Khalil v. Garland

97 F.4th 54

Amgad Samir Halim KHALIL, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.

No. 23-1443

United States Court of Appeals, First Circuit

March 29, 2024

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Saher J. Macarius, with whom Audrey Botros and Law Offices of Saher J. Macarius LLC were on brief, for petitioner.

Yanal H. Yousef, Trial Attorney, Office of Immigration Litigation, with whom Brian Boynton, Principal Deputy Assistant Attorney General, Civil Division, and Anthony P. Nicastro, Assistant Director, Office of Immigration Litigation, were on brief, for respondent.

Julian Bava, with whom Adriana Lafaille, Sabrineh Ardalan, Tiffany Lieu, American Civil Liberties Union Foundation of Massachusetts, Inc., and Harvard Immigration & Refugee Clinical Program, were on brief, for amici curiae.

Before Gelpí, Howard, and Rikelman, Circuit Judges.

RIKELMAN, Circuit Judge.

Amgad Samir Halim Khalil is an Egyptian citizen and a Coptic Christian. After he acquired sensitive, personal information about the family affairs of a Muslim religious leader, he was beaten and subject to demands that he convert to Islam. Several months later, Khalil came to the United States and applied for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). An Immigration Judge ("IJ") denied Khalil's asylum application, concluding that the attackers who beat him were motivated by his personal dispute with the imam, not Khalil's religion, and that other, separate experiences of harm did not amount to persecution. Under similar reasoning, the IJ also denied Khalil's withholding of removal claim. Finally, the IJ rejected Khalil's CAT claim. She held that Khalil had failed to establish that, if he returned to Egypt, the Egyptian government would more likely than not consent to or acquiesce in his torture by private actors. The Board of Immigration Appeals ("BIA") affirmed. Khalil now petitions this court for review, challenging the denial of his claims.

We grant the petition for review in part, vacate the decision of the BIA as to Khalil's asylum claim premised on mixed-motive persecution and as to his CAT claim, and remand for further proceedings consistent with this opinion.

I. BACKGROUND

A. Relevant Facts¹

Khalil was born and lived most of his life in Minya, Egypt, where he attended a Coptic Christian church each week. Because of gold jewelry that he wears and two visible tattoos of a cross on his hand, Khalil was recognizable to others in his community as a Coptic Christian. For many years before he left for the United States in 2016, Khalil worked in a hospital as a medical laboratory technician, where his duties included drawing blood from patients.

Khalil's asylum claim is premised largely on two, interconnected incidents that occurred while he was working in the hospital lab. One evening in early May 2016, an imam came to the lab to request bloodwork for his unmarried, fourteen-year-old daughter. The bloodwork revealed that the imam's daughter was pregnant. When Khalil informed the imam of the results, the imam became irate and demanded that Khalil change or destroy the results, which Khalil refused to do.

About one week later, a different female patient visited Khalil's lab requesting bloodwork and a "vaginal sample." After Khalil drew the patient's blood, he told her to sit behind a curtain in the room, change, and wait for a nurse to come in to collect the sample. The patient started to undress in front of Khalil and accused Khalil of sexually harassing her.

When Khalil opened the door to leave the room, he found four men standing in the hallway armed with sticks; based on their clothing, he identified them as members of the Muslim Brotherhood. The men stated that they were the brothers of the female patient Khalil allegedly sexually harassed and that they were there to defend her. They called Khalil an infidel, and they demanded that he convert to Islam or marry their sister if he ever wanted to leave. When Khalil refused to do so, the men "got so angry" that they "almost br[oke] [his] arm." They again demanded that Khalil convert, and when he again refused, they beat him. The violence quickly escalated. Each time Khalil refused to renounce his religion, the men grew angrier and intensified their attack, eventually punching Khalil's face, kicking his stomach, and beating him with sticks. When they finally stopped, the attackers told Khalil that he "should have list[en]ed to the imam and changed the results [of the blood test] for his daughter."

Khalil was treated at the hospital for the injuries he sustained during the attack. Because of the beating, he requested a one-year leave of absence from the hospital, which was approved. Around May 20, 2016, a week and a half after the incident, Khalil moved with his wife and three sons from Minya to Giza, a different area of Egypt, where some of his extended family lives.

