Mekhoukh v. Ashcroft

United States Court of Appeals
For the First Circuit

Nos. 03-1037, 03-1372

ABDEL HAMID MEKHOUKH,

Petitioner,

v.

JOHN ASHCROFT, ATTORNEY GENERAL

Respondent.

ON PETITIONS FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS

Before

Torruella, Circuit Judge,
Cyr, Senior Circuit Judge,
and Oberdorfer,* Senior District Judge.

Gerald D. Wall, with Greater Boston Legal Services on brief,
for petitioner.
Paul Fiorino, Attorney, with Peter D. Keisler, Assistant
Attorney General, and Richard M. Evans, Assistant Director, Office
of Immigration Litigation, on brief, for respondent.

February 13, 2004

*
Of the District of the District of Columbia, sitting by
designation.
 OBERDORFER, Senior District Judge. Abdel Hamid Mekhoukh,

a native and citizen of Algeria, petitions for review of a decision

of the Board of Immigration Appeals, denying his application for

asylum, withholding of removal, and relief under Article 3 of the

United Nations Convention Against Torture. We deny the petition

for review.

I. BACKGROUND

This case arises against the background of the ongoing

and well-documented turmoil that has engulfed Algeria since late

1991. See generally Bureau of Democracy, Human Rights and Labor,

United States Department of State, 1999 Country Reports on Human

Rights Practices – 1999: Algeria (Feb. 25, 2000) (AR 1014-1031)

(“1999 Country Reports”); Bureau of Democracy, Human Rights and

Labor, United States Department of State, Algeria – Profile of

Asylum Claims and Country Conditions (June 1998) (AR 995-1013)

(“1998 Profile of Asylum Claims”); see also Mediouni v. INS, 314

F.3d 24, 25 (1st Cir. 2002); Debab v. INS, 163 F.3d 21, 23 (1st

Cir. 1998); Meguenine v. INS, 139 F.3d 25, 26 (1st Cir. 1998). The

conflict began when the ruling party, the National Liberation Front

(FLN), foreseeing a loss to an Islamic fundamentalist party, the

Islamic Salvation Front (FIS), cancelled the second round of

scheduled democratic elections. The military then took power from

the civilian President. These events caused significant unrest in

the country. Since then, the government of Algeria has been

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engaged in a brutal conflict with radical Islamic parties,

resulting in over 100,000 deaths. Torture and other human rights

abuses, including the killing of innocent civilians, have been

perpetrated by both the armed insurgents and the government’s

security forces. See 1999 Country Reports 1 (AR 1014) (“The

security forces committed numerous serious human rights abuses.”);

1998 Profile of Asylum Claims 5 (AR 999) (“Security forces commit

serious abuses. They were responsible for numerous disappearances,

carried out extra-judicial killings, routinely tortured and

otherwise abused detainees, and arbitrarily arrested and detained

or held incommunicado many individuals suspected of involvement

with armed Islamic groups.”); see also Meguenine, 139 F.3d at 26

(“Both sides have acted with considerable brutality toward the

civilian population.”).

Mekhoukh, an ethnic Berber,1 was born on April 28, 1967,

in Algiers, Algeria. During the years he lived in Algeria, from

birth until 1997, he supported Berber causes, but he was not an

activist. On one occasion, around 1985, when he was about 18, he

met, and had his picture taken with Lounes Matoub, a popular

entertainer and Berber activist who was assassinated by Islamic

radicals in 1998. While he was in Algeria, Mekhoukh suffered no

1
The Berbers were the original inhabitants of Algeria. Bureau
of Democracy, Human Rights and Labor, United States Department of
State, Algeria – Profile of Asylum Claims and Country Conditions 11
(June 1998) (AR 1005).

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persecution on account of his Berber ethnicity or his support of

Berber causes.

In approximately 1988, Mekhoukh received his first draft

notice. Mekhoukh was then enrolled at a university and eligible

for an educational deferment. In late 1991, the university

temporarily closed due to political unrest in the country. See

infra. When it reopened in the spring of 1992, Mekhoukh did not

return. At that point, he was no longer entitled to an exemption

from military service, but he continued to avoid his military

obligation by filing false educational certificates. While he was

in Algeria, Mekhoukh never claimed that he had a conscientious

objection to military service in the Algerian military; nor did he

ever inquire about the possibility of alternative service.

