United States Court of Appeals
Fifth Circuit
F I L E D
In the April 17, 2006
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
m 05-60141
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LAOI SALAH MAJD; RAJAA TAHSIN NAJI BARAKAT; TAREQ LAOI MAJD,
Petitioners,
VERSUS
ALBERTO R. GONZALES,
UNITED STATES ATTORNEY GENERAL,
Respondent.
____________________________________
Petition for Review of an Order of
the Board of Immigration Appeals
______________________________
Before KING, SMITH, and BENAVIDES, *****
Circuit Judges.
Laoi Majd, together with his wife and son
JERRY E. SMITH, Circuit Judge: as derivative beneficiaries, petitions for review
of the denial by the Board of Immigration
The petition for panel rehearing is Appeals (“BIA”) of his application for asylum,
GRANTED. The opinion, 2006 U.S. App. witholding of removal, and protection under
LEXIS 7558 (5th Cir. Mar. 8, 2006), is the Convention Against Torture (“CAT”). We
WITHDRAWN, and the following opinion is deny the petition.
substituted:
I. low security risk.
A.
Majd, a native of Libya holding a Palestin- In March 2001, as he was leaving the bank
ian Authority (“PA”) passport, was admitted where he worked, Majd noticed tanks and sol-
to the United States in January 2002 as a non- diers in the street. The soldiers were “shoot-
immigrant visitor. He overstayed his visa and ing from everywhere.” Majd and another per-
in April 2003 was charged by the Department son tried to leave the area but were confronted
of Homeland Security (“DHS”) with remov- by an Israeli soldier who demanded to know
ability under 8 U.S.C. § 1227(a)(1)(B) for re- their destination. Majd stated he was going
maining in the country longer than permitted. home, but the soldier ordered him back inside
In a September 2003 hearing before an im- the bank.
migration judge (“IJ”), Majd conceded he was
removable as charged but requested asylum, When the soldier was distracted by one of
witholding of removal, and protection under his comrades, Majd and the other person tried
CAT, or, in the alternative, voluntary depar- to escape. The soldiers ordered them to stop,
ture, claiming he was entitled to all such relief but when they did not obey the soldiers fired
because, as a Palestinian living in the West upon them. The other individual was shot, but
Bank, he had been persecuted by Israeli forces. Majd made it home safely. Majd testified that
he had done nothing to deserve detention but
confirmed that the building in which he
B. worked housed the office of a Fatah leader.
Majd testified as follows: Before entering
the United States, he and his family lived in In August 2001, Majd took a taxi from Ra-
Ramallah, where he and his wife were bankers. mallah to visit his father. While his taxi was in
In March 2000, on returning to the West Bank line at a security checkpoint, another taxi tried
from a vacation in Jordan, he was stopped by to change lanes and pass in front of another
Israeli security forces at a checkpoint and car. Because getting out of a checkpoint line
detained for hours. He did not say why he was is generally considered suspicious activity, the
detained, but he claimed that the security Israeli forces opened fire. A passenger riding
forces kicked him while walking up and down in the same taxi as Majd was shot and killed,
the corridor where he was being held and that and Majd fainted out of fear. Majd eventually
they questioned him about his job, family, and reached his destination and did not testify that
party affiliations. While he was being de- the Israeli forces were shooting specifically at
tained, his wife, one month pregnant, had to sit him.
in a chair for eight hours without food or
water. The PA occupied the ground floor and
basement of the building in which Majd lived.
In May 2000, Majd was arrested while on One day, after inspecting the location and sus-
his way to pick up his sister, was detained for pecting that some PA soldiers has escaped
two hours, and again was questioned regard- through the building, Israeli soldiers searched
ing his destination, family, job, and affiliations. the building from top to bottom, including
He stated that on both occasions when he was Majd’s home. The soldiers broke some ob-
detained, he presented the security forces with jects there, and Majd’s family was terrified,
an identification card indicating that he was a particularly after hearing shots fired in the
2
building. It was that event that prompted mann commented on the general conditions of
Majd and his family to take a vacation to the unrest in the West Bank but stated that she
United States to “wait for the situation [in the had no personal knowledge of Majd’s experi-
West Bank] to get better.” ences and had never been to Ramallah. She
explained the usual procedure at security
After Majd his wife and son fled to the checkpoints and suggested that any vehicle
United States, numerous problems befell his that attempted to evade a checkpoint would be
family remaining in the West Bank. His cousin fired upon.
