United States Court of Appeals
For the First Circuit
No. 04-1344
CHAMEL MAKHOUL MAKHOUL,
Petitioner,
v.
JOHN ASHCROFT, ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Selya, Circuit Judge,
Coffin and Cyr, Senior Circuit Judges.
Saher J. Macarius on brief for petitioner.
Peter D. Keisler, Assistant Attorney General, Civil Division,
Linda S. Wendtland, Assistant Director, Office of Immigration
Litigation, and Norah Ascoli Schwarz, Senior Litigation Counsel,
Office of Immigration Litigation, on brief for respondent.
October 28, 2004
SELYA, Circuit Judge. The petitioner, Chamel Makhoul
Makhoul, a native and citizen of Lebanon, seeks review of a final
order of the Board of Immigration Appeals (BIA) denying his
application for asylum, withholding of deportation, and protection
under Article III of the Convention Against Torture (CAT).
Concluding, as we do, that the BIA's order is supported by
substantial evidence, we affirm.
I.
Background
The petitioner, now twenty-two years of age, arrived at
Miami International Airport on March 15, 2001. He had no visa.
Instead, he presented his Lebanese passport at the immigration
counter and requested asylum. Agents of the Immigration and
Naturalization Service (INS) took him to a detention facility.1 In
a March 23 interview with an asylum officer, the petitioner claimed
that Syrian soldiers had thrice arrested him during demonstrations
against the Syrian occupation of Lebanon. He also claimed that the
secret police had arrested and beaten him in February of 2001 for
distributing anti-Syrian pamphlets.
Based on this account, the asylum officer tentatively
determined that the petitioner had a credible fear of persecution
1
The Homeland Security Act of 2002, Pub. L. 107-296, § 471,
116 Stat. 2135, 2205 (codified as amended at 6 U.S.C. § 291(a)),
abolished the INS and transferred its duties to the Department of
Homeland Security. See Lattab v. Ashcroft, 384 F.3d 8, 13 n.2 (1st
Cir. 2004). For simplicity's sake, we refer throughout to the INS.
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on account of his political opinion. The INS duly initiated
removal proceedings and served him with a notice to appear in the
Immigration Court. Pending the resolution of the petitioner's
status, the INS paroled him into the United States. See 8 C.F.R.
§ 212.5(c) (2004). Once on parole, the petitioner traveled to
Boston to live with family members. Appearing telephonically at a
hearing before the Immigration Court, sitting in Florida, the
petitioner conceded deportability but sought asylum, withholding of
deportation, and relief under CAT. The Immigration Court then
granted the petitioner's unopposed motion to transfer the
proceedings to Boston. See 8 C.F.R. § 1003.20.
Shortly thereafter, the petitioner recanted the story he
had told at his asylum interview. In a declaration accompanying
his asylum application, he stated only that he had posted anti-
Syrian political statements on an Internet chat site and had
downloaded provocative political material. At a hearing before an
immigration judge (IJ) on December 5, 2002, the petitioner admitted
that he had concocted the original tale about arrests and beatings.
He attributed the fabrication to the advice of a self-styled
immigration consultant.
Having abandoned his fictitious claim of past
persecution, the petitioner suggested that he had a well-founded
fear of future persecution on account of his political opinion.
This suggestion traveled along a circuitous path. The petitioner
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testified that he had opposed the Syrian occupation of Lebanon for
some time and had expressed his opposition in Internet chat rooms.
In addition, the petitioner's friend, Elias El Gobaly, had asked
him to download a brochure calling for the ouster of Syrian forces
from Lebanon and featuring a picture of Michel Aoun (the exiled
former president of Lebanon and the inspirational figurehead for
this virtual protest movement). The petitioner complied, giving
multiple copies of the flier to Gobaly, who then distributed them.
The Syrians arrested Gobaly in December of 2000. The
petitioner assumed that the Syrians would torture Gobaly and would
force him to reveal the petitioner's role in the production of the
brochures. Fearful of these imagined consequences, the petitioner
fled the country.
The record is silent both as to what treatment Gobaly
received and as to what information (if any) Gobaly might have
provided to his captors. According to one of the petitioner's
brothers (who still resides in Lebanon), the Syrians eventually
released Gobaly. The petitioner admitted that he did not know
whether Gobaly had named names or under what conditions Gobaly had
been detained. Despite these uncertainties, the petitioner
expressed fear that the authorities would arrest and torture him if
he dared to return to Lebanon.
