Abufayad v. Holder

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TAREQ I.J. ABUFAYAD, 

Petitioner, No. 09-70136

v.

 Agency No.

A055-372-964

ERIC H. HOLDER Jr., Attorney

General, OPINION

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

November 1, 2010—San Francisco, California

Filed February 16, 2011

Before: Ronald M. Gould, Sandra S. Ikuta, Circuit Judges,

and James C. Mahan, District Judge.*

Opinion by Judge Gould

*The Honorable James C. Mahan, United States District Judge for the

District of Nevada, sitting by designation.

2575

2578 ABUFAYAD v. HOLDER

COUNSEL

Love Macione Suh, Oakland, California, for the petitioner.

Tony West, Assistant Attorney General, Department of Jus-

tice, Civil Division, Washington, D.C., Ethan B. Kanter and

Daniel I. Smulow, Office of Immigration Litigation, Depart-

ment of Justice, Washington, D.C., for the respondent.

ABUFAYAD v. HOLDER 2579

OPINION

GOULD, Circuit Judge:

Tareq I.J. Abufayad, a native of Saudi Arabia and citizen

of Palestine, petitions for review of a decision of the Board of

Immigration Appeals (“BIA”) affirming an immigration

judge’s (“IJ”) determination that he is removable, pursuant to

8 U.S.C. § 1182(a)(3)(B)(i)(II), for being likely to engage in

terrorist activity after entering the United States. He also

seeks review of the BIA’s determination that he does not

qualify for a grant of protection under the Convention Against

Torture (“CAT”) based on his fear of being mistreated upon

returning to Palestine as a consequence of being removed on

terrorism-related grounds. Because we conclude that substan-

tial evidence supports the BIA’s conclusions, we deny the

petition.

I

A Palestinian born in Saudi Arabia, Tareq I.J. Abufayad

lived in Gaza from age six to about age nineteen, when he left

to attend university in the West Bank and, later, Egypt. His

father and five siblings are U.S. residents or permanent citi-

zens, and Abufayad obtained an IR-2 immigrant visa to move

from Egypt to the United States with his father’s sponsorship

in January of 2007. On February 17, 2007, when attempting

to enter the United States at San Francisco International Air-

port, a Customs and Border Protection agent randomly

approached Abufayad. Alerted by Abufayad’s “confrontation-

al” attitude, he took Abufayad to a secondary examination

area, where agents inspected Abufayad’s luggage, as well as

his laptop computer and external hard drive (collectively

“computer”). Opening Abufayad’s computer and examining

its contents, materials that they described as “anti-American”

came to their attention. This in turn led to more extensive

interviewing and Abufayad’s detention.

2580 ABUFAYAD v. HOLDER

Upon seizing Abufayad’s computer, Immigration and Cus-

toms Enforcement (“ICE”) conducted a detailed forensic

search of its contents at headquarters. An investigation of

Abufayad’s hard drive, conducted by Rita Katz, led to her

conclusion that, “[w]hile the majority of the data stored on

this hard drive is not considered jihadist, the hard drive none-

theless also contains a significant amount of jihadist materi-

al,” including “jihadist videos, audio clips, songs, pictures,

rhetoric, training manuals, and justifications of violence.”

Katz’s report noted that the material was “consistent with the

jihadist material found on jihadist websites and shared within

the global jihadist community.” The computer also contained

hacking programs and stolen credit card numbers. Contact

information on the defunct Islamic Association for Palestine,

a designated terrorist organization, was found in Abufayad’s

luggage.

For several days thereafter, Abufayad was interviewed by,

inter alia, Agent Gregory Mandoli, a Department of Home-

land Security (“DHS”) Special Agent assigned to the ICE

National Security Unit and detailed to the Federal Bureau of

Investigation’s (“FBI”) Joint Terrorism Task Force. Abu-

fayad’s inconsistent statements did not alleviate concern.

