United States Court of Appeals
For the First Circuit
No. 03-1117
FRANCK MABIKAS,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
No. 03-1961
FRANCK MABIKAS,
Petitioner,
v.
JOHN ASHCROFT, Attorney General,
Respondent.
ON PETITIONS FOR REVIEW OF ORDERS OF
THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Lourie,* and Lynch, Circuit Judges.
Harvey Kaplan with whom Ilana Greenstein, Maureen O’Sullivan,
and Jeremiah Friedman were on brief for petitioner.
Anthony W. Norwood with whom Peter D. Keisler and Terri J.
Scadron were on brief for respondent.
February 19, 2004
*
Of the Federal Circuit, sitting by designation.
LOURIE, Circuit Judge. Franck Mabikas petitions for
review of the December 20, 2002 decision of the Board of
Immigration Appeals (“BIA”), which dismissed his appeal from the
decision of the Immigration Judge (“IJ”) denying his applications
for asylum and withholding of removal. Mr. Mabikas also petitions
for review of the BIA’s June 26, 2003 order denying his motion to
reopen its December 20, 2002 decision.
Mabikas is a native and citizen of the Republic of Congo.
He legally came to the United States on October 21, 1996 as a
visitor. He was authorized to remain in the United States only for
a temporary period not to exceed September 10, 1997. In April
1997, a civil war broke out in the Congo, and Mabikas lost contact
with his family and later learned that his family’s home had been
destroyed. He subsequently applied to the United States
Immigration and Naturalization Service for political asylum and
withholding of removal pursuant to sections 208 and 241(b)(3) of
the Immigration and Nationality Act, 8 U.S.C. §§ 1158, 1231(b)(3)
(2000), and for withholding of removal under the Torture
Convention, 8 C.F.R. § 208.16 (2004). He asserted that his father
had been employed as either a tax collector or a customs inspector
by the government of former President Pascal Lissouba, who was
ousted during the civil war, and that he and all of his family
members would accordingly be targeted for persecution by the new
government of President Denis Sassou-Nguesso.
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On March 22, 2000, following a hearing on the merits of
his claim, the IJ denied Mabikas’s application for asylum and
withholding of removal because he was unable to establish that his
family’s disappearance and the destruction of their house had been
“on account of” any of the protected grounds on which asylum can be
based. In particular, the IJ concluded that Mabikas lacked a well-
founded fear of persecution based on a political opinion, race,
religion, or nationality, and that he had not established
eligibility for asylum based on a pattern or practice of
persecution of persons similarly situated to him as a member of a
particular social group.
Mabikas appealed to the BIA. The BIA upheld the IJ’s
decision and dismissed Mabikas’s appeal in its December 20, 2002
decision. According to the BIA, Mabikas had not established that
his family’s disappearance and the destruction of the family house
were related to any of the protected grounds. Further, the BIA
held, even if Mabikas had established the necessary nexus, he still
would not have been able to demonstrate a well-founded fear of
future persecution, because a cease-fire and amnesty had been in
place in the Congo at the time of Mabikas’s trial and the country
appeared to be moving toward peace.
Approximately six months later, Mabikas filed a motion to
reopen the BIA’s decision, seeking to offer new evidence of a
decline in country conditions, including a breakdown of the earlier
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cease-fire and amnesty efforts, as well as evidence that his father
had been granted asylum in France in 2001. Observing that evidence
of a continuing civil war does not amount to changed country
conditions, and finding that Mabikas had not presented any evidence
of the basis for his father’s refugee status, the BIA declined to
reopen its decision.
On appeal, Mabikas contends that the BIA erred in
dismissing his motion to reopen his removal proceedings. According
to Mabikas, he had new evidence, previously unavailable, that would
have established those essential elements of his claim for relief
that the BIA had previously found lacking. Specifically, Mabikas
alleges that he would have proffered new evidence of the
relationship between the destruction of his family’s home and
disappearance of his family and one of the five protected grounds,
as well as evidence of a pattern and practice of abuse of persons
connected with the former government, which would tend to show that
his fear of future persecution was well-founded. Given that
Mabikas’s asylum claim was based on his father’s activities and not
his own, and given that his father was granted asylum, Mabikas
argues that evidence of his father’s refugee status is clearly
material to his claim for relief. Mabikas further argues that, not
only is he the son of a former employee of the Lissouba government,
but he also is from Lissouba’s own home region, a region that
routinely has been singled out for attack.
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A motion to reopen before the BIA must be denied unless
Mabikas satisfies two threshold requirements: (1) he must
“establish ‘a prima facie case for the underlying substantive
relief sought,’” and (2) he must “introduce ‘previously
unavailable, material evidence.’” Fesseha v. Ashcroft, 333 F.3d
13, 20 (1st Cir. 2003) (quoting INS v. Abudu, 485 U.S. 94, 104
(1988)). Even if those two requirements are met, the BIA may still
exercise its discretion to deny relief. Id.; Abudu, 485 U.S. at
105; see 8 C.F.R. § 1003.2(a) (2004) (“The Board has discretion to
deny a motion to reopen even if the party moving has made out a
prima facie case for relief.”).
In the interest of finality, such motions to reopen are
disfavored. Abudu, 485 U.S. at 107. Where, as here, the BIA
denied the motion on the ground that “the respondent has not shown
that the new evidence is material so as to warrant reopening,” our
review is for abuse of discretion. Fesseha, 333 F.3d at 20.
