Aid, Achour v. Mukasey, Michael B. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2915
ACHOUR AID,
Petitioner,
v.
MICHAEL B. MUKASEY, Attorney General
of the United States,Œ
Respondent.
____________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A-77-656-337
____________
ARGUED APRIL 9, 2008—DECIDED AUGUST 1, 2008
____________
Before POSNER, RIPPLE, and MANION, Circuit Judges.
MANION, Circuit Judge. Achour Aid entered the United
States from Algeria in 1996 on a non-immigrant visitor
visa, and in 2003, the Immigration and Naturalization
Œ
We substitute Michael B. Mukasey, the current Attorney
General of the United States, as the Respondent in this action.
See Fed. R. App. P. 43(c)(2).
2 No. 07-2915
Service (“INS”)1 charged Aid as being removable as an
alien who stayed longer than allowed pursuant to 8 U.S.C.
§ 1227(a)(1)(B). Aid applied for asylum and withholding
of removal on the basis of a political opinion and member-
ship in a particular social group, or alternatively,
voluntary departure. The Immigration Judge (“IJ”) dis-
missed Aid’s claim for asylum as untimely, denied his
claim for withholding of removal, and granted his re-
quest for voluntary departure. Aid appealed to the
Board of Immigration Appeals (“BIA”) only the IJ’s denial
of his application for withholding of removal based on
political opinion. The BIA agreed with the IJ’s decision
and dismissed Aid’s appeal. Aid petitions this court for
review, and we deny.
I.
Achour Aid was born in Ouzera, Algeria, and owned
a hardware store in his home town, which he operated
without incident until 1993. At that time, radical Islamists
were waging an armed struggle against the Algerian
government. Before the IJ, Aid testified that in 1993,
members of a terrorist group came to his store after it
was closed. He knew some of the men, but not others.
There were several terrorist groups in the area, but he
did not know which one they were part of. The men,
whose faces were covered but for their eyes, entered his
store and took everything they wanted. Aid stated that
the terrorists targeted his store because they could not
obtain hardware supplies in the city where there was a
1
The INS merged into the Department of Homeland Security in
2003. See Wood v. Mukasey, 516 F.3d 564, 566 (7th Cir. 2008).
No. 07-2915 3
larger and constant police and military presence. The
terrorists had spies who would let them know when
there was no military in the village.
The terrorists returned a second time, and Aid allowed
them to enter the store and take what they wanted. After
the terrorists came a third time, Aid contacted the police
and filed a report. Aid testified that he reported this
third incident to the police because he did not want the
police or the army to think that he was one of the
terrorists.2 According to Aid, the police did not con-
duct an investigation, but rather merely asked him for
descriptions of the men and what they took.
The terrorist came a fourth time. Like their first visit,
the terrorists came at night. When Aid refused to open
the door to his home, the terrorists forced open a
window and dragged Aid outdoors. One of the men
pointed a gun to his head and another put a knife into
his stomach. The man with the knife stated, “I’m going to
kill you, . . . you have to work for us . . . we’re doing this
for this country.” At that point, Aid opened the store
for them. The men loaded merchandise into their car and
then handed Aid a list of materials telling him that they
wanted him to purchase the listed supplies. The next
day, Aid again reported this to the police who wrote
down Aid’s account of the incident, but took no further
action.
2
Aid noted that there had been a nearby grocer whose goods
the terrorists stole. The grocer did not report the thefts to the
police. As a result, the army killed him because they thought
that he was aiding the terrorists by willingly providing the
terrorists with food.
4 No. 07-2915
Following the fourth incident, Aid closed his shop and
moved to Medea to live with his sister; Medea is approxi-
mately eight miles from Ouzera. Aid testified that in
contrast to Ouzera where there were no police and the
army only drove around during the day and left at night,
Medea was a big city where there was a larger and con-
tinual police and military presence. Aid also noted that
it would be hard for the terrorists to find him in Medea.
A month after he moved to Medea, the terrorists went
to his father’s house in Ouzera. The terrorists told his
father to tell Aid to return to Ouzera and to bring with
him the supplies on the list that they had given him. They
also stated that they would find Aid wherever he went.
In Medea, Aid opened another store and hired his
brother-in-law, Mostefaoui Abdelkader, and put him in
charge of purchasing. Leaving Abdelkader in charge of
the store, in June 1994 Aid traveled to Tunisia, Switzer-
land, and France to purchase automobiles for resale in
Algeria. While in Switzerland, Aid testified that an Alge-
rian man whom he did not know approached and asked
him to give him the car that Aid was purchasing
stating, “you give me the car, I’ll take care of everything
and I’ll give you the car back.” The same man approached
him two weeks later inquiring whether Aid had gotten
the car, to which Aid responded that he had not gotten
the car and would not be getting one. The man replied,
“[I]f you want us to forgive you about what you did
back in Algeria, you have to help us now.” After this
encounter, Aid feared that he was on a hit list, though
the man made no mention of such list.
