20-1848
Houmita v. Garland
BIA
Baumgarten, IJ
A079 719 324
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall
United States Courthouse, 40 Foley Square, in the City of
New York, on the 11th day of August, two thousand twenty-
one.
PRESENT:
ROSEMARY S. POOLER,
BARRINGTON D. PARKER,
JOSEPH F. BIANCO,
Circuit Judges.
_____________________________________
ABDELHAKIM HOUMITA,
Petitioner,
v. 20-1848
NAC
MERRICK B. GARLAND, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Vilia B. Hayes; Dustin P. Smith;
Amina Hassan; Hughes Hubbard &
Reed LLP, New York, NY.
FOR RESPONDENT: Brian Boynton, Acting Assistant
Attorney General, John S. Hogan,
Assistant Director, Robbin K.
Blaya, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Abdelhakim Houmita, a native and citizen of
Algeria, seeks review of a May 14, 2020 decision of the BIA
affirming a November 19, 2019 decision of an Immigration Judge
(“IJ”), which denied asylum, withholding of removal, and
relief under the Convention Against Torture (“CAT”). In re
Abdelhakim Houmita, No. A 079 719 324 (B.I.A. May 14, 2020),
aff’g No. A079 719 324 (Immigr. Ct. Batavia Nov. 19, 2019).
We assume the parties’ familiarity with the underlying facts
and procedural history.
We have reviewed both the IJ’s and the BIA’s decisions
“for the sake of completeness.” Wangchuck v. Dep’t of
Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review
the agency’s factual findings for substantial evidence and
its legal conclusions de novo. See 8 U.S.C. § 1252(b)(4)(B);
Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
2
“[T]he administrative 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).
The agency reasonably concluded that the Department of
Homeland Security (“DHS”) met its burden to rebut the
presumption of future persecution by showing a fundamental
change in conditions in Algeria. See Lecaj v. Holder, 616
F.3d 111, 115, 119 (2d Cir. 2010) (reviewing country
conditions determination for substantial evidence). An
asylum applicant who has shown past persecution has a
rebuttable presumption of future persecution. 8 C.F.R.
§ 1208.13(b)(1). DHS can rebut that presumption by
establishing by a preponderance of the evidence that
circumstances in the country of past persecution have
fundamentally changed. Id. § 1208.13(b)(1)(i)(A). The
changed circumstances must “obviate the risk to life or
freedom related to the original claim.” Kone v. Holder, 596
F.3d 141, 149 (2d Cir. 2010) (internal quotation marks
omitted).
Substantial evidence supports the agency’s conclusion
that there was a fundamental change in conditions in Algeria.
3
The record reflects that an extremist group, Islamic
Salvation Front (“FIS”), persecuted Houmita in 1996 because
he had been a member of the military engaged in fighting the
FIS. Algeria outlawed the FIS in 1992, granted it amnesty
in 1999, and eradicated it by 2002. The evidence does not
reflect a present threat to Houmita or support his contention
that the FIS was absorbed into currently active terrorist
groups to such a degree as to constitute a continuing threat.
To the extent Houmita argues that the agency overlooked
evidence of an article regarding the FIS’s presence in current
groups, “we presume that an IJ has taken into account all of
the evidence . . . , unless the record compellingly suggests
otherwise.” Xiao Ji Chen v. U.S. Dep’t of Just., 471 F.3d
315, 336 n.17 (2d Cir. 2006). In any event, there is an
absence of evidence in the article that the FIS, through these
current groups, would seek out an individual, like Houmita,
who fought against the FIS.
Substantial evidence also supports the agency’s finding
that Houmita failed to establish a well-founded fear of
persecution on any ground independent of his past harm. He
did not show that former military members or individuals with
4
Western interests face systemic and pervasive persecution.
See Santoso v. Holder, 580 F.3d 110, 112 & n.1 (2d Cir. 2009)
(concluding there was no error in agency’s pattern or practice
finding where the agency considered country-conditions
evidence and that evidence did not show systemic and pervasive
persecution); see also 8 C.F.R. § 1208.13(b)(2)(iii); Matter
of A-M-, 23 I. & N. Dec. 737, 741 (B.I.A. 2005) (defining
pattern or practice of persecution as “systemic or
pervasive”).
We also find no error in the agency’s denial of
humanitarian asylum. The agency has discretion to grant
humanitarian asylum to an applicant who no longer has a fear
of future persecution if “(A) The applicant has demonstrated
compelling reasons for being unwilling or unable to return to
the country arising out of the severity of the past
persecution; or (B) The applicant has established that there
is a reasonable possibility that he or she may suffer other
serious harm upon removal to that country.” 8 C.F.R.
§ 1208.13(b)(1)(iii). Houmita did not assert “other serious
harm” before the agency, so the issue here is whether he
suffered “severe harm [from his past persecution] and the
5
long-lasting effects of that harm.” Jalloh v. Gonzales, 498
F.3d 148, 151 (2d Cir. 2007) (internal quotation marks
omitted); see also Lin Zhong v. U.S. Dep’t of Just., 480 F.3d
104, 107 n.1, 119–120 (2d Cir. 2007) (requiring exhaustion of
issues before BIA).
Although Houmita suffered significant past harm as a
result of attacks in 1996 by armed militiamen who Houmita
believed were members of the FIS, the agency did not err in
finding that his harm was not sufficiently severe for
humanitarian asylum. In reaching this conclusion, the agency
properly considered the “degree of harm suffered by the
applicant” and “the length of time over which the harm was
inflicted.” In re N-M-A-, 22 I. & N. Dec. 312, 326 (B.I.A.
1998); see also Hoxhallari v. Gonzales, 468 F.3d 179, 184 (2d
Cir. 2006) (finding harm not sufficiently “atrocious” where
applicant was beaten and harassed on six occasions).
Moreover, an applicant must also demonstrate lasting physical
or mental effects of the persecution, see Jalloh, 498 F.3d at
152, and Houmita had no evidence of lasting physical effects
and no evidence of mental effects or treatment prior to his
immigration detention in 2019. On this record, the agency
6
did not err in finding a lack of evidence of effects stemming
from the past harm. See id.
Finally, substantial evidence supports the agency’s
denial of CAT protection. See Nasrallah v. Barr, 140 S. Ct.
1683, 1692 (2020)(reviewing CAT determination for substantial
evidence); Hui Lin Huang v. Holder, 677 F.3d 130, 134 (2d
Cir. 2012) (likelihood of harm is factual determination).
Houmita did not show ongoing torture of former military
personnel by the FIS, and he did not allege that anyone had
inquired about him since 2007. See Jian Hui Shao v. Mukasey,
546 F.3d 138, 157–58 (2d Cir. 2008) (“[W]hen a petitioner
bears the burden of proof, his failure to adduce evidence can
itself constitute the ‘substantial evidence’ necessary to
support the agency’s challenged decision.”); Mu Xiang Lin v.
U.S. Dep’t of Just., 432 F.3d 156, 160 (2d Cir. 2005)
(requiring “particularized evidence” that applicant would be
subject to torture); Jian Xing Huang v. INS, 421 F.3d 125,
129 (2d Cir. 2005)(“In the absence of solid support in the
record . . . , [applicant’s] fear is speculative at best.”).
7
For the foregoing reasons, the petition for review is
DENIED. All pending motions and applications are DENIED and
stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
8