2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-14-2013

Mahmut Uzun v. Attorney General United States

Precedential or Non-Precedential: Non-Precedential

Docket No. 13-2142

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 13-2142

____________

MAHMUT UZUN,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

__________________________________

On a Petition For Review of an Order

of the Board of Immigration Appeals

(Agency No. A087-391-974)

Immigration Judge: Dorothy Harbeck

__________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

August 14, 2013

Before: VANASKIE, SCIRICA and COWEN, Circuit Judges

(Opinion filed: August 14, 2013)

____________

OPINION

____________

PER CURIAM

Mahmut Uzun (“Uzun”) petitions for review of the Board of Immigration 

Appeals’ final order of removal. For the reasons that follow, we will deny the petition for 

review.
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Uzun, a native and citizen of Turkey, was admitted to the United States as a nonimmigrant F-1 student in October, 2005 with authorization to remain for a period of six 

months. He subsequently received extensions permitting him to remain in the United 

States until May 15, 2008. On March 30, 2010, the Department of Homeland Security 

issued a Notice to Appear, charging that Uzun was removable under Immigration & 

Nationality Act § 237(a)(1)(C)(i) and (B), 8 U.S.C. § 1227(a)(1)(C)(i) and (B), for having 

failed to maintain his student status, and as an alien who remained in the United States 

for a time longer than permitted. He does not contest that he is removable. On 

September 15, 2010, Uzun applied for asylum, withholding of removal, and protection 

under the Convention Against Torture, claiming a fear of persecution on the basis of his 

secularism in an allegedly increasingly Islamic Turkey.

On January 5, 2011, Uzun appeared for his removal hearing. He testified as 

follows. He was born in 1980 in Ankara. His parents and eldest brother continue to live 

in Turkey; his other brother and sister are here in the United States. He began 

experiencing problems in 1995 while attending high school. A friend enrolled him in a 

nationalist, or religious extremist, group without his knowledge or consent, and thereafter 

he was pressured to attend meetings. He attended two meetings, fearing punishment by 

the group for failing to obey its rules. In 1997, he was forced to act as a bodyguard for 

one of the party leaders at a party meeting. In 1998, his older brother was caught having 

a meal with a friend in a cafeteria during the month of Ramadan. After the two men left 

the cafeteria, they were followed by Islamic fundamentalists and attacked. His brother’s 

friend was stabbed many times and his brother was beaten. The friend succumbed to his 
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injuries a few days later. The story was picked up by the media and widely reported 

throughout Turkey. Uzun, however, was not present during this incident.

In 2000, Uzun graduated from high school and enrolled in a university. Many 

extremists were in attendance at the university. On one occasion he was threatened and 

humiliated because he wore a “goatee,” which this group told him was not accepted in the 

religion because it is not a full beard. Another time he was harassed while holding his 

girlfriend’s hand and warned that what he was doing was prohibited outside of marriage. 

Then, while waiting at a bus stop near the university, five members of the nationalist

group surrounded him and beat him up; he was not seriously injured but he required a 

week of rest and recuperation.

In 2003, Uzun moved in with a friend after his family moved away. He and his 

friend were harassed and threatened for drinking alcohol in the privacy of their 

apartment. Eventually, they were evicted. They moved to another apartment closer to 

the university, but were harassed by their neighbors when female students would come 

over to study. They were only able to stay in the apartment because they stopped having 

female visitors. Uzun decided to study in the United States to improve his English, get a 

Master’s Degree in Engineering, and get away from the problems in Turkey. He initially 

came to the U.S. on a student visa in 2004, and then returned to Turkey after four months. 

He subsequently departed Turkey for good in October, 2005. 

Uzun testified that he is afraid that, if he is removed to Turkey, he will be targeted 

by Islamic fundamentalists. He believes that the AK party, the regime currently in 

power, is seeking to impose Sharia law. Uzun cannot live in this environment. In 
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support of his claim, his brother, who was beaten in Turkey, and his former roommate 

from Turkey, both testified. His brother confirmed the attack where he was beaten and 

his friend was stabbed and killed. Uzun also submitted news articles substantiating the 

attack, and dozens of background documents addressing country conditions in Turkey, 

including the 2009 State Department Report on Human Rights Practices.

