Mourcous Morgan Morgan v. Eric H. Holder, Jr., Attorney General

United States Court of Appeals
For the First Circuit
No. 09-2632
MOURCOUS MORGAN MORGAN ET AL.,
Petitioners,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE BOARD
OF IMMIGRATION APPEALS
Before
Lipez, Selya and Howard, Circuit Judges.
Saher J. Macarius, with whom Audrey Botros and Law Offices of
Saher J. Macarius were on brief, for petitioners.
Tony West, Assistant Attorney General, Civil Division, United
States Department of Justice, with whom Anthony J. Messuri, Trial
Attorney, Office of Immigration Litigation, and J. Jocelyn Lopez
Wright, Senior Litigation Counsel, Office of Immigration
Litigation, were on brief, for respondent.
February 11, 2011

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In July of 1999 Erein Mansour Ibrahim arrived in the United 1
States. The couple wed within a matter of weeks, and Ibrahim is
named as a derivative beneficiary of Morgan's asylum application.
For ease in exposition we discuss the case as if it involved Morgan
alone.
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SELYA, Circuit Judge. The petitioner, Mourcous Morgan
Morgan, is an Egyptian national. Alleging that he fears
persecution on account of his Coptic Christian faith, he seeks
judicial review of a final order of the Board of Immigration
Appeals (BIA), which upheld an adverse decision by an immigration
judge (IJ). At the same time, he seeks judicial review of the
BIA's denial of his motion to remand. After careful consideration,
we deny the petition in all particulars.
Morgan entered the United States on September 23, 1998,
on a non-immigrant visa authorizing him to remain for one month.
He over-stayed and, in February of 1999, applied for asylum.1
After an asylum officer interviewed Morgan and declared
him ineligible for relief, the government instituted removal
proceedings. Morgan conceded removability and cross-applied for
asylum, withholding of removal, and protection under Article III of
the United Nations Convention Against Torture (CAT).
At an ensuing hearing, Morgan testified that he had been
mistreated in his homeland on account of his Coptic Christian
faith. He said that, in the summer of 1992, children whom he was
escorting to church were twice taunted and stoned by Muslim youths.
A year later, he and several other parishioners undertook a

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surreptitious and illegal expansion of the church facilities. When
a building inspector discovered the work, Morgan and his
compatriots were arrested and spent a night in jail. Some time
after his release, he refused to allow a Muslim man to enter the
church and the man cut him with a bottle. On the evening of
December 31, 1996, Morgan witnessed a water balloon strike a church
member. Morgan acknowledged, however, that it was customary to
toss water balloons on New Year's Eve.
Morgan's tale continued. He testified that, in April of
1998, he persuaded a Coptic Christian friend to break off her
romance with a Muslim man. Angered by Morgan's intervention, the
man threatened him. Soon thereafter, a group of men (ostensibly
friends of the jilted suitor) accosted Morgan and assaulted him.
When more threats followed, Morgan fled to the United States.
Morgan also related some second-hand information about
events allegedly occurring in Egypt after his departure. His
father had been struck by a speeding car, and Morgan alleged that
the spurned suitor had taken credit for this episode. Morgan
further alleged that the suitor made dire predications about
Morgan's fate should he (Morgan) return to Egypt.
At the conclusion of the hearing, the IJ considered
Morgan's testimony and reviewed copious documentary evidence
describing country conditions in Egypt. She ruled that Morgan had

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failed to carry his burden of proof on any of his claims for
relief. Accordingly, the IJ ordered his removal.
Morgan appealed, and the BIA affirmed without opinion.
Morgan then petitioned for judicial review. On October 16, 2002,
we dismissed the petition as untimely. Morgan v. INS, No. 02-2117
(1st Cir. Oct. 16, 2002) (unpublished order).
One week later, Morgan filed a motion to reopen with the
BIA, alleging changed circumstances. The BIA denied the motion as
failing to identify new and previously unavailable evidence of
changed circumstances. Morgan renewed his motion on July 7, 2005,
attaching numerous accounts of hardships suffered in contemporary
Egypt by the Coptic Christian population, accounts of recent
incidents involving members of Morgan's family, and assertions that
threats had been made against his life. The BIA granted the motion
and returned the case to the immigration court.
On remand before a different IJ, Morgan relied upon the
evidence that he had proffered to the BIA, supplemented by his
account of certain events involving relatives residing in Egypt.
He claimed that, in 2004, his brother Magdhin reported to the
police that four people had obstructed his car. In speaking with
the police, Magdhin did not characterize his assailants as "Muslim
extremists"; in a later telephone conversation with Morgan,
however, Magdhin did characterize them this way. Later that year,
the wife of Morgan's brother-in-law was abducted by five armed men.

