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Interim Decision #3495

In re R-S-H- et al., Respondents

Decided as amended August 4, 20031

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) Under 8 C.F.R. § 1003.46(i) (formerly 8 C.F.R. § 3.46(i)), the mandatory consequence

for violating a protective order is that the respondent becomes ineligible for any form of

discretionary relief, except for bond.

(2) The mandatory consequence for breaching a protective order will be applied unless a

respondent fully cooperates with the Government in any investigation relating to the

noncompliance and, additionally, establishes by clear and convincing evidence either that

extraordinary and extremely unusual circumstances exist or that failure to comply with the

protective order was beyond the control of the respondent and his or her attorney or

accredited representative.

(3) The presence of federal employees, including court personnel or Department of Justice

attorneys, at a closed hearing where a protective order is discussed does not violate the

protective order regulations.

(4) The respondent is ineligible for any form of discretionary relief, except for bond,

because a protective order issued by the Immigration Judge was violated by disclosure of

protected information to unauthorized persons.

FOR RESPONDENTS: Ashraf W. Nubani, Esquire, Springfield, Virginia

FOR THE DEPARTMENT OF HOMELAND SECURITY:2 Marsha Kay Nettles, District

Counsel

BEFORE: Board Panel: HOLMES, Acting Vice Chairman; HURWITZ and OSUNA, Board

Members.

HOLMES, Acting Vice Chairman:

In a decision dated November 22, 2002, an Immigration Judge found the

respondents removable and ineligible for asylum, withholding of removal, and

voluntary departure, and ordered them removed from the United States. The

1

On our own motion, we amend the May 19, 2003, order in this case. The amended order

makes editorial changes consistent with our designation of the case as a precedent.

2

The functions of the Immigration and Naturalization Service have been transferred to the

Department of Homeland Security pursuant to the Homeland Security Act of 2002, Pub. L.

No. 107-296, 116 Stat. 2135. The transfer occurred on March 1, 2003. See Matter of D-J-,

23 I&N Dec. 572, 573 n.1 (A.G. 2003).

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respondents have appealed from that decision. The Department of Homeland

Security (“DHS”), formerly the Immigration and Naturalization Service, has

filed a brief in opposition to the appeal. The appeal will be dismissed.

I. FACTUAL AND PROCEDURAL BACKGROUND

The respondents are a married couple and three of their children. 3 The

adult male, who is the lead respondent, is a native and citizen of Lebanon, as

is one of the minor respondents. The adult female respondent and one of the

children are natives and citizens of Kuwait. The third minor respondent is a

native of Kuwait and a citizen of Lebanon. The family was admitted to the

United States on September 2, 1998, as nonimmigrant visitors with

authorization to remain until August 31, 1999.

The lead respondent was served with a Notice to Appear (Form I-862) on

December 14, 2001. The other respondents were served on January 18,

2002. The respondents’ proceedings were consolidated before the

Immigration Judge, and they conceded removability. The lead respondent

filed an Application for Asylum and Withholding of Removal (Form I-589). 4

The respondents also requested voluntary departure.

During the course of proceedings, the DHS requested that one of its central

documents, the declaration of Special Agent Brent E. Potter of the Federal

Bureau of Investigation (“the Potter Declaration”), be subject to a protective

order pursuant to 8 C.F.R. § 3.46.5 See Protective Orders in Immigration

Proceedings, 67 Fed. Reg. 36,799, 36,802 (May 28, 2002). The order was

granted by the Immigration Judge on August 27, 2002. The Immigration

Judge issued an amended order on October 1, 2002.6 The Immigration Judge

subsequently found that respondent’s counsel violated the protective order by

giving the Potter Declaration to unauthorized persons and ordered him to

provide more information on the violation. 7

3

The adult respondents also have a United States citizen child who was born in 1993.

The other family members are listed as dependents. Hereinafter, any mention of the

respondent in the singular refers to the lead respondent.

5

As a result of the transfer of the functions of the Immigration and Naturalization Service to

the Department of Homeland Security, the regulations in chapter I of the Code of Federal

Regulations were transferred or duplicated to a new chapter V, and this regulation is now

codified at 8 C.F.R. § 1003.46. See Aliens and Nationality; Homeland Security;

Reorganization of Regulations, 68 Fed. Reg. 9824, 9831 (Feb. 28, 2003), 2003 WL 553495.

References in this decision to the current version of the regulations will therefore be cited

according to their new designation.

6

Public and protected versions of the Potter Declaration are included in the record.

7

The Immigration Judge’s November 22, 2002, decision sets out the procedural history of

this case, including the lead respondent’s custody proceedings and related federal litigation.

We adopt that portion of his decision and incorporate it into the instant decision. We note that

4

(continued...)

