leave. He traveled to Kuwait, where he
succeeded in receiving a sponsorship from a Kuwaiti citizen.
His residence permit, however, expired in 1983 and the sponsor
refused renewal. He next lived in Iraq until December 1985, but
returned to Jordan to establish an importing business. Petitioner
operated his business from July 1986 until December 1989.
During this period he entered the United States on several
occasions for business purposes. After his business in Jordan
came to a close, Al-Fara traveled to Syria, Turkey, Greece,
Bulgaria, Cyprus, and Yugoslavia. He spent five and one-half
months in Egypt, where he married his present wife in 1990.

Petitioner testified that Israeli authorities will not permit
him to return, and that the Palestinian Authority is powerless.
As corroborated by a letter dated March 15, 1997, from the
Palestinian National Liberation Movement, the Palestinian
National Authority denied his application for reunification with
his family in Gaza, because they were not processing
applications at the time. He does not possess a Palestinian
passport, but has a traveling document from Jordan. His wife,
who was also born in Khan Younis but raised in Egypt, has a
traveling document from Egypt. Although he may enter Jordan,
his wife cannot, and he will be asked to surrender his passport to
Jordan authorities. His children, who are all United States
citizens, may only enter Jordan on tourist visas. Petitioner
believes that neither he nor his wife will be accepted by any
other country.

4
 B.

Petitioners entered the United States on or about April 7,
1991, on a non-immigrant visitor’s visa issued with
authorization to remain until October 7, 1991. On June 28,
1996, the former Immigration and Naturalization Service
(“INS”) 2 issued an Order to Show Cause in which it charged
Petitioners with remaining in the United States beyond the
authorized period. On October 18, 1996, Petitioners admitted
the allegations, and the IJ thus concluded that they are subject to
deportation pursuant to section 241(a)(1)(B) of the INA.
Seeking relief, Petitioners applied for asylum and withholding of
deportation.

The IJ found Said Al-Fara to be credible but denied his
application for asylum. After identifying Petitioner as a stateless
Palestinian, the IJ observed that it was the conditions of unrest
and battle brought about by the 1967 war, and not any
individualized persecution of Petitioner, that prompted
Petitioner’s flight from Gaza in 1967. In addition, the IJ
recognized that the 1967 war involved attacks and abuses by
both Israelis and Palestinians. The IJ reasoned that harm
resulting from such violence in a situation of civil strife is not
necessarily persecution “on account of” a statutory factor, and
thus Petitioner is not a “refugee” by virtue of past persecution.
With respect to Petitioner’s well-founded fear of future
persecution claim, the IJ found that the substantial amount of
time that passed between Petitioner’s flight and the present
renders his subjective fear of retaliation objectively unfounded.
Addressing Petitioner’s status as stateless, the IJ concluded that
statelessness alone does not warrant a grant of asylum, and noted
as an additional matter the lack of any evidence, other than Al-
Fara’s testimony, that the Palestinian Authority would deny him
admission into the area it controls. In light of Petitioner’s

2
On March 1, 2003, the INS ceased to exist as an agency
within the Department of Justice and its functions were transferred
to the Department of Homeland Security. See Homeland Security
Act of 2002, Pub.L. No. 107-296, 110 Stat. 2135 (2002).

5
inability to qualify for asylum, the IJ rejected his request for
withholding of deportation, but granted the application for
voluntary departure. On December 2, 2002, the BIA affirmed
without opinion the IJ’s decision pursuant to 8 C.F.R. §
1001.3(e)(4).3

II.

