Mekhoukh v. Ashcroft

• Decision Date: 13 February 2004
• Docket Number: No. 03-1372.,No. 03-1037.,03-1037.,03-1372.
• Citation: 358 F.3d 118
• Parties: Abdel Hamid MEKHOUKH, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

358 F.3d 118

Abdel Hamid MEKHOUKH, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 03-1037.

No. 03-1372.

United States Court of Appeals, First Circuit.

Heard October 8, 2003.

Decided February 13, 2004.

COPYRIGHT MATERIAL OMITTED

Gerald D. Wall, with Greater Boston Legal Services on brief, for petitioner.

Paul Fiorino, Attorney, with Peter D. Keisler, Assistant Attorney General, and Richard M. Evans, Assistant Director, Office of Immigration Litigation, on brief, for respondent.

Before TORRUELLA, Circuit Judge, CYR, Senior Circuit Judge, and OBERDORFER,^* Senior District Judge.

OBERDORFER, Senior District Judge.

Abdel Hamid Mekhoukh, a native and citizen of Algeria, petitions for review of a decision of the Board of Immigration Appeals, denying his application for asylum, withholding of removal, and relief under Article 3 of the United Nations Convention Against Torture. We deny the petition for review.

I. BACKGROUND

This case arises against the background of the ongoing and well-documented turmoil that has engulfed Algeria since late 1991. See generally Bureau of Democracy, Human Rights and Labor, United States Department of State, 1999 Country Reports on Human Rights Practices — 1999: Algeria (Feb. 25, 2000) (AR 1014-1031) ("1999 Country Reports"); Bureau of Democracy, Human Rights and Labor, United States Department of State, Algeria — Profile of Asylum Claims and Country Conditions (June 1998) (AR 995-1013) ("1998 Profile of Asylum Claims"); see also Mediouni v. INS, 314 F.3d 24, 25 (1st Cir.2002); Debab v. INS, 163 F.3d 21, 23 (1st Cir.1998); Meguenine v. INS, 139 F.3d 25, 26 (1st Cir.1998). The conflict began when the ruling party, the National Liberation Front (FLN), foreseeing a loss to an Islamic fundamentalist party, the Islamic Salvation Front (FIS), cancelled the second round of scheduled democratic elections. The military then took power from the civilian President. These events caused significant unrest in the country. Since then, the government of Algeria has been engaged in a brutal conflict with radical Islamic parties, resulting in over 100,000 deaths. Torture and other human rights abuses, including the killing of innocent civilians, have been perpetrated by both the armed insurgents and the government's security forces. See 1999 Country Reports 1 (AR 1014) ("The security forces committed numerous serious human rights abuses."); 1998 Profile of Asylum Claims 5 (AR 999) ("Security forces commit serious abuses. They were responsible for numerous disappearances, carried out extra-judicial killings, routinely tortured and otherwise abused detainees, and arbitrarily arrested and detained or held incommunicado many individuals suspected of involvement with armed Islamic groups."); see also Meguenine, 139 F.3d at 26 ("Both sides have acted with considerable brutality toward the civilian population.").

Mekhoukh, an ethnic Berber,¹ was born on April 28, 1967, in Algiers, Algeria. During the years he lived in Algeria, from birth until 1997, he supported Berber causes, but he was not an activist. On one occasion, around 1985, when he was about 18, he met, and had his picture taken with Lounes Matoub, a popular entertainer and Berber activist who was assassinated by Islamic radicals in 1998. While he was in Algeria, Mekhoukh suffered no persecution on account of his Berber ethnicity or his support of Berber causes.

In approximately 1988, Mekhoukh received his first draft notice. Mekhoukh was then enrolled at a university and eligible for an educational deferment. In late 1991, the university temporarily closed due to political unrest in the country. See infra. When it reopened in the spring of 1992, Mekhoukh did not return. At that point, he was no longer entitled to an exemption from military service, but he continued to avoid his military obligation by filing false educational certificates. While he was in Algeria, Mekhoukh never claimed that he had a conscientious objection to military service in the Algerian military; nor did he ever inquire about the possibility of alternative service. Mekhoukh received draft notices after he left the university, but the record does not establish when those notices were received, how many were received, or their content.² Mekhoukh remained in Algeria, working, until 1997. During those five years, between 1992 and 1997, Mekhoukh experienced no negative consequences as a result of his fraudulent avoidance of military service.