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II. TESTIMONY AND OTHER EVIDENCE

The respondent initially testified that he had an alternative name to add to

his asylum application. The name was acquired after his conversion to Islam,

and he did not initially list it because it was not an alias but was based on the

projected name of his first son. The respondent did eventually have a child

of this name who passed away. The respondent was born a Christian and

started practicing Islam in 1979. He began to intensely study and practice his

religion in 1986, and it “fully transformed” his life. The respondent

eventually learned enough to be referred to as an “Imam.”

The respondent recalled working in an ambulance and fire rescue unit in

Lebanon during the civil war in the 1970s. He denied ever receiving military

or paramilitary training, or ever being involved in terrorist activities. The

respondent was a cofounder, treasurer, and board member of the Global

Relief Foundation (“GRF”). The respondent stated that it was strictly an

Islamic humanitarian organization. The GRF office was located in

Bridgeport, Illinois.

The respondent explained the five pillars of Islam. For example, he stated

that the term “jihad” covered internal, personal struggles but could have a

military connotation. The concept of “zakat” is a percentage of income to be

distributed to the poor. Under Islam, a visitor to a foreign country would be

obliged to abide by the rules of that country upon recognition that a

“contract” regarding the admission exists. The respondent condemned the

horrific acts of September 11, 2001, and did not find them to be in any way

justified under Islam. The respondent also disagreed with the concept of

“fatwah” as issued by Osama bin Laden against Americans.

The respondent explained that the GRF often operated with foreign

nongovernmental organizations and accepted money from a variety of donors.

He denied that the GRF supported terrorism or had ever provided material

support to Al Qaeda or the Taliban. The GRF did support charitable

operations in Afghanistan before and after September 11, 2001, and the

organization consulted with the United States Embassy in that country before

undertaking activities after that date. The GRF also engaged in relief

activities in other countries with Moslem populations, such as Pakistan.

The GRF had a “sister” organization in Belgium, and the respondent was

listed on its articles of incorporation. The respondent was aware of the

Belgian office’s activities although he had not actually visited it. The

respondent denied personally knowing Wadih el Hage, who had been

7

(...continued)

bond and removal are distinctly separate proceedings. See 8 C.F.R. § 1003.19(d) (formerly

8 C.F.R. § 3.19(d)). Accordingly, although the respondent has raised custody-related issues

on appeal, we do not address them further in this decision.

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Interim Decision #3495

convicted of the United States Embassy bombings in Kenya and Tanzania.

He explained that it would not be unusual for the Belgian branch to receive

money from various organizations, such as the Holy Land Foundation, which

has been named a Specially Designated Global Terrorist (“SDGT”)

organization by the United States Department of State. The respondent

denied knowledge of any of the photographs that were found in a dumpster

behind the GRF office in 1997 and were listed as suspicious in the Potter

Declaration.

The respondent frequently wrote and edited articles for the GRF newsletter

and spoke in public and at mosques. He did not urge support for armed

struggle and was unaware of any GRF funds being used for this purpose. He

would cancel a GRF project if he became aware of the misuse of funds. The

respondent participated in several community activities after September 11,

2001, including those that involved other local religious leaders.

The respondent feared returning to Lebanon for several reasons. One

stemmed from the publicity generated in the United States as a result of

allegations that he had terrorist ties, including ties to Osama bin Laden and

the Al Qaeda terrorist organization. The respondent believed that he would

be targeted by the Lebanese Government, which was strongly influenced by

Syria. He asserted that both countries had an interest in appeasing the United

States. The respondent also feared retaliation from Al Qaeda operatives in

Lebanon, or related entities, because of his condemnation of the events of

September 11, 2001. Additionally, he feared persecution from Christian

groups as a result of his conversion. He did not believe that the Lebanese

Government would or could protect him.

The DHS conducted a lengthy cross-examination. The respondent

reasserted that he was unaware of any militaristic or terrorist activities

supported by the GRF. He had access to donor information, and his contact

with the Belgian office was “very scarce.” He was aware that a $200,000

donation had been made to that office, but he did not know that it was from

Wadih al Hage. The respondent was shown a newsletter, which was allegedly

issued by the GRF, calling for zakat to provide food and ammunition for

armed struggle. The respondent acknowledged that the document looked like

it was issued by the GRF, but he did not recall the particular publication.

It was revealed during cross-examination that the respondent had lived in

Lebanon from June 1997 to September 1998. He stated that he had no

problems during that period related to his religion. His mother still lives there

and runs a store. The respondent’s father recently passed away.