The IJ found little probative value in this reconstructed
narrative. Nor did the petitioner's presentation of documentary
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evidence detailing abusive conduct by Syrian forces toward
outspoken supporters of the former president fill this void; the IJ
concluded that the petitioner had not brought himself within this
sphere. After all, the petitioner himself had never been arrested,
detained, or brutalized. Thus, his belief that the Syrians sought
his capture rested entirely upon Gobaly's arrest. But, the IJ
noted, the petitioner had proffered no evidence illuminating the
circumstances surrounding Gobaly's detention, nor had he adduced
any proof about what Gobaly might (or might not) have revealed to
the authorities. Accordingly, the notion that the Syrians would be
on the lookout for the petitioner was, in the IJ's words, "highly
speculative."
Although the IJ did not make an explicit credibility
finding, her skepticism was evident. She reasoned that something
more mundane than fear of persecution likely drove the petitioner's
desire to emigrate to the United States. The petitioner's father
had been in Boston since 1993 and was seeking to become a lawful
permanent resident. See 8 U.S.C. § 1255; 8 C.F.R. § 204.5. The
petitioner indicated that he had hoped to qualify for permanent
residency as his father's dependent and admitted that he had
emptied out his father's store in Lebanon before leaving the
country. The IJ believed that these admissions supported a
plausible inference that the family had made a collective decision
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to relocate to the United States and that the petitioner's real
intention was to join them.
Based on these findings, the IJ held that the petitioner
had not established a well-founded fear of future persecution. She
thus denied the petitioner's applications for asylum and
withholding of deportation. Noting that the Syrian authorities had
never laid a finger on the petitioner, the IJ also ruled that the
petitioner had wholly failed to show that he would face likely
torture if removed to Lebanon. Consequently, the IJ rejected the
petitioner's CAT claim as well and ordered him removed to Lebanon.
The petitioner appealed. The BIA summarily affirmed the
IJ's decision on February 6, 2004. This petition for judicial
review followed.
II.
Discussion
In order to become eligible for asylum, an alien must
establish that he is a refugee. See 8 U.S.C. § 1158(b)(1); 8
C.F.R. § 208.13(a); see also Laurent v. Ashcroft, 359 F.3d 59, 63
(1st Cir. 2004). A refugee is a person unable or unwilling to
return to his home 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); see Laurent, 359 F.3d at 63-
64. A showing of past persecution creates a presumption that an
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applicant's fear of future persecution is well-founded. See 8
C.F.R. § 208.13(b)(1); see also Fergiste v. INS, 138 F.3d 14, 18
(1st Cir. 1998). In the absence of a showing of past persecution,
the asylum applicant bears the burden of demonstrating that his
fear of future persecution is well-founded. See Laurent, 359 F.3d
at 65.
When an IJ rejects an alien's application for asylum and
orders his removal, the BIA has jurisdiction to review the order
upon the filing of a timely appeal. See 8 C.F.R. §§ 1003.1(b),
1240.15; see also Nugent v. Ashcroft, 367 F.3d 162, 165 (3d Cir.
2004). "Where, as here, the BIA conducts a de novo review of the
record, independently validates the sufficiency of the evidence,
and adopts the IJ's findings and conclusions, the IJ's findings
become the BIA's." Laurent, 359 F.3d at 64 n.3. We review the
BIA's order pursuant to the authority conferred by 8 U.S.C. §
1252(b).
Our review is deferential. In immigration cases, the
court of appeals applies the familiar "substantial evidence"
standard of review. It must uphold the BIA's decision "unless any
reasonable adjudicator would be compelled to conclude to the
contrary." 8 U.S.C. § 1252(b)(4)(B). Put another way, a reviewing
court can reverse the BIA only if the record unequivocally
indicates error. INS v. Elias-Zacarias, 502 U.S. 478, 481 & n.1
(1992). Indeed, if an asylum applicant's fact-based challenge to
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an unfavorable decision is to succeed, "the administrative record,
viewed in its entirety, must compel the conclusion that he is
asylum-eligible." Aguilar-Solis v. INS, 168 F.3d 565, 569 (1st
Cir. 1999) (emphasis omitted).
Against this backdrop, we turn to the specifics of the
petitioner's claims. For the first time on appeal, the petitioner
contends that he has suffered past persecution.2 This argument
starts with the premise that the Syrian occupiers exercise brutal
control over the Lebanese people. That premise is supported by
documentary evidence in the record and we accept it. Building on
this uncontroversial foundation, the petitioner suggests that
Gobaly's arrest placed him (the petitioner) in a state of intense
anxiety, exacerbated by a fear that his own arrest and abuse were
imminent. From this, the petitioner argues that he experienced
psychological torment, which amounted to "persecution" in the
statutory sense.
As a theoretical matter, we acknowledge that, under the
right set of circumstances, a finding of past persecution might
rest on a showing of psychological harm. See, e.g., Miljkovic v.
