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
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[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
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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
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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."
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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
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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
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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).
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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
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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.
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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).
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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.
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