The respondent reviewed his travel history. He married his spouse in the

United States in 1987 and lived in Pakistan pursuant to a work permit from

1988 to 1992. He subsequently went to Kuwait for approximately 1 year and

then returned to the United States. He had a visitor’s visa and remained here

until 1996 with visits to Lebanon, Kuwait, and Pakistan. The respondent was

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Interim Decision #3495

in Kuwait from 1996 to 1997, and in Lebanon until 1998. He returned to the

United States in September of that year with a nonimmigrant visa and has

remained here since that time.

The respondent visited Afghanistan to check on relief activities in 1989

and 1994. The respondent’s father-in-law was formerly a high-ranking

diplomat in Kuwait. The respondent explained that Kuwait has very strict

residency laws, and that he would not necessarily receive residency there just

because he was married to a Kuwaiti citizen.

The respondent’s brother testified on his behalf. 8 He stated that he was a

dual citizen of Canada and Lebanon. He was Christian but supported his

brother’s conversion to Islam. The witness frequently returned to Lebanon

and was last there in the summer of 2002. At that time, the respondent’s

situation was being publicly discussed, and the witness saw articles in the

Lebanese media that labeled the respondent a terrorist. The witness did not

bring these articles with him because they were not in English.

During his last visit to Lebanon, the witness contacted the Minister of

Economy to seek assistance in resolving the respondent’s detention in the

United States, but the politician did not want to talk about the respondent.

His mother sought similar assistance from the Deputy Prime Minister, who

also did not want to get involved in the matter, because the respondent had

been associated with terrorism. The witness recalled that a family member

disappeared in the 1980s. He testified that the current Lebanese Government

treats political dissidents very harshly, and he thought that the respondent

would be compromising his safety if he returned to Lebanon. However, he

declined to offer any specific picture of what might actually happen.

On cross-examination, the witness agreed that no one in the Lebanese

Government had contacted his family about the respondent’s “case.” He was

then asked why his written statement declared that his family members had

been questioned about cell phone calls made to, or received from, the

respondent in the United States. The witness explained that the written

statement referred to inquiries made by the Government before September 11,

2001. However, no one had approached the family after that date.

The DHS argued that the respondent is not eligible for asylum for several

reasons, including the bar that applies to an alien who is a danger to national

security. The DHS submitted the Potter Declaration and other documentation

as proof on this issue. Regarding the contents of the Potter Declaration that

are subject to the protective order, we adopt the Immigration Judge’s

discussion of this document as set out in the appendix to his final decision.

The record also contains evidence that on December 14, 2001, the

Department of the Treasury, Office of Foreign Assets Control (“OFAC”),

8

On appeal, the respondent states that his wife, two brothers, and friends presented testimony

on his behalf. However, only the one brother testified at the removal hearing.

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issued an order blocking the assets of the GRF. Further, on October 18,

2002, the OFAC named the GRF as an SDGT organization. 9 This designation

was made pursuant to an Executive Order that is titled “Blocking Property

and Prohibiting Transactions With Persons Who Commit, Threaten To

Commit, or Support Terrorism.” Exec. Order No. 13,224, 66 Fed. Reg.

49,079 (Sept. 23, 2001), 2001 WL 1126562. The DHS also provided other

documents to support its position, including Department of State information

on Lebanon and Kuwait. The State Department’s 2001 Country Report on

Lebanon states that there were no reports of politically motivated

disappearances that year. Bureau of Democracy, Human Rights, and Labor,

U.S. Dep’t of State, Lebanon Country Reports on Human

Rights Practices - 2001 (Mar. 2002), available at

http://www.state.gov/g/drl/rls/hrrpt/2001/nea/8270pf.htm.

The respondent’s evidence includes affidavits from his brothers and other

persons who verify his identity. He provided articles on Lebanon and Syria,

and information from Human Rights Watch and Amnesty International. The

respondent also submitted newspaper articles discussing his situation and the

investigation of the GRF. E.g., A Nation Challenged; Marshals Transfer

Detainee to Chicago, N.Y. Times, Jan. 15, 2002, at A12.

During the final hearing on October 23, 2002, proceedings were briefly

closed and held off the record at the respondent’s request to discuss the

protected evidence. The Immigration Judge subsequently explained that

closing the hearing was unnecessary, as the respondent was only seeking more

time to comply with directives related to his violation of the protective order.

The record was left open for additional evidence on this issue.

III. DECISION OF THE IMMIGRATION JUDGE

In his written decision on November 22, 2002, the Immigration Judge first

found that the respondent did not file his application for asylum within 1 year

of his admission, as required, but he determined that this late filing was

excused under the “changed circumstances” exception. See section

208(a)(2)(D) of the Immigration and Nationality Act, 8 U.S.C.

§ 1158(a)(2)(D) (2000); 8 C.F.R. § 1208.4(a)(4) (formerly 8 C.F.R.

