Majd v. Gonzales
| Decision Date | 17 April 2006 |
| Docket Number | No. 05-60141.,05-60141. |
| Citation | 446 F.3d 590 |
| Parties | Laoi Salah MAJD, Rajaa Tahsin Naji Barakat, Tareq Laoi Majd, Petitioners, v. Alberto R. GONZALES, United States Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Karen Harder Pennington, Law Office of Karen H. Pennington, Dallas, TX, for Petitioners.
William Clark Minick, Douglas Ginsburg, James E. Grimes, Thomas Ward Hussey, Dir., U.S. Dept. of Justice, Civ. Div., OIL, Washington, DC, Anne M. Estrada, U.S. INS, Dallas, TX, Caryl G. Thompson, U.S. INS, Attn: Joe A. Aguilar, New Orleans, LA, for Respondent.
Petition for Review of an Order of the Board of Immigration Appeals.
Before KING, SMITH and BENAVIDES, Circuit Judges.
The petition for panel rehearing is GRANTED. The opinion, 2006 WL 554930, 2006 U.S.App. LEXIS 7558 (5th Cir. Mar. 8, 2006), is WITHDRAWN, and the following opinion is substituted:
* * * * *
Laoi Majd, together with his wife and son as derivative beneficiaries, petitions for review of the denial by the Board of Immigration Appeals ("BIA") of his application for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). We deny the petition.
Majd, a native of Libya holding a Palestinian Authority ("PA") passport, was admitted to the United States in January 2002 as a nonimmigrant visitor. He overstayed his visa and in April 2003 was charged by the Department of Homeland Security ("DHS") with removability under 8 U.S.C. § 1227(a)(1)(B) for remaining in the country longer than permitted. In a September 2003 hearing before an immigration judge ("IJ"), Majd conceded he was removable as charged but requested asylum, withholding of removal, and protection under CAT, or, in the alternative, voluntary departure, claiming he was entitled to all such relief because, as a Palestinian living in the West Bank, he had been persecuted by Israeli forces.
Majd testified as follows: Before entering the United States, he and his family lived in Ramallah, where he and his wife were bankers. In March 2000, on returning to the West Bank from a vacation in Jordan, he was stopped by Israeli security forces at a checkpoint and detained for hours. He did not say why he was detained, but he claimed that the security forces kicked him while walking up and down the corridor where he was being held and that they questioned him about his job, family, and party affiliations. While he was being detained, his wife, one month pregnant, had to sit in a chair for eight hours without food or water.
In May 2000, Majd was arrested while on his way to pick up his sister, was detained for two hours, and again was questioned regarding his destination, family, job, and affiliations. He stated that on both occasions when he was detained, he presented the security forces with an identification card indicating that he was a low security risk.
In March 2001, as he was leaving the bank where he worked, Majd noticed tanks and soldiers in the street. The soldiers were "shooting from everywhere." Majd and another person tried to leave the area but were confronted by an Israeli soldier who demanded to know their destination. Majd stated he was going home, but the soldier ordered him back inside the bank.
When the soldier was distracted by one of his comrades, Majd and the other person tried to escape. The soldiers ordered them to stop, but when they did not obey the soldiers fired upon them. The other individual was shot, but Majd made it home safely. Majd testified that he had done nothing to deserve detention but confirmed that the building in which he worked housed the office of a Fatah leader.
In August 2001, Majd took a taxi from Ramallah to visit his father. While his taxi was in line at a security checkpoint, another taxi tried to change lanes and pass in front of another car. Because getting out of a checkpoint line is generally considered suspicious activity, the Israeli forces opened fire. A passenger riding in the same taxi as Majd was shot and killed, and Majd fainted out of fear. Majd eventually reached his destination and did not testify that the Israeli forces were shooting specifically at him.
The PA occupied the ground floor and basement of the building in which Majd lived. One day, after inspecting the location and suspecting that some PA soldiers has escaped through the building, Israeli soldiers searched the building from top to bottom, including Majd's home. The soldiers broke some objects there, and Majd's family was terrified, particularly after hearing shots fired in the building. It was that event that prompted Majd and his family to take a vacation to the United States to "wait for the situation [in the West Bank] to get better."