Mekhoukh received draft notices after he left the university, but

the record does not establish when those notices were received, how

many were received, or their content.2 Mekhoukh remained in

Algeria, working, until 1997. During those five years, between

1992 and 1997, Mekhoukh experienced no negative consequences as a

result of his fraudulent avoidance of military service.

When the conflict in Algeria started in 1991, Mekhoukh

did not align himself with either the ruling party or the FIS. His

2
The immigration judge accepted Mekhoukh’s proffer that he had
received additional draft notices. We note, however, that copies
of draft notices were not among the additional documents submitted
by Mekhoukh with his appeal to the Board.

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position was, and remains today, that the government should not

have cancelled the elections and that the FIS had the right to rule

if democratically elected. While he was in Algeria, Mekhoukh

suffered no persecution on account of these political opinions.

Mekhoukh left Algeria in 1997 and reached the United

States in 1998, entering on a forged French passport. After

leaving the United States for New Zealand, where his application

for asylum was denied, he reentered the United States in October

1999. He was detained by the INS and determined to be deportable.

He then applied for asylum, for withholding of deportation, and for

protection under the United Nations Convention Against Torture.

After a number of continuances, the retention and firing of one

attorney, and several changes of venue (from Los Angeles to Houston

to Boston), Mekhoukh finally filed his official application for

asylum, withholding of removal and protection under the Convention

Against Torture on October 20, 2000. (His application for asylum

was just barely within the one-year time limit that applies to

asylum claims). At the initial proceeding, Mekhoukh was advised

that he had the right to be represented by counsel at his hearing,

although not the right to appointed counsel. He was given a list

of persons and organizations he could contact for help in finding

an attorney. A hearing date of February 8, 2001, was set, giving

him over three months to find counsel and prepare.

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 On February 8, 2001, Mekhoukh appeared for his hearing

late and without counsel. He asked for a continuance, saying that

he had important documents on the way and that he wanted to obtain

an attorney. The immigration judge denied his motion, noting that

Mekhoukh had been in the country for more than a year, that three

months had passed since he had filed his official application, and

that it would be unfair to other applicants to squander the three

hours she had set aside for his case. However, she accepted his

proffer as to what the additional documentary evidence would show.

An interpreter was present at the hearing, although Mekhoukh

himself testified mostly in English.

At the conclusion of his hearing, the immigration judge

issued an oral decision denying Mekhoukh’s application for asylum,

for withholding of deportation, and for protection under the United

Nations Convention Against Torture. She concluded that Mekhoukh

failed to meet his burden to show a well-founded fear of

persecution, and necessarily failed to show a likelihood of

persecution, on account of his ethnicity, political opinions,

and/or his avoidance of military service.

Mekhoukh appealed to the Board of Immigration Appeals.

He provided the Board with additional documentary evidence,

including a copy of his forged school certificate for the year

1994-95, a copy of his picture with Matoub, and copies of a number

of government reports and media publications, documenting the

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violence and human rights abuses that have been endemic in Algeria

since 1991. He did not submit copies of any draft notices. He

asked the Board either to reverse on the existing record or to

remand his case to the immigration judge for further consideration

in light of this additional evidence. On December 4, 2002, the

Board of Immigration Appeals affirmed, without opinion, making the

immigration judge’s decision the final agency determination. See

8 C.F.R. § 1003.1(e)(4).

Mekhoukh moved for reconsideration, contending that the

Board had failed to consider his new evidence and that he was

entitled to a remand to permit the immigration judge to consider

it. He also argued that the Board’s decision to affirm without

opinion was improper where new evidence was proffered. The Board

denied the motion on February 13, 2002. It stated that it had

considered Mekhoukh’s new evidence prior to affirming the

immigration judge’s decision. It further noted that to the extent

Mekhoukh was objecting to the fact that it affirmed without

opinion, such motions were barred by regulation. See 8 C.F.R. §

1003.2(b)(3).

Mekhoukh petitions for review of the denial of his

application for asylum, for withholding of deportation, and for

protection under the Convention Against Torture.

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 II. DISCUSSION

We have jurisdiction over Mekhoukh’s appeal pursuant to

8 U.S.C. § 1252(b)(4).

A. Standard of Review

Our review of an order of removal is circumscribed by

statute. A court of appeals must decide a petition for review

“only on the administrative record on which the order of removal is

based.” 8 U.S.C. § 1252(b)(4)(A). “[T]he administrative findings

of fact are conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary,” id. at 1252(b)(4)(B)

(emphasis added), and “a decision that an alien is not eligible for

admission to the United States is conclusive unless manifestly

contrary to law,” id. at 1252(b)(4)(C).

