Debab v. INS

• Court: Court of Appeals for the First Circuit
• Decided: December 22, 1998
• Docket: 98-1266
• Status: Published

Opinion

USCA1 Opinion

                  United States Court of Appeals

                      For the First Circuit



                       ____________________



No. 98-1266



                         ABIDDINE DEBAB,



                           Petitioner,



                                v.



             IMMIGRATION AND NATURALIZATION SERVICE,



                           Respondent.



                       ____________________



                PETITION FOR REVIEW OF AN ORDER OF



                 THE BOARD OF IMMIGRATION APPEALS

                       ____________________



                              Before



                      Torruella, Chief Judge,



                 Bownes, Senior Circuit Judge,

                                

                   and Lynch, Circuit Judge.

                      ____________________

                                

     Maureen O'Sullivan, with whom Harvey Kaplan, Jerry Friedman,

and Kaplan, O'Sullivan & Friedman were on brief, for petitioner.



     Alison Marie Igoe, Office of Immigration Litigation, Civil

Division, United States Department of Justice, with whom

Christopher C. Fuller, Senior Litigation Counsel, Office of

Immigration Litigation, and Frank W. Hunger, Assistant Attorney

General, Civil Division, were on brief, for respondent. 

                                

                      ____________________

                                

                       December 22, 1998

                      ____________________

                                               LYNCH, Circuit Judge.  Abiddine Debab, an

    Algerian immigrant, seeks reversal of an order of the Board of

    Immigration Appeals.  That order affirmed the decision of the

    Immigration Judge denying his application for political asylum

    under the Immigration and Nationality Act ("INA")  208, 8

    U.S.C.  1158, and his application for withholding of

    deportation under INA  243(h), 8 U.S.C.  1253(h) (1996),

    amended by the Illegal Immigration and Immigrant Responsibility

    Act of 1996 ("IIRIRA"), Pub. L. No. 104-208,  307(a), 110

    Stat. 3009-546.  

      The BIA concluded that the IJ had correctly determined

    that Debab failed to establish either past persecution or a

    well-founded fear of future persecution on account of any of

    the five statutorily protected grounds -- "race, religion,

    nationality, membership in a particular social group, or

    political opinion."  8 U.S.C.  1101(a)(42).  Here Debab argues

    first that his evidence showed that threats he admittedly

    received came from members of the armed Islamic insurgency

    against the Algerian government.  This, he says, shows

    persecution on account of political opinion and social group

    membership.  Because there is substantial evidence to support

    the Board's determination against Debab on his first argument,

    we affirm.

    

                                I

                                        Debab, an Algerian citizen, came to the United States

    from Algeria on October 19, 1994 holding a visa as a non-

    immigrant visitor for pleasure.  His visa permitted him to

    remain in the United States until April 18, 1995.  In December

    1994, Debab applied for asylum under INA  208(a), which gives

    the Attorney General discretion to grant asylum to "refugees"

    as defined by the INA, and for withholding of deportation under

    INA  243(h), which requires the Attorney General to withhold

    deportation to a country in which an alien would be threatened

    with persecution on account of one or more of the five

    specified grounds.  Following the denial of Debab's asylum

    application, the Immigration and Naturalization Service ("INS")

    brought deportation proceedings against him.  At a proceeding

    before an IJ, Debab conceded deportability and reasserted his

    application for asylum and withholding of deportation.

      In a January 9, 1997 decision, the IJ found Debab

    ineligible both for asylum and for withholding of deportation,

    and agreed to grant him voluntary departure in lieu of

    deportation.  Debab appealed the IJ's decision to the BIA.  On

    February 13, 1998, the BIA affirmed.  Debab now appeals.

                                  II

      Debab's case is governed by the "transitional rules" of

    the IIRIRA.  That is because the BIA's decision dismissing his

    case was issued after October 31, 1996 but proceedings were

    brought against him prior to April 1, 1997 (IIRIRA's "Title

    III-A effective date").  See IIRIRA  309(c)(1), 110 Stat. at

    3009-625, as amended by Act of Oct. 11, 1997, Pub. L. No. 104-

    302,  2, 110 Stat. 3656, 3657; cf. Goncalves v. Reno, 144 F.3d

    110, 116 (1st Cir. 1998) (discussing the transitional rules). 

