Sulaiman v. Gonzales

United States Court of Appeals
For the First Circuit

No. 04-2734

ADNAN SULAIMAN,

Petitioner,

v.

ALBERTO GONZALES, Attorney General,

Respondent.

PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS

Before

Boudin, Chief Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.

Edward J. Bailey on brief for petitioner.
Jimmy Rodriguez, Trial Attorney, United States Department of
Justice, Environment and Natural Resources Division, Peter D.
Keisler, Assistant Attorney General, Civil Division, and Linda S.
Wernery, Assistant Director, Office of Immigration Litigation, on
brief for respondent.

November 21, 2005
 STAHL, Senior Circuit Judge. This appeal involves a

Kurdish Syrian who came to the United States 17 years ago and has

been living here illegally ever since. Notwithstanding his long

residence in the United States, the Department of Homeland Security

is endeavoring to remove him to Syria. Finding no error by the

Board of Immigration Appeals in rejecting his claim for relief from

removal, we deny his petition for review.

I. Background

The IJ who heard Adnan Sulaiman's case found his

testimony to be credible. We therefore take his assertions before

the IJ as true in setting forth the facts of the case.

Sulaiman is a 57-year-old Syrian citizen of Kurdish

descent. While he was growing up and throughout his adult life in

Syria, he suffered discrimination at the hands of the ruling Ba'ath

Party, which suppresses Kurdish nationalism among Syrian Kurds.

The Ba'athists denied Sulaiman the opportunity to get a public

education and, to some degree, frustrated his efforts to find

employment. Sulaiman did obtain a privately financed education,

and went on to find work for a Syrian company. While at that job

he was harassed by government security forces who attempted to

coerce him into hiring Ba'ath party members to positions in the

company, and who tried to extract benefits -- use of company cars,

free gasoline, and the like -- by threatening Sulaiman with harm if

he did not comply. At some point in 1987, he was detained and

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harassed for a full day by government security forces, which the IJ

acknowledged must have been a "fearful experience" for him. After

he was released from that detention he experienced increased

harassment from security forces. He received this treatment

because of his Kurdish origin and his membership in the Kurdish

Democratic Party, a separatist organization disfavored by the

Syrian government because it advocates independence for Syrian

Kurds.

As a result of the harassment, Sulaiman decided to leave

Syria. He obtained a tourist visa from the U.S. embassy in Syria

and in June 1988 came to the United States. His visa soon expired,

but Sulaiman stayed on. Many years later, he was located by what

was then the Immigration and Naturalization Service (INS) during a

round-up of potentially removable aliens that the INS conducted in

the days following the attacks of September 11, 2001. The INS, now

the Department of Homeland Security (DHS), began removal

proceedings. Sulaiman requested withholding of removal and relief

under the Convention Against Torture (CAT).

The Immigration Judge (IJ) who heard his case noted that

Sulaiman would not be eligible for asylum because, with few

exceptions, an application for asylum is barred if not filed within

one year of a petitioner's arrival in the United States, and

Sulaiman did not allege that his case met any of the exceptions.

The IJ therefore concluded that the only issue facing it was

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whether Sulaiman had demonstrated a "clear probability" that he

would suffer from either persecution (meriting withholding of

removal) or torture (meriting relief under the CAT) if he returned

to Syria. While expressing sympathy for the petitioner, given the

length of time he had resided in the United States, the IJ found

that the requirements for relief had not been met. Sulaiman, the

IJ noted, suffered no physical harm at the hands of government

security forces while in Syria, and his stories of harassment were

not sufficient to demonstrate that it was more likely than not that

he would suffer persecution or torture upon his return. The IJ

granted voluntary departure.

Sulaiman timely appealed to the Board of Immigration

Appeals, which adopted the opinion of the IJ and affirmed her

decision. Sulaiman now appeals the decision of the Board.

II. Analysis

Sulaiman raises a number of issues in his petition. He

contends that the IJ should have made a finding as to whether

Sulaiman experienced past persecution, should have admitted and

considered certain evidence, should have applied a different legal

standard, and in any event reached the wrong conclusion on the

facts presented. We review each claim in turn, finding no error.

We note at the outset that, while we normally review the decisions

of the Board, not of the IJ, the Board here adopted the opinion of

the IJ. We therefore review the opinion of the IJ as if it were

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that of Board. Njenga v. Ashcroft, 386 F.3d 335, 338 (1st Cir.

2004).

A. Sufficiency of the IJ's Opinion

Sulaiman faults the IJ for failing to make specific

findings as to whether or not he suffered from past persecution.