B. Asylum

In order to be eligible for asylum, an alien must be a

“refugee within the meaning of section 1101(a)(42)(A) of [Title 8

of the United States Code].” 8 U.S.C. § 1158(b)(1). A “refugee”

is defined, in relevant part, as

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

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8 U.S.C. § 1101(a)(42); see also Albathani v. INS, 318 F.3d 365,

373 (1st Cir. 2003).3 An asylum applicant bears the burden of

establishing that he or she falls within the statutory definition

of “refugee.” See 8 C.F.R. § 208.13(a); see also Fesseha v.

Ashcroft, 333 F.3d 13, 18 (1st Cir. 2003).

Mekhoukh does not claim that he has suffered any

persecution in the past, but that he has a “well-founded fear of

persecution” if he returns to Algeria. An applicant has a “well-

founded fear of persecution” if “(A) [t]he applicant has a fear of

persecution in his or her country of nationality . . . on account

of race, religion, nationality, membership in a particular social

group, or political opinion; (B) [t]here is a reasonable

possibility of suffering such persecution if he or she were to

return to that country; and (C) [h]e or she is unable or unwilling

to return to, or avail himself or herself of the protection of,

that country because of such fear.” 8 C.F.R. § 208.13(b)(2)(i).

Thus, a well-founded fear of persecution has both subjective and

objective components: (1) subjectively, the asylum-seeker must

show a genuine fear of persecution, and (2) objectively, the record

must show “by credible, direct, and specific evidence, . . . facts

that would support a reasonable fear that the petitioner faces

3
Obtaining asylum is actually a two-step process. If an alien
successfully demonstrates that he/she is eligible for asylum, then
the Attorney General has the discretion to decide whether or not to
grant asylum. 8 U.S.C. § 1158(b)(1).

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persecution.” See Guzman v. INS, 327 F.3d 11, 16 (1st Cir. 2003)

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

(quoting Alvarez-Flores v. INS, 909 F.2d 1, 5 (1st Cir. 1990))).

The immigration judge accepted Mekhoukh’s claim that he

feared persecution, but concluded that the record evidence did not

establish that his fear was well-founded. On appeal, Mekhoukh

contends that the immigration judge erred in her weighing of the

record evidence; he maintains that the record demonstrates that his

fear of persecution on account of his ethnicity, his political

opinions and/or his avoidance of military service is well-founded.

He also raises several procedural issues, challenging the fairness

of his hearing before the immigration judge and the Board’s

abbreviated review of that decision.

1. Ethnicity and Political Opinions

Mekhoukh first claims he has a well-founded fear of

persecution based on his ethnicity and political opinions because

he is a Berber, he supports Berber causes, and he is likely to be

perceived as a Berber activist. In order to be eligible for asylum

on this ground, Mekhoukh must demonstrate that there is a

“reasonable possibility” that he is likely to be identified as a

target for persecution on account of his ethnicity or political

opinions. See Debab, 163 F.3d at 27 (“Generally, evidence of

widespread violence and human rights violations affecting all

citizens is insufficient to establish persecution.” (internal

-10-
quotations omitted)); see also 1998 Profile of Asylum Claims 7 (AR

1001) (“[I]t is important in our view to differentiate between:

Algerian political asylum applicants with legitimate fears based on

who they are and what they have done; and the majority of

applications – many of whom are young adults whose personal

security situation does not appear to be very different from that

faced by the Algerian population at large and who may be seeking to

escape the turmoil or find better economic opportunities in the

United States.”) The immigration judge concluded, and we agree,

that the record does not support such a finding.

