Zarouite v. Gonzales, 04-1541.

• Decision Date: 16 September 2005
• Docket Number: No. 04-1541.,No. 04-2185.,04-1541.,04-2185.
• Citation: 424 F.3d 60
• Parties: Abdelhafid ZAROUITE, Petitioner v. Alberto GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

424 F.3d 60

Abdelhafid ZAROUITE, Petitioner v. Alberto GONZALES, Attorney General, Respondent.

No. 04-1541.

No. 04-2185.

United States Court of Appeals, First Circuit.

Heard May 5, 2005.

Decided September 16, 2005.

Jeremiah Friedman with whom Ilana Greenstein, Harvey Kaplan, Maureen O'Sullivan and Kaplan, O'Sullivan & Friedman, LLP, were on brief for petitioner.

Joanne E. Johnson, Office of Immigration Litigation, Civil Division, Department of Justice, with whom Peter D. Keisler, Assistant Attorney General, Civil Division, and Papu Sandhu, Senior Litigation Counsel, were on brief for respondent.

Before BOUDIN, Chief Judge, CYR, Senior Circuit Judge, and HOWARD, Circuit Judge.

BOUDIN, Chief Judge.

Abdelhafid Zarouite, a citizen of Morocco, entered the United States without proper documentation in June 2000. Removal proceedings began against him in the same month, 8 U.S.C. §§ 1182(a)(6)(A)(i), (a)(7)(A)(i) (2000), during which he conceded removability but sought asylum on grounds of persecution. 8 U.S.C. § 1158(b)(1) (2000); 8 C.F.R. § 208.13(b) (2005). The pertinent background events, and the allegations made by Zarouite, are as follows.

Zarouite was born and raised in Casablanca, Morocco, attended university there, and lived in the city until 1996. In that year — according to Zarouite — he and his parents were forced by the Moroccan government to move to the territory of Western Sahara. Morocco currently occupies much of the area; the remaining parts of the territory are apparently controlled by an independence movement, the Polisario Front. In the 1990s Morocco and the Polisario Front negotiated, under United Nations auspices, a possible referendum to determine the territory's status.

A dispute existed as to whether all residents would be permitted to vote in the referendum, or only those (mainly ethnic Sahrawis) who resided in Western Sahara prior to 1975. Zarouite claimed that he and his parents, of Sahrawi descent, were compelled to move to Western Sahara in 1996 because the Moroccan government wanted more votes against independence. Zarouite contends that for three years after his arrival in Western Sahara, he suffered beatings and attacks at the hands of the Polisario Front, which wanted him to leave.

In 1999, Zarouite returned to Casablanca where he said he was imprisoned by the Moroccan government and given the choice between returning to Western Sahara or remaining in jail. After several months he returned to Western Sahara where, he says, he again suffered harassment from the Polisario Front. In June 2000 he left, entered the United States unlawfully through Canada, and was apprehended by American authorities.

After a hearing, the immigration judge denied the request for asylum and withholding of removal on the express ground that he did not credit Zarouite's testimony as to persecution, many aspects of which he found improbable. Some of the immigration judge's reasoning raises eyebrows (he thought it improbable that the government would remove a gainfully employed family from Casablanca); other doubts might seem better founded (the judge thought that Zarouite's account of one of the alleged assaults involved an improbable escape from harm).

Zarouite then sought review by the Board of Immigration Appeals ("BIA"), which on April 1, 2004, issued a two-paragraph affirmance. The BIA said that the immigration judge did not give "specific and cogent reasons" for his credibility finding, that the BIA therefore "assume[d]" Zarouite's credibility, but that "even if" the alleged acts constituted past persecution, "the record ... reveals fundamental changes in Morocco since [Zarouite's] departure such that his fear of returning is no longer well-founded."

For this last proposition, the BIA cited only a State Department "country report" on Morocco dated March 4, 2002. The BIA summarized the report by saying that it showed that, despite some past abuses, today "the Moroccan government generally respects the rights of its citizens and that Sahrawis who have departed to Morocco are encouraged to return provided they recognize Morocco's sovereignty over the Western Sahara." This was the sole support offered to show that Zarouite's assumed fear was unfounded.

Although we are aware of the BIA's very large volume of cases and the difficulties it faces with self-serving stories, the BIA decision in this case cannot be sustained. The question in this case is relatively narrow. The BIA concluded that Zarouite was not eligible for asylum — whether the Attorney General wishes to grant it is a separate matter, Ravindran v. INS, 976 F.2d 754, 758 (1st Cir.1992) — and Zarouite is entitled to judicial review on the eligibility question. Id. The legal framework as to eligibility is well settled.

Under the statute and case law, Zarouite had to establish a well-founded fear of future persecution on one or more of five enumerated grounds (race, religion, nationality, membership in a particular social group, and political opinion). 8 U.S.C. § 1101(a)(42)(A). Ordinarily, the persecution has to involve government actors, although government action exposing him to persecution by others or refusing to protect him against such persecution could suffice. See Harutyunyan v. Gonzales, 421 F.3d 64, 68 (1st Cir.2005).¹ One basis for showing such a well-founded fear (the one pressed by Zarouite) is to show past persecution, which gives rise to a presumption of future persecution which is sufficient for the applicant's case unless rebutted by the Attorney General (e.g., by showing changed conditions). 8 C.F.R. § 208.13(b); Fergiste v. INS, 138 F.3d 14, 18 (1st Cir. 1998).

Zarouite's argument in this court for such a showing of past persecution appears to proceed as follows: the Moroccan government deported him to Western Sahara because of his ethnic heritage as a Sahrawi (arguably satisfying the "social group" criterion of the statute); the deportation has exposed him to repeated physical assault and risk of death by the Polisario Front; the Moroccan government has been unwilling or unable to protect him; and the combined effect is that he is being threatened with beatings or worse as a result of action and inaction by the Moroccan government.

In its decision, the BIA was content to assume past persecution arguendo and to dispose of the case on a quite different ground, namely, the inference it drew from the country report that "even if" Zarouite had been persecuted in the past, the Moroccan government had changed its ways and no fear of repetition could be well founded. The State Department's regular country reports are generally persuasive of country conditions, 3 Gordon, Mailman & Yale-Loehr, Immigration Law and Procedure § 33.04[3][f] (2005), but are open to contradiction. Gailius v. INS, 147 F.3d 34, 45 (1st Cir.1998).

In this case, says the Attorney General, the substantial evidence standard applies and the BIA's decision should be upheld unless the record "compels" the opposite result. Compare Aguilar-Solis v. INS, 168 F.3d 565, 569 (1st Cir.1999). Admittedly, the record...