Debab v. I.N.S.

• Decision Date: 05 October 1998
• Docket Number: No. 98-1266,98-1266
• Citation: 163 F.3d 21
• Parties: Abiddine DEBAB, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 21

163 F.3d 21

Abiddine DEBAB, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent

No. 98-1266.

United States Court of Appeals, First Circuit.

Heard Oct. 5, 1998.

Decided Dec. 22, 1998.

Maureen O'Sullivan, with whom Harvey Kaplan, Jerry Friedman, and Kaplan, O'Sullivan & Friedman were on brief, for petitioner.

Alison Marie Igoe, Office of Immigration Litigation, Civil Division, United States Department of Justice, with whom Christopher C. Fuller, Senior Litigation Counsel, Office of Immigration Litigation, and Frank W. Hunger, Assistant Attorney General, Civil Division, were on brief, for respondent.

Before TORRUELLA, Chief Judge, BOWNES, Senior Circuit Judge, and LYNCH, Circuit Judge.

LYNCH, Circuit Judge.

Abiddine Debab, an Algerian immigrant, seeks reversal of an order of the Board of Immigration Appeals. That order affirmed the decision of the Immigration Judge denying his application for political asylum under the Immigration and Nationality Act ("INA") § 208, 8 U.S.C. § 1158, and his application for withholding of deportation under INA § 243(h), 8 U.S.C. § 1253(h) (1996), amended by the Illegal Immigration and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, § 307(a), 110 Stat. 3009-546.

The BIA concluded that the IJ had correctly determined that Debab failed to establish either past persecution or a well-founded fear of future persecution on account of any of the five statutorily protected grounds--"race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42). Here Debab argues first that his evidence showed that threats he admittedly received came from members of the armed Islamic insurgency against the Algerian government. This, he says, shows persecution on account of political opinion and social group membership. Because there is substantial evidence to support the Board's determination against Debab on his first argument, we affirm.

I

Debab, an Algerian citizen, came to the United States from Algeria on October 19, 1994 holding a visa as a non-immigrant visitor for pleasure. His visa permitted him to remain in the United States until April 18, 1995. In December 1994, Debab applied for asylum under INA § 208(a), which gives the Attorney General discretion to grant asylum to "refugees" as defined by the INA, and for withholding of deportation under INA § 243(h), which requires the Attorney General to withhold deportation to a country in which an alien would be threatened with persecution on account of one or more of the five specified grounds. Following the denial of Debab's asylum application, the Immigration and Naturalization Service ("INS") brought deportation proceedings against him. At a proceeding before an IJ, Debab conceded deportability and reasserted his application for asylum and withholding of deportation.

In a January 9, 1997 decision, the IJ found Debab ineligible both for asylum and for withholding of deportation, and agreed to grant him voluntary departure in lieu of deportation. Debab appealed the IJ's decision to the BIA. On February 13, 1998, the BIA affirmed. Debab now appeals.

II

Debab's case is governed by the "transitional rules" of the IIRIRA. That is because the BIA's decision dismissing his case was issued after October 31, 1996 but proceedings were brought against him prior to April 1, 1997 (IIRIRA's "Title III-A effective date"). See IIRIRA § 309(c)(1), 110 Stat. at 3009-625, as amended by Act of Oct. 11, 1997, Pub.L. No. 104-302, § 2, 110 Stat. 3656, 3657; cf. Goncalves v. Reno, 144 F.3d 110, 116 (1st Cir.1998) (discussing the transitional rules). In general, under those transitional rules, aliens appealing a denial of a decision to grant asylum under INA § 208(a) or to withhold deportation under INA § 243(h) must file a petition for review within thirty days under former INA § 106. See IIRIRA § 309(c)(4), 110 Stat. at 3009-626. As Debab filed the requisite petition for review within thirty days, this court has jurisdiction, and the parties do not contend otherwise. ¹

III

Debab's application for asylum arises against the backdrop of the ongoing violent conflict in Algeria between the government and its armed Islamic fundamentalist opponents. In Meguenine v. INS, 139 F.3d 25 (1st Cir.1998), we described the situation in Algeria:

In 1989, Algeria opened its political process to parties other than its ruling secular party. An Islamic fundamentalist party, the Islamic Salvation Front, soon became the most important opposition party. In December 1991, the government held elections in two stages. After the Islamic Salvation Front won the first stage, the military cancelled the second stage. The civilian president resigned and a military junta took power. Radical Islamic fundamentalists, who had recently formed the Armed Islamic Group, launched terrorist attacks to destabilize the new government. The military government's forces fought back. Both sides have acted with considerable brutality toward the civilian population. So far, tens of thousands of Algerians have died in the conflict.