was detained by Israeli forces, and the cousin’s
blacksmith shop was destroyed. Majd’s II.
brother was detained for three months under After hearing this evidence, the IJ denied
an Israeli law that permits judges to authorize Majd’s applications for asylum, witholding of
administrative detention for that length of removal, and relief under CAT but granted him
time.1 Majd’s family, who raised vegetables in voluntarydeparture, allowing him sixtydays to
addition to holding other jobs, could not bring leave the country of his own accord.2 The IJ
their harvest to market because of the general ordered Majd forcibly removed to Israel if he
unrest in the area and the fact that “everything did not depart during that sixty-day period.
is closed and surrounded by Israeli authori-
ties.” In particular, the wall the Israelis are The IJ determined that although Majd was
building to secure the West Bank border runs credible, the mistreatment he suffered did not
through the middle of his family’s olive groves, constitute persecution on account of one of
depriving them of their land. the five statutory grounds that rendered an
individual eligible for asylum and/or witholding
Majd offered the testimony of his brother, of removal. The IJ found that the harm in-
Modard Salah Jousef Majd, via telephone. flicted on Majd did not rise to the level of
The brother confirmed that he had been taken torture, so relief under CAT was unavailable.
and detained for three months by the Israelis
after telling them that Majd had gone to the Majd appealed to the BIA, contending that
United States. He also confirmed the destruc- the IJ erred in denying him relief, that the re-
tion of the family’s olive groves and stated that jection of his request for relief contravenes the
because of his experiences, he is essentially 1951 Convention Relating to the Status of
confined to his village. The telephonic testi- Refugees, and that the United States’ handling
mony of Majd’s father similarly confirmed of Palestinian asylum claims such as his vio-
Majd’s accounts. lates the ABC Settlement Agreement, which
arose out of a class action lawsuit by immi-
Majd also offered the testimony of Emily grants of certain nationalities against the im-
Watchsmann, a student at the University of migration authorities. The BIA affirmed with-
North Texas who had visited the West Bank in out opinion. Majd petitions for review.
conjunction with an organization known as the
International Solidarity Movement. Watchs-
2
By statute, permission to depart the United
States voluntarily at the conclusion of removal pro-
1
Majd did not testify that his brother was mis- ceedings “shall not be valid for a period exceeding
treated during his period of detention. 60 days.” 8 U.S.C. § 1229c(b)(2).
3
pass all treatment that our society regards as
III. unfair, unjust, or even unlawful or unconstitu-
A. tional. If persecution were defined that expan-
Generally, we have authority to review only sively, a significant percentage of the world’s
the decision of the BIA, but where, as here, population would qualify for asylum in this
the BIA summarily affirms the IJ’s decision countrySSand it seems most unlikely that Con-
without opinion, we review the IJ’s decision. gress intended such a result. Persecution must
See Mikhael v. INS, 115 F.3d 299, 302 (5th be extreme conduct to qualify for asylum pro-
Cir. 1997). Although we review the legal con- tection.” Al-Fara v. Gonzales, 404 F.3d 733,
clusions of the BIA and the IJ de novo, see id., 739 (3d Cir. 2005) (internal quotations and ci-
we review their factual findings for substantial tations omitted).
evidence. See Zhang v. Gonzales, 432 F.3d
339, 343-44 (5th Cir. 2005). Under the sub- There is a well-founded fear of persecution
stantial evidence standard, “reversal [of the IJ] if the alien has a subjective fear of persecution
is improper unless we decide ‘not only that the that is objectively reasonable. See Lopez-Go-
evidence supports a contrary conclusion, but mez v. Ashcroft, 263 F.3d 442, 445 (5th Cir.
[also] that the evidence compels it.’” Id. at 2001). “[A]n applicant’s fear of persecution
344 (quoting Zhao v. Gonzales, 404 F.3d 295, cannot be based solely on general violence and
306 (5th Cir. 2005)). The alien bears the bur- civil disorder.” Eduard, 379 F.3d at 190.
den of proving the requisite compelling nature
of the evidence. See Chun v. INS, 40 F.3d 76, Unlike asylum, witholding of removal is not
78 (5th Cir. 1994). discretionary. An alien may not be removed to
a particular country if it is determined that “the
B. alien’s life or freedom would be threatened in
The Attorney General has complete discre- that country because of the alien’s race, reli-
tion whether to grant asylum to eligible indi- gion, nationality, membership in a particular
viduals. “[A]sylum is not available to every social group, or political opinion.” 8 U.S.C. §
victim of civil strife, but is restricted to those 1231(b)(3)(A). To be eligible for witholding
persecuted for particular reasons.” Hallman v. of removal, an alien must demonstrate an
INS, 879 F.2d 1244, 1247 (5th Cir. 1989). To objective “clear probability” of persecution in
be eligible for asylum, an alien must prove that the proposed country of removal. INS v.
