Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 06-2587
CHERIF BOUKHTOUCHEN,
Petitioner,
v.
ALBERTO GONZALES,
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Circuit Judge,
Stahl, Senior Circuit Judge,
and Howard, Circuit Judge.
Kevin P. Martin and Goodwin Procter LLP on brief for
petitioner.
John P. Devaney, Trial Attorney, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, Peter D.
Keisler, Assistant Attorney General, Civil Division, and Carol
Federighi, Senior Litigation Counsel, on brief for respondent.
August 10, 2007
PER CURIAM. Cherif Boukhtouchen petitions for review of
a decision of the Board of Immigration Appeals ("BIA") affirming an
order of removal against him. We deny the petition.
We recount the facts as presented in petitioner's oral
testimony and in the documentation he submitted in support of his
application for asylum. Petitioner is a citizen of Algeria and a
member of that country's Berber minority. In his application for
asylum1 and withholding of removal, petitioner described several
events in the 1960s, '70s, and '80s, during the period of military
rule in Algeria, when he faced harassment, such as being briefly
arrested following a political demonstration, police yelling at him
for speaking in the Kabylian language of the Berber minority, and
once having his car shot at by unknown assailants.
In the late 1980s, petitioner worked toward achieving
some autonomy for the Berber regions of Algeria. He wrote and
distributed a pamphlet arguing for federalism, and attempted,
unsuccessfully, to start a political party with the goal of
implementing federalism, multiparty democracy, and minority rights.
By 1993, petitioner felt that the government was beginning to crack
1
The Immigration Judge denied petitioner's application for
asylum because he had not sought asylum within one year of arriving
in the United States nor established that an exception to that
deadline applied. See 8 U.S.C. § 1158(a)(2)(B) & (D). The BIA
affirmed that decision. Petitioner does not seek review of that
decision, nor the decision to deny him protection under the
Convention Against Torture. He petitions for review only of the
decision to deny him withholding of removal.
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down on opposition. Although the government did not confront him,
he feared that his ethnic and political background, his writings,
and his frequent trips abroad would make him a target for
government pressure, and he left the country. From 1993 to 1999 he
lived in Niger and Benin, with a brief return to Algeria in 1998.
In 1999, petitioner came to the United States and
overstayed his visa. On or about January 10, 2003, the Immigration
and Naturalization Service ("INS")2 filed a Notice to Appear, and
on September 4, 2003, petitioner filed his application for asylum
and withholding of removal. On March 22, 2005, an Immigration
Judge denied his application, a decision that was affirmed by the
BIA on October 16, 2006.
We review the decision of the BIA as the final agency
order. Mukamusoni v. Ashcroft, 390 F.3d 110, 199 (1st Cir. 2004);
Georcely v. Ashcroft, 375 F.3d 45, 49 (1st Cir. 2004) ("When the
BIA issues its own opinion, we review the Board's decision and not
the immigration judge's."). We review the factual determinations
of the BIA under the deferential "substantial evidence" standard.
Orelien v. Gonzales, 467 F.3d 67, 70 (1st Cir. 2006). Under this
standard, we will uphold a decision of the BIA if "'supported by
reasonable, substantial, and probative evidence on the record
2
On March 1, 2003, the functions of the INS were transferred
to the Department of Homeland Security. Homeland Security Act of
2002, Pub. L. No. 107-296, § 471(a), 116 Stat. 2135, 2205 (codified
at 6 U.S.C. § 291(a)).
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considered as a whole.'" INS v. Elias-Zacarias, 502 U.S. 478, 481
(1992) (quoting 8 U.S.C. § 1105a(a)(4) (1988)). "This means that
the BIA's determination must stand unless 'any reasonable
adjudicator would be compelled to conclude to the contrary.'"
Rodriguez-Ramirez v. Ashcroft, 398 F.3d 120, 124 (1st Cir. 2005)
(quoting 8 U.S.C. § 1252(b)(4)(B)).
To qualify for withholding of removal, the petitioner
must show that his "life or freedom would be threatened in [the
removal] country because of [his] race, religion, nationality,
membership in a particular social group, or political opinion." 8
U.S.C. § 1231(b)(3)(A). "As a general rule, withholding is
mandatory if an alien 'establish[es] that it is more likely than
not that [he] would be subject to persecution on one of the
specified grounds.'" INS v. Aguirre-Aguirre, 526 U.S. 415, 419
(1999) (quoting INS v. Stevic, 467 U.S. 407, 429-30 (1984)); accord
Albathani v. INS, 318 F.3d 365, 372-73 (1st Cir. 2003) (applying
"more likely than not" standard). This is a tougher standard than
that for asylum, which requires only a "well-founded fear of
persecution." 8 U.S.C. § 1101(a)(42)(A); see Aguilar-Solis v. INS,
168 F.3d 565, 569 n.3 (1st Cir. 1999) (contrasting "well-founded
fear of persecution" with "clear probability of persecution").
"If the applicant is determined to have suffered past
persecution in the proposed country of removal [based on one of the
protected grounds] it shall be presumed that the applicant's life
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or freedom would be threatened in the future in the country of
removal on the basis of the original claim." 8 C.F.R. §
1208.16(b)(1)(i). "To qualify as persecution, a person's
experience must rise above unpleasantness, harassment, and even
basic suffering." Nelson v. INS, 232 F.3d 258, 263 (1st Cir.
