Filed: May 12, 2008
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 5-12-2008 Guirgis v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 07-1483 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Guirgis v. Atty Gen USA" (2008). 2008 Decisions. Paper 1241. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1241 This decision is brought to you for free and open access by the Opinion
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 5-12-2008 Guirgis v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 07-1483 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Guirgis v. Atty Gen USA" (2008). 2008 Decisions. Paper 1241. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1241 This decision is brought to you for free and open access by the Opinions..
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Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
5-12-2008
Guirgis v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-1483
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"Guirgis v. Atty Gen USA" (2008). 2008 Decisions. Paper 1241.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1241
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 07-1483
____________
AYOUB AZIZ GUIRGIS,
Petitioner,
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
____________
On Petition for Review from an
Order of the Board of Immigration Appeals
(Board No. A95-829-976)
Immigration Judge: Honorable Eugene Pugliese
____________
Submitted Under Third Circuit LAR 34.1(a)
May 6, 2008
Before: SCIRICA, Chief Judge, BARRY and HARDIMAN, Circuit Judges.
(Filed: May 12, 2008)
____________
OPINION OF THE COURT
____________
HARDIMAN, Circuit Judge.
Petitioner Ayoub Aziz Guirgis petitions for review of the Board of Immigration
Appeals’ (BIA) denial of his application for withholding of removal and protection under
the Convention Against Torture (CAT).1 We will deny the petition.
I.
Guirgis is a native and citizen of Egypt and a practicing Coptic Orthodox
Christian. He was active in his church throughout his youth and eventually became a
deacon. Until the age of nineteen, Guirgis encountered no resistance to his religious
beliefs or practices.
On May 12, 1990, while Guirgis was marching in a funeral procession from his
church in Alexandria, Egyptian police harassed and beat the participants. Guirgis
testified that he was beaten, shoved into a police car, and taken to the station where he
was beaten further, and lost consciousness. Guirgis was later informed that his father
retrieved him from the police station and took him to a medical clinic where he regained
consciousness. After this incident, Guirgis moved to his family’s summer home in El
Agamy, Egypt.
1
Guirgis also argues that the Immigration Judge (IJ) “abused his discretion when
determining what evidence was admissible.” Because Guirgis failed to raise this claim
before the BIA, it is waived. See Joseph v. Att’y Gen., 465 F.3d 123, 126 (3d Cir. 2006).
In any event, the claim lacks merit. See Singh v. Gonzales,
432 F.3d 533, 541 (3d Cir.
2006).
2
In El Agamy, Guirgis had an altercation with his neighbor, an Islamic extremist
named Isham. On March 15, 1991, as Guirgis was returning from his father’s store,
Isham insulted Guirgis’s religion and told him to stop playing his religious music and to
get rid of his dogs, which were “filthy” and “dirty” according to Isham’s religion. Guirgis
countered, “according to Islam, when you die you’re going to have 40 women that you
will sleep with . . . what happens when your mother dies, is she going to have 40 men to
sleep with?” This comment so incensed Isham that he stabbed Guirgis in the side.
Guirgis was taken to a clinic, but his injury resulted in permanent nerve damage.
On November 11, 1992, Guirgis left Egypt for Austria, where he remained for four
years. While in Austria, an unidentified person broke into Guirgis’s apartment and stole
his diary. The diary contained Guirgis’s thoughts on Islam, and Guirgis feared, based on
a warning from his father, that “there were people looking for [him]” who “were . . .
gonna beheaded [sic] [him] and hang [his] head at the door.”
Afraid to remain in Austria or return to Egypt, Guirgis entered the United States on
September 24, 1996. His parents and siblings remain in Egypt, where, according to
Guirgis, they are “doing lots of great things.”
On April 8, 2003, Guirgis was served with a Notice to Appear before an
Immigration Judge (IJ). Guirgis requested withholding of removal and CAT protection.
The IJ denied his application on January 3, 2006, and the BIA affirmed on January 19,
2007.
3
II.
We have jurisdiction pursuant to 8 U.S.C. § 1252(a). Because the BIA adopted the
IJ’s decision and expanded upon it, we review both decisions. Chen v. Ashcroft, 376 F.3d
215, 222 (3d Cir. 2004). We employ the familiar substantial evidence standard,
overturning the agency’s decision only if record evidence compels us to do so. 8 U.S.C.
