Makhoul v. Ashcroft, 04-1344.

• Decision Date: 28 October 2004
• Docket Number: No. 04-1344.,04-1344.
• Citation: 387 F.3d 75
• Court: U.S. Court of Appeals — First Circuit
• Parties: Chamel Makhoul MAKHOUL, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

387 F.3d 75

Chamel Makhoul MAKHOUL, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 04-1344.

United States Court of Appeals, First Circuit.

Submitted September 21, 2004.

Decided October 28, 2004.

Petition for review from the Board of Immigration Appeals.

COPYRIGHT MATERIAL OMITTED

Saher J. Macarius on brief for petitioner.

Peter D. Keisler, Assistant Attorney General, Civil Division, Linda S. Wendtland, Assistant Director, Office of Immigration Litigation, and Norah Ascoli Schwarz, Senior Litigation Counsel, Office of Immigration Litigation, on brief for respondent.

Before SELYA, Circuit Judge, COFFIN and CYR, Senior Circuit Judges.

SELYA, Circuit Judge.

The petitioner, Chamel Makhoul Makhoul, a native and citizen of Lebanon, seeks review of a final order of the Board of Immigration Appeals (BIA) denying his application for asylum, withholding of deportation, and protection under Article III of the Convention Against Torture (CAT). Concluding, as we do, that the BIA's order is supported by substantial evidence, we affirm.

I. Background

The petitioner, now twenty-two years of age, arrived at Miami International Airport on March 15, 2001. He had no visa. Instead, he presented his Lebanese passport at the immigration counter and requested asylum. Agents of the Immigration and Naturalization Service (INS) took him to a detention facility.¹ In a March 23 interview with an asylum officer, the petitioner claimed that Syrian soldiers had thrice arrested him during demonstrations against the Syrian occupation of Lebanon. He also claimed that the secret police had arrested and beaten him in February of 2001 for distributing anti-Syrian pamphlets.

Based on this account, the asylum officer tentatively determined that the petitioner had a credible fear of persecution on account of his political opinion. The INS duly initiated removal proceedings and served him with a notice to appear in the Immigration Court. Pending the resolution of the petitioner's status, the INS paroled him into the United States. See 8 C.F.R. § 212.5(c) (2004). Once on parole, the petitioner traveled to Boston to live with family members. Appearing tele-phonically at a hearing before the Immigration Court, sitting in Florida, the petitioner conceded deportability but sought asylum, withholding of deportation, and relief under CAT. The Immigration Court then granted the petitioner's unopposed motion to transfer the proceedings to Boston. See 8 C.F.R. § 1003.20.

Shortly thereafter, the petitioner recanted the story he had told at his asylum interview. In a declaration accompanying his asylum application, he stated only that he had posted anti-Syrian political statements on an Internet chat site and had downloaded provocative political material. At a hearing before an immigration judge (IJ) on December 5, 2002, the petitioner admitted that he had concocted the original tale about arrests and beatings. He attributed the fabrication to the advice of a self-styled immigration consultant.

Having abandoned his fictitious claim of past persecution, the petitioner suggested that he had a well-founded fear of future persecution on account of his political opinion. This suggestion traveled along a circuitous path. The petitioner testified that he had opposed the Syrian occupation of Lebanon for some time and had expressed his opposition in Internet chat rooms. In addition, the petitioner's friend, Elias El Gobaly, had asked him to download a brochure calling for the ouster of Syrian forces from Lebanon and featuring a picture of Michel Aoun (the exiled former president of Lebanon and the inspirational figurehead for this virtual protest movement). The petitioner complied, giving multiple copies of the flier to Gobaly, who then distributed them.

The Syrians arrested Gobaly in December of 2000. The petitioner assumed that the Syrians would torture Gobaly and would force him to reveal the petitioner's role in the production of the brochures. Fearful of these imagined consequences, the petitioner fled the country.

The record is silent both as to what treatment Gobaly received and as to what information (if any) Gobaly might have provided to his captors. According to one of the petitioner's brothers (who still resides in Lebanon), the Syrians eventually released Gobaly. The petitioner admitted that he did not know whether Gobaly had named names or under what conditions Gobaly had been detained. Despite these uncertainties, the petitioner expressed fear that the authorities would arrest and torture him if he dared to return to Lebanon.