He also complains that the IJ did not thoroughly consider the State

Department country report for Syria. These claims go to the

sufficiency of the IJ's opinion to support meaningful review,

rather than to the procedures the IJ employed at the hearing or to

the merits of the decision. On a challenge to the sufficiency of

an opinion, the usual remedy is remand, which we will order "if the

BIA's opinion fails to state with sufficient particularity and

clarity the reasons" for denying relief. Xu v. Gonzales, 424 F.3d

45, 49 (1st Cir. 2005) (quoting Halo v. Gonzales, 419 F.3d 15, 18

(1st Cir. 2005)).

Sulaiman cites El Moraghy v. Ashcroft, 331 F.3d 195, 203

(1st Cir. 2003), in support of his argument that the IJ should have

made a specific finding as to whether he suffered from past

persecution. El Moraghy indicates that a finding with respect to

past persecution may be necessary under some circumstances. It did

not by any means create a per se rule requiring an explicit holding

as to every factor that an IJ might find relevant in making a

determination. This is because, "[w]hen considering whether the

clarity of an administrative decision is sufficient to support our

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review, . . . we are not . . . oblivious of the record on which it

is based." Xu, 424 F.3d at 49. An IJ is obligated to offer more

explanation when the record suggests strong arguments for the

petitioner that the IJ has not considered, see, e.g., Halo, 419

F.3d 15; Gailius v. INS, 147 F.3d 34 (1st Cir. 1998), but that is

not the case here.

The IJ, it is true, did not use the phrase "past

persecution." It is nevertheless evident from her opinion that she

found no indication that Sulaiman's experiences in Syria amounted

to persecution under the withholding of removal statute. The IJ's

opinion indicates with clarity that she considered Sulaiman's

testimony as to his experiences in Syria and concluded that they

did not justify a finding that it was more likely than not that he

would be persecuted if he returned to Syria. We do not require an

IJ to intone any magic words before we will review her

determination. See Morales v. INS, 208 F.3d 323, 328 (1st Cir.

2000).

Sulaiman also claims that the IJ did not sufficiently

consider the Department of State country report that Sulaiman

submitted into evidence, but this claim also fails for similar

reasons. The IJ asserted, though in a bare fashion, that she had

considered the country report: "The Court," she said, "has

considered the Department of State reports put in by the

Government." Although that is the only mention of the report in

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the opinion, it is enough to satisfy a reviewing court that the IJ

did in fact consider it. Had the contents of the report rendered

the IJ's opinion sufficiently unclear by casting doubt on the

reasoning of her decision, we would remand for clarification. But

nothing in the State Department report suggests that Sulaiman would

be more likely than not to be persecuted or tortured if he returned

to Syria, and we therefore require no more detailed explanation

from the IJ than she offered.

B. Exclusion of Evidence

Sulaiman offered certain documents into evidence one day

late, and the court chose not to admit the evidence. We review

procedural decisions at the hearing level for abuse of discretion,

Galicia v. Ashcroft, 396 F.3d 446, 447-48 (1st Cir. 2005), and we

find no such abuse here.1 The documents were untimely submitted.

What is more, the IJ examined the proffered material, and noted

that none of it was probative of Sulaiman's claim. That being the

case, she found there was no good reason to make an exception to

the filing deadline in Sulaiman's case. Her considered procedural

decision was not an abuse of discretion.

1
The government contends that Sulaiman waived the argument
that the IJ abused her discretion with respect to the late evidence
because he did not raise it before the Board. We see no need to
decide whether there was waiver, however, because the argument is
clearly meritless.

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C. Applicable Legal Standard

Sulaiman contends that the IJ applied the wrong standard

in reviewing his claim under the CAT, because the IJ said that, in

order to grant relief, she needed to find a "clear probability"

that he would be tortured if he returned to Syria. This, however,

is the correct standard. "Clear probability" simply means "more

likely than not," which is the correct standard for the IJ to apply

to the relevant claims. See INS v. Stevic, 467 U.S. 407, 429-30

(1984). Sulaiman's contention is meritless.

D. The Merits

We review the determinations of the Board or an IJ under

a deferential standard, which permits us to reverse "only if the

petitioner's evidence would compel a reasonable factfinder to

conclude that relief was warranted." Xu, 424 F.3d at 48 (quoting

Settenda v. Ashcroft, 377 F.3d 89, 93 (1st Cir. 2004)).

A petitioner's burden of proof for withholding of removal

and relief under the CAT is high: the petitioner has to show that

it is more likely than not that he will be persecuted or tortured

in his country of origin. Sulaiman's account of his life in Syria,

which the IJ did deem credible, is an account of significant

harassment, but the IJ could reasonably have concluded that the

events he recounted did not rise to the level of persecution

required by the withholding of removal statute, and there is no

indication of specific threats against him that would give rise to

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an inference that he would probably suffer persecution or torture

if he returned to Syria. Because the IJ did not act unreasonably

in finding that Sulaiman had not met his burden of proof, we affirm

her decision.

III. Conclusion

For the foregoing reasons, we deny Sulaiman's petition

for review and affirm the decision of the Board.

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