United States Court of Appeals
For the First Circuit
No. 08-1993
FATAH AMOURI,
Petitioner,
v.
ERIC H. HOLDER, JR.,* ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE BOARD
OF IMMIGRATION APPEALS
Before
Boudin, Selya and Lipez,
Circuit Judges.
Michael A. Paris and Cutler & Associates on brief for
petitioner.
Michael F. Hertz, Assistant Attorney General, Civil Division,
Hillel Smith and Anthony Wray Norwood, Trial Attorneys, Office of
Immigration Litigation, on brief for respondent.
July 14, 2009
*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Eric
H. Holder, Jr. has been substituted for former Attorney General
Michael B. Mukasey as the respondent.
SELYA, Circuit Judge. The petitioner, Fatah Amouri, is
an Algerian national. He seeks judicial review of a decision of
the Board of Immigration Appeals (BIA) ordering his removal and, in
the process, denying his prayers for asylum, withholding of
removal, and protection under the United Nations Convention Against
Torture (CAT). As a part of his asseverational array, the
petitioner advances a due process claim concerning the refusal of
the immigration judge (IJ) to grant him a continuance. After
careful consideration, we deny the petition.
I. BACKGROUND
We draw the facts from the IJ's supportable findings,
augmented where necessary by excerpts from the overall record.
In March of 2001, the petitioner arrived in the United
States without inspection. He remained here illegally. See 8
U.S.C. § 1182(a)(6)(A)(i). In 2005, he won a one-year visa in the
Diversity Visa Lottery Program. See Carrillo-González v. INS, 353
F.3d 1077, 1078 n.1 (9th Cir. 2003) (explaining program). The
petitioner's lottery win proved to be a Pyrrhic victory; he
received the temporary one-year diversity visa but was deemed
ineligible for immigrant status, see 8 U.S.C. § 1182(a)(6), and
thus ineligible to receive anything more than the temporary visa.
To make matters worse, the lottery win apparently brought
him to the attention of the authorities. On June 23, 2005, the
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government served him with a notice to appear in the immigration
court.
The IJ granted a continuance at the petitioner's bequest
so that he could explore the possibility of finding a way to take
advantage of the lottery visa. Although the petitioner devised a
scheme to gain eligibility for adjustment of status by departing
from the United States and reentering legally, he eventually
abandoned that ploy. Instead, he applied for asylum, withholding
of removal, and protection under the CAT.
The continuance that the IJ had granted served to adjourn
the removal hearing to September 25, 2006. On that date the
petitioner reported that he was unable to avail himself of the
opportunity provided by his lottery win. Since the expiration of
the one-year temporary visa was imminent, the IJ directed that the
merits hearing commence forthwith.
The petitioner's counsel briefly protested that he had
not expected to proceed to the merits then and there. The IJ
explained why everyone should have anticipated precisely that
eventuality. Counsel replied that it would be "okay" to begin
immediately as long as he was given time to confer privately with
his client. That request was honored. At no point did counsel
assert that prejudice would result from going forward that day, nor
did he suggest that delaying the trial would enhance the likely
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availability of additional documents or witnesses supporting the
petitioner's averments.
The petitioner testified that he had suffered persecution
in Algeria on account of his political opinion and that he feared
future persecution should he be repatriated. Specifically, he
related that he had managed a clothing and textiles shop owned by
his father; that, in 2000, three or four armed men who identified
themselves as "Muslim extremists" entered the store and demanded a
large amount of money; and that he temporized by offering to pay
the men at a future date. After the intruders left, he reported
the incident to the police, who informed him that they would "work
on it." They also advised him to take various precautions.
The petitioner decided to close the store and never made
the demanded payment. The building was later torched, and the
petitioner received a letter from the Islamic Army Group (IAG)
charging that he had reneged on his religion and had been
"sentenced . . . to death." The police investigated the fire
(although the petitioner kept the IAG letter to himself). The
investigation proved fruitless.
In the meantime, the petitioner repaired to his
grandmother's house in a different village some 800 kilometers
away. He remained there for several months until learning that
three or four armed men from the IAG had come looking for him. At
that point, he fled to the United States.
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Even though the one-year deadline for asylum petitions
had expired long before the petitioner applied, the IJ allowed the
asylum application to proceed based on a finding of extraordinary
circumstances. See id. § 1158(a)(2); Chhay v. Mukasey, 540 F.3d 1,
5 (1st Cir. 2008). The Attorney General does not challenge that
determination, so we need not discuss the foundation on which it
rests. Moreover, notwithstanding that the petitioner's testimony
was inconsistent in certain particulars, the IJ deemed him
generally credible.
