United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 03-1783

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Yasmin A. Shoaira; Hesham Gawdat *

Tobar, *

*

Petitioners, *

* Petition for Review of an Order

v. * of the Board of Immigration Appeals.

*

John Ashcroft, Attorney General of the * 

United States of America, *

* 

Respondent. *

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Submitted: May 13, 2004

 Filed: July 26, 2004

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Before MURPHY, HEANEY, and MAGILL, Circuit Judges.

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MAGILL, Circuit Judge.

Yasmin Shoaira and Hesham Gawdat Tobar petition for review of separate

decisions of the Board of Immigration Appeals denying their applications for asylum

and withholding of removal. 
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I. 

A. Factual Background

Shoaira and Tobar are a wife and husband who seek asylum in the United

States because they fear persecution based on their religious beliefs, imputed political

beliefs, and membership in a particular social group if returned to their home country,

Egypt. Tobar came to the United States on September 4, 1988 as a visitor for

pleasure and stayed beyond the date authorized by his visa. Shoaira came to the

United States on September 28, 1994 to marry Tobar, who is her cousin. She also

entered as a visitor for pleasure and overstayed her visa.

The Immigration and Naturalization Service (INS) began deportation

proceedings against both petitioners separately in successive months. The INS filed

a Notice to Appear in the Immigration Court for Tobar on December 8, 1997. It filed

a Notice to Appear for Shoaira on January 24, 1998. An IJ subsequently joined their

cases. Both Shoaira and Tobar conceded deportability before the IJ, but applied for

asylum and withholding of removal. The IJ held a joint asylum hearing on August

18, 1998 and took the testimony of both petitioners and a psychologist who had

treated Shoaira at the Center for Victims of Torture.

The petitioners base their claim to fear of future persecution on events that

occurred to Shoaira's father, Abdulmann Shoaira, who is also Tobar's uncle. Tobar

and Shoaira testified that Abdulmann Shoaira is a devout Muslim who dresses and

grooms himself in strict accordance with Muslim traditions. He wears a long beard

and distinctive clothing that identify him as a traditional Muslim. According to the

petitioners, the Egyptian government believes his dress and grooming mark him as

a fundamentalist Muslim with particular political views regarding the acceptability

of Egypt's secular government.
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According to both petitioners, Abdulmann Shoaira suffered four arrests largely

on the basis of his appearance. The first arrest occurred in 1981. The authorities

suspected Abdulmann Shoaira of involvement in the assassination of President Anwar

Sadat. Shoaira, who was five years old at the time, testified that there was no

particularized suspicion of her father, but that the authorities had picked up anyone

with a beard. There was conflicting evidence on this point, however, as Tobar

claimed Abdulmann Shoaira was suspected because he once wrote a letter to Anwar

Sadat criticizing the Egyptian government. Abdulmann Shoaira was arrested a

second time in 1984. On this occasion, the police came to the Shoaira home at night,

harassed her family, and took her father away. When Shoaira tried to take shoes to

her father that night, a police officer pushed her to the ground. According to Shoaira,

her mother succumbed to mental illness after this event. In 1990, the police again

arrested Abdulmann Shoaira. On this occasion, Shoaira testified, the authorities

detained him for four or five months. The final arrest occurred in 1994, after

Abdulmann Shoaira returned to Egypt from delivering his daughter to the United

States for her wedding to Tobar. According to Shoaira, the police detained her father

for four or five days, questioning him about the reason for his trip. She also said they

tried to get her father to persuade Tobar to return to Egypt. The petitioners claim the

authorities questioned Abdulmann Shoaira about Tobar's views and activities during

that detention.

Tobar testified that his father-in-law now lives in Europe, where he works as

a kind of merchant marine. He says that membership in certain revolutionary Islamic

fundamentalist groups is an offense in Egypt, punishable by life in prison. Both

petitioners deny that Abdulmann Shoaira ever had any connection to such groups.

They say that the Egyptian government's inference from his grooming to his politics

was faulty.

The petitioners relate few incidents of government mistreatment they have

experienced in their own rights. Shoaira admits that she was never detained by the
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police. She claims to have suffered psychological damage from experiencing the

police arrests of her father, and her therapist provided supporting testimony on this

point. Shoaira also claims that she was pushed to the ground by police during her

father's second arrest. Tobar claims that he was detained on two occasions. When

he was seventeen years old, authorities detained him upon his return from a trip to

Yemen. Later, while in college, the police detained Tobar for six hours. He concedes

that these incidents are not past persecution. Nevertheless, he believes that the

authorities keep a file on him because his father-in-law's visit drew Tobar to their

attention.

