Ahmed, Djillali v. Ashcroft, John D.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-2524
DJILLALI AHMED,
Petitioner,
v.
JOHN ASHCROFT, Attorney General
of the United States,
Respondent.
____________
Petition for Review of an Order of
the Board of Immigration Appeals.
No. A77-820-051
____________
SUBMITTED APRIL 11, 2003—DECIDED OCTOBER 30, 2003
____________
Before EASTERBROOK, MANION, and DIANE P. WOOD,
Circuit Judges.
DIANE P. WOOD, Circuit Judge. From 1992 to 1996,
Djillali Ahmed served in the Algerian military and state po-
lice forces. He resigned his post in 1996 and spent the next
three years evading Islamic militants who, he believed,
posed a grave threat to his safety. In 1999, he slipped
into the United States as a stowaway. Shortly after his ar-
rival, Ahmed was placed in removal proceedings pursuant
to the Immigration and Nationality Act (INA), 8 U.S.C.
§ 1182(a)(6)(A)(i). He filed for political asylum, withholding
2 No. 02-2524
of removal, voluntary departure, and protection under the
United Nations Convention Against Torture (Torture
Convention), 8 C.F.R. § 208.16(c), because he feared that he
would be killed by the same militants if he were compelled
to return to his native Algeria. An Immigration Judge (IJ)
denied relief, and the Board of Immigration Appeals (BIA)
affirmed. Ahmed now petitions for review. Though we part
ways with the BIA’s analysis in some respects, we deny the
petition for review.
I
Since its people won independence from French colonial
rule in 1962, Algeria has been governed by one party, the
National Liberation Front (NLF), which has enjoyed the
backing of the military. In the late 1980s, the regime made
an attempt at democratization in response to popular oppo-
sition to military control. As part of that effort, it allowed
parties to form and authorized a series of local and national
elections. The Islamic Salvation Front (FIS), an umbrella
Islamic party, swept the local elections held in 1990 and
also an initial round of national parliamentary elections
held in 1991. The FIS was poised to repeat its success in the
next round of national elections—and would likely have
commanded an absolute parliamentary majority—when a
military coup in January 1992 brought the entire process to
an abrupt halt. The restored NLF regime voided the
elections, banned the FIS, and launched a campaign of
imprisonment, torture, and execution of FIS officials and
their supporters.
What followed has been a de facto civil war that has pit-
ted the government against a variety of armed Islamic
groups—including remnants of the FIS and an Algerian
branch of the Groupe Islamique Armé (GIA)—that seek to
overthrow the government and establish an Islamic state.
The fighting has ranged from pitched, open warfare to the
No. 02-2524 3
perpetration of horrific acts of terrorism against govern-
ment officials and private citizens alike, invariably followed
by violent retaliation by the government. The human rights
report issued by the U.S. Department of State in 1999 cites
estimates by non-governmental observers that as many as
77,000 civilians, Islamic militants, and security force
personnel died between 1992 and 1999 alone in armed
clashes, torture, terrorism, and extrajudicial killings.
As a member of the national security forces, and then
later as an officer with the state police force, Ahmed lived
through this horror. In his written application for asylum
and during the subsequent hearing before the IJ, Ahmed
stated that he served in the Algerian military from 1992 to
1994. While a member of the military, he spent ten months
guarding a detention camp for captured Islamic terrorists.
In 1994, Ahmed left the military and joined the Algerian
state police force, where he served as a security guard at
the Sess Enia International Airport. He resigned this posi-
tion two years later, in 1996, after several of his colleagues
were killed by armed Islamic militants while being trans-
ported by bus from the airport where they served as
security guards to the government compound where they
lived. He then moved to the desert and lived on a farm for
two years, apparently without incident. No longer content
with what he described as living in hiding, Ahmed fled
Algeria and entered the United States illegally in February
1999 as a stowaway aboard a ship.
