Essam Alhaj v. Eric H. Holder, Jr.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 09a0280p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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ESSAM SALEH MOHAMED ALHAJ,

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Petitioner,

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No. 08-3322

v.

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Respondent. -

ERIC H. HOLDER, JR., Attorney General,

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On Petition for Review from a Final Order

of the Board of Immigration Appeals.

No. A95 457 870.

Submitted: March 9, 2009

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Decided and Filed: July 10, 2009

Before: DAUGHTREY, ROGERS, and KETHLEDGE, Circuit Judges.

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COUNSEL

ON BRIEF: David K. Wenger, WENGER & ASSOCIATES, PC, Detroit, Michigan, for

Petitioner. Nehal H. Kamani, James A. Hunolt, UNITED STATES DEPARTMENT OF

JUSTICE, Washington, D.C., for Respondent.

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OPINION

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MARTHA CRAIG DAUGHTREY, Circuit Judge. Essam Saleh Mohamed Alhaj

petitions this court for review of a decision of the Board of Immigration Appeals affirming

rulings by an immigration judge that mandated Alhaj’s removal from the United States to

his native Yemen. In challenging that administrative order, Alhaj contends that he is a

member of a persecuted social group, that he would be subjected to persecution and torture

*

This decision was originally issued as an “unpublished decision” filed on July 10, 2009. On

August 7, 2009, the court designated the opinion as one recommended for full-text publication.

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if returned to Yemen, and that the immigration judge erred in denying his request for

voluntary departure from this country. We conclude that we do not have jurisdiction to

review the factual aspects of Aljah’s challenge to the denial of his request for voluntary

departure and, moreover, that his remaining assignments of error are without merit. We

therefore deny the petition for review.

FACTUAL AND PROCEDURAL BACKGROUND

The petitioner is a Yemeni national who was admitted to the United States as a non-

immigrant visitor in 1997, overstayed his visa, and was placed in removal proceedings in

January 2003. He conceded removability at an initial hearing in 2005 but requested asylum,

withholding of removal, and protection under the United Nations Convention Against

Torture. Because his application for asylum was filed more than a year after entry in 1997,

he was forced to concede that he was statutorily ineligible for asylum. Alhaj nevertheless

renewed his application for withholding of removal and relief under the Convention Against

Torture.

In support of his application, Alhaj testified at a 2006 hearing in the immigration

court that he was born in Yemen in 1974 and lived in that country for the first 23 years of

his life. By 1995, Alhaj and a partner owned a retail shop in the capital city of Sana’a and

sold clothing, perfume, and other cosmetic items. He recalled that in January or February

1995, a young woman entered his shop with an older man and an older woman. Thinking

that the young woman “looked so nice and . . . looked like she was under persecution,” Alhaj

supposedly slipped a bottle of perfume and a note containing his telephone number into the

bag holding the woman’s purchases. Two days later, Alhaj said, the woman telephoned him

to thank him for the gift. During the course of the ensuing conversation, the woman, Ekhlas

Ahmed Ali, revealed that the older man with whom she had entered the petitioner’s store was

actually her husband and that she had been forced to marry him because the man’s first wife,

the older woman who was also with them at the shop, was unable to bear children. Alhaj

said that over the next few months, he and Ekhlas continued to talk and, by April or May,

had established a secret relationship. However, four months after they began seeing each

other, he testified, two men sent by Ekhlas’s husband lured him outside his shop, where they

No. 08-3322 Alhaj v. Holder Page 3

struck him repeatedly with the butt of a gun, fired a number of shots between his legs, and

delivered an oral message that Alhaj should no longer associate with another man’s wife.

The petitioner further testified that, approximately two weeks later, Ekhlas

telephoned the petitioner and explained that she needed to meet with him immediately. At

the rendezvous, she informed him that she was pregnant with the petitioner’s child. After

receiving that news, and in light of the prior altercation with Ekhlas’s husband’s

“representatives,” Alhaj said that he tried to avoid going to his shop and seeing or

telephoning Ekhlas as often as he had previously. Eventually, the petitioner testified, he sold

his interest in the shop and, in July 1997, traveled to Germany to attempt to start a new life

away from the man whose associates had threatened him. According to Alhaj, his efforts to

relocate failed because of difficulty in mastering a new language, and he eventually returned

to Yemen.

Once there, Alhaj supposedly asked Ekhlas to accompany him to England, where he

hoped to start a new career and also have a better grasp of the language. She suggested

instead that the couple attempt to move to the United States, where she already had family

connections. As a result, Alhaj testified, he entered the United States on December 27, 1997,

as a “nonimmigrant visitor for pleasure” – and subsequently overstayed his six-month

departure date. In 1999, Ekhlas also traveled to the United States under the pretense of

visiting her brother in this country. Once reunited here, Ekhlas and Alhaj telephoned

Ekhlas’s husband in Yemen, informed him that Ekhlas’s child was conceived with the

petitioner, not the husband, and convinced the husband to divorce Ekhlas. Alhaj and Ekhlas

were then married in 2000 and had three additional children together. Meanwhile, Ekhlas’s

first husband declared her an outcast and, according to the petitioner, would kill both Ekhlas

and Alhaj should the couple return to Yemen. As proof of the ex-husband’s intentions,

Ekhlas’s brother testified that Ekhlas’s ex-husband orchestrated the detention of Ekhlas’s

father in Yemen for two or three days before local government officials insisted upon his

release.