2000).
The BIA found that petitioner had not presented evidence
sufficient to show past persecution. The few events of harassment,
the BIA found, did not rise to the level of persecution, and
neither the petitioner nor his family members had ever been
targeted by the Algerian government. As the petitioner states in
his application for asylum, "I never personally experienced
significant harm or mistreatment. I did experience some forms of
threats that were generalized and regarded as ordinary in Algeria
at the time when they occurred." In his petition for review, the
petitioner does not give an argument, nor do we see one, against
the BIA's conclusion that he did not suffer past persecution, and
thus we turn to the issue of future persecution. See United States
v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
Having failed to establish past persecution, petitioner
is not entitled to a presumption of future persecution.
Palma-Mazariegos v. Gonzales, 428 F.3d 30, 35 (1st Cir. 2005). He
bears the burden of proving that it is more likely than not that he
will be persecuted based on a statutorily protected ground if he is
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deported to Algeria. Chahid Hayek v. Gonzales, 445 F.3d 501, 508
(1st Cir. 2006).
The petitioner's claim, essentially, is that as a
politically active member of the Berber minority, he is likely to
face persecution if he returns to Algeria. He points to evidence
of mistreatment of Berbers, including violence and death following
protests and riots by members of the Berber minority, and the
detention and beating of a prominent Berber activist, Belaid
Abrika. The BIA found that this was not sufficient to show
persecution, because the petitioner was not able to show that he
would be specifically targeted by the Algerian government, and
because he was not affiliated with Abrika other than through their
shared ethnicity. The BIA further noted that the petitioner was
unable to support his claim with evidence of persecution of family
members in Algeria.3
Petitioner's argument in his petition for review is not
so much that substantial evidence compels an alternative result,
3
Petitioner argues that it was inappropriate to look to the
treatment of his family members in determining the likelihood of
petitioner being persecuted if he returns to Algeria, because his
situation is not identical to theirs. This is mistaken; relatives'
situations in the home country, while not conclusive, are certainly
relevant. See Aguilar-Solis, 168 F.3d at 573 ("Without some
explanation, the fact that close relatives continue to live
peacefully in the alien's homeland undercuts the alien's claim that
persecution awaits his return"); In re A-E-—, 21 I. & N. Dec. 1157,
1160 (BIA 1998) (en banc) (holding that the reasonableness of an
alien's fear of persecution is reduced when his family remains in
his native country unharmed for a long period of time after his
departure).
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but rather that the BIA did not sufficiently consider all the
evidence or sufficiently explain its conclusion.4 To support his
argument, petitioner looks to the case of Halo v. Gonzales, 419
F.3d 15 (1st Cir. 2005), in which we stated that "[w]e may remand
. . . if the BIA's opinion fails to 'state with sufficient
particularity and clarity the reasons'" for its conclusion. Id. at
18 (quoting Gailius v. INS, 147 F.3d 34, 46 (1st Cir. 1998)).
However, as Halo and Gailius make clear, our concern is with
situations where the BIA has made a perfunctory decision to deny
relief in cases where the administrative record could support the
opposite conclusion. Halo, 419 F.3d at 19 (stating that the
evidence presented a strong argument for persecution, and the BIA
did not give its reasons for concluding the opposite); Gailius, 147
F.3d at 46 (stating that "the documentary evidence alone, if
genuine, could well cause us to question the conclusion that there
is no well-founded fear of persecution"); accord Xu v. Gonzales,
424 F.3d 45, 46 (1st Cir. 2005) ("We held in Halo that, where the
administrative record of a case could easily be thought to compel
a conclusion contrary to the one reached by the BIA, it is
4
Petitioner also argues that the BIA "applied an incorrect
legal standard" when it noted that there is no evidence that
petitioner is currently being targeted by the Algerian government.
This is without merit. Whether or not a person is currently being
targeted by a government is certainly relevant to the question of
whether he is likely to be persecuted in the future, and the BIA
was entitled to rely on that evidence. See, e.g., Chahid Hayek,
445 F.3d at 508.
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incumbent on the agency to give some reasoned explanation for the
conclusion it reached."); Sulaiman v. Gonzales, 429 F.3d 347, 350
(1st Cir. 2005) (holding that the agency "is obligated to offer
more explanation when the record suggests strong arguments for the
petitioner that [the agency] has not considered") (citing Halo, 419
F.3d at 15, and Gailius, 147 F.3d at 34).
Here, the BIA addressed petitioner's main arguments: his
previous detentions by the government; his membership in the Berber
minority; his political activism; and the arrest and detention of
a prominent Berber activist.5 The BIA also stated that it reviewed
the documentary evidence, which included reports on human rights in
Algeria from the U.S. Department of State and other governments,
and found that they did not support a claim of future persecution.
Given that the record does not "suggest[] strong arguments for the
petitioner," id., the BIA's treatment of his arguments was
sufficient. Furthermore, we are not compelled, on this record, to
conclude that it is more likely than not that petitioner will be
persecuted if he returns to Algeria.
The petition for review is denied.
5
Petitioner argues that the BIA "inappropriately provided no
weight" to the evidence of Abrika's treatment. This is also
without merit. The BIA considered the evidence and determined
that, because petitioner was not affiliated with Abrika's party and
did not approach Abrika's prominence, Abrika's treatment did not
support petitioner's claim that he would be treated in a similar
manner. We see no error in this.
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