Hassanein v. Ashcroft, 03-1311.

• Decision Date: 16 August 2004
• Docket Number: No. 03-1311.,03-1311.
• Citation: 380 F.3d 324
• Parties: Hesham HASSANEIN, Petitioner, v. John ASHCROFT, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

380 F.3d 324

Hesham HASSANEIN, Petitioner, v. John ASHCROFT, Attorney General of the United States, Respondent.

No. 03-1311.

United States Court of Appeals, Eighth Circuit.

Submitted: February 13, 2004.

Filed: August 16, 2004.

Petition for review from the Board of Immigration Appeals.

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Ignatius Udeani, argued, Bloomington, MN, for appellant.

Joan E. Smiley, argued, Office of Immigration Litigation, U.S.Dept. of Justice, Washington, DC, for appellee.

Before MELLOY, McMILLIAN and COLLOTON, Circuit Judges.

McMILLIAN, Circuit Judge.

Hesham Hassanein, an Egyptian citizen, petitions for review of an order of the Board of Immigration Appeals (BIA) affirming a decision of an immigration judge (IJ) denying his application for withholding of removal, 8 U.S.C. § 1231(b)(3), and for relief under the Convention Against Torture (CAT), 8 C.F.R. § 208.16(c)(2). We deny the petition.

On petition of his father, who was a lawful permanent resident of the United States, Hassanein entered this country in January 1991, with authorization to remain until July 1991. He stayed beyond that date and in 1998 applied for an adjustment of status, seeking to become a lawful permanent resident. In 1999, the Immigration and Naturalization Service (INS) denied the application, finding that Hassanein had misrepresented that his father, who had died in 1996, was alive. In 2000, the INS filed a notice of removal. At a removal hearing, Hassanein admitted that he had overstayed his visa. Hassanein then filed an application for withholding of removal and for relief under CAT, alleging that he would be persecuted and tortured if he returned to Egypt because of his membership in a political party.

At a hearing before an IJ, Hassanein testified that he feared persecution and torture if he returned to Egypt because he was a member of the Socialist Labor Party, which he stated was an opposition party the Egyptian government had banned in 2000. Although documentary evidence indicated that the party was founded in 1978, Hassanein claimed he joined the party in 1976 while he was a student in Egypt. He testified that, because of his membership in the party, in 1980 he had been arrested, threatened, and detained for one day in a security office and, after the detention, had been questioned on other occasions. He further testified that because of membership in the party, in 1980 the Egyptian government had arrested, detained, and mistreated his uncle and in 1987 had arrested, detained, and mistreated his cousin. Hassanein claimed that while in the United States, he joined the Minnesota chapter of the party, which had four or five members. However, he had no documentation to corroborate his membership in the party in Egypt or in the United States. He also admitted that on his 1998 application for adjustment of status he did not indicate that he was a member of the party and conceded that he had procured and submitted a forged affidavit of his deceased father in support of the application.

After considering Hassanein's testimony and other evidence, including State Department reports on Egypt, the IJ denied relief. The IJ found that Hassanein lacked credibility, noting, among other things, the fraud in connection with his adjustment application. The IJ stated that Hassanein may have been able to overcome his credibility problem had he presented verifiable, objective evidence to support his persecution claim, but noted that he had failed to produce such evidence.

In any event, the IJ further found that even if Hassanein's testimony were credible and had he applied for asylum, he would be ineligible. The IJ held that assuming that Hassanein had been arrested and detained for one day in 1980 and questioned on other occasions because of his membership in the Socialist Labor Party, the incidents did not amount to past persecution, especially considering that he had lived in Egypt for many years following his arrest and had obtained an Egyptian passport in 2000. As to future persecution, the IJ noted that, aside from his testimony, there was no evidence of his membership in the party in the United States or Egypt. Because Hassanein could not meet the burden of proof for asylum, the IJ accordingly denied his application for withholding of removal, which carries a higher burden of proof. The IJ also denied relief under the CAT. The BIA summarily upheld the denial.

On reviewing the petition, "[w]e treat the IJ's decision as a final agency action for purposes of judicial review [because] the BIA affirm[ed] without an opinion." Al Tawm v. Ashcroft, 363 F.3d 740, 743 (8th Cir.2004) (Al Tawm). We must affirm the IJ's "factual findings if they are supported by substantial evidence." Id. Moreover, we defer to the IJ's credibility finding where it is "supported by a specific, cogent reason for disbelief." Perinpanathan v. Ashcroft, 310 F.3d 594, 597 (8th Cir.2002) (Perinpanathan) (internal quotation omitted). As the IJ noted, "[w]ithholding of removal involves a higher degree of certainty that persecution will occur than that required for asylum eligibility." Al Tawm, 363 F.3d at 744. To be eligible for asylum, an alien must present evidence showing past persecution or a well-founded fear of future persecution, both subjectively and objectively. Id. at 743. To be eligible for withholding of removal, Hassanein had to present evidence that it was "more likely than not that [he] would be subject to persecution" because of his membership in the Socialist Labor Party. Id. at 744 (internal quotation omitted). Under CAT, he had to present evidence that "more likely than not he [would] be tortured if he return[ed]" to Egypt. Id.

Hassanein could not reasonably challenge the IJ's credibility finding, which is well-supported. As the IJ noted, Hassanein lied several times in connection with his 1998 application for adjustment of status. He represented to the INS that his father, who...