Sharari v. Gonzales

• Decision Date: 17 May 2005
• Docket Number: No. 03-2635.,03-2635.
• Citation: 407 F.3d 467
• Parties: Ahmad Said SHARARI, Ramda Adnan Moussa, Petitioners, v. Alberto GONZ&#193;LES,<SMALL><SUP>*</SUP></SMALL> Respondent.
• Court: U.S. Court of Appeals — First Circuit

Page 467

407 F.3d 467

Ahmad Said SHARARI, Ramda Adnan Moussa, Petitioners, v. Alberto GONZÁLES,^* Respondent.

No. 03-2635.

United States Court of Appeals, First Circuit.

Submitted December 16, 2004.

Decided May 17, 2005.

COPYRIGHT MATERIAL OMITTED

Peter A. Allen on brief for petitioner.

Peter D. Keisler, Assistant Attorney General, Linda S. Wernery, Senior Litigation Counsel, and William C. Minick, Office of Immigration Litigation, Civil Division, United States Department of Justice, on brief for respondent.

Before LYNCH, Circuit Judge, STAHL, Senior Circuit Judge, and LIPEZ, Circuit Judge.

LIPEZ, Circuit Judge.

The petitioners, Ahmad Said Sharari and his wife, Ramda Adnan Moussa, seek review of a final order of the Board of Immigration Appeals (BIA) denying their application for asylum, withholding of removal, and relief under the Convention Against Torture. We affirm the Board's decision.¹

I.

Sharari was born to Palestinian parents in the ancient city of Sidon, Lebanon, and has lived in that country for much of his life. Because of his Palestinian ethnicity, however, he is not a citizen under Lebanese law. On May 23, 1997, he and his then-pregnant wife entered the United States; their visa entitled them to stay six months as visitors for pleasure, but they did not leave when it expired. Moussa would later give birth to a daughter on September 11, 1997.

On January 20, 1999, Sharari submitted an application for asylum, supported by affidavits from him and his wife, to the Immigration and Naturalization Service (INS).² On April 30, 1999, Sharari was interviewed by an asylum officer. The INS then referred the matter to an immigration judge (IJ) and, on May 24, 1999, charged Sharari with being subject to removal for overstaying his visa. See 8 U.S.C. § 1227(a)(1)(B). At a hearing on March 8, 2000, Sharari admitted the factual allegations against him, conceded removability, and requested three kinds of relief: asylum, withholding of removal, and protection under Article 3 of the Convention Against Torture (CAT).³ Sharari also applied for voluntary departure in lieu of removal.

A. Sharari's affidavit

In its twelve single-spaced pages, Sharari's affidavit describes a pervasive atmosphere of discrimination against Palestinians in Lebanon, as well as several specific incidents of harassment that he faced.⁴ In general, Sharari says, "Palestinians are treated as unwanted persons with no political or economic or human rights in Lebanon today." More specifically, discrimination against Palestinians is also based on what sect of Islam one belongs to: Sunni or Shi'a. Sunni Palestinians were subjected to the harshest treatment, while Shiites fared better: "Shiite Palestinians who came to Lebanon and sought citizenship were immediately given citizenship and had all of the rights of full Lebanese citizens. Only those of us who are Sunni Moslems and who refuse to denounce their faith are treated like scum and denied all rights." As a Sunni Palestinian in Lebanon, "[e]veryone persecutes you, both the Christians and Muslims."

Sharari's affidavit offers a few incidents of specific mistreatment. As a child, Sharari was denied entry into several schools near his home, which were supposedly intended for the general public, because he was Palestinian. Also, after Israeli aerial bombardments, neighborhood children would blame him for the attacks, yelling that the Israelis would not be bombing Lebanon if not for the Palestinians living there. Notwithstanding these obstacles, Sharari made his way through high school, where in his junior year he entered and won a national tournament to determine the ping-pong champion of Lebanon. When the tournament's organizers found out that he was Palestinian, they denied him the trophy. Sharari went on to attend the National College of Lebanon, graduating with a degree in architectural drafting. His ethnicity prevented him from getting the proper license to work as a draftsman, however, and he left Lebanon for the Gulf states, where working conditions were better.