On January 17, 1995, while Aid was still in Switzerland,
Abdelkader was fatally shot by someone in a car driving
by while Abdelkader was closing the shop one night.
No merchandise was taken from the store. At his hearing
No. 07-2915 5
before the IJ, when asked if he knew who killed
Abdelkader, Aid responded, “No, I don’t know. Nobody
know, knew who it, who they were.” He indicated that
“hundreds of people died the same way, by drive-by
shootings.” Aid then stopped his automobile resale busi-
ness, returned to Algeria, sold his store merchandise,
and came to the United States.
Aid entered the United States on August 11, 1996, using
a nonimmigrant visitor’s visa, which expired on February
8, 1997. Aid did not seek an extension, and on January 10,
2003, the INS charged Aid as being removable as an
illegal overstay pursuant to 8 U.S.C. § 1227(a)(1)(B). An IJ
conducted a hearing on September 4, 2003, at which
Aid conceded removability. Aid later applied for with-
holding of removal and asylum on the basis of political
opinion and membership in a particular social group.
On March 15, 2006, the IJ conducted a hearing on Aid’s
application for asylum and withholding of removal. The
IJ found Aid credible, but concluded that the evidence
did not support a conclusion that Aid was persecuted
“because the terrorists imputed a political opinion to him
once he refused to continue to supply them with the
requested materials.” The IJ further noted that Aid
never openly refused the men, nor did he indicate that
he did not support their cause. Regarding Abdelkader’s
murder, the IJ concluded that there was no evidence that
it was a result of Aid’s refusal to provide the terrorists
with supplies and noted that Abdelkader could have
been killed because of his own actions, independent of
Aid’s interactions with the terrorists. The IJ also con-
cluded that Aid did not suffer persecution, and even if
there was persecution, conditions in Algeria had signifi-
cantly changed for the better since Aid’s departure, and
6 No. 07-2915
his family remained unharmed and unthreatened in
Algeria. The IJ accordingly denied his claim for withhold-
ing of removal. The IJ also dismissed Aid’s claim
for asylum as untimely and granted his request for vol-
untary departure.
Aid appealed to the BIA, appealing only the IJ’s decision
on withholding of removal on the basis of political opinion.
The BIA agreed that Aid had not established a nexus
between the terrorist’s activities and any actual harm or
protected ground. The BIA also found that Aid was a
target because he owned a store and had access to materi-
als the terrorists desired and not because of any political
opinion. Aid petitions for review.
II.
In his petition for review, Aid argues that he is entitled
to withholding of removal for persecution based on
political opinion and membership in a social group.
Initially, we note that we do not have jurisdiction to
consider Aid’s claim that his status as a store owner
qualifies as a social group. Aid did not assert this claim
in his brief to the BIA and has therefore failed to exhaust
his administrative remedies. Huang v. Mukasey, 525 F.3d
559, 563-64 (7th Cir. 2008); see 8 U.S.C. § 1252(d)(1). How-
ever, we have jurisdiction to review the BIA’s denial of
relief for persecution because of political opinion.
“Because the BIA adopted and affirmed the opinion of
the IJ, we review the IJ’s decision as supplemented by
any discussion in the BIA’s opinion.” Tarraf v. Gonzales,
495 F.3d 525, 531 (7th Cir. 2007). We review the decision
denying withholding of removal under the substantial
evidence standard; in other words, the IJ’s decision must
No. 07-2915 7
be “supported by reasonable, substantial, and probative
evidence on the record considered as a whole.” Sina v.
Gonzales, 476 F.3d 459, 461 (7th Cir. 2007) (citations omit-
ted). We may not reverse simply because we would
have decided the case differently. Margos v. Gonzales,
443 F.3d 593, 597 (7th Cir. 2006) (citations omitted). Instead,
we will reverse only if the evidence compels a contrary
conclusion. Youkhana v. Gonzales, 460 F.3d 927, 931 (7th Cir.
2006) (citation omitted).
To establish eligibility for withholding of removal, a
petitioner “must demonstrate a clear probability of perse-
cution on account of his ‘race, religion, nationality, mem-
bership in a particular social group, or political opinion.’ ”
Tariq v. Keisler, 505 F.3d 650, 656 (7th Cir. 2007) (quoting
8 U.S.C. § 1231(b)(3)(A)). In turn, “to establish a clear
probability of persecution, the applicant ‘must demonstrate
that ‘it is more likely than not that [he] would be subject
to persecution’ in the country to which he would be
returned.’ ” Id. (quoting INS v. Cardoza-Fonseca, 480 U.S.
421, 423 (1987)). If the petitioner demonstrates past perse-
cution, he is entitled to a presumption of future persecu-
tion, and the burden shifts to the government to rebut the
presumption that the petitioner will suffer persecution.
