NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0895n.06 No. 10-3563 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

ASHRAF AD ELAWAD, Petitioner,

v. ERI C H. HOL DER, Attorney Gene ral, Respondent. ) ) ) ) ) ) ) ) ) ON APPEALFROM THE BO ARD OF I MMI GRATI ON APPEAL S

Be fore : CL AY and SUTTO N, Circuit J udg es; and RI CE, District J udg e. * RI CE, District J udg e. Ashraf Adel Awad (“A wad” ), is a Palestinian who was born in Kuwait and g rew up in the United Ara b Emirates (“U AE”) , but is a citizen of J ordan. He conce des that he is subject to remova l to J ordan, but alleg es that if he is retur n ed t here , he will be perse cuted and tortured b e c a

u s e o f h is family ’s ties to the Palestinian L ibera tion Org anization (“PL O”) and the Fa tah
movement. Ba sed on an adver se cre dibilit y deter mination, the I mmigra tion J udg e (“I J ”) denied Awad’ s applications for withholding of remova l and fo r p rot ection under the United Nations Convention Ag ainst Torture (“CAT” ). The Boa rd of I mmigra tion Appea ls (“B I A”) aff irmed that dec i s ion. Awad seeks revie w of the B I A’s fina l order. F or the re asons set for th below, we de ny

his petition for r eview.

The Honora

ble Walter Her

bert Rice, United States District J udg e for the Southern District * of Ohio, sitting by

desig nation.No. 10-3563

Ashraf Adel Awad v. Eric H. Holde r, Attorney Ge neral

I. BACKG ROUND Be fore Awad was born, his family fled from J ordan to the UAE, having been alleg edly forc ed
out of their native country beca use of their ties to the PL O and the Fa tah movement. Although Awad has been to J o rd an o n l y once, in 1985, when he was 14 y ear s old, he later obtained a J ordania n passport throug h his fathe r. He is there fore trea ted as a J ordania n citizen for purposes of these immigra tion procee dings. As a high school student in the UAE, Awad had limit ed involvement with the PL O and the Fa tah movement. I n 1988, he was alleg edly g iven a PL O scholarship and went to Poland to study , wher e he serve d as a “media coordina tor” on campus an d educated others about the Palestinian conflict. After he returne d to the UAE in 1993, he claims he no longe r play ed any active role in the Fa tah movement. Awad enter ed the United States on Fe bruar y 21, 2001, on a non-immigra nt stude nt visa , to attend the University of Toledo, but he never enrolled there

. Shortly afte r his a rrival, he marrie d a United States citizen and, in J anuar y of 2002, he applied to a djust his status to a lawful perma nent resident. Those immigra tion procee dings w ere aborte d when the ma rriag e ende d in divorce. 1 I n August of 2005, Awad rec eived a Notice to Appea r, alleg ing that he was subject t o

remova l under § 237(a) (1)( B) of t he I m m i gra t i o n and Nationality Act (“I NA”)

. On S eptember 5, 2006, he was place d in remova l proce eding s. He conce ded that he was subject to remova l and that

At the hear ing, Awad could not reme mber his ex-wife’s name. The I J found that this raised 1 the question of whe ther it was a sham marr iag e. 2No. 10-3563

Ashraf Adel Awad v. Eric H. Holde r, Attorney Ge neral

an asy lum petition would be time-barr ed. He never theless pursued applications for withholding of

remova l and for r elief unde r CAT. A hear ing on the merits of Awad’ s applications was held on May 22, 2008. At the hear ing, Awad testified t h at the J ordania n intelligenc e service (“the GI D”) had perse cuted and tortured

sever al of his family members beca use of their active support of the Fa tah movement and the PL O. Awad’ s fathe r al l ege d l y worke d as a secr et service ag ent for Fa tah during the 1960s and 1970s, providing support to families of Fa tah members who had been detained. Awad testified that, during that time, his father w as deta ined by the GI D on seve ral oc casions, once for a s long a s two y ear s. Awad also testified that when he and his pare nts tra veled from the UAE to Jordan in 1985, his fathe r was immediately detained by the GI D at t h e ai rport. The next time Awad saw him, approximately ten day s later, his fathe r’s back was bandag ed, he was on crutc hes, and he had a brac e

