Mortagy v. Ashcroft

United States Court of Appeals
Fifth Circuit
F I L E D
August 15, 2003
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 02-60544
_______________
HESHAM A. MORTAGY,
Petitioner,
VERSUS
JOHN ASHCROFT,
U.S. ATTORNEY GENERAL,
Respondent.
_________________________
Petition for Review of an Order of
the Board of Immigration Appeals
m A75 345 985
_________________________
Before DAVIS, SMITH, and DUHÉ,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
The Board of Immigration Appeals (“BIA”)
dismissed Hesham Mortagy’s appeal of his
denial of asylum and withholding of de-
portation, finding that he is ineligible because
he has engaged in terrorist activity (as to asy-
lum) and because there exist reasonable
grounds to believe that he poses a danger to
the security of the United States (as to asylum
and withholding). For purposes of asylum, the
finding that he engaged in terrorist activity is
statutorily unreviewable. The finding that he
poses a danger to the security of the United
* Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.

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States is supported by the record, and
therefore Mortagy is also ineligible for
withholding. Accordingly, we dismiss the
petition in part and deny review in part.
I.
Mortagy was admitted to the United States
as a nonimmigrant visitor from Syria. The Im-
migration and Naturalization Service issued a
notice to appear, charging Mortagy as remov-
able under 8 U.S.C. § 1227(a)(1)(B) for
overstaying his visa. He admitted the factual
allegations in the notice and conceded de-
portability.
Mortagy applied for asylum and
withholding of deportation. The immigration
judge (“IJ”) determined that Mortagy was not
entitled to asylum or withholding of
deportation because he had not shown that he
had a well-founded fear of persecution. The IJ
ordered him removed.
Mortagy appealed to the BIA. It dismissed
the appeal, finding that he is ineligible for asy-
lum pursuant to 8 U.S.C. § 1158(b)(2)(A)(iv)
because there are reasonable grounds to
believe he poses a danger to the security of the
United States, and pursuant to § 1158(b)(2)-
(A)(v) because he had engaged in terrorist ac-
tivity. It also found he is ineligible for
withholding of deportation pursuant to 8
U.S.C. § 1231(b)(3)(B)(iv), again because
there are reasonable grounds to believe he
poses a danger to the security of the United
States. In its order, the BIA noted that Morta-
gy was associated with the Popular Front for
the Liberation of Palestine (“PFLP”) from
1980 to 1984; this group is on the State
Department’s List of Designated Foreign
Terrorist Organizations.1
II.
Mortagy petitions for review, contending
that the BIA erred in its determinations the he
has engaged in terrorist activity and that he
poses a danger to the security of the United
States. Though the Attorney General argues
that the BIA did not err in determining that
Mortagy poses a danger to the nation’s
security, he does not address the BIA’s finding
under § 1158(b)(2)(A)(v) that Mortagy
engaged in terrorist activity. Neither party
addresses whether § 1158(b)(2)(D) precludes
review of the finding under § 1158(b)(2)-
(A)(v); we raise the issue sua sponte2 and
conclude that the statute deprives this court of
appellate jurisdiction to review the asylum
determination.
Though the Attorney General has
discretionary power under § 1158(a) to grant
asylum, the general asylum rule does not apply
if he determines that the alien meets any of
several enumerated exceptions. See § 1158-
(b)(2). One such exception is listed under
subparagraph (A)(v), which, inter alia,
declares ineligible all aliens inadmissable under
8 U.S.C. § 1182 (a)(3)(B)(i) for having
“engaged in a terrorist activity.” See
§ 1158(b)(2)(A)(v).3
1 The PFLP is also known as the Popular
Liberation Front and as the George Habash
Organization.
2 See Giles v. NYLCare Health Plans, Inc., 172
F.3d 332, 335 (5th Cir. 1999) (“Before reaching
the merits, we must examine the basis of our ap-
pellate jurisdiction and, if there is doubt, we must
address it, sua sponte if necessary.”).
3 “Terrorist activity” is defined with exacting
(continued...)

