Hachem v. Holder

Decision Date29 August 2011
Docket Number09–4453.,Nos. 09–3992,s. 09–3992
Citation656 F.3d 430
PartiesKassem HACHEM; Hiam Seheim; Mohamad Hachem; Hussein Hachem (09–3992), Petitioners,Mohamed Allalen (09–4453), Petitioner,v.Eric H. HOLDER, Jr., United States Attorney General, Respondent.
CourtU.S. Court of Appeals — Sixth Circuit


ON BRIEF: Robert M. Birach, Law Office of Robert M. Birach, Detroit, Michigan, Brian C. DiFranco, DiFranco Law Office, Columbus, Ohio, for Petitioners. Melody K. Eaton, Andrew N. O'Malley, United States Department of Justice, Washington, D.C., for Respondent.Before: BATCHELDER, Chief Judge; SUTTON and McKEAGUE, Circuit Judges.



Mohamed Allalen, a native and citizen of Algeria, petitions for review of a Board of Immigration Appeals (“BIA”) order that affirmed an Immigration Judge's (“IJ”) decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). Kassem Hachem and his family, natives and citizens of Lebanon, petition this court for review of a BIA order that affirmed the IJ's decision denying withholding of removal and CAT protection. The IJs and BIA granted both Allalen and Hachem voluntary departure. They have made motions before this court for a stay of voluntary departure. The cases were combined because of that issue. We deny their petitions and deny their motions.

We will address separately each petition for review before addressing the motions for stay of voluntary departure.

A. Facts and Procedural History

On his application for asylum, withholding of removal, and relief under the CAT, Allalen stated that he is afraid to return to Algeria because he had been harassed and beaten by Arabs and Muslim extremists on account of his Berber ethnicity. Allalen was born in Algeria to Berber parents. Allalen is a Muslim, but is not practicing. During high school he had a girlfriend, which he claims did not go over well with some of the more devout Muslims, who disapprove of open fraternization between the sexes. Allalen claims that in February 2004 he was twice approached and threatened by two men outside his high school. The second time, he claims, one of the individuals threatening him brandished a knife. Allalen claims that, both times, he was told that he needed to stop openly dating his girlfriend, who was also Berber.

Allalen claims that he reported the threats to the police, but that they did nothing about it. He says that if the police had investigated, they would have approached him again and let him know what had been done, because that is how things work in Algeria. He did not provide copies of police reports and he admitted that he had never asked for them.

Allalen did not stop seeing his girlfriend and he claims that in February 2005 he was again approached and threatened by the same two men. This time, they shoved him into a corner and kicked him. He also claims that they again brandished a knife. Although he claims that he and his girlfriend were scared and that, as a result, they only continued their relationship in secret, he never reported the incident to the police. Allalen claims that he is still in contact with his girlfriend, and that she has stated that if he comes home he will be killed, but he has provided no written statement from her to corroborate his claims.

Later that year, in November 2005, Allalen claims that he received a phone call at his home from two people threatening to kill him. He claims that he recognized the voices of the two men who had threatened him before. His mother allegedly reported the incident to the police, but when asked whether anyone followed up on the report, Allalen said that the police would have contacted him, so he knew they didn't do anything.

Allalen provided no written statement from his mother to corroborate his story. He admitted that while his mother did not know how to write, others in his mother's household knew how to write and could have provided a statement, but that he didn't know that he needed one.

Allalen submitted a number of other documents, including: a U.S. Department of State Travel Warning, advising of the danger to U.S. citizens in Algeria; a report on the dangers faced by Berbers in Algeria; an article about Al–Qaeda in Algeria; and an article about Algerian border guards killing someone. The government submitted the Department of State's 2007 Country Report for Algeria; an October 2007 Background Note on Algeria prepared by the Department of State's Bureau of Near Eastern Affairs; and the Department of State's 2007 International Religious Freedom Report for Algeria.