The Immigration Judge denied Uzun’s application for relief and granted him 

voluntary departure, with an alternate order of removal. The IJ found Uzun credible, but 

held that his asylum application was untimely, and that he had not met his burden of 

proof with respect to withholding of removal and CAT relief. Preliminarily, the IJ recited 

the names of all of Uzun’s media articles, and announced that only one – from Wikinews 

– would not be afforded evidentiary weight. The IJ then turned to the withholding of 

removal claim and determined that what happened to Uzun constituted harassment or 

discrimination, not persecution. The IJ concluded that what Uzun experienced at the 

hands of Islamists or nationalists did not rise to the level of the severe harm required to 

constitute persecution. The IJ further determined that Uzun did not establish a wellfounded fear of persecution in Turkey, and thus necessarily a clear probability of 

persecution. The IJ determined that Uzun’s fear that Turkey will become an Islamic state 

ruled by Sharia law was mere speculation that lacked support in the record. There was no 

evidence that Uzun would be singled out for persecution, or evidence that the 

mistreatment of secularists in Turkey is pervasive. The IJ noted Uzun’s documents 

reporting, for example, on Prime Minister Erdogan’s fundamentalist AK political party, 

but observed that Erdogan became Prime Minister in 2002 and had yet to force Sharia 
5

law on Turkey. The IJ noted media reports that the Turkish government continues to 

enforce the head scarf ban in public buildings, and, that, according to the State 

Department, the Turkish Constitution protects religious freedom. As for the other articles 

Uzun submitted discussing topics such as the Israeli blockade of Gaza and the Turkish 

Gaza-bound aid ship that was attacked, and Turkey’s treatment of conscientious 

objectors, the IJ found that these articles were not directly probative of Turkish 

secularism. The IJ also noted that Uzun’s parents and eldest brother remain in Turkey 

and have not been harmed, and Uzun voluntarily returned to Turkey in 2004 and was not 

harmed. Last, the IJ concluded that Uzun had not shown that it was more likely than not 

that he would be tortured in Turkey.

Uzun timely appealed to the Board of Immigration Appeals. On March 29, 2013, 

the Board dismissed Uzun’s appeal and adopted and affirmed the IJ’s decision. The 

Board agreed with the IJ that Uzun failed to demonstrate that the harm he suffered, even 

if the incidents were considered in the aggregate, rose to the level of persecution. The 

Board also agreed that there was insufficient evidence to demonstrate that Uzun has a 

well-founded fear of persecution, either because he will be singled out for persecution or 

because there is a pattern or practice in Turkey of persecution of secularists. In reaching 

this conclusion, the Board took administrative notice of, and considered, the State 

Department’s 2010 Human Rights Report, which Uzun submitted for the first time on 

appeal. The Board also affirmed the IJ’s denial of CAT relief.

Uzun has timely petitioned for review of the Board’s decision. We have 

jurisdiction under 8 U.S.C. § 1252(a)(1), (b)(1). Uzun contends in his brief that the 
6

agency erred by limiting its past persecution analysis to only five specific instances of 

harm, and that the agency’s determination that he failed to demonstrate a clear probability 

of persecution in Turkey is not supported by substantial evidence.1

We will deny the petition for review. Where the Board determines, as it did here, 

that the IJ’s factual findings are not clearly erroneous and expressly adopts the IJ’s legal 

conclusions, we review the decisions of both the IJ and the Board. See Chen v. Ashcroft, 

376 F.3d 215, 222 (3d Cir. 2004). The agency’s “findings of fact are conclusive unless 

any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 

1252(b)(4)(B). See also Immigration & Naturalization Serv. v. Elias-Zacarias, 502 U.S. 

478, 481 (1992).

An alien may qualify for withholding of removal by demonstrating that he has 

suffered persecution in the past, in which case a rebuttable presumption of future 

persecution applies. See Garcia v. Att’y Gen. of U.S., 665 F.3d 496, 505 (3d Cir. 2011). 

See also 8 U.S.C. § 1231(b)(3)(C) (“In determining whether an alien has demonstrated 

that the alien’s life or freedom would be threatened ... the trier of fact shall determine 

whether the alien has sustained the alien’s burden of proof” in the manner described in 

the asylum statute). If the rebuttable presumption of future persecution does not apply, 

an alien may meet his burden by showing a “clear probability” that his life or freedom 

would be threatened on account of a protected ground in the proposed country of 

removal. Immigration & Naturalization Serv. v. Stevic, 467 U.S. 407 (1984). Clear 

 

1 Uzun does not challenge the agency’s CAT determination or determination that his 

asylum application was untimely filed. These issues are waived. See Kost v. 

Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993).
7

probability is defined to mean that it is more likely than not that an alien would be subject 

to persecution. See id. at 429-30. And, as with any claim of persecution, the acts must 

be committed by the government or forces the government is either unable or unwilling 

to control. See Garcia, 665 F.3d at 505. 

