Khalil v. Ashcroft

          United States Court of Appeals
                       For the First Circuit


No. 02-2344

                       SAID GUIRGUIS KHALIL,

                            Petitioner,

                                 v.

                  JOHN ASHCROFT, Attorney General,

                            Respondent.


               PETITION FOR REVIEW OF AN ORDER OF THE

                    BOARD OF IMMIGRATION APPEALS


                               Before

              Lynch, Lipez, and Howard, Circuit Judges.


     Christopher W. Drinan was on brief for petitioner.

     Robert D. McCallum, Jr., Assistant Attorney General, Civil
Division, Douglas E. Ginsburg, Senior Litigation Counsel, Office of
Immigration Litigation, and Linda S. Wernery, Senior Litigation
Counsel, Office of Immigration Litigation, were on brief for
respondent.



                           July 24, 2003
           LYNCH,      Circuit    Judge.          Said    Guirguis     Khalil   is   an

Egyptian native and citizen who entered the United States in 1996.

He applied for asylum in 1998 based on both past persecution and a

fear of future persecution, arising from his membership in the

Coptic church. An Immigration Judge found that Khalil did not have

a well-founded fear of persecution and denied his request for

asylum   and   withholding       of   deportation,         but   granted   voluntary

departure.       The    Board    of     Immigration        Appeals     affirmed      the

Immigration Judge's decision.              Khalil petitions for review of the

denial of asylum.       We affirm the denial.

                                      I.    Facts

             Khalil entered the United States on a B-1 visa on April

25, 1996 at the age of 42.            His wife and two children remained in

Egypt.   Khalil overstayed his six month visa.                        He applied for

asylum on March 30, 1998.         On May 18, Khalil was interviewed by an

asylum officer, who found him credible but concluded that the harms

he had suffered were not "on account" of one of the five protected

grounds and that the alleged government misconduct did not rise to

the level of persecution.         An order to show cause was issued on May

20.   In his removal proceedings, Khalil conceded deportability but

sought   asylum     and   withholding            of   removal,   or    alternatively

voluntary departure, based on religion, membership in a particular

social group, and political opinion.                     Khalil sought asylum "to

escape the persecution of Muslim fundamentalists in Egypt because


                                           -2-
[he is] a Coptic Christian."              He stated that if he were "to return

to Egypt after having lived in the United States, [he] would be

viewed      as    having    adopted      Western      ideas       and    as   someone       who

promulgates Western ideology -- for which [he] would become [the]

victim       [of]      even         greater     persecution             by    the     Muslim

fundamentalists."          He also said that fundamentalists would demand

that he pay "protection money."

                 Khalil's case was heard before an Immigration Judge (IJ)

on September 14, 1998 and again on January 6, 1999.                                   Khalil

testified that he is a structural engineer.                             As devout Coptic

Christians, his family in Cairo was subjected to abuse by Muslims,

including being labeled "kafirs" or infidels.                            During his first

year   in    college       in   Alexandria,         Khalil    was       beaten   by   Muslim

neighbors for touching a copy of the Koran.                       According to Khalil,

the beating left a scar on his face and broke one of his teeth.                              He

then   transferred         to   a    college    located      in     Cairo.       There      his

graduation was delayed six months because he repeatedly failed a

required course in Islamic Law.                His academic record was otherwise

very good, and only Coptic Christian students failed the course, so

Khalil attributed his failure to discrimination against Christians.

After intervention by the dean, Khalil passed the course.

                 Khalil recounted that, after graduating from college, he

entered the military for his five years' required service and

suffered discrimination              there.         His   request       for   time    off    to


                                              -3-
celebrate Easter was denied, despite the fact that leave for

religious holidays was legally guaranteed, and his commanding

officer detained Khalil in prison for a day for making the request.

In the Sinai peninsula, Khalil's unit was assigned to remove land

mines, and, even though rotation was normally required for land

mine removal units, Khalil's unit (which was composed largely of

Christians) was never rotated.