Shortly after his arrival in the United States, Ahmed
was placed in removal proceedings. He conceded remov-
ability, but he also petitioned for political asylum under
8 U.S.C. § 1158, withholding of removal under 8 U.S.C.
§ 1231(b)(3), withholding of removal under Article III of
the Torture Convention, and voluntary departure under
8 U.S.C. § 1229c(a)(1) and (b)(1). At a hearing held on
January 3, 2000, the IJ found Ahmed’s testimony about his
4 No. 02-2524
experiences in Algeria to be fully credible. The IJ similarly
credited Ahmed’s claim that his two brothers continue to be
employed as officers in the Algerian state police force. Nev-
ertheless, the IJ concluded that Ahmed was statutorily
ineligible for relief. Ahmed petitioned the BIA for review of
all but the voluntary departure claim. The BIA affirmed the
IJ’s decision on May 21, 2002, finding that Ahmed could not
show past persecution from his former status as a military
and police officer, because he had not pointed to anything
that was separable from the occupational hazards that went
along with those jobs, nor could he show a well-founded fear
of future persecution, because he had not adequately
developed the latter claim. The BIA also rejected his other
grounds for relief, and this appeal followed.
II
In this appeal, Ahmed focuses on the BIA’s denial of his
petition for political asylum and withholding of removal
under the INA and protection under the Torture Conven-
tion. Our review throughout is governed by the substantial
evidence standard. Begzatowski v. INS, 278 F.3d 665, 668
(7th Cir. 2002). Applying that standard, we assess whether
the BIA’s determination was “supported by reasonable, sub-
stantial, and probative evidence on the record considered as
a whole,” and reverse only if the evidence compels a con-
trary conclusion. INS v. Elias-Zacarias, 502 U.S. 478, 481
(1992); Krouchevski v. Ashcroft, 2003 WL 22097844 at *3
(7th Cir. 2003). We review the BIA’s legal conclusions de
novo. Ciorba v. Ashcroft, 323 F.3d 539, 544 (7th Cir. 2003).
Because an applicant who fails to establish eligibility
for asylum necessarily cannot satisfy the more stringent re-
quirements for withholding of removal under 8 U.S.C.
§ 1231(b)(3), see Toptchev v. INS, 295 F.3d 714, 720 (7th
Cir. 2002), nor the requirements for withholding of remov-
No. 02-2524 5
al under the Torture Convention, see Dandan v. Ashcroft,
339 F.3d 567, 575 n.7 (7th Cir. 2003), we turn first to
Ahmed’s asylum claim. To obtain asylum under the INA,
an applicant must prove, see 8 C.F.R. § 208.13(a), that: (1)
she is outside her country of nationality; (2) she is “unable
or unwilling to return to . . . that country”; (3) this inability
or unwillingness is due to “[past] persecution or a well-
founded fear of [future] persecution”; and (4) such persecu-
tion is “on account of race, religion, nationality, membership
in a particular social group, or political opinion.” 8 U.S.C.
§ 1101(a)(42).
We consider first whether the BIA’s conclusion that
Ahmed had not demonstrated past persecution is supported
by substantial evidence. Ahmed’s time spent moving from
place to place in the desert was by his own admission
uneventful. And while we have noted in the past that
avoiding harm by “living a fugitive’s life” is not necessarily
inconsistent with a finding of persecution, see Chitay-Pirir
v. INS, 169 F.3d 1079, 1081 (7th Cir. 1999), the facts in this
case do not compel a finding that this is what Ahmed was
doing. The Board was not required to defer to his personal
judgment that he was better off living in hiding, as it
evaluated his claim of past persecution. Moreover, it was
entitled to take into account Ahmed’s failure to present any
detailed facts suggesting that he himself suffered from
concrete acts of persecution, or that his move to a remote
desert farm was necessary to evade such acts. Ahmed’s
testimony before the IJ focused largely on threats to his
brother and the bus ambush that resulted in harm to
several of his fellow security officers. None of these events
involved harm or the threat of harm to Ahmed himself. In
any event, unfulfilled threats are generally insufficient to
establish past persecution. See Boykov v. INS, 109 F.3d 413,
416-17 (7th Cir. 1997); see also Mitev v. INS, 67 F.3d 1325,
1330-31 (7th Cir. 1995) (noting that only threats of a most
immediate and menacing nature may constitute past
persecution).
