Agha v. Holder, 12-3640
| Decision Date | 19 February 2014 |
| Docket Number | No. 12-3640,12-3640 |
| Parties | Walled Mazin Agha; Gina Magigi Agha Petitioners v. Eric H. Holder, Jr., Attorney General of the United States Respondent |
| Court | U.S. Court of Appeals — Eighth Circuit |
Petition for Review of an Order of the
Board of Immigration Appeals
Before WOLLMAN and SHEPHERD, Circuit Judges, and WEBBER,1 District Judge.
Walled Mazin Agha (Agha) and his wife, Gina Magigi Agha,2 petition for review of an order of the Board of Immigration Appeals (BIA), which affirmed the denial of Agha's application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). We deny the petition.
Agha, a man of Palestinian origin, was born in Lebanon in 1973 after his family fled Palestine in 1948. He came to the United States in December 1998 on a visitor visa, with permission to stay until June 28, 1999. Agha remained in the United States beyond the authorized time, and on July 9, 2003, the Department of Homeland Security (DHS) issued a Notice to Appear, commencing removal proceedings against him. Agha sought relief in the form of asylum, withholding of removal, and CAT protection.3
In his asylum statement, Agha averred he is not a citizen of Lebanon, and, although he received a Lebanese travel document for Palestinian refugees, he has never used it. He stated civil war broke out in Lebanon a few years after his birth, and his family therefore fled to Abu Dhabi in the United Arab Emirates (UAE), where he lived comfortably for most of his life, except when traveling to pursue his education. Agha further contended, in 1997, his father became involved in a business dispute between a Canadian company and a UAE Sheikh, who was also the son of the Crown Prince. Agha maintained his father went to Canada to sue the Canadian company in December 1998; the Canadian company then approached the Sheikh, informing him that Agha's father was "ruining" the Sheikh's reputation with thelawsuit. Agha alleged the Sheikh then confronted his father's business partner, Naser Al Shamsi, who also happened to be the head of the UAE's secret services, and demanded Al Shamsi arrest Agha's father if he returned to the country. Al Shamsi apprised Agha's mother of this situation, and Agha and his family immediately fled Abu Dhabi for Dubai.
Agha used an Indian passport to travel from Dubai to the United States. Throughout his removal proceedings, Agha denied he has Indian citizenship, stated he has never been to India, and maintained his father unlawfully obtained this passport from a friend who was an Indian ambassador. Agha claimed he is considered stateless everywhere in the world.
Agha's asylum application was referred to the Immigration Court, where Dr. Victor T. LeVine, a professor of political science at Washington University in Saint Louis, testified regarding possible harm Agha would face in Lebanon and other places in the Middle East, as well as his prospect of being accepted into various countries designated for removal. Dr. LeVine also opined the business dispute involving the Sheikh would render return to the UAE dangerous for Agha. When Agha began to testify regarding his father's business dispute in the UAE, counsel for the DHS objected on the basis of relevance. The Immigration Judge, John Duck, then stated, to which counsel for the DHS responded, Counsel for Agha then stated,
On March 26, 2007, Judge Duck issued an oral order denying Agha's claims for asylum, withholding of removal, and CAT protection. Judge Duck stated Agha was a credible witness, but found he showed neither past persecution, nor a well-founded fear of future persecution, in either India, the country of his passport, or Lebanon, the country of his birth. Judge Duck further designated India as Agha'scountry of removal due to his Indian passport. He added, however, "[Agha] indeed may well be what he said earlier that he is stateless." Agha appealed to the BIA, arguing, inter alia, Judge Duck "erred in failing to fully analyze [Agha's] statelessness as it relates to his case for political asylum and related relief." Agha also maintained Judge Duck erred in finding he failed to establish a well-founded fear of persecution.
The BIA remanded the case "for consideration of [Agha's] country of removal and any other issues that are impacted by that analysis."