Because Petitioners were placed in deportation
proceedings before April 1, 1997, and the final order of
deportation was issued by the BIA after October 30, 1996, our
jurisdiction arises under 8 U.S.C. § 1105a (1996), as amended by
the transitional rules for judicial review in section 309(c)(4) of
the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009-
546 (Sept. 30, 1996). The BIA’s jurisdiction arose under 8

3
At the time the BIA acted on Al-Fara’s appeal, the
streamlining regulations were located at 8 C.F.R. § 3.1(a)(7)
(2002). The language of the current streamlining regulation does
not significantly differ from that of the former provision, and it is
thus to the current regulation that we refer to and cite. 8 C.F.R. §
1003.1(e)(4) provides in pertinent part:

(i) The Board member to whom a case is assigned
shall affirm the decision of the Service or the
immigration judge, without opinion, if the Board
member determines that the result reached in the
decision under review was correct; that any errors in
the decision under review were harmless or
nonmaterial; and that
(A) The issues on appeal are squarely controlled by
existing Board or federal court precedent and do not
involve the application of precedent to a novel
factual situation; or
(B) The factual and legal issues raised on appeal are
not so substantial that the case warrants the issuance
of a written opinion in the case.

6
C.F.R. §§ 1003.1(b) and 1240.53 (2003).4

The IJ denied Al-Fara’s applications for relief, but
granted voluntary departure. The BIA affirmed without opinion,
pursuant to 8 C.F.R. § 1003.1(e)(4).5 “[W]hen the BIA issues an
[affirmance without opinion] under the streamlining regulations,
we review the IJ’s opinion and scrutinize its reasoning.” Dia v.
Ashcroft, 353 F.3d 228, 245 (3d Cir. 2003) (en banc). Under the
substantial evidence standard, we must uphold the IJ’s factual
findings if they are “supported by reasonable, substantial, and
probative evidence on the record considered as a whole.” INS v.
Elias-Zacarias, 502 U.S. 478, 481 (1992). Findings of past and
future persecution are factual determinations and are accordingly
subject to this deferential review. Lukwago v. Ashcroft, 329
F.3d 157, 167 (3d Cir. 2003).

III.

Al-Fara asserts that the BIA erred in its decision to apply
the streamlining regulations to his case because the criteria set
forth in 8 C.F.R. § 1003.1(e)(4) were not met.6 Specifically, he
contends that (1) the IJ’s decision is not correct; (2) the IJ failed
to review critical evidence; (3) the BIA failed to address

4
At the time the BIA acted on Al-Fara’s appeal, these
regulations were found at 8 C.F.R. §§ 3.1(b)(2) and 240.53 (2002).
5
In his brief, Al-Fara argues that the BIA’s affirmance-
without-opinion procedures violate due process. This argument is
foreclosed by our decision in Dia v. Ashcroft, 353 F.3d 228, 238-45
(3d Cir. 2003) (en banc).
6
In Smriko v. Ashcroft, 387 F.3d 279 (3d Cir. 2004), this
Court held that it has jurisdiction to review the BIA’s decision to
issue an affirmance-without-opinion in a particular case. We
concluded that 8 C.F.R. § 1003.1 provides a “meaningful standard
against which to judge the agency’s exercise of discretion.” Id. at
292 (internal quotation marks omitted). We will uphold the BIA’s
decision to streamline if we find that it was not arbitrary and
capricious in light of the requirements of 8 C.F.R. § 1003.1(e)(4).

7
changed circumstances; and (4) new arguments were presented
by Petitioner to the BIA. We conclude that the BIA’s decision to
streamline was not arbitrary and capricious.

A.

Substantial evidence supports the IJ’s determination that
Petitioner does not qualify for asylum. Pursuant to 8 U.S.C. §
1158(b)(1), the Attorney General may grant asylum to an
otherwise removable alien who demonstrates that he or she
meets the definition of “refugee” as defined by 8 U.S.C. §
1101(a)(42)(A):

[A]ny person who is outside any country of such
person’s nationality or, in the case of a person
having no nationality, is outside any country in
which such person last habitually resided, and who
is unable or unwilling to return to, and is unable or
unwilling to avail himself or herself of the protection
of, that 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.

