Amouri v. Holder

• Citation: 572 F.3d 29
• Decision Date: 14 July 2009
• Docket Number: No. 08-1993.,08-1993.
• Parties: Fatah AMOURI, Petitioner, v. Eric H. HOLDER, Jr.,<SMALL><SUP>*</SUP></SMALL> Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

572 F.3d 29

Fatah AMOURI, Petitioner, v. Eric H. HOLDER, Jr.,^* Attorney General, Respondent.

No. 08-1993.

United States Court of Appeals, First Circuit.

Submitted June 4, 2009.

Decided July 14, 2009.

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.

Before BOUDIN, SELYA and LIPEZ, Circuit Judges.

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 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 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.

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 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, 107 S.Ct. 1207, 94 L.Ed.2d 434 (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 (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, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (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...