Mohamed Ferjani v. Loretta Lynch

Filing

UNPUBLISHED OPINION FILED. [15-60530 Affirmed ] Judge: EHJ , Judge: RHB , Judge: GJC. Mandate pull date is 03/06/2017 [15-60530]

Case: 15-60530

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Date Filed: 01/12/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-60530
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
January 12, 2017

MOHAMED FERJANI,
Petitioner

Lyle W. Cayce
Clerk

v.
LORETTA LYNCH, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A200 725 044
Before JONES, BARKSDALE, and COSTA, Circuit Judges.
PER CURIAM: *
Mohamed Ferjani, a citizen of Tunisia, petitions for review of the Board
of Immigration Appeals’ (BIA) decision upholding the immigration judge’s (IJ)
denial of his application for withholding of removal.
Prior to visiting the United States, Ferjani was a resident of Mexico
during his marriage to a Mexican citizen, but his permission to remain there
ended in 2004. Ferjani lawfully entered the United States as a non-immigrant

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
*

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B2 visitor in February 2005, but remained past August 2005, without
authorization, and became employed for wages without authorization. The
Government issued a notice to appear in February 2011 and placed Ferjani in
removal proceedings.
At the removal hearing before the IJ, Ferjani conceded removability but
requested to proceed on an application for withholding of removal, claiming he
feared he would be persecuted if forced to return to Tunisia for having lived in
the West. The IJ rejected his request based on the determination Ferjani left
Tunisia for economic reasons and failed to meet his burden. Ferjani was
ordered removed, and his appeal to the BIA was dismissed.
Ferjani claims the evidence compels the conclusion that he fears
persecution if removed to Tunisia based on his membership in a particular
social group. We review only the BIA’s decision unless the BIA’s determination
was impacted by the IJ’s ruling. E.g., Wang v. Holder, 569 F.3d 531, 536 (5th
Cir. 2009). Whether an alien has demonstrated eligibility for withholding of
removal is a factual determination, reviewed for substantial evidence. Chen v.
Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006).

Under that standard, an

immigration court’s factual findings must be upheld unless “the evidence was
so compelling that no reasonable factfinder could conclude against it”. Wang,
569 F.3d at 537. It is Ferjani’s burden to demonstrate the evidence compels a
contrary conclusion. See Zhao v. Gonzales, 404 F.3d 295, 306 (5th Cir. 2005).
Ferjani is entitled to withholding of removal if he shows there is a “clear
probability” of persecution upon his return to Tunisia. See Kane v. Holder, 581
F.3d 231, 238 (5th Cir. 2009).

The “clear probability” standard has been

interpreted to mean “it is more likely than not that his life or freedom would
be threatened by persecution on account of race, religion, nationality,

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membership in a particular social group, or political opinion”. Id.; see also
8 C.F.R. § 1208.16(b)(2).
Ferjani’s contention that the IJ did not properly analyze whether he
suffered past persecution or feared future persecution is not supported by the
record. The IJ’s finding, with which the BIA agreed, that Ferjani did not suffer
past persecution or feared future persecution is supported by evidence. The
evidence established Ferjani first left Tunisia in 1991 to work for an
international luxury-vacation company at locations in the Caribbean.

He

moved to Mexico in 1994 and remained there for ten years, but returned to
Tunisia for his brother’s wedding in 2004. He was arrested during that trip
and held for a four-hour detention, but chose to remain in Tunisia an additional
five months after his arrest before returning to the United States. Although
Ferjani offered testimony that his brother had been jailed in Tunisia
arbitrarily for one week in 2010 and that Ferjani’s father told him men in
Tunisia were looking for him, the IJ properly concluded Ferjani’s decision to
remain five months after his arrest supported the conclusion he had not faced
persecution there. See Abdel-Masieh v. INS, 73 F.3d 579, 583–84 (5th Cir.
1996) (defining “persecution”). Having failed to establish past persecution, he
is not entitled to a rebuttable presumption that his life or freedom would be
threatened in the future in Tunisia. See 8 C.F.R. § 1208.16(b)(1)(i).
The record also does not support Ferjani’s assertion that the IJ
improperly analyzed whether he was a member of a particular social group.
The IJ and the BIA used the following factors to determine the existence of a
particular social group: “(1) whether the group’s shared characteristic gives
the members the requisite social visibility to make them readily identifiable in
society and (2) whether the group can be defined with sufficient particularity
to delimit its membership”. Orellana-Monson v. Holder, 685 F.3d 511, 518 (5th

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Cir. 2012) (emphasis in original) (internal quotation marks and citation
omitted).

Ferjani defined his purported group as individuals who fear

returning to their home countries after living in Mexico or the United States
because their home countries will persecute them based on the belief they will
corrupt society with Western ideas.
Substantial evidence supports the BIA’s determination that Ferjani was
not a member of a particular social group subjected to persecution. Ferjani has
not demonstrated the proposed group has the requisite social visibility or
immutable traits that make it readily identifiable or distinguishable from the
general population. See id. Moreover, although he urges his arrest in Tunisia
sets him apart from Tunisian society, the record is devoid of evidence
connecting Ferjani’s arrest and brief detention to the time he spent in Mexico
and the United States, or to a belief that his adaptation of Western values
posed a threat to Tunisian society.
DENIED.

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