Petitioner mounts four specific challenges to the merits of
the IJ’s decision: (1) the IJ’s finding that Petitioner does not
qualify as a “refugee” as defined by 8 U.S.C. § 1101(a)(42)(A)
by virtue of past persecution is not supported by substantial
evidence; (2) the IJ’s finding that Petitioner does not qualify as a
“refugee” by virtue of a well-founded fear of future persecution
on account of membership in a particular social group is not
supported by substantial evidence; (3) the IJ’s denial of asylum
is incorrect because Petitioner qualifies for a discretionary grant
of asylum based on humanitarian grounds; and (4) the IJ’s denial
of asylum is incorrect because Petitioner’s status as a stateless
Palestinian renders him eligible for asylum.

Turning first to Petitioner’s claim of past persecution,
“[t]o establish eligibility for asylum on the basis of past
persecution, an applicant must show (1) an incident, or incidents,

8
that rise to the level of persecution; (2) that is ‘on account of’
one of the statutorily-protected grounds; and (3) is committed by
the government or forces the government is either ‘unable or
unwilling’ to control.” Abdulrahman v. Ashcroft, 330 F.3d 587,
592 (3d Cir. 2003) (internal citation and quotation marks
omitted).

Substantial evidence supports the IJ’s determination that
the incident that occurred between Petitioner and the Israeli
soldier in 1967 along with the ensuing encounters between the
Israeli forces and Petitioner’s family do not rise to the level of
“persecution” as contemplated by the Act. Persecution is not a
limitless concept. While it includes “threats to life, confinement,
torture, and economic restrictions so severe that they constitute a
threat to life or freedom,” we have explained that it “does not
encompass all treatment that our society regards as unfair,
unjust, or even unlawful or unconstitutional. If persecution were
defined that expansively, a significant percentage of the world’s
population would qualify for asylum in this country-- and it
seems most unlikely that Congress intended such a result.” Fatin
v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993). Persecution must be
“extreme conduct” to qualify for asylum protection. Id. at 1240
n.10. In this case, Israeli soldiers entered Petitioner’s home by
force. Petitioner responded by attacking an Israeli soldier with a
stick and fleeing the country. The Israeli forces continued to
harass Petitioner’s family and demand his whereabouts until
1976, when they expelled Petitioner’s parents from their home
and demolished the house. Neither Petitioner nor his parents
were arrested, detained, abused, or physically harmed as a result
of this incident. In addition, the context in which these
encounters occurred is extremely significant. At the time of this
event in 1967, war had broken out between Israel and what was
then Palestine. The record reflects that the threat of injury or
harm in Gaza affected the entire population in that region and
was a function of the Israeli takeover, occupation, and claim to
the lands of Gaza and the West Bank. According to Petitioner’s
affidavit, his parents’ house was among thousands destroyed in
1976 pursuant to an Israeli policy designed to force families to
leave and make room for Jewish settlements.

9
 Petitioner’s burden in showing persecution is high, and
we have held that “‘generally harsh conditions shared by many
other persons’ do not amount to persecution.” Fatin, 12 F.3d at
1240 (quoting Matter of Acosta, 19 I. & N. Dec. 211, 222 (BIA
1985)); see Ambartsoumian v. Ashcroft, 388 F.3d 85, 93 (3d Cir.
2004); Matter of Sanchez and Escobar, 19 I. & N. Dec. 276, 284
(BIA 1985), aff’d sub nom Sanchez-Trujillo v. INS, 801 F.2d
1571 (9th Cir. 1986). While troubling, Petitioner’s allegations
do not arise to the level of persecution required by Fatin.
Indeed, the IJ noted that Congress had specifically rejected a
definition of “refugee” that would have encompassed “displaced
persons,” i.e., “individuals who flee widespread conditions of
indiscriminative violence resulting from civil war or military
strife in a country.” Sanchez and Escobar, 19 I. & N. Dec. at
284. Furthermore, as the IJ properly noted, harm resulting from
country-wide civil strife is not persecution “on account of” an
enumerated statutory factor. See Matter of Maldonado-Cruz, 19
I. & N. Dec. 509, 513 (BIA 1988), rev’d on other grounds, 883
F.2d 788 (9th Cir. 1989); Sanchez and Escobar, 19 I. & N. Dec.
at 282. Petitioner has furnished no evidence, short of
speculation, that these past incidents were perpetrated on
account of anything other than ongoing civil controversy. This
record does not compel a finding that Petitioner suffered past
persecution.