on his neck. They returne d to the UAE as soon as his fathe r was wel l en o u gh t o t ra v el. Awad estimated that they

wer e in J ordan f

or appr ox imately

two wee ks. Acc ording to Awad, during the 1960s and 1970s, his uncle, Mohammad Musa Awwa d, who

serve d as an attorney for the Fa tah movement in J ordan, was also detained and tortured by the GI D

on many occa sions, and Awa d ’s au n t wa s rape d. Awad further testified that, in 1985, his older brother, I brahim , was detained by the GI D for 12 day s and suffe red a sever e head injury when he tried to enter J ordan from Sy ria. His brothers wer e alleg edly involved with as s i s t i ng Palestinian ref ug ees in Yug oslavia and Poland, and his uncle, Ribhi Awad, alleg edly serve d as an Ambassador of the PL O in I ndonesia.

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Ashraf Adel Awad v. Eric H. Holde r, Attorney Ge neral

Awad admitted that he had n ev er p ersona lly been detained or harme d by the GI D. He

never theless maintains that if he wer e returne d to J ordan, he would immediately be targ eted by the GI D, and would be det a in e d a n d to rtured beca

use of his family ’s political involvement with the PL O. Acc ording to A wad, the GI D would think that he had useful information about the PL O, the Fa tah movement, or a

bout his family

members. Awad also offe red the expert witness testimony of Ali Daka kni, an immigra tion c onsultant who works with Palestinian ref ug ees in Canada

. Daka kni testified that many of his clients are afr aid that they will be mistreated if they return to J ordan. He opined that, even though Awad had not been active in the F atah moveme nt for many y ear s, he would still be at risk if he re turned to Jordan. Following the hear ing, the I J issued an oral decision deny ing Awad’ s applications for withholding of remova l and relief under the CAT. He found that Awad was simply not cre dible and that his hear ing testimony differ ed from the claims in his written application in sever al important respe cts. Most sig nificantly , on his written application, Awad stated that “[i] t is well known that I

am ac tive in support of the Fatah poli tical movement.” Y et, at the he aring , Awad te stified that he

cea sed all political involvement in Fa tah when he left Poland in 1993. The I J also noted that on Awad’ s 2002 application to a djust his status to a lawful perma nent resident, Awad did not include Fa t ah or the PL O on the list of org anizations with which he had ever been involved. I n addit i o n , althoug h Awad te stified that his brother I brahim was tortured when attempting to c ross the borde r from Sy ria to J ordan , his written application stated that this incident occur red while I

brahim was trave ling f

rom the UAE to Sy

ria.

4No. 10-3563

Ashraf Adel Awad v. Eric H. Holde r, Attorney Ge neral

The I J further noted that even though Awad testified that he was in reg ular contac t with his family members, he offe red absolutely no evidenc e to corr oborate his claims that sever al of them had been detained and tortured by the GI D. I n fac t, the I J noted that Awad offe red no ad m i s s i b le evidenc e to support his claims that he or his family members had any ties whatsoeve r with the PL O

or the Fa tah movement. Nor did Awad offe r any evidenc e to corr oborate his claim that he studied 2 in Poland on a PL O scholar ship or serve d as a me dia coor dinator there

