Hassoun v. Holder

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT August 30, 2012

Elisabeth A. Shumaker
Clerk of Court
TAREK OMAR HASSOUN,

Petitioner,

v. No. 11-9558
(Petition for Review)
ERIC H. HOLDER, JR., United States
Attorney General,

Respondent.

ORDER AND JUDGMENT*

Before TYMKOVICH, HOLLOWAY, and MATHESON, Circuit Judges.

Petitioner Tarek Omar Hassoun, a citizen of Lebanon, petitions for review of a

final order of the Board of Immigration Appeals (BIA) denying his application for

asylum and restriction on removal under the Immigration and Nationality Act (INA),

and request for protection under the United Nations Convention Against Torture

*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
(CAT). We have jurisdiction under 8 U.S.C. § 1252(a). We deny Mr. Hassoun’s

petition.

I.

Mr. Hassoun entered the United States in 2000, as a nonimmigrant student. In

2002, he was placed in removal proceedings for failure to comply with the conditions

on his nonimmigrant status. Between 2002 and 2009, Mr. Hassoun’s removal

proceedings were stalled due to his efforts to obtain an adjustment of status. But his

two marriages to United States citizens that took place during those years both ended

in divorce, and his wives withdrew their respective applications filed on his behalf.

Mr. Hassoun eventually filed an application for asylum, restriction on removal, and

protection under the CAT.

According to Mr. Hassoun, he feared returning to Lebanon because of two

events that transpired after he left that country: (1) his conversion to Mormonism;

and (2) being perceived as pro-American for allegedly recruiting his cousin to serve

in the United States military.

As to his conversion, Mr. Hassoun admitted that it was not a problem to be a

Christian in Lebanon, but he would face problems because he converted from being a

Muslim to a Christian. “To come as a Christian to live in Lebanon, it’s not a

problem. To convert, to convert from Muslim to a Christian, that’s where it

[be]comes [] an issue for you.” Admin. R. at 295. According to Mr. Hassoun,

Hezbollah considers it an “honor to kill somebody” who undergoes such a

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conversion. Id. at 296. He acknowledged that his parents accepted his religious

conversion, but he was worried that other relatives might try to harm him.

Mr. Hassoun also testified that upon his return to Lebanon, he would be considered

“a spy,” id. at 297, because he had stayed in the United States so long.

As to the second event, Mr. Hassoun testified that his cousin was kidnapped in

Lebanon in 2004, because he had served in the United States Marine Corps.1 He said

that because of his cousin’s military service, a group “tried to . . . attack [my family],

like kill [my family], and actually two people died [in] that attack and it actually was

on the CNN. I should have just made copies.” Id. at 299. But no one in his family

was harmed; instead, the two people killed were either the radicals or innocent

bystanders. He blamed the attack on a group associated with al Qaeda, that hides in

Palestinian refugee camps during the day and sneaks out at night to “attack and kill

or do whatever they want.” Id. Mr. Hassoun said that upon his return to Lebanon, he

would be hunted down by radicals because he was “the one who [told his cousin] to

[join] the U.S. Marines.” Id. at 301. He argues that “radical Muslims will believe

that he procures Lebanese men and have them enlist in the United States armed

forces.” Pet’r Opening Br. at 15.

According to Mr. Hassoun, Hezbollah either controls or has access to

surveillance tapes at the airport, and that upon his return, he would “either be

1
Another version of the facts that emerged at the hearing was the possibility
that Mr. Hassoun’s cousin was not kidnapped, but instead deserted the military.

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kidnapped [and tortured] and never heard . . . from [] again, or be killed right away.”

Id. at 311. When asked for some examples in Lebanon of harm that had come to

Muslims who converted to Christianity, the only incident that Mr. Hassoun could

recall concerned a proselytizing nun and two converts who were murdered in the

southern part of Lebanon, where radical elements have more influence.

The Immigration Judge (IJ) denied Mr. Hassoun’s request for relief. The IJ

found that although Mr. Hassoun was credible, his uncorroborated testimony was

insufficient to establish a well-founded fear of future persecution or that he would be

tortured upon his return to Lebanon. Thus, the IJ concluded that Mr. Hassoun was

not eligible for asylum or restriction on removal, or protection under the CAT. The

IJ also found that Mr. Hassoun could relocate in northern Lebanon, where the

influence of Hezbollah and other radical groups was less profound. The BIA

affirmed the IJ’s decision.2

II.

