Main Kh Al Qudah v. ERIC R. HOLDER, JR., Attorney General

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0602n.06
No. 12-4235
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MAIN KH AL QUDAH,
Petitioner,
v.
ERIC R. HOLDER, JR., Attorney General,
Respondent.
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ON APPEAL FROM THE
BOARD OF IMMIGRATION
APPEALS
Before: BOGGS and SURHEINRICH, Circuit Judges; MURPHY, District Judge.*
STEPHEN J. MURPHY, III, District Judge. Main Al Qudah petitions for review of an
order of the Board of Immigration Appeals (the “Board”) denying his applications for asylum and
withholding of removal. We dismiss in part for lack of jurisdiction and deny the remainder of the
petition on the merits.
I.
Al Qudah, a native of Saudi Arabia and citizen of Jordan, entered the United States as a
nonimmigrant religious worker on November 3, 2000. Administrative Record (“A.R.”) 709, 194. His
visa authorized him to remain in the United States for three years. A.R. 709. In 2003, he was granted
an extension, allowing him to remain in the United States until May 13, 2004. Id. On May 12, 2004,
The Honorable Stephen J. Murphy, III, United States District Judge for the Eastern District*
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United States Citizenship and Immigration Services (“USCIS”) denied Al Qudah’s I-360 petition
for special immigration status, and on January 20, 2005, USCIS denied his I-129 petition for
nonimmigrant worker. Id. On December 28, 2005, the Department of Homeland Security initiated
removal proceedings, charging Al Qudah with removability pursuant to 8 U.S.C. § 1227(a)(1)(B)
for having remained in the United States beyond his authorized period of stay. Id. Al Qudah
conceded removability, designating Jordan as his country of removal, and requested relief in the form
of asylum, withholding of removal, protection under the Convention Against Torture (the “Torture
Convention”), and voluntary departure. Id. at 156-57. On May 29, 2009, he appeared before the
immigration judge and testified in support of his applications for relief.
The following facts about Al Qudah’s background are taken from his testimony. See id. at
177-267.
Al Qudah testified that he moved with his family from Saudi Arabia to Jordan, where his
parents had citizenship, when he was 14. Id. at 178. At age 17, he moved to Egypt for five years to
attend school. Id. at 179-80. He returned to Jordan in 1991 and remained there until 1997 when he
moved to Saudi Arabia. Id. at 180,193. The approximately seven-year period in Jordan after Al
Qudah returned from school is at issue here.
Al Qudah testified that after he returned to Jordan in 1991, he sought employment with the
government but, because of his beliefs, the government refused to hire him. Id. at 180, 183-84.
During this time, he was giving weekly speeches and lectures at his mosque, teaching Koran, and
participating in summer camps and field trips for Muslim youth. Id. at 181. In addition, in 1994 and
1995, he participated in peaceful demonstrations calling for the replacement of secular law in Jordan
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with Islamic law. Id. at 182-83. He was never “officially told” that he had been rejected for any
position or that he was rejected because of his beliefs, but he testified that his nonactivist colleagues,
without exception, were offered government jobs while he and other activists with the same religious
and political beliefs were not hired. Id. at 184. He testified that his siblings had difficulty finding
government jobs for the same reason. Id. at 197-99. After failing to find a government job, Al Qudah
worked in the private sector as a secretary for a few years, and then joined the International Islamic
Relief Organization, where he worked for two years. Id. at 180-81. Finally, he sought employment
abroad, and in 1997, a private school in Saudi Arabia offered him a teaching position. Id. at 186.
Al Qudah testified that Jordan requires citizens seeking to work abroad to apply for a
certificate of good behavior from the Jordanian government, and that to obtain such a certificate a
citizen must appear for an interrogation with the “central Jordanian intelligence.” Id. at 186, 248. An
officer, accompanied by a guard, conducted Al Qudah’s interrogation, which lasted five hours. Id.
at 188-89. Al Qudah testified that the officer screamed at him, used obscene language, and acted
aggressively. Id. at 188. Neither the officer nor the guard physically harmed him or touched him, but
he testified that “there was, a sort of, psychological, you know, pressure, and abuse, and threatening
of being beaten, and staying for a long time in the, in the, in the interrogation.” Id. at 189. Al Qudah
testified, “that’s the way they interrogate people in Jordan, unfortunately.” Id. The officer questioned
Al Qudah about his affiliations with Islamic organizations in Jordan. Id. at 190. In response, Al
Qudah disclosed that his father (who has since passed away) and uncle were then members of the
Muslim Brotherhood, “an Islamic political and social organization.” Id. at 190-91. Al Qudah was
not a member, but at his father’s request, he accompanied him to speeches and lectures and made
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several small donations to the organization. Id. At the conclusion of the interrogation, the officer told
Al Qudah that he could return home. Id. at 192. In a matter of a “few days, or few weeks,” Al Qudah
received the certificate authorizing him to work abroad. Id. at 193.
