Chakir, Rachid v. Gonzales, Alberto

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3948
RACHID CHAKIR,
Petitioner,
v.
ALBERTO GONZALES, Attorney General
of the United States,
Respondent.
____________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A97-602-757
____________
ARGUED SEPTEMBER 26, 2006—DECIDED OCTOBER 19, 2006
____________
Before BAUER, EASTERBROOK, and ROVNER, Circuit
Judges.
BAUER, Circuit Judge. Rachid Chakir applied for asylum,
asserting that he has a well-founded fear of persecution in
his native Morocco because of his conversion from Islam to
Christianity. Chakir petitions for review of the Board of
Immigration Appeals (“BIA”) order affirming the denial of
his application for asylum. We affirm the decision of the
BIA and deny Chakir’s petition for review.
I. Background
Chakir is a native and citizen of Morocco and, by birth, a
Muslim. While in Morocco, he developed an interest
2 No. 05-3948
in Christianity and began to study the Bible through a
correspondence program. After entering the United States
on a six-month tourist visa on August 22, 1999, Chakir
continued his Bible studies. He was baptized as a Christian
on September 14, 2003.
Chakir did not leave the United States at the expira-
tion of his visa, however. He applied to the former Immigra-
tion and Naturalization Service (“INS”) for asylum, with-
holding of removal, and protection under the
United Nations Convention Against Torture (“CAT”) on
November 14, 2003. His asylum application asserted that
he fears persecution or death because of his faith should
he return to Morocco. On December 24, 2003, INS initi-
ated removal proceedings against Chakir. At the initial
hearing, Chakir conceded his removability based on his
failure to depart under the terms of his visa and, at a
hearing on May 19, 2004, presented a renewed claim for
political asylum and withholding of removal.
At the second hearing, Chakir testified that he fears that
if he returns to Morocco, he will be killed or persecuted
because of his Christian faith. He testified that while
he has concerns about the Moroccan government, his
main concern is persecution by individuals and groups
that the Moroccan government is unwilling to control. In
particular, he stated that he fears his friends, his commu-
nity, his neighbors, individuals in Morocco’s government,
Muslim clerics and their followers, and even his family
because of his conversion to Christianity, which, Chakir
testified, his family would consider a dishonor. According to
Chakir, his brothers and sisters, who live in Morocco, and
Morocco itself had become more fundamentalist in their
Islam.
Chakir offered as witnesses John Prodinger and Richard
Smits, who attended church with Chakir and who testified
that Chakir’s conversion to Christianity was sincere. Chakir
No. 05-3948 3
also offered documentary evidence, including an article
entitled “A Brief Report About the Moroccan Church
(2001).” This article reported that Christians in Morocco
lack freedom to attend churches or to practice their faith
openly. The article also described intimidation tactics used
against Christians, including placing known Christians
under police surveillance, confiscating Christian materials
and turning such materials over to the police, encouraging
the media to rouse public sentiment against Christians,
encouraging Muslim fanatics to persecute Christians and
force them to reconvert to Islam, and subjecting Christians
to police interrogations, threats, physical assaults, and
imprisonment because of their faith.
The government offered as its evidence two State Depart-
ment reports on Morocco: “Morocco—International Religious
Freedom Report 2003” (“IRFR”) and “Morocco—Country
Reports on Human Rights Practices— 2003.”
At the conclusion of the hearing, the Immigration Judge
(“IJ”) found Chakir’s conversion to Christianity sincere
and credible but denied Chakir’s petitions for asylum and
withholding of removal. The IJ determined that Chakir’s
conversion to Christianity justified an exception to the one-
year bar for applying for asylum. The IJ disagreed, how-
ever, with Chakir’s opinions regarding the conditions
and practices of Muslims in Morocco and about the likeli-
hood of his mistreatment. The IJ did not consider Chakir to
be the type of person who was courageous enough to martyr
himself for his faith in Morocco or to put himself at risk by
practicing his Christianity so openly as to attract attention.
The IJ compared conditions for Christians in Morocco with
those in Iran, finding that the conditions in Morocco were
very dissimilar from those in Iran, where apostasy is a
capital offense and where courts apply Sharia law. The IJ
also determined that Chakir had failed to identify any
particular individual as his persecutor. Concluding that
Chakir did not have a well-founded fear of persecution, the
4 No. 05-3948
IJ denied Chakir’s application for asylum, withholding, and
protection under the CAT but granted Chakir voluntary
departure from the United States.
