Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit

11-6-2006

Abdelmessih v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4244

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UN ITED STATES COUR T OF APPEALS FOR THE THIRD CIRCUIT __________

No. 05-4244 __________

PHILLIP M OUNIR ESKANDER ABDELM ESSIH

Petitioner

v.

ATTO RN EY GEN ERAL O F TH E U NITED STA TES,

Respondent

__________

On Petition for Review from an Order of the Board of Immigration Appeals (Board No. A77 039 302) Immigration Judge Eugene Pugliese

_________

Submitted Under Third Circuit LAR 34.1(a) September 15, 2006

B efore: FU EN TES, FISHER and M cKAY, * Circuit Judges.

(Filed November 6, 2006)

__________

* The Honorable M onroe G. M cKay, United States Circuit Judge for the Tenth Circuit, sitting by designation. OPINION O F THE COURT __________ M cKAY, Circuit Judge.

Petitioner is an Egyptian citizen who overstayed his visitor’s visa by a

period of seven years. In appropriate proceedings, he was ordered removed after

he admitted all relevant factual allegations against him and conceded

removability. In an attempt at avoiding removal, he requested asylum,

withholding of removal, and protection under the Convention Against Torture

(“CAT”), all of which were denied by the Immigration Judge (“IJ”) and affirmed

by the Board of Immigration Appeals (“BIA”) without opinion. This appeal

challenges those denials.

It is clear that we lack jurisdiction to review the IJ’s denial of Petitioner’s

asylum application because the application was filed more than one year after

Petitioner’s arrival in the United States. See IN A § 208(a)(3),

(a)(3). Our lack of jurisdiction applies both to the timeliness and to the

exception for “extraordinary circumstances,” which would excuse late filing. See

Tarrawally v. Ashcroft,

(3d Cir. 2003); see also Sukwanputra

v. Gonzales,

(3d Cir. 2006) (finding that Tarrawally

remains good law despite enactment of the R EAL ID Act).

For a withholding of removal claim, the applicant must demonstrate a

“clear probability” of persecution if removed, INS v. Stevic,

, 413

2 (1984); in other w ords, persecution must be more likely than not,

. To

qualify for protection under the CAT, the applicant must demonstrate that it is

more likely than not that he will be tortured if removed. Ayuk Ako Obale v.

Attorney Gen. of the United States,

(3d Cir. 2006). Our review

is limited to determining whether the IJ’s denial of these claims was supported by

substantial evidence.

Petitioner testified at his immigration hearing that he sold cigarettes and

liquor in Egypt. He claimed that in 1994 he was threatened by members of the

Islam ic Jihad, w ho told him to stop selling alcohol and to convert to Islam. On

one occasion, he and his driver were beaten by Islamic Jihad members. Petitioner

reported this incident to the police, but they refused to take a report because he

was Christian. A doctor treated his injuries but did not write a report because he

was afraid to state that he had treated a Christian. In 1995, a man held a knife to

Petitioner’s neck and told him that he would be killed if he did not convert to

Islam. Petitioner agreed to convert, but then stalled the Jihadists for several

months until he was able to leave the country.

The IJ concluded that Petitioner had not satisfied the standard for

withholding of removal or relief under the CAT. The IJ explained that Petitioner

did not provide medical evidence of injuries or any evidence of torture and that he

still has relatives who remain in Egypt unharmed. Further, Petitioner did not

3 attempt to relocate in order to avoid the people who were threatening him. M ore

generally, the IJ found that Petitioner’s story was vague and fragmented,

suggesting that he was not telling the truth. After a thorough and careful review

of the record, we are satisfied that substantial evidence supported the conclusion

that Petitioner was not entitled to withholding of removal or relief under the CA T.

4