After first saying that he did not remember having jihadist

materials on his computer, and later saying that he had them

for potential use in a future school project, Abufayad told

Agent Mandoli that he had downloaded the files out of curios-

ity about current events and often forgot that he had such files

after saving them. When Agent Mandoli asked Abufayad

about Hamas founder Sheikh Yassin, some of whose writings

were found on Abufayad’s computer, Abufayad responded

that he respected him as a religious figure but did not agree

with his politics.

Abufayad was also questioned about his background and

potential affiliations with Hamas. Abufayad said that, while

growing up in Gaza, he attended a local mosque whose main

imam was Younis al-Astal, a childhood friend of his father

ABUFAYAD v. HOLDER 2581

who later became a fundamentalist member of the Hamas

government. Until about age fifteen, Abufayad occasionally

donated small amounts to the mosque’s charity donation box,

which he characterized as going to Hamas social programs.

Abufayad also said that he had two cousins who were Hamas

members—one had conducted a suicide attack in Gaza during

the Second Intifada in 2001, and the other was living in

Yemen. Abufayad also discussed having briefly shared an

apartment with four Hamas members when he first arrived at

Bir Zeit University in the West Bank. He said he was

approached to join Hamas at least twice but that he did not

join and was not involved in Hamas activities.

The Government charged Abufayad as removable on the

basis that there were reasonable grounds to believe that he

was likely to engage after entry in terrorist activity, pursuant

to 8 U.S.C. § 1182(a)(3)(B)(i)(II), and for having engaged in

terrorist activity by affording material support to a terrorist

organization, pursuant to 8 U.S.C. § 1182(a)(3)(B)(i)(I).

A

Both the Government and Abufayad presented substantial

documentary and testimonial evidence at Abufayad’s hearing

before the IJ. Agent Mandoli testified about the computer’s

content and his interviews of Abufayad. The Government also

presented FBI Special Agent Robert Miranda as an expert

witness. Agent Miranda testified that—based on his review of

videotapes of Abufayad’s interviews with ICE, a disk of

materials found on Abufayad’s computer, and Katz’s report—

there were reasonable grounds to believe that Abufayad was

likely to engage in terrorist activity in the United States.

Given Abufayad’s “connections and his past activities as well

as . . . his interest in matters relating to Jihad,” Miranda

believed that Abufayad “would afford material support to

individuals connected to terrorist groups if given the opportu-

nity.” Agent Miranda stated that his suspicions regarding

Abufayad were cumulative, as Abufayad had “significant ele-

2582 ABUFAYAD v. HOLDER

ments [that] would have made him an exceptionally attractive

target for recruitment.” Because Hamas sought recruits among

the college-educated class, Agent Miranda thought that the

organization Hamas “would definitely seek [Abufayad’s] tal-

ents,” which included a university background in computer

science. A green card would increase Abufayad’s desirability

as a recruitment target.

Agent Miranda further testified that, based on his knowl-

edge of the organizational structure and operational security

of Hamas, he did not believe Abufayad’s claim that he had

lived with Hamas members at Bir Zeit University but had no

Hamas affiliations. After speaking with a Hamas expert in the

Israeli Security Agency, Agent Miranda had concluded that it

was unlikely that Hamas members would permit an outsider

who “doesn’t share their opinions” into their inner cell.

According to the Israeli expert, it was a “common excuse”

among captured Hamas members to say that Hamas was

merely trying to recruit them.

Abufayad testified at length about the contents of his com-

puter, his alleged connections to Hamas, and his religious and

political beliefs. He stated that, if admitted as a lawful U.S.

permanent resident, he intended to live with his family and

continue his studies. He reiterated that he had downloaded the

jihadist materials found on his computer out of interest in cur-

rent events, including several events that had occurred in the

vicinity of his hometown in Gaza, and said that he had never

looked at many downloaded items. He testified that he was

not and had never been a member of Hamas or any other

organization advocating the use of violence. He denied

receiving any training or support from any such groups or giv-

ing donations to any organization advocating violence. He

said that he had occasionally dropped a few shekels for the

needy in the mosque’s collection box, which was not nomi-

nally affiliated with Hamas or any other group. Abufayad dis-

avowed any approval of or close relationship with his cousins

who were members of Hamas.