This finding extinguishes Al-Fara’s claim that the IJ
erroneously failed to grant him a discretionary grant of asylum
for humanitarian reasons. In Matter of Chen, 20 I. & N. Dec. 16
(BIA 1989), the Board acknowledged that in limited
circumstances past persecution alone may warrant a grant of
asylum, even in the absence of a future threat of persecution.
The Board stated:

If an alien establishes that he has been
persecuted in the past for one of the five reasons
listed in the statute, he is eligible for a grant of
asylum. The likelihood of present or future
persecution then becomes relevant as to the exercise
of discretion, and asylum may be denied as a matter
of discretion if there is a little likelihood of present

10
 persecution. . . .
However, there may be cases where the
favorable exercise of discretion is warranted for
humanitarian reasons even if there is little likelihood
of future persecution. . . .
“It is frequently recognized that a person
who--or whose family--has suffered under atrocious
forms of persecution should not be expected to
repatriate. . . . Thus, while the likelihood of future
persecution is a factor to consider in exercising
discretion in cases where any asylum application is
based on past persecution, asylum may in some
situations be granted where there is little threat of
future persecution.”

Id. at 18-19 (quoting the Handbook on Procedures and Criteria
for Determining Refugee Status under the 1951 Convention and
the 1967 Protocol Relating to the Status of Refugees (Geneva,
1979)).

In this case, however, we affirm the IJ’s finding that
Petitioner did not suffer past persecution. Therefore, he is not
eligible for a grant of asylum pursuant to this rationale.

In the absence of past persecution, an applicant for
asylum can establish that he or she has a well-founded fear of
persecution. Gao v. Aschroft, 299 F.3d 266, 272 (3d Cir. 2002).
Demonstration of a well-founded fear of persecution carries both
a subjective and objective component. The applicant must show
“a subjective fear of persecution that is supported by objective
evidence that persecution is a reasonable possibility.” Chang v.
INS, 119 F.3d 1055, 1066 (3d Cir. 1997). Testimony alone may
be sufficient to satisfy this burden, so long as it is found
credible. Gao, 299 F.3d at 272.

Taken in conjunction with the documentary evidence of
conditions in Israel and the occupied territories, Al-Fara’s
testimony, while credible, does not establish that a reasonable
person in his circumstances would fear persecution on account
of social group or nationality.

11
 To qualify for asylum on account of membership in a
“particular social group” requires that an applicant (1) identify a
group that constitutes a “particular social group,” (2) establish
that he or she is a member of that group, and (3) show
persecution or a well-founded fear of persecution based on that
membership. Lukwago v. Ashcroft, 329 F.3d 157, 170 (3d Cir.
2003). Petitioner argues that the IJ erred in failing to find that he
has a well-founded fear of persecution based on membership in
the social group of his family. It is not clear whether this
argument was raised before the IJ, but any error he may have
committed in failing to entertain or address it is harmless in light
of the failure of the record to substantiate it. While violence
against a family member may “support . . . a claim of persecution
and in some instances is sufficient to establish [a well-founded
fear of] persecution,” Baballah v. Ashcroft, 335 F.3d 981, 988
(9th Cir. 2003), Petitioner has not sufficiently established that
his family members suffered persecution because of their
familial relationship. The record reflects that one of Petitioner’s
cousins was arrested and tortured in the Intifada in 1987, and
that another cousin who served as a judge in Gaza was killed
because he refused to unlawfully apply laws to the Palestinians
before him. According to Petitioner, his parents’ house was
among the thousands destroyed in 1976 pursuant to an Israeli
policy aimed at emptying Gaza to make room for Jewish
settlements.