After the hearing, the IJ issued an oral decision in which he denied the application for all forms of relief because: (1) Allalen was not a credible witness, (2) he had not established past persecution in Algeria necessary for entitlement to asylum relief, (3) he had failed to show that he had a well-founded fear of persecution should he be removed to Algeria, (4) he could not meet the higher burden for withholding of removal since he had not met his burden for eligibility for asylum, and (5) he had not met his burden of demonstrating that it is more likely than not he would be subjected to torture if he returned to Algeria, as required for relief under the CAT.

On appeal, the BIA generally adopted the IJ's findings of fact and conclusions of law, noting the guidelines for determining credibility as set forth in the REAL ID Act of 2005, and finding no clear error in the IJ's adverse credibility determination. The BIA agreed that, even accepting as credible Allalen's testimony, Allalen had failed to show that the incidents he experienced equated to past persecution, or that he had a well-founded fear of persecution based on those incidents. The BIA rejected Allalen's argument that the IJ's questioning, tone, or comments denied him a fair hearing and due process. Lastly, the BIA affirmed the denial of withholding of removal and relief under the CAT.

Allalen petitioned this court for review of the denial of asylum. He has failed to challenge, on appeal, the IJ's and the BIA's determinations that he was not entitled to withholding of removal or relief under the CAT. Therefore, these grounds for relief have been abandoned and we will not address them. Patel v. Gonzales, 470 F.3d 216, 219 (6th Cir.2006).

B. Jurisdiction and Standard of Review

We have jurisdiction over the petitioner's request for asylum pursuant to 8 U.S.C. § 1252(a)(1). This court has jurisdiction to review the final decision of the BIA “affirming the IJ's denial of asylum.” Singh v. Ashcroft, 398 F.3d 396, 400 (6th Cir.2005). Generally, this court reviews the BIA's decision to determine whether it is supported by substantial evidence. Mostafa v. Ashcroft, 395 F.3d 622, 624 (6th Cir.2005). Where the Board adopts the IJ's decision and supplements that decision with its own comments, as in this case, we review both the BIA's and the IJ's opinions. See Gilaj v. Gonzales, 408 F.3d 275, 283 (6th Cir.2005) (per curiam).

An IJ's credibility determinations are considered findings of fact and are reviewed under the substantial evidence standard. Sylla v. INS, 388 F.3d 924, 925 (6th Cir.2004). We will reverse a credibility determination only if any reasonable adjudicator would be compelled to conclude to the contrary. Pergega v. Gonzales, 417 F.3d 623, 627 (6th Cir.2005).

C. Analysis

In support of his petition for review, Allalen argues that the IJ's adverse credibility finding was contrary to the REAL ID Act, that the IJ “incorrectly applied the well-founded fear standard” when he determined that Allalen was not entitled to asylum relief, and that his due process rights were violated when the IJ allegedly treated him in an “antagonistic, derogatory manner” during the course of the hearing.

Under the REAL ID Act, credibility determinations are based on the “totality of the circumstances” and should take into account “all relevant factors.” These factors include

the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant's or witness's account, the consistency between the applicant's or witness's written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal consistency of each such statement, the consistency of such statements with other evidence of record (including the reports of the Department of State on country conditions), and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's claim, or any other relevant factor.

8 U.S.C. § 1158(b)(1)(B)(iii); El–Moussa v. Holder, 569 F.3d 250, 256 (6th Cir.2009).

The IJ considered the totality of the circumstances and provided the reasons for his findings. Specifically, he noted the brevity of Allalen's statements in his application and at the hearing, the lack of detail about his experiences in Algeria, Allalen's overall demeanor on the witness stand, and the implausibility of his stories. The IJ found it difficult to believe that Allalen could recognize the two men's voices over the phone in November 2005, eight months after Allalen's last encounter with them, especially when Allalen had seen these two men only briefly, and only on two occasions over a period of two years. The IJ also stated that Allalen had failed to provide any corroborating statements from his girlfriend, his mother, or his father, notwithstanding his testimony that all of these individuals had first-hand knowledge of the threats and the phone call. Moreover, this evidence was reasonably available in light of Allalen's testimony that he had regular contact with his family members and his girlfriend. The BIA reiterated the IJ's findings, and concluded that the IJ had considered the “totality of the circumstances” as required by the REAL...

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