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Section 1158(b)(2)(D) provides that
“[t]here shall be no judicial review of a
determination of the Attorney General under
subparagraph (A)(v).” This language
unambiguously denies this court jurisdiction to
consider the BIA’s finding under
§ 1158(b)(2)(A)(v).4 Because we may not
review the BIA’s determination that Mortagy
was ineligible for asylum pursuant to
§ 1158(b)(2)(A)(v), we will not consider the
remainder o f his petition with respect to
asylumSSthat the BIA’s determination under
§ 1158(b)(2)(A)(iv) was erroneous.
III.
Mortagy also seeks relief from the BIA’s
determination that he is ineligible for
withholding of deportation. An alien is eligible
for withholding of deportation if he shows that
returning him to a certain country would result
in threats to his life or freedom and would be
on account of his “race, religion, nationality,
membership in a particular social group, or po-
litical opinion.” § 1231(b)(3)(A). The BIA,
however, found that Mortgagy meets the
exception at § 1231(b)(3)(B)(iv), which
precludes withholding if “there are reasonable
grounds to believe that the alien is a danger to
the security of the United States.” § 1231(b)-
(3)(B)(iv).5 Mortagy contends that this finding
is erroneous. We must review this finding
(unlike the finding that he is ineligible for asy-
lum), both because there is no statutory bar to
review of this claim and because withholding
is a separate remedy from asylum. Mikhael v.
INS, 115 F.3d 299, 306 (5th Cir. 1997).
We review the BIA’s legal rulings de novo.
Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444
(5th Cir. 2001). Mortagy urges de novo
review here, asking us to consider whether his
past membership in the PFLP is, by itself, le-
gally sufficient to support the BIA’s finding
that he is a danger to the security of the United
States. The decision that an alien is not
eligible for withholding of deportation is itself
a factual finding, which we review “only to
determine whether it is supported by
substantial evidence.” Zamora-Morel v. INS,
905 F.2d 833, 838 (5th Cir. 1990).
Beyond Mortagy’s membership in the
PFLP, the Attorney General points to other
evidence in the record that supports the BIA’s
decision. For example, Mortagy testified that
in 1980 he spent several months in Lebanon
undergoing military and weapons training pro-
vided by the Palestinian Liberation
Organization. He later returned to Lebanon to
fight with the PFLP. Also according to his
3 (...continued)
detail at § 1182 (a)(3)(B)(iii).
4 We treat the powers of “judicial review” and
“jurisdiction” synonymously by this court, and
provisions similar to § 1158(b)(2)(D), in statute
and regulation, have been consistently interpreted
to deny jurisdiction. See Balogun v. Ashcroft, 270
F.3d 274, 277 n.9 (5th Cir. 2001) (finding that a
lack of jurisdiction was “confirmed in” 8 C.F.R
§ 208.18(e)(1), which states that “there shall be no
judicial appeal or review of” decisions under a sub-
section of the act there at issue); Garcia-Ortega v.
INS, 862 F.2d 564, 566 (5th Cir. 1989) (endorsing
the decision of an IJ who found that 8 U.S.C. §
1255a(f), which provides that “[t]here shall be no
administrative or judicial review of a determination
. . . ,” deprived this court of jurisdiction).
5 Because the BIA did not perform an analysis
of the merits of Mortagy’s claim apart from wheth-
er he qualified for an exception, his case would be
remanded, and he would still have to make the
requisite showings under § 1231(b)(3)(A) to
receive withholding, even if he succeeds on this
claim.

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testimony, he at various times gathered
intelligence for Syrian and Turkish officials.
He was recruited by Syria and Turkey for
numerous other spying duties, though he
asserts that he refused many of their requests.
Mortagy attempts, at times persuasively, to
mitigate this evidence and to characterize him-
self as a victim of manipulation and
persecution. We must, however, be mindful of
our limited standard of review. The BIA’s
finding that Mortagy is ineligible for
withholding of deportation because there exist
“reasonable grounds to believe” that he poses
a threat to the security of this country is
supported by substantial evidence.
For the foregoing reasons, the petition for
review is DISMISSED in part and DENIED in
part.

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