. Finally , the I J found that Awad failed to demonstrate a pattern or prac tice of perse cution or torture of any simil arly situated individuals. None of the articles submitt ed by Awad and none of the country repor

ts issued by the State Depa rtment indicated that members of the PL O or Fa tah
movement wer e being d et ai n ed o r tortured by the J ordania n g overnme nt. The I J g ave very littl e weig ht to Dakakni’s “expert” witness testimony , questioning his qualifica tions and the basis for his opinion, and noting that Da kakni was a

persona l friend of

Awad’ s. The I J conclude d that Awad failed to demonstrate a clea r probability that he would be subject to pe rsec ution ba sed on his me mbership in a particula r social g roup upon his r eturn to J ordan, a nd he failed t o d em onstrate that it was more likely than not that he would be tortured if remove d to J ordan. Awad filed a timely appea l, and moved the BI A to g rant withholdin g o f remova l, or to

re m an d t o the i mmigra tion court for a more thoroug h revie w of his claim of future persec ution in

Be cause of th e a d

v e r s e c r e d ib ility deter

mination, the I J declined to addre ss the g overnme nt’s 2 alterna tive arg ument that Awad was ineligible for withholding of remova l beca use he did work for the PL O and F atah a t the time they wer e eng ag ed in terr orist activities.

5No. 10-3563

Ashraf Adel Awad v. Eric H. Holde r, Attorney Ge neral

prese nt-day

J ordan. O n April 9, 2010, the BI A affirmed and adopted the I J ’s dec ision, finding no clea r error in the adverse credibility deter mination, and noti ng that the I J had “pro v i d ed cl ear and cog ent rea sons for the finding which are supported by the rec ord of proce eding s, including materia l inconsistencies betwee n the applicant’ s testimony and documentar y s ubmissions conce rning his political activities, ambig uous and confusing testimony , and lack of documentar y authenticity .” The BI A also ag ree d t h at Awad had failed to produce rea sonably available corr oborating evidenc e to support the claimed perse cution of family members and had failed to prove sy stematic perse cution of per sons simi larly

situated to himself.

II. DISCUSS ION A. Jurisdi ction/Stand ard of Review Pursuant to 8 U.S.C. § 1252(a) (1) and Fe dera l Rule of Appellate Pro ce d u re 1 5 , Awad has petitioned this Court for review of the B I A’s fina l order of remova l. As an initial matter, we note that afte r this Court denied Awad’ s motion for a stay of remova l, it appea rs that Awad was indeed remove d to J ordan, on Fe bruar y 23, 2011. Neve rtheless, “an alien’s

remova l while his petition for revie w is pending neither deprive s the court of appea ls of jurisdiction over tha t petition nor does it necessa rily rende r moot the claims in that petition.” United States v. Garcia-Ec haverria , 374 F.3d 440, 447 ( 6th Cir. 2004). Be cause the BI A adopted the I J ’s decision, but added a few brief comments, we revie w the
two decisions in conjunction with eac h other. Cruz-Samayoa v. Holder , 607 F.3d 1145, 1149 (6th Ci r. 2 0 1 0 ). Finding s of fac t, including adver se cre dibilit y deter minations, are revie wed for

6No. 10-3563

Ashraf Adel Awad v. Eric H. Holde r, Attorney Ge neral

substantial evidenc e, and questions of law are revie wed de novo. Amir v. Gonzales , 467 F.3d 921, 925 (6th Cir. 2006); Khalil i v. Holder , 557 F.3d 429, 435 (6th Cir. 2009). We will n o t re verse fa ct ual finding s unless “ the evidenc e not only supports a contra ry conclusion, but comp el s i t

. ” Marku v. Ashcroft , 380 F.3d 982, 986 (6th Cir. 2004) (empha sis in orig inal). We must defe r to the ag ency ’s d ecision if “supported by rea sonable, substantial, and probative evidenc e on the rec ord considere d as a w hole.” Id. B. Withhol din g of Rem oval To qualify for withholding of remova l under the I NA, an applicant must demonstrate that it is more likely than not that, if returne d to the proposed country of remova l, his life or fre edom would be threa tened beca

use of his “ra ce, relig ion, nationality , membership in a particula r social g roup, or political opinion.” 8 U. S

. C

. § 1 2 3 1(b)( 3)(A) ; Dugboe v. Holder , 644 F.3d 462, 471–72 (6th Cir. 2011). The applicant may satisfy this burden either by establishing past perse cution, or by establishing a

pattern or

prac tice of persec ution of persons simil arly situated to him on account of one of the protec ted g rounds. See 8 C.F.R. § 1208.16(b). An applicant’ s testimony , if cre dible , m ay be sufficie nt to sustain this burden of proof without c orrobor ation. Id. Howeve r, “w here it is reasonable to e x pect corr oborating evidenc e for

cer tain alleg ed fac ts perta ining to t h e s p ec i fics of an applicant' s claim, such evidenc e should be provided.

