Morgan v. Holder

Decision Date11 February 2011
Docket NumberNo. 09–2632.,09–2632.
PartiesMourcous Morgan MORGAN et al., Petitioners,v.Eric H. HOLDER, Jr., Attorney General, Respondent.
CourtU.S. Court of Appeals — First Circuit

OPINION TEXT STARTS HERE

Saher J. Macarius, with whom Audrey Botros and Law Offices of Saher J. Macarius were on brief, for petitioners.

Tony West, Assistant Attorney General, Civil Division, United States Department of Justice, with whom Anthony J. Messuri, Trial Attorney, Office of Immigration Litigation, and J. Jocelyn Lopez Wright, Senior Litigation Counsel, Office of Immigration Litigation, were on brief, for respondent.Before LIPEZ, SELYA and HOWARD, Circuit Judges.SELYA, Circuit Judge.

The petitioner, Mourcous Morgan Morgan, is an Egyptian national. Alleging that he fears persecution on account of his Coptic Christian faith, he seeks judicial review of a final order of the Board of Immigration Appeals (BIA), which upheld an adverse decision by an immigration judge (IJ). At the same time, he seeks judicial review of the BIA's denial of his motion to remand. After careful consideration, we deny the petition in all particulars.

Morgan entered the United States on September 23, 1998, on a non-immigrant visa authorizing him to remain for one month. He over-stayed and, in February of 1999, applied for asylum.1

After an asylum officer interviewed Morgan and declared him ineligible for relief, the government instituted removal proceedings. Morgan conceded removability and cross-applied for asylum, withholding of removal, and protection under Article III of the United Nations Convention Against Torture (CAT).

At an ensuing hearing, Morgan testified that he had been mistreated in his homeland on account of his Coptic Christian faith. He said that, in the summer of 1992, children whom he was escorting to church were twice taunted and stoned by Muslim youths. A year later, he and several other parishioners undertook a surreptitious and illegal expansion of the church facilities. When a building inspector discovered the work, Morgan and his compatriots were arrested and spent a night in jail. Some time after his release, he refused to allow a Muslim man to enter the church and the man cut him with a bottle. On the evening of December 31, 1996, Morgan witnessed a water balloon strike a church member. Morgan acknowledged, however, that it was customary to toss water balloons on New Year's Eve.

Morgan's tale continued. He testified that, in April of 1998, he persuaded a Coptic Christian friend to break off her romance with a Muslim man. Angered by Morgan's intervention, the man threatened him. Soon thereafter, a group of men (ostensibly friends of the jilted suitor) accosted Morgan and assaulted him. When more threats followed, Morgan fled to the United States.

Morgan also related some second-hand information about events allegedly occurring in Egypt after his departure. His father had been struck by a speeding car, and Morgan alleged that the spurned suitor had taken credit for this episode. Morgan further alleged that the suitor made dire predications about Morgan's fate should he (Morgan) return to Egypt.

At the conclusion of the hearing, the IJ considered Morgan's testimony and reviewed copious documentary evidence describing country conditions in Egypt. She ruled that Morgan had failed to carry his burden of proof on any of his claims for relief. Accordingly, the IJ ordered his removal.

Morgan appealed, and the BIA affirmed without opinion. Morgan then petitioned for judicial review. On October 16, 2002, we dismissed the petition as untimely. Morgan v. INS, No. 02–2117 (1st Cir. Oct. 16, 2002) (unpublished order).

One week later, Morgan filed a motion to reopen with the BIA, alleging changed circumstances. The BIA denied the motion as failing to identify new and previously unavailable evidence of changed circumstances. Morgan renewed his motion on July 7, 2005, attaching numerous accounts of hardships suffered in contemporary Egypt by the Coptic Christian population, accounts of recent incidents involving members of Morgan's family, and assertions that threats had been made against his life. The BIA granted the motion and returned the case to the immigration court.

On remand before a different IJ, Morgan relied upon the evidence that he had proffered to the BIA, supplemented by his account of certain events involving relatives residing in Egypt. He claimed that, in 2004, his brother Magdhin reported to the police that four people had obstructed his car. In speaking with the police, Magdhin did not characterize his assailants as “Muslim extremists”; in a later telephone conversation with Morgan, however, Magdhin did characterize them this way. Later that year, the wife of Morgan's brother-in-law was abducted by five armed men. The brother-in-law believed that the kidnaping smacked of faith-based hostility.