Ashcroft, 376 F.3d 754, 756 (7th Cir. 2004); Knezevic v. Ashcroft,
367 F.3d 1206, 1211-12 (9th Cir. 2004); Ouda v. INS, 324 F.3d 445,
453-55 (6th Cir. 2003); see also Boykov v. INS, 109 F.3d 413, 416
2
The petitioner did, of course, raise a different claim of
past persecution in his initial asylum interview. That claim,
however, was premised on falsehoods, and he has since abandoned it.
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(7th Cir. 1997) (expressing willingness, in rare cases, to regard
mere threats as persecution). Here, however, the issue of past
persecution is not fairly before us. The controlling statute, 8
U.S.C. § 1252(d)(1), provides that review of a final removal order
is only permissible if "the alien has exhausted all administrative
remedies available to the alien as of right." We have interpreted
this statute to mean that theories not advanced before the BIA may
not be surfaced for the first time in a petition for judicial
review of the BIA's final order. See Ravindran v. INS, 976 F.2d
754, 761 (1st Cir. 1992); Alvarez-Flores v. INS, 909 F.2d 1, 8 (1st
Cir. 1990). This same principle of preclusion extends to claims
not raised before the IJ. See Debab v. INS, 163 F.3d 21, 26 (1st
Cir. 1998).
This template is dispositive of the petitioner's belated
claim of past persecution. The petitioner did not raise this
contention either in the declaration that accompanied his asylum
application or in his testimony before the IJ. Nor did he, in
either of those fora, assert a claim of psychological persecution.
Given these procedural defaults, we decline to entertain his virgin
claim of past persecution in this venue.
This leaves the petitioner's claim that he harbors a
well-founded fear of future persecution.3 Such a claim has both
3
An asylum applicant who can establish that he has suffered
past persecution is presumed to be a refugee for purposes of
eligibility. This presumption shifts the burden to the government
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subjective and objective components. To establish asylum
eligibility on this ground, an applicant must demonstrate both that
he genuinely fears persecution if he is deported to his homeland
and that his fear is objectively reasonable. Laurent, 359 F.3d at
65. An applicant typically will show genuineness through his own
credible testimony. See, e.g., Balogun v. Ashcroft, 374 F.3d 492,
499 (7th Cir. 2004). The more difficult burden is to show that his
fear is objectively reasonable. To carry this burden, the
applicant need not prove that he will more likely than not suffer
future persecution. See INS v. Cardoza-Fonseca, 480 U.S. 421, 450
(1987). Rather, his proof suffices if it shows that "a reasonable
person in the asylum applicant's circumstances would fear
persecution on account of a statutorily protected ground."
Aguilar-Solis, 168 F.3d at 572.
In this instance, the petitioner makes two arguments to
support his insistence that he has a well-founded fear of
persecution if deported. We deal with these arguments separately.
The petitioner's first argument is that he fears
persecution on account of his membership in a particular social
group. This argument is hopeless. For one thing, he has failed to
to show that conditions in the applicant's home country have
changed to such an extent that he has no well-founded fear of
future persecution. 8 C.F.R. § 208.13(b)(1); see Fergiste, 138
F.3d at 18. Because the petitioner has not established past
persecution, he must carry the devoir of persuasion on the issue of
whether he has a well-founded fear of future persecution. See
U.S.C. § 1158(b)(1); 8 C.F.R. § 208.13(a).
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identify the particular social group with which he claims to be
affiliated. For another thing, throughout the proceedings below
the petitioner sought asylum solely on the basis that he would be
persecuted for his political opinion. Because he neglected to
raise the "social group" issue before the IJ, that issue is
procedurally defaulted. See Debab, 163 F.3d at 26.
The petitioner's second argument — that he fears future
persecution on the basis of political opinion — forms the crux of
his asylum application. To satisfy the subjective component of the
well-founded fear standard, the petitioner testified as to the
genuineness of his concern. The IJ, without explicitly impugning
the petitioner's credibility, suggested obliquely that his efforts
to benefit derivatively from his father's quest to become a lawful
permanent resident and the fact that he had spent his final months
in Lebanon cleaning out the family store may have had more to do
with his flight to the United States than his fear of future events
in Lebanon.
The petitioner argues that, in the absence of an adverse
credibility finding, these facts are irrelevant to a resolution of
whether his fear of persecution is genuine. We do not agree. What
is in a person's mind cannot be measured with scientific precision,
and if the evidence fairly suggests that a reason other than a fear
of persecution provides the primary impetus for an alien's desire
to seek asylum, that certainly bears on the genuineness of his
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subjective claim. See, e.g., Lin v. Ashcroft, 371 F.3d 18, 22 (1st
Cir. 2004); Disu v. Ashcroft, 338 F.3d 13, 16 (1st Cir. 2003).