At the conclusion of the evidentiary hearing, the immigration judge determined that

Alhaj had failed to identify a distinct, persecuted social group to which he belonged.

Consequently, the immigration judge denied the petitioner’s claim for withholding of

No. 08-3322 Alhaj v. Holder Page 4

removal. Further concluding that Alhaj failed to establish through hearing testimony that

it was more likely than not that he would be tortured should he return to Yemen, the

immigration judge also denied the request for relief under the Convention Against Torture.

Finally, because Alhaj was unable to produce documentation that he had been approved for

admission into another country other than Yemen, and because he refused to return to his

homeland of his own accord, the immigration judge denied the petitioner the right to depart

this country voluntarily. The Board affirmed the immigration judge’s rulings in a separate

written opinion, and Alhaj filed this petition for review.

DISCUSSION

I. Voluntary Departure

Alhaj contends that the immigration judge and Board erred in ruling that he was not

entitled to depart voluntarily from the United States. Ordinarily, this court is without

jurisdiction to review denials of voluntary departure decisions. See 8 U.S.C. §§ 1229c(f),

1252(a)(2)(B)(i). We may, however, exercise our jurisdiction over such claims that raise

constitutional or legal questions. See 8 U.S.C. § 1252(a)(2)(D); Patel v. Gonzales, 470 F.3d

216, 219 (6th Cir. 2006). In this appeal, the petitioner submits that the immigration judge

committed legal error by improperly requiring him to produce both a valid passport (which

he did) and documentation sufficient to assure lawful entry into another country (which he

did not), in order to be eligible for the discretionary relief sought.

Pursuant to the provisions of 8 U.S.C. § 1229c(b)(1), the Attorney General may

allow an alien to depart from the United States at the alien’s own expense after the

conclusion of removal proceedings if certain findings can be made. Specifically, the

Attorney General or his designate must find that:

(1) the alien was present in the United States for at least one year prior to the

filing of a Notice to Appear;

(2) the alien has demonstrated good moral character for at least five years

prior to applying for voluntary departure;

(3) the alien is not removable as an aggravated felon or as a spy, terrorist, or

Nazi; and

No. 08-3322 Alhaj v. Holder Page 5

(4) the alien has established “by clear and convincing evidence” that the

alien has both the means and the intention to depart the United States.

The necessary “clear and convincing evidence of the means to depart” requires “presentation

by the alien of a passport or other travel documentation sufficient to assure lawful entry into

the country to which the alien is departing.” 8 C.F.R. § 1240.26(c)(2) (2008) (emphasis

added).

The petitioner contends that regulation’s use of the disjunctive “or” suggests that the

immigration judge committed a mistake of law in demanding that he produce both a passport

and a visa before becoming eligible for a grant of voluntary departure. This argument rests

on a misreading of the regulation, however. What is required under section 1240.26(c)(2)

is authorization to enter the country to which an alien is voluntarily departing. Were the

petitioner in this case returning to Yemen, the country of removal designated by the

immigration judge, his passport alone would be sufficient to support a grant of voluntary

departure. But, because Alhaj refused to accept removal to Yemen, he was required to

designate an alternate destination and present documentation permitting entry into that

country. Hence, his presentation of the passport alone was insufficient to assure the

immigration judge that the petitioner would be allowed permanent entry into another

country, and the immigration judge did not commit a “constitutional or legal error” in

denying the request for voluntary departure. We therefore uphold the immigration judge’s

decision in this regard.

II. Withholding of Removal

The petitioner also contests the decision of the immigration judge, upheld by the

Board, that he was not entitled to withholding of removal. When, as in this case, the Board

issues its own separate opinion after reviewing the decision of an immigration judge, the

appellate court treats that Board ruling as the final agency determination. See Morgan v.

Keisler, 507 F.3d 1053, 1057 (6th Cir. 2007). We then review all legal determinations made

in such a Board ruling de novo and grant substantial deference to the Board’s interpretation

of the Immigration and Nationality Act and the Act’s accompanying regulations. See id.

Moreover, the factual components of such an administrative ruling must be sustained if the

determination is “supported by reasonable, substantial, and probative evidence on the record

considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). “Under this

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deferential standard, we may not reverse the Board’s determination simply because we

would have decided the matter differently.” Koliada v. INS, 259 F.3d 482, 486 (6th Cir.

2001) (per curiam) (citing Mikhailevitch v. INS, 146 F.3d 384, 388 (6th Cir. 1998)). Rather,

to overturn such a factual determination, “we must find that the evidence not only supports

[a contrary] conclusion, but compels it.” Elias-Zacarias, 502 U.S. at 481 n.1.

