Chaib v. Ashcroft

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
FEB 14 2005
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
FOR THE TENTH CIRCUIT

NOUREDDINE CHAIB,
Petitioner,
v. No. 02-9582
JOHN ASHCROFT, Attorney General,
Respondent.

PETITION FOR REVIEW OF A
DECISION OF THE BOARD OF IMMIGRATION APPEALS
(No. A78-579-254)

Laura L. Lichter of Lichter & Associates, P.C., Denver, Colorado, for Petitioner.

Arthur L. Rabin, Attorney, Office of Immigration Litigation (Peter D. Keisler,
Assistant Attorney General, Civil Division; and Mark C. Walters, Assistant
Director, with him on the brief), U.S. Department of Justice, Civil Division,
Washington, D.C., for Respondent.

Before SEYMOUR, McKAY, and MURPHY, Circuit Judges.

McKAY, Circuit Judge.

In this appeal, Noureddine Chaib (“Petitioner”) challenges the Board of

Immigration Appeals’ (“BIA”) affirmance without opinion of an Immigration

Judge’s (“IJ”) denial of his application for asylum pursuant to 8 U.S.C. § 1158,
restriction on removal pursuant to 8 U.S.C. § 1231, and restriction on removal

pursuant to the Convention Against Torture (“CAT”).

Petitioner, a native-born Algerian, entered the United States on October 1,

1999, because of a fear of persecution in his homeland. Petitioner stayed in this

country longer than authorized and was charged with removability pursuant to 8

U.S.C. § 1227(a)(1)(B). At a hearing before the IJ, Petitioner conceded to the

charge of removability but sought asylum, withholding of removal, and

withholding of removal pursuant to CAT based on past persecution and a fear of

future persecution by the Algerian government and armed insurgent groups.

Petitioner alleged that his persecution began when he discovered

wrongdoing by a co-worker at the Public Treasury, a government entity.

Petitioner was a computer engineer at the Public Treasury and, as such, was

involved in overseeing the security of financial transactions. In August 1997,

while reviewing employee computer activities, Petitioner discovered that a co-

worker was performing unauthorized transactions. When confronted, the co-

worker said he would explain everything later at his house. Petitioner went to the

co-worker’s house and was met there by two other men who were associated with

the Islamic Salvation Front (“FIS”), an armed insurgent organization.

During this meeting, Petitioner was pressured to join the FIS and assist in

transferring funds to the Armed Islamic Group (“GIA”), a somewhat-related

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armed insurgent group. It was at this time that Petitioner discovered the nature

and extent of the co-worker’s activities. The co-worker was taking money from

accounts at the Public Treasury and diverting it, for a short period of time, to

accounts for the insurgent group. Because the money was only transferred for a

short period of time, the records at the Treasury would report it as a mistaken

transaction, but, in the interim, the transferred funds would garner significant

money in interest income for the insurgent organization.

During the meeting, Petitioner was allegedly told by one of the two men

that Petitioner and his family would be killed if he did not help in the money-

transfer scheme. In addition, the men threatened to punish mercilessly both

Petitioner and his family if he reported his co-worker’s activities to the

government. Afraid to refuse them on the spot, Petitioner asked for time to

consider his options. Soon thereafter, he obtained a visa and went to France to

think things over. Upon arriving in France, Petitioner decided that it was not safe

for him because of the large number of Algerian GIA members living there.

Petitioner next obtained a visitor’s visa to the United States. While in the

United States, Petitioner determined to write a letter to his supervisor at the

Public Treasury to explain his absence and the improper scheme that was

occurring at the Treasury. Prior to writing the letter, Petitioner learned from his

mother that the two men from the FIS were arrested because of their involvement

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in the money-transferring scheme and that these men had implicated Petitioner.

In addition, he learned that government agents had been to his house in search of

him, did considerable damage to the house, and had beat his brother. After

learning of this, Petitioner lost all contact with his family.

The administrative record contains the 1999 State Department’s Country

Report on Human Rights Practices for Algeria. The Report states generally that

Algeria has a poor human-rights record. Of particular importance, the report

notes that “[t]he security forces committed extrajudicial killings, routinely

tortured or otherwise abused detainees, and arbitrarily arrested and detained, or

held incommunicado, many individuals suspected of involvement with armed

Islamist groups . . . .” A.R. at 124 (emphasis added). “The Constitution prohibits

arbitrary arrest and detention; however, the security forces continued to arrest

arbitrarily and detain citizens.” Id. at 127 (emphasis added).