ABUFAYAD v. HOLDER 2583

Abufayad also testified about his Hamas-affiliated room-

mates at Bir Zeit University. He stated that the Student’s

Board assigned him housing and that his assigned roommates

turned out to be pro-Hamas. Abufayad testified that he had

told Agent Mandoli that the roommates’ “political view was

with Hamas,” not that they were Hamas members. Their

Hamas-related activities were limited to university activities

such as organizing talks and lectures, and their Hamas-related

conversations were confined to politics. The roommates did

not try to recruit Abufayad into Hamas’s military wing and

were indifferent when Abufayad declined to help them in

their pro-Hamas political activities. Abufayad stayed with

them for two to three months before moving in with other stu-

dents.

B

Following the hearing, the IJ found Abufayad inadmissible

on the basis that there were reasonable grounds to believe that

Abufayad was likely to engage in terrorist activity upon his

entry to the United States.1 The IJ stated that the “reasonable

ground to believe” standard is “akin to the probable cause

standard” and is “satisfied when there is sufficient informa-

tion for a reasonable person to believe the standard is met.”

The IJ observed that the charge of inadmissibility was prem-

ised on future conduct, namely the possibility that “[Abu-

fayad] would utilize his computer expertise in support of

Hamas’ terrorist activities.” The IJ stated that Abufayad was

an attractive target for recruitment but that the statute required

more: evidence of “likelihood to engage after entry in any ter-

rorist activity. This is especially true since respondent has no

1

The IJ also found Abufayad inadmissible based on a determination that

Abufayad’s small contributions to Hamas’s charitable endeavors as a child

constituted material support to a terrorist organization, in light of the lack

of any de minimis exception. This finding is not properly before us,

because the BIA did not review it and it is not raised on appeal, so we do

not address that ground for the IJ’s decision.

2584 ABUFAYAD v. HOLDER

past history of terrorist activities and DHS concede[d] that

respondent is not a terrorist.” Unable to find legal authority

defining the term “likely to engage,” as used in the statute, the

IJ looked to the Merriam-Webster Dictionary, which defines

“likely” as “in all probability; probably,” and distinguished it

from a simple possibility.

The IJ determined that Abufayad’s possession of jihadist

materials on his computer “demonstrated his interest and

bias” in terrorism and provided some evidence of Abufayad’s

disposition. Stating that denial alone is insufficient to estab-

lish that an alien is clearly and beyond doubt not inadmissible,

the IJ held that “[m]ere possession of highly inflammatory,

pro-terrorist information along with the factors identified by

Agent Miranda would provide reasonable grounds to believe

that respondent is likely to engage in terrorist activity.” The

IJ described the case as “admittedly . . . close” but found the

evidence sufficient to support a charge of removal under the

relatively low burden imposed by the probable cause standard

of proof.

C

Abufayad then submitted an application for deferral of

removal pursuant to the CAT, arguing that DHS’s investiga-

tion into his background and his detention in relation to terror-

ism charges would subject him to torture upon his return to

the Palestinian territories. He claimed that the immigration

proceedings, which had “officially . . . labeled [him] a Hamas

supporter and an individual likely to engage in terrorism,”

caused him to fear returning to Palestine because he would

face a cumulative probability of torture by the Israeli security

forces and the Palestinian Authority (“PA”) that exceeded

fifty percent.

In support of his application, Abufayad submitted docu-

mentary evidence about the use of torture in the region to

elicit information from suspected terrorists. Abufayad also

ABUFAYAD v. HOLDER 2585

called an expert on country conditions in Israel and Palestine,

who testified that “while it is impossible to say for sure what

can happen in any individual case, between the risk to Mr.

Abu Fayad [sic] from both the Israeli government and the Pal-

estinian Authority one can assume that he does face a greater

than 51% risk of being detained by one or both authority and

interrogated using methods that contravene international law.”

In rebuttal, the Government’s expert stated that there was a

fifty-one percent likelihood that Abufayad could be safely

returned to Gaza and that the probability of encountering mis-

treatment in the West Bank, if returned there, was slim.