Morgan further testified that his two other brothers, Michel and Michael, were attacked by five persons in early 2005. Michael sustained bruises. He reported the incident to the police, who went to the homes of the main suspects and left summonses with their parents. Around this time, one of Morgan's brothers received a mailing from an organization called “The Son of Mohamed's Group” threatening the lives of Morgan and various family members.

In the end, the IJ found that Morgan had again failed to carry his burden of proof and denied relief. Morgan appealed anew to the BIA and, while his appeal was pending, moved to remand to the IJ based on her ruling in an unrelated case, namely, In re Abdelmasih, A096 265 892 (Apr. 2, 2009) (unpublished). Morgan attached to his motion the most recent country reports for Egypt, other generalized appraisals of country conditions there, and a letter from an expert, which Morgan believes analogizes his situation to that of the alien in Abdelmasih.

On November 19, 2009, the BIA affirmed the IJ's order of removal and denied Morgan's motion to remand. This timely petition for judicial review followed.

In this venue, Morgan contends that the BIA's order is flawed because the agency did not make an explicit credibility determination; that he carried his burden of proof; and that the denial of his motion to remand was an abuse of discretion. The statutory framework permits us to consider both the removal order and the denial of the motion to remand in a single proceeding. See 8 U.S.C. § 1252(b)(6). The two rulings, however, remain legally distinct. See Zeru v. Gonzales, 503 F.3d 59, 69 (1st Cir.2007).

We begin with the order of removal. Where, as here, the BIA affirms and adopts an IJ's decision yet adds its own gloss, we review the two decisions as a unit.” López Pérez v. Holder, 587 F.3d 456, 460 (1st Cir.2009).

With respect to findings of fact, our assessment is governed by the substantial evidence standard, which demands fealty to findings of fact that are supported by substantial evidence on the record as a whole. INS v. Elias–Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (citing 8 U.S.C. § 1105a(a)(4)). Thus, rejecting a factual finding is inappropriate unless the record is such as to compel a reasonable factfinder to reach a different conclusion. López de Hincapie v. Gonzales, 494 F.3d 213, 218 (1st Cir.2007); Makhoul v. Ashcroft, 387 F.3d 75, 79 (1st Cir.2004).

Morgan's lead-off argument is that the IJ should have made an explicit credibility determination. Although he suggests that a credibility determination was critical to the disposition of his claims, that suggestion finds no purchase in the record.

The lack of a credibility determination is a cause for concern only when a claim turns on the veracity of the alien. See Wan Chien Kho v. Keisler, 505 F.3d 50, 56 (1st Cir.2007). Because an alien can demonstrate eligibility for relief through his own credible testimony, see, e.g., Villa–Londono v. Holder, 600 F.3d 21, 24 (1st Cir.2010), there are circumstances in which the alien's credibility must be addressed. See Rotinsulu v. Mukasey, 515 F.3d 68, 73 n. 1 (1st Cir.2008). But a credibility determination is superfluous when the alien's testimony, even if taken at face value, is insufficient to compel an entitlement to relief. See, e.g., Makhoul, 387 F.3d at 81. This is such a case.

The IJ's denial of relief was not premised on any asserted doubts about Morgan's credibility. For aught that appears, she assumed the factual truth of Morgan's testimony, yet drew different conclusions from it than Morgan had hoped. We explain briefly.

The IJ premised her decision on Morgan's failure to carry his burden of proof. Read in context, this indicates that Morgan's factual testimony, even if fully credible, was not such as to support a favorable finding on any of his claims for relief. Having come to this conclusion, the IJ had no obligation to go further and make what would have been a gratuitous credibility determination. See Nai Qing Xu v. Gonzales, 424 F.3d 45, 48 (1st Cir.2005).

This brings us to Morgan's more global claim that the denial of asylum was not supported by substantial evidence. To be eligible for asylum, an alien bears the burden of showing that he is unwilling or unable to return to his native land due to a “well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A); see id. § 1158(b)(1)(B). An alien may demonstrate this well-founded fear directly or by means of a presumption arising from a history of past persecution.2 López Pérez, 587 F.3d at 461. Either showing must include a certain level of harm, see, e.g., Nikijuluw v. Gonzales, 427 F.3d 115, 120 (1st Cir.2005); some nexus to governmental participation, complicity, or unwillingness or inability to control the alleged persecutors, Raza v. Gonzales, 484 F.3d 125, 129 (1st Cir.2007); and a link to one of the five statutorily protected grounds, see, e.g., López de Hincapie, ...

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