We consider first whether Mekhoukh’s Berber ethnicity in

and of itself renders him eligible for asylum. Under certain

limited circumstances, an applicant may be eligible for asylum

without providing evidence that he “would be singled out

individually for persecution if:. . . (A) [he] establishes that

there is a pattern or practice in his or her country of nationality

. . . of persecution of a group of persons similarly situated to

the applicant on account of race, religion, nationality, membership

in a particular social group, or political opinion; and . . . (B)

[he] establishes his or her own inclusion in, and identification

with, such group of persons such that his or her fear of

persecution upon return is reasonable.” 8 C.F.R. §

208.13(b)(2)(iii). While there is no issue as to Mekhoukh’s Berber

ethnicity, the record does not support, much less compel, the

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conclusion that there is a “pattern or practice” of persecution

directed at persons of Berber ethnicity. Cf. Meguenine, 139 F.3d

at 28 (asylum claim denied because no pattern or practice of

targeting neutral health care workers in Algeria). According to

the State Department, “there may be some discrimination and

harassment of Berbers in the capital city of Algiers and other

large towns, but there is no pattern of action by the Algerian

authorities against Algerians simply because they are of Berber

origin.” 1998 Profile of Asylum Claims 12 (AR 1006). None of the

evidence proffered by Mekhoukh, before the immigration judge or to

the Board, compels a contrary finding. Accordingly, Mekhoukh’s

Berber ethnicity by itself does not demonstrate his eligibility for

asylum.

We consider next Mekhoukh’s claim that he has a well-

founded fear of persecution based on his Berber ethnicity combined

with his support for Berber causes. Again, as there is no evidence

that similarly situated persons have been targeted for persecution,

Mekhoukh cannot rely solely on his inclusion in that group to

support his asylum claim. 8 C.F.R. § 208.13(b)(iii). Nor are

those characteristics likely to cause the government to single him

out for persecution.

Mekhoukh also contends, however, that there is a

reasonable possibility that he will be “perceived” as an activist

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for Berber causes and persecuted.4 Even assuming that the record

supported Mekhoukh’s claim that Berber activists as a group face

systematic persecution, it does not establish a reasonable

possibility that Mekhoukh would be perceived as a member of this

group. See 8 C.F.R. § 208.13(b)(2)(iii)(B). Mekhoukh claims that

he could be perceived as an activist because of his Berber

ethnicity, his support of Berber causes, and the fact that he had

his picture taken, in approximately 1985, with a renowned activist,

Lounes Matoub. It is hard to imagine that these facts would ever

result in the government labeling Mekhoukh an activist; they

certainly do not compel that conclusion, especially when the other

record evidence is considered. For example, Mekhoukh remained in

Algeria for a number of years after the picture was taken without

ever experiencing any persecution. And no member of his family has

ever been persecuted. See Aguilar-Solis v. INS, 168 F.3d 565, 573

(1st Cir. 1999) (“[T]he fact that close relatives continue to live

peacefully in the alien's homeland undercuts the alien's claim that

persecution awaits his return.”). It is similarly impossible to

imagine that these facts would lead the government to target

Mekhoukh for persecution. Cf. Meguenine, 139 F.3d at 29 (“[T]he

Board could reject [the applicant’s] fears of specific harm on this

record as insufficiently severe and particular to support

4
Mekhoukh admits that he is not, and never has been, an
activist.

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eligibility for asylum . . . .”). Accordingly, we agree with the

immigration judge that Mekhoukh’s fear of persecution based on his

Berber ethnicity and support of Berber political causes is not

well-founded.

In a slight modification of his argument, Mekhoukh also

claims that he is likely to be targeted for persecution because of

his political opinion that the government should not have cancelled

democratic elections in 1991, that the Islamic fundamentalist party

has the right to rule if democratically elected and that the

present government is illegitimate. Even assuming that Mekhoukh’s

“neutrality” qualifies as a political opinion for asylum purposes,5

there is simply no evidence in the record that persons who hold

this opinion are targeted for persecution or that Mekhoukh himself

is likely to be identified as such a person and targeted.

Mekhoukh, if he returns to Algeria, may well be at risk

because of the ongoing violence between the government’s security

forces and armed insurgent groups. However, the record does not

support Mekhoukh’s claim that he faces persecution for his

ethnicity or political opinions. Accordingly, we agree with the

immigration judge that Mekhoukh has not proved a well-founded fear

of persecution based on either his ethnicity or political opinions.

5
For a discussion of the standard for determining when an
applicant is eligible for asylum when the applicant faces the
prospect of persecution because of a political opinion of
neutrality, see Novoa-Umania v. INS, 896 F.2d 1, 3 (1st Cir. 1990).

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 2. Evasion of Military Service

Mekhoukh also claims he has a well-founded fear of

persecution based on his avoidance of military service. Even

though a sovereign nation enjoys the right to enforce its laws of

conscription, and normal penalties for evasion generally are not

considered persecution, see Selective Draft Law Cases, 245 U.S.