The IJ found little probative value in this reconstructed narrative. Nor did the petitioner's presentation of documentary evidence detailing abusive conduct by Syrian forces toward outspoken supporters of the former president fill this void; the IJ concluded that the petitioner had not brought himself within this sphere. After all, the petitioner himself had never been arrested, detained, or brutalized. Thus, his belief that the Syrians sought his capture rested entirely upon Gobaly's arrest. But, the IJ noted, the petitioner had proffered no evidence illuminating the circumstances surrounding Gobaly's detention, nor had he adduced any proof about what Gobaly might (or might not) have revealed to the authorities. Accordingly, the notion that the Syrians would be on the lookout for the petitioner was, in the IJ's words, "highly speculative."

Although the IJ did not make an explicit credibility finding, her skepticism was evident. She reasoned that something more mundane than fear of persecution likely drove the petitioner's desire to emigrate to the United States. The petitioner's father had been in Boston since 1993 and was seeking to become a lawful permanent resident. See 8 U.S.C. § 1255; 8 C.F.R. § 204.5. The petitioner indicated that he had hoped to qualify for permanent residency as his father's dependent and admitted that he had emptied out his father's store in Lebanon before leaving the country. The IJ believed that these admissions supported a plausible inference that the family had made a collective decision to relocate to the United States and that the petitioner's real intention was to join them.

Based on these findings, the IJ held that the petitioner had not established a well-founded fear of future persecution. She thus denied the petitioner's applications for asylum and withholding of deportation. Noting that the Syrian authorities had never laid a finger on the petitioner, the IJ also ruled that the petitioner had wholly failed to show that he would face likely torture if removed to Lebanon. Consequently, the IJ rejected the petitioner's CAT claim as well and ordered him removed to Lebanon.

The petitioner appealed. The BIA summarily affirmed the IJ's decision on February 6, 2004. This petition for judicial review followed.

II. Discussion

In order to become eligible for asylum, an alien must establish that he is a refugee. See 8 U.S.C. § 1158(b)(1); 8 C.F.R. § 208.13(a); see also Laurent v. Ashcroft, 359 F.3d 59, 63 (1st Cir.2004). A refugee is a person unable or unwilling to return to his home 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); see Laurent, 359 F.3d at 63-64. A showing of past persecution creates a presumption that an applicant's fear of future persecution is well-founded. See 8 C.F.R. § 208.13(b)(1); see also Fergiste v. INS, 138 F.3d 14, 18 (1st Cir.1998). In the absence of a showing of past persecution, the asylum applicant bears the burden of demonstrating that his fear of future persecution is well-founded. See Laurent, 359 F.3d at 65.

When an IJ rejects an alien's application for asylum and orders his removal, the BIA has jurisdiction to review the order upon the filing of a timely appeal. See 8 C.F.R. §§ 1003.1(b), 1240.15; see also Nugent v. Ashcroft, 367 F.3d 162, 165 (3d Cir.2004). "Where, as here, the BIA conducts a de novo review of the record, independently validates the sufficiency of the evidence, and adopts the IJ's findings and conclusions, the IJ's findings become the BIA's." Laurent, 359 F.3d at 64 n. 3. We review the BIA's order pursuant to the authority conferred by 8 U.S.C. § 1252(b).

Our review is deferential. In immigration cases, the court of appeals applies the familiar "substantial evidence" standard of review. It must uphold the BIA's decision "unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B). Put another way, a reviewing court can reverse the BIA only if the record unequivocally indicates error. INS v. Elias-Zacarias, 502 U.S. 478, 481 & n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Indeed, if an asylum applicant's fact-based challenge to an unfavorable decision is to succeed "the administrative record, viewed in its entirety, must compel the conclusion that he is asylum-eligible." Aguilar-Solis v. INS, 168 F.3d 565, 569 (1st Cir.1999) (emphasis omitted).

Against this backdrop, we turn to the specifics of the petitioner's claims. For the first time on appeal, the petitioner contends that he has suffered past persecution.² This argument starts with the premise that the Syrian occupiers exercise brutal control over the Lebanese people. That premise is supported by documentary evidence in the record and we accept it. Building on this uncontroversial foundation, the petitioner suggests that Gobaly's arrest placed him (the petitioner) in a state of intense anxiety, exacerbated by a fear that his own arrest and abuse were imminent. From this, the petitioner argues that he experienced psychological torment, which amounted to "persecution" in the statutory sense.

As a theoretical matter, we acknowledge that, under the right set of circumstances, a finding of past persecution might rest on a showing of psychological harm. See, e.g.,...