Within two months Al Qudah left for Saudi Arabia, where he remained for three years. Id.
He worked first as a teacher in a private school, then as a general secretary for the World Assembly
of Muslim Youth, and then as a professor at a Saudi Arabian university. Id. at 193, 220. In 2000, at
the invitation of the Islamic Society of Arlington, Texas, he came to the United States. Id. at 194.
Al Qudah testified that he believes that if he returns to Jordan there is a “high possibility”
that he will be arrested in the airport because he has been out of the country for twelve years and
because of his position as a Muslim scholar and his “history” in Jordan. Id. at 200. He further
testified that he believes he will be discriminated against in Jordan, that it will be hard for him to find
a job, and that he will possibly be subject to torture. Id.
The immigration judge denied Al Qudah’s request for asylum because he did not file it in
time. Id. at 139. She found Al Qudah’s testimony not credible, citing “numerous inconsistencies,
lack of specific testimony and detail, and lack of corroborating evidence.” Id. at 142. The
immigration judge also found that, even if Al Qudah’s testimony was credible, he did not show that
he was entitled to withholding of removal because he did not establish that he had been persecuted
in the past or a clear probability that he will be subject to persecution upon his return to Jordan. Id.
at 143-47. The immigration judge rejected his claim for protection under the Torture Convention,
finding that he failed to show that it is more likely than not that he would be tortured if removed to
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Jordan. Id. at 148-49. Finally, the immigration judge denied his claim for voluntary departure
because Al Qudah testified that his Jordanian passport is expired. Id. at 149.
The Board affirmed the immigration judge’s finding that Al Qudah did not timely file his
asylum application. Id. at 2. The Board did not address the immigration judge’s adverse credibility
determination. Instead, the Board accepted Al Qudah’s testimony as true and found that he is not
eligible for withholding of removal because “the incidents that the respondent describes — including
the inability to get a government job and intense interrogation when applying for a certificate to work
abroad — do not constitute past persecution,” and the record did not support a finding that he is more
likely than not to be persecuted in the future. Id. at 2-3. The Board also affirmed the immigration
judge’s determination that Al Qudah is not eligible for protection under the Torture Convention or
for voluntary departure. Id. at 3.
II.
“Where the [Board] reviews the immigration judge’s decision and issues a separate opinion,
rather than summarily affirming the immigration judge’s decision, we review the [Board’s] decision
as the final agency determination.” Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009) (citing
Morgan v. Keisler, 507 F.3d 1053, 1057 (6th Cir. 2007)). To the extent the Board’s decision adopts
the immigration judge’s reasoning, we review that portion of the immigration judge’s decision. Id.
III.
In his opening brief, Al Qudah presented arguments pertaining only to the denial of his
applications for asylum and withholding of removal. He has therefore waived review of the Board’s
decisions with respect to the Torture Convention and voluntary departure. See Wu v. Tyson Foods,
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Inc., 189 F. App’x 375, 381 (6th Cir. 2006) (“This court has consistently held that arguments not
raised in a party’s opening brief, as well as arguments adverted to in only a perfunctory manner, are
waived.”).
A. Asylum
The government argues that we do not have jurisdiction to review denial of Al Qudah’s
application for asylum. We agree.
Al Qudah arrived in the United States on November 22, 2000, but did not file his asylum
application until September 13, 2006. Generally, an alien seeking asylum must apply within one year
of arriving in the United States, unless he can show changed conditions affecting his eligibility for
asylum or extraordinary circumstances that caused him to file late. 8 U.S.C. § 1158(a)(2). As the
Board found, Al Qudah’s lawful non-immigrant status is an extraordinary circumstance that excuses
his failure to file within the one-year period. See 8 C.F.R. § 1208.4(a)(5)(iv) (providing that
“extraordinary circumstances” may include maintenance of lawful nonimmigrant status). But Al
Qudah was still required to file his application within a “reasonable period” after termination of his
lawful status. 8 C.F.R. § 1208.4(a)(5) (“[Extraordinary] circumstances may excuse the failure to file
within the 1-year period as long as the alien filed the application within a reasonable period given
those circumstances.”) (emphasis added). Noting that Al Qudah’s visa expired May 13, 2004, and
Al Qudah did not seek asylum until September 13, 2006, the Board determined that Al Qudah waited
“more than a ‘reasonable period’ after the termination of his lawful status,” and therefore deemed
his application time barred.
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This determination is not subject to our review. See 8 U.S.C. § 1158(a)(3) (providing that
“[n]o court shall have jurisdiction to review,” inter alia, rejection of an application as untimely).The
jurisdictional bar applies “only when the appeal seeks review of discretionary or factual questions,”
and does not preclude our review of constitutional claims or matters of statutory construction.
