2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-17-2010

Elsayed v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-1362

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Recommended Citation

"Elsayed v. Atty Gen USA" (2010). 2010 Decisions. Paper 1879.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 09-1362

 

BASSEM MOAWAD HASSAD ELSAYED,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

 

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A098-496-291)

Immigration Judge: Honorable Henry S. Dogin

 

Submitted Pursuant to Third Circuit LAR 34.1(a)

February 17, 2010

Before: RENDELL, FISHER and GARTH, Circuit Judges

(Filed: February 17, 2010)

 

OPINION

 

PER CURIAM

Bassam Moawad Hassad Elsayed, a native and citizen of Egypt, entered the United

States on a tourist visa on June 28, 1998. He obtained an F-1 student visa while studying

at Union County College, and remained in the United States illegally after his student visa
2

expired. On March 23, 2006, the government issued a Notice to Appear charging Elsayed

with being removable under INA §§ 237(a)(1)(B) and 237(a)(1)(C)(i) for being present in

violation of law and for failing to maintain nonimmigrant status, respectively.

Elsayed filed an application for asylum, withholding of removal, and protection

under the Convention Against Torture (“CAT”) on the basis that he will be targeted upon

return to Egypt for being “Americanized.” The Immigration Judge (“IJ”) denied relief,

and the Board of Immigration Appeals (“BIA”) dismissed Elsayed’s appeal.

Elsayed, through counsel, presents a petition for review. We have jurisdiction

pursuant to 8 U.S.C. § 1252. We consider questions of law de novo. See Gerbier v.

Holmes, 280 F.3d 297, 302 n.2 (3d Cir. 2001). We review factual findings for substantial

evidence. See Butt v. Gonzales, 429 F.3d 430, 433 (3d Cir. 2005).

Elsayed presents three issues in his petition. He contends that the IJ used the

wrong standard to rule on his withholding claim; that the BIA’s decision is no more than

an improper affirmance without opinion that does not provide analysis of the IJ’s

decision; and that the IJ did not properly analyze the State Department material in the

record. Among other arguments, the Government counters that because Elsayed did not

include any argument that he was improperly denied asylum, withholding, or CAT relief,

he waived his claims for those forms of relief.

Upon review of Elsayed’s brief, we note that he maintains that he was entitled to

withholding but does not press arguments relating to his claims of asylum and CAT
1

In fact, he describes his application for relief as one treated, in the agency, as an

application for withholding. (Petitioner’s Br. at 2.)

3

relief.1

 Accordingly, we consider any claims relating to asylum or CAT relief waived. 

See Lie v. Ashcroft, 396 F.3d 530, 532 n.1 (3d Cir. 2005). We will, however, review the

issues he raises as they relate to his withholding claim.

We reject Elsayed’s contention that the IJ used the wrong standard to deny him

withholding. Both the IJ and BIA clearly articulated the proper “clear probability” or

“more likely than not” standard. R. at 3, 107. See Kaita v. Att’y Gen. of the United

States, 522 F.3d 288, 296 (3d Cir. 2008) (explaining that “[i]n order to qualify for

withholding of removal, a petitioner must establish a ‘clear probability,’ that is, that ‘it is

more likely than not’ that her life or freedom would be threatened if returned to her

country due to her race, religion, nationality, membership in a particular social group, or

political opinion”). There is no evidence in the record that the agency tried to require

Elsayed to meet the “clear and convincing” standard he cites. In fact, the IJ and the BIA

rejected Elsayed’s claim on the basis of its failure to meet the less stringent standard for

winning asylum relief.

We also disagree with Elsayed that the BIA’s decision was no more than an

improper affirmance without opinion or a summary recitation of the IJ’s decision without

analysis. The BIA wrote a two-page opinion that included sufficient detail to show that it

reviewed the record and that it considered and analyzed Elsayed’s arguments before the IJ
4

and on appeal. See Sevoian v. Ashcroft, 290 F.3d 166, 178 (3d Cir. 2002) (noting that the

BIA “‘is not required to write an exegesis on every contention’”) (citation omitted).

Lastly, Elsayed contends that the IJ did not take into account evidence in the

Department of State material in the record that supports his claim. However, the State

Department reports in the record simply do not include evidence to support a claim that

Elsayed or a person like him would be targeted as “Americanized” on return to Egypt

from the United States. Elsayed also cites information he provided on appeal to the BIA

to support his claim. Although the BIA noted that the new evidence did not establish that

people returning to Egypt from America are targeted for persecution for being

Americanized, the BIA did not consider it in deciding Elsayed’s claim. The BIA did not

err in declining to consider those documents because the BIA is precluded from engaging

in fact-finding on appeal. See 8 C.F.R. § 1003.1(d)(3)(iv).

In short, the three issues that Elsayed presents in his petition for review are without

merit. To the extent that Elsayed also raises a general challenge to the agency’s decision

to deny him withholding, we also hold that substantial evidence supports the BIA’s

decision that Elsayed failed to demonstrate a clear probability of future persecution. 

Although persecution may occur amidst general civil strife, generalized violence does not

excuse the petitioner from demonstrating a nexus between the persecutory acts and a

protected category. See Vente v. Gonzales, 415 F.3d 296, 301 (3d Cir. 2005). Assuming,

as the agency did, that Elsayed was a member of a protected category, he did not show

the necessary nexus. For these reasons, we will deny the petition for review.