Ahmed v. Ashcroft, No. 02-2524.

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Writing for the Court: Diane P. Wood
• Citation: 348 F.3d 611
• Parties: Djillali AHMED, Petitioner, v. John ASHCROFT, Attorney General of the United States, Respondent.
• Decision Date: 30 October 2003
• Docket Number: No. 02-2524.

348 F.3d 611 Djillali AHMED, Petitioner,
v.
John ASHCROFT, Attorney General of the United States, Respondent. No. 02-2524. United States Court of Appeals, Seventh Circuit. Submitted April 11, 2003. Decided October 30, 2003.

Page 612

COPYRIGHT MATERIAL OMITTED

Page 613

Kenneth Y. Geman (submitted), Chicago, IL, for Petitioner.

George P. Katsivalis, Department of Homeland Security, Office of the District Counsel, Chicago, IL, Robbin K. Blaya, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before EASTERBROOK, MANION, and DIANE P. WOOD, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

From 1992 to 1996, Djillali Ahmed served in the Algerian military and state police forces. He resigned his post in 1996 and spent the next three years evading Islamic militants who, he believed, posed a grave threat to his safety. In 1999, he slipped into the United States as a stowaway.

Page 614

Shortly after his arrival, Ahmed was placed in removal proceedings pursuant to the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(a)(6)(A)(i). He filed for political asylum, withholding of removal, voluntary departure, and protection under the United Nations Convention Against Torture (Torture Convention), 8 C.F.R. § 208.16(c), because he feared that he would be killed by the same militants if he were compelled to return to his native Algeria. An Immigration Judge (IJ) denied relief, and the Board of Immigration Appeals (BIA) affirmed. Ahmed now petitions for review. Though we part ways with the BIA's analysis in some respects, we deny the petition for review.

I

Since its people won independence from French colonial rule in 1962, Algeria has been governed by one party, the National Liberation Front (NLF), which has enjoyed the backing of the military. In the late 1980s, the regime made an attempt at democratization in response to popular opposition to military control. As part of that effort, it allowed parties to form and authorized a series of local and national elections. The Islamic Salvation Front (FIS), an umbrella Islamic party, swept the local elections held in 1990 and also an initial round of national parliamentary elections held in 1991. The FIS was poised to repeat its success in the next round of national elections—and would likely have commanded an absolute parliamentary majority—when a military coup in January 1992 brought the entire process to an abrupt halt. The restored NLF regime voided the elections, banned the FIS, and launched a campaign of imprisonment, torture, and execution of FIS officials and their supporters.

What followed has been a de facto civil war that has pitted the government against a variety of armed Islamic groups—including remnants of the FIS and an Algerian branch of the Groupe Islamique Armé (GIA)—that seek to overthrow the government and establish an Islamic state. The fighting has ranged from pitched, open warfare to the perpetration of horrific acts of terrorism against government officials and private citizens alike, invariably followed by violent retaliation by the government. The human rights report issued by the U.S. Department of State in 1999 cites estimates by non-governmental observers that as many as 77,000 civilians, Islamic militants, and security force personnel died between 1992 and 1999 alone in armed clashes, torture, terrorism, and extrajudicial killings.

As a member of the national security forces, and then later as an officer with the state police force, Ahmed lived through this horror. In his written application for asylum and during the subsequent hearing before the IJ, Ahmed stated that he served in the Algerian military from 1992 to 1994. While a member of the military, he spent ten months guarding a detention camp for captured Islamic terrorists. In 1994, Ahmed left the military and joined the Algerian state police force, where he served as a security guard at the Sess Enia International Airport. He resigned this position two years later, in 1996, after several of his colleagues were killed by armed Islamic militants while being transported by bus from the airport where they served as security guards to the government compound where they lived. He then moved to the desert and lived on a farm for two years, apparently without incident. No longer content with what he described as living in hiding, Ahmed fled Algeria and entered the United States illegally in February 1999 as a stowaway aboard a ship.

Page 615

Shortly after his arrival in the United States, Ahmed was placed in removal proceedings. He conceded removability, but he also petitioned for political asylum under 8 U.S.C. § 1158, withholding of removal under 8 U.S.C. § 1231(b)(3), withholding of removal under Article III of the Torture Convention, and voluntary departure under 8 U.S.C. § 1229c(a)(1) and (b)(1). At a hearing held on January 3, 2000, the IJ found Ahmed's testimony about his experiences in Algeria to be fully credible. The IJ similarly credited Ahmed's claim that his two brothers continue to be employed as officers in the Algerian state police force. Nevertheless, the IJ concluded that Ahmed was statutorily ineligible for relief. Ahmed petitioned the BIA for review of all but the voluntary departure claim. The BIA affirmed the IJ's decision on May 21, 2002, finding that Ahmed could not show past persecution from his former status as a military and police officer, because he had not pointed to anything that was separable from the occupational hazards that went along with those jobs, nor could he show a well-founded fear of future persecution, because he had not adequately developed the latter claim. The BIA also rejected his other grounds for relief, and this appeal followed.

II

In this appeal, Ahmed focuses on the BIA's denial of his petition for political asylum and withholding of removal under the INA and protection under the Torture Convention. Our review throughout is governed by the substantial evidence standard. Begzatowski v. INS, 278 F.3d 665, 668 (7th Cir.2002). Applying that standard, we assess whether the BIA's determination was "supported by reasonable, substantial, and probative evidence on the record considered as a whole," and reverse only if the evidence compels a contrary conclusion. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); Krouchevski v. Ashcroft, 344 F.3d 670, 2003 WL 22097844 at *3 (7th Cir.2003). We review the BIA's legal conclusions de novo. Ciorba v. Ashcroft, 323 F.3d 539, 544 (7th Cir.2003).

Because an applicant who fails to establish eligibility for asylum necessarily cannot satisfy the more stringent requirements for withholding of removal under 8 U.S.C. § 1231(b)(3), see Toptchev v. INS, 295 F.3d 714, 720 (7th Cir.2002), nor the requirements for withholding of removal under the Torture Convention, see Dandan v. Ashcroft, 339 F.3d 567, 575 n. 7 (7th Cir.2003), we turn first to Ahmed's asylum claim. To obtain asylum under the INA, an applicant must prove, see 8 C.F.R. § 208.13(a), that: (1) she is outside her country of nationality; (2) she is "unable or unwilling to return to ... that country"; (3) this inability or unwillingness is due to "[past] persecution or a well-founded fear of [future] persecution"; and (4) such persecution is "on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42).

We consider first whether the BIA's conclusion that Ahmed had not demonstrated past persecution is supported by substantial evidence. Ahmed's time spent moving from place to place in the desert was by his own admission uneventful. And while we have noted in the past that avoiding harm by "living a fugitive's life" is not necessarily inconsistent with a finding of persecution, see Chitay-Pirir v. INS, 169 F.3d 1079, 1081 (7th Cir.1999), the facts in this case do not compel a finding that this is what Ahmed was doing. The Board was not required to defer to his personal judgment that he was better off living in hiding, as it evaluated his claim of past persecution. Moreover, it was entitled

Page 616

to take into account Ahmed's failure to present any detailed facts suggesting that he himself suffered from concrete acts of persecution, or...