Bassem Moawad Hassad Elsayed v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-1362
BASSEM MOAWAD HASSAD ELSAYED,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A098-496-291)
Immigration Judge: Honorable Henry S. Dogin
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 17, 2010
Before: RENDELL, FISHER and GARTH, Circuit Judges
(Filed: February 17, 2010)
OPINION
PER CURIAM
Bassam Moawad Hassad Elsayed, a native and citizen of Egypt, entered the United
States on a tourist visa on June 28, 1998. He obtained an F-1 student visa while studying
at Union County College, and remained in the United States illegally after his student visa

-- 1 of 4 --

2
expired. On March 23, 2006, the government issued a Notice to Appear charging Elsayed
with being removable under INA §§ 237(a)(1)(B) and 237(a)(1)(C)(i) for being present in
violation of law and for failing to maintain nonimmigrant status, respectively.
Elsayed filed an application for asylum, withholding of removal, and protection
under the Convention Against Torture (“CAT”) on the basis that he will be targeted upon
return to Egypt for being “Americanized.” The Immigration Judge (“IJ”) denied relief,
and the Board of Immigration Appeals (“BIA”) dismissed Elsayed’s appeal.
Elsayed, through counsel, presents a petition for review. We have jurisdiction
pursuant to 8 U.S.C. § 1252. We consider questions of law de novo. See Gerbier v.
Holmes, 280 F.3d 297, 302 n.2 (3d Cir. 2001). We review factual findings for substantial
evidence. See Butt v. Gonzales, 429 F.3d 430, 433 (3d Cir. 2005).
Elsayed presents three issues in his petition. He contends that the IJ used the
wrong standard to rule on his withholding claim; that the BIA’s decision is no more than
an improper affirmance without opinion that does not provide analysis of the IJ’s
decision; and that the IJ did not properly analyze the State Department material in the
record. Among other arguments, the Government counters that because Elsayed did not
include any argument that he was improperly denied asylum, withholding, or CAT relief,
he waived his claims for those forms of relief.
Upon review of Elsayed’s brief, we note that he maintains that he was entitled to
withholding but does not press arguments relating to his claims of asylum and CAT

-- 2 of 4 --

1In fact, he describes his application for relief as one treated, in the agency, as an
application for withholding. (Petitioner’s Br. at 2.)
3
relief.1 Accordingly, we consider any claims relating to asylum or CAT relief waived.
See Lie v. Ashcroft, 396 F.3d 530, 532 n.1 (3d Cir. 2005). We will, however, review the
issues he raises as they relate to his withholding claim.
We reject Elsayed’s contention that the IJ used the wrong standard to deny him
withholding. Both the IJ and BIA clearly articulated the proper “clear probability” or
“more likely than not” standard. R. at 3, 107. See Kaita v. Att’y Gen. of the United
States, 522 F.3d 288, 296 (3d Cir. 2008) (explaining that “[i]n order to qualify for
withholding of removal, a petitioner must establish a ‘clear probability,’ that is, that ‘it is
more likely than not’ that her life or freedom would be threatened if returned to her
country due to her race, religion, nationality, membership in a particular social group, or
political opinion”). There is no evidence in the record that the agency tried to require
Elsayed to meet the “clear and convincing” standard he cites. In fact, the IJ and the BIA
rejected Elsayed’s claim on the basis of its failure to meet the less stringent standard for
winning asylum relief.
We also disagree with Elsayed that the BIA’s decision was no more than an
improper affirmance without opinion or a summary recitation of the IJ’s decision without
analysis. The BIA wrote a two-page opinion that included sufficient detail to show that it
reviewed the record and that it considered and analyzed Elsayed’s arguments before the IJ

-- 3 of 4 --

4
and on appeal. See Sevoian v. Ashcroft, 290 F.3d 166, 178 (3d Cir. 2002) (noting that the
BIA “‘is not required to write an exegesis on every contention’”) (citation omitted).
Lastly, Elsayed contends that the IJ did not take into account evidence in the
Department of State material in the record that supports his claim. However, the State
Department reports in the record simply do not include evidence to support a claim that
Elsayed or a person like him would be targeted as “Americanized” on return to Egypt
from the United States. Elsayed also cites information he provided on appeal to the BIA
to support his claim. Although the BIA noted that the new evidence did not establish that
people returning to Egypt from America are targeted for persecution for being
Americanized, the BIA did not consider it in deciding Elsayed’s claim. The BIA did not
err in declining to consider those documents because the BIA is precluded from engaging
in fact-finding on appeal. See 8 C.F.R. § 1003.1(d)(3)(iv).
In short, the three issues that Elsayed presents in his petition for review are without
merit. To the extent that Elsayed also raises a general challenge to the agency’s decision
to deny him withholding, we also hold that substantial evidence supports the BIA’s
decision that Elsayed failed to demonstrate a clear probability of future persecution.
Although persecution may occur amidst general civil strife, generalized violence does not
excuse the petitioner from demonstrating a nexus between the persecutory acts and a
protected category. See Vente v. Gonzales, 415 F.3d 296, 301 (3d Cir. 2005). Assuming,
as the agency did, that Elsayed was a member of a protected category, he did not show
the necessary nexus. For these reasons, we will deny the petition for review.

-- 4 of 4 --