After Majd his wife and son fled to the United States, numerous problems befell his family remaining in the West Bank. His cousin was detained by Israeli forces, and the cousin's blacksmith shop was destroyed. Majd's brother was detained for three months under an Israeli law that permits judges to authorize administrative detention for that length of time.1 Majd's family, who raised vegetables in addition to holding other jobs, could not bring their harvest to market because of the general unrest in the area and the fact that "everything is closed and surrounded by Israeli authorities." In particular, the wall the Israelis are building to secure the West Bank border runs through the middle of his family's olive groves, depriving them of their land.
Majd offered the testimony of his brother, Modard Salah Jousef Majd, via telephone. The brother confirmed that he had been taken and detained for three months by the Israelis after telling them that Majd had gone to the United States. He also confirmed the destruction of the family's olive groves and stated that because of his experiences, he is essentially confined to his village. The telephonic testimony of Majd's father similarly confirmed Majd's accounts.
Majd also offered the testimony of Emily Watchsmann, a student at the University of North Texas who had visited the West Bank in conjunction with an organization known as the International Solidarity Movement. Watchsmann commented on the general conditions of unrest in the West Bank but stated that she had no personal knowledge of Majd's experiences and had never been to Ramallah. She explained the usual procedure at security checkpoints and suggested that any vehicle that attempted to evade a checkpoint would be fired upon.
After hearing this evidence, the IJ denied Majd's applications for asylum, withholding of removal, and relief under CAT but granted him voluntary departure, allowing him sixty days to leave the country of his own accord.2 The IJ ordered Majd forcibly removed to Israel if he did not depart during that sixty-day period.
The IJ determined that although Majd was credible, the mistreatment he suffered did not constitute persecution on account of one of the five statutory grounds that rendered an individual eligible for asylum and/or withholding of removal. The IJ found that the harm inflicted on Majd did not rise to the level of torture, so relief under CAT was unavailable.
Majd appealed to the BIA, contending that the IJ erred in denying him relief, that the rejection of his request for relief contravenes the 1951 Convention Relating to the Status of Refugees, and that the United States' handling of Palestinian asylum claims such as his violates the ABC Settlement Agreement, which arose out of a class action lawsuit by immigrants of certain nationalities against the immigration authorities. The BIA affirmed without opinion. Majd petitions for review.
Generally, we have authority to review only the decision of the BIA, but where, as here, the BIA summarily affirms the IJ's decision without opinion, we review the IJ's decision. See Mikhael v. INS, 115 F.3d 299, 302 (5th Cir.1997). Although we review the legal conclusions of the BIA and the IJ de novo, see id., we review their factual findings for substantial evidence. See Zhang v. Gonzales, 432 F.3d 339, 343-44 (5th Cir.2005). Under the substantial evidence standard, "reversal [of the IJ] is improper unless we decide `not only that the evidence supports a contrary conclusion, but [also] that the evidence compels it.'" Id. at 344 (quoting Zhao v. Gonzales, 404 F.3d 295, 306 (5th Cir.2005)). The alien bears the burden of proving the requisite compelling nature of the evidence. See Chun v. INS, 40 F.3d 76, 78 (5th Cir.1994).
The Attorney General has complete discretion whether to grant asylum to eligible individuals. "[A]sylum is not available to every victim of civil strife, but is restricted to those persecuted for particular reasons." Hallman v. INS, 879 F.2d 1244, 1247 (5th Cir.1989). To be eligible for asylum, an alien must prove that he is "unable or unwilling to return to . . . [his home] country because of persecution or 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).
"Neither discrimination nor harassment ordinarily amounts to persecution under the [Immigration and Nationality Act (`INA')] . . . ." Eduard v. Ashcroft, 379 F.3d 182, 188 (5th Cir.2004). Similarly, Al-Fara v. Gonzales, 404 F.3d 733, 739 (3d Cir.2005) (internal quotations and citations omitted).
There is a well-founded fear of persecution if the alien has a subjective fear of persecution that...
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