The IJ granted Abufayad’s request for CAT protection and

deferral of removal from Palestine. The IJ determined that

Agent Miranda’s consultation with an Israeli security official

had made Israeli authorities aware of Abufayad, that any

attempt by Abufayad to enter Gaza would lead to his deten-

tion, and that it was “ ‘more likely than not’ that respondent

would be detained by Israeli security forces and interrogated

by the use of torture or other cruel and inhumane treatment.”

The IJ also concluded that the PA would “take an active inter-

est” in Abufayad “for similar reasons that DHS sought

respondent’s removal as a potential Hamas terrorist.” The PA

would be aware of his return pursuant to U.S. deportation pro-

cedures, it was reasonable to conclude that the PA would

want to question him, and individuals in the PA’s custody

suspected of having Hamas affiliations face a high probability

of torture during interrogation. As a result, the IJ deemed it

“highly probable” that Abufayad would face “detention and

interrogation by use of torture as a suspected Hamas supporter

or terrorist.”

D

Abufayad appealed the IJ’s October 12, 2007 decision find-

ing him removable, and the Government cross-appealed the

IJ’s decision granting Abufayad deferral of removal from Pal-

2586 ABUFAYAD v. HOLDER

estine under the CAT. The BIA dismissed Abufayad’s appeal

and sustained the Government’s appeal.

Addressing the charge of removability as “likely to engage

after entry in any terrorist activity” under 8 U.S.C. § 1182(a)

(3)(B)(i)(II), the BIA noted that the IJ had properly concluded

that the “reasonable ground to believe” standard is akin to the

“probable cause” standard and stated that the IJ had reason-

ably determined that the term “likely” means “probably” and

is distinguishable in degree from a mere “possibility.”

Expressing its agreement with the IJ, it concluded that

the voluminous number of highly inflammatory, pro-

terrorist materials found in the respondent’s com-

puter and hard drive, considered along with the

respondent’s background and other factors cited by

Agent Miranda, adequately provides the DHS with a

reasonable basis upon which to believe that the

respondent would likely engage in terrorist activity

after entering the United States. The respondent’s

claim that he downloaded the numerous files on his

computer simply out of curiosity . . . does not ade-

quately prove that he is “clearly and beyond a doubt

. . . not inadmissible as charged.”

The BIA affirmed that the IJ had properly found Abufayad

inadmissible under 8 U.S.C. § 1182(a)(3)(B)(i)(II) and remov-

able to Palestine.2

As to the IJ’s decision to grant Abufayad protection under

the CAT, the BIA “agree[d] with the DHS that the [IJ]

engaged in speculation and relied on factual findings relating

to the respondent’s entitlement to protection under the CAT

that are not clearly supported by the record.” For example, the

IJ improperly found that Israeli authorities were aware of the

2

Having so determined, the BIA declined to review the IJ’s finding that

Abufayad was also removable under 8 U.S.C. § 1182(a)(3)(B)(i)(I).

ABUFAYAD v. HOLDER 2587

accusations lodged against Abufayad as a Hamas supporter

and potential terrorist because “it is not evident from Agent

Miranda’s testimony that he provided the Hamas expert or the

Israeli authorities with any information specifically identify-

ing [Abufayad].” The IJ had also failed to cite any objective

evidence that the PA would more likely than not identify

Abufayad as a Hamas supporter, detain him, and torture him

as a result. The BIA therefore sustained the Government’s

appeal and ordered Abufayad removed to Palestine.

II

Where the BIA conducts its own review of the evidence

and law rather than adopting the IJ’s decision, our “review is

limited to the BIA’s decision, except to the extent that the IJ’s

opinion is expressly adopted.” Hosseini v. Gonzales, 471 F.3d

953, 957 (9th Cir. 2006) (citation and internal quotation

marks omitted). We review questions of law de novo. See

Hamazaspyan v. Holder, 590 F.3d 744, 747 (9th Cir. 2009).