When the conflict in Algeria started in 1991, Mekhoukh did not align himself with either the ruling party or the FIS. His position was, and remains today, that the government should not have cancelled the elections and that the FIS had the right to rule if democratically elected. While he was in Algeria, Mekhoukh suffered no persecution on account of these political opinions.

Mekhoukh left Algeria in 1997 and reached the United States in 1998, entering on a forged French passport. After leaving the United States for New Zealand, where his application for asylum was denied, he reentered the United States in October 1999. He was detained by the INS and determined to be deportable. He then applied for asylum, for withholding of deportation, and for protection under the United Nations Convention Against Torture. After a number of continuances, the retention and firing of one attorney, and several changes of venue (from Los Angeles to Houston to Boston), Mekhoukh finally filed his official application for asylum, withholding of removal and protection under the Convention Against Torture on October 20, 2000. (His application for asylum was just barely within the one-year time limit that applies to asylum claims). At the initial proceeding, Mekhoukh was advised that he had the right to be represented by counsel at his hearing, although not the right to appointed counsel. He was given a list of persons and organizations he could contact for help in finding an attorney. A hearing date of February 8, 2001, was set, giving him over three months to find counsel and prepare.

On February 8, 2001, Mekhoukh appeared for his hearing late and without counsel. He asked for a continuance, saying that he had important documents on the way and that he wanted to obtain an attorney. The immigration judge denied his motion, noting that Mekhoukh had been in the country for more than a year, that three months had passed since he had filed his official application, and that it would be unfair to other applicants to squander the three hours she had set aside for his case. However, she accepted his proffer as to what the additional documentary evidence would show. An interpreter was present at the hearing, although Mekhoukh himself testified mostly in English.

At the conclusion of his hearing, the immigration judge issued an oral decision denying Mekhoukh's application for asylum, for withholding of deportation, and for protection under the United Nations Convention Against Torture. She concluded that Mekhoukh failed to meet his burden to show a well-founded fear of persecution, and necessarily failed to show a likelihood of persecution, on account of his ethnicity, political opinions, and/or his avoidance of military service.

Mekhoukh appealed to the Board of Immigration Appeals. He provided the Board with additional documentary evidence, including a copy of his forged school certificate for the year 1994-95, a copy of his picture with Matoub, and copies of a number of government reports and media publications, documenting the violence and human rights abuses that have been endemic in Algeria since 1991. He did not submit copies of any draft notices. He asked the Board either to reverse on the existing record or to remand his case to the immigration judge for further consideration in light of this additional evidence. On December 4, 2002, the Board of Immigration Appeals affirmed, without opinion, making the immigration judge's decision the final agency determination. See 8 C.F.R. § 1003.1(e)(4).

Mekhoukh moved for reconsideration, contending that the Board had failed to consider his new evidence and that he was entitled to a remand to permit the immigration judge to consider it. He also argued that the Board's decision to affirm without opinion was improper where new evidence was proffered. The Board denied the motion on February 13, 2002. It stated that it had considered Mekhoukh's new evidence prior to affirming the immigration judge's decision. It further noted that to the extent Mekhoukh was objecting to the fact that it affirmed without opinion, such motions were barred by regulation. See 8 C.F.R. § 1003.2(b)(3).

Mekhoukh petitions for review of the denial of his application for asylum, for withholding of deportation, and for protection under the Convention Against Torture.

II. DISCUSSION

We have jurisdiction over Mekhoukh's appeal pursuant to 8 U.S.C. § 1252(b)(4).

A. Standard of Review

Our review of an order of removal is circumscribed by statute. A court of appeals must decide a petition for review "only on the administrative record on which the order of removal is based." 8 U.S.C. § 1252(b)(4)(A). "[T]he administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary," id. at 1252(b)(4)(B) (emphasis added), and "a decision that an alien is not eligible for admission to the United States is conclusive unless manifestly contrary to law," id. at 1252(b)(4)(C).

B. Asylum

In order to be eligible for asylum, an alien must be a "refugee within the meaning of section 1101(a)(42)(A) of [Title 8 of the United States Code]." 8 U.S.C. § 1158(b)(1). A "refugee" is defined, in relevant part, as

any person who is outside any country of such person's nationality ... and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of...