6 No. 02-2524
The BIA also had adequate grounds for finding that
fearing for one’s life while employed as a police officer will
not normally amount to persecution within the meaning of
the statute. This is a sensible position, given the fact that
the job of security and police officers includes quelling pub-
lic disorder and will, as a matter of course, bring such offi-
cers into contact with criminal and even violent elements of
a society. Confronting dangerous situations as an officer
charged with keeping the peace is simply not the same as
persecution. The fact that courts have defined persecution
to include “punishment or the infliction of harm for polit-
ical, religious, or other reasons that this country does not
recognize as legitimate,” Toptchev, 295 F.3d at 720 (internal
quotation marks omitted), does not compel a different
result. In short, substantial evidence supported the BIA’s
finding that the dangers Ahmed experienced while serving
as a military and police officer arose from the nature of his
employment and did not amount to past persecution for
purposes of an asylum claim.
This is not to say, however, that there is an irrebuttable
presumption that police officers or military personnel can
never show past persecution based on that status. The BIA
might have left that impression, when it wrote that:
dangers faced by police[ ] [officers] as a result of that
status alone are not ones faced on account of race,
religion, nationality, membership in a particular social
group, or political opinion. Such dangers are perils
arising from the nature of their employment and
domestic unrest rather than “on account” of immutable
characteristics or beliefs.
As authority for this language, the BIA cited its earlier de-
cision in Matter of Fuentes, 19 I. & N. Dec. 658 (BIA 1988).
There, the BIA carefully distinguished between dangers
encountered by current police officers and those encoun-
No. 02-2524 7
tered by former police officers. Status as a current police
officer, the BIA concluded, is a mutable characteristic and,
moreover, necessarily involves dangers of a sort not typi-
cally faced by the general population, since police forces are
“highly visible embodiments of the power of the state.” Id.
at 661. By contrast, status as a former police officer, the
BIA noted, is an immutable characteristic that can, under
certain circumstances, subject an individual to a particular-
ized threat of harm. Id. at 662.
To the extent the BIA was suggesting that there is a per
se rule against finding past persecution for dangers en-
countered during service as a police officer, we think that it
may have gone too far (though we need not come to a
definitive ruling on this point in the present case). We have
never adopted the distinction between current and former
police officers set forth in Fuentes. Indeed, Ahmed’s own
case might have been different if he had tendered evidence,
say, that he was captured and tortured as a result of his
employment as a police officer, perhaps because his captors
wished to extract information about the inner workings of
the police force, or to discourage enlistment and choke off
the government’s supply of new police recruits. In such a
case, if the government was responsible somehow for the
actions of the persecutors, it would be arguable that the
officer had a protected characteristic recognized by the stat-
ute. Cf. Elias-Zacarias, 502 U.S. at 482.
Furthermore, immutability, while important, has never
been the last or only word on the definition of a social
group. Many social groups are labile in nature, and we have
struggled to define what makes a “social group” cognizable
under the statute. For instance, in Lwin v. INS, 144 F.3d
505 (7th Cir. 1998), we began with the “immutable charac-
teristics” definition set forth in Matter of Acosta, 19 I. & N.
Dec. 211, 233 (BIA 1985), and then went on to use a
definition that included groups of individuals who shared
8 No. 02-2524
particular characteristics and “who [were] either unable by
their own actions, or as a matter of conscience should not be
required, to avoid persecution.” Lwin, 144 F.3d at 512(quoting Matter of Acosta, 19 I. & N. Dec. at 233). Applying
that definition, we recognized “parents of student dissi-
dents” as a social group, even though that status is no more
or less changeable—the children in question could die or
cease being dissidents—than status as a police or military
officer. Under the Lwin test, an applicant in Ahmed’s posi-
tion would merely have to prove that her decision to seek
employment with the security or police forces was moti-
vated by beliefs that she should not be required to change
as a matter of conscience. Id. at 512. These might include a
belief in law and order, in democratic government, or in
service and duty to country. These possibilities are enough
to persuade us to leave definitive resolution of the status of
present police officers for another day.