In all events, the record is less than pellucid on this
point. It is hard to tell whether the IJ's decision implicitly
incorporates a finding that the petitioner's fear was less than
genuine. Because that question is open to interpretation, we leave
it unresolved. In this case, the petitioner's fear, even if
subjectively genuine, is not well-founded.
The asserted fear of future persecution on account of
political opinion stems from Gobaly's arrest and the possibility
that Gobaly may have identified the petitioner as a dissident
and/or participant in seditious activities. The petitioner
buttresses the claim with documentary evidence of widespread human
rights abuses in Lebanon. From these loosely related pieces of
evidence, he invited the IJ to construct a chain of inferences
suggesting the possibility that he would be persecuted if deported.
The IJ declined the invitation.
We discern no hint of error. The chain of inferences
fashioned by the petitioner is woven from gossamer strands of
speculation and surmise. The petitioner himself has never been
arrested, detained, or otherwise harmed. Indeed, there is
absolutely no evidence that he has even attracted the attention of
the Syrian occupiers. As far as anyone can tell, both he and his
activities in cyberspace have gone unnoticed. This is not the
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stuff of which objectively reasonable fears of future persecution
are constructed. See Pieterson v. Ashcroft, 364 F.3d 38, 45 (1st
Cir. 2004) (stating that lack of past arrest or detention made
alien's chance of being individually targeted less likely);
Ravindran, 976 F.2d at 759 (declining to credit alien's professed
fear of being singled out for persecution in the absence of any
evidence that authorities knew about his political activities).
Here, moreover, the claim of possible future persecution is made
even more tenuous by the total lack of any evidence that Gobaly
himself was mistreated or even interrogated during his detention.
From aught that appears, Gobaly never spoke to the authorities at
any time about the assistance that the petitioner had privately
rendered — or, at least, there is no proof that he did.
Another circumstance militates in favor of the IJ's
ruling. The petitioner's level of political activism does not
suggest that of a leader or even a follower. His political speech
was limited to Internet chat rooms (fora that arguably provide a
certain expectation of anonymity), and he engaged in just one
solitary act of opposition by printing seditious leaflets. That
act was carried out in the privacy of his own home. As the basis
for an asylum application, this diminutive political profile tends
to make the petitioner's asserted fear of persecution less
reasonable. See Pieterson, 364 F.3d at 44-45.
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To be sure, the supporting documentation paints a
troubling portrait of the situation in Lebanon. Human rights
obviously are not a high priority there. Still, over and above
random atrocities, the most that this generic evidence shows is
that Syrian forces have targeted political dissidents who have come
to their attention. Absent a connection with the petitioner — an
individual who has never publicly been involved in political
protest and who, insofar as the record reflects, has never come up
on the Syrians' radar screen — this evidence does not go very far
toward showing objective reasonableness of the petitioner's
professed fear. See Morales v. INS, 208 F.3d 323, 331 (1st Cir.
2000). Weighing this evidence in light of the record as a whole,
we cannot say that the IJ was compelled to reach a conclusion
favorable to the petitioner on the question of whether the latter's
professed fear of future persecution on account of his political
opinion was well-founded. See Aguilar-Solis, 168 F.3d at 572.
That effectively ends the matter. Because substantial
evidence supports the denial of asylum, we need not address the
petitioner's other claims. We explain briefly.
A claim for withholding of deportation demands that the
alien carry a more stringent burden of proof than does an asylum
claim. See 8 U.S.C. § 1231(b)(3)(A). Thus, if an alien cannot
establish asylum eligibility, his claim for withholding of
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deportation fails a fortiori. See Ipina v. INS, 868 F.2d 511, 515
(1st Cir. 1989).
The petitioner's skeletal claim for relief under CAT
fares no better. What we have written to this point demonstrates
that the CAT claim is beyond redemption. At any rate, the
petitioner has wholly failed to develop any argumentation on that
claim before us. Consequently, we deem that portion of his
petition waived. See Aguilar-Solis, 168 F.3d at 574; Athehortua-
Vanegas v. INS, 876 F.2d 238, 241 (1st Cir. 1989).
III.
Conclusion
We need go no further. Amid a sea of global violence,
Congress dug a narrow channel of relief for those who face possible
future persecution. The statutory requirement that an applicant
for asylum show a well-founded fear of persecution demands more
than this petitioner has mustered. Since the IJ's decision and the
BIA's order rest on a plausible rendition of the record, the
petition for review must be denied and dismissed.
It is so ordered.
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