United States Court of Appeals
For the First Circuit
Nos. 03-1037, 03-1372
ABDEL HAMID MEKHOUKH,
Petitioner,
v.
JOHN ASHCROFT, ATTORNEY GENERAL
Respondent.
ON PETITIONS FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Circuit Judge,
Cyr, Senior Circuit Judge,
and Oberdorfer,* Senior District Judge.
Gerald D. Wall, with Greater Boston Legal Services on brief,
for petitioner.
Paul Fiorino, Attorney, with Peter D. Keisler, Assistant
Attorney General, and Richard M. Evans, Assistant Director, Office
of Immigration Litigation, on brief, for respondent.
February 13, 2004
*
Of the District of the District of Columbia, sitting by
designation.
OBERDORFER, Senior District Judge. Abdel Hamid Mekhoukh,
a native and citizen of Algeria, petitions for review of a decision
of the Board of Immigration Appeals, denying his application for
asylum, withholding of removal, and relief under Article 3 of the
United Nations Convention Against Torture. We deny the petition
for review.
I. BACKGROUND
This case arises against the background of the ongoing
and well-documented turmoil that has engulfed Algeria since late
1991. See generally Bureau of Democracy, Human Rights and Labor,
United States Department of State, 1999 Country Reports on Human
Rights Practices – 1999: Algeria (Feb. 25, 2000) (AR 1014-1031)
(“1999 Country Reports”); Bureau of Democracy, Human Rights and
Labor, United States Department of State, Algeria – Profile of
Asylum Claims and Country Conditions (June 1998) (AR 995-1013)
(“1998 Profile of Asylum Claims”); see also Mediouni v. INS, 314
F.3d 24, 25 (1st Cir. 2002); Debab v. INS, 163 F.3d 21, 23 (1st
Cir. 1998); Meguenine v. INS, 139 F.3d 25, 26 (1st Cir. 1998). The
conflict began when the ruling party, the National Liberation Front
(FLN), foreseeing a loss to an Islamic fundamentalist party, the
Islamic Salvation Front (FIS), cancelled the second round of
scheduled democratic elections. The military then took power from
the civilian President. These events caused significant unrest in
the country. Since then, the government of Algeria has been
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engaged in a brutal conflict with radical Islamic parties,
resulting in over 100,000 deaths. Torture and other human rights
abuses, including the killing of innocent civilians, have been
perpetrated by both the armed insurgents and the government’s
security forces. See 1999 Country Reports 1 (AR 1014) (“The
security forces committed numerous serious human rights abuses.”);
1998 Profile of Asylum Claims 5 (AR 999) (“Security forces commit
serious abuses. They were responsible for numerous disappearances,
carried out extra-judicial killings, routinely tortured and
otherwise abused detainees, and arbitrarily arrested and detained
or held incommunicado many individuals suspected of involvement
with armed Islamic groups.”); see also Meguenine, 139 F.3d at 26
(“Both sides have acted with considerable brutality toward the
civilian population.”).
Mekhoukh, an ethnic Berber,1 was born on April 28, 1967,
in Algiers, Algeria. During the years he lived in Algeria, from
birth until 1997, he supported Berber causes, but he was not an
activist. On one occasion, around 1985, when he was about 18, he
met, and had his picture taken with Lounes Matoub, a popular
entertainer and Berber activist who was assassinated by Islamic
radicals in 1998. While he was in Algeria, Mekhoukh suffered no
1
The Berbers were the original inhabitants of Algeria. Bureau
of Democracy, Human Rights and Labor, United States Department of
State, Algeria – Profile of Asylum Claims and Country Conditions 11
(June 1998) (AR 1005).
-3-
persecution on account of his Berber ethnicity or his support of
Berber causes.
In approximately 1988, Mekhoukh received his first draft
notice. Mekhoukh was then enrolled at a university and eligible
for an educational deferment. In late 1991, the university
temporarily closed due to political unrest in the country. See
infra. When it reopened in the spring of 1992, Mekhoukh did not
return. At that point, he was no longer entitled to an exemption
from military service, but he continued to avoid his military
obligation by filing false educational certificates. While he was
in Algeria, Mekhoukh never claimed that he had a conscientious
objection to military service in the Algerian military; nor did he
ever inquire about the possibility of alternative service.