          Following his military service, Khalil worked for a

government-owned engineering firm for two years.          There he was

consistently assigned inferior work and sent to an undesirable

location in southern Egypt.      As a result, Khalil left Egypt and

worked for two years in Saudi Arabia.           In 1985, he returned to

Egypt and started his own construction business. He built and sold

apartments in Cairo. While his tenants were initially a mixture of

Christians     and   Muslims,   over     time   his   buildings   became

predominantly Christian.    Khalil estimated that approximately 90%

of his tenants were Christians.        In 1991, he sold an apartment to

a patriarch of the Coptic church.

             Khalil testified that this sale touched off a campaign

against him.    Two occupants of his building, members of the Muslim

Brotherhood, told him that he would no longer be allowed to build

because he was "creating an environment where Christians would

gather and assemble."      He was denied a building license by the

government.     At the same time, twenty-eight of Khalil's tenants


                                  -4-
brought   civil     complaints   against   him,   all    of   which   were

subsequently dismissed.1     The record is silent as to the religious

affiliation of those tenants.     Because he could no longer build in

Cairo, Khalil sold his property there and tried to build in a town

in northwestern Egypt, but found that there too he could not obtain

a license to build on land that he had purchased.        From 1991 until

1996, Khalil tried without success to obtain a building permit for

his new land.     He lived off the proceeds from the sale of his house

and his land in Cairo.

          Frustrated by his inability to pursue his livelihood,

Khalil left Egypt in 1996 for the United States.         Khalil admitted

to the IJ that his purpose was "to come here and start a new life,"

because he was unable to earn a living in Egypt.        When the IJ asked

Khalil if his reasons for coming were economic, he responded "It's

not economic, sir, I [was] prevent[ed] from doing my job.         Anybody

prevent[ed] in this country from doing his job, how can he live[?]

[I was] fired from my job for five years but I can't continue."

Khalil also told the IJ that his wife and children had joined him

in the United States in the last two weeks, and that, even though

they had arrived on visitor visas, Khalil intended that they would

stay in the United States with him after the expiration of those

visas.


     1
        During his asylum assessment interview, Khalil told the
asylum officer that the suits were dismissed only when Khalil
promised "never to build again."

                                   -5-
             One of Khalil's siblings lives in the United States; four

remain in Cairo.       Of those four, none has been prevented from

pursuing a career.     One brother is a general manager for Mercedes.

A   second   brother   is    a   doctor.    A   third   brother   works   as   a

subcontractor.     A sister works as an English teacher.           During his

hearing, Khalil said that an uncle who farms was buried up to his

chest by people who feared he would construct a church on his

lands.   Other than that uncorroborated incident, Khalil did not

present evidence that any of his relatives had suffered at the

hands of fundamentalists.         Indeed, they were able to pursue their

careers relatively unhindered.

             In addition to his testimony, Khalil produced voluminous

documentation of discrimination against and persecution of Coptic

Christians in Egypt.        Cf. El Moraghy v. Ashcroft, 331 F.3d 195, 201

(1st Cir. 2003) (discussing persecution of Coptic Christians in

Egypt). Khalil also submitted an affidavit from Denis J. Sullivan,

a professor of Middle Eastern politics at Northeastern University

who specializes in Egypt.          Sullivan stated "it is clear that Mr.

Khalil is in serious danger of being a target for more of the same

[economic boycotting and public denunciation] as well as for more

intense actions, including physical persecution," should he return

to Egypt.     Sullivan based his conclusion on the fact that Khalil

had been publicly labeled a "kafir" by militants, and on government

complicity in interfering with Khalil's livelihood. He pointed out


                                      -6-
that fundamentalist Muslims were as active in urban areas, such as

Cairo, as in the rural south.        "Wealthy and/or 'high profile'

Copts" were likely to be targeted by fundamentalists, according to

Sullivan.