Khalil resided in Giza for about two-and-a-half months. During that time, he received a phone call from a friend who had accompanied him to receive medical treatment after the beating. This friend told Khalil that his attackers were looking for him at Khalil's lab and that they threatened to kill Khalil if they ever found him unless he converted. Soon thereafter, Khalil left Egypt. He entered the United States on August 24, 2016, on a tourist visa.

B. Legal Proceedings

In December 2016, while his visa was still valid, Khalil applied for asylum, withholding of removal, and protection under the CAT. After an interview with an asylum officer, his asylum application was denied, and he was referred for removal proceedings. In January 2018, the United States Department of Homeland Security served Khalil with a notice to appear alleging that he had overstayed his visa and charging him as removable under the Immigration and Nationality Act ("INA"). Khalil conceded removability and renewed his prior application. His principal claims were that he had been persecuted on account of his Coptic Christian religion and that he would be tortured if forced to return to Egypt.

At his merits hearing before the IJ, the government cross-examined Khalil about his encounter with the imam and the subsequent beating.² Khalil testified that, in addition to the beating, he had been harmed due to his faith when individuals threw rocks and cursed at him while he was on his way to work or church. Along with his testimony, Khalil offered supporting documents for the IJ's consideration, including the declaration attached to his asylum application and a transcript of his asylum interview, in which he recounted many of the facts detailed above.

The IJ explicitly declined to make a credibility finding, although she noted that parts of Khalil's story seemed implausible and that there were some inconsistencies between his testimony, declaration, and asylum interview. Nevertheless, the IJ "assum[ed] that the events played out exactly as [Khalil] described" and that the beating at the hospital rose to the level of persecution. She denied Khalil's asylum application, however, on the ground that he had not established a nexus between the harm he suffered and a protected ground. The men attacked Khalil "because he did not listen to the [i]mam and would not destroy the [blood] test results," the IJ concluded. In her view, "[i]f [Khalil's] religion played any role in this attack[,] it was minor at best and clearly was not 'at least one central reason' for the persecution." The IJ therefore denied Khalil's asylum claim to the extent it was premised on the interaction with the imam and the subsequent beating. As to the incidents of verbal harassment and rock-throwing, the IJ presumed that those past events occurred because of Khalil's religion but concluded that they did not amount to persecution.

The IJ then addressed Khalil's remaining claims. She concluded that because Khalil had not shown he was entitled to asylum, he necessarily could not meet the higher burden of proof required for withholding of removal. Turning to his CAT claim, the IJ denied relief because she determined that Khalil failed to show it was more likely than not that he would be tortured with the consent or acquiescence of the Egyptian government if he returned to Egypt.

Khalil appealed to the BIA, which affirmed the IJ's ruling.³ Specifically, the BIA agreed with the IJ's determination that Khalil had not shown that he was beaten because of his religion. In affirming the IJ's nexus conclusion, it held that Khalil failed to meet his burden to demonstrate that his religion "played any more than an incidental role in motivating the men to attack him." The BIA also agreed that the incidents of verbal harassment and rock-throwing were not sufficiently extreme to constitute persecution. Like the IJ, it then reasoned that Khalil's inability to satisfy the lower burden of proof for asylum foreclosed his withholding of removal claim. Lastly, it held that the IJ's findings underpinning the denial of CAT protection were not clearly erroneous. The BIA therefore dismissed the appeal. Khalil timely petitioned this court for review.

II. STANDARD OF REVIEW

In immigration cases, our review "typically focuses on the final decision of the BIA." Loja-Tene v. Barr, 975 F.3d 58, 60 (1st Cir. 2020). But "to the extent that the BIA deferred to or adopted the IJ's reasoning, we review those portions of the IJ's decision" as well. Chavez v. Garland, 51 F.4th 424, 429 (1st Cir. 2022). We apply de novo review to the BIA's legal conclusions with "some deference to [the BIA's] interpretations of statutes and regulations related to immigration matters." Aldana-Ramos v. Holder, 757 F.3d 9, 14 (1st Cir. 2014). We apply the substantial evidence standard to factual findings, meaning that we will disturb such findings only if "in reviewing the record as a whole, 'any reasonable adjudicator would be compelled to conclude to the contrary.' " Barnica-Lopez v....