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The brother-in-law believed that the kidnaping smacked of faith-
based hostility.
Morgan further testified that his two other brothers,
Michel and Michael, were attacked by five persons in early 2005.
Michael sustained bruises. He reported the incident to the police,
who went to the homes of the main suspects and left summonses with
their parents. Around this time, one of Morgan's brothers received
a mailing from an organization called "The Son of Mohamed's Group"
threatening the lives of Morgan and various family members.
In the end, the IJ found that Morgan had again failed to
carry his burden of proof and denied relief. Morgan appealed anew
to the BIA and, while his appeal was pending, moved to remand to
the IJ based on her ruling in an unrelated case, namely, In re
Abdelmasih, A096 265 892 (Apr. 2, 2009) (unpublished). Morgan
attached to his motion the most recent country reports for Egypt,
other generalized appraisals of country conditions there, and a
letter from an expert, which Morgan believes analogizes his
situation to that of the alien in Abdelmasih.
On November 19, 2009, the BIA affirmed the IJ's order of
removal and denied Morgan's motion to remand. This timely petition
for judicial review followed.
In this venue, Morgan contends that the BIA's order is
flawed because the agency did not make an explicit credibility
determination; that he carried his burden of proof; and that the

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denial of his motion to remand was an abuse of discretion. The
statutory framework permits us to consider both the removal order
and the denial of the motion to remand in a single proceeding. See
8 U.S.C. § 1252(b)(6). The two rulings, however, remain legally
distinct. See Zeru v. Gonzales, 503 F.3d 59, 69 (1st Cir. 2007).
We begin with the order of removal. Where, as here, the
BIA affirms and adopts an IJ's decision yet adds its own gloss, "we
review the two decisions as a unit." López Pérez v. Holder, 587
F.3d 456, 460 (1st Cir. 2009).
With respect to findings of fact, our assessment is
governed by the substantial evidence standard, which demands fealty
to findings of fact that are supported by substantial evidence on
the record as a whole. INS v. Elias-Zacarias, 502 U.S. 478, 481
(1992) (citing 8 U.S.C. § 1105a(a)(4)). Thus, rejecting a factual
finding is inappropriate unless the record is such as to compel a
reasonable factfinder to reach a different conclusion. López de
Hincapie v. Gonzales, 494 F.3d 213, 218 (1st Cir. 2007); Makhoul v.
Ashcroft, 387 F.3d 75, 79 (1st Cir. 2004).
Morgan's lead-off argument is that the IJ should have
made an explicit credibility determination. Although he suggests
that a credibility determination was critical to the disposition of
his claims, that suggestion finds no purchase in the record.
The lack of a credibility determination is a cause for
concern only when a claim turns on the veracity of the alien. See

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Wan Chien Kho v. Keisler, 505 F.3d 50, 56 (1st Cir. 2007). Because
an alien can demonstrate eligibility for relief through his own
credible testimony, see, e.g., Villa-Londono v. Holder, 600 F.3d
21, 24 (1st Cir. 2010), there are circumstances in which the
alien's credibility must be addressed. See Rotinsulu v. Mukasey,
515 F.3d 68, 73 n.1 (1st Cir. 2008). But a credibility
determination is superfluous when the alien's testimony, even if
taken at face value, is insufficient to compel an entitlement to
relief. See, e.g., Makhoul, 387 F.3d at 81. This is such a case.
The IJ's denial of relief was not premised on any
asserted doubts about Morgan's credibility. For aught that
appears, she assumed the factual truth of Morgan's testimony, yet
drew different conclusions from it than Morgan had hoped. We
explain briefly.
The IJ premised her decision on Morgan's failure to carry
his burden of proof. Read in context, this indicates that Morgan's
factual testimony, even if fully credible, was not such as to
support a favorable finding on any of his claims for relief.
Having come to this conclusion, the IJ had no obligation to go
further and make what would have been a gratuitous credibility
determination. See Nai Qing Xu v. Gonzales, 424 F.3d 45, 48 (1st
Cir. 2005).
This brings us to Morgan's more global claim that the
denial of asylum was not supported by substantial evidence. To be

