United States Court of Appeals
For the First Circuit
No. 04-1541
No. 04-2185
ABDELHAFID ZAROUITE,
Petitioner
v.
ALBERTO GONZALES, ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Cyr, Senior Circuit Judge,
and Howard, Circuit Judge.
Jeremiah Friedman with whom Ilana Greenstein, Harvey Kaplan,
Maureen O'Sullivan and Kaplan, O'Sullivan & Friedman, LLP were on
brief for petitioner.
Joanne E. Johnson, Office of Immigration Litigation, Civil
Division, Department of Justice, with whom Peter D. Keisler,
Assistant Attorney General, Civil Division, and Papu Sandhu, Senior
Litigation Counsel, were on brief for respondent.
September 16, 2005
BOUDIN, Chief Judge. Abdelhafid Zarouite, a citizen of
Morocco, entered the United States without proper documentation in
June 2000. Removal proceedings began against him in the same
month, 8 U.S.C. §§ 1182(a)(6)(A)(i), (a)(7)(A)(i) (2000), during
which he conceded removability but sought asylum on grounds of
persecution. 8 U.S.C. § 1158(b)(1) (2000); 8 C.F.R. § 208.13(b)
(2005). The pertinent background events, and the allegations made
by Zarouite, are as follows.
Zarouite was born and raised in Casablanca, Morocco,
attended university there, and lived in the city until 1996. In
that year--according to Zarouite--he and his parents were forced by
the Moroccan government to move to the territory of Western Sahara.
Morocco currently occupies much of the area; the remaining parts of
the territory are apparently controlled by an independence
movement, the Polisario Front. In the 1990s Morocco and the
Polisario Front negotiated, under United Nations auspices, a
possible referendum to determine the territory's status.
A dispute existed as to whether all residents would be
permitted to vote in the referendum, or only those (mainly ethnic
Sahrawis) who resided in Western Sahara prior to 1975. Zarouite
claimed that he and his parents, of Sahrawi descent, were compelled
to move to Western Sahara in 1996 because the Moroccan government
wanted more votes against independence. Zarouite contends that for
three years after his arrival in Western Sahara, he suffered
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beatings and attacks at the hands of the Polisario Front, which
wanted him to leave.
In 1999, Zarouite returned to Casablanca where he said he
was imprisoned by the Moroccan government and given the choice
between returning to Western Sahara or remaining in jail. After
several months he returned to Western Sahara where, he says, he
again suffered harassment from the Polisario Front. In June 2000
he left, entered the United States unlawfully through Canada, and
was apprehended by American authorities.
After a hearing, the immigration judge denied the request
for asylum and withholding of removal on the express ground that he
did not credit Zarouite's testimony as to persecution, many aspects
of which he found improbable. Some of the immigration judge's
reasoning raises eyebrows (he thought it improbable that the
government would remove a gainfully employed family from
Casablanca); other doubts might seem better founded (the judge
thought that Zarouite's account of one of the alleged assaults
involved an improbable escape from harm).
Zarouite then sought review by the Board of Immigration
Appeals ("BIA"), which on April 1, 2004, issued a two-paragraph
affirmance. The BIA said that the immigration judge did not give
"specific and cogent reasons" for his credibility finding, that the
BIA therefore "assume[d]" Zarouite's credibility, but that "even
if" the alleged acts constituted past persecution, "the record ...
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reveals fundamental changes in Morocco since [Zarouite's] departure
such that his fear of returning is no longer well-founded."
For this last proposition, the BIA cited only a State
Department "country report" on Morocco dated March 4, 2002. The
BIA summarized the report by saying that it showed that, despite
some past abuses, today "the Moroccan government generally respects
the rights of its citizens and that Sahrawis who have departed to
Morocco are encouraged to return provided they recognize Morocco's
sovereignty over the Western Sahara." This was the sole support
offered to show that Zarouite's assumed fear was unfounded.