             The IJ issued an opinion on April 22, 1999.   He surveyed

the documentary and testimonial evidence presented by Khalil.      He

concluded:

            The respondent in these proceedings has not submitted any
            evidence which I find would subject him to persecution or
            having a well-founded fear of persecution on account of
            his race, religion, nationality, membership in a
            particular social group, or political opinion.
            . . . .
                    A reasonable person similarly situated as the
            respondent, based on this record, would not fear
            persecution, [or] have a well-founded fear of persecution
            if returned to Egypt.

The IJ focused on Khalil's siblings' ability to pursue their

careers and on the unclear relationship between Khalil's religion

and the denial of his building permit.    He denied Khalil's request

for asylum and withholding of removal, but granted voluntary

departure.

             Khalil timely appealed the IJ's decision to the Board of

Immigration Appeals (BIA). The BIA upheld the decision in an order

dated September 23, 2002.    It rejected Khalil's contention that he

was denied a fair hearing, finding that there was nothing to

indicate that the IJ was biased or declined to consider evidence.

It found that Sullivan's affidavit did not bear on the question of

past persecution, and concluded Khalil "failed to meet his burden

                                  -7-
to establish past persecution, and a well-founded fear or clear

probability of persecution in Egypt on account of a protected

ground[]."     The BIA upheld the IJ's grant of voluntary departure.

The BIA also denied Khalil's motion to remand to allow him to apply

for protection under the Convention Against Torture.

             Khalil petitions for review of the BIA's order, asserting

that the decision was not supported by substantial evidence and

violates due process of law.2        We affirm the BIA's decision.3

                               II.   Analysis

             The BIA's determination "must be upheld if supported by

reasonable, substantial, and probative evidence on the record

considered as a whole."     INS v. Elias-Zacarias, 502 U.S. 478, 481

(1992) (internal quotation omitted).         "It can be reversed only if

the evidence presented by [petitioner] was such that a reasonable

factfinder would have to conclude that the requisite fear of

persecution existed."     Id.; accord Albathani v. INS, 318 F.3d 365,

372 (1st Cir. 2003).

           The    petitioner    bears      the   burden   of   establishing

eligibility for asylum by proving that he qualifies as a refugee.

8 U.S.C. § 1158(b)(1) (2002); 8 C.F.R. § 208.13(a).            A petitioner



     2
         Khalil does not appeal the denial of his motion to remand.
     3
        The Attorney General has been substituted for the
Immigration and Naturalization Service as respondent. See Fesseha
v. Ashcroft, 333 F.3d 13, 16 n.5 (1st Cir. 2003); 8 U.S.C. §
1252(b)(3)(A) (2000).

                                     -8-
can do so either: "(1) by demonstrating past persecution, thus

creating a presumption of a well-founded fear of persecution; or

(2) by demonstrating a well-founded fear of persecution."                                 Yatskin

v.   INS,   255    F.3d       5,    9     (1st    Cir.    2001)    (citing       8     C.F.R.     §

208.13(b)).         To    prove           past    persecution,       an     applicant         must

demonstrate that he has suffered persecution on one of the five

enumerated grounds: race, religion, nationality, membership in a

particular    social          group,       or    political     opinion.          8     C.F.R.     §

208.13(b)(1).            To    establish          a    well-founded       fear       of    future

persecution, applicants can offer specific proof, or they can claim

the benefit of a regulatory presumption based on proof of past

persecution.        Guzman v. INS, 327 F.3d 11, 15 (1st Cir. 2003)

(citing 8 C.F.R. § 208.13(b)(1)); Velasquez v. Ashcroft, 316 F.3d

31, 35 (1st Cir. 2002) (same).

            In     order       to         demonstrate      a   well-founded            fear      of

persecution by direct evidence, a petitioner must satisfy both an

objective and a subjective test.                          Velasquez, 316 F.3d at 35.