Substantial evidence supports the IJ’s finding that
Petitioner’s fear of retaliation from Israeli forces as a result of
his attack on an Israeli soldier in 1967 is not objectively
reasonable. Putting aside that such fear is not “on account of” an
acceptable statutory factor, see Maldonado-Cruz, 19 I. & N.
Dec. at 512 (“[A]liens fearing retribution over purely personal
matters or those fleeing general conditions of violence and
upheaval in their native countries would not qualify for asylum.
Such persons may have well-founded fears of harm but such
harm would not be on account of [any statutory factor].”), this
fear is objectively unreasonable given that approximately thirty-
eight years have passed since the incident, and approximately
thirty years have passed since the Israelis last inquired of
Petitioner’s whereabouts. Petitioner has put forth no evidence

12
that the Israeli authorities possess a present interest in him.

Al-Fara’s contention that he possesses a well-founded
fear of persecution based on his nationality as a Palestinian is
also unpersuasive. This claim is exclusively premised on the
harsh conditions confronted by those who reside in Gaza.
Although an individual who resides in a country where the lives
and freedoms of a significant number of persons of a protected
group are targeted for persecution may make less of the
individual showing required to qualify for asylum, the applicant
must do more than rely on a general threat of danger arising
from a state of civil strife; some specific showing is required. A
Palestinian who has suffered isolated harm, or little cumulative
harm, cannot prevail merely because many Palestinians face
oppressive conditions.

We certainly cannot say that “a reasonable factfinder
would have to conclude,” based on the record, that the
Petitioner, if returned to Gaza, would face treatment amounting
to “persecution” simply because he is a Palestinian. The general
political upheaval that has been an unfortunate reality in Gaza is
obviously threatening for those who live there, but such
conditions in and of themselves do not merit asylum.

Related to this latter claim is Petitioner’s contention that
the IJ committed reversible error in failing to consider critical
evidence regarding the conditions experienced by Palestinians in
Israel and the occupied territories. In support of this charge,
Petitioner refers to a portion of the IJ’s oral statement: “Because
as I have explained, the fundamental problem in this case is we
have too much background evidence about conditions of
Palestinians in occupied territories, but very little from this
respondent about what exactly happened to him. And, he has to
have both.” (R. at 429.) Petitioner asserts that this statement
proves that the IJ did not consider all of the background
evidence submitted in the case. This claim is without merit and
directly belied by the IJ’s other statements and written opinion,
which discusses the general conditions of the areas controlled by
the Palestinian Authority, citing to specific evidence submitted
by both Petitioner and the INS. Significantly, Al-Fara does not

13
point to any specific evidence that he contends the IJ ignored.

Petitioner’s fear derives not from his nationality or
membership in a social group, but from the general instability of
the region. Accordingly, substantial evidence supports the IJ’s
conclusion that Petitioner does not possess a well-founded fear
of persecution as defined by the Act.

Petitioner’s challenge to the IJ’s failure to grant asylum
on the basis of statelessness is without merit. Courts have
repeatedly held that “statelessness alone does not warrant
asylum.” See, e.g., Ahmed v. Ashcroft, 341 F.3d 214, 218 (3d
Cir. 2003).

B.

Petitioner’s argument that streamlining is inappropriate
when new arguments are pressed on appeal to the BIA is correct
only if the BIA acted arbitrarily in concluding that either “[t]he
issues on appeal are squarely controlled by existing Board or
federal court precedent and do not involve the application of
precedent to a novel factual situation” or
“[t]he factual and legal issues raised on appeal are not so
substantial that the case warrants the issuance of a written
opinion in the case.” 8 C.F.R. § 1003.1(e)(4). As explained
below, the BIA did not act arbitrarily in applying these standards
and streamlining Al-Fara’s case.

We have discussed above Al-Fara’s contentions, raised on
direct appeal to the BIA, that he qualifies for asylum based on
humanitarian grounds and that the IJ erroneously failed to review
critical evidence of country conditions. In addition to these
points, his brief submitted to the BIA on appeal argued that he
qualifies as a refugee pursuant to the 1951 Convention Relating
to the Status of Refugees (“1951 Convention”). On appeal to
this Court, Petitioner argues that he qualifies as a refugee
pursuant to the legal opinion of the INS General Counsel’s
Office, Genco Op. No. 95-14, 1995 WL 1796321 (INS Oct. 27,
1995).

