United States Court of Appeals

Fifth Circuit

FILED

August 15, 2003

Charles R. Fulbruge III

Clerk

In the

United States Court of Appeals

for the Fifth Circuit

_______________

m 02-60544

_______________

HESHAM A. MORTAGY,

Petitioner,

VERSUS

JOHN ASHCROFT,

U.S. ATTORNEY GENERAL,

Respondent.

_________________________

Petition for Review of an Order of

the Board of Immigration Appeals

m A75 345 985

_________________________

Before DAVIS, SMITH, and DUHÉ,

Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

TheBoard ofImmigrationAppeals (“BIA”)

dismissed Hesham Mortagy’s appeal of his

denial of asylum and withholding of deportation, finding that he is ineligible because

he has engaged in terrorist activity (as to asylum) and because there exist reasonable

grounds to believe that he poses a danger to

the security of the United States (as to asylum

and withholding). For purposes of asylum, the

finding that he engaged in terrorist activity is

statutorily unreviewable. The finding that he

poses a danger to the security of the United

* 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 R. 47.5, the court has determined that this opinion should not be published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.
2

States is supported by the record, and

therefore Mortagy is also ineligible for

withholding. Accordingly, we dismiss the

petition in part and deny review in part.

I.

Mortagy was admitted to the United States

as a nonimmigrant visitor fromSyria. The Immigration and Naturalization Service issued a

notice to appear, charging Mortagy as removable under 8 U.S.C. § 1227(a)(1)(B) for

overstaying his visa. He admitted the factual

allegations in the notice and conceded deportability.

Mortagy applied for asylum and

withholding of deportation. The immigration

judge (“IJ”) determined that Mortagy was not

entitled to asylum or withholding of

deportation because he had not shown that he

had a well-founded fear of persecution. The IJ

ordered him removed.

Mortagy appealed to the BIA. It dismissed

the appeal, finding that he is ineligible for asylum pursuant to 8 U.S.C. § 1158(b)(2)(A)(iv)

because there are reasonable grounds to

believe he poses a danger to the security ofthe

United States, and pursuant to § 1158(b)(2)-

(A)(v) because he had engaged in terrorist activity. It also found he is ineligible for

withholding of deportation pursuant to 8

U.S.C. § 1231(b)(3)(B)(iv), again because

there are reasonable grounds to believe he

poses a danger to the security of the United

States. In its order, the BIA noted that Mortagy was associated with the Popular Front for

the Liberation of Palestine (“PFLP”) from

1980 to 1984; this group is on the State

Department’s List of Designated Foreign

Terrorist Organizations.1

II.

Mortagy petitions for review, contending

that the BIA erred in its determinations the he

has engaged in terrorist activity and that he

poses a danger to the security of the United

States. Though the Attorney General argues

that the BIA did not err in determining that

Mortagy poses a danger to the nation’s

security, he does not addresstheBIA’sfinding

under § 1158(b)(2)(A)(v) that Mortagy

engaged in terrorist activity. Neither party

addresses whether § 1158(b)(2)(D) precludes

review of the finding under § 1158(b)(2)-

(A)(v); we raise the issue sua sponte2and

conclude that the statute deprivesthis court of

appellate jurisdiction to review the asylum

determination.

Though the Attorney General has

discretionary power under § 1158(a) to grant

asylum, the general asylum rule does not apply

if he determines that the alien meets any of

several enumerated exceptions. See § 1158-

(b)(2). One such exception is listed under

subparagraph (A)(v), which, inter alia,

declaresineligible all aliensinadmissable under

8 U.S.C. § 1182 (a)(3)(B)(i) for having

“engaged in a terrorist activity.” See

§ 1158(b)(2)(A)(v).3

1 The PFLP is also known as the Popular

Liberation Front and as the George Habash

Organization.

2 See Giles v. NYLCare Health Plans, Inc., 172

F.3d 332, 335 (5th Cir. 1999) (“Before reaching

the merits, we must examine the basis of our appellate jurisdiction and, if there is doubt, we must

address it, sua sponte if necessary.”).

