Marian Hassan Reda v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-3401
___________
MARIAN HASSAN REDA,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A97-436-266)
Immigration Judges: Honorable Annie Garcy and Honorable Esmeralda Cabrera
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 17, 2010
Before: BARRY, STAPLETON and NYGAARD, Circuit Judges
Opinion filed: February 19, 2010
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OPINION
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PER CURIAM
Marian Hassan Reda, a citizen of Lebanon, last entered the United States in 1990
as a visitor. In 2003, the Government charged her as removable for overstaying her visa.
Reda conceded the charge, and applied for asylum, withholding, and protection under the

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Initially, the Clerk’s Office also listed Reda’s case for possible dismissal for1
jurisdictional defect because Reda filed an amended petition for review more than 30
days after the BIA’s decision. However, we conclude that the amendment to explicitly
cite the asylum decision after the time for filing ended does not bar us from considering
the petition. Reda timely filed her initial petition that identified the BIA decision and
cited the withholding and CAT claims.
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Convention Against Torture (“CAT”).
The first Immigration Judge (“IJ”) who heard Reda’s case took written
submissions about the timeliness of the asylum application, and issued an oral decision
that the application was time-barred and not subject to exceptions for filings beyond one
year of arrival. R. 105-06. Reda, through counsel, subsequently affirmed that she was
pursuing withholding and CAT relief only. R. 110. In her written decision, the next IJ
cited the earlier decision on the asylum claim and denied the other then-pending
applications for relief. The Board of Immigration Appeals (“BIA”) dismissed Reda’s
subsequent appeal.
Reda, through counsel, presents a petition for review. We first address the scope
of our jurisdiction over the petition. The Government moves to dismiss for lack of
jurisdiction Reda’s petition as it relates to the asylum question. We have jurisdiction to1
review constitutional claims and questions of law but not factual or discretionary
determinations concerning the timeliness of an asylum application. See 8 U.S.C.
§§ 1158(a)(3) & 1252(a)(2)(D); Sukwanputra v. Gonzales, 434 F.3d 627, 634-35 (3d Cir.
2006).

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Reda at one point states that a decision on her asylum claim does not exist.
Appellant’s Brief 6. However, in context, we do not read that statement literally,
particularly because she otherwise describes the IJ as refusing to apply an exception to the
one-year filing deadline for asylum applications. Appellant’s Brief 5-7. Also, the IJ’s
oral decision is in the record. R. 105-06. We do not have jurisdiction to review the
substance of that ruling. See 8 U.S.C. § 1158(a)(3).
However, we will consider Reda’s legal argument that how the IJ decided the
asylum question – allegedly without a hearing, without giving reasons for the denial, and
without a formal written ruling – violated her right to due process of law. We conclude
that Reda’s due process rights were not violated. Reda was provided with notice and the
opportunity to be heard. When her counsel first proposed that Reda might be subject to
an exception to the one-year deadline, the IJ allowed counsel time to prepare a
memorandum of law on the issue and solicited a response from the Government. R. 102.
The IJ provided reasons for her decision when she reconvened the hearing and explained
that she had considered the briefs and was not persuaded by Reda’s arguments. R. 106.
Furthermore, to the extent that there was no formal ruling on asylum application, it was
because Reda, or rather, Reda’s counsel, did not further pursue an asylum claim before
the IJ after the IJ’s oral ruling. R. 110 (presenting an application for withholding and
CAT relief and confirming that those two forms of relief were the only forms of relief
then under consideration).

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As the Government notes, Reda does not pursue her CAT claim in her petition, so we2
consider any issues relating to that claim waived. See Lie v. Ashcroft, 396 F.3d 530, 532
n.1 (3d Cir. 2005).
4
As to withholding of removal, Reda argues that the IJ erred in failing to take2
administrative notice of the state of affairs in Lebanon at the time of her hearing; erred in
stating that she was without sufficient evidence to grant relief despite Reda’s credible
testimony; and erred in failing to review a report from Amnesty International. Reda also
expresses concern about the IJ’s statement, at one point in her hearing, that the IJ had
another case in 50 minutes, as well as about how her illiteracy affected her testimony.
On review, we conclude that the agency did not err in concluding that Reda failed
to show a ‘clear probability’ that she will be persecuted on her return to Lebanon. See
Kaita v. Attorney Gen. of the United States, 522 F.3d 288, 296 (3d Cir. 2008). Reda
claimed that she would be persecuted for two reasons. The first was that in 1983, she
witnessed the murders of her uncles and cousins. R. 156. She was hiding in a washing
machine when her relatives were killed, but she heard the attackers say that they were
there to kill everyone in the house and she saw them. R. 154-56. The attackers, some of
whom she could identify by name and as members of Hezbollah, heard her scream, so
they knew she was a witness. R. 157 & 160. However, Reda stated that neither she nor
anyone in her village knew the reason why the murders occurred. R. 164. Given this
statement and the fact that Reda did not explain how any threat that she might face for
witnessing the murders would be on account of a protected ground (and averred that

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neither she nor any family member ever belonged to a political organization, R. 234), it
cannot be said that the evidence compels a conclusion contrary to the BIA’s. See Molina-
Morales v. INS, 237 F.3d 1048, 1052 (9th Cir. 2001) (“[P]urely personal retribution is, of
course, not persecution on account of [a protected ground].”)
Reda’s second claim of persecution was that she may fall victim to an honor
killing by a relative because she married an older man (a cousin) without her family’s
permission more than 20 years ago. However, the only relatives she identified as
remaining in Lebanon are her two brothers, R. 165, with whom she speaks, R. 173, and
who warned her not to return because they feared that she would face a threat from the
persons or group who murdered her family members, R. 189. Her brothers also wrote a
letter in support of her application in which they discussed Reda’s efforts to emigrate to a
location where she could find “self-dignity, freedom, and civil rights.” R. 243. As the
BIA noted, it is highly implausible that those same brothers who urged her to avoid a
threat to her safety would be motivated to kill her on her return. Furthermore, with this
claim, too, Reda failed to show that any persecution she might face would be due to her
race, religion, nationality, membership in a particular social group, or political opinion.
Accordingly, we perceive no error in the IJ’s conclusion that Reda had not met her
burden of proof as to withholding despite Reda’s credible testimony. We also reject
Reda’s remaining claims. Nothing in the record suggests that Reda’s illiteracy or the IJ’s
scheduling of another case (or any other action by the IJ) prevented Reda from fully

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presenting her case. See Fadiga v. Attorney Gen. of the United States, 488 F.3d 142, 155
(3d Cir. 2007). Furthermore, despite Reda’s claim to the contrary, the IJ did consider
evidence of country conditions and news accounts and take administrative notice of
events in Lebanon, including Hezbollah activities. R. 85, 126-27, 182-83. However, this
evidence of “‘[m]ere generalized lawlessness and violence between diverse populations’”
was insufficient to show that Reda would be targeted for persecution based on a protected
ground. Abdille v. Ashcroft, 242 F.3d 477, 494-95 (3d Cir. 2001) (citation omitted).
For the reasons given, we grant the Government’s motion and will dismiss Reda’s
petition to the limited extent that we lack jurisdiction over the factual determination that
her asylum application was untimely. We will otherwise deny the petition for review.

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