. . . The absenc e of such corr oborating evidenc e can lead to a finding that an applicant has failed to meet [hi s] burden of proof.” Dorosh v. Ashcroft, 398 F.3d 379, 382 (6th Cir. 2004) (quoting In re S- M-J , 1997 WL 80984, 21 I . & N . Dec . 722, 724–26 (B I A 1997)).

7No. 10-3563

Ashraf Adel Awad v. Eric H. Holde r, Attorney Ge neral

Awad maintains that he has established a clea r probability that he will be perse cuted if forc ed
to return to J ordan. He challeng es the I J ’s adver se cre dibilit y deter mination and maintains that the alleg ed inconsistencies in his own testimony are immaterial. Awad contends that h e p re s en ted

cre dible, detailed and persua sive testimony about the sy stematic past perse cution o f h i s family members by the J ordania

n GI D and about his own involvement with Fa tah and the PL O. He further maintains that his fea

r of future perse cution i s corr oborate d by expert witness testimony and objective r eports. T h e governme nt arg ues, howeve r, that substantial evidenc e supports the I J ’s advers e

cre dibilit y deter

mination, and nothing in the rec ord compels the conclusion that Awad cre dibly established his elig ibilit y

for withholding of re moval. We ag ree . Under the REAL I D Act, which g overns Awad’ s applications, cre dibilit y deter minations are based on the “totality of the circ umstances” and take into acc ount “all rele vant fac tors,” including: the demea

nor, candor , or responsivene ss of th e applicant or witness, the inhere nt plausibilit y of the applicant’ s or witness’s acc ount, the consistency betwee n the applicant’ s or witness’s written and oral statements (whe never made and whether or not under oath, and considering the circ umstances under which the statements wer e made) , the internal consistency of eac h such statement, the consistency of such statements with other evidenc e of rec ord (including the repor ts of the Depa

rtment of State on country conditions), and any inacc urac ies or falsehoods in such statements, without reg ard to whether an inc o nsistency , inacc urac y , or falsehood g oes to the hear t of the a pplicant’s cla im, or any

other re levant fa ctor. Hache m v. Holder , 656 F.3d 430, 434 ( 6th Cir. 2011) (quoting 8 U .S.C. § 1158(b) (1)(B )(iii), and El–Moussa v. Holder, 569 F.3d 250, 256 ( 6th Cir. 2009)).

8No. 10-3563

Ashraf Adel Awad v. Eric H. Holde r, Attorney Ge neral

As the I J noted, Awad’ s testimony was inconsistent in sever al respe cts with his written applications

. Most importantly , Awad’ s applications for withholding of remova l and protec tion under the CAT stated t hat he “is active in support of the Fatah poli tical m ovement.” He testified, howeve r, that he cea sed all involvement with the movement in 1993 when he left Poland. Moreove r, his 2002 application for adjustment of status f ailed to mention any past or prese nt memberships or aff iliations with Fa tah or the PL O. I n addition, Awad’ s testimony that his brot h er I b ra h im was tortured en route from Sy ria t o J o rd an differ ed from the s tatement on his application that I brahim was de tained whe n trave ling f rom the UAE to Sy

