Majd, et al v. Gonzales

United States Court of Appeals
Fifth Circuit
F I L E D
March 8, 2006
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 05-60141
_______________
LAOI SALAH MAJD; RAJAA TAHSIN NAJI BARAKAT; TAREQ LAOI MAJD,
Petitioners,
VERSUS
ALBERTO R. GONZALES,
UNITED STATES ATTORNEY GENERAL,
Respondent.
____________________________________
Petition for Review of an Order of
the Board of Immigration Appeals
______________________________
Before KING, SMITH, and BENAVIDES,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
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,
witholding of removal, and protection under
the Convention Against Torture (“CAT”). We
dismiss the petition in part and deny it in part.
I.
A.
Majd, a native of Libya holding a Palestin-
ian Authority (“PA”) passport, was admitted
to the United States in January 2002 as a non-
immigrant visitor. He overstayed his visa and
in April 2003 was charged by the Department

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of Homeland Security (“DHS”) with remov-
ability under 8 U.S.C. § 1227(a)(1)(B) for re-
maining in the country longer than permitted.
In a September 2003 hearing before an im-
migration judge (“IJ”), Majd conceded he was
removable as charged but requested asylum,
witholding of removal, and protection under
CAT, or, in the alternative, voluntary depar-
ture, claiming he was entitled to all such relief
because, as a Palestinian living in the West
Bank, he had been persecuted by Israeli forces.
B.
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 de-
tained, 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 regard-
ing 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 sol-
diers in the street. The soldiers were “shoot-
ing from everywhere.” Majd and another per-
son 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 check-
point line is generally considered suspicious
activity, the Israeli forces opened fire. A pas-
senger 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 sus-
pecting 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 ob-
jects 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

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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 authori-
ties.” 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 destruc-
tion of the family’s olive groves and stated that
because o f his experiences, he is essentially
confined to his village. The telephonic testi-
mony 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. Watchs-
mann commented on the general conditions of
unrest in the West Bank but stated that she
had no personal knowledge of Majd’s experi-
ences 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.
II.
After hearing this evidence, the IJ denied
Majd’s applications for asylum, witholding 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 witholding
of removal. The IJ found that the harm in-
flicted on Majd did not rise to the level of
torture, so relief under CAT was unavailable.
The BIA affirmed without opinion. Majd
appeals and further contends that he is a refu-
gee under 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.
III.
A.
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 con-
1 Majd did not testify that his brother was mis-
treated during his period of detention.
2 By statute, permission to depart the United
States voluntarily at the conclusion of removal pro-
ceedings “shall not be valid for a period exceeding
60 days.” 8 U.S.C. § 1229c(b)(2).

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clusions 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 sub-
stantial 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).
B.
The Attorney General has complete discre-
tion whether to grant asylum to eligible indi-
viduals. “[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 or-
dinarily amounts to persecution under the [Im-
migration and Nationality Act (“INA”)] . . . .”
Eduard v. Ashcroft, 379 F.3d 182, 188 (5th
Cir. 2004). Similarly, “[p]ersecution is not a
limitless concept . . . . [I]t does not encom-
pass all treatment that our society regards as
unfair, unjust, or even unlawful or unconstitu-
tional. If persecution were defined that expan-
sively, a significant percentage of the world’s
population would qualify for asylum in this
countrySSand it seems most unlikely that Con-
gress intended such a result. Persecution must
be extreme conduct to qualify for asylum pro-
tection.” Al-Fara v. Gonzales, 404 F.3d 733,
739 (3d Cir. 2005) (internal quotations and ci-
tations omitted).
There is a well-founded fear of persecution
if the alien has a subjective fear of persecution
that is objectively reasonable. See Lopez-Go-
mez v. Ashcroft, 263 F.3d 442, 445 (5th Cir.
2001). “[A]n applicant’s fear of persecution
cannot be based solely on general violence and
civil disorder.” Eduard, 379 F.3d at 190.
Unlike asylum, witholding of removal is not
discretionary. An alien may not be removed to
a particular country if it is determined that “the
alien’s life or freedom would be threatened in
that country because of the alien’s race, reli-
gion, nationality, membership in a particular
social group, or political opinion.” 8 U.S.C. §
1231(b)(3)(A). To be eligible for witholding
of removal, an alien must demonstrate an
objective “clear probability” of persecution in
the proposed country of removal. INS v.
Stevic, 467 U.S. 407, 413 (1984). Because
the level of proof required to establish eligibil-
ity for witholding of removal is higher than
that required for asylum, failure to establish
eligibility for asylum is dispositive of claims for
witholding of removal. See Eduard, 379 F.3d
at 186 n.2.
To obtain relief under CAT, an alien must
demonstrate not that he is a member of one of
the five protected categories of individuals ar-
ticulated in the eligibility standards for asylum
and witholding of removal, but rather that it is
more likely than not that he will be tortured if
he is removed to his home country. See Efe v.
Ashcroft, 293 F.3d 899, 907 (5th Cir. 2002).3
3 The relevant regulation defines torture as
as any act by which severe pain or suffering,
(continued...)

