Chebchoub v. Immigration & Naturalization Serv.

• Decision Date: 13 February 2001
• Docket Number: Nos. 99-70564,00-70398,s. 99-70564
• Citation: 257 F.3d 1038
• Parties: (9th Cir. 2001) ABDERRAHMAN CHEBCHOUB, PETITIONER, v. IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1038

257 F.3d 1038 (9th Cir. 2001)

ABDERRAHMAN CHEBCHOUB, PETITIONER, v. IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT.

Nos. 99-70564, 00-70398

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Submitted February 13, 2001^* --San Francisco, California

July 23, 2001

[Copyrighted Material Omitted] Elias Z. Shamieh, Esq., Shamiyeh and Shamieh, San Francisco, California, for the petitioner.

Regional Counsel, Western Region, Immigration & Naturalization Service, Laguna Niguel, California, for the respondent.

Ronald E. LeFevre, Chief Legal Officer, Immigration & Naturalization Service, San Francisco, California, for the respondent.

Anthony W. Norwood, Esq. and Michael J. Dougherty, Esq., Office of Immigration Litigation, Civil Division, Washington, D.C., for the respondent.

Petition to Review a Decision of the Board of Immigration Appeals INS No. A70-863-287

Before: Mary M. Schroeder, Chief Judge, J. Clifford Wallace, and Richard C. Tallman, Circuit Judges.

Wallace, Circuit Judge:

Chebchoub petitions for review of a decision by the Board of Immigration Appeals (Board) denying him relief from deportation. Chebchoub asserts persecution on the basis of political opinion and imputed political opinion. The Board exercised jurisdiction pursuant to 8 C.F.R. §§ 3.1(b) and concluded that Chebchoub failed to meet his burden of establishing eligibility for asylum or withholding of deportation because he was not credible and provided no corroborating evidence. Because Chebchoub's deportation proceedings commenced before April 1, 1997, and a final order of deportation was entered after October 30, 1996, we have jurisdiction over his petition pursuant to 8 U.S.C. §§ 1105a, as amended by section 309(c) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. See Pedro-Mateo v. INS, 224 F.3d 1147, 1149 (9th Cir. 2000). We deny the petition.

I.

Chebchoub, a native and citizen of Morocco, entered the United States on January 1, 1994. His asylum application and testimony before the Immigration Judge (IJ) set forth the following events.

Chebchoub's troubles with the Moroccan government began in 1982 when he participated in a student protest at his high school. The police, who mistakenly believed that the demonstration was engineered by the Muslim Brotherhood -a fundamentalist organization advocating violent opposition to the Moroccan government -cracked down on the protest, beating and arresting several students. In his testimony before the IJ, Chebchoub stated that he was among those both beaten and arrested by the police, while in his asylum application, he averred that he was thrashed, but escaped arrest.

Chebchoub was not a member of the Muslim Brotherhood (whose views and methods he opposed), nor any other opposition organization or movement, for fear of government retaliation. However, his brother, Mustafa, was a senior officer in Movement Forward, a socialist opposition group advocating democratic change. The author of several propaganda pamphlets and bulletins, Mustafa was said to have lived in hiding and was pursued actively by the government.

When Chebchoub enrolled in college in 1985, he asserted that several political organizations solicited his membership, including the Muslim Brotherhood and Movement Forward. Chebchoub variously averred in his testimony that he abstained from joining any group and that he joined Movement Forward. In either case, he supported Movement Forward and advocated its views among fellow students. However, it was his brother's activities as a leader of Movement Forward that he said attracted the close attention of the secret police.

He stated that the Moroccan secret police regularly visited and harassed Chebchoub and his family at home in search of Mustafa. On several occasions they ransacked the house looking for incriminating evidence, threatened and beat the family, and arrested Chebchoub and other family members, taking them "hostage" in an attempt to lure Mustafa out of hiding. Detained at various police stations for between one day and a week, Chebchoub said he was accused of being a member of Movement Forward, interrogated about his brother's whereabouts and political activities, and physically and psychologically tortured. Typically, the police would release him upon the condition that he convince his brother to surrender himself. In his testimony, Chebchoub alleged that he was detained between fifteen and twenty times.