ria. Awad’ s testimony was also internally inconsistent at times. At one point , he testi fied that his family was in J ordan for sevente en day s, but he later said that it was for two wee ks or less. Awad arg ues that this slight discrepa ncy is immaterial. Standing alone, that may be true. Howeve r, the I J also noted that Awad al so appea red to be confuse d about other circ umstances surrounding this alleg ed trip to J ordan. Moreove r, Awad offe red no corr oborating statements from any family members conce rning any o f t h e d et entions or torture alleg edly endure d at the hands of the GI D. I n fac t, he offe red no

corr oborating statements to support his claim that his family had deep ties to the PL O and the Fa tah movement, and no corr oborating statements conce rning his studies in Poland on a PL O scholarship. The I J found that, i n l i gh t o f the fac t that Awad testified that he was in reg ular contac t with his family members, these corr oborating statements we re rea sonably available and should have been produce d.

9No. 10-3563

Ashraf Adel Awad v. Eric H. Holde r, Attorney Ge neral

A deter mi n at i o n reg arding the availability of corr oborating evidenc e cannot be reve rsed “unless the court finds

. . . that a rea sonable trier of fac t is co m p el l ed t o conclude that such

corr oborating evidenc e is unavailable .” 8 U. S

. C

. § 1 2 5 2 (b)( 4). I n this case , there is no basis for

reve rsing the I J ’s deter

mination conce rn i n g the availability of such corr oborating evidenc e. Considering the totality of the circ umstances, the I J ’s adver se cre dibilit y deter mination is supported by substantial evidence and will not be over turned. The I J and BI A did not err in concluding that Awad has fai l ed t o d em o n s trate a clea r probability that, if returne d to J ordan, his life or fre edom would be threa tened beca use of his family ’s ties to the PL O and the Fa tah movement. We ag ree that Awad failed to establish past perse cution. Awad also failed to prove that the J ordania n go v er n m en t curr ently eng ag es i n a pattern or prac tice of per s ec u t i o n o f persons simil arly situated to him. As the I J noted, none of the documentar

y evidenc e p re s en ted supports a finding that the J ordania n g overnme nt is curr ently targ eting persons whose families have ties to the PL O or the Fa tah movement. The I J noted that Ali Daka kni’s “expert” opinion, that Awad was still at risk, appea red to be based on what he had been told b y p e o p le seeking asy lum in Canada and upon his independe nt internet investiga tion. Moreove r, Daka kni was one of Awad’ s friends. The I J found that Daka kni was not much of an expert, and that “his testimony cer

tainly was not cre dible.” Nothing in the rec ord compels a co n cl u s ion to the
contra ry .

10No. 10-3563

Ashraf Adel Awad v. Eric H. Holde r, Attorney Ge neral

The ag ency ’s decision to deny Awad’ s application for withholding of remova l is supported by rea sonable, substantial, and probative evidenc e, when considering the rec ord as a whole. We there fore deny

Awad’ s petition for revie w. C. P rote ction Under the CA T The Convention Ag ainst Torture provides that no state may ex p el or return a person to another state wher e t h er e are substantial g rounds for believing that person would be in dang er of b eing s ubjected to torture. To qualify for protection under CAT, Awad must show that it is m o re likely than not that he would be tortured if remove d to J ordan. Ag ain, his testimony , if cre dible, may be suff icient to sustain this burden without corrobor ating evidenc e. 8 C.F.R. § 1208.16(c )(2)

. Where, as h er e, a CAT claim is based on the same g rounds as a withholding of remova l claim, an adver se cre dibilit y determ ination in connec tion with the application for withholding of

remova l is also fata l to the CAT claim. Khozhaynova v. Holder , 641 F.3d 187, 197 (6th Cir. 2011) (“B eca use Khozhay

nova failed to satisfy the threshold showing of cre dibilit y for withholding of

remova l, she l ikewise failed t o demonstrate entitlement to relief u n d er t h e CAT.”). We there fore find that Awa d is not entitl ed to protec tion under the CAT, a nd deny his petition for review

. III. CONCLUSION For the re asons set for

th above, we DENY the petition for re view of A wad’ s applications for withholding of re moval and prote ction under the CAT, and AF F IRM the dec ision of the BI A.

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