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To meet this burden, the alien may produce
evidence of past torture, an inability to relo-
cate to a safer part of the country, human
rights abuses committed within the country,
and any other relevant information. See 8
C.F.R. § 208.16(c)(3).
IV.
A.
The IJ determined that Majd was ineligible
for asylum and withholding of removal be-
cause the evidence demonstrated that his suf-
fering was the result of the generally danger-
ous conditions in the West Bank and did not
rise to the level of persecution on account of
one of the five statutorily-protected grounds.
For example, with regard to the March 2001
incident at Majd’s place of employment, the IJ
found that the evidence suggested that the Is-
raelis were attempting to apprehend a suspect-
ed terrorist in the area and that they fired on
Majd not because he was a Palestinian, but be-
cause he disobeyed a soldier’s order.
The IJ found that the search of Majd’s
house was not an action directed specifically at
Majd because of his race, nationality, religion,
political affiliation, or membership in a social
group. Rather, the Israeli forces were looking
to apprehend other individuals believed to be
hiding in the building, an operation that re-
quired a search of the entire building.
Similarly, the IJ concluded that Majd was a
mere bystander to the shooting incident at the
security checkpoint. That action by the Israeli
forces was again not directed specifically at
Majd, but was precipitated by the suspicious
activity of the occupants of another vehicle.
The IJ also found that the frustration of the
Majd family’s attempts to bring their harvest
to market and the destruction of the family’s
olive groves were caused by the pervasive
unstable conditions in the region, not by Israeli
actions directed at the family in particular.
With regard to the two occasions on which
Majd was detained, the IJ found that he did
not suffer any long-term deprivation of liberty
or permanent physical injury. Accordingly, the
IJ concluded that though the detentions could
be considered harassment, they did not consti-
tute persecution.
Finally, the IJ determined that the detention
of Majd’s brother and cousin shed no light on
how Majd would likely be treated on returning
to Israel, because those detentions were the re-
sult of circumstances specific to each man.4
Given that none of Majd’s suffering rose to the
level of persecution on account of one of the
five relevant statutory factors, the IJ concluded
that Majd did not have a well-founded fear of
future persecution.
3(...continued)
whether physical or mental, is intentionally in-
flicted on a person for such purposes as obtain-
ing from him or her or a third person informa-
tion or a confession, punishing him or her for
an act he or she or a third person has committed
or is suspected of having committed, or in-
timidating or coercing him or her or a third
person, or for any reason based on discrimina-
tion of any kind, when such pain or suffering is
inflicted by or at the instigation of or with the
consent or acquiescence of a public official or
other person acting in an official capacity.
8 C.F.R. § 208.18(a)(1) (2000).
4 Majd’s brother was detained because the Is-
raelis were investigating reports that there was a
weapons manufacturing facility located in the
building in which he lived. Majd’s cousin was de-
tained and his blacksmith shop destroyed because
the Israelis suspected he was using the shop to
manufacture weapons.

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The record fully supports the IJ’s determi-
nation regarding Majd’s ineligibility for asylum
and witholding of removal, and Majd points to
no evidence that compels any contrary conclu-
sion. Indeed, every piece of evidence pre-
sented by Majd indicates that he and his family
have been the victims of circumstance, not the
special targets of brutality. As another circuit
stated with regard to a region living under
disorder similar to that existing in the West
Bank, “[t]he general political upheaval that has
been the unfortunate reality in Gaza is obvi-
ously threatening for those who live there, but
such conditions in and of themselves do not
merit asylum.” Al-Fara, 404 F.3d at 742. Ac-
cordingly, we have no basis to question the
IJ’s denial of asylum and withholding of re-
moval.
B.
With regard to Majd’s claim for relief under
CAT, the IJ found that none of the harm done
to Majd constituted “severe pain or suffering
. . . intentionally inflicted [upon him] for such
purposes as obtaining from him . . . or a third
person information or a confession, punishing
him . . . for an act he . . . or a third person has
committed or is suspected of having commit-
ted, or intimidating or coercing him . . . or a
third person, or for any reason based on dis-
crimination of any kind . . . .” 8 C.F.R. §
208.18(a)(1) (2000) (emphasis added).
Again, Majd has brought forth no evidence
that compels us to reverse the IJ. Most of the
suffering he described was inflicted without
any specific intent on the part of the Israeli
forces in the West Bank. Additionally, on the
two occasions when Majd was detained, the
harm inflicted by the Israelis, although inten-
tional and for the purpose of extracting infor-
mation, did not rise to the level of severe pain
or suffering. Majd was held for only a short
time, and although he was not treated particu-
larly well, it cannot be said that roughing an
individual up and questioning him about his
work, family, and political affiliations amounts
to torture.
Similarly, the Israeli soldiers were certainly
intending to harm Majd when they shot at him
outside the bank. They did not so intend,
however, with a discriminatory purpose or a
goal of extracting information or a confession
from Majd, but rather because they were try-
ing to halt his escape. Thus, Majd’s claim for
relief under CAT fails.
V.
Majd contends that he qualifies as a refugee
pursuant to the 1951 Convention Relating to
the Status of Refugees (the “1951 Conven-
tion”) and attendant United Nations protocol.
He further argues that the handling of Pales-
tinian asylum claims such as his violates the
ABC Settlement Agreement, which arose out
of a class action lawsuit by immigrants from El
Salvador and Guatemala challenging the man-
ner in which United States immigration au-
thorities processed asylum claims filed under §
208(a) of the INA. See Am. Baptist Churches
v. Thornburgh, 760 F. Supp. 796, 799 (N.D.
Cal. 1991). Because, however, these claims
were not raised before the IJ or the BIA, we
lack jurisdiction to consider them and must
dismiss the petition for review in regard to
those issues. See Goonsuwan v. Ashcroft, 252
F.3d 383, 388-89 (5th Cir. 2001) (stating that
Ҥ 106(c) [of the INA] contains a jurisdictional
bar where an issue sought to be raised was not
first presented to the agency”).
Majd’s petition for review is accordingly
DISMISSED in part and DENIED in part.

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