In re a---- H----

• Decision Date: 26 January 2005
• Docket Number: Interim Decision Number 3515
• Citation: 23 I&N Dec. 774
• Parties: In re A---- H----, Respondent
• Court: U.S. DOJ Board of Immigration Appeals

23 I&N Dec. 774

In re A---- H----, Respondent

Interim Decision Number 3515

Board of Immigration Appeals

Decided by Attorney General January 26, 2005

(1) The Attorney General denied asylum in the exercise of discretion to a leader-in-exile of the Islamic Salvation Front of Algeria who was associated with armed groups that committed widespread acts of persecution and terrorism in Algeria, because the United States has significant interests in combating violent acts of persecution and terrorism, and it is inconsistent with these interests to provide safe haven to individuals who have connections to such acts of violence.

(2) Terrorist acts committed by the armed Islamist groups in Algeria, including the bombing of civilian targets and the widespread murders of journalists and intellectuals on account of their political opinions or religious beliefs, constitute the persecution of others.

(3) A person who is a leader-in-exile of a political movement may be found to have "incited, assisted, or otherwise participated in" acts of persecution in the home country by an armed group connected to that political movement where there is evidence indicating that the leader (1) was instrumental in creating and sustaining the ties between the political movement and the armed group and was aware of the atrocities committed by the armed group; (2) used his profile and position of influence to make public statements that encouraged those atrocities; or (3) made statements that appear to have condoned the persecution without publicly and specifically disassociating himself and his movement from the acts of persecution, particularly if his statements appear to have resulted in an increase in the persecution.

(4) The phrase "danger to the security of the United States" means any nontrivial risk to the Nation's defense, foreign relations, or economic interests, and there are "reasonable grounds for regarding" an alien as a danger to the national security where there is information that would permit a reasonable person to believe that the alien may pose such a danger.

(5) The Attorney General remanded the record for further consideration by the Board of Immigration Appeals of the questions whether (1) there is sufficient evidence to indicate that the respondent "incited, assisted, or otherwise participated in the persecution" of others; (2) deference should be given to the credibility findings of the Immigration Judge; (3) there are "reasonable grounds for regarding [the respondent] as a danger to the security of the United States"; (4) the respondent presently faces a threat to his life or freedom if removed to Algeria; and (5) the respondent presently faces a likelihood of being tortured in Algeria.

FOR APPLICANT: Malea Kiblan, Esquire, McLean, Virginia

FOR DEPARTMENT OF HOMELAND SECURITY: Andrew Arthur, Associate General Counsel

BEFORE THE ATTORNEY GENERAL

(January 26, 2005)

This matter was referred to the Attorney General by the Acting Commissioner of the Immigration and Naturalization Service from the decision of the Board of Immigration Appeals ("BIA") granting respondent asylum. Matter of A---- H---- (BIA 2000). The BIA's decision is vacated in its entirety, respondent is found excludable and ordered excluded, respondent's application for asylum is denied, and respondent's applications for withholding of deportation and deferral of removal to Algeria are remanded for further proceedings consistent with this opinion.

OPINION

This matter was referred to the Attorney General by the Acting Commissioner of the Immigration and Naturalization Service ("INS" or "Service") from the decision of the Board of Immigration Appeals ("BIA" or "Board") granting respondent asylum. Matter of A---- H---- (BIA 2000). For the reasons set forth below, I vacate the BIA's decision in its entirety, find respondent excludable and order him excluded, deny respondent's application for asylum, and remand respondent's applications for withholding of deportation and deferral of removal to Algeria for further proceedings consistent with this opinion.

I. BACKGROUND

Respondent, an Algerian national, has been active in the Algerian Islamist movement for decades and is a self-proclaimed leader-in-exile of the Islamic Salvation Front of Algeria, known by its French acronym "FIS." The FIS appeared to be on the verge of winning parliamentary elections in Algeria in 1992 when the elections were canceled by the Algerian Government. For some years thereafter, Algeria was wracked by internal conflict between security forces and armed Islamist groups bent on overthrowing the Government. As the State Department reported in 1997:

Most sources estimate that [in the mid-1990s] an average of 10,000 people were killed every year .... Both sides committed abuses. There is convincing evidence that the security forces carried out dozens of extrajudicial killings and often tortured and otherwise abused detainees ....

