Makhoul v. Ashcroft

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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