Pursuant to Federal Rule of Appellate Procedure *

43(c)(2), Attorney General Eric H. Holder, Jr., is

automatically substituted for former Attorney General

Michael B. Mukasey as respondent in this case.

08-3351-ag

Mekheel v. Holder

BIA

LaForest, IJ

A 096 262 196

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER

FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF

APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER

IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER

MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

4 New York, on the 20 day of January, two thousand ten. th

5

6 PRESENT:

7 JON O. NEWMAN,

8 ROBERT D. SACK,

9 DEBRA ANN LIVINGSTON,

10 Circuit Judges.

11

12 ______________________________________

13

14 FAWZY BOSHRA HAKEEM MEKHEEL,

15 Petitioner, 

16

17 v. 08-3351-ag

18 NAC 

19

20 ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL,*

21

22 Respondent. 2324 ______________________________________

25

26
2

1 FOR PETITIONER: Robert M. Birach, Detroit, MI.

2

3 FOR RESPONDENT: Michael F. Hertz, Deputy Assistant

4 Attorney General; M. Jocelyn Lopez

5 Wright, Senior Litigation Counsel;

6 Kristin K. Edison, Attorney, United

7 States Department of Justice, Office

8 of Immigration Litigation,

9 Washington, D.C.

10

11 UPON DUE CONSIDERATION of this petition for review of a

12 Board of Immigration Appeals (“BIA”) decision, it is hereby

13 ORDERED, ADJUDGED, AND DECREED that the petition for review

14 is DENIED.

15 Petitioner Fawzy Boshra Hakeem Mekheel, a native and

16 citizen of Egypt, seeks review of a June 9, 2008 order of

17 the BIA denying his application for withholding of removal

18 and relief under the Convention Against Torture (“CAT”). In

19 re Fawzy Boshra Hakeem Mekheel, No. A 96 262 196 (BIA June

20 9, 2008). We assume the parties’ familiarity with the

21 underlying facts and procedural history of the case.

22 When the BIA issues an independent decision on remand

23 from this Court, the Court reviews the BIA's decision alone. 

24 See Belortaja v. Gonzales, 484 F.3d 619, 622-23 (2d Cir.

25 2007). The applicable standards of review are well26 established. Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.

27 2008); Gao v. BIA, 482 F.3d 122, 126-27 (2d Cir. 2007).

28 Here, we find that the BIA's denial of Mekheel's application

29 for withholding of removal and CAT relief is supported by
3

1 substantial evidence. The BIA reasonably determined that

2 Mekheel failed to show that he was persecuted as a Coptic

3 Christian by groups the Egyptian government was either

4 unable or unwilling to control. See Ivanishvili v. U.S.

5 Dep’t of Justice, 433 F.3d 332, 342 (2d Cir. 2006).

6 Mekheel argues that our holding in Poradisova v.

7 Gonzales, 420 F.3d 70, 79-80 (2d Cir. 2005), precluded the

8 BIA from giving adverse weight to the fact that Mekheel

9 never reported any of the alleged incidents of persecution

10 to the Egyptian authorities. However, the BIA reasonably

11 noted that country reports contained in the record stated

12 that “Egyptian authorities respond to reports of violence

13 against Christians, which is not inconsistent with the

14 opinion of the respondent’s expert,” and Mekheel points to

15 no evidence overlooked by the BIA showing why it was

16 unreasonable to require him to seek redress from the

17 Egyptian government.

18 The BIA also did not err in relying on the 2002

19 Religious Freedom Report and the 2003 Country Report in its

20 decision. While we have warned the immigration courts

21 against placing excessive reliance on State Department

22 Reports, we have held that the courts “may consider that

23 evidence,” but are “obligated to consider also any contrary
4

1 or countervailing evidence with which [they are] presented,

2 as well as the particular circumstances of the applicant’s

3 case demonstrated by testimony and other evidence.” Tian4 Yong Chen v. INS, 359 F.3d 121, 130 (2d Cir. 2004). Here,

5 the BIA considered contrary and countervailing evidence in

6 the record; thus, it did not place excessive reliance on the

7 State Department Reports. See id. Furthermore, while we

8 have also warned against reliance on “outdated versions of

9 State Department Reports,” Mekheel never sought to submit

10 new background country materials. 

11 Mekheel also contends that the BIA’s use of the phrase

12 “purported expert witness affidavit” indicates that the BIA

13 displayed “obvious” prejudice against his expert, Dr.

14 Marshall. Petitioner’s Brief at 21, 23. We will remand

15 based on agency prejudice when the conduct “results in the

16 appearance of bias or hostility such that [the Court] cannot

17 conduct a meaningful review of the decision below.” See Ali

18 v. Mukasey, 529 F.3d 478, 490 (2d Cir. 2008) (quoting Islam

19 v. Gonzales, 469 F.3d 53, 55 (2d Cir. 2006)). Aside from

20 the BIA’s use of the word “purported,” its decision gives no

21 indication that it was in any way biased or hostile toward

22 Dr. Marshall. 
5

1 Finally, Mekheel argues that the BIA erred by reviewing

2 the IJ’s factual findings de novo, rather than under the

3 required “clearly erroneous” standard. See 8 C.F.R.

4 §§ 1003.1(d)(3)(i), (ii). However, the BIA properly noted

5 that it reviews questions of law de novo. Accordingly, it

6 was entitled to review de novo the question of whether

7 Mekheel established that his fear was on account of groups

8 that the Egyptian government was unable or unwilling to

9 control, finding that it was not. 

10 Because the BIA did not err in determining that Mekheel

11 failed to establish his eligibility for withholding of

12 removal, it did not err in denying his claim for CAT relief

13 based on the same factual predicate. See Khouzam v.

14 Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004).

15 For the foregoing reasons, the petition for review is

16 DENIED. As we have completed our review, any pending motion

17 for a stay of removal in this petition is DISMISSED as moot. 

18 Any pending request for oral argument in this petition is

19 DENIED in accordance with Federal Rule of Appellate

20 Procedure 34(a)(2), and Second Circuit Local Rule 34(b).

21

22 FOR THE COURT: 

23 Catherine O’Hagan Wolfe, Clerk

24

25 By:___________________________