Chakir appealed the IJ’s decision denying his asylum
petition to the BIA, which affirmed the ruling. The BIA
determined that the IJ was correct in relying on the IRFR
and reasonable in finding that Chakir did not have a well-
founded fear of persecution. The BIA noted that while
Chakir had not articulated a clear claim that the IJ had
violated his due process rights during the hearing, any such
assertion would fail because the IJ is entitled to examine
witnesses and clarify the testimony on specific allegations.
The BIA found no reversible error based on the IJ’s treat-
ment of Chakir during the hearing and that the IJ had
based the ultimate resolution of Chakir’s petition on
conditions in Morocco rather than on the comparison of
conditions in Morocco and Iran. The BIA upheld the grant
of voluntary departure to Chakir and then dismissed the
appeal. This timely petition for review of the BIA’s order
followed.
II. Discussion
Chakir challenges the denial of his asylum application on
two grounds: (1) the IJ violated Chakir’s due process rights
during the hearing, entitling Chakir to a new hearing; and
(2) Chakir met his burden of establishing a reasonable
possibility of persecution.
Because the BIA’s opinion supplements the opinion of the
IJ, the IJ’s opinion as supplemented by the BIA’s opinion
becomes the basis for our review. Liu v. Ashcroft, 380 F.3d
307, 311 (7th Cir. 2004). We review the IJ’s denial of
Chakir’s petition under the deferential substantial evidence
standard, which requires us to affirm if the decision is
“supported by reasonable, substantial, and probative
evidence on the record considered as a whole.” Id. (citations
No. 05-3948 5
omitted). We will reverse only if we find that the evidence
compels a different result. Brucaj v. Ashcroft, 381 F.3d 602,
606 (7th Cir. 2004).
We review Chakir’s due process claim de novo, as the
procedural sufficiency of an immigration hearing is a
question of law. See Kerciku v. I.N.S., 314 F.3d 913, 917
(7th Cir. 2003).
A. Chakir’s Due Process Claim
Chakir styled his due process claim as a claim brought
pursuant to the Fifth Amendment of the U.S. Constitution,
which entitles aliens to due process of law in deportation
proceedings. This Court has counseled on numerous
occasions, however, that non-constitutional arguments must
precede constitutional contentions. See Rehman v. Gonza-
les, 441 F.3d 506, 508 (7th Cir. 2006) (explaining
that “[n]on-constitutional arguments always come first;
constitutional contentions must be set aside until their
resolution is unavoidable”). See also Djedovic v. Gonzales,
441 F.3d 547, 550 (7th Cir. 2006); Boyanivskyy v. Gonzales,
450 F.3d 286, 292 (7th Cir. 2006). Aliens are afforded the
right to present all relevant evidence at an impartial
hearing by statute, 8 U.S.C. § 1229a(b)(4)(B),1 and regula-
tion, 8 C.F.R. § 1240.1(c).2 Unless Chakir claimed that the
applicable statute and regulation are constitutionally
deficient, which he conceded at oral argument that he
1
8 U.S.C. § 1229a(b)(4)(B) provides, in part, that in an immigra-
tion hearing, “the alien shall have a reasonable opportunity . . . to
present evidence on the alien’s own behalf, and to cross-examine
witnesses presented by the Government.”
2
8 C.F.R. § 1240.1(c) states, “The immigration judge shall receive
and consider material and relevant evidence, rule upon objections,
and otherwise regulate the course of the hearing.”
6 No. 05-3948
does not, we will not reach the constitutional question.
Rehman, 441 F.3d at 508.
Reframed as a statutory claim, we consider whether the
IJ denied Chakir the reasonable opportunity to present his
relevant evidence at the asylum hearing. Boyanivskyy, 450
F.3d at 293. To prevail on this claim, Chakir must demon-
strate prejudice such that the IJ’s error affected the out-
come of the proceedings. Rehman, 441 F.3d at 509.
As a preliminary matter, the government contends that
this Court lacks jurisdiction to consider this claim because
Chakir failed to argue to the BIA that he was denied a
reasonable opportunity to present evidence at the asylum
hearing. Chakir’s brief to the BIA did not articulate such a
claim, as Chakir only raised two arguments addressing the
merits of the IJ’s decision. Generally, an alien is required to
raise and exhaust his remedies before the BIA as to each
claim or ground for relief to preserve his right to judicial
review of that claim. Capric v. Ashcroft, 355 F.3d 1075, 1087
(7th Cir. 2004). The exhaustion of administrative remedies
requirement allows the BIA to resolve procedural failings
that it is capable of addressing. Feto v. Gonzales, 433 F.3d
907, 912 (7th Cir. 2006).
