United States Court of AppealsFifth Circuit

F I L E DApril 17, 2006

Charles R. Fulbruge IIIClerk

In the

United States Court of Appealsfor the Fifth Circuit

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m 05-60141_______________

LAOI SALAH MAJD; RAJAA TAHSIN NAJI BARAKAT; TAREQ LAOI MAJD,

Petitioners,

VERSUS

ALBERTO R. GONZALES,UNITED STATES ATTORNEY GENERAL,

Respondent.

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Petition for Review of an Order ofthe Board of Immigration Appeals

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Before KING, SMITH, and BENAVIDES,Circuit Judges.

JERRY E. SMITH, Circuit Judge:

The petition for panel rehearing isGRANTED. The opinion, 2006 U.S. App.LEXIS 7558 (5th Cir. Mar. 8, 2006), isWITHDRAWN, and the following opinion issubstituted:

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Laoi Majd, together with his wife and sonas derivative beneficiaries, petitions for reviewof the denial by the Board of ImmigrationAppeals (“BIA”) of his application for asylum,witholding of removal, and protection underthe Convention Against Torture (“CAT”). Wedeny the petition.

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I.A.

Majd, a native of Libya holding a Palestin-ian Authority (“PA”) passport, was admittedto the United States in January 2002 as a non-immigrant visitor. He overstayed his visa andin April 2003 was charged by the Departmentof Homeland Security (“DHS”) with remov-ability under 8 U.S.C. § 1227(a)(1)(B) for re-maining in the country longer than permitted.In a September 2003 hearing before an im-migration judge (“IJ”), Majd conceded he wasremovable as charged but requested asylum,witholding of removal, and protection underCAT, or, in the alternative, voluntary depar-ture, claiming he was entitled to all such reliefbecause, as a Palestinian living in the WestBank, he had been persecuted by Israeli forces.

B.Majd testified as follows: Before entering

the United States, he and his family lived inRamallah, where he and his wife were bankers.In March 2000, on returning to the West Bankfrom a vacation in Jordan, he was stopped byIsraeli security forces at a checkpoint anddetained for hours. He did not say why he wasdetained, but he claimed that the securityforces kicked him while walking up and downthe corridor where he was being held and thatthey questioned him about his job, family, andparty affiliations. While he was being de-tained, his wife, one month pregnant, had to sitin a chair for eight hours without food orwater.

In May 2000, Majd was arrested while onhis way to pick up his sister, was detained fortwo hours, and again was questioned regard-ing his destination, family, job, and affiliations.He stated that on both occasions when he wasdetained, he presented the security forces withan identification card indicating that he was a

low security risk.

In March 2001, as he was leaving the bankwhere he worked, Majd noticed tanks and sol-diers in the street. The soldiers were “shoot-ing from everywhere.” Majd and another per-son tried to leave the area but were confrontedby an Israeli soldier who demanded to knowtheir destination. Majd stated he was goinghome, but the soldier ordered him back insidethe bank.

When the soldier was distracted by one ofhis comrades, Majd and the other person triedto escape. The soldiers ordered them to stop,but when they did not obey the soldiers firedupon them. The other individual was shot, butMajd made it home safely. Majd testified thathe had done nothing to deserve detention butconfirmed that the building in which heworked housed the office of a Fatah leader.

In August 2001, Majd took a taxi from Ra-mallah to visit his father. While his taxi was inline at a security checkpoint, another taxi triedto change lanes and pass in front of anothercar. Because getting out of a checkpoint lineis generally considered suspicious activity, theIsraeli forces opened fire. A passenger ridingin the same taxi as Majd was shot and killed,and Majd fainted out of fear. Majd eventuallyreached his destination and did not testify thatthe Israeli forces were shooting specifically athim.

The PA occupied the ground floor andbasement of the building in which Majd lived.One day, after inspecting the location and sus-pecting that some PA soldiers has escapedthrough the building, Israeli soldiers searchedthe building from top to bottom, includingMajd’s home. The soldiers broke some ob-jects there, and Majd’s family was terrified,particularly after hearing shots fired in the

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building. It was that event that promptedMajd and his family to take a vacation to theUnited States to “wait for the situation [in theWest Bank] to get better.”

After Majd his wife and son fled to theUnited States, numerous problems befell hisfamily remaining in the West Bank. His cousinwas detained byIsraeli forces, and the cousin’sblacksmith shop was destroyed. Majd’sbrother was detained for three months underan Israeli law that permits judges to authorizeadministrative detention for that length oftime.1 Majd’s family, who raised vegetables inaddition to holding other jobs, could not bringtheir harvest to market because of the generalunrest in the area and the fact that “everythingis closed and surrounded by Israeli authori-ties.” In particular, the wall the Israelis arebuilding to secure the West Bank border runsthrough the middle of his family’s olive groves,depriving them of their land.

