Bellout v. Ashcroft, 02-73413.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Citation: 363 F.3d 975
• Docket Number: No. 02-73413.,02-73413.
• Parties: Mouloud BELLOUT, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Decision Date: 12 April 2004

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363 F.3d 975 Mouloud BELLOUT, Petitioner,
v.
John ASHCROFT, Attorney General, Respondent. No. 02-73413. United States Court of Appeals, Ninth Circuit. Argued and Submitted February 5, 2004. Filed April 12, 2004.

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Jack Artz, South Pasadena, CA, for the petitioner.

Ethan B. Kanter, Assistant United States Attorney General, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Before KOZINSKI, O'SCANNLAIN, and SILVERMAN, Circuit Judges.

SILVERMAN, Circuit Judge:

Mouloud Bellout, a native and citizen of Algeria, petitions for review of the BIA's summary affirmance of the IJ's denial of Bellout's application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The IJ found Bellout statutorily ineligible for relief from deportation because he engaged in terrorist activity when he joined "Armed Islamic Group (GIA)," a State Department-recognized terrorist organization, in 1995 and lived in GIA camps in Algeria for three years. Bellout has been removed to Algeria.

We hold as follows: First, because the IJ found that there are reasonable grounds to believe that Bellout engaged in or is likely to engage in terrorist activity under 8 U.S.C. § 1158(b)(2)(A)(v), we lack jurisdiction to review the IJ's determination that Bellout is ineligible for asylum by virtue of 8 U.S.C. § 1158(b)(2)(D). Second, substantial evidence supports the IJ's conclusion that Bellout is ineligible for withholding of removal. Finally, substantial evidence supports the IJ's denial of deferral of removal under CAT.

I. FACTS

Bellout attempted to enter the United States at Los Angeles International Airport on January 6, 1999, using a fraudulent Belgian passport. After the INS initiated removal proceedings, Bellout applied for asylum, withholding of deportation, and relief under CAT, alleging that he would be tortured by terrorists or police if he returned to Algeria. At his hearing, Bellout testified that he joined GIA in 1995, lived in GIA mountain camps, made friends with other members, read GIA's pamphlets and literature, discussed ideology with other members of the group, and carried weapons and ammunition. When GIA divided into a second group in 1996, Bellout went with the second group — "Algamma El-Salafia Lel-Daawa Wal Ketal." He remained with this group until 1998, when he left Algeria.

The IJ found that Bellout was statutorily barred from asylum, withholding of removal and relief under CAT as an alien "who the Attorney General knows, or has reasonable grounds to believe, is engaged in or is likely to engage after entry in any terrorist activity."

8 U.S.C. § 1189(a) authorizes the Secretary of State to designate foreign terrorist organizations by providing notice and findings to congressional leaders and publishing the designation in the Federal Register. Unless Congress disapproves the designation, it becomes effective upon publication in the Federal Register. Id. § 1189(a)(2)(B). Although the designation is effective for two years, the Secretary

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may redesignate a foreign terrorist organization after the two years expire. Id. § 1189(a)(4).

The Secretary has designated and redesignated the "Armed Islamic Group (GIA)"¹ as a terrorist organization under 8 U.S.C. § 1189. Designation of Foreign Terrorist Organizations, 62 Fed.Reg. 52650 (Oct. 8, 1997); 64 Fed.Reg. 55112 (Oct. 8, 1999); 66 Fed.Reg. 51088 (Oct. 5, 2001); 68 Fed.Reg. 56860 (Oct. 2, 2003). According to the State Department Office of Counterterrorism's 1999 Report of Foreign Terrorist Organizations, GIA is an extremely violent terrorist group that frequently and brutally attacks and kills civilians, journalists, and foreign residents. The Report says that GIA uses assassinations and bombings and favors kidnaping victims and slitting their throats. According to the Report, GIA's activities are not limited only to Algeria; GIA hijacked an Air France flight in December 1994 and is suspected of a series of bombings in France in 1995.

Because Bellout had been a member of a State Department-designated terrorist organization, the IJ found that Bellout engaged in terrorist activity and, in the alternative, posed a danger to security in the United States. He was therefore ineligible for asylum. He likewise was ineligible for withholding of deportation. The IJ also concluded that Bellout was not entitled to deferral of removal under CAT because he had failed to establish that he would more likely than not be tortured if he returned to Algeria. The BIA affirmed the IJ's decision, adopting that decision as the final agency determination pursuant to 8 C.F.R. § 3.1(a)(7) (2002).

Bellout argues that the IJ erred in finding that he was ineligible for asylum and withholding of removal because he engaged in terrorist activity, and in denying him relief under CAT.

II. ASYLUM

An alien is ineligible for asylum if he is inadmissible or removable for engaging in terrorist activity or if "the Attorney General determines" that "there are reasonable grounds for regarding an alien as a danger to the security of the United States." 8 U.S.C. § 1158(b)(2)(A)(iv)-(v). "Terrorist activities" include membership in "a foreign terrorist organization, as designated by the Secretary [of State] under [8 U.S.C.] section 1189." Id. § 1182(a)(3)(B)(i)(V).

The asylum statute deprives this court of jurisdiction...