FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

September 13, 2005

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-10140

Non-Argument Calendar

________________________

Agency Nos. A97-190-630, A97-190-631

HAIDER NAMER SALEH, 

CHADIA IBRAHIM SALEH, 

ALI HAIDAR SALEH, 

WAIL HAIDAR SALEH, 

Petitioners, 

versus 

U.S. ATTORNEY GENERAL, 

Respondent. 

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(September 13, 2005)

Before DUBINA, BLACK and PRYOR, Circuit Judges.

PER CURIAM:
 It is not clear whether the lead Petitioner’s name is “Haidar” or “Haider,” as both spellings 1

are used in various locations in the record.

2

Haider Namer Saleh (“Haidar”) , his wife Chadia Ibrahim Saleh (“Chadia”), 1

and their children, Ali Haidar Saleh (“Ali”) and Wail Haidar Saleh (“Wail”)

(collectively referred to as “Petitioners”), seek review of the Board of Immigration

Appeals’s (“BIA’s”) decision affirming the Immigration Judge’s (“IJ’s”) order

denying their application for asylum, withholding of removal under the

Immigration and Nationality Act (“INA”) and the United Nations Convention

Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment

(“CAT relief”), 8 U.S.C. §§ 1158(a), 1231(b)(3), 8 C.F.R. § 208.16(c). 

In their application, the Petitioners sought relief from being removed to

Nigeria and Lebanon. On appeal, with respect to their Nigerian claims, Petitioners

argue that the IJ mischaracterized certain facts to which Haidar testified and

erroneously applied a “singled out” theory of persecution to their claims. They

submit that they may establish a well-founded fear through a pattern and practice

of persecution of people similarly situated to them. They contend that Haidar’s

testimony as well as the documentary evidence established that white Lebanese in

Nigeria were subject to a pattern and practice of persecution on account of race by

black ethnic Nigerians. They assert that the evidence showed that ethnic Nigerian 
3

civilians were agents of the Nigerian government such that they qualified for CAT

relief.

With respect to their Lebanese claims, the Petitioners argue that Haidar’s

testimony is corroborated by country conditions in the record that show that the

Lebanese government is controlled by Syria, and the Petitioners have a wellfounded fear of future persecution based on a pattern and practice of persecution of

similarly situated Muslims in Lebanon who believe in democracy and western

values. They contend that they are eligible for asylum, withholding of removal,

and CAT relief in Lebanon. 

When the BIA issues a decision, we review only that decision, except to the

extent that the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257

F.3d 1262, 1284 (11th Cir. 2001). To the extent that the BIA’s decision was based

on a legal determination, review is de novo. Mohammed v. Ashcroft, 261 F.3d

1244, 1247-48 (11th Cir. 2001). The BIA’s factual determinations are reviewed

under the substantial-evidence test, and we “must affirm the BIA’s decision if it is

‘supported by reasonable, substantial, and probative evidence on the record

considered as a whole.’” Al Najjar, 257 F.3d at 1283-84 (citation omitted). The

substantial evidence test is “deferential” and does not allow “re-weigh[ing] the

evidence from scratch.” Mazariegos v. U.S. Att’y Gen., 241 F.3d 1320, 1323 (11th

Cir. 2001). “To reverse the IJ’s fact findings, we must find that the record not only
4

supports reversal, but compels it.” Mendoza v. U.S. Att’y Gen., 327 F.3d 1283,

1287 (11th Cir. 2003) (considering withholding of removal claim). Because the

BIA did not issue a decision in this case, we review the IJ’s decision.

An alien who arrives in or is present in the United States may apply for

asylum. See INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). The Secretary of the

Department of Homeland Security or the Attorney General has discretion to grant

asylum if the alien meets the INA’s definition of a “refugee.” See INA §

208(b)(1), 8 U.S.C. § 1158(b)(1), as amended by § 101(a) of the REAL ID Act of

2005, Pub. L. No. 109-13 (May 11, 2005), 119 Stat. 231, 302-03. A “refugee” is 

any person who is outside any country of such person’s nationality or,

in the case of a person having no nationality, is outside any country in

which such person last habitually resided, and who is unable or

unwilling to return to, and is unable or unwilling to avail himself or

herself of the protection of, that country because of persecution or a

well-founded fear of persecution on account of race, religion,

nationality, membership in a particular social group, or political

opinion.

8 U.S.C. § 1101(a)(42)(A). The asylum applicant carries the burden of proving

statutory “refugee” status. Al Najjar, 257 F.3d at 1284. To establish asylum

eligibility, the alien must, with specific and credible evidence, establish (1) past

persecution on account of a statutorily listed factor, or (2) a “well-founded fear”

that the statutorily listed factor will cause such future persecution. 8 C.F.R.