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The record as to past persecution is exactly the same as it 2
was in 2002 (when the dismissal of Morgan's earlier petition for
judicial review became final). It is, therefore, at least arguable
that the issue of past persecution is no longer open. See United
States v. Moran, 393 F.3d 1, 7-8 (1st Cir. 2004); United States v.
Rivera-Martínez, 931 F.2d 148, 150-51 (1st Cir. 1991); see also
Enwonwu v. Gonzales, 232 F. App'x 11, 13-14 (1st Cir. 2007) (per
curiam). But because Morgan's claim fails on the merits, we need
not definitively resolve this point.
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eligible for asylum, an alien bears the burden of showing that he
is unwilling or unable to return to his native land due to 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); see id. § 1158(b)(1)(B). An
alien may demonstrate this well-founded fear directly or by means
of a presumption arising from a history of past persecution.2
López Pérez, 587 F.3d at 461. Either showing must include a
certain level of harm, see, e.g., Nikijuluw v. Gonzales, 427 F.3d
115, 120 (1st Cir. 2005); some nexus to governmental participation,
complicity, or unwillingness or inability to control the alleged
persecutors, Raza v. Gonzales, 484 F.3d 125, 129 (1st Cir. 2007);
and a link to one of the five statutorily protected grounds, see,
e.g., López de Hincapie, 494 F.3d at 217. In addition, the alien's
fear must be both subjectively genuine and objectively reasonable.
Laurent v. Ashcroft, 359 F.3d 59, 65 (1st Cir. 2004).
In this instance, the IJ accepted the genuineness of
Morgan's fear, so our inquiry focuses on objective reasonableness;
that is, whether a reasonable person in Morgan's circumstances

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Morgan's claims that he fears that he will be persecuted for 3
being "Westernized" or "Americanized" are not cognizable. See
Ahmed v. Holder, 611 F.3d 90, 94-95 (1st Cir. 2010). Accordingly,
we eschew any discussion of them.
Kidnaping, of course, is a more serious matter — but the one 4
allegation of kidnaping that is mentioned in the record here is
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would fear persecution on account of his religion. See Aguilar- 3
Solis v. INS, 168 F.3d 565, 572 (1st Cir. 1999); see also 8 C.F.R.
§ 208.13(b)(2). The standard is one of a "reasonable possibility
of future persecution." López de Hincapie, 494 F.3d at 218.
The IJ's finding that Morgan failed to sustain his claim
of a well-founded fear of future persecution may be upheld on any
one of three grounds. The first of these grounds relates to harm.
In the last analysis, persecution is a term of art in
immigration law. It connotes a level of harm that "requires that
the totality of a petitioner's experiences add up to more than mere
discomfiture, unpleasantness, harassment, or unfair treatment."
Nikijuluw, 427 F.3d at 120. Here, the totality of the evidence
belies Morgan's claim that he has established an objectively
reasonable fear of future persecution.
The harms described here are disagreeable but not
shocking. Being taunted, being cut by a bottle, being detained
overnight on a single occasion, and being subjected to threats are
unpleasant experiences, but determining whether described harms
rise to the level of persecution is, except in clear cases, a
judgment call — and is committed to agency discretion. We have 4

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only tangentially connected to Morgan.
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upheld agency determinations that harms considerably more egregious
than those described by Morgan failed to rise to the level of
persecution. See, e.g., Harutyunyan v. Gonzales, 421 F.3d 64, 66,
68 (1st Cir. 2005) (upholding denial of relief even though alien
had been threatened and beaten and his place of business burned to
the ground); Bocova v. Gonzales, 412 F.3d 257, 263-64 (1st Cir.
2005) (affirming denial of relief even though alien was subjected
to sporadic detentions and beatings). The most telling analogue is
our decision in Barsoum v. Holder, 617 F.3d 73 (1st Cir. 2010).
There, a Coptic Christian petitioner was targeted by the Muslim
Brotherhood in Egypt after he became friendly with a Muslim woman.
Id. at 77. Barsoum received repeated threats and was harassed
relentlessly in the aftermath of this interfaith relationship. Id.
at 77-78. He was then attacked and injured by persons implicitly
connected to the earlier threats. Id. We nevertheless concluded
that "[t]he BIA was not compelled to find that the harms Barsoum
suffered, even viewed collectively, rose to the level of
persecution." Id. at 80.
The more recent threats and attacks on Morgan's relatives
do not tip the balance. The cases cited by Morgan, in which
attacks on family members have led courts to vacate agency denials
of claims for relief, are easily distinguishable. See, e.g., Smith
v. Holder, ___ F.3d ___, ___ (1st Cir. 2010) [No. 08-2571, slip op.