Despite winning these battles, the petitioner lost the
war. The IJ ruled that he had failed to demonstrate past
persecution on account of a statutorily protected ground. In this
regard, the IJ cited the petitioner's lack of any declared
political affiliation and the absence of any indication that
something other than unmitigated greed lay behind the attempted
extortion and the subsequent threats.
The IJ rejected the application for withholding of
removal on essentially the same basis. Furthermore, because there
was no probative evidence that the Algerian government had either
participated or acquiesced in the menacing conduct, the IJ
dismissed the CAT claim.
The petitioner appealed to the BIA, without success. The
BIA adopted the IJ's findings, reasoning, and conclusions, adding
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a few comments about the burden of proof. This timely petition for
judicial review followed.
II. DISCUSSION
We begin our analysis with the asylum question. We move
next to the petitioner's other claims for particularized forms of
relief. Finally, we consider the alleged due process violation.
A. The Asylum Claim.
To establish an entitlement to asylum, an alien must
demonstrate that he is a refugee. 8 U.S.C. § 1158(b)(1)(B)(i);
Lopez de Hincapie v. Gonzales, 494 F.3d 213, 217 (1st Cir. 2007).
To satisfy this requirement, the alien must show that he is
unwilling or unable to return to his homeland for 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, e.g., INS v. Cardoza-Fonseca, 480 U.S. 421,
428 (1987); Makhoul v. Ashcroft, 387 F.3d 75, 79 (1st Cir. 2004).
In turn, this entails a showing that the alien has a well-founded
fear of future persecution based on one of the five statutorily
enumerated grounds. Makhoul, 387 F.3d at 79. If the alien adduces
probative evidence of past persecution on account of such a ground,
that evidence creates a rebuttable presumption of a well-founded
fear of future persecution. Id.
Persecution is a protean term, undefined by statute. To
establish persecution, an alien must demonstrate that the harm
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(whether actual or feared) is more than the sum total of ordinary
harassment or mistreatment. See Lopez de Hincapie, 494 F.3d at
217. We need not probe that point too deeply; this case involves
claimed threats of murder — and threats of murder easily qualify as
sufficiently severe harm. Id.
The "on account of" element comprises the linchpin
between the harm and a statutorily protected ground. See Raza v.
Gonzales, 484 F.3d 125, 128-29 (1st Cir. 2007). To satisfy this
nexus requirement, an alien must produce convincing evidence of a
causal connection; that is, convincing evidence that the harm was
premised on a statutorily protected ground. See Butt v. Keisler,
506 F.3d 86, 90 (1st Cir. 2007); Lopez de Hincapie, 494 F.3d at
218.
Against this backdrop, we turn next to the applicable
standard of review. Typically, this court reviews the BIA's
decision. See Stroni v. Gonzales, 454 F.3d 82, 86 (1st Cir. 2006).
Here, however, the BIA adopted and summarily affirmed the IJ's
findings and conclusions. Thus, we review the IJ's decision
directly. See id. at 86-87. To the extent that the BIA has made
additional comments, we review those comments as well. Id. at 87.
In conducting that review, the familiar substantial
evidence rule applies. Under this rule, we accept the agency's
factual findings as long as they are supported by substantial
evidence in the record. See INS v. Elias-Zacarias, 502 U.S. 478,
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481 (1992). This is a highly deferential standard; the agency's
resolution of an issue of fact cannot be overturned unless the
record compels a contrary conclusion. Id. at 481 n.1. In other
words, the record must point unerringly to the opposite conclusion.
Laurent v. Ashcroft, 359 F.3d 59, 64 (1st Cir. 2004); Aguilar-Solis
v. INS, 168 F.3d 565, 569 (1st Cir. 1999).
In this case, as in most cases, the determination as to
whether the petitioner was persecuted on account of a statutorily
protected ground is a fact-sensitive determination. Thus, that
determination engenders review under the substantial evidence rule.
See Lopez de Hincapie, 494 F.3d at 218.
The petitioner argues that the IJ erred in this case
because the attempted extortion and subsequent threats are
compelling evidence that he was persecuted on account of his
political opinion. We do not agree.
The IJ found that the most likely impetus for these acts
was greed, not politics. The record contains no significantly
probative evidence to the contrary. Accordingly, the petitioner
has failed to forge the needed link between the harm and the
statutorily protected ground.
The mere fact that the extortionists were associated with
an extremist group does not compel a different conclusion. After
all, fanaticism and a love of money are not mutually exclusive.
