IMG
- 057 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 10

- 1713

___________ WAGD Y ZARIF IBRAHIM , a/k/a Magdy Ibrahim, a/k/a Ibraham Wadgyu,

Petitioner

v. ATTORNEY GENERAL OF THE UNITED STATE S

____________________________________ On Petition for Review of an Order of the Board of Immigration Appeals ( Agency No. A 0 45

- 067

- 329 ) Immigration Judge: Honorable Susan Roy

____________________________________ Submitted Pursuant to Third Circu it LAR 34.1(a)

March 10, 2011 Before: MCKEE, Chief Judge , SMITH AND GARTH , Circuit Judges

(Opinion filed March 18, 2011 )

___________ OPINION

___________ PER CURIAM Wagdy Ibrahim, a native and citizen of Egypt, petitions for review of an order of
the Board of Immigration Appeals (“BIA”) dismissing his appeal from the Immigration Judge’s (“IJ”) decision denying his applications for relief from removal

. For the reasons2

that follow, we will deny the petitio n for review

. 1 Ibrahim came to the United States in 1995 at the age of 15 as a lawful permanent
resident. The Department of Homeland Security i ssued a notice to appear in 2008 charging that Ibrahim wa s subject to removal from the Un ited States b ecause he had been convicted of violating a law related to a co ntrolled substance. The IJ found Ibrahim
removable as charged. Through counsel, Ibrahim applied for cancellation of removal , which was denied

. During his hearing before the I J , Ibrahim raised the possibility of persecution in Egypt on account of his Coptic Christian religion. Ibrahim had not applied for asylum or withholding of removal, but the I J stated that if Ibrahim filed a timely motion to reopen with an asylum application , he would reopen the proceedings. Ibrahim d id so, but the IJ denied reopening . On appeal, the B IA reopened the proceedings and remanded the record for a hearing on Ibrahim’s application for asylum and withholding of removal. On remand, 2 the IJ preclu ded Ibrahim from pursuing an additional ground for asylum based on his alleged membership in a particular social group of persons who had
controlled substance convictions. Because Ibrahim pres ented his claim on the day of his

1 We recognize that there have been significant changes in the Egyptian government since this matter was before the BIA and IJ. Our review, however, is limited to the administrative record. See 8 U.S.C. § 1252(b)(4); Al

- Fara v. Gonzales , 404 F.3d 733, 743 (3d Cir. 2005).

2 The matter was before Judge Susan Roy on remand due to the retirement of Judge Henry Dogin, who had presided over the case.3

merits hearing , the IJ did no t allow him to pursue relief on this basis

. Regarding Ibrahim’s religious persecution claim , t he IJ decided that Ibrahim had testified credibly but he did not establish past persecution on account of his Coptic
Christian religion. The IJ noted that Ibr ahim only testified to discrimination when he lived in Egypt

. The IJ also decided that Ibrahim did not establish a well

- founded fear of persecution. The IJ believed that Ibrahim had a subjective fear of persecution and sta ted
that the background evidence indicated that a possibility of persecution exists. The IJ explained, however, that Ibrahim’s expert , Dr. Paul Marshall, testified that Coptic Christians generally suffer governmental and societal discrimination and harassment by
Islamic extremists. The IJ recognized that Marshall testifi ed that authorities would question Ibrahim upon his return to Egypt because he would not have a passport or identity document, but the IJ stated that Marshall could not say with any specificity what would happen to Ibrah im. In concluding that Ibrahim failed to produce sufficient objective evidence showing a reasonable possibility t hat he would suffer religious persecution, t he IJ noted M arshall ’s testimony that, if Ibrahim was detained and government officials discovere d that he was a Coptic Christian , his religion in and of itself would not give rise to any significant harm.
The IJ also noted Marshall ’s state ment s that Ibrahim’s religion would be an “ aggravating
factor ” along with his United States military service and his criminal record , and that, if these facts were discovered, Ibrahim would likely be detained overnight, interrogated, verbally accosted, and perhaps hit. Although t he IJ noted that Marshall testified4

that Ibrahim could be detained for a longer period and perhaps suffer additional physical mistreatment if he remained of interest to security officials , t he IJ stated Marshall did not testify that Ibrahim would be tortured and emphasized that Marshall did not know of anyone who had returned to Egypt and ha d been detained, with the exception of persons who had converted from Islam to Christianity. Even if Ibrahim was detained as Marshall predicted , the IJ concluded Ibrahim had not shown that his treatment would rise to the level of persecution.
In addit ion to concluding that Ibrahim failed to meet his burden of proof for asylum and withholding of removal, the IJ decided Ibrahim did not satisfy his burden of proof for protection under the Convention Against Torture (“CAT”) . The IJ recognized
that the bac kground evidence indicate d that the government engages in torture, but she
stated that there was no evidence show ing that Ibrahim would be of interest to authorities or that authorities would have the specific intent to torture him. The IJ reiterated that
Marshall was unable to provide a n example of someone similarly situated to Ibrahim who had been harmed upon his return to Egypt. The BIA dismissed Ibrahim’s appeal. The BIA agreed with the IJ that Ibrahim failed to establish past persecution on accoun t of his religion and noted that Ibrahim did not challenge that ruling on appeal. The BIA also rejected Ibrahim’s argument that the IJ erred in refusing to allow him to submit evidence showing that his drug conviction would subject him to increased scruti ny upon entering Egypt, which would in crease the
likelihood that he would be identified as a Coptic Christian and persecuted. T he BIA5