Although we are aware of the BIA's very large volume of
cases and the difficulties it faces with self-serving stories, the
BIA decision in this case cannot be sustained. The question in
this case is relatively narrow. The BIA concluded that Zarouite
was not eligible for asylum--whether the Attorney General wishes to
grant it is a separate matter, Ravindran v. INS, 976 F.2d 754, 758
(1st Cir. 1992)--and Zarouite is entitled to judicial review on the
eligibility question. Id. The legal framework as to eligibility
is well settled.
Under the statute and case law, Zarouite had to establish
a well-founded fear of future persecution on one or more of five
enumerated grounds (race, religion, nationality, membership in a
particular social group, and political opinion). 8 U.S.C. §
1101(a)(42)(A). Ordinarily, the persecution has to involve
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government actors, although government action exposing him to
persecution by others or refusing to protect him against such
persecution could suffice. See Harutyunyan v. Gonzales, --- F.3d
---, No. 04-2207, slip op. at 9 (1st Cir. Sept. 2, 2005).1 One
basis for showing such a well-founded fear (the one pressed by
Zarouite) is to show past persecution, which gives rise to a
presumption of future persecution which is sufficient for the
applicant's case unless rebutted by the Attorney General (e.g., by
showing changed conditions). 8 C.F.R. § 208.13(b); Fergiste v.
INS, 138 F.3d 14, 18 (1st Cir. 1998).
Zarouite's argument in this court for such a showing of
past persecution appears to proceed as follows: the Moroccan
government deported him to Western Sahara because of his ethnic
heritage as a Sahrawi (arguably satisfying the "social group"
criterion of the statute); the deportation has exposed him to
repeated physical assault and risk of death by the Polisario Front;
the Moroccan government has been unwilling or unable to protect
him; and the combined effect is that he is being threatened with
beatings or worse as a result of action and inaction by the
Moroccan government.
1
Zarouite's brief claims persecution by both the government
and the Polisario Front but we need not consider whether the
latter's actions standing alone would satisfy Harutyunyan; if the
government did not compel Zarouite to remain in the contested area,
any threat to him from the Front would seemingly disappear.
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In its decision, the BIA was content to assume past
persecution arguendo and to dispose of the case on a quite
different ground, namely, the inference it drew from the country
report that "even if" Zarouite had been persecuted in the past, the
Moroccan government had changed its ways and no fear of repetition
could be well founded. The State Department's regular country
reports are generally persuasive of country conditions, 3 Gordon,
Mailman & Yale-Loehr, Immigration Law and Procedure § 33.04[3][f]
(2005), but are open to contradiction. Gailius v. INS, 147 F.3d
34, 45 (1st Cir. 1998).
In this case, says the Attorney General, the substantial
evidence standard applies and the BIA's decision should be upheld
unless the record "compels" the opposite result. Compare Aguilar-
Solis v. INS, 168 F.3d 565, 569 (1st Cir. 1999). Admittedly, the
record does not "compel" the conclusion that the Moroccan
government will repeat the alleged behavior that Zarouite
attributes to it, but the problem here is that the country report
does not directly address such behavior at all, so the rationality
of the inference is open to question.
The most pertinent sentences in the report are as
follows:
The Government also encouraged the return of
Sahrawis who have departed Morocco due to the
conflict in the Western Sahara, provided that
they recognize the Government's claim to the
region. The Government did not permit Western
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Saharan nationalists who have been released
from prison to live in the disputed territory.
Zarouite's testimony, if believed, suggests that the
Moroccan government once had a policy of requiring some Moroccans
to move to Western Sahara in order to bolster a vote in Morocco's
favor in an anticipated referendum. It would hardly make sense for
the Moroccan government to make one family alone move back. If
Morocco once had such a policy, abandonment of the policy would
defeat the basis for Zarouite's claim. But the quoted language
from the country report neither concedes such a policy nor suggests
that, if it once existed, it has now been discontinued. See
Fergiste, 138 F.3d at 19.