Mekhoukh received draft notices after he left the university, but
the record does not establish when those notices were received, how
many were received, or their content.2 Mekhoukh remained in
Algeria, working, until 1997. During those five years, between
1992 and 1997, Mekhoukh experienced no negative consequences as a
result of his fraudulent avoidance of military service.
When the conflict in Algeria started in 1991, Mekhoukh
did not align himself with either the ruling party or the FIS. His
2
The immigration judge accepted Mekhoukh’s proffer that he had
received additional draft notices. We note, however, that copies
of draft notices were not among the additional documents submitted
by Mekhoukh with his appeal to the Board.
-4-
position was, and remains today, that the government should not
have cancelled the elections and that the FIS had the right to rule
if democratically elected. While he was in Algeria, Mekhoukh
suffered no persecution on account of these political opinions.
Mekhoukh left Algeria in 1997 and reached the United
States in 1998, entering on a forged French passport. After
leaving the United States for New Zealand, where his application
for asylum was denied, he reentered the United States in October
1999. He was detained by the INS and determined to be deportable.
He then applied for asylum, for withholding of deportation, and for
protection under the United Nations Convention Against Torture.
After a number of continuances, the retention and firing of one
attorney, and several changes of venue (from Los Angeles to Houston
to Boston), Mekhoukh finally filed his official application for
asylum, withholding of removal and protection under the Convention
Against Torture on October 20, 2000. (His application for asylum
was just barely within the one-year time limit that applies to
asylum claims). At the initial proceeding, Mekhoukh was advised
that he had the right to be represented by counsel at his hearing,
although not the right to appointed counsel. He was given a list
of persons and organizations he could contact for help in finding
an attorney. A hearing date of February 8, 2001, was set, giving
him over three months to find counsel and prepare.
-5-
On February 8, 2001, Mekhoukh appeared for his hearing
late and without counsel. He asked for a continuance, saying that
he had important documents on the way and that he wanted to obtain
an attorney. The immigration judge denied his motion, noting that
Mekhoukh had been in the country for more than a year, that three
months had passed since he had filed his official application, and
that it would be unfair to other applicants to squander the three
hours she had set aside for his case. However, she accepted his
proffer as to what the additional documentary evidence would show.
An interpreter was present at the hearing, although Mekhoukh
himself testified mostly in English.
At the conclusion of his hearing, the immigration judge
issued an oral decision denying Mekhoukh’s application for asylum,
for withholding of deportation, and for protection under the United
Nations Convention Against Torture. She concluded that Mekhoukh
failed to meet his burden to show a well-founded fear of
persecution, and necessarily failed to show a likelihood of
persecution, on account of his ethnicity, political opinions,
and/or his avoidance of military service.
Mekhoukh appealed to the Board of Immigration Appeals.
He provided the Board with additional documentary evidence,
including a copy of his forged school certificate for the year
1994-95, a copy of his picture with Matoub, and copies of a number
of government reports and media publications, documenting the
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violence and human rights abuses that have been endemic in Algeria
since 1991. He did not submit copies of any draft notices. He
asked the Board either to reverse on the existing record or to
remand his case to the immigration judge for further consideration
in light of this additional evidence. On December 4, 2002, the
Board of Immigration Appeals affirmed, without opinion, making the
immigration judge’s decision the final agency determination. See
8 C.F.R. § 1003.1(e)(4).
Mekhoukh moved for reconsideration, contending that the
Board had failed to consider his new evidence and that he was
entitled to a remand to permit the immigration judge to consider
it. He also argued that the Board’s decision to affirm without
opinion was improper where new evidence was proffered. The Board
denied the motion on February 13, 2002. It stated that it had
considered Mekhoukh’s new evidence prior to affirming the
immigration judge’s decision. It further noted that to the extent
Mekhoukh was objecting to the fact that it affirmed without
opinion, such motions were barred by regulation. See 8 C.F.R. §
1003.2(b)(3).
Mekhoukh petitions for review of the denial of his
application for asylum, for withholding of deportation, and for
protection under the Convention Against Torture.
-7-
II. DISCUSSION
We have jurisdiction over Mekhoukh’s appeal pursuant to
8 U.S.C. § 1252(b)(4).
A. Standard of Review
Our review of an order of removal is circumscribed by
statute. A court of appeals must decide a petition for review
“only on the administrative record on which the order of removal is
based.” 8 U.S.C. § 1252(b)(4)(A). “[T]he administrative findings
of fact are conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary,” id. at 1252(b)(4)(B)
(emphasis added), and “a decision that an alien is not eligible for
admission to the United States is conclusive unless manifestly
contrary to law,” id. at 1252(b)(4)(C).