§ 208.4(a)(4)). These changes related to the investigation of the GRF and the

respondent. The Immigration Judge next rejected the DHS’s argument that the

respondent was barred from asylum because he had “firmly resettled” in

either Pakistan or Kuwait. See section 208(b)(2)(A)(vi) of the Act.

Specifically, the Immigration Judge determined that there was no resettlement

because the respondent had not been fleeing persecution when he was in those

countries. Alternatively, he concluded that the bar did not apply because the

9

The GRF’s responses to this designation are also in the record.

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respondent had not been offered residency or any form of permanent

resettlement in either country.

The Immigration Judge found that the respondent was barred from asylum

and withholding of removal because he was a danger to the security of the

United States. He referred to the protected information in the Potter

Declaration, which he concluded was reliable and indicated that the

respondent was a security risk. The Immigration Judge emphasized that the

respondent did not rebut the specific accusations in the document.

The Immigration Judge also noted that a “plethora” of public information

linked the respondent to terrorist activities. First, he referred to the

respondent’s “direct and nascent” ties to the GRF, which had been classified

as an SDGT organization. Second, the public portions of the Potter

Declaration linked the GRF and its Belgian counterpart to Wadih el Hage,

who was convicted of the United States Embassy bombings in Kenya and

Tanzania and had ties to Osama bin Laden. Third, the GRF’s own literature

undermined the respondent’s claim that it was strictly a humanitarian

organization. For example, the record contained the GRF zakat worksheet,

which mentioned disbursement of funds to equip “raiders” with ammunition

and food. Finally, the public portions of the Potter Declaration listed

suspicious photographs, including those of sophisticated communication

equipment, found in a dumpster behind the GRF office in 1997. This

equipment was similar to that used in terrorist operations. Another

photograph was of two deceased men with the caption “Hizbul Mujahideen.”

This group was referred to as a known terrorist organization.

The Immigration Judge found that the respondent’s testimony that he was

unaware of any GRF terrorist-linked activities was not credible. In this

regard, the Immigration Judge considered the respondent’s high-level

positions and long affiliation with the organization, as well as his

acknowledgment that projects originating in Belgium were approved at the

Bridgeport office.

The Immigration Judge alternatively held that the protective order breach

by the respondent’s counsel precluded the respondent from discretionary

relief under 8 C.F.R. § 3.46(i). He explained that sometime between the

initial protective order and its amendment, the respondent’s counsel had given

a complete copy of the Potter Declaration to two individuals without

requesting permission from the Immigration Judge. He ruled that although the

respondent and his counsel arguably cooperated with the court’s investigation

of the matter, the respondent did not meet the burden imposed by the

regulation of establishing that either extraordinary and extremely unusual

circumstances existed or that the breach was due to circumstances beyond the

control of the respondent or his counsel.

Setting aside the issues of statutory ineligibility, the Immigration Judge

found that the respondent did not otherwise meet his burden of proof for

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asylum and withholding of removal. The Immigration Judge initially

determined that the respondent’s brother was not credible, and he emphasized

the discrepancies between the witness’s oral and written testimony. He also

deemed the witness’s testimony to be “patently evasive” and was bothered

that the witness did not produce the articles about the respondent that he

claimed he saw in Lebanon. The Immigration Judge alternatively concluded

that if the testimony of record was accepted as true, the respondent still did

not meet his burden of proof for asylum or withholding of removal.

In this regard, the Immigration Judge found no evidence that the respondent

would be persecuted as a converted Moslem, or that any Al Qaeda operatives

would target him in Lebanon. He noted that the respondent failed to provide

evidence to show that he had publicly denounced the events of September 11,

2001, and that if he did, he was only expressing “the majority view of the

civilized world.” The Immigration Judge also concluded that the respondent

did not establish that the Lebanese Government would persecute him based

on any events in the United States, including an investigation of him by the

United States Government. Additionally, he noted that the respondent

indicated during closing that he would not be pursuing relief under the

Convention Against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment, adopted and opened for signature Dec. 10, 1984,

G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc.

A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States

Apr. 18, 1988) (“Convention Against Torture”).

The Immigration Judge held that the lead respondent was ineligible for

voluntary departure because of the breach of the protective order.

Additionally, he determined that the female and minor respondents did not

submit any evidence to show good moral character. According to the

Immigration Judge, the lead respondent was not a convincing witness on his

claims of good moral character because he had misrepresented the length of

his residence in the United States on a firearm application filed in Michigan

and was not credible when he denied knowledge of GRF activities. Finally,

the Immigration Judge found the respondents ineligible for voluntary

departure because they did not establish the means and intent to depart the

United States and none of them had current passports. The Immigration Judge

therefore ordered that the respondents be removed from the United States.