    In general, under those transitional rules, aliens appealing a

    denial of a decision to grant asylum under INA  208(a) or to

    withhold deportation under INA  243(h) must file a petition

    for review within thirty days under former INA  106.  SeeIIRIRA  309(c)(4), 110 Stat. at 3009-626 .  As Debab filed the

    requisite petition for review within thirty days, this court

  has jurisdiction, and the parties do not contend otherwise.  

                               III

                                     Debab's application for asylum arises against the

    backdrop of the ongoing violent conflict in Algeria between the

    government and its armed Islamic fundamentalist opponents.  In

    Meguenine v. INS, 139 F.3d 25 (1st Cir. 1998), we described the

    situation in Algeria:

       In 1989, Algeria opened its political process to

       parties other than its ruling secular party.  An

       Islamic fundamentalist party, the Islamic Salvation

       Front, soon became the most important opposition party. 

       In December 1991, the government held elections in two

       stages.  After the Islamic Salvation Front won the

       first stage, the military cancelled the second stage. 

       The civilian president resigned and a military junta

       took power.  Radical Islamic fundamentalists, who had

       recently formed the Armed Islamic Group, launched

       terrorist attacks to destabilize the new government. 

       The military government's forces fought back.  Both

       sides have acted with considerable brutality toward the

       civilian population.  So far, tens of thousands of

       Algerians have died in the conflict.

    

    Id. at 26.

       Before coming to the United States, Debab had worked

    for two years as an engineer for an Algerian state-owned

    chemical company named Asmidal.  Debab testified before the IJ

    that on three occasions in June and July of 1994 he received

    threats from two or three unknown men when he did not accede to

    their demands that he sabotage the place where he worked.  The

    men told Debab to close a gauge at the plant; doing so would

    apparently have caused an explosion.  All of the encounters

    occurred in the same local cafe.  At the first encounter, Debab

    refused to cooperate with the men.  Two men -- one of whom had

    been present at the initial encounter -- returned two weeks

    later.  Debab testified that at this second meeting, "they told

    me[,] why didn't you do what we told you[?]  You should do what

    we told you and if you don't you will see what will happen to

    you."  Debab again did not comply with the men's request. 

    Approximately three weeks later, three different men approached

    Debab in the cafe and made comments similar to those made

    during the first two encounters.  

       Debab testified that he believed the men who threatened

    him came from a single organization because they made similar

    comments and asked him to perform the same act -- sabotage the

    plant.  When asked why he believed that the men belonged to an

    organization, he commented, "[b]ecause there are problems in

    the country and automatically they are, they belong to an

    organization."  However, Debab stated that he did not know the

    organization to which the men belonged, and Debab's counsel did

    not ask him any other questions regarding the situation in

    Algeria, the basis of his understanding that the men were

    affiliated with an organization, or, indeed, the likely

    identity or characteristics of the organization.  

       Debab added that his fears were based on "personal

    observation plus what happened to friends of mine."  In

    particular, he stated, "I know somebody who, who lived in the

    same neighborhood who was killed by people that he did not know

    and he was threatened before [the killing]."  Debab also

    testified that he was afraid to go to the police in Algeria to

    report the incidents, "[b]ecause it would result in a big

    problem," in that the police might "take me for an interview

    and they may think that I'm with those people."

       After the third threat against him, Debab fled to the

    home of his uncle -- who lived approximately ninety kilometers

    from Debab -- "to hide."  He returned to his place of

    employment once, approximately twenty days later, to request

    medical leave.  Debab later took his annual vacation, remaining

    at his uncle's home, and then applied for a visa to the United

    States. 

       Debab's parents and five siblings remain in Algeria. 

    Debab testified that, to the best of his knowledge, no family

    members have had difficulties since his departure.

