El-Labaki v. Mukasey

• Decision Date: 01 October 2008
• Docket Number: No. 07-1191.,07-1191.
• Citation: 544 F.3d 1
• Court: U.S. Court of Appeals — First Circuit
• Parties: Karim EL-LABAKI, Petitioner, v. Michael B. MUKASEY<SMALL><SUP>*</SUP></SMALL>, Attorney General, Respondent.

544 F.3d 1

Karim EL-LABAKI, Petitioner, v. Michael B. MUKASEY^*, Attorney General, Respondent.

No. 07-1191.

United States Court of Appeals, First Circuit.

Submitted September 14, 2007.

Decided October 1, 2008.

José A. Espinosa, on brief for petitioner.

Peter D. Keisler, Assistant Attorney General, and Terri J. Seadron, Assistant Director, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, on brief for respondent.

Before TORRUELLA and HOWARD, Circuit Judges, and DELGADO-COLÓN,^** District Judge.

DELGADO-COLÓN, District Judge.

Petitioner, Karim El-Labaki ("petitioner" or "El-Lebaki"), is a Lebanese national who entered the United States in Boston, Massachusetts on December 30, 2000. At the time of entry, petitioner had a B2 non-immigrant tourist visa that expired on June 29, 2001.

Given his overstay in the United States, on January 30, 2003, the Department of Homeland Security ("DHS") issued petitioner a Notice of Removal Proceedings pursuant to the Immigration and Nationality Act ("INA"). 8 U.S.C. § 1227(a)(1)(B). Through counsel, petitioner admitted the factual allegations within the Notice to Appear and conceded removability. While so doing, El-Labaki petitioned for asylum, withholding of removal and protection under the Convention Against Torture ("CAT").

On December 8, 2004, an Immigration Judge ("IJ") denied all three of petitioner's claims. In making this determination, the IJ concluded that: (a) the asylum application was untimely, inasmuch as it was filed over a year after entry into the United States; (b) El-Labaki did not meet the requirements for an exception to the one (1) year filing deadline; (c) El-Labaki did not qualify for asylum on the merits; and (d) petitioner did not meet either requirements for withholding of removal or protection under CAT.

Petitioner timely appealed the IJ's decision before the Board of Immigration Appeals ("BIA"). On December 26, 2006, the BIA affirmed the IJ's decision and granted voluntary departure.

On January 25, 2007, El-Labaki sought review by this Court of the BIA's determination. Petitioner now contends that the IJ erred in finding that petitioner: (a) did not meet the asylum eligibility criteria under INA § 208, and for withholding of removal (INA § 241(b)(3)); and (b) failed to demonstrate eligibility for withholding under CAT. 8 C.F.R. §§ 1208.16-1208.18.

A. Factual and Procedural Background

El-Labaki is a fifty-five (55) year old Greek Orthodox Christian male, born in 1951 in Anfeh, Al-koura, Lebanon. In 1982, petitioner married Hala Louka El-Labaki, with whom he has three Lebanese children, ages ten (10), nineteen (19) and twenty-three (23).

On December 30, 2000, El-Labaki entered the United States with a B2 non-immigrant tourist visa that enabled him to stay within the United States territory until June 29, 2001. In support of his asylum application, El-Labaki contends that he used to travel through the border of Lebanon. During said trips, he had numerous encounters with Syrians, and was detained at the checkpoints for some time.

Petitioner testified and asserts that from 1975 to 1977 and while traveling outside Lebanon, Syrians had mistreated and pulled him over approximately ten (10) times at checkpoints outside Lebanon. During one such occasion, upon demand, El-Labaki produced his national card which identified him as a Christian. El-Labaki alleges that because of this, he was taken to and beaten at a Tripoli police station. However, no medical assistance was ever sought or needed.

Between 1977 and 2000, El-Labaki resided primarily in Saudi Arabia, where he worked for five (5) different companies. During this period, he frequently traveled back and forth to Lebanon so as to visit his family members who had relocated to Lebanon in 1995. The relocation was prompted by the worsening of the economic conditions in Saudi Arabia. Examination of El-Labaki's passport revealed that in a twenty-three (23) year span, he had traveled at least twenty-five (25) separate times between Lebanon and Saudi Arabia. While claiming he was harassed at checkpoints whenever returning to Lebanon, he also asserts that in similar travels, undertaken with his wife between 1982 and 1995, he was only "mildly harassed" at checkpoints. Family members have remained unharmed in their country.