366, 378 (1918), two types of asylum claims can arise based on

avoidance of military service. First, an alien may be eligible for

asylum if “refusal to serve in the military results not in normal

draft evasion penalties, but rather in disproportionately severe

punishment on account of one of the five grounds enumerated in the

. . . Refugee Act.” See M.A. v. INS, 899 F.2d 304, 312 (4th Cir.

1990) (citing Office of the United Nations High Commissioner for

Refugees, Handbook on Procedures and Criteria for Determining

Refugee Status ¶¶ 169, 171 (Geneva 1979) (“Refugee Handbook”)).6

Second, an alien is eligible for asylum if “the alien would be

associated with a military whose acts are condemned by the

international community as contrary to the basic rules of human

conduct.” Id.; see also Vujisic v. INS, 224 F.3d 578, 580 (7th

Cir. 2000); Mojsilovic v. INS, 156 F.3d 743, 746 (7th Cir. 1998).

6
Although not binding and lacking the force of law, the
Refugee Handbook has been recognized as providing significant
guidance interpreting the term “refugee” in 8 U.S.C. § 1158(b)(1).
See INS v. Cardoza-Fonseca, 480 U.S. 421, 439 n.22 (1987); M.A. v.
INS, 899 F.2d at 312; Mojsilovic v. INS, 156 F.3d 743, 747 (7th
Cir. 1998).

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Under those circumstances, “punishment for desertion or draft

evasion could . . . in itself be regarded as persecution.”

Vujisic, 224 F.3d at 581 (quoting Refugee Handbook ¶ 171).

Mekhoukh claims he is eligible for asylum on both accounts.

a. Excessive Punishment

Mekhoukh’s claim that his draft evasion will lead the

government to label him as an Islamic fundamentalist sympathizer

and a terrorist and, therefore, to target him for abuse or death,

has little support in the record. As noted above, Mekhoukh’s own

testimony establishes that he has not been an activist in any way

and that he has never identified himself as a supporter or

sympathizer with any of the armed insurgent groups, making it

unlikely that the Algerian government would label him a terrorist

and impose a disproportionately severe punishment on him for his

draft evasion. Moreover, there is no evidence that the Algerian

government is likely to label draft evaders as terrorists or target

them for persecution.7 Absent such evidence, Mekhoukh is not

eligible for asylum on this basis. See M.A. v. INS, 899 F.2d at

314 (petitioner “failed to show that he would be singled out for

his refusal to serve”).

7
Although we do not rely on it, we note that this conclusion
is supported in a recent report from the United Kingdom, see
Country and Information Policy Unit, Home Office, United Kingdom,
Algeria, Country Report §§ 5.86 – 5.95 (October 2003) (“United
Kingdom Country Report”).

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 b. Conscientious Objection

Mekhoukh also claims that he avoided his military service

in Algeria, and wants to continue to avoid it, because he objects

to serving in a military that is known to commit human rights

abuses. Mekhoukh is eligible for asylum on this ground only if (1)

the Algerian military has been condemned by the international

community as a military that commits human rights abuses; (2) there

is a reasonable possibility that Mekhoukh will have to serve in

that military if he returns to Algeria or face punishment for

refusing to serve; and (3) Mekhoukh has a genuine conscientious

objection to service. Mekhoukh bears the burden of establishing

these facts.

i. Nature of Algerian Military

It is difficult to discern from the immigration judge’s

oral decision whether she expressly considered and/or made a

finding about the nature of the Algerian military, but the record

clearly establishes that the Algerian military is a military whose

acts are condemned by the international community as contrary to

the basis rules of human conduct.8 See, e.g., 1999 Country Reports

1 (AR 1014) (“security forces have committed numerous serious human

rights abuses”); see also 1998 Profile of Asylum Claims 7 (AR 1001)

8
The immigration judge acknowledged that the State
Department’s 1999 Country Report for Algeria was entered into
evidence, but she never refers to what it says about the Algerian
security forces and their human rights abuses.

