* Pursuant to 5TH CIR. R. 47.5, the court has determined that this

opinion should not be published and is not precedent except under the

limited circumstances set forth in 5TH CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

June 27, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-61128

Summary Calendar

MAHMOUD M ALAFYOUNY,

Petitioner,

versus

ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,

Respondent.

--------------------

Petition for Review of an Order of

the Board of Immigration Appeals

No. A75 337 117

--------------------

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

Mahmoud Alafyouny petitions this court for review of an order

of the Board of Immigration Appeals (“BIA”) adopting the decision

of the immigration judge (“IJ”) and dismissing his appeal from the

denial of his request for adjustment of status and final order of
No. 04-61128

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1 Alafyouny originally filed this case as a petition for writ of

habeas corpus in the district court, which, pursuant to statute, transferred it to this court as a petition for review from the order of the

BIA.

removal.1 The IJ and BIA ruled that Alafyouny was ineligible for

adjustment of status because he was inadmissible to the United

States under to 8 U.S.C. § 1182(a)(3)(B)(iv)(VI)(cc) because he had

engaged in terrorist activity by soliciting funds for the Palestine

Liberation Organization (“PLO”) between 1983 and 1986.

On a petition for review of a BIA decision, we review factual

findings for substantial evidence and questions of law de novo.

Efe v. Ashcroft, 293 F.3d 899, 903 (5th Cir. 2002). Because the

BIA adopted the ruling of the IJ, we may review the decision of the

IJ. See id.

Alafyouny moves to remand for further proceedings because

§ 1182(a)(3)(B)(iv)(VI)(cc) was amended by the REAL ID Act of 2005,

Pub. L. No. 109-13, 119 Stat. 231 (May 11, 2005), after the BIA’s

ruling was issued. The amendment applies retroactively. See REAL

ID Act, Pub. L. No. 109-13, § 103(d), 119 Stat. 231, 308-09

(May 11, 2005). 

Under the statute, as amended, Alafyouny is required to show

that he should not reasonably have known, by clear and convincing

evidence, that the PLO was a terrorist organization, whereas under

the old statute he was required to show by a preponderance of the

evidence that he should not reasonably have known that his solicitations would further the PLO’s terrorist activities. Compare

§ 1182(a)(3)(B)(iv)(VI)(cc) with § 1182(a)(3)(B)(iv)(VI)(cc)
No. 04-61128

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(2005). Because all organizations that engage in terrorist activities are, by definition, terrorist organizations, if Alafyouny

should reasonably have known that his solicitations would further

the PLO’s terrorist activities, logically he should have reasonably

known that the PLO was a terrorist organization. See § 1182(a)(3)-

(B)(vi)(III). Thus, if the determination that Alafyouny was inadmissible under the prior statute was proper, he must also be inadmissible under the statute as amended. 

Because, to resolve this matter, we need not make a de novo

determination of an issue, the cases relied on by Alafyouny are

distinguishable. See Gonzales v. Thomas, 126 S. Ct. 1613, 1614-15

(2006); INS v. Ventura, 537 U.S. 12, 16-18 (2002). Accordingly,

remand is unnecessary. See Zhao v. Gonzales, 404 F.3d 295, 310-11

(5th Cir. 2005) (stating that the language in Ventura is precatory,

not mandatory, and remand is not necessary if the BIA has considered the issue, even if new evidence is allowed). Alafyouny’s further contention that due process requires that he be given a new

hearing under the amended statute is without merit, because he does

not have a constitutionally protected liberty interest in discretionary relief from removal. See Assaad v. Ashcroft, 378 F.3d 471,

475-76 (5th Cir. 2004).

Alafyouny argues that the BIA’s and IJ’s determination that he

engaged in terrorist activities is not supported by substantial evidence. The IJ took notice that Congress found in 1987 that the

PLO was a terrorist organization. See 22 U.S.C. § 5201. A 1992
No. 04-61128

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state department report indicated that the PLO had been a terrorist

organization since the early 1970’s. Though these sources postdated Alafyouny’s involvement with the PLO, both provided evidence

regarding the PLO’s activities during and before Alafyouny’s

involvement. 

Furthermore, although the operation of § 5201 has been repeatedly suspended by executive order, its suspension does not diminish

the probative value of the factual findings made by Congress. Accordingly, the IJ’s determination that the PLO was a terrorist

organization at the time Alafyouny solicited funds for it is supported by substantial evidence. See Zhao, 404 F.3d at 306 (observing that factual determinations are upheld unless evidence compels

a contrary conclusion). 

Given Alafyouny’s age and admissions, the IJ’s determination

that he was not as young and naive as he asserted when he solicited

funds for the PLO is supported by substantial evidence. See Chun

v. INS, 40 F.3d 76, 78 (5th Cir. 1994) (stating that this court

does not substitute its judgment on credibility of witnesses for

that of the BIA or IJ). Given Alafyouny’s knowledge of the fighting in which the PLO was engaged, that he knew that Jordan considered the PLO to be a terrorist organization, and his concession

that he now considers the actions of the PLO to have been terrorist

activities, the IJ’s determination that Alafyouny reasonably should

have known that his solicitations would further the PLO’s terrorist

activities is supported by substantial evidence. See Rivera-Cruz
No. 04-61128

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v. INS, 948 F.2d 962, 967 (5th Cir. 1991) (opining that the BIA is

allowed to “draw reasonable inferences from the evidence which

comport with common sense”) (internal quotation marks omitted). 

Alafyouny’s arguments that the evidence showed only that elements of the PLO, as distinguished from the PLO itself, engaged in

terrorist activity, and that he was unfairly required to prove a

negative, are raised for the first time in his reply brief. Because he has not provided a compelling reason for us to consider

them, we will follow the general rule and deem the arguments abandoned because they were not raised in Alafyouny’s initial brief.

See Taita Chem. Co. v. Westlake Styrene Corp., 246 F.3d 377, 384

n.9 (5th Cir. 2001); Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir.

1994).

The IJ’s ruling that Alafyouny was inadmissible under the

prior statute because he had engaged in terrorist activity is supported by substantial evidence. That ruling logically compels the

determination that he is inadmissible under the statute as amended.

Accordingly, the petition for review is denied.

PETITION FOR REVIEW DENIED; MOTION FOR REMAND DENIED; MOTION

FOR STAY OF REMOVAL DENIED; MOTION FOR CLARIFICATION DENIED AS

MOOT; MOTION FOR JUDICIAL NOTICE DENIED.