Majd offered the testimony of his brother,Modard Salah Jousef Majd, via telephone.The brother confirmed that he had been takenand detained for three months by the Israelisafter telling them that Majd had gone to theUnited States. He also confirmed the destruc-tion of the family’s olive groves and stated thatbecause of his experiences, he is essentiallyconfined to his village. The telephonic testi-mony of Majd’s father similarly confirmedMajd’s accounts.

Majd also offered the testimony of EmilyWatchsmann, a student at the University ofNorth Texas who had visited the West Bank inconjunction with an organization known as theInternational Solidarity Movement. Watchs-

mann commented on the general conditions ofunrest in the West Bank but stated that shehad no personal knowledge of Majd’s experi-ences and had never been to Ramallah. Sheexplained the usual procedure at securitycheckpoints and suggested that any vehiclethat attempted to evade a checkpoint would befired upon.

II.After hearing this evidence, the IJ denied

Majd’s applications for asylum, witholding ofremoval, and relief under CAT but granted himvoluntarydeparture, allowing himsixtydays toleave the country of his own accord.2 The IJordered Majd forcibly removed to Israel if hedid not depart during that sixty-day period.

The IJ determined that although Majd wascredible, the mistreatment he suffered did notconstitute persecution on account of one ofthe five statutory grounds that rendered anindividual eligible for asylum and/or witholdingof removal. The IJ found that the harm in-flicted on Majd did not rise to the level oftorture, so relief under CAT was unavailable.

Majd appealed to the BIA, contending thatthe IJ erred in denying him relief, that the re-jection of his request for relief contravenes the1951 Convention Relating to the Status ofRefugees, and that the United States’ handlingof Palestinian asylum claims such as his vio-lates the ABC Settlement Agreement, whicharose out of a class action lawsuit by immi-grants of certain nationalities against the im-migration authorities. The BIA affirmed with-out opinion. Majd petitions for review.

1 Majd did not testify that his brother was mis-treated during his period of detention.

2 By statute, permission to depart the UnitedStates voluntarily at theconclusion of removal pro-ceedings “shall not be valid for a period exceeding60 days.” 8 U.S.C. § 1229c(b)(2).

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III.A.

Generally, we have authority to review onlythe decision of the BIA, but where, as here,the BIA summarily affirms the IJ’s decisionwithout opinion, we review the IJ’s decision.See Mikhael v. INS, 115 F.3d 299, 302 (5thCir. 1997). Although we review the legal con-clusions of the BIA and the IJ de novo, see id.,we review their factual findings for substantialevidence. See Zhang v. Gonzales, 432 F.3d339, 343-44 (5th Cir. 2005). Under the sub-stantial evidence standard, “reversal [of the IJ]is improper unless we decide ‘not only that theevidence supports a contrary conclusion, but[also] that the evidence compels it.’” Id. at344 (quoting Zhao v. Gonzales, 404 F.3d 295,306 (5th Cir. 2005)). The alien bears the bur-den of proving the requisite compelling natureof the evidence. See Chun v. INS, 40 F.3d 76,78 (5th Cir. 1994).

B.The Attorney General has complete discre-

tion whether to grant asylum to eligible indi-viduals. “[A]sylum is not available to everyvictim of civil strife, but is restricted to thosepersecuted for particular reasons.” Hallman v.INS, 879 F.2d 1244, 1247 (5th Cir. 1989). Tobe eligible for asylum, an alien must prove thathe is “unable or unwilling to return to . . . [hishome] country because of persecution or awell-founded fear ofpersecution on account ofrace, religion, nationality, membership in aparticular social group, or political opinion.”8 U.S.C. § 1101(a)(42)(A).

“Neither discrimination nor harassment or-dinarily amounts to persecution under the [Im-migration and Nationality Act (“INA”)] . . . .”Eduard v. Ashcroft, 379 F.3d 182, 188 (5thCir. 2004). Similarly, “[p]ersecution is not alimitless concept . . . . [I]t does not encom-

pass all treatment that our society regards asunfair, unjust, or even unlawful or unconstitu-tional. If persecution were defined that expan-sively, a significant percentage of the world’spopulation would qualify for asylum in thiscountrySSand it seems most unlikely that Con-gress intended such a result. Persecution mustbe extreme conduct to qualify for asylum pro-tection.” Al-Fara v. Gonzales, 404 F.3d 733,739 (3d Cir. 2005) (internal quotations and ci-tations omitted).