To be eligible for a discretionary grant of asylum, Mr. Hassoun had to show

that he “suffered past persecution or has a well-founded fear of [future] persecution

on account of race, religion, nationality, membership in a particular social group, or

political opinion.” Tulengkey v. Gonzales, 425 F.3d 1277, 1280 (10th Cir. 2005)
2
A single member of the BIA affirmed the IJ’s decision in a brief order. We
therefore review the BIA’s decision, as well as those portions of the IJ’s decision
specifically incorporated by the BIA. Uanreroro v. Gonzales, 443 F.3d 1197, 1204
(10th Cir. 2006).

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(footnote omitted) (internal quotation marks omitted). “Persecution is the infliction

of suffering or harm upon those who differ (in race, religion, or political opinion) in a

way regarded as offensive, and requires more than just restrictions or threats to life

and liberty.” Id. (internal quotation marks omitted). “Even without past persecution,

[an applicant can] still qualify for asylum by establishing a well-founded fear of

future persecution.” Id. at 1281 (internal quotation marks omitted). “Such a fear

must be both subjectively genuine and objectively reasonable.” Id. Fear of

persecution is not well-founded if the applicant can avoid persecution by relocating

to another part of the country, and it would be reasonable to expect him to do so. Id.

“The showing required for [restriction on] removal is more stringent tha[n] the

showing required for asylum.” Zhi Wei Pang v. Holder, 665 F.3d 1226, 1233

(10th Cir. 2012). To be eligible for restriction on removal, “an applicant must

demonstrate that there is a clear probability of persecution because of his race,

religion, nationality, membership in a particular social group, or political opinion.”

Id. (internal quotation marks omitted). And to be eligible for protection under the

CAT, “an individual must establish that it is more likely than not that he or she would

be tortured if removed to the proposed country of removal.” Id. at 1233-34 (internal

quotation marks omitted).

We decide legal questions de novo and look to see if the agency’s findings of

fact are supported by substantial evidence. Ritonga v. Holder, 633 F.3d 971, 974

(10th Cir. 2011). “Under this standard of review, agency findings of fact are

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conclusive unless any reasonable adjudicator would be compelled to conclude to the

contrary.” Id. (internal quotation marks omitted). “In this circuit, the determination

whether an alien has demonstrated persecution is a question of fact.” Id. (ellipses

omitted) (internal quotation marks omitted). Moreover, “[n]o court shall reverse a

determination made by a trier of fact with respect to the availability of corroborating

evidence . . . unless the court finds . . . that a reasonable trier of fact is compelled to

conclude that such corroborating evidence is unavailable.” 8 U.S.C. § 1252(b)(4).

III.

In his petition for review, Mr. Hassoun argues that the BIA erred in affirming

the IJ’s decision because (1) the evidence showed that he had a well-founded fear of

future persecution; (2) the IJ should not have required any corroborating evidence;

and (3) the evidence showed that he would be tortured upon his return to Lebanon.

A. Well-founded fear of future persecution

The BIA determined that Mr. Hassoun lacked a well-founded fear of future

persecution for several reasons, all of which were discussed by the IJ and supported

by the evidence of record. “As noted by the [IJ], United States Department of State

country and religious freedom reports in the record for Lebanon do not show that the

Lebanese government will persecute [Mr. Hassoun] on account of his conversion to

the Mormon faith.” Admin. R. at 4. Further, the BIA agreed with the IJ “that the

record does not support [Mr. Hassoun’s] claim that he will be harmed by extremist

group or family members on account of his conversion.” Id. at 5. “[N]o one has

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expressed an interest in harming him.” Id. And although “Hezbollah has the ability

to act with impunity in Lebanon, the reports do not provide a reason as to why

Hezbollah might seek out individuals like [Mr. Hassoun].” Id. As to the issue

concerning his cousin, the BIA likewise determined that there was “no evidence in

the record [other than Mr. Hassoun’s testimony] to show that the Lebanese

government had attempted to harm [his] cousin or that any group is interested in

harming [Mr. Hassoun] based on the alleged perception,” id., that he assisted in his

cousin’s enlistment in the United States military. Last, the BIA agreed with the IJ

that Mr. Hassoun “did not show that it would be unreasonable for him to relocate

within Lebanon,” id., to an area where Hezbollah and other radical groups have less

influence.3

Mr. Hassoun essentially asks this court to reweigh the evidence and determine

that he made an adequate showing of a well-founded fear of future persecution. This

we cannot do. “It is not our prerogative to reweigh the evidence. . . . We only

determine whether a reasonable factfinder could find that [the applicant] did not have

a reasonable fear of future persecution. Indeed, we only reverse that finding if a

‘reasonable adjudicator would be compelled to conclude to the contrary.’” Sidabutar

3
Mr. Hassoun never addressed his ability to relocate, which would be an
independent basis upon which we could affirm the BIA’s decision. See Tulengkey v.
Gonzales, 425 F.3d 1277, 1280 (10th Cir. 2005) (holding that fear of persecution is
not well-founded if the applicant can avoid persecution by relocating to another part
of the country, and it would be reasonable to expect him to do so).