On the last occasion, the police arrested and detained Chebchoub, his father, and another brother and subjected them to the same interrogation and torture. He reported that the police threatened that they would not release the three men unless Mustafa surrendered. After two weeks, the police coincidentally located and arrested Mustafa and subsequently released Chebchoub and the others. Mustafa was tortured then imprisoned for two-and-a-half years. Upon his release, the government expelled Mustafa from Morocco. He and his family sought and were granted asylum in France, where they currently live.

Chebchoub's testimony described encounters with the secret police continuing after Mustafa's departure as they suspected him of being Mustafa's domestic contact and disseminating pamphlets and instructions sent by Mustafa to other Movement Forward members inside Morocco. The police arrested and beat Chebchoub on several occasions. Chebchoub said that as he became more politically active in the late 1980's he was put up for membership and election as an officer in both Movement Forward and the Muslim Brotherhood and was nominated by both groups in local elections. He withdrew his name in both instances (he opposed the Muslim Brotherhood and feared government reprisal if he ran on behalf of Movement Forward); however, he asserted that the police again arrested and beat him, alternately accusing him of being a member of each opposition group.

After this experience, Chebchoub distanced himself from politics and started a construction company in 1990. His business struggled, however, because he was unable to secure government contracts. When he inquired as to why, he said he was again arrested, accused of being a member of Movement Forward, and beaten. At this point, Chebchoub resolved to leave Morocco, and the authorities gave him a document to sign promising not to return for ten years.

Since his departure in 1994, Chebchoub has been in frequent contact with his wife, who remains in Morocco. She has informed him that the police visit their home every couple of months and occasionally take her to the police station to interrogate her about his whereabouts and activities. While his parents have been questioned at home, Chebchoub testified that they have never been arrested or taken into custody.

In October 1995 Chebchoub applied for relief from deportation proceedings, claiming persecution by the Moroccan government on the basis of political opinion, imputed political opinion, and social group. In a decision dated May 14, 1997, the IJ denied Chebchoub's application for asylum and withholding of deportation based upon an adverse credibility finding, concluding that Chebchoub's testimony was so "inconsistent, vague and implausible as to indicate that the testimony must have been fraudulent."

Chebchoub appealed to the Board, which conducted a de novo review of the record. Citing credibility concerns and a failure to supply corroborating evidence, the Board dismissed Chebchoub's appeal because he failed to meet his burden of establishing eligibility for asylum or withholding of deportation.

II.

After a Board's de novo examination of the record, we review the Board's factual determinations -including its credibility findings -and its determination of an applicant's eligibility for asylum, for substantial evidence. INS v. EliasZacarias, 502 U.S. 478, 481 (1992). The substantial evidence standard is highly deferential to the Board, and for us to overturn the Board's decision, Chebchoub must show that the evidence compels reversal. Pedro-Mateo, 224 F.3d at 1150, citing Elias-Zacarias, 502 U.S. at 481 n.1. Thus, Chebchoub cannot prevail unless he demonstrates that any reasonable factfinder would necessarily conclude that he is eligible for relief from deportation. See Fisher v. INS, 79 F.3d 955, 961 (9th Cir. 1996) (en banc).

Chebchoub bears the burden of establishing his eligibility for asylum and withholding of deportation. Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir. 1997). To be eligible for asylum, Chebchoub must demonstrate that he has suffered past persecution or has a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. §§ 1101(a)(42)(A). A well-founded fear of persecution must be both subjectively genuine and objectively reasonable. PedroMateo, 224 F.3d at 1150. The subjective component may be satisfied by the applicant's testimony. Cordon-Garcia v. INS, 204 F.3d 985, 990 (9th Circ. 2000). "The objective component requires a showing, by credible, direct, and specific evidence in the record, of facts that would support a reasonable fear of persecution." Pedro-Mateo, 224 F.3d at 1150 (internal quotation omitted).

"Because asylum cases are inherently difficult to prove, an applicant may establish his case though his own testimony alone." Sangha, 103 F.3d at 1487. That is, Chebchoub's testimony, if credible, may be sufficient to sustain his burden of proof without corroboration. See 8 C.F.R.§§ 208.13; Sidhu v. INS, 220 F.3d 1085, 1090 (9th Cir. 2000). However, 8 C.F.R. §§ 208.13 plainly indicates that if the trier of fact either does not believe the applicant or does not know what to believe, the applicant's failure to corroborate his testimony can be fatal to his asylum application. Thus, the regulations unambiguously contemplate cases where an applicant's testimony alone will not satisfy his burden of proof. Sidhu, 220 F.3d...