There is a well-founded fear of persecutionif the alien has a subjective fear of persecutionthat is objectively reasonable. See Lopez-Go-mez v. Ashcroft, 263 F.3d 442, 445 (5th Cir.2001). “[A]n applicant’s fear of persecutioncannot be based solely on general violence andcivil disorder.” Eduard, 379 F.3d at 190.

Unlike asylum, witholding of removal is notdiscretionary. An alien may not be removed toa particular country if it is determined that “thealien’s life or freedom would be threatened inthat country because of the alien’s race, reli-gion, nationality, membership in a particularsocial group, or political opinion.” 8 U.S.C. §1231(b)(3)(A). To be eligible for witholdingof removal, an alien must demonstrate anobjective “clear probability” of persecution inthe proposed country of removal. INS v.Stevic, 467 U.S. 407, 413 (1984). Becausethe level of proof required to establish eligibil-ity for witholding of removal is higher thanthat required for asylum, failure to establisheligibility for asylumis dispositive of claims forwitholding of removal. See Eduard, 379 F.3dat 186 n.2.

To obtain relief under CAT, an alien mustdemonstrate not that he is a member of one ofthe five protected categories of individuals ar-ticulated in the eligibility standards for asylumand witholding of removal, but rather that it is

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more likely than not that he will be tortured ifhe is removed to his home country. See Efe v.Ashcroft, 293 F.3d 899, 907 (5th Cir. 2002).3

To meet this burden, the alien may produceevidence of past torture, an inability to relo-cate to a safer part of the country, humanrights abuses committed within the country,and any other relevant information. See 8C.F.R. § 208.16(c)(3).

IV.A.

The IJ determined that Majd was ineligiblefor asylum and withholding of removal be-cause the evidence demonstrated that his suf-fering was the result of the generally danger-ous conditions in the West Bank and did notrise to the level of persecution on account ofone of the five statutorily-protected grounds.For example, with regard to the March 2001incident at Majd’s place of employment, the IJfound that the evidence suggested that the Is-raelis were attempting to apprehend a suspect-ed terrorist in the area and that they fired onMajd not because he was a Palestinian, but be-cause he disobeyed a soldier’s order.

The IJ found that the search of Majd’shouse was not an action directed specifically atMajd because of his race, nationality, religion,political affiliation, or membership in a socialgroup. Rather, the Israeli forces were lookingto apprehend other individuals believed to behiding in the building, an operation that re-quired a search of the entire building.

Similarly, the IJ concluded that Majd was amere bystander to the shooting incident at thesecurity checkpoint. That action by the Israeliforces was again not directed specifically atMajd, but was precipitated by the suspiciousactivity of the occupants of another vehicle.The IJ also found that the frustration of theMajd family’s attempts to bring their harvestto market and the destruction of the family’solive groves were caused by the pervasiveunstable conditions in the region, not by Israeliactions directed at the family in particular.

With regard to the two occasions on whichMajd was detained, the IJ found that he didnot suffer any long-term deprivation of libertyor permanent physical injury. Accordingly, theIJ concluded that though the detentions couldbe considered harassment, they did not consti-tute persecution.

Finally, the IJ determined that the detentionof Majd’s brother and cousin shed no light onhow Majd would likely be treated on returningto Israel, because those detentions were the re-sult of circumstances specific to each man.4

Given that none of Majd’s suffering rose to the

3 The relevant regulation defines torture as

as any act by which severe pain or suffering,whether physical or mental, is intentionally in-flicted on a person for such purposes as obtain-ing from him or her or a third person informa-tion or a confession, punishing him or her foran act he or she or a third person has committedor is suspected of having committed, or in-timidating or coercing him or her or a thirdperson, or for any reason based on discrimina-tion of any kind, when such pain or suffering isinflicted by or at the instigation of or with theconsent or acquiescence of a public official orother person acting in an official capacity.

8 C.F.R. § 208.18(a)(1) (2000).

4 Majd’s brother was detained because the Is-raelis were investigating reports that there was aweapons manufacturing facility located in thebuilding in which he lived. Majd’s cousin was de-tained and his blacksmith shop destroyed becausethe Israelis suspected he was using the shop tomanufacture weapons.

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level of persecution on account of one of thefive relevant statutory factors, the IJ concludedthat Majd did not have a well-founded fear offuture persecution.