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at 5-6] (remanding where petitioner, a political dissident who had
fled Zimbabwe after several arrests and severe beatings by the
police, produced specific evidence that government militia in
Zimbabwe recently had killed some family members and destroyed
their home); Malty v. Ashcroft, 381 F.3d 942, 945-46 (9th Cir.
2004) (remanding where alien's relatives in Egypt had suffered
brutal attacks, including torture, at the hands of government
operatives).
The second flaw in the tapestry of Morgan's argument
relates to the lack of any nexus between the described harms and
the Egyptian government. This is fatal because a finding of
persecution inevitably depends upon some link to governmental
action or inaction. Orelien v. Gonzales, 467 F.3d 67, 72 (1st Cir.
2006). Where, as in this case, the perpetrators of the alleged
harms are not themselves government actors (say, police officers or
soldiers), an asylum-seeker must show either that "the alleged
persecutors are in league with the government or [that they] are
not controllable by the government." Da Silva v. Ashcroft, 394
F.3d 1, 7 (1st Cir. 2005). Morgan has not made such a showing.
There is scant evidence in the record touching upon this
point. What little there is conduces to the opposite conclusion.
Except for Morgan's single arrest and overnight detention at the
hands of the police, Morgan's tormentors were all private citizens.
None of them had any apparent connection to the government. In

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The IJ found that Morgan's "problems began when he 5
interfered with someone else's relationship." To that extent, the
IJ added that his problems "certainly do not fall within the ambit
of persecution to be addressed by asylum or withholding of
removal."
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addition, the police reports that are in evidence reveal that the
authorities took reported incidents seriously and acted
appropriately with respect to the information that they received.
These actions included visiting the suspects' residences and
leaving summonses there. This evidence, combined with the absence
of any official complicity in the alleged mistreatment, constitutes
substantial evidence of the lack of a government nexus. In turn,
that supported finding is legally sufficient to defeat Morgan's
claim of persecution. See Orelien, 467 F.3d at 72.
We come next to the third infirmity in Morgan's argument.
The IJ held that Morgan failed to establish that the harms of which
he complains were suffered "on account of" his Coptic Christian
faith. Morgan's assertions to the contrary, the IJ said, were
speculative, not fact-based.5
Morgan challenges this finding. He contends that the
evidence in the record proves that he and his family were targeted
on account of their faith. But the IJ's rejection of this
contention is supported by substantial evidence. After all, there
is no real proof in the record that ties any of the alleged
persecution to religious animus; and an alien's speculation or
conjecture, unsupported by hard evidence, cannot compel a finding

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The record evidence of the motivation for the attacks on 6
Morgan's family is inconclusive given the absence in the police
reports and other documents of any assertion that they were on
account of religion. Neither the attorney letters Morgan submitted
nor the police reports corroborated his contention of religious
animus, and he did not offer sworn statements from his brothers
about their experiences.
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of the necessary link between alleged persecution and a statutorily
protected ground. See Pulisir v. Mukasey, 524 F.3d 302, 309 n.4
(1st Cir. 2008). In such a situation, the BIA is "not bound either
to accept that conjecture or to credit the petitioner's self-
serving conclusions." Id.6
This determination is in no way a judgment on Morgan's
credibility. Treating an alien's factual testimony as credible
does not entail acceptance of his conclusions as to causation.
See, e.g., López de Hincapie, 494 F.3d at 219. An IJ may reject
"speculation as to motive even while generally finding petitioner
credible as to historical facts." Ziu v. Gonzales, 412 F.3d 202,
204 (1st Cir. 2005) (per curiam) (citation omitted).
To sum up, we do not question the genuineness of Morgan's
fears. Yet it is firmly established that personal animosity, no
matter how real, does not suffice to justify a grant of asylum.
Romilus v. Ashcroft, 385 F.3d 1, 6 (1st Cir. 2004); Matter of
Mogharrabi, 19 I. & N. Dec. 439, 447 (BIA 1987). Even crediting
Morgan's factual testimony, the record in this case supports at
least three inferences on which a denial of asylum can rest. Here,
"the IJ's choice between those inferences is, a fortiori, supported