       The IJ found Debab's description of the events that

    occurred in Algeria to be credible.  However, the IJ found that

    Debab's claim that these events caused him to depart Algeria

    was not credible.  The IJ stated that "although there does

    appear to be a high level of terrorism and random acts of

    violence and as well, government sponsored or sanctioned

    mistreatment of individuals, there does not appear to be any

    support for [Debab's] claim that he himself is likely to be

    targeted for any kind of harm on one of the five reasons listed

    in the statute."  

       The IJ also found that the "case appears entirely pre-

    textual," because although she believed that Debab had told the

    truth regarding the three threats, she did not find Debab's

    "testimony to be truthful with respect that these three

    incidents cause[d] him to decide to depart his country and come

    to the United States to find safe haven."  The IJ's

    determination was based on her finding that Debab was unable

    "to communicate any theory as to why these men sought him out

    or who they were representing or why they would have targeted

    his employer."

       The BIA dismissed Debab's appeal but focused on

    different issues.  It upheld the IJ's determination that Debab

    had shown neither past persecution nor a well-founded fear of

    persecution on account of one of the five categories protected

    by the statute.  Noting that the 1995 State Department report

    on Algeria described a rise in both terrorist activity and

    crime in Algeria, the BIA stated that "[t]here is no indication

    that [Debab] was threatened on account of an enumerated ground,

    rather than due to an unknown criminal motive."

                                  IV

       On petition for review under old INA  106 -- the

    provision applicable in this case -- we review a BIA decision

    that a petitioner is ineligible for asylum and withholding of

    deportation to determine if the "agency's conclusions [are]

    'supported by reasonable, substantial, and probative evidence

    on the record considered as a whole.'"  Gailius v. INS, 147

    F.3d 34, 44 (1st Cir. 1998) (quoting INA  106(a)(4)); see alsoMeguenine, 139 F.3d at 27.  Although our review is deferential,

    the INS is not entitled to extreme deference.  See Gailius, 147

    F.3d at 44.  To reverse the BIA's factual findings this court

    must find "that the evidence not only supports that conclusion,

    but compels it."  INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1

    (1992).  In addition, "[t]he court reviews the BIA's legal

    conclusions de novo, although it gives deference, where

    appropriate, to the agency's interpretation of the underlying

    statute in accordance with administrative law principles." 

    Meguenine, 139 F.3d at 27. 

       In the present case, the BIA's rejection of Debab's

    asylum application turned on factual questions.  Debab makes a

    two-step argument: first, that the people who threatened him

    had to be Islamic terrorists; and second, that from this it can

    be inferred that the threats were based on political beliefs. 

    We need reach only the first step, an issue of fact.  The BIA

    found that Debab presented insufficient evidence to support a

    claim of past persecution or a reasonable fear of future

    persecution by Islamic militants.  Because of these findings,

    the BIA did not consider whether, given a showing of past

    persecution or a reasonable fear of future persecution by

    Islamic militants, Debab's status as a government employee

    would have provided sufficient nexus with one of the five

    protected categories.

    

                                  V

       Debab contends that the BIA's finding that there was no

    indication that the persons who threatened him were members of

    Algeria's armed Islamic insurgency was not supported by

    substantial evidence.

       Debab bore the burden of proof of demonstrating a well-

    founded fear of future persecution based on one of the grounds

    set forth in the statute.  See Civil v. INS, 140 F.3d 52, 55

    (1st Cir. 1998); 8 C.F.R.  208.13.  "In order to establish a

    well-founded fear of future persecution, a petitioner must have

    shown both a genuine subjective fear and an objectively

    reasonable fear of persecution on a protected ground. . . . 

    The objective component requires a showing 'by credible,

    direct, and specific evidence . . . facts that would support a

    reasonable fear that the petitioner faces persecution.'" 

    Civil, 140 F.3d at 55 (second alteration in original) (quoting

    Ravindran v. INS, 976 F.2d 754, 758 (1st Cir. 1992)).  

