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Man Tied to Hamas Must Go Despite Torture Fears

(CN) - A Palestinian computer scientist whose laptop contained jihadist videos and propaganda is likely to engage in terrorist activity if allowed to stay in the United States, the 9th Circuit ruled. Tareq I.J. Abufayad had claimed he would be tortured if deported back to Palestine.

Abufayad, a Saudi Arabian-born Palestinian, attempted to enter the U.S. from Egypt in 2007 after his resident father sponsored his immigrant visa. A Customs and Border Protection agent randomly approached Abufayad at the San Francisco International Airport and, after finding him "confrontational," decided to inspect his laptop.

The agent found various "anti-American" materials on Abufayad's computer, including "jihadist videos, audio clips, songs, pictures, rhetoric, training manuals and justifications of violence," according to the agent's report, quoted in Wednesday's ruling.

An investigation of Abufayad's history found that he had ties to Hamas and that his cousin had carried out a Hamas-sponsored suicide attack in Gaza in 2001.

Abufayad admitted that the had lived with four Hamas members while attending Bir Zeit University in the West Bank, and that he had been approached more than once by Hamas recruiters. He denied that he was a member of Hamas or that he was sympathetic to jihadist philosophy, claiming that the materials were for a school project and he downloaded them merely out of curiosity about current events.

Officials eventually charged Abufayad as removable, arguing that there were reasonable grounds to believe that he was likely to engage in terrorist activities.

To back up its claims, the government offered the testimony of FBI Special Agent Robert Miranda, who argued that Abufayad was a prime candidate for Hamas recruitment. His university degree in computer science made him especially attractive to recruiters, Miranda said.

An immigration judge found that the jihadist materials found on Abufayad's laptop, combined with Miranda's testimony, provided enough evidence to suggest that he was likely to engage in terrorist activity if allowed to stay, and ordered his removal.

Abufayad then applied for protection under the Convention Against Torture, arguing that he would be targeted for torture by Israel or the Palestinian Authority if the United States labeled him a terrorist.

In light of those claims, the immigration judge deferred the removability ruling. On appeal, the Board of Immigration Appeals affirmed the judge's ruling that Abufayad was a potential terrorist, and rejected his torture claims.

The federal appeals panel in San Francisco on Wednesday agreed.

"Agent Miranda explained that his opinion that Abufayad would likely engage in terrorist activity, if given the chance, was cumulative and based on Abufayad's background, connections, and apparent proclivities," Judge Ronald Gould wrote for the three-judge panel. "Agent Miranda found Abufayad's connections with his hometown [Gaza] significant because the town is considered a Hamas stronghold. Abufayad would be a 'known entity' to Hamas because he had attended a mosque whose imam was a Hamas leader. That Abufayad had two first cousins involved in Hamas's military operations would indicate to Hamas that 'his family is one to be trusted.' Agent Miranda also found Abufayad's admission that he respected opinions of Hamas leaders to 'speak[ ] volumes about his [political] leanings.'"

Gould added that Abufayad had failed to show evidence that he was entitled to protection from torture.

"Even if the Israeli authorities believe Abufayad to be a Hamas supporter as a consequence of his immigration proceedings, the record does not compel a conclusion that he faces any significant risk of torture by the Israeli government," he wrote. "The State Department country reports for 2006 and 2007 indicate that Israel uses 'moderate physical pressure' against detainees thought to possess information about imminent terrorist attacks. There is no evidence in the record suggesting that Abufayad would be thought to fit in this category, and the record does not indicate that Hamas sympathizers face a risk of cruel and inhuman treatment."

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