Kurdi v. Lynch

Filing

OPINION issued by Jeffrey R. Howard, Chief Appellate Judge; Rogeriee Thompson, Appellate Judge and David J. Barron, Appellate Judge. Unpublished. [16-2029]

Case: 16-2029

Document: 00117142301

Page: 1

Date Filed: 04/14/2017

Entry ID: 6084077

Not for Publication in West's Federal Reporter

United States Court of Appeals
For the First Circuit
No. 16-2029
MUSTAFA AHMAD KURDI,
Petitioner,
v.
JEFFERSON B. SESSIONS, III,
Attorney General of the United States,*
Respondent.

PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS

Before
Howard, Chief Judge,
Thompson and Barron, Circuit Judges.

Saher J. Macarius, Audrey Botros, and Law Offices of Saher J.
Macarius LLC on brief for petitioner.
Victoria M. Braga, Trial Attorney, Office of Immigration
Litigation, U.S. Department of Justice, Joyce R. Branda, Acting
Assistant Attorney General, Civil Division, and Cindy S. Ferrier,
Assistant Director, on brief for respondent.

April 14, 2017

*

Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Jefferson B. Sessions, III has been substituted for former Attorney
General Loretta E. Lynch as respondent.

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HOWARD, Chief Judge.

Date Filed: 04/14/2017

Entry ID: 6084077

Petitioner Mustafa Ahmad Kurdi, a

native and citizen of Lebanon, asks us to review a Board of
Immigration Appeals ("BIA") order denying his claims for asylum,
withholding of removal, and protection under the United Nations
Convention Against Torture (“CAT”).

After careful consideration

of the briefs and the administrative record, we deny the petition.

I.
Kurdi entered the United States on a visitor's visa in
2006 and remained longer than permitted.
married a U.S. citizen.

That same year, he

Kurdi's wife filed a visa petition on his

behalf, but the Department of Homeland Security ("DHS") denied the
petition and filed a Notice to Appear charging Kurdi as removable
pursuant to Immigration and Nationality Act § 237(a)(1)(B).
An

immigration

judge

("IJ")

continued

Kurdi's

proceedings to allow his spouse to file another visa petition on
his behalf, which she did in December 2009.

Nearly two years

later, DHS denied this second petition, finding that the couple
had failed to meet their burden of proving the bona fides of their
marriage.
Kurdi

Only after this second denial -- some six years after

entered

the

United

States

--

did

Kurdi

seek

asylum,

withholding of removal, and protection under the CAT.
In his asylum application and in testimony before the
IJ, Kurdi claimed that between 1998 and 1999 -- that is, while he

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was completing a one-year period of compulsory service in the
Lebanese military -- a member of a group considered by the United
States

to

be

a

terrorist

organization

("the

organization")

approached Kurdi and asked him to act as an informant.

Kurdi

refused because he worried that becoming an informant would put
him and his family at risk; however, he also worried that he could
be killed for refusing.

Therefore, after rejecting the request,

Kurdi successfully sought transfer to another military post.

He

completed his military service without being contacted, let alone
threatened or harmed, by any members of the organization.
Kurdi applied for a visa to study in Germany after his
military service. He studied there between 2001 and 2006 but never
applied for asylum or refugee status in Germany because it was
"not on [his] mind.
Kurdi

[He] wasn't thinking of it."

returned

living in Germany.

to

Lebanon

on

three

occasions

while

He claimed that he returned, in spite of his

fears, because his father was ill, and his parents asked him to
visit.

During the first of these three visits, local police

detained Kurdi for one night; the detention, he speculated, was
spurred by interest in the car he was driving.

Though Kurdi

described the police as "rude," they never threatened or otherwise
harmed him.
harm him.

Nor did any members of the organization threaten or
No incidents occurred during Kurdi's two subsequent

visits to Lebanon.

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At his immigration hearing, Kurdi conceded that he had
not received any threats from the organization while living in the
United States.

Further, he admitted that his mother and several

of his siblings continued to live in Lebanon unharmed. He claimed,
however, that he remained fearful that the organization would seek
to harm him if he returned to Lebanon.
The IJ issued an oral decision denying Kurdi's claims
for relief on the merits and ordered him removed to Lebanon.

The

IJ found that, although Kurdi was credible, he failed to meet his
burden of showing either past persecution or a well-founded fear
of future persecution.1

The BIA affirmed the IJ's decision.

This timely petition for review followed.

II.
Kurdi challenges the BIA's denial of his claims for
asylum, withholding of removal, and protection under the CAT.
Where, as here, the BIA adopts the IJ's decision and reasoning, we
review both decisions under the deferential substantial evidence
standard.
2015).

Conde Cuatzo v. Lynch, 796 F.3d 153, 156 (1st Cir.

Under this rubric, we will not reverse "unless 'the record

1

Kurdi argues at some length on appeal that he was credible.
Yet, this is so much wasted breath, as the IJ accepted Kurdi's
testimony as credible, and the BIA did not disturb that finding.
Our analysis proceeds under the assumption that Kurdi testified
credibly.

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would

Document: 00117142301

compel

a

determination.'"
Cir. 2009)).

Page: 5

reasonable

Date Filed: 04/14/2017

adjudicator

to

reach

a

Entry ID: 6084077

contrary

Id. (quoting Lin v. Holder, 561 F.3d 68, 72 (1st

Kurdi cannot clear this high hurdle.