       Debab's argument is doomed by his own failure to

    articulate specific evidence to support his claims in his

    original I-589 asylum application, before the IJ, or before the

    BIA.  On his application for asylum, Debab listed the three

    incidents and stated that he feared for his life.  He also

    checked the box marked "yes" following question 21, "Have you

    or any member of your family, ever been mistreated/threatened

    by the authorities of your home country or by a group(s)

    controlled by the government, or by a group(s) which the

    government of your home country is unable or unwilling to

    control?"  But Debab failed to check any of the boxes -- race,

    religion, nationality, membership in a particular social group,

    political opinion, or other -- indicating the grounds of the

  threats against him.    Debab also did not indicate that he was

    a government employee.

       Debab's testimony before the IJ similarly lacked

    specificity.  Debab did not state the basis for the threats

    against him, much less present evidence that he had been

    targeted based on one of the statutory grounds.  The closest he

    came to making such a claim was in his statement that he

    believed that the people who threatened him all came from the

    "same organization" because "there are problems in [Algeria]

    and automatically [the people making the threats] . . . belong

    to an organization" and in his statement that he was afraid to

    go to the police in Algeria because he feared that the police

    "may take me for an interview and they may think that I'm with

    those people."  Debab's counsel failed to pursue the source of

    the threats or the activities of the insurgents in the area. 

       Asked by his counsel why he feared going back to

    Algeria, Debab stated only that "Algeria is getting worse and

    worse."  He based this observation "[o]n the news."  He did not

    say that he had received any additional individual threats and

    he stated that his family -- most of whom are government

    employees -- had not had any problems since he fled Algeria. 

    Debab noted one example of a neighbor "who was killed by people

    that he did not know" after "he was threatened," but did not

    state that the neighbor worked for Asmidal or any other

    government entity or that the threats against the neighbor had

  been similar to those against Debab.    Debab's counsel did not

    present a closing argument or argue that the "organization"

    which had threatened Debab was composed of Islamic terrorists

    or that such terrorists had repeatedly targeted government

    workers and facilities in Algeria.  Debab introduced no

  documentary evidence to support his claim.    The only evidence

    he presented was his own testimony and his asylum application.

       Debab's arguments to the BIA were slightly more

    focused.  In his notice of appeal, he stated that the IJ 

       failed to consider . . . that the type of random

       violence conducted by anti-government forces in

       Algeria, which the respondent fears, may amount to

       persecution on the basis of the government's apparent

       inability to prevent such violence and on the basis of

       the fact that political neutrality of the respondent

       may be viewed by the anti-government forces in Algeria

       as a form of implied political opinion favoring the

       government.

    

    Debab's brief to the BIA similarly focused on his claim that he

    was being targeted for an imputed political opinion.  Before

    the BIA, Debab drew a link between the activities of Islamic

    militants and the threats against him, stating that "[a]s far

    [as the militants] are concerned, any one [who] works for the

    government of Algeria . . . must be destroyed as an act of

    faith."  Yet he did not cite any evidence or even explicitly

    argue that the men who threatened him were Islamic militants. 

       Debab now argues that the administrative record permits

    only one reasonable conclusion: "that [the people who

    threatened him] were members of the armed Islamist insurgency

    which is seeking to overthrow the government of Algeria."  He

    contends that a reasonable person would have known that persons

    seeking to cause an explosion at a government-owned facility

    were anti-government terrorists.  It would certainly be

    reasonable to conclude that the primary beneficiaries of a plot

    to disrupt a government chemical plant would be terrorists. 

    But that is not the only reasonable conclusion and the agency

    was not required to draw that conclusion.

       Indeed, Debab did not even make this argument to the IJ

    or the BIA.  There has been a waiver.  "Issues not raised

    before the Board may not be raised for the first time upon

    judicial review of the Board's decisions."  Ravindran, 976 F.2d

    at 760; see also Alvarez-Flores v. INS, 909 F.2d 1, 8 (1st Cir.