The BIA paraphrased the report in another, far more
general, respect. It said that the Moroccan government generally
respects the rights of its citizens. Inferences can be drawn from
the general to the particular; conceivably, a country report could
reflect such a firm present adherence by a government to high
human-rights standards, across a range of activities, that forced
relocation of population for political purposes would be
implausible and defeat any well-founded fear of repetition of past
abuses.
It is enough to say in summary that the country report
says that the human rights record in Morocco, once discouraging, is
now improving, but this is far from the kind of blanket endorsement
just posited. Indeed, a pertinent excerpt from the report reads:
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"The Government generally respected the rights of citizens in most
areas; however, the Government's record was generally poor in a few
areas." Thus, it is difficult to understand why the BIA thinks
that the country report makes Zarouite's assumed fear of future
repetition unreasonable.
Notably, the government's brief makes no developed
argument to show that the report rebuts Zarouite's fear of future
persecution; it merely asserts this proposition in conclusory terms
and passes on with suspicious swiftness. Here is the gist of the
discussion, stripped of citations to the proposition that country
reports can be invoked:
Petitioner also weakly challenges the Board's
well-founded fear finding, by claiming that
the 2001 Country Report, upon which the Board
relied, was insufficient. Pet. Br. at 25.
However, the 2001 Country Report, which
demonstrated changed country conditions in
Morocco and disproved Petitioner's well-
founded fear of future persecution,
substantially supports the Board's
determination. . . . [As in another cited
case,] Petitioner failed to present "powerful
evidence" to discount the 2001 Country Report
and prove that his fear of future persecution
is well-founded.
Nothing in the brief shows that the country report
"disproves" Zarouite's fear, nor does the report itself do so when
read in full. Thus there was no need for Zarouite to "discount"
the country report since it does not contradict the thrust of his
testimony. The inference that the BIA seeks to draw from the
report is not rational, or if it could be rationally explained, the
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government has failed to do so. See Ren v. Ashcroft, No. 04-1702,
2005 WL 1950805, at *4 (1st Cir. Aug. 16, 2005).
Two further matters remain to be noted. First, Zarouite
also claims that the BIA failed to consider the possibility that--
regardless of future persecution--it would be inhumane to return
him to Morocco because his past treatment had been so terrible.
Such an exception exists for extraordinary suffering, Tokarska v.
INS, 978 F.2d 1, 1-2 (1st Cir. 1992), but it seems quite unlikely
that Zarouite could qualify and, decisively, he has forfeited any
such claim by failing to raise it at the agency level. Makhoul v.
Ashcroft, 387 F.3d 75, 80 (1st Cir. 2004).
Second, in an effort to undo the BIA's initial decision,
Zarouite filed a motion to reopen on June 25, 2004, attaching more
recent country reports on Morocco and other related documents. On
August 12, 2004, the BIA denied the motion on the ground that the
new information did not show a significant change in country
conditions from the report relied on by the BIA and that Zarouite
did not “meet his heavy burden of demonstrating that if the
proceedings were reopened, the evidence would likely change the
result in this case.”
Zarouite has sought review of this denial. His position
is that these materials show a relapse as to human rights on the
part of the Moroccan government, including political repression and
abuses such as torture. Interestingly, the more recent reports are
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mixed as to government policy toward Western Sahara. Some
information suggests that Morocco is interested in populating
Western Sahara with supporters; other information indicates that it
may no longer be interested in a referendum at all.
In any event, the original report relied upon by the BIA
does not adequately support the BIA's inference so Zarouite's
effort to contradict it with later reports is at present beside the
point. If on remand the agency continues to assume arguendo that
Zarouite's story is true and to resolve the case based on current
country conditions, it will have to update the record and provide
a reasoned explanation. Alternatively, it may choose to follow
some other course that will make country conditions irrelevant.
The BIA order of April 1, 2004, is vacated and the matter
remanded for further appropriate proceedings. So far as the
petition seeks review of the refusal to reopen, it is dismissed as
moot.
It is so ordered.
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