found it was not improper for the IJ to reject Ibrahim’s last

- minute attempt to amend his
claim at his hearing to include a fear of persecution on account of his status as a criminal
de port ee. The BI A also noted that the IJ assessed Ibrahim’s religious persecution claim in conjunction with his experiences in the United States, including the fact that he has a
criminal convi ction.
T he BIA also found an unpublished decision relied upon by Ibrahim , in which the BIA granted an Egyptian criminal deportee deferral of removal, distinguishable because the experts in that case had testified that there was a high likelihood of tortu re, an opinion not provided in Ibrahim’s case. Noting that Marshall found the probability of harm to Ibrahim unclear, t he BIA found no error in the IJ’s decision that Ibrahim did not meet his burden of establishing a well

- founded fear of future persecutio n. The BIA also found that Ibrahim did not establish that it was more likely than not that he would be tor tured if removed to Egypt. This petition for review followed. We have jurisdiction pursuant to 8 U.S.C. § 1252(a). Because Ibrahim is
removable fo r violating a law related to a controlled substance, our jurisdiction is limited to reviewing constitutional claims and questions of law, which include question s of the application of law to fact, where the facts are undisputed. See 8 U.S.C. § 1252(a)(2)( C); Kamara v. Att’y Gen. , 420 F.3d 202, 211 (3d Cir. 2005).
Ibrahim argues that he satisfied his burden of proof to establish that he has a well

-6

founded fear of persecution on account of h is religion if removed to Egypt. 3 We review the BIA’s conclusi on that Ibrahim failed to satisfy his burden of proof under the substantial evidence standard of review, which requires that we uphold the decision of the
BIA unless the evidence compels a contrary conclusion. Abdille v. Ashcroft , 242 F.3d 477, 483

- 84 (3d Cir. 2001).
Ibrahim contend s that he satisfied his burden of proof with a “plethora of articles and country reports,” Pet’r’s Br. at 23, but he has not discussed any specific evidence from the background materials supporting his claim. Ib rahim has set fo rth in his brief the testimony of his expert stating that he is likely to be detained if removed to Egypt due to
his lack of identification , that security officials will question him , and that persons who are detained typically suffer abuse, includi ng insu lts and physical abuse, with a lesser
likelihood of torture. Although Marshall further stated that Egyptian officials would view negatively Ibrahim’s Coptic Christian religion, his criminal conviction , and his
service in the United States military , t he BI A correctly stated that Marshall did not testify to the probability of harm. Ibrahim was required to show t hat harm rising to the level of persecution is a reasonable possibility should he be removed

. Abdille , 242 F.3d at 496.
Ibrahim has not shown that the record compels this conclusion.

3 Contrary to the Government’s argument, we have jurisdiction to review th is ques tion, which requires the application o f law to fact. See Huang v. Att’y Gen. , 620 F.3d 372, 384

- 87 (3d Cir. 2010) (addressing well

- founded fear inquiry and explaining that whether a reasonable person would fear persecution presents a legal question). Ibr ahim argues that the evidence submitted established a well

- founded fear of persecution; he does not dispute the facts related to his claim.7

Ibrahim also argues that the BIA erred in upholding the IJ’s decision to exclude testimony about how his criminal history will affect his treatment by Egyptian officials. Ibrahim asserts that the IJ committed “revers ible legal error,” Pet’r’s Br. at 24, stating
that his evidence was relevant to establish an increased likelihood that he would be subjected to heightened scrutiny, resulting in the discovery of his religion and persecution. Ibrahim sta tes that he was not offering his evidence to establish that he
would be persecut ed on account of his criminal conviction.
T he record reflects that the IJ precluded Ibrahim from asking Marshall questions
related to his criminal convictions

. The BIA correctly sta ted that Ibra him was granted reopening to pursue his claim of religious persecution. Although Ibrahim argues that he was precluded from showing that he would be subject to heightened scrutiny , Marshall had already testified that authorities would question Ibrahim abou t his religion , why he is returning to Egypt, and his history in the United States

. See A.R. at 164

- 65. Ibrahim
does not explain what further testimony would have been provided. He has not shown any prejudice or that the IJ erred as a matter of law

. I brahim also argues in his brief that the background evidence and testimony establish that he will more likely than not be tortured if removed to Egypt. Ibrahim, however, does not point to any specific evidence supporting his CAT claim

. Marshall did

not t estify that Ibrahim would more likely than not be tortured if removed. Ibrahim has not shown that the evidence compels the conclusion that he met his burden of proof for8

protection under the C AT

. 4 Accordingly, we will deny the petition for review

.

4 To the exten t Ibrahim also contends that the IJ erred in failing to give weight to an unpublished decision by the BIA, that decision , which involved an Egyptian alien who claimed he would be tortured if removed because of his criminal conviction, is distinguishable for the reasons stated by the BIA. See A.R. at 20 6

- 0 7.