Not for Publication in West’s Federal Reporter
United States Court of Appeals
For the First Circuit
No. 06-2347
LAHOUARI SAAD,
Petitioner,
v.
PETER D. KEISLER,*
ACTING ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Circuit Judge,
Selya, Senior Circuit Judge,
and Lipez, Circuit Judge.
Carlos E. Estrada, on brief for petitioner.
W. Manning Evans, Attorney, Office of Immigration Litigation,
Civil Division, U.S. Department of Justice, Peter D. Keisler,
Assistant Attorney General, Civil Division, and Mary Jane Candaux,
Senior Litigation Counsel, on brief for respondent.
October 19, 2007
*
Pursuant to Fed. R. App. P. 43(c)(2), Acting Attorney General
Peter D. Keisler is substituted for former Attorney General
Alberto R. Gonzáles as respondent.
TORRUELLA, Circuit Judge. On August 23, 2006, the Board
of Immigration Appeals ("BIA") dismissed Petitioner Lahouari Saad's
appeal of a decision by an Immigration Judge ("IJ") rejecting his
claims of asylum, withholding of removal, and relief under the
Convention Against Torture ("CAT"). Saad now petitions for review
of the BIA's dismissal, arguing that (1) the absence of a formal
denial of Saad's asylum application in the IJ's oral decision
required the BIA to remand the case; (2) the IJ's failure to
provide an explanation regarding Saad's ineligibility for an
exception to the one-year deadline for asylum claims warrants
remand; and (3) based on the evidence, the BIA erred in finding
that Saad failed to establish an objectively reasonable fear of
persecution. After consideration of Saad's arguments, we note that
we lack jurisdiction to review the finding that his asylum
application was untimely, and on the remaining claims, we deny the
petition for review.
I. Background
Saad is a thirty-nine-year-old native and citizen of
Algeria, who was admitted to the United States on July 13, 1997 on
a six-month visitor's visa and remained beyond the authorized
period. His claims for asylum, withholding of removal, and CAT
relief stem from repeated attempts by the Islamic Salvation Front
("FIS," for its French acronym), a radical Islamic group, to
recruit Saad in his hometown of Oran in early 1997. According to
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Saad's testimony, he was initially approached by two FIS members
when they asked him for a hotel recommendation while they stayed in
Oran, visiting a sick friend in the hospital where Saad worked.
Over the next few days, these men approached Saad three more times
outside the hospital, each time "strongly" urging him to join FIS
and help provide the group with medical supplies. When he declined
during the second encounter, the men became "very rude" and told
him they would give him some time to "think about it." During the
final confrontation, one of the FIS members grabbed Saad by the
throat and said, "Listen, we are not kidding here." After this
last encounter, Saad never returned to work at the hospital because
he was afraid for his life. He immediately applied for a visitor's
visa to the United States and left Algeria six weeks later.
During the interim six weeks, Saad had no contact with
the two FIS members. He does not know their names, and there is no
evidence that they knew his. Saad also stated that, as far as he
knew, the FIS members never looked for him at his house or
approached any of his seven siblings or his parents, all of whom
remained in Algeria.
In his testimony, Saad also related two other instances
involving people he knew, which made him particularly fearful. In
1995, a friend of Saad's was killed by the Armed Islamic Group
because he was cooperating with police in an investigation. Saad
also knew another hospital worker who had cooperated with
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terrorists and, as a result, had "disappeared" at the hands of the
police. Saad did not testify that he had any personal connection
to either incident.
Upon arriving in the United States in 1997, Saad did not
immediately apply for asylum. In 2000 or 2001, he consulted an
attorney when he purportedly won the diversity visa lottery, but
did not take any action to legalize his immigration status at that
time. On January 28, 2003, he reported for processing under the
requirements of the National Security Entry Exit Registration
System and was served with a Notice to Appear charging him with
being removable.
Consequently, Saad filed claims for asylum, withholding
of removal, and protection under the CAT. Because the asylum claim
was filed beyond the one-year deadline, Saad also submitted written
arguments and an affidavit alleging "changed or extraordinary
circumstances" that would excuse his failure to timely file. Saad
argued that his omission was a direct result of his lack of
knowledge of the asylum laws in the United States. It is unclear
from the record whether the IJ ever specifically denied the
exception to the one-year deadline. However, when the IJ asked
during the proceedings whether this was "a withholding only case,"
Saad's counsel responded, "Yes, Your Honor, that's correct.
Because the application for asylum is years after the fact."
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In an oral opinion, the IJ denied Saad's applications for
withholding of removal and CAT protection, but granted him
voluntary departure and issued an alternative order of removal to
Algeria. Regarding Saad's original asylum claim, the IJ noted that
it had been "time barred in that [Saad] failed to file within the
one year limit and [Saad's] attorney concede[d] that [Saad's]
request for relief is limited to withholding of removal." A formal
order denying the asylum claim was not included in the oral
decision but was included in the written decision.