B. Asylum Hearing

During the asylum hearing, the IJ at times adopted a hostile demeanor with the

petitioners. He stated that "I am one of those judges that is not the least bit interested

with the process. I don't care about the procedure. I don't care about the process

here. It's all for show." App. of Petitioners ("App.") at 32. Beyond dismissing

procedural safeguards, he also treated the petitioners in a combative fashion. As he

stated at the hearing, "I've got to challenge you with some tough questions and turn

your own answers back against you." App. at 71. Later, he explained that "when

people are angry they usually tell me the truth." App. at 144. The IJ peppered the

hearing with remarks he apparently meant to throw the petitioners off their story, if

it was concocted.

The IJ held that neither Shoaira nor Tobar had established that they had

experienced past persecution directly. Respecting Shoaira's first-hand experiences,

the IJ wrote, "the Court fails to see that the Egyptian government, while they certainly

may have caused [Shoaira's psychological disorders], intended to persecute her at the

same time they were mistreating her father." App. at 11. In essence, the IJ held that

though the Egyptian police may have been persecuting her father in making these

arrests, they were not persecuting Shoaira, notwithstanding the fact that she incurred

psychological damages. 
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The IJ ruled that neither petitioner could base a well-founded fear of future

persecution on the experiences of Shoaira's father alone. The IJ did not make any

explicit credibility determination, but appeared to accept that the facts were as the

petitioners presented them at the hearing. 

The IJ, assuming without deciding that the arrests of Abdulmann Shoaira

constituted persecution, also held that his treatment was not based on his religious

beliefs. He wrote, "[t]he Court would not be able to state that he was persecuted for

religious reasons, because Egypt is, according to the documents in the record,

officially an Islamic country and while the Egyptian government may be a little

secular for some of the more extreme Muslim Fundamentalists, nevertheless, the

government has no history of persecuting people simply because they are Muslim."

App. at 11. Thus, the IJ concluded that the State Department Report's evaluation of

Egypt outweighs the petitioners' attributions of motive to the government actors. The

religious aspect of Abdulmann Shoaira's treatment arises only because people of a

certain type of religious belief often advocate a certain political view—that secular

governments should be overthrown in favor of Islamic states.

The IJ also rejected imputed political belief as a basis for the father's

persecution, and by extension as the basis for the petitioners' fear of future

persecution. Basing its opinion on country conditions reports, the IJ stated that Egypt

tolerates a fair amount of dissent in the form of opposition newspapers. He also noted

that the petitioners were unable to express the particular views they thought the

government attributed to them based on Shoaira's father's opinions. The IJ held that

the petitioners had not met their burden of proving that they had a well-founded fear

of future persecution based on political belief.

Finally, the IJ rejected the claim that the petitioners reasonably feared

persecution based on their family membership, which they claim to be a "social

group" under the asylum statute.
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Finding no basis to fear persecution for a protected activity, the IJ denied

Shoaira's and Tobar's applications for asylum. It also held that the applications for

withholding of removal failed as a matter of course. Finally, the IJ granted the

petitioners' applications for voluntary removal.

The BIA affirmed the IJ's decision in separate orders without opinion. We

have jurisdiction to review the BIA's decision under 8 U.S.C. § 1252.

II.

The petitioners argue that the BIA mistakenly applied its streamlining

procedures in disposing of their appeals. We review this decision for an abuse of

discretion. Dominguez v. Ashcroft, 336 F.3d 678, 680 (8th Cir. 2003). The BIA does

not abuse its discretion in adopting without opinion the decision of an immigration

judge. Id. An agency must set out the basis of its adjudicatory decisions, but the IJ's

decision fulfills this agency obligation. Id. Nor do the regulations violate due

process. Loulou v. Ashcroft, 354 F.3d 706, 708 (8th Cir. 2003) (amended Apr. 28,

2004). Consequently, the BIA's use of its streamlining procedures was not improper,

and we will review the substance of the IJ's decision directly.

III.

The petitioners argue that the IJ deprived them of their due process rights by

conducting their asylum hearing in a hostile manner. They argue that the IJ deprived

them of a fair hearing by ignoring proper procedure and preventing them from

testifying fully. We review constitutional challenges to immigration proceedings de

novo. Escudero-Corona v. INS, 244 F.3d 608, 614 (8th Cir. 2001).

