Aid v. Mukasey

• Decision Date: 01 August 2008
• Docket Number: No. 07-2915.,07-2915.
• Citation: 535 F.3d 743
• Parties: Achour AID, Petitioner, v. Michael B. MUKASEY, Attorney General of the United States,<SMALL><SUP>*</SUP></SMALL> Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

535 F.3d 743

Achour AID, Petitioner, v. Michael B. MUKASEY, Attorney General of the United States,^* Respondent.

No. 07-2915.

United States Court of Appeals, Seventh Circuit.

Argued April 9, 2008.

Decided August 1, 2008.

David Trais (argued), Richard H. Trais, Chicago, IL, for Petitioner.

Jennifer A. Levings, Corey L. Farrell (argued), Department of Justice Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before POSNER, RIPPLE, and MANION, Circuit Judges.

MANION, Circuit Judge.

Achour Aid entered the United States from Algeria in 1996 on a non-immigrant visitor visa, and in 2003, the Immigration and Naturalization Service ("INS")¹ charged Aid as being removable as an alien who stayed longer than allowed pursuant to 8 U.S.C. § 1227(a)(1)(B). Aid applied for asylum and withholding of removal on the basis of a political opinion and membership in a particular social group, or alternatively, voluntary departure. The Immigration Judge ("IJ") dismissed Aid's claim for asylum as untimely, denied his claim for withholding of removal, and granted his request for voluntary departure. Aid appealed to the Board of Immigration Appeals ("BIA") only the IJ's denial of his application for withholding of removal based on political opinion. The BIA agreed with the IJ's decision and dismissed Aid's appeal. Aid petitions this court for review, and we deny.

I.

Achour Aid was born in Ouzera, Algeria, and owned a hardware store in his home town, which he operated without incident until 1993. At that time, radical Islamists were waging an armed struggle against the Algerian government. Before the IJ, Aid testified that in 1993, members of a terrorist group came to his store after it was closed. He knew some of the men, but not others. There were several terrorist groups in the area, but he did not know which one they were part of. The men, whose faces were covered but for their eyes, entered his store and took everything they wanted. Aid stated that the terrorists targeted his store because they could not obtain hardware supplies in the city where there was a larger and constant police and military presence. The terrorists had spies who would let them know when there was no military in the village.

The terrorists returned a second time, and Aid allowed them to enter the store and take what they wanted. After the terrorists came a third time, Aid contacted the police and filed a report. Aid testified that he reported this third incident to the police because he did not want the police or the army to think that he was one of the terrorists.² According to Aid, the police did not conduct an investigation, but rather merely asked him for descriptions of the men and what they took.

The terrorist came a fourth time. Like their first visit, the terrorists came at night. When Aid refused to open the door to his home, the terrorists forced open a window and dragged Aid outdoors. One of the men pointed a gun to his head and another put a knife into his stomach. The man with the knife stated, "I'm going to kill you, ... you have to work for us ... we're doing this for this country." At that point, Aid opened the store for them. The men loaded merchandise into their car and then handed Aid a list of materials telling him that they wanted him to purchase the listed supplies. The next day, Aid again reported this to the police who wrote down Aid's account of the incident, but took no further action.

Following the fourth incident, Aid closed his shop and moved to Medea to live with his sister; Medea is approximately eight miles from Ouzera. Aid testified that in contrast to Ouzera where there were no police and the army only drove around during the day and left at night, Medea was a big city where there was a larger and continual police and military presence. Aid also noted that it would be hard for the terrorists to find him in Medea. A month after he moved to Medea, the terrorists went to his father's house in Ouzera. The terrorists told his father to tell Aid to return to Ouzera and to bring with him the supplies on the list that they had given him. They also stated that they would find Aid wherever he went.

In Medea, Aid opened another store and hired his brother-in-law, Mostefaoui Abdelkader, and put him in charge of purchasing. Leaving Abdelkader in charge of the store, in June 1994 Aid traveled to Tunisia, Switzerland, and France to purchase automobiles for resale in Algeria. While in Switzerland, Aid testified that an Algerian man whom he did not know approached and asked him to give him the car that Aid was purchasing stating, "you give me the car, I'll take care of everything and I'll give you the car back." The same man approached him two weeks later inquiring whether Aid had gotten the car, to which Aid responded that he had not gotten the car and would not be getting one. The man replied, "[I]f you want us to forgive you about what you did back in Algeria, you have to help us now." After this encounter, Aid feared that he was on a hit list, though the man made no mention of such list.