Vincent v. Holder, 632 F.3d 351, 353 (6th Cir. 2011). But Al Qudah does not raise any constitutional
or statutory construction claims with respect to the timeliness of his asylum petition; he offers only
an unsupported assertion that his application for asylum was filed within a reasonable time of
termination of his lawful status. See Pet’r’s Br. 18. Because we do not have jurisdiction to review
the Board’s determination to the contrary, we dismiss the petition for review with respect to this
issue.
B. Withholding of Removal
Al Qudah also argues that the Board wrongly denied his application for withholding of
removal. We disagree.
An applicant is entitled to withholding of removal if he can demonstrate a clear probability
that his life or freedom would be threatened in the proposed country of removal on account of race,
religion, nationality, membership in a particular social group, or political opinion. See 8 U.S.C. §
1231(b)(3)(A); 8 C.F.R. § 1208.16(b); see also Liti v. Gonzales, 411 F.3d 631, 641 (6th Cir. 2005)
(“To establish a clear probability, the applicant must demonstrate that ‘it is more likely than not’ that
he or she will be persecuted upon return.”). An applicant may meet the burden by establishing that
he has suffered “past persecution ” in the proposed country of removal on account of one of the five
listed grounds. 8 C.F.R. § 1208.16(b)(1)(i). A satisfactory showing of past persecution creates a
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rebuttable presumption that the applicant’s life or freedom would be threatened in the future if he
were removed. Id. In the absence of a showing of past persecution, an applicant may still meet his
burden by otherwise demonstrating that it is more likely than not that, if removed, he will be subject
to persecution on account of one of the five listed grounds. 8 C.F.R. § 1208.16(b)(2).
Our review is deferential. We will reverse the Board’s denial of Al Qudah’s application only
if it is “manifestly contrary to the law.” 8 U.S.C. § 1252(b)(4)(C); accord Almuhtaseb v. Gonzales,
453 F.3d 743, 749 (6th Cir. 2006). The Board’s determination is manifestly contrary to law if the
evidence “not only supports a contrary conclusion, but indeed compels it.” Yu v. Ashcroft, 364 F.3d
700, 702-03 (6th Cir. 2004) (citation omitted; emphasis in original). We defer to the administrative
findings of fact except when “any reasonable adjudicator would be compelled to conclude to the
contrary.” 8 U.S.C. § 1252(b)(4)(B); see also ” El Assadi v. Holder, 418 F. App’x 484, 486 (6th Cir.
2011) (“The ‘substantial evidence’ standard requires us to adopt the Board's findings of fact ‘[u]nless
any reasonable adjudicator would be compelled to conclude to the contrary.’ ”) (quoting Zhao v.
Holder, 569 F.3d 238, 246 (6th Cir. 2009)).
The Board found that, even accepting Al Qudah’s testimony as true, he did not establish
eligibility for withholding of removal, and we agree. Al Qudah claims that he was subject to past
persecution when the government refused to hire him and subjected him to an intense five-hour
interrogation when he sought to leave the country to work in Saudi Arabia. But as the Board
concluded, these events do not constitute persecution for the purposes of withholding of removal.
Persecution “requires more than a few isolated incidents of verbal harassment or intimidation,
unaccompanied by any physical punishment, infliction of harm, or significant deprivation of liberty.”
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Mikhailevitch v. INS, 146 F.3d 384, 389 (6th Cir. 1998). Evidence of physical harm is not a
prerequisite to finding persecution. Haider v. Holder, 595 F.3d 276, 286 (6th Cir. 2010).
“Persecution can include . . . economic restrictions so severe that they constitute a real threat to life
or freedom.” Li Wu Lin v. INS, 238 F.3d 239, 244 (3d Cir. 2001) (citing Chang v. INS, 119 F.3d
1055, 1066 (3d Cir.1997)). We “must view the evidence in the aggregate, as a collection of harmful
events, [that] even though they may not qualify individually as persecution, may taken together
constitute persecution.” Haider, 595 F.3d at 287 (alteration added, quotation marks and alteration
omitted). An applicant must show that he was “specifically targeted” and was not “merely a victim
of indiscriminate mistreatment.” Gilaj v. Gonzales, 408 F.3d 275, 285 (6th Cir. 2005).
As the Board found, the alleged five-hour interrogation does not constitute persecution
because according to Al Qudah’s testimony, he was not specifically targeted for interrogation or
interrogated harshly because of his particular beliefs: he testified that all citizens who seek to work
abroad must obtain a certificate of good behavior, A.R. 186; all applicants for certificates are
required to undergo interrogation, id. at 187, 248; and Jordan conducts all of its interrogations in the
same manner, id. at 189. Gilaj, 408 F.3d at 285.