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(“security forces have allegedly resorted to the arrest,

interrogation, and torture of persons suspected of having Islamist

sympathies”).9

ii. Military Service

An alien’s claim to asylum based on his objection to

serving in an internationally condemned military requires proof

that there is a reasonable possibility that the alien will have to

serve or be punished for refusing to serve. See Mojlisovic, 156

F.3d at 747.10 The immigration judge concluded that Mekhoukh failed

to meet his burden of proof on this point because he failed to

establish that alternative service was not available or to ask

about the possibility of non-combat positions. Mekhoukh contends

that she assigned too much weight to this particular fact. He

points out on appeal that there are many practical reasons why an

alien might fail to inquire about the possibility of alternative

9
More recent State Department Reports indicate that
circumstances in Algeria have improved slightly, but not materially
changed. See, e.g., Bureau of Democracy, Human Rights and Labor,
United States Department of State, Country Reports on Human Rights
Practices – 2002: Algeria (March 31, 2003).
10
In Mojsilovic, the court found that the applicant failed to
meet his burden where “the bulk of the evidence suggests that the
Yugoslav Army will not sanction [the petitioner] for failing to
respond to his draft notice.” 156 F.3d at 747. It noted that the
applicant’s testimony that draft evaders were punished did not
overcome “[t]he State Department reports that many males avoid
compulsory service, that draft dodgers are not pursued
aggressively, and that approximately 100,000 eligible males are
living abroad and there is no pattern of arrest or harassment when
they return home.” Id.

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service.11 But he apparently failed to advance these reasons to the

Immigration Judge; nor does he seriously claim that they apply to

him. His real reason for not inquiring, suggested by his testimony

and clearly asserted on appeal, is that he thought any inquiry

would be futile. He asserts, without any supporting evidence, that

it is inconceivable that the Algerian military would give a

conscripted soldier the option of choosing a non-combat position.

His assertion may be correct, and any inquiry may have been futile.

But his failure to make any inquiry or to justify his failure does,

as the immigration judge concluded, amount to a failure to satisfy

his burden of proving that if he returned to Algeria he would, in

fact, have to serve in Algeria’s military in a combat position.

Certainly, the weight the immigration judge assigned to this fact

was not “manifestly contrary to law.” 8 U.S.C. § 1252(b)(4)(C).

Indeed, had Mekhoukh addressed his burden of proving his

assertion that a non-combat assignment was unavoidable by inquiring

about it, he might have discovered, as have we, that Algeria has

adopted a “Regularization” program for males of a certain age who

have not fulfilled their military service, under which they may be

excused from any further obligation. According to the 1999 Report

11
For example, practical difficulties, such as residence in the
United States, lack of contacts within the country of origin, or
lack of resources, might impede such an inquiry.

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of the INS Resource Information Center,12 which was available at the

time of Mekhoukh’s immigration hearing, Algeria has established a

program to permit draft evaders, even those who are residing

outside of Algeria, to apply for “regularization” of their status.

See id. (“Algerians aged 27 and over who have not done military

service are currently being invited to apply for an exemption from

military service. It is still not clear who exactly will benefit

from such registration, but it appears that many individuals

considered draft evaders or who presently have a deferral may be

included.”).13

Mekhoukh had the burden of proving that if he returned to

Algeria he would be drafted, assigned to combat duty, and become

12
INS Resource Information Center, Response to Information
Request No. DZA0002.znk (Washington, D.C., Oct. 4, 1999).
13
A more detailed description of the regularization option
appears in the United Kingdom Report: “During 1999 and 2000
measures were initiated to regulari[z]e the situation of men who
had not undertaken their conscription. The reasons given include
the Algerian military authorities wish to relax the requirements
for military service, the high cost of military training,
overpopulated barracks, and the situation of young men who are
unable to obtain official documents and obtain employment.” §
5.73. According to this report, “[b]y February 2001, 25,000
registrations had been made from abroad. If everything is found in
order the applicants finally receive a dispensation document . . .
. If they are staying abroad they can apply to the consulate and
fill out an application form. They can return to Algeria
subsequently without a problem.” Id. § 5.74. Presently, all men
born before December 31, 1980, are eligible to apply for
regulari[z]ation. Id. § 5.76-5.77. Persons who had deferments or
who had been called to service are eligible to apply; persons
subject to a “wanted notice” or deserters are not eligible. Id. §
5.78-5.79.

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obligated to commit human rights violations. His burden included

pursuit of evidence to sustain his assertion. He has failed to do

so.

iii. Genuine Conscientious Objection

The immigration judge did not make a finding as to

whether Mekhoukh has a genuine conscientious objection to service,

but that is immaterial as Mekhoukh’s claim was properly rejected on

other grounds.