§ 208.13(a), (b); Al Najjar, 257 F.3d at 1287. “Demonstrating such a connection
5

requires the alien to present specific, detailed facts showing a good reason to fear

that he or she will be singled out for persecution on account of such an opinion [or

other statutory factor].” Al Najjar, 257 F.3d at 1287 (internal quotation omitted). 

An asylum applicant may not show merely that he has a political opinion, but must

show that he was persecuted because of that opinion. INS v. Elias-Zacarias, 502

U.S. 478, 483, 112 S. Ct. 812, 816, 117 L. Ed. 2d 38 (1992).

To qualify for withholding of removal under the INA, an alien must show

that it is more likely than not that if returned to his or her country, the alien’s life or

freedom would be threatened on account of race, religion, nationality, membership

in a particular social group, or political opinion. INA § 241(b)(3); 8 U.S.C.

§ 1231(b)(3). “An alien bears the burden of demonstrating that he more-likelythan-not would be persecuted or tortured upon his return to the country in

question.” Mendoza, 327 F.3d at 1287. For both asylum and withholding of

removal, an alien must demonstrate some nexus between the alleged persecution or

fear of persecution and one of the five protected grounds. See Perlera-Escobar v.

Executive Office for Immigration, 894 F.2d 1292, 1297 (11th Cir. 1990) (“Even a

clear probability that an alien’s life is threatened without any indication that the

basis of the threat is related to a statutorily enumerated ground is insufficient to

establish eligibility for relief.”). 
6

An alien who has not shown past persecution may still be entitled to asylum

or withholding of removal if he can demonstrate a future threat to his life or

freedom on a protected ground in his country. 8 C.F.R. §§ 208.13(b)(2),

208.16(b)(2). To establish a “well-founded fear,” “an applicant must demonstrate

that his or her fear of persecution is subjectively genuine and objectively

reasonable.” Al Najjar, 257 F.3d at 1289 (discussing well-founded fear as it

applies to asylum). An applicant may establish a well-founded fear without

showing that he would be singled out for persecution if 

(A) The applicant establishes that there is a pattern or practice in his

or her country of nationality or, if stateless, in his or her country of

last habitual residence, of persecution of a group of persons similarly

situated to the applicant on account of race, religion, nationality,

membership in a particular social group, or political opinion; and

(B) The applicant establishes his or her own inclusion in, and

identification with, such group of persons such that his or her fear of

persecution upon return is reasonable.

8 C.F.R. § 208.13(b)(2)(iii) (asylum); see also 8 C.F.R. § 208.16(b)(2)(i), (ii)

(withholding of removal). “An imputed political opinion, whether correctly or

incorrectly attributed, may constitute a ground for a ‘well-founded fear’ of political

persecution within the meaning of the INA.” Al Najjar, 257 F.3d at 1289

(quotation omitted). If, however, “an applicant is unable to meet the ‘well-founded

fear’ standard for asylum, he is generally precluded from qualifying for either

asylum or withholding of [removal].” Id. at 1292-93 (quotation omitted). 
7

To obtain withholding of removal under the CAT’s implementing

regulations, an alien must establish that he “more likely than not” will be tortured

upon his return to his home country. 8 C.F.R. § 208.16(c)(2). “Torture” is defined

as 

any act by which severe pain or suffering, whether physical or mental,

is intentionally inflicted on a person for such purposes as obtaining

from him or her or a third person information or a confession,

punishing him or her for an act he or she or a third person has

committed or is suspected of having committed, or intimidating or

coercing him or her or a third person, or for any reason based on

discrimination of any kind, when such pain or suffering is inflicted by

or at the instigation of or with the consent or acquiescence of a public

official or other person acting in an official capacity. 

Id. § 208.18(a)(1). If the petitioners “failed to demonstrate a ‘well-founded fear of

persecution’ sufficient to support an asylum claim, they likewise cannot establish

‘torture’ sufficient to warrant relief under CAT” because “[t]he burden of proof for

an applicant seeking withholding of removal under the Convention, like that for an

applicant seeking withholding of removal under the statute, is higher than the

burden imposed on an asylum applicant.” Al Najjar, 257 F.3d at 1303.

“Not all exceptional treatment is persecution.” Gonzalez v. Reno, 212 F.3d

1338, 1355 (11th Cir. 2000). “[W]e have discussed other circuits’ holdings that

‘persecution’ is an ‘extreme concept,’ requiring more than a few isolated incidents

of verbal harassment or intimidation, and that mere harassment does not amount to

persecution.” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005)
8

(quotation omitted). “[D]iscrimination on the basis of race or religion, as morally

reprehensible as it may be, does not ordinarily amount to ‘persecution.’” Singh v.