The Board also correctly found that the government’s failure to offer Al Qudah a job — even
if motivated by animosity toward his beliefs — did not amount to persecution. “Economic
deprivation may rise to the level of persecution only when the resulting conditions are sufficiently
severe that they constitute a threat to the individual’s life or freedom.” El Assadi, 418 F. App’x at
486 (quoting Daneshvar v. Ashcroft, 355 F.3d 615, 624 n.9 (6th Cir. 2004) and In re Acosta, 19 I.
& N. Dec. 211, 222 (BIA 1985)) (quotation marks and citation omitted). “ ‘[A] sweeping limitation
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of opportunities to continue to work in an established profession or business may amount to
persecution even though the applicant could otherwise survive.’ ” Stserba v. Holder, 646 F.3d 964,
976 (6th Cir. 2011) (quoting In re T–Z–, 24 I. & N. Dec. 163, 174 (BIA 2007)). But the
government’s mere failure to hire an individual, without more, is not persecution. See Daneshvar,
355 F.3d at 624 (6th Cir. 2004) (declining to find persecution where “Petitioner was . . . able to
obtain employment, although his options were limited by his inability to work for the government”);
see also Zalega v. INS, 916 F.2d 1257, 1260 (7th Cir. 1990) (holding that applicant’s complaint that
“he could not get a government job commensurate with his education and training . . . did not rise
to the level of persecution”). If failure to secure a government position were sufficient, “every
patronage firing after every regime change in another country would establish a cognizable basis for
an asylum claim in this country.” Scavenger v. Mukasey, 313 F. App’x 816, 818 (6th Cir. 2008). Al
Qudah did not testify that the government took any action to disadvantage him economically, other
than failing to hire him. He was able to find work in the private sector and he does not contend that
the Jordanian government interfered with his private sector employment or with his departure to
work in Saudi Arabia. He testified that “[i]t was hard to stay in Jordan” and that he sought a job
overseas “to take care of my family,” A.R. 186, but those general statements aside, he did not testify
that he faced “severe economic disadvantage” as a result of the government’s failure to hire him. See
In re T-Z-, 24 I. & N. Dec. at 171, 173 (“[U]se of the term ‘severe’ as the benchmark for the level
of harm is consistent with the principle that persecution is an ‘extreme concept that does not include
every sort of treatment our society regards as offensive.’ ”) (citation omitted). Accordingly, his
testimony describes conduct that, while it may have been discriminatory, was not persecution. See
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Ali v. Ashcroft, 366 F.3d 407, 410 (6th Cir. 2004) (“[D]iscrimination without more does not rise to
the level of persecution.”) (citation omitted).
Al Qudah also argues that the Board “failed to evaluate the economic deprivation, in
conjunction with the fact that the Petitioner was harshly interrogated.” Pet’r’s Br. 21. Although the
Board did not state explicitly that the alleged economic deprivation and the interrogation would not
“when taken together constitute persecution,” Haider, 595 F.3d at 287, a review of the Board’s
decision reveals that it discussed and considered the evidence as a whole when making its
determination, and did not improperly weigh the incidents in isolation. See A.R. 2-3. Moreover,
because the interrogation requirement applies to all citizens who seek to work abroad, and the
government ultimately granted Al Qudah's certificate, the interrogation adds little to his claim of
economic deprivation. The Board reasonably determined that Al Qudah’s allegations, even taken
cumulatively, do not constitute persecution.
Because Al Qudah did not establish past persecution, he retained the burden to otherwise
show that he will more likely than not be subject to persecution if removed to Jordan. See 8 C.F.R.
§ 1208.16(b)(2). The Board concluded that he failed to do so. Citing the United States Department
of State’s 2009 Human Rights Report, the Board found that “the record does not establish that
Muslims who favor broader application of Islamic law are persecuted in Jordan.” A.R. 3. The Board
also found a lack of record evidence to support Al Qudah’s claim that Jordanians who are absent
from the country for a significant length of time are mistreated. Id. at 3. Although Al Qudah
submitted evidence that prisoners in Jordan are tortured, the Board noted that Al Qudah “has not
been imprisoned there and the record does not support a finding that he is more likely than not to be
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imprisoned in the future.” Id. Al Qudah does not challenge this portion of the Board’s decision on
appeal, but we note that it is supported by substantial evidence.
Accordingly, we find that Al Qudah did not demonstrate that it is more likely than not that
he will be persecuted upon return to Jordan, and we affirm the Board’s determination that Al Qudah
is not entitled to withholding of removal. Because we reach this conclusion having accepted Al
Qudah’s testimony as true, Al Qudah’s argument that the Board erred by failing to reverse the
immigration judge’s credibility determination is moot and we need not review it.
IV.
For the foregoing reasons, we DISMISS in part for lack of jurisdiction and DENY the
remainder of the petition for review on the merits.
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