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

_______________



### H ESHAM 

### A. M ORTAGY



### ,

Petitioner,

VERSUS



### J OHN 

### A SHCROFT



### , U.S. A TTORNEY G ENERAL

,



### Respondent.

_________________________

Petition for Review of an Order of

the Board of Immigration Appeals



### m A75 345 985

_________________________

Before D AVIS

, S MITH

, and D UHÉ

, Circuit Judges.

J ERRY E. S MITH , Circuit Judge: *

The Board of Immigration Appea l s (“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 dange r to

the security of the United States (as to asylum

and withholding). For purposes of asylum, the

f inding that he engaged in terrorist activity is

stat ut o rily unreviewable. The finding that he

poses a danger to the secur it y of the United * Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion should not be published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 5 TH C IR . 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 from Syria. The Immigration and Naturalization Service issued a

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

overstay ing his visa. He admitted the factual

allegations in the notice and conceded deportability.

Mo rt agy applied for asylum and

withholding of deportation. The immigration

judge (“IJ”) determined that Mortagy was not

entitled to asylum or withholding of

deportati on 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 of the

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

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

withholding of deportati on pursuant to 8

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

there are reasonable grounds to believe he

poses a dange r t o the security of the United

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

t he Liberation of Palestine (“PFLP”) from

1980 to 1 984; thi s group i s on the State

Department’s List of De signated Foreign Terrorist Organizations. 1

II.

Mortagy petitions for review, cont ending

that the BIA erred in its determinations the he

has engaged in terrorist activity and that he

poses a danger to the secur it y of the United

Sta t es. Though the Attorney General argues

that the BIA

did not err in determining that

Mortagy poses a danger t o the nation’s

security, he does not address the BIA’s finding

under § 1158(b) (2)(A)(v) that Mortagy

engaged in terrorist act ivity. Neither party

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

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

(A)(v); we raise the issue s ua sponte 2 and

conclude that the statute deprives this court of

appellate jurisdiction to review t he asylum

determination.

Though the Attorney Gener al has

discretionary power under § 1158(a) to grant

asylum, the general asylum rule does not apply

if he determines t hat t he alien meets any of

several enumerated exceptions. S ee § 1158-

(b)(2). One such exception is list ed under

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

, declares ineligible all aliens inadmissable under

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

“engaged in a t e rrorist activity.” S ee

§ 1158(b)(2)(A)(v). 3

1 The PFLP is als o 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 b asis of our appellate jurisdiction and, if there is doubt, we must

address it, sua sponte if necessary.”).

3 “T errorist 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

unambiguously denies this 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 ineli gible for asylum pursuant to

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

remaind er o f his petition with respect to

asylum 

### SS that 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 inelig ible for

withholding of deportati on. An alien is eligible

for withholding of deportati on if he shows that

returning him to a certain country would result

in threats to his life or freedom and would be

on acc o unt of his “race, religion, nationality,

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

however, fo und 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 thi s claim and because withholding

is a separate remedy from asylum. M ikhael v.

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

We review the BIA’s legal rulings de novo

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

(5th Cir. 2001). Mortagy urges d e novo

review here, asking us to consider whether his

past membership in

t he PFLP is, by itself, l egally sufficient to support the BIA’s finding

that he is a danger to the security of the United

Stat e s. The decision that an alien is not

eligible for withholding of deportati on 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 Atto r ney General points to other

evidence in the record that supports the BIA’s

decision. For example, Mortagy testified that

in 1980 he spent severa l months in Lebanon

undergoing milit

ary and weapons training 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 § 1 1 58(b)(2)(D), in statute

and regulation, have been con sistently interpreted

to deny jurisdiction. S ee Balogun v. Ashcroft

, 270

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

lack of jurisdicti on 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 decisio n of an IJ who found that 8 U.S.C. §

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

administrative or judicial review of a determination

. . . ,” deprived this court of jurisdiction). 5 Because the BIA did not perform an analysis

of the merits of Mortagy’s claim apart from whether 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

rec eive withholding, even if he succeeds on this

claim.4

testimony, he at variou s t imes gathered

intelligence for Syrian and Turkish officials.

He wa s recruited by Syria and Turkey for

numer o us 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

o f manipulation and

persecution. We must, however, be mindful of

ou r limited standard of review. The BIA’s

finding that Mortagy

is ineligible for

withholding of deportati on because there exist

“reasonable grounds to believe” that he poses

a threat to the security of this count ry is

supported by substantial evidence.

F or the foregoing reasons, the petition for

review is DISMISSED in part and DENIED in

part.