INS, 134 F.3d 962, 967 (9th Cir. 1998) (quotation omitted). “Mere generalized

lawlessness and violence between diverse populations, of the sort which abounds

in numerous countries and inflicts misery upon millions of innocent people daily

around the world, generally is not sufficient to permit the Attorney General to

grant asylum to everyone who wishes to improve his or her life by moving to the

United States . . . .” Id. “[A]cts of common criminality or personal hostility . . . do

not implicate asylum eligibility.” Vatulev v. Ashcroft, 354 F.3d 1207, 1209 (10th

Cir. 2003). Forced recruitment by a guerilla organization does not constitute

persecution merely because the guerilla group has a particular political opinion,

and an individual who refuses to side with any particular political group or faction

does not express a political opinion. See Elias-Zacarias, 502 U.S. at 482-83, 112

S. Ct. at 816. 

In the instant case, substantial evidence supports the IJ’s determination that

the Petitioners were not entitled to asylum, withholding of removal, or CAT relief

with respect to either Nigeria or Lebanon. Haidar related incidents in Nigeria in

which (1) he and some friends were robbed by thieves; (2) his brother was severely

beaten by police looking for bribes; (3) a Lebanese “big businessman” was killed

and his wife raped by employees; (4) his babysitter possibly abused his son, later
 We acknowledge that the Petitioners are correct in their assertions that the IJ misstated 2

some of the facts. However, even as correctly stated, the facts do not warrant relief. 

9

demanded money, and began threatening Haidar and his family; and (5) his

brother-in-law’s water factory was closed, allegedly by ethnic Nigerians. This 2

treatment does not rise to the level of persecution. The country conditions indicate

that (1) ethno-religious violence is widespread across many of Nigeria’s ethnicities

and regions; (2) police regularly mistreat civilians to extort money; and (3)

Nigeria’s economy is in decline. Additionally, the Petitioners have not established

a nexus between one of the five protected grounds and the treatment. Although

Haidar testified that the events were motivated by race or nationality, no other

evidence in the record compels the conclusion that the Nigerian government or

Nigerians in general persecute Lebanese or other non-Nigerians on account of race

or nationality. The evidence suggests that Nigeria suffers from widespread conflict

due to its numerous internal ethnic populations. Further, evidence relating to the

Petitoners’ departure from Nigeria suggests, as the IJ found, that Haidar was not

fleeing persecution. Therefore, the Petitioners failed to establish past persecution

in Nigeria. The Petitioners offered no evidence of persecution in Lebanon. 

Therefore, they failed to establish past persecution in Lebanon as well.

The Petitioners also did not demonstrate a well-founded fear of future

persecution. While evidence of a pattern and practice of persecution against
10

similarly situated individuals may be used to establish a well-founded fear of

future persecution, as discussed above, the treatment in Nigeria does not rise to the

level of persecution, and the Petitioners offer no evidence that compels the

conclusion that a nexus existed between the treatment and a statutory factor. The

fact that numerous members of Haidar’s family continue to reside in Nigeria

without incident suggests that Haidar’s subjective fear of future persecution in

Nigeria is not objectively reasonable. Haidar’s subjective fear of future

persecution in Lebanon is also not objectively reasonable. The evidence on

country conditions in Lebanon does not compel a conclusion that “political parties”

or terrorist groups actively recruit members involuntarily in Lebanon. Even if it

did compel such a conclusion, recruitment is not persecution as stated earlier. 

Further, the Petitioners have not established a nexus between any future

persecution, or a pattern and practice of persecution against similarly situated

individuals, and a statutory factor. The Petitioners claim that the groups persecute

Lebanese who believe in democracy and western values. However, nothing in the

record compels the conclusion that the groups sought to recruit Haidar on account

of his beliefs, and Haidar’s mere refusal to join by itself is not an expression of

political opinion. Thus, the evidence does not compel the finding that the

Petitioners have a well-founded fear of future persecution in either Nigeria or
11

Lebanon, and they are ineligible for withholding of removal, as they did not

establish eligibility for asylum, which carries a lower burden of proof.

Finally, the Petitioners’ claim for CAT relief fails because (1) they did not

demonstrate that the harm they suffered or will suffer was inflicted at the

instigation of, or with the consent or acquiescence of, a public official, and (2) they

failed to demonstrate a well-founded fear sufficient to support a claim of asylum,

and CAT relief requires a higher burden of proof. Thus, substantial evidence

supports the IJ’s determination that the Petitioners are not entitled to relief;

accordingly, we deny the petition.

PETITION DENIED.