Chaib v. Ashcroft

• Decision Date: 14 February 2005
• Docket Number: No. 02-9582.,02-9582.
• Citation: 397 F.3d 1273
• Parties: Noureddine CHAIB, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1273

397 F.3d 1273

Noureddine CHAIB, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 02-9582.

United States Court of Appeals, Tenth Circuit.

February 14, 2005.

Laura L. Lichter of Lichter & Associates, P.C., Denver, Colorado, for Petitioner.

Arthur L. Rabin, Attorney, Office of Immigration Litigation (Peter D. Keisler, Assistant Attorney General, Civil Division; and Mark C. Walters, Assistant Director, with him on the brief), U.S. Department of Justice, Civil Division, Washington, D.C., for Respondent.

Before SEYMOUR, McKAY, and MURPHY, Circuit Judges.

McKAY, Circuit Judge.

In this appeal, Noureddine Chaib ("Petitioner") challenges the Board of Immigration Appeals' ("BIA") affirmance without opinion of an Immigration Judge's ("IJ") denial of his application for asylum pursuant to 8 U.S.C. § 1158, restriction on removal pursuant to 8 U.S.C. § 1231, and restriction on removal pursuant to the Convention Against Torture ("CAT").

Petitioner, a native-born Algerian, entered the United States on October 1, 1999, because of a fear of persecution in his homeland. Petitioner stayed in this country longer than authorized and was charged with removability pursuant to 8 U.S.C. § 1227(a)(1)(B). At a hearing before the IJ, Petitioner conceded to the charge of removability but sought asylum, withholding of removal, and withholding of removal pursuant to CAT based on past persecution and a fear of future persecution by the Algerian government and armed insurgent groups.

Petitioner alleged that his persecution began when he discovered wrongdoing by a co-worker at the Public Treasury, a government entity. Petitioner was a computer engineer at the Public Treasury and, as such, was involved in overseeing the security of financial transactions. In August 1997, while reviewing employee computer activities, Petitioner discovered that a co-worker was performing unauthorized transactions. When confronted, the co-worker said he would explain everything later at his house. Petitioner went to the co-worker's house and was met there by two other men who were associated with the Islamic Salvation Front ("FIS"), an armed insurgent organization.

During this meeting, Petitioner was pressured to join the FIS and assist in transferring funds to the Armed Islamic Group ("GIA"), a somewhat-related armed insurgent group. It was at this time that Petitioner discovered the nature and extent of the co-worker's activities. The co-worker was taking money from accounts at the Public Treasury and diverting it, for a short period of time, to accounts for the insurgent group. Because the money was only transferred for a short period of time, the records at the Treasury would report it as a mistaken transaction, but, in the interim, the transferred funds would garner significant money in interest income for the insurgent organization.

During the meeting, Petitioner was allegedly told by one of the two men that Petitioner and his family would be killed if he did not help in the money-transfer scheme. In addition, the men threatened to punish mercilessly both Petitioner and his family if he reported his co-worker's activities to the government. Afraid to refuse them on the spot, Petitioner asked for time to consider his options. Soon thereafter, he obtained a visa and went to France to think things over. Upon arriving in France, Petitioner decided that it was not safe for him because of the large number of Algerian GIA members living there.

Petitioner next obtained a visitor's visa to the United States. While in the United States, Petitioner determined to write a letter to his supervisor at the Public Treasury to explain his absence and the improper scheme that was occurring at the Treasury. Prior to writing the letter, Petitioner learned from his mother that the two men from the FIS were arrested because of their involvement in the money-transferring scheme and that these men had implicated Petitioner. In addition, he learned that government agents had been to his house in search of him, did considerable damage to the house, and had beat his brother. After learning of this, Petitioner lost all contact with his family.

The administrative record contains the 1999 State Department's Country Report on Human Rights Practices for Algeria. The Report states generally that Algeria has a poor human-rights record. Of particular importance, the report notes that "[t]he security forces committed extrajudicial killings, routinely tortured or otherwise abused detainees, and arbitrarily arrested and detained, or held incommunicado, many individuals suspected of involvement with armed Islamist groups...." A.R. at 124 (emphasis added). "The Constitution prohibits arbitrary arrest and detention; however, the security forces continued to arrest arbitrarily and detain citizens." Id. at 127 (emphasis added).