he is “unable or unwilling to return to . . . [his Stevic, 467 U.S. 407, 413 (1984). Because
home] country because of persecution or a the level of proof required to establish eligibil-
well-founded fear of persecution on account of ity for witholding of removal is higher than
race, religion, nationality, membership in a that required for asylum, failure to establish
particular social group, or political opinion.” eligibility for asylum is dispositive of claims for
8 U.S.C. § 1101(a)(42)(A). witholding of removal. See Eduard, 379 F.3d
at 186 n.2.
“Neither discrimination nor harassment or-
dinarily amounts to persecution under the [Im- To obtain relief under CAT, an alien must
migration and Nationality Act (“INA”)] . . . .” demonstrate not that he is a member of one of
Eduard v. Ashcroft, 379 F.3d 182, 188 (5th the five protected categories of individuals ar-
Cir. 2004). Similarly, “[p]ersecution is not a ticulated in the eligibility standards for asylum
limitless concept . . . . [I]t does not encom- and witholding of removal, but rather that it is
4
more likely than not that he will be tortured if The IJ found that the search of Majd’s
he is removed to his home country. See Efe v. house was not an action directed specifically at
Ashcroft, 293 F.3d 899, 907 (5th Cir. 2002).3 Majd because of his race, nationality, religion,
To meet this burden, the alien may produce political affiliation, or membership in a social
evidence of past torture, an inability to relo- group. Rather, the Israeli forces were looking
cate to a safer part of the country, human to apprehend other individuals believed to be
rights abuses committed within the country, hiding in the building, an operation that re-
and any other relevant information. See 8 quired a search of the entire building.
C.F.R. § 208.16(c)(3).
Similarly, the IJ concluded that Majd was a
IV. mere bystander to the shooting incident at the
A. security checkpoint. That action by the Israeli
The IJ determined that Majd was ineligible forces was again not directed specifically at
for asylum and withholding of removal be- Majd, but was precipitated by the suspicious
cause the evidence demonstrated that his suf- activity of the occupants of another vehicle.
fering was the result of the generally danger- The IJ also found that the frustration of the
ous conditions in the West Bank and did not Majd family’s attempts to bring their harvest
rise to the level of persecution on account of to market and the destruction of the family’s
one of the five statutorily-protected grounds. olive groves were caused by the pervasive
For example, with regard to the March 2001 unstable conditions in the region, not by Israeli
incident at Majd’s place of employment, the IJ actions directed at the family in particular.
found that the evidence suggested that the Is-
raelis were attempting to apprehend a suspect- With regard to the two occasions on which
ed terrorist in the area and that they fired on Majd was detained, the IJ found that he did
Majd not because he was a Palestinian, but be- not suffer any long-term deprivation of liberty
cause he disobeyed a soldier’s order. or permanent physical injury. Accordingly, the
IJ concluded that though the detentions could
be considered harassment, they did not consti-
3
The relevant regulation defines torture as
tute persecution.
as any act by which severe pain or suffering, Finally, the IJ determined that the detention
whether physical or mental, is intentionally in- of Majd’s brother and cousin shed no light on
flicted on a person for such purposes as obtain- how Majd would likely be treated on returning
ing from him or her or a third person informa- to Israel, because those detentions were the re-
tion or a confession, punishing him or her for sult of circumstances specific to each man.4
an act he or she or a third person has committed Given that none of Majd’s suffering rose to the
or is suspected of having committed, or in-
timidating or coercing him or her or a third
4
person, or for any reason based on discrimina- Majd’s brother was detained because the Is-
tion of any kind, when such pain or suffering is raelis were investigating reports that there was a
inflicted by or at the instigation of or with the weapons manufacturing facility located in the
consent or acquiescence of a public official or building in which he lived. Majd’s cousin was de-
other person acting in an official capacity. tained and his blacksmith shop destroyed because
the Israelis suspected he was using the shop to
8 C.F.R. § 208.18(a)(1) (2000). manufacture weapons.
5
level of persecution on account of one of the harm inflicted by the Israelis, although inten-
five relevant statutory factors, the IJ concluded tional and for the purpose of extracting infor-
that Majd did not have a well-founded fear of mation, did not rise to the level of severe pain
future persecution. or suffering. Majd was held for only a short
time, and although he was not treated particu-
The record fully supports the IJ’s determi- larly well, it cannot be said that roughing an
nation regarding Majd’s ineligibilityfor asylum individual up and questioning him about his
and witholding of removal, and Majd points to work, family, and political affiliations amounts
no evidence that compels any contrary conclu- to torture.
