2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-18-2010

Hamza Delki v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-2411

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-2411

___________

HAMZA DELKI,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A099-758-737)

Immigration Judge: Margaret R. Reichenberg

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

April 21, 2010

Before: AMBRO, CHAGARES and ALDISERT, Circuit Judges

(Opinion filed: May 18, 2010)

___________

OPINION

___________

PER CURIAM

Hamza Delki has filed a petition for review of the final order by the Board of

Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”’s) denial of

Delki’s requests for asylum, withholding of removal, and protection under the Convention
2

Against Torture (“CAT”). For the reasons that follow, we will deny the petition for

review.

The parties are familiar with the background of this case, and so we provide only a

summary of the proceedings. Hamza Delki is a citizen of Israel. He arrived in the United

States in 2002 on a tourist visa, returned to Israel, then returned to the United States in

2004 on another tourist visa. He overstayed his visa and was placed in removal

proceedings. He conceded removability, and in July 2007 he applied for asylum,

withholding of removal, and CAT relief. On February 25, 2008, the IJ conducted a

hearing on Delki’s claim that he feared returning to Israel.

Delki testified at the hearing that he lived in Dirhanna, a village of Christians and

Muslims in the northern part of Israel, near Lebanon. He was a mathematics teacher. He

served for two or three months in the military, but because he had not finished his twoyear service obligation, he was unable to obtain a teaching position in Israel. Delki

conceded that he waited more than one year to apply for asylum after his 2004 arrival in

the United States, explaining that he married a United States citizen in 2005. He noted

that his marriage was considered to be unacceptable in his community in Israel;

ultimately he and his wife divorced. Delki further explained that a war broke out

between Israel and Lebanon in mid-2006. His hometown was near the area being

shelled, and his family advised him that it was too dangerous for him to return, although

his family did not relocate.
3

Delki stated that he was afraid to return to Israel because of the “talk nowadays

about the war,” his relationship with an American girlfriend, his new lifestyle in the

United States, and better teaching opportunities in the United States. He also noted that

the Israeli government would possibly jail him due to the circumstances of his military

service delinquency; he had obtained a six-month deferment, traveled to the United

States, and never returned. Delki testified that the Israeli military telephoned his family’s

home, and when informed that Delki was in the United States, the message was that

Delki would be contacted upon his return to Israel. Delki stated that no problem arose,

but he feared returning to Israel and being forced to serve the remainder of his military

service time on the front lines of the fighting, because as an Arab living near the border

of Lebanon, he had greater knowledge of the terrain. He also described his concerns

about fanatic Muslim groups in his community that had labeled him a traitor for having

served in the Israeli military, even though those groups had not done harm to him or his

family thus far.

In his asylum application affidavit, Delki stated that his fear of returning to Israel

was based on his marriage to a non-Muslim American citizen in 2005, which would

cause him to be viewed as Americanized and a traitor to Muslim fundamentalists. When

asked why his application statement did not mention his fear of returning to Israel

because of the war, his military obligation, or his employment difficulties, Delki

explained that he did not remember what he had written, and his application was
We have jurisdiction over the timely petition for review pursuant to 8 U.S.C. § 1

1252(a).

4

supposed to contain that information.

The IJ found that Delki did not testify credibly. The IJ also determined that Delki

had not met his burden of proof for asylum, withholding, or CAT relief, even assuming

his testimony were credible. Further, the IJ concluded that the asylum application was

untimely. The IJ denied relief and ordered removal to Israel if Delki did not depart

voluntarily. On April 14, 2008, the BIA dismissed Delki’s appeal. The BIA found no

clear error in the IJ’s adverse credibility finding and accordingly found no error in the

denial of asylum and withholding relief. The BIA noted that it did not reach the question

of whether Delki would have established eligibility for relief assuming that his testimony

was credible, and further noted that it need not address the issue of whether the asylum

application was untimely. In addition, the BIA concluded that Delki had not met his

burden of proof on his CAT claim. This petition for review followed.1

To the extent that the BIA deferred to the IJ’s findings, we will review the IJ’s

decision as supplemented by the BIA. See Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir.

2004). We review these findings, including any credibility determinations, under a

substantial evidence standard. See Cao v. Att’y Gen., 407 F.3d 146, 152 (3d Cir. 2005). 

The Court must uphold the credibility determination of the BIA unless “any reasonable

adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). 
 Delki’s asylum application was filed after May 11, 2005, and thus the provisions 2

of the REAL ID Act apply. See Chukwu v. Att’y Gen., 484 F.3d 185, 189 (3d Cir. 2007). 

The REAL ID Act provides that an adverse credibility determination can be based on

inconsistencies, inherent implausibilities, inaccuracies, and other factors, without regard

to whether they go to the heart of an applicant’s claim. 8 U.S.C. § 1158(b)(1)(B)(iii). As

will be noted, the factors relied upon by the IJ in this case concerned matters that are

central to Delki’s claim.

5

We do not overturn a credibility finding simply because we would make a different

finding. See Gabuniya v. Attorney General, 463 F.3d 316, 321 (3d Cir. 2006).

Substantial evidence supports the adverse credibility determination. The BIA 2

relied on the IJ’s determination, citing the material difference between Delki’s testimony

and his asylum application statement regarding his fear of returning to Israel. Indeed, as

noted above, Delki’s testimony focused on fears related to his military service obligation

and related employment difficulties, while his asylum application did not relate those

fears. Delki provided little explanation for the more expansive explanation of his fears in

his testimony, and the inconsistency concerns the heart of his claim for relief. Delki

argues that his failure to file an asylum application that is not as complete as his testimony

does not require the conclusion that his testimony was not credible, and he cites

Smolnaikova v. Gonzales, 422 F.3d 1037, 1045 (9th Cir. 2005), in support. However,

this Court has recognized that material omissions in the asylum statement can support an

adverse credibility determination. See, e.g., Xie, 359 F.3d at 242-43 (involving omission

of the alien’s wife’s sterilization in the application when that fact was advanced at the
 Delki argues that the IJ’s determination that the asylum application was untimely 3

was erroneous because he established extraordinary circumstances to excuse his untimely

filing. We do not reach this issue because substantial evidence supports the agency’s

adverse credibility finding.

hearing as the very basis for the claim).3

We now address Delki’s CAT claim. Delki argues that he has shown that

members of the Israeli military would torture him by forcing him to complete his military

service and to commit human rights violations upon his people. He also suggests that he

has met the standard for CAT relief by showing that the government of Israel

demonstrates willful blindness to the torture of its citizens. However, we note that it is

not enough for public officials to be “willfully blind” to torturous acts. To constitute

torture, the officials must “have the goal or purpose of inflicting severe pain or suffering.” 

Pierre v. Att’y Gen., 528 F.3d 180, 190 (3d Cir. 2008) (en banc). The record here does

not compel the conclusion that Delki “more likely than not” would be tortured if he

returned to Israel. See Tarrawally v. Ashcroft, 338 F.3d 180, 187 (3d Cir. 2003); 8 C.F.R.

§ 208.16(c)(2).

 We will deny the petition for review.