IV. ARGUMENTS ON APPEAL

The respondent argues that the evidence of record does not support the

Immigration Judge’s finding that he is a danger to national security. Rather,

he claims that the Immigration Judge’s decision was unduly influenced by the

Government’s accusations that the respondent had terrorist links and by the

presence of Department of Justice (“DOJ”) attorneys at the hearing. He

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asserts that the attorneys’ presence at the closed portion of the hearing

violated the protective order. The respondent also claims that the Potter

Declaration was prejudicial to his case, and that even if the statements within

it were accepted as true, it would not prove him a terrorist.

The respondent challenges the finding that he should be denied

discretionary relief because of his counsel’s violation of the protective order.

He additionally argues that the Immigration Judge’s credibility findings

should be overturned as “clearly erroneous” and that he should be granted

asylum on the merits or on a humanitarian basis. The respondent challenges

the Immigration Judge’s reliance on country reports by the Department of

State. Finally, he claims that all the respondents should have been granted

voluntary departure, and that the Immigration Judge failed to give the family

proper notice of their voluntary departure options.

The DHS contends that the decision of the Immigration Judge should be

affirmed because the record supports his conclusions of law and findings of

fact. In this regard, the DHS emphasizes that factual determinations can only

be overturned if clearly erroneous. According to the DHS, the respondents

received a full and fair hearing and did not raise any timely objections to the

presence of the DOJ attorneys at the hearing. The DHS maintains that it was

appropriate for these Government employees to attend the hearing, and that

their presence in any closed proceeding did not violate the protective order.

V. STANDARD OF REVIEW

We review findings of facts by the Immigration Judge, including those

pertaining to the credibility of testimony, to determine whether the findings

are “clearly erroneous.” 8 C.F.R. § 1003.1(d)(3)(i) (formerly 8 C.F.R.

§ 3.1(d)(3)(i)). 10 It has been held that “[a] finding is ‘clearly erroneous’ when

although there is evidence to support it, the reviewing court on the entire

evidence is left with the definite and firm conviction that a mistake has been

committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395

(1948). “A factfinding may not be overturned simply because the Board

would have weighed the evidence differently or decided the facts differently

had it been the factfinder.” Board of Immigration Appeals: Procedural

Reforms To Improve Case Management, 67 Fed. Reg. 54,878, 54,889

(Aug. 26, 2002) (Supplementary Information) (citing Anderson v. City of

Bessemer, 470 U.S. 564, 573 (1985)). The Board may review all questions

of law, discretion, and judgment and all other issues in appeals from decisions

of Immigration Judges “de novo.” 8 C.F.R. § 1003.1(d)(3)(iii).

10

This regulation applies to a Notice of Appeal filed on or after September 25, 2002.

8 C.F.R. § 1003.3(f) (formerly 3.3(f)); see also Matter of S-H-, 23 I&N Dec. 462 (BIA 2002).

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VI. ANALYSIS

A. Fair Hearing Issues

On appeal, the respondent argues that he did not receive a fair hearing. 11

He claims that the Immigration Judge was biased and prejudged his case

because the Government linked him to terrorism and because DOJ attorneys

were present at his hearing. We have reviewed the record in its entirety and

find no meaningful support for this claim. See Matter of Exame, 18 I&N

Dec. 303, 306 (BIA 1982). As is explained below, the Immigration Judge’s

decision is supported by the evidence of record, including his finding that the

respondent was barred from relief as a “danger to national security.” There

is no indication that the Immigration Judge prejudged the case or that his

decision was motivated by issues outside the evidence of record.

Further, we see nothing inherently unfair about the presence of DOJ

attorneys at any part of the hearing. The hearing was open to the public by

the respondent’s choice. Moreover, the record does not reflect that the

respondent raised any objections to the attorneys’ presence at the hearing.

Therefore, the respondent waived his opportunity to pursue this issue on

appeal. See generally Matter of Garcia-Reyes, 19 I&N Dec. 830, 832 (BIA

1988) (explaining that objections should be made on the record to preserve

them for appeal).

B. Protective Order Issues

As previously mentioned, the DHS submitted evidence that was subject to

a protective order under 8 C.F.R. § 1003.46. On appeal, the respondent has

not challenged the validity of the protective order. The regulation at issue

states the following:

If the [DHS] establishes that a respondent, or the respondent’s attorney or accredited

representative, has disclosed information subject to a protective order, the Immigration

Judge shall deny all forms of discretionary relief, except bond, unless the respondent

fully cooperates with the [DHS] or other law enforcement agencies in any investigation

relating to the noncompliance with the protective order and disclosure of the

information; and establishes by clear and convincing evidence either that extraordinary

and extremely unusual circumstances exist or that failure to comply with the protective

order was beyond the control of the respondent and his or her attorney or accredited

representative.