Mabikas contends that a well-founded fear of persecution could be
found from (1) new country condition reports showing the breakdown
of cease-fire and amnesty efforts in the Congo and (2) the grant of
refugee status to his father in France, which established, he says,
a nexus between the political opinion requirement of the statute
and his claim of persecution of his family. But the country
condition reports do not demonstrate that the recent breakdown
would subject tax collectors and customs inspectors–let alone their
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children—to persecution. Nor do the reports demonstrate that, even
if such persecution occurred, it would be on the basis of political
opinion or any other statutory ground. As to the grant of asylum,
Mabikas presented no evidence as to the reason why France granted
his father asylum, or as to why he had not presented or
substantiated this information earlier. There was simply no abuse
of discretion.
Mabikas also argues that the BIA erred in affirming the
denial of asylum. The government responds that the BIA’s decision
is supported by substantial evidence. According to the government,
there is no precedent holding that “family members of employees of
the former government” are members of a protected “social group,”
and Mabikas has alleged neither that he was ever harmed,
threatened, or detained in the Congo, nor that he or any other
member of his family was ever a member of a political party. The
government points out that the case law is clear that fear of
general conditions of civil war or disturbance is not a basis for
an award of asylum or withholding of removal. Finally, the
government argues that the United States is not bound in any way by
France’s grant of asylum to Mabikas’s father, especially given that
Mabikas has presented no evidence of the reasons behind that grant.
We review decisions of the BIA regarding eligibility for
asylum and withholding of removal for substantial evidence,
reversing only if the asylum applicant demonstrates that the
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evidence that he presented was “so compelling that no reasonable
factfinder could fail to find the requisite fear of persecution.”
INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992). The applicant
“bears the burden of establishing eligibility for asylum by proving
either past persecution or a well-founded fear of persecution.”
Velasquez v. Ashcroft, 342 F.2d 55, 58 (1st Cir. 2003). The law
requires an asylum seeker to demonstrate that he is a refugee
within the meaning of section 101(a)(42)(A) of the Immigration and
Nationality Act, 8 U.S.C. § 1101(a)(42)(A) (2000), by adducing
evidence that such past persecution or fear of future persecution
is due to one of the five grounds enumerated in that provision,
namely, race, religion, nationality, membership in a particular
social group, or political opinion. Id. § 1158; 8 C.F.R. §
208.13(b)(1),(2) (2003).
We agree with the government that the BIA’s decision is
supported by substantial evidence. The IJ found that Mabikas’s
testimony, even if credible, failed to establish that a reasonable
person in Mabikas’s circumstances would fear persecution on the
basis of any of the protected grounds. First, Mabikas did not
allege that he was persecuted in the past. Indeed, he has been in
the United States since before the civil war in the Congo began.
Although he did claim that other family members had been victims of
some past persecution, Mabikas did not demonstrate that their
persecution was related to any of the protected grounds, as opposed
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to being simply a result of living in a place where a civil war was
being fought. Second, Mabikas provided no evidence that petty
officials such as tax collectors and customs inspectors employed by
the former government have been subject to any persecution by the
new government, and would therefore constitute a protected social
group, let alone that the children of those officials would.
Accordingly, nothing in the evidence compels the conclusion that
Mabikas proved that he reasonably feared persecution based on any
of the five protected grounds.
Just prior to the oral argument in the present appeal,
Mabikas sent a letter to the court pursuant to Fed. R. App. P.
28(j), citing El Moraghy v. Ashcroft, 331 F.3d 195 (1st Cir. 2003),
in which this court vacated the denial of a Coptic Egyptian’s
application for asylum and remanded to the BIA for further
proceedings. In that case, this court held that the IJ’s reasoning
was faulty because the IJ appeared to have required “that the
country condition reports refer specifically to the petitioner or
his family members” before they could be treated as supporting his
claim of persecution. Id. at 204. That flaw mattered and undercut
our ability to perform judicial review because the IJ made no
determination that the petitioner was (or was not) credible, nor
did the IJ or BIA make any finding that if what El Moraghy said was
true (even if country conditions were not properly presented), then
what he presented did not amount to either past persecution or fear
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of future persecution. Those latter findings are present in this
case, however, and we conclude that El Moraghy is therefore
distinguishable from this case. Here, it appears that the IJ
merely used country condition reports for a general description of
conditions faced by residents of Mabikas’s region of the Congo in
order to evaluate whether they corroborated Mabikas’s contentions.
Because that is the proper use of such reports, id. at 204, and
because the IJ and BIA made the findings that were lacking in El
Moraghy, we conclude that El Moraghy is not relevant to this case.
Mabikas’s withholding of removal claims also fails
because the “more likely than not” standard for withholding of
removal is even more stringent than the “well-founded fear”
standard for asylum. Alvarez-Flores v. INS, 909 F.2d 1, 4 (1st
Cir. 1990).
After this appeal was filed, Mabikas filed a second
motion to reopen his case in the BIA. Mabikas has apparently
obtained further evidence of the reasons for the grant of asylum to
his father in France, and asserts that the new evidence must be
considered by the BIA. Mabikas also filed a motion requesting that
this court hold oral argument in abeyance pending the outcome of
his motion before the BIA. We denied the latter motion on January
7, 2004, but will nonetheless stay issuance of the mandate in this
case for thirty days in order to give the petitioner a chance to
press the BIA to resolve the still-pending petition.
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We accordingly affirm the denial of the motion to reopen
and denial of asylum and withholding of removal. The order
permitting voluntary departure stands. In light of the pending
second motion to reopen before the BIA, we stay the issuance of the
mandate for thirty days.
It is so ordered.
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