Ahmed also tried to justify the relief he was requesting
based on a well-founded fear of future persecution. He pre-
sented two separate bases for this argument: first, his past
service as a security and police officer, and second, his two
brothers’ current status as police officers. The BIA relied on
Fuentes and Lwin in its ruling. It acknowledged that status
as a former member of the military or police forces is an
immutable characteristic that, with the right factual show-
ings, can satisfy this criterion for asylum. Nonetheless, the
BIA found that Ahmed had failed to submit specific evi-
dence showing that he was more vulnerable to attack than
members of the general public, and thus that his claim
based on future persecution should also be rejected.
Ahmed has attempted to counter this finding with some
observations that do not meet the substance of the Board’s
concern. For example, he appears to believe that the BIA
thought that the dangers experienced by former police offi-
cers were some sort of occupational hazard, just like those
No. 02-2524 9
it discussed for current police officers. But the BIA’s opinion
reflects no such finding in the section devoted to the future
persecution claim. Ahmed also contends that the BIA erred
by failing to acknowledge that Muslim extremists were
likely to impute to him support for the Algerian government
because of his status as a former police officer. It is true
that an applicant can show that a persecutor is likely to
impute or attribute a “political opinion” to him. See id. at
509; see also Meza-Manay v. INS, 139 F.3d 759, 763-64 (9th
Cir. 1998); Cruz-Diaz v. INS, 86 F.3d 330, 332 (4th Cir.
1996); Ravindran v. INS, 976 F.2d 754, 760 (1st Cir. 1992).
But here again, a careful reading of the BIA’s opinion shows
that its rejection of Ahmed’s claim was not based on the
view that political opinions cannot be attributed in this
way. Instead, the BIA’s decision is more properly read as
finding insufficient both the quantum and the specificity of
the evidence adduced by Ahmed.
The question before us is therefore whether substantial
evidence supported the BIA’s decision with respect to future
persecution. To be entitled to relief, Ahmed’s fear of future
persecution must be subjectively genuine and must also
have an objective basis. See Bhatt v. Reno, 172 F.3d 978,
981 (7th Cir. 1999). Only the objective part of that test is
at issue here, because the IJ credited Ahmed’s testi-
mony about his subjective fear of death upon his return to
Algeria. As to the objective portion of the test, an asylum
applicant must “present specific, detailed facts showing a
good reason to fear that he or she will be singled out for
persecution.” Sayaxing v. INS, 179 F.3d 515, 520 (7th Cir.
1999) (emphasis in original) (quoting Sivaainkaran v. INS,
972 F.2d 161, 163 (7th Cir. 1992), and Zulbeari v. INS, 963
F.2d 999, 1000 (7th Cir. 1992)); see also Bhatt, 172 F.3d
at 982; Krastev v. INS, 101 F.3d 1213, 1216 (7th Cir. 1996);
Bevc v. INS, 47 F.3d 907, 910 (7th Cir. 1995). An applicant
need not establish that she will definitely be persecuted
if she returns or even show that persecution is likely. Rath-
10 No. 02-2524
er, she must demonstrate that persecution is a “reasonable
possibility.” See INS v. Cardoza-Fonseca, 480 U.S. 421, 430-
31 (1987); Sayaxing, 179 F.3d at 520.
Nothing in the record of this case compelled the BIA to
find that Ahmed met this demanding standard. Ahmed
relies almost exclusively on his own uncorroborated testi-
mony to establish a well-founded fear of persecution. This
in itself is not necessarily fatal to his petition, but it places
a premium on the content of that testimony. The imple-
menting regulations and relevant decisions establish that
the testimony of an applicant, if credible, can suffice to
sustain the burden of proof without corroboration. 8 C.F.R.
§ 208.13(a); see also Pop v. INS, 270 F.3d 527, 530 (7th Cir.
2001). But see Krastev, 101 F.3d at 1218. In addition, as we
have already noted, the IJ specifically found Ahmed’s
testimony to be credible in this case. This distinguishes
Ahmed’s case from a raft of cases in which we affirmed the
BIA based on contradictory or other obviously unreliable
testimony by an applicant. See, e.g., Mansour v. INS, 230
F.3d 902, 906 (7th Cir. 2000); Malek v. INS, 198 F.3d 1016,
1021 (7th Cir. 2000); Demirovski v. INS, 39 F.3d 177, 181
(7th Cir. 1994); Khano v. INS, 999 F.2d 1203, 1208 (7th Cir.
