JIHAN HATEM ALMUHTASEB, Petitioner, v. ALBERTO GONZALES, Attorney General, Respondent.
No. 04-3984
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
July 14, 2006
06a0246p.06
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206. On Petition for Review of an Order of the Board of Immigration Appeals. No. A95 149 806. Submitted: March 6, 2006. Before: BOGGS, Chief Judge; MOORE and COOK, Circuit Judges.
ON BRIEF: Thomas P. Adams, New Orleans, Louisiana, for Petitioner. Jonathan F. Potter, Douglas E. Ginsburg, U.S. DEPARTMENT OF JUSTICE, OFFICE OF IMMIGRATION LITIGATION, Washington, D.C., for Respondent.
OPINION
KAREN NELSON MOORE, Circuit Judge. Jihan Hatem Almuhtaseb (Almuhtaseb) petitions this court for review of the denial of her request for asylum, or, in the alternative, withholding of removal, by the Board of Immigration Appeals (BIA). Almuhtaseb’s petition allows us to consider for the first time the effect of
A. Background
Almuhtaseb was born in 1974 in Hebron, a city in the West Bank territory. According to Almuhtaseb’s asylum application, her father, a high school teacher, spoke out about the Israeli occupation of the West Bank and was imprisoned by the Israelis six separate times. Almuhtaseb’s brother and sister were also politically active and were each shot by the Israelis. They have been granted asylum in the United States based on their fear of persecution by the Israelis. Almuhtaseb states that other of her family members experienced similar or worse violence, and in 2002, three cousins of Almuhtaseb’s husband were killed by Israelis.
Almuhtaseb herself joined several Palestinian organizations during college and was active in organizing and participating in marches and demonstrations that opposed the Israeli occupation of the West Bank. Almuhtaseb asserts that she has experienced four separate incidents of harm by the Israelis, each of which occurred within a few years after the start of the First Intifada, or Palestinian uprising against the Israeli occupation, in 1987. During a demonstration on International Women’s Day in March 1988 or 1989, an Israeli soldier grabbed, beat, and pushed Almuhtaseb facedown on the ground. Almuhtaseb’s sister was shot at this demonstration. Also during the same time period, an Israeli soldier looking for rock-throwing children came to Almuhtaseb’s home. After inquiring about the children and hearing Almuhtaseb’s denial that they were there, the soldier sprayed her face with a chemical. Almuhtaseb’s father was arrested and jailed for a day when he tried to protect her from this attack. Almuhtaseb was also arrested and held overnight for participation in a demonstration during this time period. On another occasion in 1988 or 1989, an Israeli settler threw a stone at Almuhtaseb, striking her head.
Almuhtaseb first came to the United States on August 26, 1996, and returned to Hebron on August 26, 1997. She returned to the United States on December 7, 1997 and has not left since that time. In the United States, Almuhtaseb married a legal permanent resident and had two children. Almuhtaseb filed an application for asylum in 2001. She claims that she waited to request asylum because she was hopeful that the situation in the West Bank would improve. Almuhtaseb states that even after her brother was granted asylum in 1999, she did not know whether she would be eligible because, unlike him, she had not been shot. However, in 2001, when her sister was granted asylum and it appeared to Almuhtaseb that the violence in the West Bank heightened considerably, she filed her asylum application.
Almuhtaseb states that she fears that returning to the West Bank would expose her to shootings; shellings; bombings; settlers’ attacks; lack of infrastructure, education, jobs, and medicine; and the lack of access to medical care during periodic curfews. When asked why Almuhtaseb might be a particular target of persecution by the Israelis, she and her sister responded that she would be targeted based on her own and her family’s involvement in the resistance to the occupation and because her family had been persecuted and attacked by the Israelis. Administrative Record (A.R.) at 124 (Hearing Transcript (Hr’g Tr.) at 53).
B. Procedural History
On September 27, 2001, the Immigration and Naturalization Service (INS) sent Almuhtaseb a Notice to Appear for remaining in the United States beyond the time permitted by her visa. In her hearing before the Immigration Judge (IJ), Almuhtaseb conceded removability but denied Jordanian citizenship and requested asylum, or, in the alternative, withholding of removal, and protection under the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT) art. 3, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85. The IJ accepted the INS’s concession that Almuhtaseb was credible. A.R. at 62 (IJ Opinion
II. ANALYSIS
A. Asylum
Prior to the passage of the REAL ID Act, we held that our jurisdiction did not extend to review a denial of asylum based on a finding that a petition was untimely and that changed circumstances did not justify the delay in filing. See Castellano-Chacon v. INS, 341 F.3d 533, 544 (6th Cir. 2003) (interpreting and applying
The REAL ID Act § 106(a)(1)(A)(iii) amends § 242 of the INA so that the Code now provides that [n]othing . . . in any . . . provision of this chapter (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section.