sion. Indeed, every piece of evidence pre-
sented by Majd indicates that he and his family Similarly, the Israeli soldiers were certainly
have been the victims of circumstance, not the intending to harm Majd when they shot at him
special targets of brutality. As another circuit outside the bank. They did not so intend,
stated with regard to a region living under however, with a discriminatory purpose or a
disorder similar to that existing in the West goal of extracting information or a confession
Bank, “[t]he general political upheaval that has from Majd, but rather because they were try-
been the unfortunate reality in Gaza is obvi- ing to halt his escape. Thus, Majd’s claim for
ously threatening for those who live there, but relief under CAT fails.
such conditions in and of themselves do not
merit asylum.” Al-Fara, 404 F.3d at 742. Ac- V.
cordingly, we have no basis to question the Majd contends, in addition, that he qualifies
IJ’s denial of asylum and withholding of re- as a refugee pursuant to the 1951 Convention
moval. Relating to the Status of Refugees (the “1951
Convention”) and attendant United Nations
B. protocol. On that basis, he asserts that the
With regard to Majd’s claim for relief under denial of his request for relief contravenes the
CAT, the IJ found that none of the harm done Convention. He further argues that the hand-
to Majd constituted “severe pain or suffering ling of Palestinian asylum claims such as his
. . . intentionally inflicted [upon him] for such violates the ABC Settlement Agreement, which
purposes as obtaining from him . . . or a third arose out of a class action lawsuit by immi-
person information or a confession, punishing grants from El Salvador and Guatemala chal-
him . . . for an act he . . . or a third person has lenging the manner in which United States
committed or is suspected of having commit- immigration authorities processed asylum
ted, or intimidating or coercing him . . . or a claims filed under § 208(a) of the INA. See
third person, or for any reason based on dis- Am. Baptist Churches v. Thornburgh, 760 F.
crimination of any kind . . . .” 8 C.F.R. § Supp. 796, 799 (N.D. Cal. 1991). Both of
208.18(a)(1) (2000) (emphasis added). these claims are meritless.
Again, Majd has brought forth no evidence As the Third Circuit has explained in detail,
that compels us to reverse the IJ. Most of the
suffering he described was inflicted without Petitioner’s claim that he qualifies as a ref-
any specific intent on the part of the Israeli ugee pursuant to the 1951 Convention and
forces in the West Bank. Additionally, on the the 2002 interpretations of the United Na-
two occasions when Majd was detained, the tions High Commissioner for Refugees
6
made thereto is without merit. The United
States is a signatory to the 1967 United Na-
tions Protocol Relating to the Status of
Refugees (“1967 Protocol”), which incor-
porated the 1951 Convention. The Attor-
ney General implemented regulations to
comply with its terms. In 1980, Congress
amended the INA through passing the Ref-
ugee Act, which brought the domestic laws
of the United States into conformity with
its treaty obligations under the 1967 Proto-
col. The 1967 Protocol is not self-execut-
ing, nor does it confer any rights beyond
those granted by implementing domestic
legislation. Accordingly, [p]etitioner can-
not assert rights beyond those contained in
the INA and its amendments.
Al-Fara, 404 F.3d at 742-43 (internal citations
omitted). We find the reasoning of the Third
Circuit persuasive and adopt it here.
The ABC Settlement Agreement arose out
of a class action lawsuit by immigrants from El
Salvador and Guatemala challenging the man-
ner in which United States immigration au-
thorities processed asylum claims filed under §
208(a) of the INA. See Am. Baptist Churches
v. Thornburgh, 760 F. Supp. 796, 799 (N.D.
Cal. 1991). The agreement entitles class
members to new proceedings before the immi-
gration authorities if certain conditions are
met, but it specifies that the class includes only
“all Salvadorans in the United States as of
September 19, 1990,” and “all Guatemalans in
the United States as of October 1, 1990.” Id.
Because Majd is not a member of the class, he
cannot assert rights under the agreement.
The petition for review is accordingly
DENIED.
7