§ 1252(b)(4); INS v. Elias-Zacarias,
502 U.S. 478, 481 (1992); Kibinda v. Att’y Gen.,
477
F.3d 113, 119 (3d Cir. 2007).
A.
An alien is eligible for withholding of removal if he can show that it is “more
likely than not” that he will be persecuted on account of his “race, religion, nationality,
membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A);
8 C.F.R. § 1208.16(b). Persecution includes “threats to life, confinement, torture, and
economic restrictions so severe that they constitute a threat to life or freedom,” but not
“all treatment that our society regards as unfair, unjust, or even unlawful or
unconstitutional.” Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993). Furthermore, the
persecution must come at the hands of the government or forces the government is unable
or unwilling to control. Lie v. Ashcroft,
396 F.3d 530, 537 (3d Cir. 2005); Gao v.
Ashcroft,
299 F.3d 266 , 272 (3d Cir. 2002). A rebuttable presumption of future
persecution arises if the alien successfully demonstrates past persecution. 8 C.F.R.
§ 208.16(b)(1)(i).
4
None of the incidents described by Guirgis qualify him for withholding of removal
under the applicable legal standard. The alleged attack by Egyptian police is insufficient
because no substantial evidence compels us to conclude that the attack was on account of
Guirgis’s religion.2 As the BIA observed, Guirgis could not explain with any specificity
why he was arrested,3 and the police made no reference to his religion.
His alleged attack by Isham is similarly insufficient. See Amanfi v. Ashcroft, 328
F.3d 719, 727 (3d Cir. 2003) (distinguishing persecution “on account of religion” from
“retaliation in response to a personal dispute”); see also Abdille v. Ashcroft,
242 F.3d 477,
494 (3d Cir. 2001) (criminal activity does not rise to the level of persecution). There is no
evidence that Isham was acting at the behest of the Egyptian government or represented a
force the government was unable or unwilling to control.
Lie, 396 F.3d at 537;
Gao, 299
F.3d at 272. Accordingly, we find that Guirgis suffered no past persecution.
Guirgis’s additional testimony, detailing incidents in which individuals stole his
diary and confronted his mother and brother about his whereabouts in 1996, does not
represent substantial evidence compelling us to find a clear probability of future
persecution. 8 C.F.R. § 1208.16(b)(2). Guirgis failed to identify these individuals or
2
It is unclear whether the attackers were Egyptian police. In an affidavit
submitted by Guirgis’s mother, she said Guirgis told her “he was attacked by Islamic
extremists.”
3
Guirgis did speculate, “[m]aybe, because, they were just picking up people that .
. . were walking in the procession . . . [m]aybe, because, I’m Christian.” Mere
uncorroborated speculation is not substantial evidence compelling us to reverse the BIA,
however. See Diallo v. INS, 232 F.3d 279, 285 (2d Cir. 2000).
5
their motives, and we cannot assume that they were targeting Guirgis because of his
religion or acting with the acquiescence of the Egyptian government. Id. Moreover, the
record contains evidence that contradicts Guirgis’s fear of future persecution insofar as
his parents and siblings remain in Egypt where they are “doing lots of great things,”
Lie,
396 F.3d at 537, and recent reports show increasing religious tolerance in Egypt.
Because substantial evidence does not compel us to conclude that it is more likely
than not that Guirgis will be persecuted upon his return to Egypt, we will not disturb the
BIA’s denial of his application for withholding of removal.
B.
Guirgis also requests withholding under the CAT. We find that the incidents
discussed above do not compel the conclusion that Guirgis suffered, or is likely to suffer,
torture as that term is defined in the CAT implementing regulations. 8 C.F.R.
§ 1208.18(a). For example, Guirgis submitted no substantial evidence that the Egyptian
police beat and arrested him during the funeral procession to obtain information, punish,
intimidate, or discriminate against him. § 1208.18(a)(1). Similarly, no substantial
evidence suggests that Isham stabbed Gurigis “at the instigation of or with the consent or
acquiescence of” the Egyptian government. Id. Finally, whatever harassment Guirgis
and his family suffered after Guirgis left Egypt, it did not amount to “an extreme form of
cruel and inhuman treatment.” 1208.18(a)(2). Accordingly, we will not disturb the BIA’s
denial of Guirgis’s CAT application.
6
III.
Having considered all of Guirgis’s arguments and finding that no further
discussion is necessary, we will deny Guirgis’s petition for review.
7