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by substantial evidence." López de Hincapie, 494 F.3d at 219.
Consequently, substantial evidence undergirds the agency's finding
that Morgan did not carry his burden of showing a well-founded fear
of persecution.
Having disposed of Morgan's asylum claim, we need not
linger long over his counterpart claim for withholding of removal.
Withholding of removal imposes a "more stringent burden of proof on
an alien than does a counterpart claim for asylum." Rodríguez-
Ramírez v. Ashcroft, 398 F.3d 120, 123 (1st Cir. 2005). This is so
because the alien must demonstrate "a clear probability of
persecution, rather than merely a well-founded fear of
persecution." Ang v. Gonzales, 430 F.3d 50, 58 (1st Cir. 2005).
It follows that "[w]hen an alien fails to establish a well-founded
fear of persecution sufficient to ground an asylum claim, a
counterpart claim for withholding of removal (that is, a claim
premised on essentially the same facts) necessarily fails." Amouri
v. Holder, 572 F.3d 29, 35 (1st Cir. 2009). So it is here.
Morgan's skeletal claim for relief under the CAT is
easily defenestrated. It is a settled rule that "issues adverted
to in a perfunctory manner, unaccompanied by some effort at
developed argumentation, are deemed waived." Nikijuluw, 427 F.3d
at 120 n.3 (quoting United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990)). Morgan's CAT claim is wholly undeveloped and,

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therefore, we deem it abandoned. See Ahmed v. Holder, 611 F.3d 90,
98 (1st Cir. 2010); Makhoul, 387 F.3d at 82.
Morgan also challenges the BIA's denial of his motion to
remand. He offers two bases for this challenge. First, he asserts
that there are important similarities between his case and
Abdelmasih, such that the IJ's grant of asylum there requires that
she take a fresh look at his case. Second, he suggests that the
newly produced evidence regarding conditions in Egypt warrants
remand. We find neither argument persuasive.
A motion to remand is not mentioned in the applicable
statutes, regulations, or recorded agency practice. See Falae v.
Gonzales, 411 F.3d 11, 14 (1st Cir. 2005). We therefore treat a
motion to remand as a motion to reopen. See Mariko v. Holder, ___
F.3d ___, ___ (1st Cir. 2011) [No. 09-1464, slip op. at 11-12]
("When . . . an appealing alien has filed a motion that seeks to
have the BIA return an appealed case to the IJ for further
proceedings based on newly available information, that motion,
however denominated, must satisfy the requirements that attend a
motion to reopen.").
"The BIA may rely on any of three independent grounds in
denying a motion to reopen: failure to make out a prima facie case
for the relief sought; failure to identify new and material
evidence, previously unavailable; or, even if these requirements
are met, failure to establish an entitlement to the discretionary

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Morgan wisely refrains from making a stare decisis argument. 7
It is plain that the unreported decision of a single IJ lacks
precedential force. See, e.g., Ang, 430 F.3d at 58.
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relief sought." Id. at ___ [No. 09-1464, slip op. at 12] (citing
INS v. Doherty, 502 U.S. 314, 323 (1992)); see 8 C.F.R.
§ 1003.2(c)(1). Judicial review of an order denying a motion to
reopen is for abuse of discretion. See Doherty, 502 U.S. at 323;
Falae, 411 F.3d at 14.
Morgan's first theory is misguided. Asylum cases,
virtually by definition, call for individualized determinations.
See Bocova, 412 F.3d at 263. An IJ's determination that one Coptic
Christian has a well-founded fear of persecution in Egypt does not
mean that all Egyptian Coptic Christians deserve asylum. To cinch
matters, the decision that Morgan embraces involves someone whose
circumstances are only vaguely similar to Morgan's. Merely saying
that a case is analogous without affording a principled basis for
an analogy has no persuasive force. See, e.g., S. Shore Hosp.,
Inc. v. Thompson, 308 F.3d 91, 102 (1st Cir. 2002). For these
reasons, the decision in Abdelmasih did not in any way establish a
prima facie case that Morgan was eligible for asylum.7
Morgan's second theory relies on an allegation that
country conditions in Egypt have changed noticeably. This theory
is equally unavailing.
The generalized country reports that Morgan relies on are
cumulative of other evidence in the record. They are not "new" in

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any meaningful sense. It follows that the BIA was justified in
denying a motion to reopen based on that evidence. See Ratnasingam
v. Holder, 556 F.3d 10, 15 (1st Cir. 2009); Tandayu v. Mukasey, 521
F.3d 97, 100-01 (1st Cir. 2008). The expert testimony suffers from
the same infirmity. What is more, Morgan has failed to show that
it was unavailable at the time of his hearing before the IJ.
If more were needed — and we doubt that it is — none of
this evidence shed light on Morgan's particular situation. That
fact serves to weaken its force as a lever for reopening. See,
e.g., Barsoum, 617 F.3d at 82; Tawadrous v. Holder, 565 F.3d 35, 39
(1st Cir. 2009); Tandayu, 521 F.3d at 101.
That ends this aspect of the case. We conclude, without
serious question, that the BIA's denial of Morgan's motion to
remand was not an abuse of discretion.
We need go no further. For the reasons elucidated above,
we deny the petition for review.
So Ordered.

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