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Here, moreover, the IJ supportably found no indication
that the armed intruders wanted either to coerce the petitioner's
adherence to their cause or to punish him for his beliefs. For
aught that appears, the men wanted coin of the realm from Amouri,
not political conformity.
Laboring to establish a nexus where none exists, the
petitioner cites a case that (he says) stands for the proposition
that extortion can be part and parcel of a systematic campaign of
terror aimed at suppressing political opinion. See Jahed v. INS,
356 F.3d 991, 998-99 (9th Cir. 2004). That case, which involves a
government agent's extortionate threat to reveal the petitioner's
membership in an outlawed opposition party, is irrelevant here. As
we have said, the record here reflects no meaningful ties between
political affiliation and the demand for funds.1
The petitioner argues that his refusal to honor the
monetary demand was itself a manifestation of his political
beliefs. This argument is made up out of whole cloth. There is
not a shred of evidence in the record that even hints at, much less
directly suggests, such an extraordinary leap of logic. The
petitioner himself did not testify that this was in his mind, and
the IJ surely was not compelled to pluck out of thin air a
conclusion to that effect. See Chikkeur v. Mukasey, 514 F.3d 1381,
1
The petitioner's belief that he was persecuted on account of
one of the five statutorily protected grounds does not make it so.
See Pulisir v. Mukasey, 524 F.3d 302, 309 n.4 (1st Cir. 2008).
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1383 (1st Cir. 2008) (upholding a denial of asylum to alien who
experienced extortion at the hands of a radical Islamist group and
argued that his refusal to give them money was interpreted by them
as an expression of political opinion); cf. Olympic Airways v.
Husain, 540 U.S. 644, 653 (2004) (holding that an unsupported
argument made in a brief was no more than a bald assertion that
lacked probative value).
The petitioner's reliance on the death threat is equally
misplaced. The petitioner points out that the threat referred to
him as a "devil" and as one who had "renege[d]" on his religion.
This phrasing, he says, evinces an association with political
opinion.2
This argument strains credulity. Although the threat
used the quoted language, nothing in its context (or elsewhere in
the record, for that matter) links that language to any particular
political opinion. Thus, we are not compelled to find that the
threat was sparked by the petitioner's political viewpoint. See,
e.g., Novoa-Umania v. INS, 896 F.2d 1, 5 (1st Cir. 1990).
To say more about the asylum claim would be
supererogatory. At best, the petitioner adduced evidence from
which a sympathetic factfinder might perhaps have found in his
favor. The law is settled, however, that when an IJ makes a choice
2
The comments seem to be more associated with religion than
with politics, but the petitioner has never made or developed a
claim of religious persecution.
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between two plausible but conflicting inferences, his choice is
necessarily supported by substantial evidence. See Lopez de
Hincapie, 494 F.3d at 219; Aguilar-Solis, 168 F.3d at 571.
Consequently, we uphold the denial of asylum.
B. Other Claims.
We give short shrift to the petitioner's remaining
substantive claims. To petition successfully for withholding of
removal, an alien must show that, if returned to his homeland, he
would more likely than not be subjected to persecution on account
of a statutorily protected ground. Pulisir v. Mukasey, 524 F.3d
302, 308 (1st Cir. 2008). The standard is one of clear
probability. Cardoza-Fonseca, 480 U.S. at 430; INS v. Stevic, 467
U.S. 407, 425, 430 (1984). When an alien fails to establish a
well-founded fear of persecution sufficient to ground an asylum
claim, a counterpart claim for withholding of removal (that is, a
claim premised on essentially the same facts) necessarily fails.
See Lopez de Hincapie, 494 F.3d at 220; Makhoul, 387 F.3d at 82.
So it is here.
This leaves the petitioner's CAT claim. To prevail on a
CAT claim, an alien must prove that, if repatriated, he will more
likely than not be subjected to torture with the consent or
acquiescence of the government. See 8 C.F.R. §§ 1208.16(c),
1208.18(a)(1); see also Chhay, 540 F.3d at 7.
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In support of his CAT claim, the petitioner relies on
various State Department country conditions reports. Generally
speaking, country conditions reports can be a valid source of
evidence with respect to CAT claims. See, e.g., 8 C.F.R.
§ 1208.16(c)(3); Pulisir, 525 F.3d at 310. But even though country
conditions reports are deemed generally authoritative in
immigration proceedings, the contents of such reports do not
necessarily override petitioner-specific facts — nor do they always
supplant the need for particularized evidence in particular cases.
See Zarouite v. Gonzales, 424 F.3d 60, 63-64 (1st Cir. 2005).