Persecution is defined as “threats to life, confinement, torture, and economic 

restrictions so severe that they constitute a threat to life or freedom.” Kibinda v. Att’y 

Gen. of U.S., 477 F.3d 113, 119 (3d Cir. 2007) (quoting Fatin v. Immigration & 

Naturalization Serv., 12 F.3d 1233, 1240 (3d Cir. 1993)). Persecution refers only to 

“severe” conduct and “does not encompass all treatment our society regards as unfair, 

unjust or even unlawful or unconstitutional.” Id. Here, the agency reasonably 

determined that Uzun’s two verbal encounters in high school, the beating at the bus stop

where he was not seriously injured, the eviction, and the subsequent harassment when he 

and his college roommate moved to a new apartment, considered in the aggregate, were

not severe enough to constitute persecution. Contrary to Uzun’s assertions, the two 

incidents of verbal harassment at school, the incidents of discrimination by landlords and 

intimidation by neighbors, and a minor physical altercation, do not compel the conclusion 

that he suffered persecution in Turkey. See Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir. 

2005). Uzun argues that the agency overlooked his testimony that a friend enrolled him 

in a nationalist party without his consent and that he was forced to serve as a bodyguard 

on one occasion, see Petitioner’s Brief, at 17-18, but, even with this additional testimony, 

his evidence of persecution is insufficient. We conclude that substantial evidence 
8

supports the agency’s determination that what happened to Uzun was not severe enough 

to constitute persecution. Fatin, 12 F.3d at 1240.

In the absence of evidence of past persecution, Uzun had to submit evidence of 

country conditions in Turkey showing a clear probability of future persecution by Islamic 

fundamentalists intent on enforcing Sharia law. Uzun submitted numerous articles 

discussing current events in Turkey, and State Department reports, but this documentary 

evidence for the most part contradicts his claim that Turkey is no longer a secular 

government. On the contrary, the State Department reports show that Turkey remains a 

secular government, and that religious freedom is protected. While some of the articles 

show that current President Abdullah Gul has roots in political Islam, and posit that this 

constitutes a threat to Turkish secularism, this is speculation and not proof of current 

country conditions. Other articles, for example, those concerning the Turkish Gazabound aid ship that was attacked, also are insufficient to prove that Turkey is no longer a 

secular government. Several of Uzun’s articles concerned general human rights abuses in 

Turkey and have no apparent relevance to the issue of Turkish secularism. 

In addition, the agency, in considering the issue of future persecution, properly 

noted the relevance of Uzun’s testimony that he was not harmed when he returned to 

Turkey in 2004, and that his parents and eldest brother remain in Turkey unharmed. Lie, 

396 F.3d at 537. Further, we note that the controlling regulation provides that:

In evaluating whether it is more likely than not that the applicant’s life or 

freedom would be threatened in a particular country on account of race, 

religion, nationality, membership in a particular social group, or political 

opinion, the [agency] shall not require the applicant to provide evidence 

that he or she would be singled out individually for such persecution if: (i) 
9

The applicant establishes that in that country there is a pattern or practice of 

persecution of a group of persons similarly situated to the applicant on 

account of race, religion, nationality, membership in a particular social 

group.

8 C.F.R. § 1208.16(b)(2). Uzun argues that the agency failed to properly credit what 

happened to his brother in determining the pattern or practice issue, citing Dia v. 

Ashcroft, 353 F.3d 228, 259 (3d Cir. 2003) (violence directed at alien’s family members 

supports claim of persecution). See Petitioner’s Brief, at 20. Although we agree that this 

type of harm is relevant, in Lie, 396 F.3d at 537, we held that, “to constitute a pattern or 

practice, the persecution of the group must be “systemic, pervasive, or organized.” 

Uzun’s evidence is insufficient to meet this standard, because he failed to show that the 

harm perpetrated on his brother was committed by the government or forces the 

government is either unable or unwilling to control. See id. Consequently, the record 

does not compel the conclusion that Uzun established a clear probability that his life or 

freedom would be threatened in Turkey on account of his secularism.2

For the foregoing reasons, we will deny the petition for review.

 

2 We reject as meritless Uzun’s argument that the Board should have considered the State 

Department’s 2010 International Religious Freedom Report even though he did not 

submit this report in support of his case. See Petitioner’s Brief, at 22-24. It is the 

applicant’s burden to prove his case. 8 C.F.R. § 1208.16(b)(1). As noted by the Attorney 

General, “[i]t would be odd indeed if Mr. Uzun could request [that] the Board consider 

one report on appeal [the 2010 Human Rights Report], have that report considered, and 

then on [a] petition for review argue [that] the Board failed to consider other reports he 

chose not to submit.” See Appellee’s Brief, at 22 n.6.