We find the Second Circuit’s reasoning in Chen to be persuasive. See Chen, 434 F.3d at 151-54. Chen held that [t]he term constitutional claims clearly relates to claims brought pursuant to provisions of the Constitution of the United States. Id. at 151. The Second Circuit then determined that questions of law could not have its broadest conceivable meaning — anything pertaining to the work in which courts are engaged — because this would create surplusage with constitutional claims. Id. at 152. Moreover, such a broad construction would bring within [the jurisdiction of the courts of appeals] questions raised in certain kinds of claims that the INA expressly removes from [their] jurisdiction, such as the judgments that the INA states are unreviewable under
Because the statutory text does not suggest how questions of law should be narrowed, the Second Circuit looked to legislative history for such guidance. Id. at 153. The House Conference Report shows that pure questions of law was the terminology used in the original draft of the statute, and that pure was later struck because it was superfluous. Id. (quoting H.R. Rep. No. 109-72, at 175 (2005)). Importantly, [t]he word pure add[ed] no meaning because [t]he purpose of section 106(a)(1)(A)(iii) is to permit judicial review over those issues that were historically reviewable on habeas — constitutional and statutory-construction questions, not discretionary or factual questions. Id. (quoting H.R. Rep. No. 109-72, at 175). Therefore, the Second Circuit concluded that a question of law is a question regarding the construction of a statute. Id. (quoting H.R. Rep. No. 109-72, at 175). Other circuits have reached the same conclusion. Diallo, 447 F.3d at 1281-82; Ramadan, 427 F.3d at 1222.
Due to the persuasiveness of Chen’s reasoning and the agreement of several of our sister circuits on this issue, we adopt Chen’s interpretation. We accordingly modify the holding of Castellano-Chacon to bar our review of asylum applications denied for untimeliness only when the appeal seeks review of discretionary or factual questions, but not when the appeal seeks review of constitutional claims or matters of statutory construction.
Given the current law, we still do not have jurisdiction to review Almuhtaseb’s appeal of the denial of asylum because her claim before the BIA and this court is based on her assertion that the IJ incorrectly applied the changed circumstances provision. Almuhtaseb argues that the circumstances in the West Bank had changed such that the conditions were not just those associated with generalized violence, but rather that violence was now directed specifically at Palestinians on the basis of their nationality and political views. [T]he existence of changed circumstances that materially affect eligibility for asylum is a predominantly factual determination, which will invariably turn on the facts of a given case. Ramadan, 427 F.3d at 1221-22; accord Mehilli, 433 F.3d at 93. In this case, an assessment of Almuhtaseb’s argument regarding changed circumstances would require us to consider evidence regarding the nature of the violence in the West Bank to determine whether, as a matter of fact, Palestinians had become targets of violence on the basis of their nationality and political views. Because Almuhtaseb’s claim relies on contesting these sorts of factual determinations rather than on statutory construction or a constitutional claim, we are
B. Withholding of Removal
1. Requests for Withholding of Removal Under the Immigration and Naturalization Act and the Convention Against Torture
There are two provisions under which an alien can request withholding of removal: § 241(b)(3) of the INA,
2. Standard of Review
We review the BIA’s decision on a request for withholding of removal under the same standard regardless of whether the request was made pursuant to the INA or the CAT. Castellano-Chacon, 341 F.3d at 552. We will reverse the BIA’s determination against withholding of removal if it is manifestly contrary to law.
a. Past Persecution
The regulations governing the withholding of removal under the INA provide, much like those governing asylum, that when the applicant is determined to have suffered past persecution in the proposed country of removal on account of [a protected ground], it shall be presumed that the applicant’s life or freedom would be threatened in the future in the country of removal on the basis of the original claim.6
b. Future Persecution
Almuhtaseb’s fears of returning to the West Bank — shootings, shellings, bombings, settlers’ attacks, lack of infrastructure, and lack of access to medical care — are based on the existence of a generalized or random possibility of persecution in [her] native country, which is generally insufficient to establish persecution. Castellano-Chacon, 341 F.3d at 550; accord Singh v. INS, 134 F.3d 962, 967 (9th Cir. 1998) (holding that an alien must show that [she] is at particular risk — that [her] predicament is appreciably different from the dangers faced by [her] fellow citizens (quoting Kotasz v. INS, 31 F.3d 847, 852 (9th Cir. 1994))). Although there is opposing evidence in the record, see A.R. at 257 (Amnesty International Report) (alleging that Israeli forces sometimes detain Palestinians solely for the non-violent exercise of their rights to freedom of expression and association, and that the Israelis have tortured some of their detainees), the BIA’s statement, quoting a State Department report, that any abuses of human rights by the Israeli government are directed only toward Palestinians who it believes committed or will commit terrorist attacks towards Israeli citizens, BIA Op. at 3, is not such that any reasonable factfinder would be compelled to conclude to the contrary. In any event, regardless of the resolution of that issue, the evidence does not compel the conclusion that it is more likely than not that Almuhtaseb herself would be so detained and tortured, and thus we must affirm the BIA’s determination.
4. Withholding of Removal under the CAT
To qualify for withholding of removal under the CAT, an alien need not show that the harm she faces is based on one of the five grounds (race, religion, nationality, social group, political opinion) required under the INA, but rather must establish a particularized threat of torture. Castellano-Chacon, 341 F.3d at 551. In relevant part, torture means
any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as . . . punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
In considering whether it is more likely than not that an alien would be subject to torture were she returned to the country of removal, all evidence related to the chance of future torture should be assessed, including, but not limited to
- Evidence of past torture inflicted upon the applicant;
- Evidence that the applicant could relocate to a part of the country of removal where he or she is not likely to be tortured;
- Evidence of gross, flagrant or mass violations of human rights within the country of removal, where applicable; and
- Other relevant information regarding conditions in the country of removal.
The past acts of violence Almuhtaseb endured in the West Bank do not descend to the level of an extreme form of cruel and inhuman treatment,
III. CONCLUSION
Because we are without jurisdiction to review the denial of Almuhtaseb’s asylum application, we DISMISS that part of her petition. Because Almuhtaseb has failed to show that she is more likely than not to face persecution or torture were she to return to the West Bank, we AFFIRM the decision of the BIA to deny withholding of removal.