Badache v. Holder ( 2012 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 11-1399
YAMINA BADACHE, et al.,
Petitioner, Appellant,
v.
ERIC H. HOLDER, JR.,
Attorney General of the United States,
Respondent, Appellee.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Circuit Judge,
Souter, Associate Justice,*
and Stahl, Circuit Judge.
Carlos E. Estrada, for appellant.
Tony West, Assistant Attorney General, with whom John S. Hogan
and Michael C. Heyse were on brief, for appellee.
August 21, 2012
*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
SOUTER, Associate Justice. Yamina Badache, her husband
Salah, and their son Nazim are natives and citizens of Algeria who
entered the United States on May 22, 2006 as nonimmigrant visitors,
with visas that expired on July 4, 2006. They stayed in the
country well past that date, and on April 5, 2007, the Department
of Homeland Security charged them with overstaying their visas
under 8 U.S.C. § 1227(a)(1)(B) and ordered them to appear at
removal proceedings.
The Badaches conceded their removability, but Yamina
applied for asylum, see 8 U.S.C. § 1158, withholding of removal,
see 8 C.F.R. § 1208.16, and protection under the United Nations
Convention Against Torture.1 Salah and Nazim were listed as
derivative applicants on the asylum petition.
Badache stated that she had worked for the Algerian
government as a planner of meetings and political summits, although
she was not a member of any political party, and owing to her job
she often appeared in photographs and on television with prominent
Algerian politicians. One day after leaving work, she claims, a
man approached her on the street and told her, “You are working
with our enemies, and if you do so, you are also our enemy.” She
suspected that he was a member of an Islamic militant terrorist
1
The Convention Against Torture was implemented in the United
States by section 2242(b) of the Foreign Affairs Reform and
Restructuring Act of 1998, Pub. L. 105-277, 112 Stat. 2681 (Oct.
21, 1998), and 8 C.F.R. §§ 1208.16-1208.18.
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group. She said nothing to him, walked away, and left in a taxi,
but she said that the encounter left her frightened enough to quit
her job and leave Algeria to seek refuge in the United States.2
She did not report the incident to her employer or the police
before leaving.
An alien is eligible for asylum if she is a “refugee”: a
person “unable or unwilling to return to” her 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). If an
alien’s “life or freedom would be threatened" in the proposed
country of removal for the same reasons, 8 U.S.C. § 1231(b)(3), she
is entitled to statutory withholding of removal. Removal may also
be withheld under the Convention Against Torture if “it is more
likely than not that [the alien] would be tortured if removed to
the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2).
After a hearing, Badache’s applications were denied. The
judge thought she had testified credibly, but still fell short of
demonstrating that she had suffered past persecution, had a
reasonable fear of future harm, or was likely to face torture if
she returned. The Board of Immigration Appeals affirmed on the
2
A cousin of Badache, also a government employee, had been
kidnapped and killed in 1995 in what the police deemed an act of
terrorism, and that event contributed to her fear of terrorist
violence.
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same grounds, and Badache appealed to this court. We find
substantial evidence in the record supporting the court’s and
Board’s conclusions, see Abdelmalek v. Mukasey, 540 F.3d 19, 22
(1st Cir. 2008), and therefore affirm.
As to past persecution, Badache’s encounter with the
supposed Islamic terrorist was an isolated event, in which she
suffered no physical harm. Its equivocal character is confirmed by
the fact that Badache has relatives still living in Algeria who
have not been subject to harm or threats. To be sure, threats
alone may amount to persecution if they are severe enough to “add
up to more than ordinary harassment, mistreatment, or suffering.”
Hincapie v. Gonzales, 494 F.3d 214, 217 (1st Cir. 2007). But, as
we have held, “[a] series of somewhat vague verbal threats . . .
unaccompanied by any significant physical abuse and any government
involvement” does not amount to persecution. Abdelmalek, 540 F.3d
23; see Attia v. Gonzales, 477 F.3d 21, 23-24 (1st Cir. 2007) (even
death threats coupled with physical abuse may not amount to
persecution under the asylum statute). The Board reasonably
determined that one vague threat, however unsettling, was not
persecution in Badache’s home country.
Badache argues that she would be at risk of harm if she
returned to Algeria, on account of her previous connection to the
government. But, beyond what we have already noted, her only
evidence of this risk is a set of documents describing in general
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terms the terrorist menace in Algeria, with the possibility of
militants harming persons aligned with the current government.
These documents were not in the record below, however, and our
review is limited to “the administrative record on which the order
of removal is based.” 8 U.S.C. § 1252(b)(4)(A). But even if we
were to take judicial notice of the presence of terrorists in
Algeria, substantial evidence in the record would still support the
Board’s conclusion that Badache had no well-founded fear of
persecution. She quit her government job over five years ago, and
therefore has little reason to expect reprisals from terrorist
groups for working with government officials. Moreover, as we said
before, her extended family has remained in Algeria unharmed, and
that suggests a low likelihood of future mistreatment. Budiono v.
Mukasey, 548 F.3d 44, 50 (1st Cir. 2008). And because Badache thus
failed to show a reasonable possibility of future harm, it follows
that she cannot meet the more stringent standard for withholding of
removal. See 8 U.S.C. § 1231(b)(3) (removal should be withheld if
“the alien’s life or freedom would be threatened in the proposed
country of removal”); Mediouni v. INS, 314 F.3d 24, 27 (1st Cir.
2002) (“Because the standard for withholding deportation is more
stringent than that for asylum, a petitioner unable to satisfy the
asylum standard [for future persecution] fails, a fortiori, to
satisfy the former.” (internal quotation marks omitted)).
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Badache’s claim under the Convention Against Torture also
fails, from want of evidence that she would “more likely than not
. . . be tortured” if she returned to Algeria. 8 C.F.R.
§ 1208.16(c)(2). Although terrorist organizations have been known
to use torture, Badache points to no threat of torture directed
towards her, let alone any chance of torture that fits the
definition of that term in the regulations implementing the
Convention: pain or suffering “inflicted by or at the instigation
of or with the consent or acquiescence of a public official or
other person acting in an official capacity.” 8 C.F.R.
§ 1208.18(a)(1). Indeed, she comes no closer to official “consent
or acquiescence” than to cite a government amnesty for past acts of
terrorism (an argument she apparently did not make before the judge
or appeals board).
Affirmed.
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