Al Yatim v. Mukasey

• Decision Date: 03 July 2008
• Docket Number: No. 07-1456.,No. 06-3321.,06-3321.,07-1456.
• Parties: Nasri George AL YATIM; Jihan Elias Al Yatim; Eyad Nasri Al Yatim; George Nasri Al Yatim, Petitioners, v. Michael B. MUKASEY, United States Attorney General,<SMALL><SUP>1</SUP></SMALL> Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

531 F.3d 584

Nasri George AL YATIM; Jihan Elias Al Yatim; Eyad Nasri Al Yatim; George Nasri Al Yatim, Petitioners, v. Michael B. MUKASEY, United States Attorney General,¹ Respondent.

No. 06-3321.

No. 07-1456.

United States Court of Appeals, Eighth Circuit.

Submitted: October 18, 2007.

Filed: July 3, 2008.

Timothy E. Wichmer, argued, St. Louis, MO, for petitioners.

Allen W. Hausman, OIL, U.S.D.O.J., argued, Washington, DC, for respondent.

Before RILEY, MELLOY, and COLLOTON, Circuit Judges.

RILEY, Circuit Judge.

The Immigration and Naturalization Service (INS) initiated removal proceedings against Nasri George Al Yatim (Al Yatim) and his family, Jihan Elias Al Yatim, Eyad Nasri Al Yatim, and George Nasri Al Yatim (collectively, Al Yatims). The Al Yatims requested asylum, withholding of removal, and protection under the Convention Against Torture (CAT). An Immigration Judge (IJ) determined the Al Yatims were not likely to experience either persecution on the basis of a protected classification, or torture if returned to the Palestinian territory. The Board of Immigration Appeals (BIA) affirmed. After the radical Islamic political group Hamas won electoral control of the Palestinian Authority, the Al Yatims filed a motion to reopen, arguing that changed country conditions warranted a reevaluation. The BIA denied the motion to reopen. The Al Yatims challenge both the original agency determination they were ineligible for relief, and the denial of their motion to reopen. These petitions for review have been consolidated. We deny both petitions.

I. BACKGROUND

Al Yatim is a Palestinian Christian. Prior to coming to the United States, Al Yatim lived with his family in Beit Sahour, near Bethlehem, in the Palestinian territory of the West Bank. In the late 1980's, many young Palestinians, mostly Muslims, undertook an uprising against the Israeli government, known as the "Intifada." These Palestinians erected barricades and attacked the Israeli army by throwing rocks and other projectiles. The Al Yatims' house was located in the center of the conflict. At night, the Israeli army required the Al Yatims, at significant risk, to enter the street to clear rocks and other debris. During these clearings, the Al Yatims were fired upon, and Al Yatim suffered a significant back injury from the work, requiring surgery. Al Yatim was beaten several times by Israeli troops and his parked car was destroyed by gun fire exchanged between the warring parties.

In 1995, the area came under control of the Muslim dominated Palestinian Authority. In 2000, wide scale hostilities again erupted in a second "Intifada." Al Yatim testified that because many Christians were not participating in opposing the Israelis, Muslim animosity toward the Christians increased. Muslims even began firing weapons and throwing stones at the Israelis from Christian dominated neighborhoods, in order to draw Israeli fire to those areas. The Al Yatims' backyard water tank and the windows of his home were damaged repeatedly.

The Al Yatims observed and experienced numerous individual difficulties with Muslim Palestinians. Al Yatim testified (1) his friend was beaten after blowing his horn at a Muslim driver; (2) he had some tools stolen and Palestinian authorities did nothing; (3) the authorities would help Muslims, but would do little to help Christians; (4) his business, making crosses and religious sculptures for tourists visiting Bethlehem, was seriously vandalized by a Muslim employee, after Al Yatim declined the employee's request for a salary increase; and (5) Muslims would harass Christian women, making sexual comments and touching them inappropriately.

After overstaying their visas and being charged with removability, the Al Yatims conceded removability. The IJ denied asylum, withholding of removal, and CAT relief. The BIA upheld this decision on appeal. After Hamas, a radical Muslim group, won electoral control of the Palestinian Authority, the Al Yatims filed a motion to reopen the BIA proceedings, on the basis that changed circumstances warranted reconsideration. This motion was denied.