On January 17, 1995, while Aid was still in Switzerland, Abdelkader was fatally shot by someone in a car driving by while Abdelkader was closing the shop one night. No merchandise was taken from the store. At his hearing before the IJ, when asked if he knew who killed Abdelkader, Aid responded, "No, I don't know. Nobody know, knew who it, who they were." He indicated that "hundreds of people died the same way, by drive-by shootings." Aid then stopped his automobile resale business, returned to Algeria, sold his store merchandise, and came to the United States.

Aid entered the United States on August 11, 1996, using a nonimmigrant visitor's visa, which expired on February 8, 1997. Aid did not seek an extension, and on January 10, 2003, the INS charged Aid as being removable as an illegal overstay pursuant to 8 U.S.C. § 1227(a)(1)(B). An IJ conducted a hearing on September 4, 2003, at which Aid conceded removability. Aid later applied for withholding of removal and asylum on the basis of political opinion and membership in a particular social group.

On March 15, 2006, the IJ conducted a hearing on Aid's application for asylum and withholding of removal. The IJ found Aid credible, but concluded that the evidence did not support a conclusion that Aid was persecuted "because the terrorists imputed a political opinion to him once he refused to continue to supply them with the requested materials." The IJ further noted that Aid never openly refused the men, nor did he indicate that he did not support their cause. Regarding Abdelkader's murder, the IJ concluded that there was no evidence that it was a result of Aid's refusal to provide the terrorists with supplies and noted that Abdelkader could have been killed because of his own actions, independent of Aid's interactions with the terrorists. The IJ also concluded that Aid did not suffer persecution, and even if there was persecution, conditions in Algeria had significantly changed for the better since Aid's departure, and his family remained unharmed and unthreatened in Algeria. The IJ accordingly denied his claim for withholding of removal. The IJ also dismissed Aid's claim for asylum as untimely and granted his request for voluntary departure.

Aid appealed to the BIA, appealing only the IJ's decision on withholding of removal on the basis of political opinion. The BIA agreed that Aid had not established a nexus between the terrorist's activities and any actual harm or protected ground. The BIA also found that Aid was a target because he owned a store and had access to materials the terrorists desired and not because of any political opinion. Aid petitions for review.

II.

In his petition for review, Aid argues that he is entitled to withholding of removal for persecution based on political opinion and membership in a social group. Initially, we note that we do not have jurisdiction to consider Aid's claim that his status as a store owner qualifies as a social group. Aid did not assert this claim in his brief to the BIA and has therefore failed to exhaust his administrative remedies. Huang v. Mukasey, 525 F.3d 559, 563-64 (7th Cir.2008); see 8 U.S.C. § 1252(d)(1). However, we have jurisdiction to review the BIA's denial of relief for persecution because of political opinion.

"Because the BIA adopted and affirmed the opinion of the IJ, we review the IJ's decision as supplemented by any discussion in the BIA's opinion." Tarraf v. Gonzales, 495 F.3d 525, 531 (7th Cir.2007). We review the decision denying withholding of removal under the substantial evidence standard; in other words, the IJ's decision must be "supported by reasonable, substantial, and probative evidence on the record considered as a whole." Sina v. Gonzales, 476 F.3d 459, 461 (7th Cir.2007) (citations omitted). We may not reverse simply because we would have decided the case differently. Margos v. Gonzales, 443 F.3d 593, 597 (7th Cir.2006) (citations omitted). Instead, we will reverse only if the evidence compels a contrary conclusion. Youkhana v. Gonzales, 460 F.3d 927, 931 (7th Cir.2006) (citation omitted).

To establish eligibility for withholding of removal, a petitioner "must demonstrate a clear probability of persecution on account of his `race, religion, nationality, membership in a particular social group, or political opinion.'" Tariq v. Keisler, 505 F.3d 650, 656 (7th Cir.2007) (quoting 8 U.S.C. § 1231(b)(3)(A)). In turn, "to establish a clear probability of persecution, the applicant must demonstrate that `it is more likely than not that [he] would be subject to persecution' in the country to which he would be returned.'" Id. (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 423, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987)). If the petitioner demonstrates past persecution, he is entitled to a presumption of future persecution, and the burden shifts to the government to rebut the presumption that the...