To support their position, the petitioners rely on Podio v. INS, 153 F.3d 506

(7th Cir. 1998), and Colmenar v. INS, 210 F.3d 967 (9th Cir. 2000). In Podio, the

Seventh Circuit held that an immigration judge had violated an petitioner's due
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process rights by taking over the questioning from his attorney, repeatedly and

forcefully interrupting his testimony, and refusing to allow his siblings to corroborate

his story with their own testimony—notably, testimony that had earned the siblings

grants of asylum in the United States. 153 F.3d at 509-11. The Seventh Circuit held

that due process requires that deportation hearings be "conducted in a fair enough

fashion for one to determine that the BIA's decision was based on reasonable,

substantial, and probative evidence." Id. at 509. For a deportation hearing to be fair,

an IJ must allow a reasonable opportunity to examine the evidence and present

witnesses. Id. In Colmenar, the Ninth Circuit upheld a due process challenge to

asylum proceedings where the immigration judge stated before the hearing that he

"had no idea what the basis for the claim is," and refused to allow an applicant to

testify about anything in his written application. 210 F.3d at 971. The Ninth Circuit

determined that the immigration judge prejudged the application and prevented the

petitioner from presenting evidence to support his application. Id. at 971-72.

This case has no point of contact with either Podio or Colmenar. The

petitioners point to several ill-conceived remarks of the IJ that suggest he was hostile

to their claim. For example, near the beginning of the hearing, the IJ said, "I am one

of those judges that is not the least bit interested with the process. I don't care about

the procedure. I don't care about the process here. It's all for show." App. at 32.

Taken in isolation and coming from a judge, this language is deplorable. However,

the comment and the few others like it scattered through the transcript do not work

any prejudice against the petitioners. The IJ's immediately subsequent comments are

revealing: "What I'm interested in is substance. . . . And, substance can be presented

to me in five or 10 minutes. I've granted asylum cases in less than 15 minutes if

they're good cases. . . . I don't need paperwork. I don't need a lot of stuff. I just need

the facts, good solid, dependable facts. That's all I need." Id. at 32. Also revealing

is the context. The petitioners sought to provide the testimony of a therapist who

treated Shoaira for problems she traces to witnessing her father's mistreatment by

Egyptian authorities. The IJ questioned the relevance of the testimony to the asylum

claim and admonished the petitioners not to waste their time on irrelevancies. In the
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end, however, the IJ allowed the therapist to testify, and her testimony occupies fully

fourteen pages of the hearing transcript. The IJ was respectful of and engaged with

the testimony, and the petitioners were able to establish that Shoaira suffered, and

suffers still, from witnessing the arrests of her father. 

It is telling that the petitioners point to no evidence that the IJ's conduct

discouraged or prohibited them from providing. To prevail on a due process

challenge, an asylum applicant must show prejudice. Roman v. INS, 233 F.3d 1027,

1033 (7th Cir. 2000). The petitioners allege no specific prejudice; they claim only a

generalized disability to testify fully. Even this general complaint misrepresents the

overall tenor of the hearing. While the IJ asked pointed questions and at times

questioned the witnesses at length on his own, his questions were respectful and when

he finished asking them, he allowed the petitioners' attorney to ask further questions,

at one point stating, "Counselor, I'm sorry I kind of stole your thunder there. If you

want to go ahead and pick-up." App. at 72. Immigration judges have broad

discretion to control the manner of interrogation to get at the truth. Podio, 153 F.3d

at 509. We find that the IJ's conduct at the asylum hearing in this case was

acceptable.

IV.

Finally, the petitioners challenge the IJ's determination that they are not

refugees who qualify for asylum or withholding of removal. We review the IJ's

denial of asylum for an abuse of discretion, and the factual findings underlying that

decision for substantial support by the record considered as a whole. Manivong v.

Dist. Dir., U.S. Dep't of Justice INS, 164 F.3d 432, 433 (8th Cir. 1999). The IJ's

factual determinations "must be upheld if supported by reasonable, substantial, and

probative evidence on the record considered as a whole." Wai Ling Tang v. INS, 223

F.3d 713, 718 (8th Cir. 2000) (citations and quotations omitted). Reversal is

appropriate only if the applicant shows that the evidence was so compelling that no
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reasonable fact-finder could fail to find the requisite fear of persecution.

Kratchmarov v. Heston, 172 F.3d 551, 554 (8th Cir. 1999).

The Immigration and Nationality Act ("INA") authorizes the Attorney General,

in his discretion, to grant asylum to anyone who qualifies as a refugee. 8 U.S.C. §

1158(a). The INA defines "refugee" as an alien who is not willing to return to her

country of origin due to "past 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 "well-founded fear of

persecution" standard contains a subjective element and an objective element. An

applicant for asylum may establish the subjective element with credible testimony that

she genuinely fears persecution. Ghasemimehr v. INS, 7 F.3d 1389, 1390 (8th Cir.

1993) (citations omitted). The element of objective fear requires a showing of

credible, direct, and specific evidence that a reasonable person in the applicant's

position would fear persecution if returned to her country of origin. Id. 