Both the Constitution and legislation ban torture and other cruel,
inhuman, or degrading treatment; however, according to local human
rights groups and defense lawyers, the police resort to torture when
interrogating persons suspected of being involved with, or having
sympathies for, armed insurgency groups. There were several
credible reports of torture at the Algiers police facility, called
Chateau Neuf.

Id. at 126-27 (emphasis added).

Having the above evidence before him, the IJ denied all of Petitioner’s

requests. In so doing, the IJ found that Petitioner was not subjected to

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persecution in the past 1 and that his claim of future persecution by either the

government or the FIS was not well-founded because Petitioner lacked credibility.

Petitioner raises three issues on appeal: (1) that the BIA’s summary

affirmance was unconstitutional as applied, (2) that the IJ failed to support his

credibility finding with substantial evidence, and (3) that the IJ’s failure to

specifically address his CAT claim is reversible error. In addition to countering

the above arguments, Respondent contends that Petitioner waived his right to

appeal the IJ’s credibility finding because Petitioner improperly incorporated by

reference this argument in his opening brief. Resp’t Br. at 22-23. In light of this

Court’s order permitting supplemental briefing, combined with Petitioner’s short

supplemental brief articulating his argument regarding the IJ’s allegedly improper

credibility finding, the general justifications for not permitting incorporation by

reference are not present. See, e.g., Gaines-Tabb v. ICI Explosives, USA, Inc.,

160 F.3d 613, 624 (10th Cir. 1998) (explaining that courts generally disfavor

incorporation by reference because doing so allows practitioners to circumvent

page limitations and complicates the judge’s responsibilities). This Court will

therefore address Petitioner’s credibility argument.

Petitioner’s claim that the BIA’s summary affirmance procedure is

1
Petitioner did not appeal the IJ’s decision that Petitioner was not subjected
to persecution in the past. Therefore, this opinion does not address the propriety
of that ruling.

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unconstitutional as applied to this case is two-fold. First, Petitioner contends that

the BIA did not follow its own rules in affirming Petitioner’s case without

opinion. Second, he argues that the BIA’s summary affirmance process does not

provide for meaningful review.

Petitioner’s first contention, mislabeled as a constitutional argument, is not

reviewable by this Court: “[T]he decision to affirm without opinion falls squarely

into the category of decisions committed to the agency’s discretion and beyond

our jurisdiction to review.” Tsegay v. Ashcroft, 386 F.3d 1347, 1356 (10th Cir.

2004). Petitioner’s second “constitutional” argument ignores the other holding of

Tsegay where this Court specifically rejected the petitioner’s argument that the

BIA’s summary affirmance procedure denied her meaningful review. See id. at

1353. We based that decision on Yuk v. Ashcroft, 355 F.3d 1222 (10th Cir.

2004), and reasoned that the IJ’s opinion provided the required reasoned agency

decision needed to satisfy the Fifth Amendment. Id. That reasoning and holding

are equally applicable to this case.

Before addressing the other issues raised by Petitioner in this appeal, a

brief background of the laws under which Petitioner sought protection is helpful.

“A request for asylum involves a two-step process.” Yuk, 355 F.3d at 1232

(quotation omitted). The applicant must first show that he is eligible for asylum

by establishing that he is a refugee. See id. Refugee status is statutorily defined

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as “any person who is outside any country of such person’s nationality . . . who is

unable or unwilling to return to, and is unable or unwilling to avail himself or

herself of the protection of, that country because of persecution or a well-founded

fear of persecution on account of race, religion, nationality, membership in a

particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). If the

applicant satisfies that definition, the Attorney General still has discretion either

to grant or deny asylum. See id. at 1233. In this case, the IJ determined, at the

first step, that Petitioner failed to establish that he was a refugee and, thus, held

he was ineligible for asylum.

There are three types of persecution sufficient to support a refugee

designation: (1) he has a well-founded fear of future persecution, (2) he suffered

past persecution sufficient to give rise to a presumption of future persecution, or

(3) he suffered past persecution so severe that it supports an unwillingness on the

applicant’s part to return to that country. Id. at 1232-33 (internal citations

omitted). In this case, Petitioner argues that the IJ’s finding that he lacked

credibility was not supported by substantial evidence as to his claim for well-

founded fear of future persecution. Persecution is “the infliction of suffering or

harm upon those who differ (in race, religion, or political opinion) in a way

regarded as offensive and requires more than just restrictions or threats to life and

liberty.” Woldemeskel v. INS, 257 F.3d 1185, 1188 (10th Cir. 2001) (citation and

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internal quotations omitted).