In denying Saad's other claims, the IJ found that Saad
was "generally credible," but also found that, even assuming the
facts related by Saad were true, his past "encounters with the FIS
in Algeria cannot be said to amount to persecution" because
persecution "must amount to an experience that rises above mere
unpleasantness, harassment, or even basic suffering." Further, the
judge also found that Saad failed to show "a clear probability that
he will be persecuted if he returns to Algeria." Finally, with
respect to the CAT claim, the IJ concluded that Saad did not meet
his burden of proof because "[t]here is no evidence of Government
involvement in this case or any reference to torture."
The BIA dismissed Saad's appeal, rejecting his argument
that a remand was necessary because the IJ did not formally deny
the asylum application at the conclusion of his oral decision,
concluding that "any omission . . . is harmless" and a remand would
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be "administratively burdensome." The BIA also concluded that Saad
had failed to show changed or extraordinary circumstances necessary
to excuse an untimely asylum application. Finally, the BIA held
that the IJ properly dismissed the withholding of removal and CAT
claims because Saad had failed to establish past persecution or
torture, or a likelihood of future persecution or torture.
II. Discussion
On this petition for judicial review, Saad claims that
(1) the absence of a formal denial of his asylum application in the
IJ's oral decision was not, as the BIA found, a harmless error; (2)
the IJ's failure to provide reasoning regarding Saad's
ineligibility for an exception to the one-year deadline warranted
remand; and (3) based on the evidence, the IJ and BIA erred in
finding that Saad failed to carry his burden of establishing past
persecution or a likelihood of future persecution.
We review the BIA's decision as the final agency order.
Mukamusoni v. Ashcroft, 390 F.3d 110, 119 (1st Cir. 2004). Whether
or not an alien has met his burden is a determination that we
review under the deferential "substantial evidence" standard. See
Estrada-Canales v. Gonzáles, 437 F.3d 208, 215 (1st Cir. 2006).
Under this standard, the BIA's findings of fact are "conclusive
unless any reasonable adjudicator would be compelled to conclude to
the contrary." 8 U.S.C. § 1252(b)(4)(B). We will thus uphold the
BIA's decision if it is "supported by reasonable, substantial, and
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probative evidence on the record considered as a whole." Nikijuluw
v. Gonzáles, 427 F.3d 115, 120 (1st Cir. 2005) (quoting INS v.
Elías-Zacarías, 502 U.S. 478, 481 (1992)).
To establish eligibility for asylum, an alien must show
that he is a "refugee" within the meaning of the Immigration and
Nationality Act. See 8 U.S.C. § 1158(b)(1)(A). The alien may meet
his burden by establishing past persecution or a well-founded fear
of future persecution on account of an enumerated ground. See
Toloza-Jiménez v. Gonzáles, 457 F.3d 155, 161 (1st Cir. 2006). "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).
An alien must seek asylum within one year of entering the
United States, although the failure to file may be excused if the
alien shows "changed circumstances which materially affect the
applicant's eligibility for asylum or extraordinary circumstances
relating to the delay in filing an application." 8 U.S.C. § 1158
(a)(2)(D). However, "[n]o court shall have jurisdiction to review
any determination of the Attorney General under [§ 1158(a)(2)]."
Id. § 1158(a)(3); see Pan v. Gonzáles, 489 F.3d 80 84 (1st Cir.
2007). Therefore, this court lacks jurisdiction to review the
BIA's finding that Saad's application was time-barred.
If the alien does not qualify for asylum because he fails
to meet the one-year deadline, he may still qualify for withholding
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of removal. The burden, however, is higher, in that the applicant
must demonstrate that he is more likely than not to face
persecution on account of a protected ground. Silva v. Gonzáles,
463 F.3d 68, 72 (1st Cir. 2006); see also Raza v. Gonzáles, 484
F.3d 125, 129 (1st Cir. 2007) ("A claim for withholding of removal
carries with it a more stringent burden of proof than does a
counterpart effort to obtain asylum." (internal quotation marks
omitted)). Similarly, to qualify for protection under the CAT, the
alien must establish that it is more likely than not that he would
be tortured if he returned to his home country. Stroni v.
Gonzáles, 454 F.3d 82, 89-90 (1st Cir. 2006) (quoting 8 C.F.R.
§ 208.16(c)(2)). Torture refers to "an extreme form of cruel and
inhuman treatment," 8 C.F.R. § 1208.18(a)(2), dealt at the hand of
or with the acquiescence of the government. See Stroni, 454 F.3d
at 90.
In this case, the BIA found that Saad had not established
a likelihood of persecution or torture. We agree that there was
substantial evidence to support this finding. The FIS's
recruitment efforts were undoubtedly unpleasant, but they did not
rise to the level of persecution or torture, see Nelson, 232 F.3d
at 263-64, and there is no reason to suspect that the FIS will
pursue Saad were he to return to Algeria. Consequently, Saad is
not eligible for withholding of removal or CAT relief.
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III. Conclusion
For the foregoing reasons, we deny the petition for
review.
Denied.
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