Factual findings by the BIA, including those underlying the

BIA’s decision that an applicant is not eligible for CAT pro-

tection, are reviewed for substantial evidence. See id. at 747;

Silaya v. Mukasey, 524 F.3d 1066, 1070 (9th Cir. 2008). “To

reverse the BIA finding, we must find that the evidence not

only supports that conclusion, but compels it . . . .” INS v.

Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992).

III

An applicant for admission in a removal proceeding carries

the burden to establish that he “is clearly and beyond a doubt

entitled to be admitted and is not inadmissible under section

1182 of this title.” 8 U.S.C. § 1229a(c)(2)(A). An applicant is

inadmissible under 8 U.S.C. § 1182(a)(3)(B)(i)(II) if “a con-

sular officer, the Attorney General, or the Secretary of Home-

land Security knows, or has reasonable ground to believe,

[that the applicant] is engaged in or is likely to engage after

entry in any terrorist activity,” as defined in

2588 ABUFAYAD v. HOLDER

§ 1182(a)(3)(B)(iv). The “reasonable ground to believe stan-

dard” in the removal context is similar to the “probable cause”

standard. See Malakandi v. Holder, 576 F.3d 906, 914 (9th

Cir. 2009) (holding that “ ‘reasonable’ grounds should be

evaluated against a reasonable person, probable cause stan-

dard”). Where, as here, an applicant possesses a valid visa

upon entry, constituting prima facie evidence of admissibility,

the burden shifts to the Government to submit “some evi-

dence” that he is not admissible under the charged grounds.3

Kepilino v. Gonzales, 454 F.3d 1057, 1059-60 (9th Cir. 2006).

If the Government meets its burden by introducing “reason-

able, substantial, and probative evidence” of inadmissibility,

Alarcon-Serrano v. INS, 220 F.3d 1116, 1119 (9th Cir. 2000),

the applicant bears the burden of rebuttal in proving that he

is “clearly and beyond a doubt . . . not inadmissible,”

Kepilino, 454 F.3d at 1060 (citation and internal quotation

marks omitted).

[1] Stated another way, because Abufayad possessed a

valid visa upon entry, for Abufayad to be found inadmissible

on this ground, the government had initially to provide “some

evidence” that it had “reasonable ground to believe” that Abu-

fayad was “likely” to engage in terrorist activity after entry to

the United States. This standard requires an assessment of

probabilities, and not a certainty that Abufayad would engage

in terrorist activity upon entry. Here, the government plainly

presented “some evidence” of Abufayad’s future likelihood to

engage in terrorism sufficient to meet its burden, including the

large quantity of jihadist materials found on Abufayad’s com-

puter, evidence of inconsistent statements by Abufayad when

confronted with it, and the testimony of a terrorism expert

stating that there were reasonable grounds to believe Abu-

fayad would likely engage in terrorism given Abufayad’s

background and connections with Hamas.

3

This burden-shifting does not apply where an applicant for admission

does not possess a valid visa upon entry.

ABUFAYAD v. HOLDER 2589

Abufayad argues that substantial evidence does not support

the BIA’s finding that there are reasonable grounds to believe

that he is likely to engage in terrorism. He contends that his

possession of admittedly objectionable but legal materials

downloaded from the internet and Agent Miranda’s testi-

mony, based on “speculation” and “twisted logic,” are not

sufficiently reasonable, substantial, and probative to support

the BIA’s conclusion. We disagree.

[2] Under our deferential standard of review, we cannot

conclude that any reasonable adjudicator would be compelled

to conclude that the Government did not meet its burden. See

Elias-Zacarias, 502 U.S. at 481 n.1 (1992). Abufayad con-

ceded Agent Miranda’s expertise in the field of terrorism and

did not object to his proffering his opinion on Abufayad’s

proclivity to engage in terrorist activity if given the opportu-

nity. The BIA was entitled to agree with the Agent Miranda’s

expert opinion. Informed by his extensive counter-terrorism

experience, Agent Miranda’s conclusions were based on his

review of DHS interviews of Abufayad, Katz’s report, and a

computer disk containing a portion of Abufayad’s files. Agent

Miranda explained that his opinion that Abufayad would

likely engage in terrorist activity, if given the chance, was

cumulative and based on Abufayad’s background, connec-

tions, and apparent proclivities. Agent Miranda found Abu-

fayad’s connections with his hometown significant because

the town is considered a Hamas stronghold. Abufayad would

be a “known entity” to Hamas because he had attended a

mosque whose imam was a Hamas leader. That Abufayad had

two first cousins involved in Hamas’s military operations

would indicate to Hamas that “his family is one to be trusted.”