B. Asylum
In order to be eligible for asylum, an alien must be a
“refugee within the meaning of section 1101(a)(42)(A) of [Title 8
of the United States Code].” 8 U.S.C. § 1158(b)(1). A “refugee”
is defined, in relevant part, as
any person who is outside any country of such
person’s nationality . . . and who is unable
or unwilling to return to, and is unable or
unwilling to avail himself or herself of the
protection of, that 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-
8 U.S.C. § 1101(a)(42); see also Albathani v. INS, 318 F.3d 365,
373 (1st Cir. 2003).3 An asylum applicant bears the burden of
establishing that he or she falls within the statutory definition
of “refugee.” See 8 C.F.R. § 208.13(a); see also Fesseha v.
Ashcroft, 333 F.3d 13, 18 (1st Cir. 2003).
Mekhoukh does not claim that he has suffered any
persecution in the past, but that he has a “well-founded fear of
persecution” if he returns to Algeria. An applicant has a “well-
founded fear of persecution” if “(A) [t]he applicant has a fear of
persecution in his or her country of nationality . . . on account
of race, religion, nationality, membership in a particular social
group, or political opinion; (B) [t]here is a reasonable
possibility of suffering such persecution if he or she were to
return to that country; and (C) [h]e or she is unable or unwilling
to return to, or avail himself or herself of the protection of,
that country because of such fear.” 8 C.F.R. § 208.13(b)(2)(i).
Thus, a well-founded fear of persecution has both subjective and
objective components: (1) subjectively, the asylum-seeker must
show a genuine fear of persecution, and (2) objectively, the record
must show “by credible, direct, and specific evidence, . . . facts
that would support a reasonable fear that the petitioner faces
3
Obtaining asylum is actually a two-step process. If an alien
successfully demonstrates that he/she is eligible for asylum, then
the Attorney General has the discretion to decide whether or not to
grant asylum. 8 U.S.C. § 1158(b)(1).
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persecution.” See Guzman v. INS, 327 F.3d 11, 16 (1st Cir. 2003)
(quoting Ravindran v. INS, 976 F.2d 754, 758 (1st Cir. 1992)
(quoting Alvarez-Flores v. INS, 909 F.2d 1, 5 (1st Cir. 1990))).
The immigration judge accepted Mekhoukh’s claim that he
feared persecution, but concluded that the record evidence did not
establish that his fear was well-founded. On appeal, Mekhoukh
contends that the immigration judge erred in her weighing of the
record evidence; he maintains that the record demonstrates that his
fear of persecution on account of his ethnicity, his political
opinions and/or his avoidance of military service is well-founded.
He also raises several procedural issues, challenging the fairness
of his hearing before the immigration judge and the Board’s
abbreviated review of that decision.
1. Ethnicity and Political Opinions
Mekhoukh first claims he has a well-founded fear of
persecution based on his ethnicity and political opinions because
he is a Berber, he supports Berber causes, and he is likely to be
perceived as a Berber activist. In order to be eligible for asylum
on this ground, Mekhoukh must demonstrate that there is a
“reasonable possibility” that he is likely to be identified as a
target for persecution on account of his ethnicity or political
opinions. See Debab, 163 F.3d at 27 (“Generally, evidence of
widespread violence and human rights violations affecting all
citizens is insufficient to establish persecution.” (internal
-10-
quotations omitted)); see also 1998 Profile of Asylum Claims 7 (AR
1001) (“[I]t is important in our view to differentiate between:
Algerian political asylum applicants with legitimate fears based on
who they are and what they have done; and the majority of
applications – many of whom are young adults whose personal
security situation does not appear to be very different from that
faced by the Algerian population at large and who may be seeking to
escape the turmoil or find better economic opportunities in the
United States.”) The immigration judge concluded, and we agree,
that the record does not support such a finding.