3

“Terrorist activity” is defined with exacting

(continued...)
3

Section 1158(b)(2)(D) provides that

“[t]here shall be no judicial review of a

determination of the Attorney General under

subparagraph (A)(v).” This language

unambiguouslydeniesthis court jurisdiction to

consider the BIA’s finding under

§ 1158(b)(2)(A)(v).4 Because we may not

review the BIA’s determination that Mortagy

was ineligible for asylum pursuant to

§ 1158(b)(2)(A)(v), we will not consider the

remainder of his petition with respect to

asylumSSthat the BIA’s determination under

§ 1158(b)(2)(A)(iv) was erroneous.

III.

Mortagy also seeks relief from the BIA’s

determination that he is ineligible for

withholding of deportation. An alien is eligible

for withholding of deportation if he showsthat

returning himto a certain countrywould result

in threats to his life or freedom and would be

on account of his “race, religion, nationality,

membership in a particularsocial group, or political opinion.” § 1231(b)(3)(A). The BIA,

however, found that Mortgagy meets the

exception at § 1231(b)(3)(B)(iv), which

precludes withholding if “there are reasonable

grounds to believe that the alien is a danger to

the security of the United States.” § 1231(b)-

(3)(B)(iv).5 Mortagy contends that this finding

is erroneous. We must review this finding

(unlike the finding that he is ineligible for asylum), both because there is no statutory bar to

review of this claim and because withholding

is a separate remedy from asylum. Mikhael v.

INS, 115 F.3d 299, 306 (5th Cir. 1997).

We review the BIA’s legalrulings de novo.

Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444

(5th Cir. 2001). Mortagy urges de novo

review here, asking us to consider whether his

past membership in the PFLP is, by itself, legally sufficient to support the BIA’s finding

that he is a danger to the security of the United

States. The decision that an alien is not

eligible for withholding of deportation is itself

a factual finding, which we review “only to

determine whether it is supported by

substantial evidence.” Zamora-Morel v. INS,

905 F.2d 833, 838 (5th Cir. 1990).

Beyond Mortagy’s membership in the

PFLP, the Attorney General points to other

evidence in the record that supportsthe BIA’s

decision. For example, Mortagy testified that

in 1980 he spent several months in Lebanon

undergoing military and weaponstraining provided by the Palestinian Liberation

Organization. He later returned to Lebanon to

fight with the PFLP. Also according to his

3

 (...continued)

detail at § 1182 (a)(3)(B)(iii).

4 We treat the powers of “judicial review” and

“jurisdiction” synonymously by this court, and

provisions similar to § 1158(b)(2)(D), in statute

and regulation, have been consistently interpreted

to deny jurisdiction. See Balogun v. Ashcroft, 270

F.3d 274, 277 n.9 (5th Cir. 2001) (finding that a

lack of jurisdiction was “confirmed in” 8 C.F.R

§ 208.18(e)(1), which states that “there shall be no

judicial appeal or review of” decisions under a subsection of the act there at issue); Garcia-Ortega v.

INS, 862 F.2d 564, 566 (5th Cir. 1989) (endorsing

the decision of an IJ who found that 8 U.S.C. §

1255a(f), which provides that “[t]here shall be no

administrative or judicialreviewof a determination

. . . ,” deprived this court of jurisdiction).

5 Because the BIA did not perform an analysis

of themerits of Mortagy’s claim apart fromwhether he qualified for an exception, his case would be

remanded, and he would still have to make the

requisite showings under § 1231(b)(3)(A) to

receive withholding, even if he succeeds on this

claim.
4

testimony, he at various times gathered

intelligence for Syrian and Turkish officials.

He was recruited by Syria and Turkey for

numerous other spying duties, though he

asserts that he refused many of their requests.

Mortagy attempts, at times persuasively, to

mitigate this evidence and to characterize himself as a victim of manipulation and

persecution. We must, however, be mindful of

our limited standard of review. The BIA’s

finding that Mortagy is ineligible for

withholding of deportation because there exist

“reasonable grounds to believe” that he poses

a threat to the security of this country is

supported by substantial evidence.

For the foregoing reasons, the petition for

review is DISMISSED in part and DENIED in

part.