"Past persecution is relevant either because it provides a basis for a wellfounded fear of future persecution, or, in extreme cases, because the severity of past

treatment may form part of a compelling reason for the alien's unwillingness to return

to the site of such persecution." Fisher v. INS, 291 F.3d 491, 497 (8th Cir. 2002). If

an applicant establishes past persecution, she is entitled to the presumption that her

fear of future persecution is well-founded. Perinpanathan v. INS, 310 F.3d 594, 598

(8th Cir. 2002). "Persecution involves a threat to one's life or freedom on account of

one of five protected grounds—race, religion, nationality, membership in a particular

social group, or political opinion." Fisher, 291 F.3d at 497. 

Neither Shoaira nor Tobar can establish past persecution. Only Shoaira claims

that she herself suffered persecution; Tobar concedes that his petition rises or falls on

proving a connection between the treatment of his father-in-law and his own
1

Even had Tobar not conceded this point, his detention on two separate

occasions for periods of several hours does not alone rise to the level of persecution.

Tawm v. Ashcroft, 363 F.3d 740, 743 (8th Cir. 2004) (stating that two incidents of

detention that occurred four years apart and lasted only a few hours "do not

necessarily constitute persecution").

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circumstances if returned to Egypt.1

 App. at 83. Shoaira claims she suffered

persecution by being forced to watch her father's mistreatment by Egyptian

authorities. She witnessed three of Abdulmann Shoaira's four arrests. On the second

occasion, she was only eight years old, and when she went to help her father, she was

pushed to the ground by a police officer. Her therapist testified that Shoaira exhibited

symptoms of post-traumatic stress disorder to support Shoaira's claim that she

suffered a direct injury from witnessing these events. The statute leaves the term

"persecution" undefined, but we have defined it as "the infliction or threat of death,

torture, or injury to one's person or freedom" for a proscribed reason. RegaladoGarcia v. INS, 305 F.3d 784, 787 (8th Cir. 2002). While mental or emotional injury

may in part constitute persecution, Duarte de Guinac v. INS, 179 F.3d 1156, 1163

(9th Cir. 1999), "'persecution is an extreme concept.' Low-level intimidation and

harassment does not rise to the level of persecution." Eusebio v. Ashcroft, 361 F.3d

1088, 1090 (8th Cir. 2004) (internal citation omitted) (quoting Fisher v. INS, 79 F.3d

955, 961 (9th Cir. 1996) (en banc)). We hold that the psychological damages Shoaira

received from the rough treatment of the Egyptian authorities and from witnessing her

father's arrest on three occasions does not rise to the level of persecution.

Both petitioners assert that their persecution is inevitable if returned to Egypt

because of the treatment Shoaira's father received. The IJ did not question that

Abdulmann Shoaira had been persecuted on the basis of the political beliefs the

Egyptian authorities falsely imputed to him. The petitioners claim that the Egyptian

authorities imputed to the father a desire to overthrow Egypt's secular government

because he is a fundamentalist Muslim who dresses and grooms himself according

to a strict traditional regime. Shoaira and Tobar assert that the government will make

the same connection in their cases because they also adhere to traditional dress and
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are related to Abdulmann Shoaira. According to the petitioners, the authorities even

questioned Abdulmann Shoaira about Tobar's beliefs after he accompanied his

daughter to the United States. 

Unfortunately for the petitioners, this evidence does not compel us to overturn

the IJ's determination that their fear, though quite possibly genuine, is not wellfounded. The petitioners do present some evidence that the Egyptian government

takes a special interest in people who adhere strictly to Muslim traditions. But

generalized government interest in a group to which the petitioners belong does not

suffice to show that the petitioners will be persecuted if returned to Egypt. To

succeed in their claim of derivative persecution, the petitioners must show a "'pattern

of persecution closely tied to the petitioner.'" Ramos-Vazquez v. INS, 57 F.3d 857,

861 (9th Cir. 1995) (quoting Arriaga-Barrientos v. INS, 937 F.2d 411, 414 (9th Cir.

1991)); see also Ciorba v. Ashcroft, 323 F.3d 539, 545 (7th Cir. 2003) (stating that

to show derivative persecution, an applicant must "show that her family's political

opinions have been imputed to her and that she has suffered or will suffer persecution

as a result"). The petitioners suggest two potential explanations for Abdulmann

Shoaira's treatment, and neither satisfies this test. First, the petitioners claim that

Abdulmann Shoaira was picked out solely because he wears a beard and traditional

Muslim clothing, which fails to distinguish them from any other traditional Muslim

in the country. Second, the petitioners claim that he was persecuted because he

previously had criticized the government. The petitioners do not claim that they have

a history of dissent. This explanation of the authorities' past behavior, then, gives

Shoaira and Tobar reason to think that they will not be mistreated. We hold that the

evidence does not compel us to conclude that either petitioner has a well-founded fear

of future persecution. 

V.

For the reasons provided above, we deny the petition.

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