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.