Asylum is not the only protection offered to applicants who claim some

form of persecution in their homeland. To obtain a restriction on removal

pursuant to 8 U.S.C. § 1231, an alien must “establish a clear probability of

persecution in that country on the basis of race, religion, nationality, membership

in particular social group, or political opinion.” Elzour v. Ashcroft, 378 F.3d

1143, 1149 (10th Cir. 2004). Differentiating a claim for restriction on removal

from asylum is the more demanding standard of proof required for restriction

claims. Asylum requires proof of a “well-founded fear” of persecution whereas

restriction requires proof that persecution is “more likely than not.” Id.; see also

INS v. Stevic, 467 U.S. 407, 424 (1984) (“The question under [the clear

probability] standard is whether it is more likely than not that the alien would be

subject to persecution.”).

“The Convention Against Torture provides another basis for restricting

removal to a particular country.” Elzour, 378 F.3d at 1150. Relief pursuant to

CAT requires proof that it is more likely than not that the petitioner will be

tortured if removed to that country. 8 C.F.R. § 208.16(c)(2) (2004). The

protection provided by CAT is in some aspects broader, but narrower in others,

than restriction on removal under 8 U.S.C. § 1231. See Elzour, 378 F.3d at 1150.

Although both require petitioner to meet the more-likely-than-not standard, it is

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for different purposes; restriction on removal under 8 U.S.C. § 1231 requires

proof of persecution on account of a protected class, whereas CAT is not

concerned with the reasoning of the persecution, just whether the persecution

arises to the level of torture. 2 Id. (“The alien must show that the persecution at

issue would be so severe as to rise to the level of torture, but he or she need not

show that it would be on account of a protected classification.”).

In the instant case, the IJ rejected Petitioner’s requests because “his story

[did] not have a ring of truth to it, particularly his claim that he fears persecution

at the hands of the government because they think he was guilty of these crimes.”

A.R. at 53. At its core, the IJ’s decision is based on an adverse credibility

finding. Although classified as a credibility determination, it is important to

clarify the IJ’s ruling. The IJ stated that Petitioner’s story did not have a ring of

truth, but, based on the reasons given, it is clear that the IJ was referring to the

reasonableness of Petitioner’s fear of returning to Algeria, not disbelief in the

underlying facts which supported that fear. For example, in support of his finding

regarding persecution at the hands of the Algerian government, the IJ stated that

the banking scheme reported by Petitioner is not

ingenious at all and it is something that a modern computer system
certainly can tap into and find out who is the guilty party. As a result

2
The Code of Regulations provides an in-depth explanation of what
constitutes torture under CAT. See 8 C.F.R. § 208.18(a).

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 I find it is not credible his assertions that the government is looking
for him and that they believe he is responsible because of these two
people having reported him.

A.R. at 52.

An IJ’s credibility determination is reviewed with deference, but the court

must not blindly accept that finding; the IJ must provide specific, cogent reasons

for not believing the petitioner. Elzour, 378 F.3d at 1152 (citations and quotation

omitted). A proper incredibility determination can be based on inherent

inconsistencies in the applicant’s testimony, lack of detail, or implausibility of the

applicant’s story; in addition, it can be based on testimonial demeanor. Id. at

1152-53 (citations omitted).

The only reason cited by the IJ for disbelieving Petitioner in this case is the

implausibility of his fear of persecution. “An IJ’s finding that an applicant’s

testimony is implausible may not be based upon speculation, conjecture, or

unsupported personal opinion.” Id. at 1153. Rather, it must be supported by

substantial evidence in the record. Id. at 1150. The IJ gave the following reasons

for not crediting Petitioner’s testimony: (1) it would be easy for Petitioner to

assert his innocence, (2) it was obvious he was not responsible for the crime, (3)

it would be easy for him to defend himself by pointing to existing records (the

same records that led him to suspect his co-worker of wrong-doing), and (4) it

would be easy for the government to discover the guilty party in light of current

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technology. A.R. at 51-52. Despite the plethora of reasons given, not one is

supported by record evidence. The IJ’s decision was in large part based on the

ease in which Petitioner would have been able to assert his innocence by availing

himself of the computer records that he used to discover the wrongdoing of his

co-worker. This finding makes several unsupported assumptions and

demonstrates a view of the Algerian form of due process inconsistent with that

described in the State Department’s 1999 report.

The government asserts that, notwithstanding the lack of direct support for

the above findings, the IJ can “apply his common sense to Petitioner’s testimony

describing how the Algerian computer records revealed [the co-worker’s] illegal

fund transfers[] to find Petitioner not credible . . . .” Resp’t Supp. Br. at 20-21.