Pursuant to the BIA's directive, Agha testified at a hearing, before a different Immigration Judge, Quynh Bain, as to his connections with various countries. On April 26, 2011, Judge Bain certified to the BIA an order amending Judge Duck's designated countries of removal. At the outset, Judge Bain noted, "The parties agreed that no additional testimony should or would be taken concerning [Agha's] underlying asylum and protection claims." Judge Bain then designated new countries of removal as Dubai, the Palestinian Territory, Lebanon, the UAE, India, Ecuador,6 and any other country whose government would accept Agha. She concluded by informing the BIA, "[Agha] was advised that no separate notice of appeal [wa]s required to preserve his right to appeal the designation issue in tandem with [his] appeals of the other aspects of the immigration judge's March 26, 2007 removal orders."
Agha again appealed to the BIA, reasserting his previous claims that Judge Duck erred in denying asylum. On October 11, 2012, the BIA dismissed the appeal. The BIA first found Agha failed to demonstrate past persecution, and he therefore lacked entitlement to a presumption of persecution; rather, he bore the burden of demonstrating a well-founded fear of future persecution. Bushira v. Gonzales, 442 F.3d 626, 631 (8th Cir. 2006). The BIA concluded Agha had not met this burden either, explaining, "[Agha's] expert testified only about general issues of discrimination [Agha] might face should he be returned to various countries[.]" Finally, the BIA held Judge Bain correctly designated potential countries of removal. Agha now seeks judicial review, challenging the BIA's order denying asylum, withholding of removal, and CAT protection.
Agha challenges the denial of relief on his asylum, withholding of removal, and CAT protection claims. Where, as here, the BIA has adopted the Immigration Court's opinion and added reasoning and analysis of its own, we review both decisions. Krasnopivtsev v. Ashcroft, 382 F.3d 832, 837 (8th Cir. 2004). This court reviews legal determinations de novo, and factual findings for substantial evidence. Nadeem v. Holder, 599 F.3d 869, 872 (8th Cir. 2010); see also Iyamba v. I.N.S., 244 F.3d 606, 607-08 (8th Cir. 2001). Reversal under a substantial evidence standard requires evidence "so compelling that no reasonable fact-finder could fail to find for" Agha. Nadeem, 599 F.3d at 872; see also Rife v. Ashcroft, 374 F.3d 606, 610 (8th Cir. 2004).
"The Attorney General may confer asylum on any refugee." Regalado-Garcia v. I.N.S., 305 F.3d 784, 787 (8th Cir. 2002) (citing 8 U.S.C. § 1158). A refugee is a person unable or unwilling to return to his country of nationality, or, in the case of a stateless person, to the country in which he last habitually resided, "because of persecution or a well-founded fear of future 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 Khrystotodorov v. Mukasey, 551 F.3d 775, 781 (8th Cir. 2008). "Persecution is the infliction or threat of death, torture, or injury to one's person or freedom[.]" Regalado-Garcia, 305 F.3d at 787. An applicant who fails to prove past persecution bears the burden of establishing a well-founded fear of future persecution. Bushira, 442 F.3d at 630-31. "A well-founded fear of future persecution is one that 'is both subjectively genuine and objectively reasonable.'" Id. (quoting El-Sheikh v. Ashcroft, 388 F.3d 643, 646 (8th Cir. 2004)).
"A request for withholding of removal is automatically included in an application for asylum." Khrystotodorov, 551 F.3d at 781 (citing 8 C.F.R. § 1208.3(b)). "Removal to a specific country must be withheld if the alien establisheda 'clear probability' of persecution in that country." Rife, 374 F.3d at 613; see also Garcia-Colindres v. Holder, 700 F.3d 1153, 1158 (8th Cir. 2012). Meeting the "clear probability" standard for withholding of removal is more onerous than establishing the well-founded fear of persecution required for asylum. Rife, 374 F.3d at 613. Thus, if an applicant fails to demonstrate eligibility for asylum, he necessarily fails to demonstrate eligibility for withholding of removal. Khrystotodorov, 551 F.3d at 781.
To qualify for relief under the CAT, an alien must show "it is more likely than not that he or she would be tortured if returned to the proposed country of removal." Malonga v. Mukasey, 546 F.3d 546, 554-55 (8th Cir. 2008) (quoting 8 C.F.R. § 1208.16(c)(2)). Under the CAT, "torture" is defined as:
any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person...
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