Both the Constitution and legislation ban torture and other cruel, inhuman, or degrading treatment; however, according to local human rights groups and defense lawyers, the police resort to torture when interrogating persons suspected of being involved with, or having sympathies for, armed insurgency groups. There were several credible reports of torture at the Algiers police facility, called Chateau Neuf.

Id. at 126-27 (emphasis added).

Having the above evidence before him, the IJ denied all of Petitioner's requests. In so doing, the IJ found that Petitioner was not subjected to persecution in the past¹ and that his claim of future persecution by either the government or the FIS was not well-founded because Petitioner lacked credibility.

Petitioner raises three issues on appeal: (1) that the BIA's summary affirmance was unconstitutional as applied, (2) that the IJ failed to support his credibility finding with substantial evidence, and (3) that the IJ's failure to specifically address his CAT claim is reversible error. In addition to countering the above arguments, Respondent contends that Petitioner waived his right to appeal the IJ's credibility finding because Petitioner improperly incorporated by reference this argument in his opening brief. Resp't Br. at 22-23. In light of this Court's order permitting supplemental briefing, combined with Petitioner's short supplemental brief articulating his argument regarding the IJ's allegedly improper credibility finding, the general justifications for not permitting incorporation by reference are not present. See, e.g., Gaines-Tabb v. ICI Explosives, USA, Inc., 160 F.3d 613, 624 (10th Cir.1998) (explaining that courts generally disfavor incorporation by reference because doing so allows practitioners to circumvent page limitations and complicates the judge's responsibilities). This Court will therefore address Petitioner's credibility argument.

Petitioner's claim that the BIA's summary affirmance procedure is unconstitutional as applied to this case is two-fold. First, Petitioner contends that the BIA did not follow its own rules in affirming Petitioner's case without opinion. Second, he argues that the BIA's summary affirmance process does not provide for meaningful review.

Petitioner's first contention, mislabeled as a constitutional argument, is not reviewable by this Court: "[T]he decision to affirm without opinion falls squarely into the category of decisions committed to the agency's discretion and beyond our jurisdiction to review." Tsegay v. Ashcroft, 386 F.3d 1347, 1356 (10th Cir.2004). Petitioner's second "constitutional" argument ignores the other holding of Tsegay where this Court specifically rejected the petitioner's argument that the BIA's summary affirmance procedure denied her meaningful review. See id. at 1353. We based that decision on Yuk v. Ashcroft, 355 F.3d 1222 (10th Cir.2004), and reasoned that the IJ's opinion provided the required reasoned agency decision needed to satisfy the Fifth Amendment. Id. That reasoning and holding are equally applicable to this case.

Before addressing the other issues raised by Petitioner in this appeal, a brief background of the laws under which Petitioner sought protection is helpful. "A request for asylum involves a two-step process." Yuk, 355 F.3d at 1232 (quotation omitted). The applicant must first show that he is eligible for asylum by establishing that he is a refugee. See id. Refugee status is statutorily defined as "any person who is outside any country of such person's nationality ... who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded 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). If the applicant satisfies that definition, the Attorney General still has discretion either to grant or deny asylum. See id. at 1233. In this case, the IJ determined, at the first step, that Petitioner failed to establish that he was a refugee and, thus, held he was ineligible for asylum.

There are three types of persecution sufficient to support a refugee designation: (1) he has a well-founded fear of future persecution, (2) he suffered past persecution sufficient to give rise to a presumption of future persecution, or (3) he suffered past persecution so severe that it supports an unwillingness on the applicant's part to return to that country. Id. at 1232-33 (internal citations omitted). In this case, Petitioner argues that the IJ's finding that he lacked credibility was not supported by substantial evidence as to his claim for well-founded fear of future persecution. Persecution is "the infliction of suffering or harm upon those who differ (in race, religion, or political opinion) in a way regarded as offensive and requires more than just restrictions or threats to life and liberty." Woldemeskel v. INS, 257 F.3d 1185, 1188 (10th Cir.2001) (citation and internal quotations omitted).

Asylum is not the only protection...