8 C.F.R. § 1003.46(i) (emphasis added).

The respondent asserts that the Immigration Judge had no basis to find that

counsel in this case violated the protective order. However, the violation had

been conceded during the proceedings.

11

The respondents conceded their removability at the hearing so that is not at issue.

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The Immigration Judge found that while the respondent and his attorney

arguably cooperated with his investigation of the violation, the respondent did

not present evidence to show that either extraordinary and extremely unusual

circumstances existed, or that the violation was due to circumstances beyond

his or his counsel’s control. The respondent does not specifically argue on

appeal that either of these exceptions was established at the hearing. Rather,

the respondent’s argument is that his cooperation with the investigation should

have been enough to excuse the violation and that the lack of actual harm

from the disclosure should be determinative.

The language of the regulation makes it clear, however, that cooperation

with the investigation alone is not enough to excuse a breach. Otherwise, the

regulation would not also require that certain circumstances exist before a

violation is excused. Further, the exceptions are narrow in scope and do not

involve a determination whether the Government was prejudiced by the

disclosure. We follow the clear directives of the regulation and will not read

it otherwise. See Matter of Anselmo, 20 I&N Dec. 25, 30 (BIA 1989)

(explaining that a regulation promulgated by the Attorney General has the

force and effect of law as to the Board and the Immigration Judges).

The consequence of an unexcused disclosure is that an alien becomes

ineligible for any form of discretionary relief, except bond. The use of the

word “shall” in the regulation indicates that the bar to relief is mandatory.

See Lopez v. Davis, 531 U.S. 230, 240-41 (2001) (discussing the use of

“shall” versus “may” in a statute). The Immigration Judge therefore correctly

found that the respondent was barred from discretionary relief.

In a related issue, the respondent argues that the Immigration Judge

violated the protective order by allowing the DOJ attorneys to be present

during the closed portion of the hearing when the protective order was

discussed. We disagree. A protective order is issued to ensure that sensitive

information can be protected from general disclosures, and it is couched in

terms of its application to the respondent and his representative of record.

See 8 C.F.R. § 1003.46; see also 67 Fed. Reg. at 36,799-36,801

(Supplementary Information). There is nothing in the regulations to indicate

that the order extends to other federal employees, including court personnel

or attorneys outside of the DHS. Therefore, we find that the presence of

these persons during the closed hearing did not violate the protective order

regulations. We note as well that nothing substantive transpired during the

closed portion of the hearing at the end of the proceeding, as the parties

agreed that no closed hearing was necessary.

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C. Asylum and Withholding of Removal

1. Reasonable Grounds for Finding That the Respondent

Is a “Danger to the Security of the United States”

The Act states that an alien is ineligible for asylum when “there are

reasonable grounds for regarding the alien as a danger to the security of the

United States.” Section 208(b)(2)(A)(iv) of the Act. A similar bar exists for

withholding of removal. Section 241(b)(3)(B)(iv) of the Act, 8 U.S.C.

§ 1231(b)(3)(B)(iv) (2000) (providing that an alien is ineligible when “there

are reasonable grounds to believe that the alien is a danger to the security of

the United States”). The respondent asserts that the evidence of record does

not support the Immigration Judge’s application of these bars. We disagree.

Where the evidence indicates that one or more of the grounds for

mandatory denial of an application for relief may apply, the alien has the

burden of proving by a preponderance of the evidence that such grounds do

not apply. See 8 C.F.R. § 1240.8(d) (formerly 8 C.F.R. § 240.8(d)). The

DHS produced significant evidence to support its position that the respondent

is a danger to our national security. This included the Potter Declaration, a

detailed document that was the result of an ongoing federal investigation

conducted over several years. The respondent did not rebut the contents of

the document, including the protected portions, which are set out in the

appendix to the Immigration Judge’s final decision. 12 We find that this

protected information is enough to trigger concerns about the respondent and

to establish “reasonable grounds” under the Act.

However, the Immigration Judge’s findings are not based on the protected

information alone. Rather, he stated that even without the protected

information, there were four other specific reasons to conclude that the

respondent had links to militaristic and terrorist activities, mainly through his

close ties to the GRF. We see no error in these factual findings and conclude

that they also establish the “reasonable grounds” necessary for triggering the

bar. We accordingly adopt this portion of the Immigration Judge’s decision.

We point out that the respondent did not deny that he participated in the

events noted by the DHS, including GRF activities. Instead, he argued that

these events were not a fair basis for triggering suspicion. We disagree and,

for the reasons stated by the Immigration Judge, find this evidence sufficient

to establish the requisite “reasonable grounds” under sections

208(b)(2)(A)(iv) and 241(b)(3)(B)(iv) of the Act.

Further, the respondent ultimately has the burden to establish his eligibility

for relief, and he has failed to directly rebut the public and private portions

12

The respondent has not challenged the Immigration Judge’s summarization of these portions

of the Potter Declaration and, as stated earlier, we adopt this description and incorporate it into

our decision.

