Barsoum v. Holder

• Decision Date: 24 August 2010
• Docket Number: No. 09-1968.,09-1968.
• Parties: Emad BARSOUM, Petitioner,v.Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

617 F.3d 73

Emad BARSOUM, Petitioner,v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 09-1968.

United States Court of Appeals, First Circuit.

Submitted June 30, 2010.

Decided Aug. 24, 2010.

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David L. Yavner was on brief for petitioner.

Liza S. Murcia, Attorney, Office of Immigration Litigation, Tony West, Assistant Attorney General, Civil Division, and Anthony C. Payne, Senior Litigation Counsel, were on brief for respondent.

Before LYNCH, Chief Judge, SELYA and LIPEZ, Circuit Judges.

LYNCH, Chief Judge.

Emad Wagdi Barsoum, of Egypt, entered the United States on August 30, 2002 on a non-immigrant visitor visa and overstayed. He petitions for review of a July 6, 2009 final order of removal by the Board of Immigration Appeals (BIA). The BIA denied Barsoum's application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT), affirming the August 13, 2007 decision of an Immigration Judge (IJ). Barsoum petitions for review of (1) the BIA's finding that he failed to establish that he had been persecuted in Egypt for his Coptic Christian beliefs or that he would face persecution in the future and (2) the BIA's denial of his motion to remand his case to the IJ in light of changed country conditions and purported new evidence. The petition for review is denied.

I.

On March 25, 2003 Barsoum applied for asylum, withholding of removal, and protection under CAT on the basis of religious persecution. He was issued a Notice to Appear on November 19, 2004 and, conceding removability, appeared for a removal hearing before an IJ on August 13, 2007.

We summarize Barsoum's testimony before the IJ. Barsoum is a Coptic Christian. He entered medical school at Alexandria University in 1996. During his third year, he befriended Wissam, a Muslim woman and fellow student. The two of them discussed their coursework each day at school.

In 2001, a member of a fundamentalist group called the Muslim Brotherhood approached Barsoum on campus and warned him not to stand side-by-side with a Muslim girl. As a result, Barsoum told Wissam that they should stay away from one another. Wissam told Barsoum she was in love with him, and Barsoum began avoiding Wissam.

In June 2001, Wissam followed Barsoum on campus and told him in public that she wanted to marry him. At that point, another student approached and said, “Didn't I warn you before?” That student and others hit Barsoum in the face and head. The commotion attracted campus guards who, assuming Barsoum had been bothering Wissam, made him sign a document promising to stay away from her. Barsoum did not seek any medical treatment.

The next month, in July 2001, a caller identifying himself as a member of the Muslim Brotherhood threatened to beat Barsoum up, ruin his career, and prevent him from “enter[ing] the university” if he was seen with a Muslim woman. This may have been a reference to physically entering the university grounds.

In February 2002, Barsoum was threatened again in person. He was told he would be killed if he refused to convert to Islam and marry Wissam. The threat was not specific as to when any conversion and marriage had to take place.

That Easter, driving home from a midnight mass, Barsoum was pursued by two other cars that corralled him and pushed his car off the road and into a trash container. He was then charged with vandalizing the container (the charges were later dropped). In the crash, Barsoum sustained injuries to the face and head, requiring hospitalization, a blood transfusion, and plastic surgery. Barsoum testified that he recognized a passenger in one of the cars as a Muslim fundamentalist whom he knew from school, and Barsoum assumed that the attack was motivated by religious animosity. He also testified that the police refused to take his formal statement about the incident, and that they failed to investigate his claims.

After the Easter attack in 2002, Barsoum moved from Alexandria to Cairo to hide from the Muslim Brotherhood. He moved in with a relative, George, also a Coptic Christian and medical student. Barsoum planned to transfer to a medical school in Cairo. He testified that one day in August 2002, he received a phone call from George, who said that four members of the Muslim Brotherhood had come to George's apartment looking for Barsoum, and had beaten George around the face. That month, Barsoum fled to the United States.

The IJ denied Barsoum's application for asylum and withholding of removal. The IJ made no express credibility finding, but noted a few apparent inconsistencies between Barsoum's asylum application and his testimony, and noted that Barsoum had not provided documentation supporting his story. The IJ found that Barsoum had not shown that the Easter car attack was part of the harassment related to his perceived relationship with Wissam. Nor had he demonstrated that his troubles amounted to religious persecution rather than social difficulties arising from that perceived relationship. The IJ also found that the harm Barsoum had suffered did not rise to the level of persecution, particularly because Barsoum did not try to solve his problems through anything short of flight and, even then, did not flee to the United States until more than a year after receiving a visa to the United States. Moreover, with the exception of the Easter attack, Barsoum and his Coptic Christian family members, all of whom remained in Egypt, had always been able to practice their religion freely. Finally, the IJ denied CAT relief because there was no evidence that Barsoum would be tortured if returned to Egypt.