We consider first whether Mekhoukh’s Berber ethnicity in
and of itself renders him eligible for asylum. Under certain
limited circumstances, an applicant may be eligible for asylum
without providing evidence that he “would be singled out
individually for persecution if:. . . (A) [he] establishes that
there is a pattern or practice in his or her country of nationality
. . . of persecution of a group of persons similarly situated to
the applicant on account of race, religion, nationality, membership
in a particular social group, or political opinion; and . . . (B)
[he] establishes his or her own inclusion in, and identification
with, such group of persons such that his or her fear of
persecution upon return is reasonable.” 8 C.F.R. §
208.13(b)(2)(iii). While there is no issue as to Mekhoukh’s Berber
ethnicity, the record does not support, much less compel, the
-11-
conclusion that there is a “pattern or practice” of persecution
directed at persons of Berber ethnicity. Cf. Meguenine, 139 F.3d
at 28 (asylum claim denied because no pattern or practice of
targeting neutral health care workers in Algeria). According to
the State Department, “there may be some discrimination and
harassment of Berbers in the capital city of Algiers and other
large towns, but there is no pattern of action by the Algerian
authorities against Algerians simply because they are of Berber
origin.” 1998 Profile of Asylum Claims 12 (AR 1006). None of the
evidence proffered by Mekhoukh, before the immigration judge or to
the Board, compels a contrary finding. Accordingly, Mekhoukh’s
Berber ethnicity by itself does not demonstrate his eligibility for
asylum.
We consider next Mekhoukh’s claim that he has a well-
founded fear of persecution based on his Berber ethnicity combined
with his support for Berber causes. Again, as there is no evidence
that similarly situated persons have been targeted for persecution,
Mekhoukh cannot rely solely on his inclusion in that group to
support his asylum claim. 8 C.F.R. § 208.13(b)(iii). Nor are
those characteristics likely to cause the government to single him
out for persecution.
Mekhoukh also contends, however, that there is a
reasonable possibility that he will be “perceived” as an activist
-12-
for Berber causes and persecuted.4 Even assuming that the record
supported Mekhoukh’s claim that Berber activists as a group face
systematic persecution, it does not establish a reasonable
possibility that Mekhoukh would be perceived as a member of this
group. See 8 C.F.R. § 208.13(b)(2)(iii)(B). Mekhoukh claims that
he could be perceived as an activist because of his Berber
ethnicity, his support of Berber causes, and the fact that he had
his picture taken, in approximately 1985, with a renowned activist,
Lounes Matoub. It is hard to imagine that these facts would ever
result in the government labeling Mekhoukh an activist; they
certainly do not compel that conclusion, especially when the other
record evidence is considered. For example, Mekhoukh remained in
Algeria for a number of years after the picture was taken without
ever experiencing any persecution. And no member of his family has
ever been persecuted. See Aguilar-Solis v. INS, 168 F.3d 565, 573
(1st Cir. 1999) (“[T]he fact that close relatives continue to live
peacefully in the alien's homeland undercuts the alien's claim that
persecution awaits his return.”). It is similarly impossible to
imagine that these facts would lead the government to target
Mekhoukh for persecution. Cf. Meguenine, 139 F.3d at 29 (“[T]he
Board could reject [the applicant’s] fears of specific harm on this
record as insufficiently severe and particular to support
4
Mekhoukh admits that he is not, and never has been, an
activist.
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eligibility for asylum . . . .”). Accordingly, we agree with the
immigration judge that Mekhoukh’s fear of persecution based on his
Berber ethnicity and support of Berber political causes is not
well-founded.
In a slight modification of his argument, Mekhoukh also
claims that he is likely to be targeted for persecution because of
his political opinion that the government should not have cancelled
democratic elections in 1991, that the Islamic fundamentalist party
has the right to rule if democratically elected and that the
present government is illegitimate. Even assuming that Mekhoukh’s
“neutrality” qualifies as a political opinion for asylum purposes,5
there is simply no evidence in the record that persons who hold
this opinion are targeted for persecution or that Mekhoukh himself
is likely to be identified as such a person and targeted.
Mekhoukh, if he returns to Algeria, may well be at risk
because of the ongoing violence between the government’s security
forces and armed insurgent groups. However, the record does not
support Mekhoukh’s claim that he faces persecution for his
ethnicity or political opinions. Accordingly, we agree with the
immigration judge that Mekhoukh has not proved a well-founded fear
of persecution based on either his ethnicity or political opinions.
5
For a discussion of the standard for determining when an
applicant is eligible for asylum when the applicant faces the
prospect of persecution because of a political opinion of
neutrality, see Novoa-Umania v. INS, 896 F.2d 1, 3 (1st Cir. 1990).