A. Asylum
In

order

to

qualify

for

asylum,

an

applicant

must

establish either past persecution, or a well-founded fear of future
persecution if repatriated, on account of one of five enumerated
grounds: race, religion, nationality, membership in a particular
social group, or political opinion. See 8 U.S.C. § 1101(a)(42)(A).
Ample evidence supports the IJ's conclusion that Kurdi's
experiences in Lebanon did not rise to the level of persecution.
The attempted recruitment alone is inadequate.

Cf. I.N.S. v.

Elías-Zacarías, 502 U.S. 478, 482 (1992) (attempted recruitment
does not constitute persecution on account of an individual's
political

opinion).

Here,

Kurdi

claims

that

he

suffered

persecution because "he was forced to change his lifestyle" out of
"fear and paranoia on a daily basis of being harmed" by the
organization because he declined to help it.

Yet, the record

plainly shows that no one in Lebanon threatened or harmed Kurdi at
any time.

Even accepting that Kurdi felt fearful, his experience

simply does not fit within our understanding of "'persecution'
[a]s an extreme concept," Fatin v. I.N.S., 12 F.3d 1233, 1243 (3d
Cir. 1993), that goes beyond mere "unpleasantness, harassment, and

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even basic suffering," Nelson v. I.N.S., 232 F.3d 258, 263 (1st
Cir. 2000).
Kurdi also points to his overnight detention by Lebanese
police.

But Kurdi himself linked this detention to interest in

his car rather than to a protected ground.

Even if we assume

arguendo that the detention was a harm rising to the level of
persecution, because Kurdi fails to "provide sufficient evidence
to forge an actual connection between the harm and some statutorily
protected ground," he cannot show eligibility for asylum on this
basis.

Lopez de Hincapie v. Gonzales, 494 F.3d 213, 218 (1st Cir.

2007).
We find no reason to disturb the IJ and BIA's conclusion
that Kurdi failed to show past persecution, as "[w]e cannot say on
these facts that the 'record compels a contrary conclusion.'"
Lumataw v. Holder, 582 F.3d 78, 91 (1st Cir. 2009) (quoting ElíasZacarías, 502 U.S. at 481 n.1).

Because Kurdi did not show that

he suffered past persecution, he was not entitled to a presumption
that he had a well-founded fear of future persecution.

See

8 C.F.R. § 1208.13(b)(1).
Kurdi argues that he nevertheless qualifies for asylum
because he provided evidence that he would be persecuted if
repatriated to Lebanon.2

Absent a showing of past persecution,

2

Kurdi also asserts that "the IJ failed to take into
consideration the country reports in considering [his] fear of
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Kurdi has a higher hurdle here.

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Under the circumstances, he must

harbor a genuine fear of future persecution and must establish an
objectively reasonable basis for that fear.
Gonzales, 427 F.3d 115, 121–122 (1st Cir. 2005).

See Nikijuluw v.
Kurdi's credible

testimony suffices to satisfy the subjective component.
at 122.

See id.

Therefore, as the IJ did, we focus our inquiry on the

objective component.

"An objectively reasonable fear . . . exists

if a reasonable person in the petitioner's circumstances would
fear persecution based on a statutorily protected ground."

Id.

On this record -- including the U.S. Department of State Country
Report -- there was substantial evidence for the IJ to conclude
that, although Lebanon is characterized by "general conditions of
violence

and

political

instability,"

a

reasonable

person

in

Kurdi's position would not fear persecution on account of a
protected ground.
We do not minimize reports of the organization's acts of
violence, but general criminal activity cannot ground a wellfounded fear of future persecution.

See Vasili v. Holder, 732

F.3d 83, 91 (1st Cir. 2013) (finding no well-founded fear of future
persecution despite Country Report that indicated presence of
criminal violence "as well as some corruption and incompetence
within the police force").

Moreover, Kurdi did not (conclusory

future persecution." On the contrary, the record shows that the
IJ cited and discussed current U.S. State Department reports.

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claims aside) show he would be targeted personally: there was no
evidence that members of the organization were looking for him,
and he lived in and visited Lebanon without threat or harm after
refusing to aid the organization.

Cf. Zhang v. Holder, 330 F.

App'x 201, 203 (1st Cir. 2009) (citing similar reasons to deny
petition for review).

In sum, the record considered as a whole

does not compel the conclusion that Kurdi has a well-founded fear
of future persecution.
Accordingly,

we

conclude

that

substantial

evidence

supports the agency's asylum determination.

B. Withholding of Removal
Because Kurdi failed to carry the burden of persuasion
for his asylum claim, his related claim for withholding of removal
necessarily fails.

See Villa-Londono v. Holder, 600 F.3d 21, 24

n.1 (1st Cir. 2010).

C. CAT
This brings us to Kurdi's final claim. The BIA concluded
that Kurdi had not established eligibility for protection under
the CAT, explaining that he failed to "demonstrate that [he] would
more likely than not be tortured in Lebanon by or with the
acquiescence of a public official or other person acting in an
official capacity."

The infliction of harm does not constitute

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torture within the meaning of the CAT unless the harm "is inflicted
by, at the direction of, or with the acquiescence of government
officials."

Lopez de Hincapie, 494 F.3d at 221.

Kurdi argues

here that the Lebanese government would be unable to control the
organization if he returns.

Though the record is murky on this

point, "[t]he very murkiness of the record means that we are not
compelled to decide otherwise, and it therefore makes the BIA's
conclusion invulnerable."

Flores-Coreas v. Mukasey, 261 F. App'x

287, 291 (1st Cir. 2008).

III.
For the forgoing reasons, we deny Kurdi's petition.

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