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of the Potter Declaration or to establish why the GRF should not be

considered to have terrorist links. His arguments on appeal deal in

generalities about the “paucity” of evidence but do not explain in any detail

how the findings are clearly erroneous. This includes the Immigration Judge’s

finding that the respondent lacked credibility in claiming that he was unaware

of many significant GRF activities, despite his role in the organization.

Regarding the adverse credibility determination, we defer to the

Immigration Judge’s finding in accordance with the “clearly erroneous”

standard of review. See 8 C.F.R. § 1003.1(d)(3)(i); see also United States

v. United States Gypsum Co., supra (holding that a finding of fact is clearly

erroneous when there is a firm and definite conviction that a mistake has been

made). In light of the detailed findings by the Immigration Judge, the

respondent was obligated on appeal to challenge those findings in a specific

manner. It is not enough to challenge them only in generalities, as the

respondent has done.

As the Immigration Judge correctly concluded, the evidence indicates that

there are reasonable grounds for regarding the respondent as a danger to the

security of the United States. The respondent has not met his burden of

proving, by a preponderance of the evidence, that this mandatory ground for

denial of asylum and withholding does not apply.

2. Merits of the Respondent’s Claim

We agree with the Immigration Judge’s alternative finding that the

respondent did not meet his burden of proof for asylum or withholding of

removal. An applicant for asylum has the burden of proving a well-founded

fear of persecution. 13 To make such a showing, the alien must establish that

a reasonable person in his or her circumstances would fear persecution on

account of a protected ground. See INS v. Cardoza-Fonseca, 480 U.S. 421

(1987); 8 C.F.R. § 1208.13(b)(2)(i)(B) (formerly 8 C.F.R.

§ 208.13(b)(2)(i)(B)). To establish eligibility for withholding of removal, an

alien has the burden of showing that it is more likely than not that he or she

will be persecuted. See INS v. Cardoza-Fonseca, supra; INS v. Stevic,

467 U.S. 407 (1984); 8 C.F.R. § 1208.16(b)(2) (formerly 8 C.F.R.

§ 208.16(b)(2)). An applicant for asylum or withholding of removal must

establish that the feared persecution is on account of race, nationality,

religion, membership in a particular social group, or political opinion. See

INS v. Elias-Zacarias, 502 U.S. 478 (1992); Matter of S-A-, 22 I&N Dec.

1328 (BIA 2000).

The respondent’s asylum claim has three components. One aspect of his

claim is that he will face persecution on return to Lebanon based on his

conversion to Islam. We agree with the Immigration Judge that the respondent

13

The respondent’s claim was not based on past persecution.

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did not meet his burden of proof in this regard, and we adopt that portion of

the Immigration Judge’s decision.

The respondent also claims that he faces harm in Lebanon from Al Qaeda

members, or their operatives, as a result of his public condemnation of the

terrorist acts of September 11, 2001. As mentioned by the Immigration

Judge, the respondent did not present evidence that he has widely

disseminated this view. Setting this aside, we agree with the Immigration

Judge’s statement that the respondent’s claim in this regard is too speculative

to be the basis for a grant of asylum or withholding. Most significantly, the

respondent has not produced any evidence that Al Qaeda has an interest in

him, that it has operatives in Lebanon, or that these operatives would target

him for retribution based on his stated condemnation of the September 11

attacks.

The respondent’s remaining reason for fearing persecution relates to the

publicity generated in the United States associating him with terrorism. He

claims that he will either be targeted by the Lebanese Government directly,

or through the influence of Syria. He asserts that both Governments have an

interest in appeasing the United States. We agree with the Immigration Judge

that even aside from questions about his credibility, the respondent has not

met his burden of proof for asylum in this regard.

The Immigration Judge found that the fact that two high-ranking Lebanese

politicians did not want to intervene on the respondent’s behalf only meant

that they did not want to expend political capital for his benefit, not that they

had any inclination to persecute him. This is a fair assessment, and the

officials’ actions do not give any indication that the Government would

persecute the respondent upon his return to Lebanon. Further, as noted by the

Immigration Judge, it is significant that no officials have made contact with

the respondent’s family since September 11, 2001. The contact preceding

this date, as described by the respondent’s brother, provides no reason to

conclude that the respondent will face persecution on his return to Lebanon

for the reasons outlined in his asylum claim.

The respondent and his brother testified regarding a Canadian citizen who

was apparently deported from the United States to Syria on suspicion that he

was an Al Qaeda supporter. This incident involved circumstances different

from those of the respondent, and it is not clear what happened to the

individual in question. The articles cited by the respondent therefore do not

provide support for his claim. At the hearing, respondent’s counsel stated he

had heard that the individual in question was now missing. This is tenuous

evidence, which, even if true, does little to further the respondent’s own

claim.