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v. Gonzales, 503 F.3d 1116, 1125 (10th Cir. 2007) (internal quotation marks

omitted). Mr. Hassoun’s evidence does not meet this test.

B. The lack of corroborating evidence

We acknowledge that an applicant’s testimony “may be sufficient to sustain

[his] burden [of proof] without corroboration, but only if the applicant satisfies the

trier of fact that [his] testimony is credible, is persuasive, and refers to specific facts

sufficient to demonstrate that [he] is a refugee.” 8 U.S.C. § 1158(b)(1)(B)(ii).

Moreover, “[w]here the trier of fact determines that the applicant should provide

evidence that corroborates otherwise credible testimony, such evidence must be

provided unless the applicant does not have the evidence and cannot reasonably

obtain [it].” Id.

Mr. Hassoun argued to the BIA that he was never provided the opportunity at

his hearing to explain the lack of any corroborating evidence. The BIA rejected this

argument, citing several instances in which the IJ asked Mr. Hassoun for

corroborating evidence. Admin. R. at 5, n.2. In this court, Mr. Hassoun reprises the

same argument and adds for the first time that his failure to provide corroborating

evidence was occasioned by the “[inability] to communicate with his family

about . . . independent evidence in Lebanon concerning his fear that the Hezbollah

would seek him out because his family was also in danger.” Pet’r Opening Br. at 28.

On numerous occasions throughout the hearing, the IJ referred to the relevant

country reports that were in evidence, and pointed out to Mr. Hassoun that his beliefs

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were not supported by those reports. And on just as many occasions, the IJ offered

Mr. Hassoun the opportunity to provide any examples of harm that had come to

persons in his circumstances in Lebanon. Other than the instance of the proselytizing

nun, Mr. Hassoun had no evidence to corroborate his beliefs. As such, there is no

merit to the argument that “the IJ failed to give [Mr. Hassoun] an opportunity to

provide independent corroborative evidence. . . .” Pet’r Opening Br. at 29. We also

reject Mr. Hassoun’s argument that he was unable to communicate with his family to

obtain any corroborating evidence; instead, the record establishes that Mr. Hassoun

was in regular contact with his family throughout his stay in the United States.

Under 8 U.S.C. § 1252(b)(4), which governs the standard of review as to the

agency’s determination regarding the availability of corroborating evidence, this

court cannot reverse the IJ’s determination “with respect to the availability of

corroborating evidence . . . unless [this] court finds . . . that a reasonable trier of fact

is compelled to conclude that such corroborating evidence is unavailable.” No

reasonable trier of fact would be compelled to conclude that corroborating evidence

was unavailable to Mr. Hassoun.

C. Relief under the CAT

The BIA “agree[ed] with the [IJ] that [Mr. Hassoun] has not shown that he

faces a sufficient probability of ‘torture’ by or with the consent or acquiescence of a

public official or other person acting in an official capacity for the Lebanese

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government to establish his eligibility for protection under the [CAT].” Admin. R.

at 5-6.

Mr. Hassoun challenges this conclusion on the basis of an excerpt from a U.S.

State Department report on human rights in Lebanon, which states: “The law does

not specifically prohibit torture. Security forces abused detainees and in some

instances used torture. Human rights groups, including Amnesty International (AI)

and Human Rights Watch (HRW), reported that torture was common.” Id. at 405.

This argument overlooks the fact that there was no objective evidence that

Mr. Hassoun would be detained by security forces upon his return to Lebanon.

Also, Mr. Hassoun provided no evidence that his risks of torture and persecution

differ, and he relied on the same evidence to support all of his claims. “Because

substantial evidence supports the BIA’s finding that it is unlikely [Mr. Hassoun]

would face future persecution if returned to [Lebanon], it is likewise against the odds

that [he] would be tortured by the government or a proxy for the government.”

Ritonga, 633 F.3d at 979 (internal quotation marks omitted). We affirm the BIA’s

denial of relief under the CAT.

The petition for review is DENIED.

Entered for the Court

William J. Holloway, Jr.
Circuit Judge

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