Id. at 26.

Before coming to the United States, Debab had worked for two years as an engineer for an Algerian state-owned chemical company named Asmidal. Debab testified before the IJ that on three occasions in June and July of 1994 he received threats from two or three unknown men when he did not accede to their demands that he sabotage the place where he worked. The men told Debab to close a gauge at the plant; doing so would apparently have caused an explosion. All of the encounters occurred in the same local cafe. At the first encounter, Debab refused to cooperate with the men. Two men--one of whom had been present at the initial encounter--returned two weeks later. Debab testified that at this second meeting, "they told me[,] why didn't you do what we told you[?] You should do what we told you and if you don't you will see what will happen to you." Debab again did not comply with the men's request. Approximately three weeks later, three different men approached Debab in the cafe and made comments similar to those made during the first two encounters.

Debab testified that he believed the men who threatened him came from a single organization because they made similar comments and asked him to perform the same act--sabotage the plant. When asked why he believed that the men belonged to an organization, he commented, "[b]ecause there are problems in the country and automatically they are, they belong to an organization." However, Debab stated that he did not know the organization to which the men belonged, and Debab's counsel did not ask him any other questions regarding the situation in Algeria, the basis of his understanding that the men were affiliated with an organization, or, indeed, the likely identity or characteristics of the organization.

Debab added that his fears were based on "personal observation plus what happened to friends of mine." In particular, he stated, "I know somebody who, who lived in the same neighborhood who was killed by people that he did not know and he was threatened before [the killing]." Debab also testified that he was afraid to go to the police in Algeria to report the incidents, "[b]ecause it would result in a big problem," in that the police might "take me for an interview and they may think that I'm with those people."

After the third threat against him, Debab fled to the home of his uncle--who lived approximately ninety kilometers from Debab--"to hide." He returned to his place of employment once, approximately twenty days later, to request medical leave. Debab later took his annual vacation, remaining at his uncle's home, and then applied for a visa to the United States.

Debab's parents and five siblings remain in Algeria. Debab testified that, to the best of his knowledge, no family members have had difficulties since his departure.

The IJ found Debab's description of the events that occurred in Algeria to be credible. However, the IJ found that Debab's claim that these events caused him to depart Algeria was not credible. The IJ stated that "although there does appear to be a high level of terrorism and random acts of violence and as well, government sponsored or sanctioned mistreatment of individuals, there does not appear to be any support for [Debab's] claim that he himself is likely to be targeted for any kind of harm on one of the five reasons listed in the statute."

The IJ also found that the "case appears entirely pre-textual," because although she believed that Debab had told the truth regarding the three threats, she did not find Debab's "testimony to be truthful with respect that these three incidents cause[d] him to decide to depart his country and come to the United States to find safe haven." The IJ's determination was based on her finding that Debab was unable "to communicate any theory as to why these men sought him out or who they were representing or why they would have targeted his employer."

The BIA dismissed Debab's appeal but focused on different issues. It upheld the IJ's determination that Debab had shown neither past persecution nor a well-founded fear of persecution on account of one of the five categories protected by the statute. Noting that the 1995 State Department report on Algeria described a rise in both terrorist activity and crime in Algeria, the BIA stated that "[t]here is no indication that [Debab] was threatened on account of an enumerated ground, rather than due to an unknown criminal motive."

IV

On petition for review under old INA § 106--the provision applicable in this case--we review a BIA decision that a petitioner is ineligible for asylum and withholding of deportation to determine if the "agency's conclusions [are] 'supported by reasonable, substantial, and probative evidence on the record considered as a whole.' " Gailius v. INS, 147 F.3d 34, 44 (1st Cir.1998) (quoting INA § 106(a)(4)); ...