The record fully supports the IJ’s determi-nation regarding Majd’s ineligibilityfor asylumand witholding of removal, and Majd points tono evidence that compels any contrary conclu-sion. Indeed, every piece of evidence pre-sented by Majd indicates that he and his familyhave been the victims of circumstance, not thespecial targets of brutality. As another circuitstated with regard to a region living underdisorder similar to that existing in the WestBank, “[t]he generalpoliticalupheaval that hasbeen the unfortunate reality in Gaza is obvi-ously threatening for those who live there, butsuch conditions in and of themselves do notmerit asylum.” Al-Fara, 404 F.3d at 742. Ac-cordingly, we have no basis to question theIJ’s denial of asylum and withholding of re-moval.

B.With regard to Majd’s claimfor relief under

CAT, the IJ found that none of the harm doneto Majd constituted “severe pain or suffering. . . intentionally inflicted [upon him] for suchpurposes as obtaining from him . . . or a thirdperson information or a confession, punishinghim . . . for an act he . . . or a third person hascommitted or is suspected of having commit-ted, or intimidating or coercing him . . . or athird person, or for any reason based on dis-crimination of any kind . . . .” 8 C.F.R. §208.18(a)(1) (2000) (emphasis added).

Again, Majd has brought forth no evidencethat compels us to reverse the IJ. Most of thesuffering he described was inflicted withoutany specific intent on the part of the Israeliforces in the West Bank. Additionally, on thetwo occasions when Majd was detained, the

harm inflicted by the Israelis, although inten-tional and for the purpose of extracting infor-mation, did not rise to the level of severe painor suffering. Majd was held for only a shorttime, and although he was not treated particu-larly well, it cannot be said that roughing anindividual up and questioning him about hiswork, family, and political affiliations amountsto torture.

Similarly, the Israeli soldiers were certainlyintending to harm Majd when they shot at himoutside the bank. They did not so intend,however, with a discriminatory purpose or agoal of extracting information or a confessionfrom Majd, but rather because they were try-ing to halt his escape. Thus, Majd’s claim forrelief under CAT fails.

V.Majd contends, in addition, that he qualifies

as a refugee pursuant to the 1951 ConventionRelating to the Status of Refugees (the “1951Convention”) and attendant United Nationsprotocol. On that basis, he asserts that thedenial of his request for relief contravenes theConvention. He further argues that the hand-ling of Palestinian asylum claims such as hisviolates the ABC Settlement Agreement, whicharose out of a class action lawsuit by immi-grants from El Salvador and Guatemala chal-lenging the manner in which United Statesimmigration authorities processed asylumclaims filed under § 208(a) of the INA. SeeAm. Baptist Churches v. Thornburgh, 760 F.Supp. 796, 799 (N.D. Cal. 1991). Both ofthese claims are meritless.

As the Third Circuit has explained in detail,

Petitioner’s claim that he qualifies as a ref-ugee pursuant to the 1951 Convention andthe 2002 interpretations of the United Na-tions High Commissioner for Refugees

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made thereto is without merit. The UnitedStates is a signatory to the 1967 United Na-tions Protocol Relating to the Status ofRefugees (“1967 Protocol”), which incor-porated the 1951 Convention. The Attor-ney General implemented regulations tocomply with its terms. In 1980, Congressamended the INA through passing the Ref-ugee Act, which brought the domestic lawsof the United States into conformity withits treaty obligations under the 1967 Proto-col. The 1967 Protocol is not self-execut-ing, nor does it confer any rights beyondthose granted by implementing domesticlegislation. Accordingly, [p]etitioner can-not assert rights beyond those contained inthe INA and its amendments.

Al-Fara, 404 F.3d at 742-43 (internal citationsomitted). We find the reasoning of the ThirdCircuit persuasive and adopt it here.

The ABC Settlement Agreement arose outof a class action lawsuit by immigrants from ElSalvador and Guatemala challenging the man-ner in which United States immigration au-thorities processed asylum claims filed under §208(a) of the INA. See Am. Baptist Churchesv. Thornburgh, 760 F. Supp. 796, 799 (N.D.Cal. 1991). The agreement entitles classmembers to new proceedings before the immi-gration authorities if certain conditions aremet, but it specifies that the class includes only“all Salvadorans in the United States as ofSeptember 19, 1990,” and “all Guatemalans inthe United States as of October 1, 1990.” Id.Because Majd is not a member of the class, hecannot assert rights under the agreement.

The petition for review is accordinglyDENIED.