3. Credibility

The immigration judge found that Mekhoukh was “not a

credible witness. He has made many assertions that are unfounded,

not corroborated and are simply improbable.” (AR 866.) Mekhoukh

challenges this finding on appeal. We need not address this issue

as the immigration judge rejected Mekhoukh’s asylum claim, and we

have reviewed and approved that rejection, without relying on the

adverse credibility finding.

4. Procedural Fairness of Immigration Hearing

Having concluded that the existing record fails to

establish Mekhoukh’s eligibility for asylum, we must consider his

claim that procedural flaws compromised the fundamental fairness of

his hearing before the immigration judge and necessitate a remand.

“It is well established that the Fifth Amendment entitles aliens to

due process of law in deportation proceedings.” Morales v. INS,

208 F.3d 323, 327 n.1 (1st Cir. 2000) (quoting Reno v. Flores, 507

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U.S. 292, 306 (1993)). Mekhoukh contends his hearing was unfair

because of his lack of counsel, the incompetency of the

interpreter, and the immigration judge’s failure to fully develop

the record. We apply de novo review to a claim that an

administrative law judge violated a party’s right to due process.

Aguilar-Solis v. INS, 168 F.3d at 568.

a. Lack of Counsel

Mekhoukh first contends that the hearing before the

immigration judge was fundamentally unfair because his lack of

counsel hindered his ability to present his case, particularly

given the language barriers. The absence of counsel in and of

itself cannot support Mekhoukh’s claim. A petitioner in an asylum

proceeding is not entitled to appointed counsel. Moreover, the

immigration judges throughout this proceeding have more than

fulfilled their obligation to inform Mekhoukh of his rights and

options with respect to counsel. Before the case was transferred

to Boston, at Mekhoukh’s request, he had retained and dismissed one

counsel. After he filed his official application in Boston, the

immigration judge for his case informed him that he was entitled to

retain counsel, continued the hearing for several months in order

to give him time to do so, and provided him with a list of

contacts. Under such circumstances, it was certainly reasonable

for the immigration judge not to give him any additional time when,

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three months later, he appeared without counsel on the day of his

hearing.

b. Quality of Translation

Mekhoukh also contends that his hearing was fundamentally

unfair because the interpreter was incompetent. He argues that the

interpreter’s errors led to an inaccurate portrayal of his

testimony with respect to the substance of his claim for asylum and

created apparent conflicts in his testimony that led the

immigration judge to make an adverse credibility determination.

On the first point, although the interpretation of

Mekhoukh’s testimony was not flawless, Mekhoukh fails to identify

a single instance where the transcript reflects a material mistake

in the interpretation of his testimony. And having reviewed the

transcript in its entirety, we see no indication that any of the

errors in interpretation had any, much less a serious, effect on

the accuracy of the hearing record. To the contrary, the

transcript establishes that most of the mistakes in interpretation

were almost immediately caught, by Mekhoukh himself, and corrected.

For example, Mekhoukh makes much of the translator’s mistake in

interpreting “Berberic” as “barbaric,” but that error was

identified and corrected almost immediately. These errors, while

unfortunate, did not render Mekhoukh’s hearing fundamentally

unfair. As for Mekhoukh’s contention that errors in translation

negatively affected the immigration judge’s evaluation of

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Mekhoukh’s credibility, we have resolved the merits of Mekhoukh’s

appeal without reference to the immigration judge’s adverse

credibility finding. Accordingly, even if translation errors

affected the immigration judge’s credibility finding, they did not

deprive Mekhoukh of a fair hearing.

c. Hearing Record

Mekhoukh also contends that his hearing was fundamentally

unfair because the immigration judge failed to fully develop the

record.14 Mekhoukh contends that the immigration judge failed to

meet this obligation because she failed to ensure a competent

translator. However, as discussed above, Mekhoukh has failed to

demonstrate that there were any errors in the translation that

seriously affected the accuracy of the material information in the

14
As explained by the Second Circuit, this duty exists because,

the IJ whose decision the Board reviews, unlike an
Article III judge, is not merely the fact finder and
adjudicator but also has an obligation to establish the
record. 8 U.S.C. § 1229a (b)(1) (“The immigration judge
shall administer oaths, receive evidence, and
interrogate, examine, and cross-examine the alien and any
witnesses.”); United Nations Handbook on Procedures &
Criteria for Determining Refugee Status: Office of the
United Nation's High Commissioner for Refugees, para.
196; 205(b)(i) (1979) (stating that the asylum statute
contemplates that “the duty to ascertain and evaluate all
the relevant facts is shared between the applicant and
examiner” and that the asylum adjudicator must “ensure
that the applicant presents his case as fully as possible
and with all available evidence").