It is true that it is within the IJ’s province to make reasonable conclusions based

on facts in the record, and this Court will not disturb those conclusions if

supported by the record.

The evidence in the record regarding the Public Treasury’s computer

system is very brief and vague. The record does not reveal whether the computer

records reviewed by Petitioner to discover the money-transfer scheme still exist.

Indeed, the record is vague at best in describing the nature of the hierarchical

structure at the Public Treasury and the computer hardware and software system

utilized by the institution. Neither Petitioner nor Respondent presents adequate

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evidence as to the interworking of the computer system in place at the Public

Treasury. Failure to provide that evidence renders it nearly impossible to make

any findings related to the computer system other than those based on pure

conjecture. The IJ effectively taking judicial notice of the type and sophistication

of the computer system utilized by the Public Treasury is improper. In addition,

there is no evidence in the record to support a finding that Petitioner could easily

prove his innocence by tracing the illicit transfers to his co-worker. Again, such a

conclusion would require a basic understanding of both the hierarchical structure

of the Public Treasury and the computer system used, neither of which is

adequately found in the record. In addition, based on the rather incomplete record

before the IJ, it appears that there is support for Petitioner’s fear of future

persecution based solely on his being suspected of aiding the FIS. The State

Department’s report indicates that the government has a history of persecuting

and/or torturing those who are suspected–not yet proven guilty–of aiding armed

insurgent groups like the FIS.

The fact that the IJ found otherwise demonstrates that he viewed the

Algerian form of due process through an American lens. There is ample evidence

in the record to support a fear of persecution based on suspicion of allegiance to

an armed insurgent group regardless of the truth of the accusations. The realities

of Algerian society differ greatly from ours where one is innocent until proven

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guilty. As noted in the State Department’s 1999 report: “The security forces

committed extrajudicial killings, routinely tortured or otherwise abused detainees,

and arbitrarily arrested and detained, or held incommunicado, many individuals

suspected of involvement with armed Islamist groups . . . .” A.R. at 124

(emphasis added).

The IJ also discredited Petitioner’s fear of persecution by the FIS:

The government has been in a death struggle with these groups for
many years and it is quite obvious that if they could lay their hands
on two people stealing money for their causes, certainly [the
government] would give [Petitioner] protection as a witness in the
case and protection for his job. They are in the business of trying to
eliminate the FIS and GIA and one would think that if they can get
information to prosecute them they would do everything they could
to protect their source so that in the future other witnesses would not
be afraid to come forward.

A.R. at 52-53. Although the State Department’s 1999 report on Algeria confirms

that the Algerian government has long been at odds with the FIS, see, e.g., id. at

123, the record contains no other evidence even suggesting, let alone supporting,

the IJ’s reasons for discrediting Petitioner’s fears involving the FIS. There is no

evidence in the record to support the IJ’s idea that the Algerian government has

any form of a witness protection program to encourage citizens to come forward

and testify against armed insurgent groups. Although institution of a witness

protection program would likely be of some assistance to the Algerian

government in its struggle with armed insurgent organizations, there was no

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evidence before the IJ to support a finding of the existence of such a program.

Again, it appears that the IJ viewed the state of Algeria’s system of due process

through an American lens, ignoring the realities faced by Algerian citizens.

The State Department’s 1999 report is in direct contradiction to the IJ’s

finding regarding the government’s ability to control the group Petitioner claims

to fear:

Security forces usually reach the sites of massacres too late to
prevent or halt civilian casualties. . . . Although the number of
security incidents involving armed groups and terrorists decreased
significantly[,] . . . these opposition forces committed numerous
serious abuses and killed thousands of civilians. . . . [S]uch abuses
and killings increased in the second half of [1999]. Armed terrorists
continued their widespread campaign of insurgency, targeting
government officials . . . .

A.R. at 124.

In sum, this Court finds that the IJ failed to support with substantial

evidence his finding that Petitioner lacked credibility. However, in order to

provide the agency an opportunity to further explain or supplement the record, we

reverse the BIA’s decision summarily affirming the IJ’s order and remand to the

BIA for proceedings consistent with this opinion. See Elzour, 378 F.3d 1154

(internal citations omitted). In light of this Court’s decision to remand the case,

the Court does not address the IJ’s alleged error in not specifically addressing

Petitioner’s claim under CAT or the government’s claim that the IJ’s credibility

finding precludes review of Petitioner’s CAT claim. Included in this Court’s

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remand order is the direction to not only consider but also specifically address

Petitioner’s CAT claim.

REVERSED and REMANDED to the BIA for further proceedings

consistent with this opinion.

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