In support of his claims, El-Labaki provided information alluding to a 1978 instance in which he had been harassed. On said occasion, while at a checkpoint manned by Syrians, El-Labaki was ordered to step out of his vehicle and compelled to stand on the roadside for several hours in the heat without any water. In 2000, while intending to apply for a visa to come to the United States, El-Labaki engaged in a brief trip from his hometown to Lebanon. On said occasion, El-Labaki was not harassed, as his taxi driver handled all checkpoint inquiries. Three (3) weeks later, after concluding employment in Saudi Arabia, El-Labaki traveled back to Lebanon for approximately fifteen (15) days before leaving for the United States. On December 20, 2000, while at home, and two (2) days prior to departing for the United States, El-Labaki asserts he was harassed by Syrians.

Before the IJ, El-Labaki testified that he: (a) came to the United States because he "wanted to live a life of freedom and comfort and democracy because in Lebanon there is no security"; (b) moved to Saudi Arabia to escape "torture" and to work because the Lebanese economy was not stable and he could not find a job with a salary sufficient to support his family; (c) only left Saudi Arabia—after having resided there for twenty-three (23) years— upon receiving notice from his employer of a fifty percent (50%) reduction in salary; and (d) that the reason he never moved his family to another part of Lebanon (such as Beirut) was because of the expenses involved and scarce employment opportunities in other regions within Lebanon.

During these years, El-Labaki never sought medical treatment. To date, his family continues to live in Lebanon without harassment, and since 2000, El-Labaki has not returned to Lebanon. While in the United States, petitioner has worked helping his cousin at his two (2) businesses in exchange for the cousin's economic support of his family in Lebanon.

The IJ examined petitioner's claim, and, although finding his testimony credible, determined that the claim did not rise to the level of persecution. While recognizing that petitioner's ability to travel was merely encumbered by the short-duration detentions at the checkpoint and occasional beating, the IJ considered these interferences negligible inasmuch as El-Labaki remained free to travel within Lebanon, Saudi Arabia, Beirut, Jordan and Syria. The IJ also concluded that El-Labaki's entry into the United States was prompted by economic concerns, that he had not gained "safe haven" in the United States, did not attempt to achieve legal status, overstayed his visa and appeared to be working for a relative at two (2) businesses in the United States.

The IJ noted that petitioner never suffered bodily injuries requiring medical care. Another significant factor considered by the IJ was that El-Labaki's family members were practicing Christians, all went to school, and continued to attend and actively participate in religious services while residing in Lebanon without being subjected to harassment. The IJ concluded that the threat of harassment suffered by petitioner was not "country wide." Accordingly, the IJ determined that El-Labaki had not only failed to establish a well founded fear of clear probability of persecution, were he to return to Lebanon, but had also failed to establish he would be detained and subjected to torture by any authority or by any group with the acquiescence of the Lebanese government. More so, the IJ concluded that El-Labaki had untimely filed his petition for asylum without showing compelling conditions to excuse his failure to file within the applicable one (1) year statutory period.

On December 26, 2006, the BIA dismissed El-Labaki's appeal and affirmed the IJ's decision. In so doing, the BIA determined that petitioner's claim regarding an objective fear of persecution was undermined by his ability to travel in and out of Lebanon and by his family's continued residence in Lebanon.

El-Labaki now contends that he is to be considered a "refugee" under the INA inasmuch as he has suffered persecution, and has a well founded fear of future persecution based upon religion, political opinion and membership in a particular social group. More so, petitioner contends his delay in applying for asylum was due to his inability to adequately articulate his persecution claims in English or retain the services of a translator. Other factors that El-Labaki avers contributed to his delayed asylum application were his fears of being arrested and removed to Lebanon, coupled with the belated discovery of the asylum laws, specifically, provisions dealing with the one (1) year filing deadline. On review, petitioner also asserts that he has suffered "torture" and is more likely than not to suffer torture if returned to Lebanon. Given the IJ's credibility determination, petitioner further contends he has met the burden of proof under CAT. Lastly, El-Labaki contends that his deportation will cause financial and emotional hardship to his wife and children.

B. Standard of Review

Determinations by the BIA are subject to the deferential substantial evidence standard. Segran v. Mukasey, 511 F.3d 1, 5 (1st Cir.2007) (citing Pan v. Gonzáles, 489 F.3d 80, 84-85 (1st Cir. 2007)). This standard requires us to uphold the agency's findings of fact, including credibility determinations, as long as they are "supported by reasonable, substantial, and probative evidence on the record considered as a whole." INS v. Elías-Zacarías, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); see also Long v. Gonzáles, 422 F.3d 37, 40 (1st Cir.2005...