Yang v. McElroy, 277 F.3d at 162.

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hearing record. Accordingly, we find Mekhoukh’s claim that the

immigration judge failed to fully develop the record unpersuasive.

5. Fairness of Board’s Procedures

Mekhoukh argues that the Board should have considered the

new evidence he presented on appeal. We need not resolve this

issue because even if the Board erred, its error was harmless. The

evidence submitted by Mekhoukh to the Board, and included in the

administrative record filed with this court on appeal, contains no

information that materially affects the outcome of Mekhoukh’s

claims.

Mekhoukh also challenges the Board’s decision to affirm

without opinion. By regulation, the Board, acting through a single

member, is authorized to affirm, without opinion, the result of the

decision below, when a Board member determines that the result

reached by the immigration judge was correct, that any errors in

the decision were harmless or nonmaterial, and that either the

issue is squarely controlled by precedent and does not involve a

novel fact pattern, or that the factual and legal questions raised

are so insubstantial that three-member review is not warranted. 8

C.F.R. §§ 1003.1(a)(7)(A)-(B), 1003.1(e)(4); see El Moraghy, 331

F.3d at 205-06. As a general matter, this court has upheld these

streamlining regulations as a valid exercise of the Attorney

General’s discretion to fashion its own rules of procedure. Id. at

206 (citing Albathani, 318 F.3d at 377). With respect to the

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application of the streamlining procedure to this particular case,

we have reviewed the merits of the IJ’s decision and found no

reversible error. Accordingly, whether this case was appropriately

streamlined is moot. Cf. El Moraghy, 331 F.3d at 206 (“We need not

address the question of whether the decision to streamline this

case was proper, because our review of the IJ’s decision

necessitates a remand to the BIA for further proceedings.”).

C. Withholding of Removal

An alien seeking withholding of removal bears the burden

of proving that his or her “life or freedom would be threatened in

that country because of the alien’s race, religion, nationality,

membership in a particular social group, or political opinion.” 8

U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 208.16(b). An alien who fails

to satisfy the asylum standard automatically fails to satisfy the

more stringent test for withholding of removal. See Guzman v. INS,

327 F.3d at 16; Alvarez-Flores, 909 F.2d at 5. Accordingly,

Mekhoukh’s application for withholding of removal was properly

denied.

D. Convention Against Torture

Mekhoukh’s final claim is that he is eligible for

withholding of removal under the United Nations Convention Against

Torture.15 In order to obtain protection thereunder, Mekhoukh bore

15
The Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85,
was implemented in the United States by the Foreign Affairs and

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the burden of proving “that it is more likely than not that he . .

. would be tortured if removed to the proposed country of removal.”

8 C.F.R. § 208.16(c)(2). Torture is defined as “any act by which

severe pain or suffering, whether physical or mental, is

intentionally inflicted on a person for such purposes as obtaining

from him or her or a third person information or a confession,

punishing him for an act he or she or a third person has committed

or is suspected of having committed, or intimidating or coercing

him or her or a third person, or for any reason based on

discrimination of any kind, when such pain or suffering is

inflicted by or at the instigation of or with the consent or

acquiescence of a public official or other person acting in an

official capacity.” 8 C.F.R. § 208.18(a)(1). The immigration

judge concluded that the evidence did not support Mekhoukh’s claim

for protection under the Convention against Torture, and we agree.

The record lacks any persuasive, much less compelling, evidence

that it is more likely than not that Mekhoukh would be tortured

upon his return to Algeria. Indeed, Mekhoukh himself did not even

testify that he feared torture, as defined above. Accordingly, the

immigration judge did not err in denying relief under the

Convention Against Torture.

Restructuring Act of 1998, Pub. L. No. 105-277, § 2242, 112 Stat.
2681-761 (codified at 8 U.S.C. § 1231 (2000)). Article 3 prohibits
states from returning individuals to other states where there are
substantial grounds for believing they would be subject to torture.

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The petition for review is denied.

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