1993).
Ahmed’s testimony, however, was almost entirely devoid
of dates or other specific details. See Bhatt, 172 F.3d at 982;
Demirovski, 39 F.3d at 181; Ademi v. INS, 31 F.3d 517, 519
(7th Cir. 1994). In that respect, his case is very much like
that of the petitioner in Bhatt. Bhatt, a citizen of India,
sought asylum because of an alleged fear of persecution by
Hindu radicals in retaliation for his aid to Muslims during
riots in a Muslim neighborhood of Bombay in December
1992. We found that Bhatt’s testimony about threats and
harm was too vague, speculative, and insubstantial to es-
tablish either past or future persecution. In particular, we
noted that Bhatt acknowledged that he had never been
No. 02-2524 11
tortured, arrested, or detained by Hindu militants or the
police. We also observed that there was no corroborating
evidence beyond his own allegations and testimony that he
had been beaten during widescale rioting. See Bhatt, 172
F.3d at 982.
Like Bhatt, Ahmed has offered few specific facts to show
that an objective threat existed. Ahmed argued that his pri-
or employment and his brothers’ current employment were
“well known to many people” and have resulted in “numer-
ous death threats.” One of these threats involved a visit to
his brother’s home by the GIA in 1992, in the immediate
aftermath of the canceled elections. In another incident,
extremist “elements” tailed Ahmed’s brother in the town
bazaar. Another incident required his brother to flee from
a checkpoint manned by extremist groups. Beyond these
rather sketchy details, however, Ahmed stated only that his
brother has received death threats “many, many times.”
Importantly, Ahmed’s testimony does not describe a single
incident suggesting that he himself was targeted.
The only possible source of evidence in the record, the
State Department’s Algeria Country Report on Human
Rights Practices for 1998, contains little that supports the
contention that Islamic militants are more likely to target
Algerian security and police forces than other social groups.
To the contrary, the report notes that “[a]rmed groups tar-
geted both security force members and civilians” and that
armed Muslims “continued their widespread campaign of
insurgency, targeting government officials and families of
security members, as well as persons whose lifestyles they
consider to be in conflict with Islamic values.” Later, the
report notes that armed Muslims “particularly targeted
women.” Rather than establishing that Ahmed is likely to
be singled out for persecution upon his return to Algeria,
these reports suggest, sadly, that few segments of Algerian
society have been spared from the depressing cycle of vio-
12 No. 02-2524
lence. Thus, with only Ahmed’s uncorroborated testimony
before it, the BIA was entitled to conclude that there was no
objective threat to Ahmed in particular. See Mojsilovic v.
INS, 156 F.3d 743, 747-48 (7th Cir. 1998); Gramatikov v.
INS, 128 F.3d 619, 620 (7th Cir. 1997).
As the BIA recognized, an asylum claim based on status
in a particular social group must be examined to determine
whether the applicant has shown, among other things, that
his fear of future persecution is objectively reasonable. Such
a claim must also be examined to determine whether the
danger flows from an ongoing violent struggle affecting the
population in a relatively undifferentiated way or if danger
exists on account of a protected ground; only the latter will
suffice under the statute. Ahmed failed to offer objective
support for his more speculative assertions. Moreover, the
evidence did not compel the BIA to find that former mem-
bers of the security and police forces in Algeria are targeted
in a manner that is distinct from the risks borne by other
segments of Algerian society.
As a final note, because Ahmed has not met the laxer
burden of proof required to establish eligibility for political
asylum under the INA, we decline to consider his claims for
withholding of deportation under the INA and protection
from removal under the Torture Convention, both of which
involve a more stringent set of showings than a petition for
asylum. See 8 C.F.R. § 208.16(c)(2); Iliev v. INS, 127 F.3d
638, 641 (7th Cir. 1997); Cuevas v. INS, 43 F.3d 1167, 1171
(7th Cir. 1995).
III
Because the BIA’s conclusions are supported by substan-
tial evidence, the petition for review is DENIED.
No. 02-2524 13
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-30-03