14
 Petitioner’s claim that he qualifies as a refugee pursuant
to the 1951 Convention and the 2002 interpretations of the
United Nations High Commissioner for Refugees made thereto
is without merit. The United States is a signatory to the 1967
United Nations Protocol Relating to the Status of Refugees
(“1967 Protocol”), which incorporated the 1951 Convention.
The Attorney General implemented regulations to comply with
its terms. INS v. Stevic, 467 U.S. 407, 428-30, n.22 (1984). In
1980, Congress amended the INA through passing the Refugee
Act, which brought the domestic laws of the United States into
conformity with its treaty obligations under the 1967 Protocol.
Id. at 421, 427. The 1967 Protocol is not self-executing, nor
does it confer any rights beyond those granted by implementing
domestic legislation. See id. at 428 n.22; Cuban American Bar
Ass’n, Inc. v. Christopher, 43 F.3d 1412, 1426 n.13 (11th Cir.),
cert. denied sub nom., Haitian Refugee Center, Inc. v.
Christopher, 515 U.S. 1142 (1995); Ming v. Marks, 505 F.2d
1170, 1171 n.1 (2d Cir. 1974) (per curiam), cert. denied, 421
U.S. 911 (1975) (clarifying that 1967 Protocol does not alter or
enlarge the effect of existing immigration laws already
embracing its principles). Accordingly, Petitioner cannot assert
rights beyond those contained in the INA and its amendments.

Petitioner’s claim that he qualifies as a refugee pursuant
to the legal opinion of the INS General Counsel’s Office, Genco
Op. No. 95-14, 1995 WL 1796321 (INS Oct. 27, 1995), was not
raised before the IJ or on direct appeal to the BIA. Under 8
U.S.C. § 1105a(c) (repealed), which applies to transitional aliens
through incorporation, see IIRIRA § 309(c), there shall be no
judicial review of a claim “if the alien has not exhausted the
administrative remedies available to him as of right under the
immigration laws and regulations.” 8 U.S.C. § 1105a(c).
Because Al-Fara did not advance this particular claim in his
asylum hearing before the IJ or on appeal to the BIA, he has not
exhausted his available administrative remedies. Consequently,
we do not have jurisdiction to entertain it.7

7
We note, however, that had we jurisdiction to review this
claim, we would deny it. Petitioner’s claim that Jordan, the country

15
 We recognize that pursuant to our recent decision in
Smriko v. Ashcroft, 387 F.3d 279 (3d Cir. 2004), we have
jurisdiction to remand this case to the BIA for a written
disposition. Unlike the situation presented in Smriko, however,
this is not a case where the BIA’s institutional knowledge and
expertise would be of value to us.

C.

Al-Fara rightly asserts that conditions in Israel and the
occupied territories have changed since 1998. He has submitted
a number of articles and reports documenting these changes.
Nonetheless, it is axiomatic that we may not foray outside the
administrative record in considering this appeal. Indeed, the
“general rule, applicable across the board to judicial review of
administrative action and merely codified for immigration
appeals in section 1105a(a)(4) [(repealed)] 8 , is that the court may
not go outside the administrative record.” Osaghae v. INS, 942
F.2d 1160, 1162 (7th Cir. 1991). The appropriate recourse,
already taken by Petitioner, is to file a motion to reopen with the
BIA on account of new evidence. If the BIA denies Petitioner’s
motion to reopen, he may appeal that decision to this Court.

For the foregoing reasons, the petition for review will be
denied.

he deems his “last habitual residence” would deny him reentry is
purely speculative, contradicts his administrative hearing
testimony, and is not linked to an allegation of persecution on
account of any protected ground, as required by the opinion on
which he relies.
8
The IIRIRA repealed this old rule, but it is still applicable
to transitional aliens through incorporation. See IIRIRA §§
309(c)(1) and (4).

16