Much of Sharari's working life was spent outside of Lebanon. At various times in the 1980s and 1990s, Sharari worked as a manual laborer or crane operator in the Gulf states, where at first he found conditions to be more favorable for Palestinians. Conditions worsened there, too, after Yassir Arafat, chairman of the Palestine Liberation Organization, declared his support for Iraq's invasion of Kuwait in 1991. Afterwards, Palestinians "were treated as pariahs even in the Gulf States," even if, like Sharari, they did not support the invasion or consider Arafat their leader. After 1994, Sharari's ability to move easily between Lebanon and the Gulf states became increasingly hampered. In September 1994, Lebanon passed a law requiring Palestinians who were traveling outside of the country to get a new visa every six months; this renewal could only be done in Lebanon, which was inconvenient for Sharari.

Sharari's affidavit tells of one incident of physical abuse. During the Lebanese civil war in the 1970s and 1980s, according to Sharari, Palestinians were restricted to a strip of land four miles wide and would be killed if caught outside. In 1986, Sharari was driving his aunt home to a town a few miles away from Sidon. Suddenly, two Shiite gunmen "came out of nowhere" and demanded to see his identification. He complied, but they took him at gunpoint to a crude basement jail, where he was held for three days along with about twenty other Palestinian men. They were beaten regularly and given nothing to eat. Sharari's captors told him that he and his fellow captives were being held because they were Palestinian; evidently there had recently been fighting between Palestinians and Shi'a militia in Beirut. After three days, Sharari's aunt was able to bribe someone to let him go. Others not so lucky were killed. Upon his release, Sharari's captors told him not to tell anyone about what had happened to him. He believed that if he did and the Shi'a found out, they would kill him.

Sharari's affidavit also describes an incident of legal discrimination against him because he was Palestinian. In September 1990, he opened a store selling beauty supplies. Business was not so good, and he closed the store in mid-1993. He continued leasing the space and kept some inventory there, in the hope that conditions would improve. After spending a few months in Abu Dhabi for work-related reasons, Sharari returned to Lebanon to find that his landlord had leased the space to a stranger, who had taken over Sharari's store and was selling his inventory. When Sharari protested, the landlord told him of a 1992 law providing that any Palestinian who closed his store for more than six months would lose the store and his lease. Indeed, the landlord had secured a court order declaring Sharari's business to be abandoned under the law. In the end, Sharari claims that he lost more than $10,000.

B. Moussa's affidavit

Moussa's affidavit describes similar instances of general harassment and discrimination, but no specific instances of physical mistreatment. In 1997, when three-months pregnant, she went to an obstetrician for an examination. The obstetrician, a Lebanese woman, told her that her unborn baby was dead and that "we need to take it out." Mousa did not believe her and feared that "she would give me a pill or an injection that would start a miscarriage." Moussa sought a second opinion and was told that her child was alive and normal; indeed, the child was born later in the United States. Moussa attributes the first obstetrician's advice to an animus against Palestinians: "Lebanese always say that Palestinians have too many children." More generally, the incident reinforced Moussa's belief that "Palestinians do not get careful attention from doctors like Lebanese [sic]."

C. Sharari's testimony

Sharari's testimony was taken at different times in 2000 and 2001 because of continuances granted to obtain additional pieces of evidence. In sum, Sharari generally confirmed the statements in his affidavit. However, he also testified to two additional incidents of abuse and torture in the mid-1980s, which he was describing for the first time.

First, Sharari testified that in 1985, while traveling to Beirut, he was shot at by members of the Amal militia, a Shi'a group, because he was Palestinian. After shooting Sharari in the leg, the militiamen seized him and brought him to the basement of a house. There, Sharari was held for fifteen days and "tortured every single day," which included being punched in the face. Other people also being held with Sharari were killed. Eventually, Sharari was released. He was treated at a hospital for sixteen days, although he did not have any medical records from his stay there.

Second, Sharari testified that in 1986, he was again seized by the Amal militia while traveling to Beirut. He was taken blindfolded to a crude basement jail, where he was detained for thirty days and interrogated. During interrogations he was beaten, burned, hung upside down "[a]lmost every day," and deprived of sleep at night by having water thrown on him.

Sharari also testified that the lone account of physical abuse in his affidavit had been inaccurate in three respects: the year, the length of detention, and the reason for his release. He testified that he had been seized in 1987, not 1986; that he had been detained for a day and a half, not three days; and that, although his aunt had tried to bribe someone, he was in fact released "in a different manner," without explaining what he meant by that remark.

When the government pressed Sharari to explain why he had omitted the 1985 and 1986 incidents from his affidavit, Sharari said: "I was afraid that from the injury I received, it would give the impression that I was a troublemaker or I was fighting or something like that."

D. Immigration judge's decision and the Board's affirmance

On March 28, 2002,...