SALEH v. GARLAND (2021)

United States Court of Appeals, Ninth Circuit.2021-09-02No. No. 15-72233

Summary · law.co

Holding. The petition for review is denied. The substantial evidence in the record supports the Board of Immigration Appeals' affirmation of the denial of asylum because Saleh failed to demonstrate either past persecution or an objectively reasonable well-founded fear of future persecution.

Amrou Saleh, an Egyptian national, sought asylum based on claims of past persecution and a well-founded fear of future persecution. The Board of Immigration Appeals affirmed an immigration judge's denial of his asylum application. Saleh argued that threats made to his family while he was in the United States, combined with the burning of his family's property, constituted past persecution. He also contended that the cumulative effect of various incidents demonstrated an objectively reasonable fear of future harm if he returned to Egypt.

The court found the record did not compel a finding of past persecution. Threats alone, without being extreme circumstances, do not establish persecution, and harm to family members cannot substitute for direct harm to the applicant, particularly when the applicant was not in the country when the incidents occurred. The court also determined the record did not support an objectively reasonable fear of future persecution. Saleh himself had never suffered direct harm, and the agency found that individuals who had threatened his family were either in hiding or posed no future threat. The burning of the family shed was speculative as to cause and attribution, and the passage of time since other incidents weighed against finding a reasonable fear of future harm.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether unfulfilled threats to family members and property damage constitute past persecution
Whether harm to family members can substitute for direct harm to an asylum applicant
Whether incidents involving third parties create an objectively reasonable fear of future persecution
Whether speculative or unexplained harm supports a well-founded fear claim

Procedural posture

Saleh petitioned for review of the Board of Immigration Appeals' decision affirming an immigration judge's order denying his asylum application.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Amrou Saleh, a native and citizen of Egypt, petitions for review of the Board of Immigration Appeals (“BIA”) decision affirming an immigration judges (“IJ”) order denying his application for asylum.

The parties are familiar with the facts so we do not recount them here. We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.

“We review only the BIAs opinion, except to the extent that it expressly adopted portions of the IJs decision.” Villegas Sanchez v. Garland, 990 F.3d 1173, 1178 (9th Cir. 2021) (citation omitted). “We review agency factual findings for substantial evidence.” Id. “Under the substantial-evidence standard, the agencys findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” Id. at 1178–79 (cleaned up).

Saleh must show he is unable or unwilling to return to Egypt due to past persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion to be eligible for asylum. Id. at 1179. Saleh “may establish a ‘well-founded fear of future persecution’ in two ways: by proving past persecution, or by demonstrating that he has a ‘subjectively genuine and objectively reasonable’ fear of future persecution.” Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1062 (9th Cir. 2017) (en banc) (citation omitted).

We are not compelled to find Saleh has demonstrated past persecution. Saleh argues that threats to his family while he was in the United States, coupled with the burning of his familys property, constituted past persecution. The unfulfilled threats to Salehs family do not make this the “extreme” case where threats alone can compel finding past persecution. See Villegas Sanchez, 990 F.3d at 1179. And Saleh presents only speculation, not evidence, as to how the shed burned down or who was responsible. In any event, we have “not found that harm to others may substitute for harm to an applicant ․ who was not in the country at the time he claims to have suffered past persecution there.” Tamang v. Holder, 598 F.3d 1083, 1092 (9th Cir. 2010). The record does not compel finding past persecution here.

Nor does the record compel finding that Saleh has shown an objectively reasonable fear of future persecution. Saleh argues that the cumulative effect of the incidents on the record supports an objectively reasonable fear of future persecution. But Saleh himself never suffered any harm and the BIA affirmed the IJs factual findings that Yousef was in hiding and incapable of harming Saleh in the future. See Baballah v. Ashcroft, 367 F.3d 1067, 1074 (9th Cir. 2004); Korablina v. INS, 158 F.3d 1038, 1045 (9th Cir. 1998). And Saleh points only to the unexplained burning of his familys shed to support a fear of future persecution from Yousef, which the BIA correctly determined does not establish a well-founded fear of future persecution. The record does not compel finding that the BIA erred by concluding his similarly-situated family in Egypt was not harmed by Yousef and the burning was harassment, not persecution. See Tamang, 598 F.3d at 1094. Likewise, Ahmeds pushing of Salehs mother does not compel finding the BIA erred in concluding that Ahmed had not persecuted or seriously harmed Salehs family and that Ahmed does not pose a future threat of persecution given the passage of time since the past incidents. See Villegas Sanchez, 990 F.3d at 1179. Substantial evidence also supports the BIAs determination that the IJ correctly rejected Salehs speculative claim that a man who harmed Salehs father after a car accident would target Saleh upon his return to Egypt. The lack of harm to Salehs similarly-situated family in Egypt cuts against any objectively reasonable fear of future persecution from Ahmed. Tamang, 598 F.3d at 1094.

PETITION FOR REVIEW DENIED.

FOOTNOTES

. Saleh addresses only his asylum claim, not his withholding of removal and CAT claims, in his brief. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996).

. Because Saleh has not shown an objectively reasonable fear of future persecution, we need not reach Salehs other arguments.