Although Chakir failed to argue to the BIA that he was
denied a reasonable opportunity to present his relevant
evidence at the asylum hearing, a review of the hearing
transcript compels such an inquiry. The BIA conceded as
much when it noted Chakir’s failure to include a due
process argument but concluded that there was no revers-
ible error based on the IJ’s treatment of Chakir during the
hearing. In evaluating the transcript and in reaching this
conclusion, the BIA considered the merits of a due process
challenge and made a legal determination, which it in-
No. 05-3948 7
cluded in its opinion.3 As a result, there is a final agency
decision with respect to the claim that the IJ violated
Chakir’s statutory and regulatory right to present his
relevant evidence at the asylum hearing. We therefore have
jurisdiction over this claim.
Turning to the claim itself, we have no doubt that the IJ
overstepped the bounds of a neutral arbiter in his question-
ing of Chakir. Chakir’s contention that he was denied a
reasonable opportunity to present his evidence fails,
however, because he has not shown any prejudice resulting
from the IJ’s conduct during the asylum hearing. As this
court has explained,
[w]hen a court excludes evidence, counsel must make
an offer of proof or otherwise alert the tribunal to the
substance of what the evidence would have been. Fed.
R. Evid. 103(a)(2). That rule does not apply directly
to administrative proceedings, but its substance still
governs—for courts do not set aside agencies’ decisions
unless mistakes cause prejudice, and how can we
ascertain prejudice without an offer of proof or some
substitute?
Rehman, 441 F.3d at 509. Counsel for Chakir made no offer
of proof during the hearing as to additional evidence that he
would have presented, nor does Chakir now explain what
that evidence would have included. In the absence of any
3
While the BIA framed the issue as a due process claim, the
BIA’s resolution of this claim encompasses both a due process
challenge and the statutory and regulatory challenge that the IJ’s
actions denied Chakir the opportunity to present his evidence at
the asylum hearing. Specifically, the BIA found “no reversible
error based on the Immigration Judge’s treatment of the respon-
dent during the asylum hearing.” BIA Order at n.3. In any event,
the outcome of the our inquiry is the same regardless of whether
we consider this claim on a constitutional or statutory basis.
8 No. 05-3948
information as to this missing, material evidence, Chakir
cannot establish that he was prejudiced by the IJ’s actions
during the hearing. As such, his claim that he was denied
the opportunity to present his relevant evidence at the
asylum hearing fails.
While Chakir’s statutory claim fails, we again must note
the significant number of asylum cases involving “intemper-
ate, impatient, and abrasive immigration judges,” which
should “sound a warning bell to the Department of Justice
that something is amiss.” Giday v. Gonzales, 434 F.3d 543at 550 (7th Cir. 2006) (citing Diallo v. Ashcroft, 381 F.3d
687, 701 (7th Cir. 2004); Hasanaj v. Ashcroft, 385 F.3d 780,
783 (7th Cir. 2004); Kerciku, 314 F.3d at 918; Podio v.
I.N.S., 153 F.3d 506, 510 (7th Cir. 1998)).
During the course of the asylum hearing, the IJ asked
Chakir questions after Chakir’s direct examination and
again after his cross-examination. The IJ then asked
counsel for Chakir and counsel for the government ques-
tions during their closing arguments. When Chakir’s
attorney objected to various questions posed by the IJ to
Chakir, the IJ overruled or otherwise failed to rule on the
objections. The IJ also refused to allow Chakir’s attorney to
ask follow-up questions after the IJ questioned Chakir
extensively following the government’s cross-examination.
All told, the IJ asked Chakir approximately 128 questions.
Chakir’s attorney, by contrast, asked Chakir 47 questions.
The government’s attorney asked Chakir a mere 11 ques-
tions.
The IJ also interrogated Chakir regarding matters beyond
Chakir’s knowledge, including Moroccan and Iranian law,
and then accused Chakir of mis-characterizing the law. The
IJ asked Chakir questions about his family, the substance
of which Chakir had addressed during his direct examina-
tion. The IJ then aggressively interrogated Chakir on
Moroccan civics, asking Chakir questions about the role of
No. 05-3948 9
Islamic law in Morocco; the effect of the French legal system
on the Moroccan legal system; the Moroccan legislature; the
role of the former king of Morocco; Moroccan elections; the
Party of Justice; an Algerian political party and the civil
war in Algeria; the present ruler of Morocco, Mohammed
VI; and the Moroccan court system and the role of Islamic
law.