The respondent has submitted news articles and country reports on

Lebanon and Syria. This information establishes that both countries have

taken a hard line against terrorists, that there are some human rights concerns

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in each country, and that they have close ties with one another. However, this

information does not establish that someone in the respondent’s situation

objectively has a well-founded fear of persecution upon return to Lebanon.

Indeed, we have no information to indicate how someone in the respondent’s

circumstances would be treated by the Lebanese Government, or that the

influence of Syria would be determinative of this issue.

The respondent challenges the Immigration Judge’s reliance on country

reports provided by the Department of State. We see no error and emphasize

that the Immigration Judges and the Board frequently rely on such

information. See Matter of V-T-S-, 21 I&N Dec. 792, 799 (BIA 1997); see

also Koliada v. INS, 259 F.3d 482, 487-88 (6th Cir. 2001) (noting that State

Department profiles are entitled to significant deference, but also

acknowledging that the profile in that case was prepared specifically for the

Immigration and Naturalization Service). In the instant case, the respondent

has presented no meaningful argument to show that the State Department

reports utilized by the Immigration Judge were unreliable. We note as well

that the Immigration Judge did acknowledge that both parties’ evidence

indicated that Lebanon has a poor human rights record.

Finally, the respondent argues that he should receive asylum on a strictly

“humanitarian basis.” Asylum cannot be granted for any reason other than

those prescribed by section 208(a) of the Act, so this argument will not be

further addressed.

We conclude that the respondent did not meet his burden of proof for

asylum, and it follows that he did not meet the higher standard for withholding

of removal. 14 See Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987).

The Immigration Judge’s denial of his application will therefore not be

disturbed.

On appeal, the respondent asserts that he should have been granted relief

under the Convention Against Torture. However, he fails to address the

Immigration Judge’s finding that he was not pursuing this form of relief. The

Immigration Judge’s determination was correct, as the respondent did not

indicate in his asylum application that he was requesting relief under the

Convention Against Torture. Accordingly, there is no request ripe for review.

D. Voluntary Departure

As explained above, the breach of the protective order disqualifies the lead

respondent from discretionary relief, and we find that he is precluded from

14

We need not address the specific adverse credibility findings made by the Immigration

Judge in the context of denying asylum because the application was properly denied for the

aforementioned reasons. Moreover, as no challenges have been raised to the Immigration

Judge’s findings regarding the 1-year filing requirement and the firm resettlement bar, these

issues will not be further addressed.

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seeking voluntary departure. The Immigration Judge alternatively held that

the respondents did not establish statutory eligibility for voluntary departure

under section 240B(b) of the Act, 8 U.S.C. § 1229c(b) (2000). We affirm the

Immigration Judge’s decision in this regard. We do not find that the

respondents have meaningfully addressed this issue on appeal.

We only separately note that the respondents assert that they were not

adequately advised of the possibility of “prehearing” voluntary departure

under section 240B(a) of the Act, and that a remand is in order under Matter

of Cordova, 22 I&N Dec. 966 (BIA 1999). We disagree. In Matter of

Cordova, we held that if the evidence of record does not indicate that an alien

has been convicted of an aggravated felony or other applicable crime, the

Immigration Judge has the duty to provide him or her with information about

voluntary departure under section 240B(a) of the Act before the pleadings are

taken. This form of voluntary departure has no good moral character

requirement, and the respondent must concede removability, file no other

applications for relief, and waive appeal. 8 C.F.R. § 1240.26(b)(1).

In the instant case, it is not apparent that the Immigration Judge advised the

respondents about prehearing voluntary departure at their master calendar

hearing. However, assuming this omission occurred, the respondents have

failed to show any resulting prejudice. See generally Matter of Santos,

19 I&N Dec. 105 (BIA 1984). Specifically, they do not state that they would

have applied for prehearing voluntary departure if notified, which would have

prevented them from seeking asylum and withholding of removal, forms of

relief that they continue to pursue on appeal. In this regard, the respondents’

situation is distinguishable from that of the alien in Matter of Cordova,

supra. In that case, the alien withdrew his pending application for relief at the

hearing and did not pursue its denial on appeal, where he only raised issues

related to voluntary departure. In the instant case, the respondents provide

no reason to believe that they would have taken the course of action

necessary for prehearing voluntary departure even if properly advised.

The request for voluntary departure was properly denied, and there is no

reason to remand the record on this issue.

VII. CONCLUSION

We conclude that the respondents are removable as charged, and that they

did not establish eligibility for relief from removal. Accordingly, the appeal

will be dismissed.

ORDER: The appeal is dismissed.

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