-14-
2. Evasion of Military Service
Mekhoukh also claims he has a well-founded fear of
persecution based on his avoidance of military service. Even
though a sovereign nation enjoys the right to enforce its laws of
conscription, and normal penalties for evasion generally are not
considered persecution, see Selective Draft Law Cases, 245 U.S.
366, 378 (1918), two types of asylum claims can arise based on
avoidance of military service. First, an alien may be eligible for
asylum if “refusal to serve in the military results not in normal
draft evasion penalties, but rather in disproportionately severe
punishment on account of one of the five grounds enumerated in the
. . . Refugee Act.” See M.A. v. INS, 899 F.2d 304, 312 (4th Cir.
1990) (citing Office of the United Nations High Commissioner for
Refugees, Handbook on Procedures and Criteria for Determining
Refugee Status ¶¶ 169, 171 (Geneva 1979) (“Refugee Handbook”)).6
Second, an alien is eligible for asylum if “the alien would be
associated with a military whose acts are condemned by the
international community as contrary to the basic rules of human
conduct.” Id.; see also Vujisic v. INS, 224 F.3d 578, 580 (7th
Cir. 2000); Mojsilovic v. INS, 156 F.3d 743, 746 (7th Cir. 1998).
6
Although not binding and lacking the force of law, the
Refugee Handbook has been recognized as providing significant
guidance interpreting the term “refugee” in 8 U.S.C. § 1158(b)(1).
See INS v. Cardoza-Fonseca, 480 U.S. 421, 439 n.22 (1987); M.A. v.
INS, 899 F.2d at 312; Mojsilovic v. INS, 156 F.3d 743, 747 (7th
Cir. 1998).
-15-
Under those circumstances, “punishment for desertion or draft
evasion could . . . in itself be regarded as persecution.”
Vujisic, 224 F.3d at 581 (quoting Refugee Handbook ¶ 171).
Mekhoukh claims he is eligible for asylum on both accounts.
a. Excessive Punishment
Mekhoukh’s claim that his draft evasion will lead the
government to label him as an Islamic fundamentalist sympathizer
and a terrorist and, therefore, to target him for abuse or death,
has little support in the record. As noted above, Mekhoukh’s own
testimony establishes that he has not been an activist in any way
and that he has never identified himself as a supporter or
sympathizer with any of the armed insurgent groups, making it
unlikely that the Algerian government would label him a terrorist
and impose a disproportionately severe punishment on him for his
draft evasion. Moreover, there is no evidence that the Algerian
government is likely to label draft evaders as terrorists or target
them for persecution.7 Absent such evidence, Mekhoukh is not
eligible for asylum on this basis. See M.A. v. INS, 899 F.2d at
314 (petitioner “failed to show that he would be singled out for
his refusal to serve”).
7
Although we do not rely on it, we note that this conclusion
is supported in a recent report from the United Kingdom, see
Country and Information Policy Unit, Home Office, United Kingdom,
Algeria, Country Report §§ 5.86 – 5.95 (October 2003) (“United
Kingdom Country Report”).
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b. Conscientious Objection
Mekhoukh also claims that he avoided his military service
in Algeria, and wants to continue to avoid it, because he objects
to serving in a military that is known to commit human rights
abuses. Mekhoukh is eligible for asylum on this ground only if (1)
the Algerian military has been condemned by the international
community as a military that commits human rights abuses; (2) there
is a reasonable possibility that Mekhoukh will have to serve in
that military if he returns to Algeria or face punishment for
refusing to serve; and (3) Mekhoukh has a genuine conscientious
objection to service. Mekhoukh bears the burden of establishing
these facts.
i. Nature of Algerian Military
It is difficult to discern from the immigration judge’s
oral decision whether she expressly considered and/or made a
finding about the nature of the Algerian military, but the record
clearly establishes that the Algerian military is a military whose
acts are condemned by the international community as contrary to
the basis rules of human conduct.8 See, e.g., 1999 Country Reports
1 (AR 1014) (“security forces have committed numerous serious human
rights abuses”); see also 1998 Profile of Asylum Claims 7 (AR 1001)
8
The immigration judge acknowledged that the State
Department’s 1999 Country Report for Algeria was entered into
evidence, but she never refers to what it says about the Algerian
security forces and their human rights abuses.