Agent Miranda also found Abufayad’s admission that he

respected opinions of Hamas leaders to “speak[ ] volumes

about his [political] leanings.”

[3] Abufayad contends that the BIA’s reliance on Agent

Miranda’s testimony was erroneous because Agent Miranda

relied on inferences he drew from the evidence that are con-

2590 ABUFAYAD v. HOLDER

trary to the facts as Abufayad recounts them. Abufayad

stresses that the IJ made no adverse credibility determination

and suggests that, therefore, Abufayad’s portrayal of the facts

must be accepted as true. Although our established jurispru-

dence in the area of asylum law mandates that “[t]estimony

must be accepted as true in the absence of an explicit adverse

credibility finding,” Kalubi v. Ashcroft, 364 F.3d 1134, 1137

(9th Cir. 2004), there is no general requirement that the testi-

mony of an applicant seeking admission to the United States

outside of the asylum context be regarded as true. The

“deemed true” convention is justified in the asylum context in

large part because of the difficulty of proving threats by per-

secutors, see Ladha v. INS, 215 F.3d 889, 899-901 (9th Cir.

2000), overruled on other grounds by Abebe v. Mukasey, 554

F.3d 1203, 1208 (9th Cir. 2009) (en banc). We decline to

extend its application to contexts where such an adjustment to

normal evidentiary burdens is not warranted. That Agent

Miranda drew different conclusions from the record than

those that Abufayad would have us draw does not mean that

the BIA was unreasonable in crediting his opinion, nor does

it compel us to conclude that substantial evidence does not

support the BIA’s inadmissibility finding.

[4] We hold that the BIA’s determination that the Govern-

ment met its burden of introducing “some evidence” of Abu-

fayad’s inadmissibility is supported by substantial evidence.

The evidence adduced was sufficient to support a determina-

tion that Abufayad was likely to engage in terrorism by assist-

ing in the preparation and planning of terrorist activity, see 8

U.S.C. § 1182(a)(3)(B)(iv)(II); gathering information on

potential targets for terrorist activity, see 8 U.S.C.

§ 1182(a)(3)(B)(iv)(III); or committing an act he knows or

reasonably should know will afford material support to a ter-

rorist organization, see 8 U.S.C. § 1182(a)(3)(B)(iv)(VI).

Once the Government met its burden, the burden then shifted

to Abufayad to prove that he was “clearly and beyond doubt

. . . not inadmissible.” 8 U.S.C. § 1229a(c)(2)(A). A reason-

able adjudicator would not be compelled to conclude, con-

ABUFAYAD v. HOLDER 2591

trary to the BIA’s finding, that Abufayad’s various

explanations for the jihadist material on his computer and

claims about his religious and political beliefs met that bur-

den. We therefore deny Abufayad’s petition for review of the

BIA’s decision finding him removable.

IV

[5] Article 3 of the CAT, implemented domestically pursu-

ant to 8 C.F.R. § 1208.16-1208.18, prohibits states from

returning anyone to a country where he or she is likely to be

tortured. See Al-Saher v. INS, 268 F.3d 1143, 1146 (9th Cir.

2001). Applicants subject to mandatory denial of withholding

may seek CAT protection in the form of deferral of removal

under 8 C.F.R. 1208.17(a). See Hosseini, 471 F.3d at 958-59.

An applicant seeking CAT protection bears the burden of

establishing that “he is more likely than not to suffer

intentionally-inflicted cruel and inhuman treatment,” Nuru v.