We are mindful of an immigration judge’s responsibility
to establish the record as well as serve as fact-finder
and adjudicator. Hasanaj, 385 F.3d at 783. And we do not
want to discourage immigration judges from asking ques-
tions of witnesses in order to establish the record; rather,
we expect immigration judges, like any judge, to question
witnesses and conduct asylum hearings with the “patience
and decorum befitting a person privileged with this posi-
tion,” Giday, 434 F.3d at 550 (quoting Diallo, 381 F.3d at
701). We expect this IJ to act accordingly in all future
proceedings.
B. Persecution
In denying Chakir’s application for asylum, the IJ
believed that Chakir’s conversion to Christianity was
sincere but determined that Chakir does not have a well-
founded fear of future persecution. To establish this claim,
Chakir had the burden of proving that he either has
endured past persecution or has a well-founded fear of
future persecution based on one of the statutorily protected
categories. See 8 U.S.C. § 1101(a)(42)(A); Giday, 434 F.3d at
553. In the context of asylum proceedings, “persecution”
generally concerns punishment or substantial harm.
Margos v. Gonzales, 443 F.3d 593, 597 (7th Cir. 2006).
“Persecution does not encompass all treatment that our
society regards as unfair, unjust, or even unlawful or
unconstitutional.” Id. (quoting Firmansjah v. Gonzales, 424
F.3d 598 at 605 (7th Cir. 2005)). Chakir does not assert that
10 No. 05-3948
he was subjected to past persecution but argues that he
established a genuine fear of future persecution because of
his religion if he returns to Morocco.
An asylum applicant can establish a well-founded fear
of future persecution if the fear is “subjectively genuine and
objectively reasonable in light of the credible evidence.”
Diallo, 381 F.3d at 696 (quoting Capric, 355 F.3d at 1084-
85). In reviewing the denial of an asylum claim,
“[c]redibility determinations, findings of past persecution,
and findings of a well-founded fear of future persecution are
all factual determinations owed our strong deference.” Id.at 698 (citing Medhin v. Ashcroft, 350 F.3d 685, 688-89 (7th
Cir. 2003)). We assess “whether the BIA’s determination
was supported by reasonable, substantial, and probative
evidence on the record considered as a whole, and reverse
only if the evidence compels a contrary conclusion.”
Youkhana v. Gonzales, 460 F.3d 927 at 931 (7th Cir. 2006)
(quoting Tapiero de Orejuela v. Gonzales, 423 F.3d 666, 671
(7th Cir. 2005)). The evidence does not compel a contrary
conclusion in the instant matter.
In finding that Chakir had not proven that he has a well-
founded fear of future persecution, the IJ credited the State
Department’s IRFR on Morocco. The IRFR reported that the
Moroccan constitution establishes Islam as the state
religion but also provides for freedom of religion and the
right of non-Muslim communities to practice their
faith openly. The report acknowledged that converts to
Christianity generally face social ostracism. According to
Chakir, the social ostracism faced by Moroccan Christians
includes being terminated by their employers and having
family, friends, and neighbors deny them food, beat and
abuse them, ridicule them, denounce them to authorities,
and force them to perform Islamic practices. The IRFR also
reported that the Moroccan government places certain
restrictions on Christian religious materials. While Chakir
offered evidence about Islamic law generally, e.g., under
No. 05-3948 11
Islamic law, Muslims who convert to Christianity are
deemed apostates and the penalty for apostasy is death,
Chakir did not establish that Moroccan courts follow this
law. The IRFR and Chakir’s testimony established that
the Moroccan legal system is not based on Sharia law.
The IRFR further reported that the Moroccan government
encourages tolerance and has criminalized attempts to
prevent individuals from practicing their religious beliefs.
The acts of private citizens do not constitute persecution
unless the government is complicit in those acts or is unable
or unwilling to take steps to prevent them. E.g., Pramatarov
v. Gonzales, 454 F.3d 764, 766 (7th Cir. 2006). The IJ’s
conclusion that the Moroccan government has not endorsed
the more serious manifestations of private reactions to
conversion, and is willing to protect a convert if alerted to
something like a beating, is supported by substantial
evidence.
III. Conclusion
For the foregoing reasons, we AFFIRM the order of the BIA
and deny Chakir’s petition for review.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-19-06