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(“security forces have allegedly resorted to the arrest,
interrogation, and torture of persons suspected of having Islamist
sympathies”).9
ii. Military Service
An alien’s claim to asylum based on his objection to
serving in an internationally condemned military requires proof
that there is a reasonable possibility that the alien will have to
serve or be punished for refusing to serve. See Mojlisovic, 156
F.3d at 747.10 The immigration judge concluded that Mekhoukh failed
to meet his burden of proof on this point because he failed to
establish that alternative service was not available or to ask
about the possibility of non-combat positions. Mekhoukh contends
that she assigned too much weight to this particular fact. He
points out on appeal that there are many practical reasons why an
alien might fail to inquire about the possibility of alternative
9
More recent State Department Reports indicate that
circumstances in Algeria have improved slightly, but not materially
changed. See, e.g., Bureau of Democracy, Human Rights and Labor,
United States Department of State, Country Reports on Human Rights
Practices – 2002: Algeria (March 31, 2003).
10
In Mojsilovic, the court found that the applicant failed to
meet his burden where “the bulk of the evidence suggests that the
Yugoslav Army will not sanction [the petitioner] for failing to
respond to his draft notice.” 156 F.3d at 747. It noted that the
applicant’s testimony that draft evaders were punished did not
overcome “[t]he State Department reports that many males avoid
compulsory service, that draft dodgers are not pursued
aggressively, and that approximately 100,000 eligible males are
living abroad and there is no pattern of arrest or harassment when
they return home.” Id.
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service.11 But he apparently failed to advance these reasons to the
Immigration Judge; nor does he seriously claim that they apply to
him. His real reason for not inquiring, suggested by his testimony
and clearly asserted on appeal, is that he thought any inquiry
would be futile. He asserts, without any supporting evidence, that
it is inconceivable that the Algerian military would give a
conscripted soldier the option of choosing a non-combat position.
His assertion may be correct, and any inquiry may have been futile.
But his failure to make any inquiry or to justify his failure does,
as the immigration judge concluded, amount to a failure to satisfy
his burden of proving that if he returned to Algeria he would, in
fact, have to serve in Algeria’s military in a combat position.
Certainly, the weight the immigration judge assigned to this fact
was not “manifestly contrary to law.” 8 U.S.C. § 1252(b)(4)(C).
Indeed, had Mekhoukh addressed his burden of proving his
assertion that a non-combat assignment was unavoidable by inquiring
about it, he might have discovered, as have we, that Algeria has
adopted a “Regularization” program for males of a certain age who
have not fulfilled their military service, under which they may be
excused from any further obligation. According to the 1999 Report
11
For example, practical difficulties, such as residence in the
United States, lack of contacts within the country of origin, or
lack of resources, might impede such an inquiry.
-19-
of the INS Resource Information Center,12 which was available at the
time of Mekhoukh’s immigration hearing, Algeria has established a
program to permit draft evaders, even those who are residing
outside of Algeria, to apply for “regularization” of their status.
See id. (“Algerians aged 27 and over who have not done military
service are currently being invited to apply for an exemption from
military service. It is still not clear who exactly will benefit
from such registration, but it appears that many individuals
considered draft evaders or who presently have a deferral may be
included.”).13
Mekhoukh had the burden of proving that if he returned to
Algeria he would be drafted, assigned to combat duty, and become
12
INS Resource Information Center, Response to Information
Request No. DZA0002.znk (Washington, D.C., Oct. 4, 1999).
13
A more detailed description of the regularization option
appears in the United Kingdom Report: “During 1999 and 2000
measures were initiated to regulari[z]e the situation of men who
had not undertaken their conscription. The reasons given include
the Algerian military authorities wish to relax the requirements
for military service, the high cost of military training,
overpopulated barracks, and the situation of young men who are
unable to obtain official documents and obtain employment.” §
5.73. According to this report, “[b]y February 2001, 25,000
registrations had been made from abroad. If everything is found in
order the applicants finally receive a dispensation document . . .
. If they are staying abroad they can apply to the consulate and
fill out an application form. They can return to Algeria
subsequently without a problem.” Id. § 5.74. Presently, all men
born before December 31, 1980, are eligible to apply for
regulari[z]ation. Id. § 5.76-5.77. Persons who had deferments or
who had been called to service are eligible to apply; persons
subject to a “wanted notice” or deserters are not eligible. Id. §
5.78-5.79.