Gonzales, 404 F.3d 1207, 1221 (9th Cir. 2005) (citation and

internal quotation marks omitted), “inflicted by or at the insti-

gation of or with the consent or acquiescence of a public offi-

cial or other person acting in an official capacity,” 8 C.F.R.

§ 1208.18(a)(1).

[6] Abufayad’s claim that the outcome of his immigration

proceedings have rendered him vulnerable to torture upon

return to Palestine does not present an issue of first impres-

sion. In Hosseini v. Gonzales, we concluded that petitioner

Hosseini was entitled to CAT relief because he had presented

sufficient evidence showing that Iranian officials would iden-

tify him, upon his return, as being affiliated with a terrorist

organization and that he would more likely than not be tor-

tured as a consequence. 471 F.3d at 960-961. Upon removal

to Iran, Hosseini would have been required to submit papers

from U.S. immigration proceedings adjudicating him a strong

supporter of a particular terrorist organization; and state

department reports indicated that someone so identified was

likely to be tortured. Id. Hosseini counsels that a petitioner

2592 ABUFAYAD v. HOLDER

asserting a CAT claim predicated on the outcome of immigra-

tion proceedings in the United States must show both that the

authorities in the country of removal will know of those pro-

ceedings and that the petitioner will likely face torture as a

result.

The BIA’s reasoning indicates that it did not find both of

these prongs adequately satisfied in this case. The BIA con-

cluded that objective evidence in the record did not support

the IJ’s “assumption[s]” that Israeli authorities would know

about terrorist allegations against Abufayad and that Abu-

fayad would be perceived as possibly having information

about an imminent terrorist attack, which could render him

vulnerable to physical pressure. With regard to the PA, the

BIA concluded that, even if the PA would want to question

Abufayad on his return, the IJ did not cite objective evidence

that Abufayad would more likely than not be detained, identi-

fied as a suspected Hamas supporter, and tortured by the PA.

[7] Substantial evidence in the record supports the BIA’s

determination that Abufayad is not entitled to CAT protec-

tion. Even if the Israeli authorities believe Abufayad to be a

Hamas supporter as a consequence of his immigration pro-

ceedings, the record does not compel a conclusion that he

faces any significant risk of torture by the Israeli government.

The State Department country reports for 2006 and 2007 indi-

cate that Israel uses “moderate physical pressure” against

detainees thought to possess information about imminent ter-

rorist attacks. There is no evidence in the record suggesting

that Abufayad would be thought to fit in this category, and the

record does not indicate that Hamas sympathizers face a risk

of cruel and inhuman treatment. Although the PA would be

informed of Abufayad’s removal pursuant to ICE reentry pro-

cedures for Palestine, there is no record evidence indicating

that the PA would be told of the reasons for Abufayad’s

removal, or that his being identified as a potential Hamas

sympathizer, as opposed to an active member of the organiza-

tion, would render him vulnerable to torture. As evidence that

ABUFAYAD v. HOLDER 2593

the PA tortures not only Hamas members but also its believed

sympathizers, Abufayad proffers an Amnesty International

press release from October 2007, which reported that the PA

had arbitrarily detained hundreds of Hamas supporters and

presumed sympathizers and noted the PA’s increasingly fre-

quent use of torture and other ill-treatment. However, this evi-

dence of detention and an increase in incidents of torture does

not compel the conclusion that Abufayad has met his CAT

burden, as it does not show that Abufayad would more likely

than not be tortured if removed to Palestine.

[8] On the evidence here, reasonable factfinders could dif-

fer, as the experts did in this case, over whether Abufayad

faces a more than fifty percent probability of torture upon

return. The Government expert testified that Abufayad faced

at least a fifty-one percent likelihood of safe return to Pales-

tine. In light of the record, a reasonable factfinder would not

be compelled to conclude that the BIA erred in its determina-

tion that the IJ’s award of CAT protection was based on

undue speculation. We deny Abufayad’s petition for review

of the BIA’s finding that Abufayad is not entitled to CAT pro-

tection.

DENIED.