Armed Islamic groups also committed abuses and atrocities. Terrorists carried out widespread attacks on innocent civilians. They assassinated political figures journalists, academics and thousands of other civilians as well as a number of foreigners. . . . Terrorists using bombs and car bombs attacked electric pylons, telephone exchanges, schools, bridges, police and military headquarters, local government offices, and railroad trains and tracks. Car bombs caused hundreds of civilian deaths.

Two of the most active and violent armed Islamist groups in Algeria were the Armed Islamic Group, or "GIA," and the Islamic Salvation Army, or "AIS." The AIS has been identified as the armed wing of the FIS. In May 1994, the GIA, the AIS, and other armed Islamist groups joined under one banner and became known collectively as the GIA. The record indicates that these armed groups engaged in terrorism and widespread persecution of civilians in Algeria. The Secretary of State has designated the GIA as a "foreign terrorist organization" for its activities during the mid-1990s. The State Department determined that these groups targeted journalists for assassination "because they are viewed as supportive of the Algerian government and antagonistic toward the goals of these militants" and murdered intellectuals who were deemed "unsympathetic to the Islamic cause as defined by Islamic militants." The AIS issued a statement in August 1994 labeling journalists "Enemies of the Nation" and vowing that they would "receive the implementation of God's law." An Amnesty International report introduced into evidence by respondent states that between mid-1993 and November 1996 more than 60 journalists in Algeria died in killings "believed to have been carried out by armed opposition groups." Human Rights Watch reported, "Between March and November 1993, some twenty members of the intelligentsia were murdered, . . . includ[ing] seven journalists, . . . [a] professor of law, . . . [and] a physician and human rights activist." A September 1994 report from Jane's Intelligence Review states that the GIA was responsible for numerous murders of intellectuals from the beginning of the conflict, including the August 1994 murder of the director of the Agronomy Institute at Blida University. The GIA targeted civilians not only on the basis of their political opinions but also on account of their religion. As the State Department report related, "In 1994, the GIA declared its intention to eliminate `Jews, Christians, and Polytheists' from Algeria."

Respondent fled from Algeria in 1992 and first applied for asylum in the United States in 1993. The INS denied respondent's application in 1996 based on evidence that he was complicit in acts of terrorism and persecution in Algeria, and thereafter detained respondent and initiated exclusion proceedings against him on the ground that he lacked a valid entry document pursuant to section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(7)(A)(i)(I) (1994).¹ In 1997, an Immigration Judge found respondent excludable under section 212(a)(7)(A)(i)(I), denied respondent's request for asylum and withholding of deportation, and ordered him excluded and removed from the United States. Matter of A----H---- (I.J. 1997). The BIA reversed and remanded for a new hearing after concluding that the record was insufficient to support deportation. Matter of A----H---- (BIA 1998). On remand, a second Immigration Judge heard additional evidence and again concluded that respondent was excludable, denied his request for asylum and withholding of deportation, and ordered him excluded and removed, but deferred his removal to Algeria pursuant to the law and regulations implementing the Convention Against Torture. Matter of A----H---- (I.J. 1999).²

Respondent appealed, and the BIA once again reversed, this time ordering that respondent be granted asylum in the United States. Matter of A----H---- (BIA 2000). In its decision, the BIA made several determinations: First, the BIA determined that the INS failed to offer sufficient evidence to indicate respondent had "ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion" for purposes of establishing respondent's ineligibility for asylum pursuant to 8 C.F.R. § 208.13(c) (2000) and for withholding of deportation under former section 243(h)(2)(A) of the Act, 8 U.S.C. § 1253(h)(2)(A) (1994). See also section 101(a)(42) of the Act, 8 U.S.C. § 1101(a)(42) (1994) ("The term `refugee' does not include any person who ordered, incited, assisted, or otherwise participated in the persecution of any person . . . ."); section 208(b)(2)(A)(i) of the Act, 8 U.S.C. § 1158(b)(2)(A)(i) (2000) (setting forth the same bar to eligibility for asylum applications filed on or after April 1, 1997); 8 C.F.R. § 1208.13(c)(2)(E) (2005) (prescribing a bar to eligibility for asylum applications...