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obligated to commit human rights violations. His burden included
pursuit of evidence to sustain his assertion. He has failed to do
so.
iii. Genuine Conscientious Objection
The immigration judge did not make a finding as to
whether Mekhoukh has a genuine conscientious objection to service,
but that is immaterial as Mekhoukh’s claim was properly rejected on
other grounds.
3. Credibility
The immigration judge found that Mekhoukh was “not a
credible witness. He has made many assertions that are unfounded,
not corroborated and are simply improbable.” (AR 866.) Mekhoukh
challenges this finding on appeal. We need not address this issue
as the immigration judge rejected Mekhoukh’s asylum claim, and we
have reviewed and approved that rejection, without relying on the
adverse credibility finding.
4. Procedural Fairness of Immigration Hearing
Having concluded that the existing record fails to
establish Mekhoukh’s eligibility for asylum, we must consider his
claim that procedural flaws compromised the fundamental fairness of
his hearing before the immigration judge and necessitate a remand.
“It is well established that the Fifth Amendment entitles aliens to
due process of law in deportation proceedings.” Morales v. INS,
208 F.3d 323, 327 n.1 (1st Cir. 2000) (quoting Reno v. Flores, 507
-21-
U.S. 292, 306 (1993)). Mekhoukh contends his hearing was unfair
because of his lack of counsel, the incompetency of the
interpreter, and the immigration judge’s failure to fully develop
the record. We apply de novo review to a claim that an
administrative law judge violated a party’s right to due process.
Aguilar-Solis v. INS, 168 F.3d at 568.
a. Lack of Counsel
Mekhoukh first contends that the hearing before the
immigration judge was fundamentally unfair because his lack of
counsel hindered his ability to present his case, particularly
given the language barriers. The absence of counsel in and of
itself cannot support Mekhoukh’s claim. A petitioner in an asylum
proceeding is not entitled to appointed counsel. Moreover, the
immigration judges throughout this proceeding have more than
fulfilled their obligation to inform Mekhoukh of his rights and
options with respect to counsel. Before the case was transferred
to Boston, at Mekhoukh’s request, he had retained and dismissed one
counsel. After he filed his official application in Boston, the
immigration judge for his case informed him that he was entitled to
retain counsel, continued the hearing for several months in order
to give him time to do so, and provided him with a list of
contacts. Under such circumstances, it was certainly reasonable
for the immigration judge not to give him any additional time when,
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three months later, he appeared without counsel on the day of his
hearing.
b. Quality of Translation
Mekhoukh also contends that his hearing was fundamentally
unfair because the interpreter was incompetent. He argues that the
interpreter’s errors led to an inaccurate portrayal of his
testimony with respect to the substance of his claim for asylum and
created apparent conflicts in his testimony that led the
immigration judge to make an adverse credibility determination.
On the first point, although the interpretation of
Mekhoukh’s testimony was not flawless, Mekhoukh fails to identify
a single instance where the transcript reflects a material mistake
in the interpretation of his testimony. And having reviewed the
transcript in its entirety, we see no indication that any of the
errors in interpretation had any, much less a serious, effect on
the accuracy of the hearing record. To the contrary, the
transcript establishes that most of the mistakes in interpretation
were almost immediately caught, by Mekhoukh himself, and corrected.
For example, Mekhoukh makes much of the translator’s mistake in
interpreting “Berberic” as “barbaric,” but that error was
identified and corrected almost immediately. These errors, while
unfortunate, did not render Mekhoukh’s hearing fundamentally
unfair. As for Mekhoukh’s contention that errors in translation
negatively affected the immigration judge’s evaluation of
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Mekhoukh’s credibility, we have resolved the merits of Mekhoukh’s
appeal without reference to the immigration judge’s adverse
credibility finding. Accordingly, even if translation errors
affected the immigration judge’s credibility finding, they did not
deprive Mekhoukh of a fair hearing.
c. Hearing Record
Mekhoukh also contends that his hearing was fundamentally
unfair because the immigration judge failed to fully develop the
record.14 Mekhoukh contends that the immigration judge failed to
meet this obligation because she failed to ensure a competent
translator. However, as discussed above, Mekhoukh has failed to
demonstrate that there were any errors in the translation that
seriously affected the accuracy of the material information in the
14
As explained by the Second Circuit, this duty exists because,
the IJ whose decision the Board reviews, unlike an
Article III judge, is not merely the fact finder and
adjudicator but also has an obligation to establish the
record. 8 U.S.C. § 1229a (b)(1) (“The immigration judge
shall administer oaths, receive evidence, and
interrogate, examine, and cross-examine the alien and any
witnesses.”); United Nations Handbook on Procedures &
Criteria for Determining Refugee Status: Office of the
United Nation's High Commissioner for Refugees, para.