In this instance, the most that can be said is that, as
the country conditions reports show, Algeria is a haven for
terrorists and wracked by random violence. There is no evidence,
however, that the government either participates or acquiesces in
this violence.
The specific events at issue here indicate precisely the
opposite. After the armed men visited the petitioner's shop, the
police came to his aid. They agreed to investigate the matter and
gave him safety tips. When, thereafter, his store burned down, the
police again responded and carried out an investigation. On this
record, there is no principled way that we can set aside the denial
of the petitioner's CAT claim. See, e.g., Usman v. Holder, 566
F.3d 262, 268-69 (1st Cir. 2009); De Oliveira v. Mukasey, 520 F.3d
78, 79 (1st Cir. 2008).
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C. The Due Process Claim.
This brings us to the petitioner's final assignment of
error. That plaint arises out of the IJ's refusal to grant the
petitioner a further continuance. It amounts to an allegation that
the IJ committed a procedural due process violation and, as such,
we review the BIA's sub silentio rejection of the claim de novo.3
See Laurent, 359 F.3d at 62.
We pause to note that this claim may be waived. Although
the petitioner's counsel originally objected to the order to go
forward on September 25, he appears later to have withdrawn that
objection by agreeing to proceed so long as he was given time to
confer with his client. That request was granted.
We think that this series of events fairly can be
construed as a withdrawal of the petitioner's earlier request for
a further continuance. If so, the upshot would be a waiver of this
assignment of error. See, e.g., United States v. Rodriguez, 311
F.3d 434, 437 (1st Cir. 2002) (stating that a party who has
withdrawn an objection has thereby waived the issue); Nimrod v.
Sylvester, 369 F.2d 870, 872 (1st Cir. 1966) (explaining that a
3
The fact that the BIA failed to comment specifically on this
claim is of no moment. We previously have noted that an absence of
specific findings gives rise to concern only when that circumstance
hampers our ability to conduct judicial review. See Rotinsulu v.
Mukasey, 515 F.3d 68, 73 n.1 (1st Cir. 2008). Here, the relevant
facts are clear and we can readily infer the basis for the denial
of the claim.
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party cannot advance on appeal an issue as to which he withdrew his
objection).
In all events, we need not resolve the waiver question
definitively. Because the claim of error is easily dispatched on
other grounds, we take a more direct route.
Although an alien is not entitled to a letter-perfect
removal hearing, his due process rights must be respected. See
Pulisir, 524 F.3d at 311; Baires v. INS, 856 F.2d 89, 91 (9th Cir.
1988). We see error here — but no prejudice and, thus, no affront
to due process.
We need not tarry. The grant or denial of a continuance
rests largely in the discretion of the trial judge. See, e.g.,
United States v. Flecha-Maldonado, 373 F.3d 170, 175 (1st Cir.
2004); Macaulay v. Anas, 321 F.3d 45, 49 (1st Cir. 2003). While
that authority must be exercised judiciously and with an eye toward
fundamental fairness, even the arbitrary denial of a continuance
cannot sink to the level of a due process violation unless it
results in actual prejudice. See Pulisir, 524 F.3d at 311; United
States v. Saccoccia, 58 F.3d 754, 770-71 (1st Cir. 1995); United
States v. Lussier, 929 F.2d 25, 28-29 (1st Cir. 1991).
"A court will find such prejudice only when it is shown
that an abridgement of due process is likely to have affected the
outcome of the proceedings." Pulisir, 534 F.3d at 311. It is not
enough for a party to claim conclusorily that, had he been granted
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a continuance, he could have presented additional evidence; rather,
he must give a reviewing court some indication of what that evidence
would have comprised and how additional time would have allowed him
to gather it. See United States v. Rodriguez-Duran, 507 F.3d 749,
765 (1st Cir. 2007). He also must show that the new evidence would
likely have altered the outcome of the proceeding. See Shmyhelskyy
v. Gonzales, 477 F.3d 474, 482 (7th Cir. 2007).
Here, the petitioner was the lone witness in his own
behalf. He offered some documentary evidence. But he made no
effort either to call any other witnesses or to offer any other
documentary evidence. More importantly, he did not identify below
and has not identified here any such witnesses or documents.
Instead, he relies exclusively on vague assertions about additional
(unnamed) witnesses and additional (unspecified) documents that
might have bolstered his testimony. Without some more concrete
demonstration that such witnesses and documents existed, were not
available at the hearing, and would have supported his story, we can
make no finding of prejudice. Consequently, the petitioner's due
process claim founders.
III. CONCLUSION
We need go no further. For the reasons elucidated above,
we deny the petition for judicial review.
So Ordered.
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