"Under the subjective requirement, a petitioner must prove that his

fear is genuine, while the objective component requires showing by

'credible,    direct          and    specific          evidence'     that    this         fear   is

reasonable." Id. (citation omitted) (quoting Ravindran v. INS, 976

F.2d 754, 758 (1st Cir. 1992)).

            We    hold        that      the      BIA's    decision    was     supported          by

substantial       evidence          for    the     same    reasons    that       the      initial


                                                 -9-
interviewing officer concluded that Khalil was ineligible for

asylum: Khalil did not establish that the harms he described --

denial of building permits and civil suits brought by his tenants

-- were "on account of" religion, and, even if we assume in his

favor that they were, they do not rise to the level of persecution.

Nothing in the record compels the opposite conclusion.

           Khalil   bears     the   burden    to    show   that   the    alleged

persecution took place on account of his religion.                Because the

motive for the persecution is critical, a petitioner "must provide

some evidence of it, direct or circumstantial."               Elias-Zacarias,

502 U.S. at 483.        The denial of the building permits is the

lynchpin of Khalil's asylum claim.          Yet, Khalil's theory as to why

they were denied is just that: a theory.            He presents no evidence

other than his own speculation to link the denial to his faith.                As

for the civil suits, as the IJ points out, the majority of his

tenants at the time were fellow Christians.

           Even if we assume dubitante in Khalil's favor that these

acts did occur on account of his religion, they do not compel a

finding that Khalil was persecuted.          "To qualify as persecution, a

person's experience must rise above unpleasantness, harassment, and

even basic suffering."       Nelson v. INS, 232 F.3d 258, 263 (1st Cir.

2000).    Further, Khalil's assertion that he was beaten over 25

years    ago,   while   in   his    first    year    of    college,     is   both

uncorroborated and -- by his own telling -- an isolated incident.


                                    -10-
The record does not compel the finding that Khalil suffered past

persecution.

           In determining whether an applicant has a well-founded

fear of future persecution, we "narrow the relevant inquiry to

whether a reasonable person in the asylum applicant's circumstances

would fear persecution on account of a statutorily protected

ground."   Aguilar-Solis v. INS, 168 F.3d 565, 572 (1st Cir. 1999).

Here, the IJ correctly noted the experience of Khalil's siblings in

Cairo -- all of whom appear to be the kind of wealthy and/or high

profile    Coptic   Christians   described   by   Professor    Sullivan.

According to Khalil, his family members all suffered the indignity

of being publicly called "kafirs."         Yet none of them has been

prevented from pursuing his or her career of choice, let alone

suffering the type of harm necessary to establish persecution.

Again, the evidence does not compel the conclusion that Khalil had

a well-founded fear of persecution.          The denial of asylum is

upheld.

           Khalil's    request   for     withholding   of     deportation

necessarily fails.    As the withholding of deportation standard is

more difficult to meet than the asylum standard, "a petitioner

unable to satisfy the asylum standard fails, a fortiori, to satisfy

the former."    Fesseha v. Ashcroft, 333 F.3d 13, 17 n.6 (1st Cir.

2003) (citation omitted).




                                  -11-
             Petitioner also raises a due process claim.       Khalil

argues that the BIA's decision does not "reflect the consideration

of all relevant and probative evidence produced by the petitioner."

Specifically, Khalil objects to the structure of the IJ's decision,

which he characterizes as lacking any real analysis, and to the

IJ's supposed disregard of the Sullivan affidavit.         This claim

largely repeats Khalil's substantial evidence argument and lacks

any merit.    Our review of the record does not reveal any indication

that the IJ ignored substantial evidence in this case.      An IJ need

not discuss each piece of evidence.     Morales v. INS, 208 F.3d 323,

328 (1st Cir. 2000).     In this case, moreover, both the IJ and the

BIA decision expressly discuss Sullivan's affidavit.

                                 III.

             The decision of the BIA is affirmed.   The BIA's grant of

voluntary departure is reinstated.      See Yatskin, 255 F.3d at 11.




                                 -12-