196; 205(b)(i) (1979) (stating that the asylum statute
contemplates that “the duty to ascertain and evaluate all
the relevant facts is shared between the applicant and
examiner” and that the asylum adjudicator must “ensure
that the applicant presents his case as fully as possible
and with all available evidence").
Yang v. McElroy, 277 F.3d at 162.
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hearing record. Accordingly, we find Mekhoukh’s claim that the
immigration judge failed to fully develop the record unpersuasive.
5. Fairness of Board’s Procedures
Mekhoukh argues that the Board should have considered the
new evidence he presented on appeal. We need not resolve this
issue because even if the Board erred, its error was harmless. The
evidence submitted by Mekhoukh to the Board, and included in the
administrative record filed with this court on appeal, contains no
information that materially affects the outcome of Mekhoukh’s
claims.
Mekhoukh also challenges the Board’s decision to affirm
without opinion. By regulation, the Board, acting through a single
member, is authorized to affirm, without opinion, the result of the
decision below, when a Board member determines that the result
reached by the immigration judge was correct, that any errors in
the decision were harmless or nonmaterial, and that either the
issue is squarely controlled by precedent and does not involve a
novel fact pattern, or that the factual and legal questions raised
are so insubstantial that three-member review is not warranted. 8
C.F.R. §§ 1003.1(a)(7)(A)-(B), 1003.1(e)(4); see El Moraghy, 331
F.3d at 205-06. As a general matter, this court has upheld these
streamlining regulations as a valid exercise of the Attorney
General’s discretion to fashion its own rules of procedure. Id. at
206 (citing Albathani, 318 F.3d at 377). With respect to the
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application of the streamlining procedure to this particular case,
we have reviewed the merits of the IJ’s decision and found no
reversible error. Accordingly, whether this case was appropriately
streamlined is moot. Cf. El Moraghy, 331 F.3d at 206 (“We need not
address the question of whether the decision to streamline this
case was proper, because our review of the IJ’s decision
necessitates a remand to the BIA for further proceedings.”).
C. Withholding of Removal
An alien seeking withholding of removal bears the burden
of proving that his or her “life or freedom would be threatened in
that country because of the alien’s race, religion, nationality,
membership in a particular social group, or political opinion.” 8
U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 208.16(b). An alien who fails
to satisfy the asylum standard automatically fails to satisfy the
more stringent test for withholding of removal. See Guzman v. INS,
327 F.3d at 16; Alvarez-Flores, 909 F.2d at 5. Accordingly,
Mekhoukh’s application for withholding of removal was properly
denied.
D. Convention Against Torture
Mekhoukh’s final claim is that he is eligible for
withholding of removal under the United Nations Convention Against
Torture.15 In order to obtain protection thereunder, Mekhoukh bore
15
The Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85,
was implemented in the United States by the Foreign Affairs and
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the burden of proving “that it is more likely than not that he . .
. would be tortured if removed to the proposed country of removal.”
8 C.F.R. § 208.16(c)(2). Torture is defined as “any act by which
severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person for such purposes as obtaining
from him or her or a third person information or a confession,
punishing him for an act he or she or a third person has committed
or is suspected of having committed, or intimidating or coercing
him or her or a third person, or for any reason based on
discrimination of any kind, when such pain or suffering is
inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an
official capacity.” 8 C.F.R. § 208.18(a)(1). The immigration
judge concluded that the evidence did not support Mekhoukh’s claim
for protection under the Convention against Torture, and we agree.
The record lacks any persuasive, much less compelling, evidence
that it is more likely than not that Mekhoukh would be tortured
upon his return to Algeria. Indeed, Mekhoukh himself did not even
testify that he feared torture, as defined above. Accordingly, the
immigration judge did not err in denying relief under the
Convention Against Torture.
Restructuring Act of 1998, Pub. L. No. 105-277, § 2242, 112 Stat.
2681-761 (codified at 8 U.S.C. § 1231 (2000)). Article 3 prohibits
states from returning individuals to other states where there are
substantial grounds for believing they would be subject to torture.
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The petition for review is denied.
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