    1990) ("Since petitioner did not raise the claim before the

    BIA, however, the doctrine of exhaustion of administrative

    remedies precludes it here.").  But even if there had not been

    a waiver, Debab could not prevail.  We wish not to be mistaken. 

    While Debab bore the burden of proof, it was not an impossible

    burden to meet.  Debab was not required to identify the men who

    threatened him.  See Gailius, 147 F.3d at 45 ("We have rejected

    any requirement that asylum applicants identify their

    persecutors when their fear is of clandestine groups.").  But

    he was required to do more than he did.  Debab failed even to

    argue that the persons making the threats were in any way

    connected to clandestine anti-government organizations and so

    is hard pressed, particularly under a substantial evidence

    test, to argue that this unargued connection is a conclusion

    which was compelled.

       As Debab argues, Matter of Mogharrabi, 19 I. & N. Dec.

    439 (BIA 1987), establishes a reasonable person standard in

    asylum cases.  See id. at 445 (stating that "an applicant for

    asylum has established a well-founded fear if he shows that a

    reasonable person in his circumstances would fear

    persecution"); see also Gailius, 147 F.3d at 44-45 (applying

    Mogharrabi).  Mogharrabi also establishes that an asylum

    applicant's own testimony may suffice to support an asylum

    claim.  See Mogharrabi, 19 I. & N. Dec. at 445.  But Mogharrabiinstructs that such testimony must be "sufficiently detailed to

    provide a plausible and coherent account of the basis for [the

    alien's] fear."  Id.  Debab's testimony lacked sufficient

    detail to compel the IJ or the BIA to determine that Debab had

    a reasonable fear of Islamic terrorists.   

       Debab contends that in the proceedings before the IJ he

    "was never asked 'what kind of organization threatened him,'"

    or "why he thinks [those making the threats] targeted him." 

    Debab protests that had such questions been asked, "the answer

    may have explicitly provided the nexus that the Board found

    lacking."  But Debab had more than ample opportunity to make

    such arguments.  In sum, there is no basis to say that the

    BIA's decision fails for want of substantial evidence.

                                  VI

       Debab urges this court to require the BIA "to timely

    rule" on Debab's Motion to Reopen. "A motion to reopen

    proceedings shall not be granted unless it appears to the Board

    that evidence sought to be offered is material and was not

    available and could not have been discovered or presented at

    the former hearing . . . ."  8 C.F.R.  3.2(c)(1) (1998). 

  Debab filed a Motion to Reopen on March 13, 1998.    The Motion

    to Reopen is, to date, still pending before the BIA.  Debab

    contends that he has introduced additional evidence along with

    the Motion to Reopen that provides proof of the nexus between

    the threats against him and the five statutory grounds.  He

    also claims that such evidence was not available at the time of

    the proceedings before the IJ.

       Debab does not contend that the BIA has unreasonably

    delayed action on his Motion to Reopen.  Cf. 5 U.S.C.  706(1). 

    It would, of course, be in the interests of justice if the BIA

    were to act quickly, but we do not, under these circumstances,

    find authority to compel the agency to act.  Debab also fails

    to cite any authority that supports his contention that we have

    the power to review a pending Motion to Reopen.  Cf. 5 U.S.C.

     704.

                                 VII

       The horrors of Algeria's civil war are real and not to

    be minimized.  There is reason to be sympathetic to Debab's

    plight, as well as to the plight of other Algerian citizens. 

    The limits on Congress's willingness to grant asylum are also

    real, and these judgments are committed to Congress. 

    "Generally, evidence of widespread violence and human rights

    violations affecting all citizens is insufficient to establish

    persecution."  Ravindran, 976 F.2d at 759; see also Meguenine,

    138 F.3d at 29 ("[I]t is the law that general fears (even 

    'well-founded' ones) of future harm from political upheaval or

    terrorist violence are not sufficient to establish eligibility

    for asylum under  208(a) of the INA.").  There is substantial

    evidence to support the BIA's determination that Debab failed

    to prove past persecution or a well-founded fear of persecution

    on one of the grounds enumerated in the statute.  We affirm the

    BIA's decision.