Barsoum appealed the IJ's ruling to the BIA and on March 5, 2008, filed a motion to remand, presenting family photos and a physician's report to document his claims, and an affidavit explaining why this evidence was previously unavailable. Two weeks later, on March 19, 2008, Barsoum filed documentation of his enrollment in medical school and his church involvement. Seven months later, on October 22, 2008, Barsoum further supplemented his motion to remand, claiming that his risk of persecution had increased due to worsening country conditions in Egypt for Coptic Christians. He provided a statement from a researcher specializing in religious freedom that catalogued reports of violence and discrimination against Coptic Christians. He filed an update to the statement on March 19, 2009.

On July 6, 2009, the BIA, upholding the IJ's ruling, found that Barsoum's experiences did not amount to past persecution, even if he had been targeted because of his religion. The BIA also found that there was no established pattern or practice in Egypt of persecuting Coptic Christians, though Barsoum had never raised the issue. The BIA found that Barsoum had not connected any general conditions of persecution against Coptic Christians in Egypt to his own individualized risk of future persecution. Finally, the BIA upheld the IJ's denial of CAT protection.

Addressing Barsoum's motion to remand, the BIA found that the corroborating documentation that Barsoum had submitted could not have changed the outcome before the IJ, because the IJ's holding was not based on a lack of credibility. The BIA found that the statements describing changed country conditions in Egypt were also insufficient to merit a remand because they were generalized and did not demonstrate Barsoum's individualized risk of future persecution. The BIA denied Barsoum's motion to remand and dismissed his appeal.

II.

“Where, as here, the BIA adopted and affirmed the IJ's ruling, but also discussed some of the bases for the IJ's opinion,” we review both opinions. Ru Xiu Chen v. Holder, 579 F.3d 73, 77 (1st Cir.2009) (quoting Mam v. Holder, 566 F.3d 280, 282 (1st Cir.2009)) (internal quotation marks omitted). No pure issues of law are raised by this petition. We review the BIA's determinations under the deferential substantial evidence standard. Balachandran v. Holder, 566 F.3d 269, 273 (1st Cir.2009).

The BIA will be upheld as long as the record as a whole provides “reasonable, substantial, and probative evidence” supporting its findings. Anacassus v. Holder, 602 F.3d 14, 18 (1st Cir.2010) (quoting Attia v. Gonzales, 477 F.3d 21, 23 (1st Cir.2007)). We will only reverse the BIA's findings if “any reasonable adjudicator would be compelled to conclude to the contrary.” Rasiah v. Holder, 589 F.3d 1, 4 (1st Cir.2009) (quoting Budiono v. Mukasey, 548 F.3d 44, 48 (1st Cir.2008)) (internal quotation marks omitted).

Barsoum bears the burden of establishing his eligibility for asylum by demonstrating that he “has suffered past persecution or has a well-founded fear of future persecution on the basis of” his religion. Anacassus, 602 F.3d at 19 (quoting Decky v. Holder, 587 F.3d 104, 110 (1st Cir.2009)). If past persecution is demonstrated, this establishes a rebuttable presumption that the petitioner may reasonably fear future persecution upon return. Id. The petitioner must have a subjective fear of future persecution and that fear must be objectively reasonable.

Substantial evidence supports the BIA's and IJ's conclusion that even if the harms Barsoum has endured are assumed attributable to his religious beliefs, they did not rise to the level of persecution.

To show persecution, an alien must show more than “unpleasantness, harassment, and even basic suffering.” Jorgji v. Mukasey, 514 F.3d 53, 57 (1st Cir.2008) (quoting Nelson v. INS, 232 F.3d 258, 263 (1st Cir.2000)). The “severity, duration, and frequency of physical abuse” are factors relevant to this determination see Topalli v. Gonzales, 417 F.3d 128, 133 (1st Cir.2005), as is whether harm is “systematic rather than reflective of a series of isolated incidents,” Anacassus, 602 F.3d at 20 (quoting Journal v. Keisler, 507 F.3d 9, 12 (1st Cir.2007)) (internal quotation mark omitted). The state must also be implicated, whether by participation or acquiescence, for harm to...