II. STANDARDS OF REVIEW

Where "[t]he BIA's decision is the final decision of [the] agency ... it is the subject of our review." Salkeld v. Gonzales, 420 F.3d 804, 808 (8th Cir.2005) (citation omitted). "To the extent, however, that the BIA adopted the findings or the reasoning of the IJ, we also review the IJ's decision as part of the final agency action." Id. (citation omitted). When we review a BIA determination regarding eligibility for asylum, the BIA's findings are reviewed under a substantial evidence standard. See Zheng v. Gonzales, 415 F.3d 955, 959 (8th Cir.2005). The BIA's findings regarding eligibility for withholding of removal or CAT relief are also reviewed for substantial evidence. See Mouawad v. Gonzales, 485 F.3d 405, 413 (8th Cir.2007). This is an "extremely deferential standard of review[.]" Salkeld, 420 F.3d at 809. Under the substantial evidence standard, the agency's findings of fact "must be upheld unless the alien demonstrates that the evidence he presented not only supports a contrary conclusion but compels it." Sultani v. Gonzales, 455 F.3d 878, 881 (8th Cir.2006) (citation omitted) (emphasis added).

III. RELIEF REQUIREMENTS

The Attorney General has discretion to grant asylum to a refugee. See Makatengkeng v. Gonzales, 495 F.3d 876, 881 (8th Cir.2007). To establish eligibility for asylum, the Al Yatims must show they are "unable or unwilling to return to ... [the West Bank] 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). "[P]ersecution is an extreme concept" that excludes "[l]ow-level intimidation and harassment." Shoaira v. Ashcroft, 377 F.3d 837, 844 (8th Cir.2004) (internal quotation marks and citations omitted). Persecution includes the credible threat of death, torture, or injury to one's person or liberty on account of a protected ground. See Regalado-Garcia v. INS, 305 F.3d 784, 787 (8th Cir.2002). If past persecution is established, a well-founded fear of future persecution must be presumed. 8 C.F.R. § 1208.13(b)(1). "Without the benefit of the presumption, an asylum applicant may prove a well-founded fear of future persecution by showing an objectively reasonable fear of particularized persecution." Makatengkeng, 495 F.3d at 881 (internal quotation marks and citation omitted). "The fear must also be `subjectively genuine.'" Id. (citation omitted).

Although non-discretionary, "[t]he burden of proof for withholding of removal is higher than that required for asylum." Aziz v. Gonzales, 478 F.3d 854, 858 (8th Cir.2007) (citation omitted). To qualify for withholding of removal, the Al Yatims must show a clear probability of persecution in the proposed country of removal on the basis of race, religion, nationality, membership in a particular social group, or political opinion. See Mouawad, 485 F.3d at 411 (citing 8 C.F.R. § 1208.16(b)).

To obtain CAT relief, the Al Yatims must show they will "more likely than not" suffer torture if returned to Palestine. 8 C.F.R. § 1208.16(c)(2). "Torture is defined as an act by which severe pain or suffering, whether physical or mental, is intentionally inflicted, and it is an extreme form of cruel and inhuman treatment; it does not include lesser forms of cruel, inhuman, or degrading treatment." Krasnopivtsev v. Ashcroft, 382 F.3d 832, 840 (8th Cir.2004) (citation omitted).

IV. DISCUSSION

A. Asylum

The Al Yatims assert two manners in which they will be subjected to persecution if returned to the Palestinian territory. First, the Al Yatims contend they were persecuted, and face future persecution, by the government of Israel on the basis of their Palestinian ethnicity. Second, the Al Yatims claim they face persecution "at the hands of the Muslim Palestinian authorities" on the basis of their Christianity.²

1. Persecution by the Israeli Government

The IJ determined the Al Yatims failed to demonstrate they would be persecuted by the Israeli government on the basis of their Palestinian ethnicity or Christianity. The BIA affirmed this finding, noting "the lead respondent stated that he does not fear harm from the Israeli government." The BIA further determined the difficulties the Al Yatims face in the Palestinian territories are not "on account of" a protected ground, but rather simply due to a "general state of unrest throughout the area."

The record does not compel a different conclusion. As to the Al Yatims' contention they faced past persecution from the Israeli government based upon their status as Palestinians, the record supports the BIA's determination that these difficulties were part of a "general state of unrest throughout the area." Such a situation is typically insufficient to qualify as persecution. See Mohamed v. Ashcroft, 396 F.3d 999, 1003 (8th Cir.2005) ("Harm arising from general conditions such as anarchy, civil war, or mob violence will not ordinarily support a claim of persecution." (citations omitted)). There is no indication the Israelis' treatment of the Al Yatims was particularized as to them. On the contrary Al Yatim admitted the Israelis selected "any Arab they [could] get to clean the streets[,]" and the violence surrounding their home was due to the home's unfortunate location where "the Muslims were at one end of the street and the Israelis at the other." Thus, the agency's determination the Al Yatims did not face past persecution by the Israeli government is supported by substantial evidence. See id. ("To be eligible for asylum, the harm suffered must be particularized to the individual rather than suffered by the entire population." (citation omitted)).

Even without a showing of past persecution by the Israelis, the Al Yatims could still earn relief by demonstrating a fear of particularized persecution that...