Abdelhak Kedjouti v. Eric Holder, Jr.

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3732
A BDELHAK K EDJOUTI,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an Order
of the Board of Immigration Appeals.
A079-605-001
A RGUED M AY 15, 2009—D ECIDED JULY 9, 2009
Before E ASTERBROOK, Chief Judge, and B AUER and
F LAUM, Circuit Judges.
F LAUM, Circuit Judge. Abdelhak Kedjouti petitions for
review of a Board of Immigration Appeals (BIA) order
upholding the Immigration Judge’s (IJ) denial of his
application for withholding of removal. Because the
BIA’s determination was supported by substantial evi-
dence, we deny the petition for review.
2 No. 08-3732
I. Background
Kedjouti was born in Algeria in 1975 and is an Algerian
national. In 1996, he was conscripted into the Algerian
military, as required of Algerian men. He remained in
the military for two years, during which time he re-
ceived weapons training and was promoted to the rank
of sergeant. Kedjouti carried a military identification card
even after leaving the military. He testified in front of
the IJ that if a government official asked for the card, he
was legally bound to present it to that official. Moreover,
he needed to present the military card to obtain employ-
ment.
Kedjouti also testified that Islamic terrorists in Algeria
treat current and former military conscripts as their
enemies because they see conscripts as allied with the
government. He continued that terrorists often set up
fake government checkpoints along Algerian roads
where they ask for military identification and then kill
men who present it. Two of Kedjouti’s friends, who
were military members, were killed by Islamic terrorists,
as was his cousin. Afraid for his life, Kedjouti fled
Algeria and came to the United States in May 2000. He
applied for asylum, withholding of removal, and Con-
vention Against Torture (CAT) protection in Novem-
ber 2001.
At his merits hearing in immigration court, in addition
to his own testimony, Kedjouti presented the expert
testimony of Dr. Allen Christelow. Christelow purported
to be “as familiar as one can be [with conditions in Algeria]
from a distance,” although he stated that he had not
No. 08-3732 3
traveled to Algeria since 1985, and he admitted that “the
information one gets from Algeria is kind of limited
and not always necessarily accurate.” He testified that
Kedjouti’s affidavit was consistent with his under-
standing of how Islamic terrorists view Islamic law, that
is, “[f]rom the extreme Islamist viewpoint, actively sup-
porting the government which was fighting them con-
stituted, from the point of view of Islamic law, an act of
kufr, or heathenism.” He added that “Islamists believed
that all young Algerian men had been duly warned, and
that therefore killing conscripts was not only permissible
but positively enjoined by divine law.” The fact that
Kedjouti had achieved the rank of sergeant made it “all
the easier [for Islamists] to make the case that he was a
staunch supporter of the regime, legally a kafir and thus
fair game for roving execution squads,” Christelow
testified.
On cross-examination of Christelow, the government
presented the United States Department of State’s 2002
Country Report on Human Rights Practices for Algeria,
which stated that there had been a significant decline
in killings (1200 deaths to 700 deaths) by Islamic groups
over the past year. Government counsel further pointed
out that not all 700 people killed were military members,
and she asked whether, statistically speaking, current
and former military conscripts faced a likelihood of
being killed by Islamic terrorists. Christelow admitted
that Algeria had approximately 60,000 people serving on
active military duty at any given time. However, he
maintained that even if 300 of the 700 individuals killed
were members of the military, current and former
4 No. 08-3732
military personnel in Algeria run a “fairly high risk” of
being killed by Islamic terrorists.
On October 1, 2007, the IJ issued a written decision
denying asylum, withholding of removal, and CAT
protection, but granting Kedjouti voluntary departure.
The IJ determined that Kedjouti’s asylum claim was time-
barred because he did not apply for asylum within
one year of entering the United States. The IJ denied
Kedjouti’s application for withholding of removal,
finding that Kedjouti had failed to establish that it was
more likely than not that he would face persecution on
account of his past military service if he returned to
Algeria. In making his determination, the IJ referenced
Christelow’s testimony that assumed Islamists killed 300
current or former military members in a year, while
there are about 60,000 current military members and
many more former military members in Algeria. Finally,
the IJ concluded that Kedjouti was ineligible for relief
under CAT because there was no evidence that the Alge-
rian government instigated, consented to, or otherwise
acquiesced in the conduct of Islamic terrorist groups in
Algeria.
Kedjouti appealed the IJ’s asylum and withholding of
removal determinations to the BIA. The BIA, in a separate
opinion, upheld the IJ’s ruling. The BIA agreed with the
IJ that Kedjouti’s asylum application was untimely and
that there were no changed or extraordinary circum-
stances to overcome his untimeliness. In terms of with-
holding of removal, the BIA determined that Kedjouti
failed to establish a pattern or practice of persecution by
No. 08-3732 5
Islamic terrorist groups against former members of the
Algerian military. Like the IJ, the BIA supported its
determination by citing Christelow’s testimony that a
very small percentage of current or former military mem-
bers who live in Algeria are actually killed by Islamic
terrorists. At Kedjouti’s request, the BIA vacated the IJ’s
grant of voluntary departure and ordered Kedjouti re-
moved from the United States to Algeria.
II. Analysis
Kedjouti petitions for review of the BIA order denying
him withholding of removal only. The BIA issued a
written opinion agreeing with the IJ’s decision, but it did
not adopt or supplement it, so we review the BIA decision
alone. Moab v. Gonzales, 500 F.3d 656, 659 (7th Cir. 2007).
Our case law requires that we review the decision that
Kedjouti was not eligible for withholding of removal
under a substantial evidence standard. Tariq v. Keisler,
505 F.3d 650, 656 (7th Cir. 2007). We must deny the
petition for review if the decision is supported by rea-
sonable, substantial, and probative evidence. Huang v.
Mukasey, 525 F.3d 559, 564 (7th Cir. 2008). It is not
enough that we might have ruled the other way; the
evidence must compel that conclusion or we will not
overturn the BIA. Pavlyk v. Gonzales, 469 F.3d 1082, 1087
(7th Cir. 2006). To qualify for withholding of removal,
Kedjouti needed to establish a clear probability, i.e., that
it’s more likely than not, that he would face persecution
in Algeria on account of his “race, religion, nationality,
membership in a particular social group, or political
6 No. 08-3732
opinion.” 8 U.S.C. § 1231(b)(3)(A); INS v. Cardoza-Fonseca,
480 U.S. 421, 423 (1987); Guardia v. Mukasey, 526 F.3d 968,
971-72 (7th Cir. 2008).
The evidence in this case is grave. Islamic terrorists’
practice of creating fake roadblocks to target and brutally
murder members of the Algerian military is appalling.
However, the standard of review provides us no leeway
here. Kedjouti’s own expert assumed that Islamists
killed 300 individuals who had served in the military in
a year, while there are about 60,000 current military
members and many more former military members in
Algeria. The U.S. State Department report supports that
statistical assertion, and we defer to State Department
reports unless there is a contradictory, “highly credible
independent source of expert knowledge.” Gramatikov v.
INS, 128 F.3d 619, 620 (7th Cir. 1997). There is no
evidence that compels the conclusion that it is more
likely than not that Kedjouti will face persecution if
returned to Algeria, as is required for us to grant a peti-
tion of review of a BIA order denying withholding of
removal.
III. Conclusion
The petition for review of the BIA’s order is D ENIED.
7-9-09