Pursuant to the provisions of 8 U.S.C. § 1231(b)(3)(A), “the Attorney General may

not remove an alien to a country if the Attorney General decides that the alien’s life or

freedom would be threatened in that country because of the alien’s race, religion, nationality,

membership in a particular social group, or political opinion.” Thus, in order to qualify for

withholding of removal, the petitioner “must establish that there is a clear probability that

he will be subject to persecution if forced to return to the country of removal.” Pilica v.

Ashcroft, 388 F.3d 941, 951 (6th Cir. 2004). To make such a showing, a petitioner “must

demonstrate that ‘it is more likely than not’ that he or she will be persecuted upon return.”

Liti v. Gonzales, 411 F.3d 631, 641 (6th Cir. 2005) (quoting 8 C.F.R. § 1208.16(b)(2)).

Clearly, Alhaj cannot claim that he, a Muslim and native Yemeni, would “more

likely than not” be persecuted upon a return to Yemen because of his race, religion, or

nationality. Moreover, he identifies no political opinion or position that would subject him

to different treatment. As a result, he maintains only that the expected persecution he would

suffer in his homeland would result from his membership in a particular social group. In

support of that argument, Alhaj suggests that his wife is a member of such a group – the

group of young women forced to marry older men – and that his association with his wife

results in his membership in the group as well. Without regard to whether such a grouping

would even meet the criteria of “a particular social group” entitled to protection under the

Immigration and Nationality Act, see, e.g., Castellano-Chacon v. INS, 341 F.3d 533, 546

(6th Cir. 2003) (defining “the term ‘particular social group’ as composed of individuals who

share a ‘common, immutable characteristic’”), or whether Alhaj’s attempted formulation of

a transitive property of persecution is valid, the fundamental basis of the petitioner’s

argument in this regard is so flawed that it dooms his prospects for success on the issue.

As noted by the government, any persecution suffered by or threatened toward Alhaj

is not the result of either Ekhlas’s first marriage or of the petitioner’s opposition to the

No. 08-3322 Alhaj v. Holder Page 7

practice of older Yemeni men forcing younger women to marry them. Instead, the purported

violence displayed toward Alhaj by Ekhlas’s ex-husband is solely in the nature of a personal

vendetta against the petitioner for carrying on an affair and conceiving a child with his then-

wife. Because Alhaj thus cannot establish that any past or future mistreatment resulted or

will result from his “race, religion, nationality, membership in a particular social group, or

political opinion,” the restrictions on the removal of an alien who overstays his visitation

period in this country do not come into play and the Board did not err in denying

withholding of removal.

III. Relief Under the United Nations Convention Against Torture

The petitioner additionally requested relief under the provisions of the United

Nations Convention Against Torture. To obtain withholding of removal under that

convention, “[t]he burden of proof is on the applicant . . . to establish that it is more likely

than not that he or she would be tortured if removed to the proposed country of removal.”

8 C.F.R. § 208.16(c)(2). “Torture,” in any of its myriad manifestations, must entail the

intentional infliction of severe mental or physical pain upon an individual “by or at the

instigation of or with the consent or acquiescence of a public official or other person acting

in an official capacity.” 8 C.F.R. § 208.18(a)(1).

The potential harm that might be visited upon Alhaj upon his return to Yemen does

not constitute “torture” under the Convention because it does not originate from pain or

suffering either initiated by a public official or inflicted with the consent or acquiescence of

such an official. Furthermore, even though Alhaj asserts that his wife’s ex-husband is a

powerful man within Yemen, it is also true that when that ex-husband allegedly arranged for

the detention of Ekhlas’s father, government officials intervened and released Alhaj’s father-

in-law unharmed after two or three days of incarceration. Any such treatment by a non-

governmental entity, rectified by official government actors, does not constitute torture under

the Convention Against Torture and, thus, does not entitle the petitioner to the relief he now

seeks.

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CONCLUSION

The Board’s denial of the petitioner’s request for voluntary departure involved no

error. We lack jurisdiction to review the factual aspects of the Board’s decision, i.e., the

factual findings that Alhaj did not produce the necessary documentation for entry into

another country and that Alhaj also did not designate another country as a final destination.

Furthermore, Alhaj has failed to establish his membership in a particular social group

targeted for persecution within Yemen. In fact, the record before this court establishes

nothing more than a situation in which an extra-marital affair has predictably angered at least

one of the principals involved. Because such a personal vendetta does not constitute

persecution under the Immigration and Nationality Act, Alhaj’s claim for withholding of

removal is without merit.

Finally, the record establishes that neither the Yemeni government nor any person

acting in an official governmental capacity has tortured, threatened, or acquiesced in such

torture or threats of torture against the petitioner, his family, or his in-laws. He has,

therefore, failed to establish entitlement to relief under the United Nations Convention

Against Torture.

For these reasons, we DENY Alhaj’s petition for review.