Irasoc v. Mukasey, 522 F.3d 727, 530 (7th Cir. 2008).
Aid argues that the BIA erred in affirming the IJ’s
conclusion that he failed to establish a nexus between his
claimed fear of persecution and a protected basis, specifi-
cally a political opinion. Aid contends that the terrorists
imputed a political opinion to him because he refused
to assist them and that the political opinion motivated
the terrorists to persecute him. To establish persecution
on account of political opinion, the petitioner must show
that he was persecuted because of his political opinion,
8 No. 07-2915
not the political opinion of his persecutor. See INS v. Elias-
Zacarias, 502 U.S. 476, 482-483 (1992). In a case where a
petitioner asserts that a political opinion was imputed to
him, he must show that his “persecutors attributed a
political opinion to [him], and this attributed opinion was
the motive for the persecution.” Mema v. Gonzales, 474
F.3d 412, 417 (7th Cir. 2007) (citations omitted). The “mere
existence of a generalized ‘political’ motive underlying
[the terrorists’ actions] is inadequate to establish . . . the
proposition that [the alien] fears persecution on account of
political opinion, as § 101(a)(42) [of the Immigration
Naturalization Act] requires.” Id. at 482.
Aid failed to show that the evidence compels a con-
clusion that he suffered persecution on account of his
political opinion. There is no evidence that anything other
than a desire for supplies motivated the terrorists, much
less a political one. Neither Aid nor any family member
was a political party member or held government em-
ployment. There is no evidence that Aid confronted the
terrorists or openly opposed them. Aid cites Lim v. INS,
224 F.3d 929, 932-33 (9th Cir. 2000), and Gonzales-Neyra
v. INS, 122 F.3d 1293, 1294-95 (9th Cir. 1997), in support of
his claim. However, contrary to Aid’s contention, neither
of these cases is analogous to Aid’s circumstance. In Lim,
the petitioner was a police officer who had infiltrated
Communist student groups, investigated a unit that
killed public officials, and testified in open court against
organization leaders in the Philippines. 224 F.3d at 932. The
Ninth Circuit concluded that the threats the petitioner
received were partly motivated by an imputed political
opinion. Id. at 934. Aid’s activities are distinguishable
from those of the petitioner in Lim. Aid was a private
citizen who was not engaged in any sort of government
No. 07-2915 9
employment or enforcement activities to undermine the
terrorists. Aid’s simple refusal to provide the terrorists
with additional supplies (for which the terrorists were not
paying) contrasts starkly with the petitioner’s in Lim
substantial involvement in the Philippine government’s
attempts to shut down a Communist unit. Similarly,
Aid’s situation is not analogous to the petitioner in
Gonzales-Neyra, who “was threatened only after he ex-
pressed his political disagreement with the guerrilla
organization, and only after he made clear that his
refusal to make further payments [for protection] was on
account of that disagreement.” 122 F.3d at 1294. Gonzales-
Neyra went so far as to tell the guerillas that “he was not
going to ‘collaborate with them anymore, because that
was not part of his idea; that he was not going to col-
laborate with a group that was trying to destroy his
country.’ ” Id. at 1295. Aid, on the other hand, did not
express a political opposition to the terrorists. In fact,
there no is evidence in the record of Aid expressing
any political opinion, much less not to the terrorists.
Aid did report the third and fourth incidents to the
police, but there is no evidence that the terrorists were
aware of these reports. Further, as evinced by his own
testimony before the IJ, Aid did not go to the police
with the intent of allying himself with the Algerian gov-
ernment or getting the terrorists into trouble. Rather, his
motivation was self-preservation: he sought to protect
himself from misdirected retribution by the army mis-
takenly thinking that he was working in concert with
the terrorists by providing them with hardware sup-
plies. See Hernandez-Baena v. Gonzales, 417 F.3d 720, 723-24
(7th Cir. 2005) (holding that a petitioner did not suffer
persecution on account of a political opinion because
10 No. 07-2915
the petitioner himself testified that “he refused to comply
with the request of the [guerrillas] because he did not
want to go to jail for violating Columbian law—not be-
cause of a political opinion”). As Aid’s counsel stated
at oral argument, he was trying to stand up for himself,
not stand up against the terrorists. Moreover, when the
terrorists visited his father, the message they left for Aid
was that they wanted him to return to his store and to
provide them with the supplies on the list. They did not
mention Aid’s police reports or any political viewpoint;
the terrorists wanted their supplies. Aid’s own testimony
that the terrorists could not obtain the hardware mer-
chandise needed in the city confirmed that the terrorists
were motivated to track Aid down because he could
acquire the necessary chemicals and other supplies that
the terrorists sought. Similarly, the Algerian man who
approached him in Switzerland did not mention Aid’s
visits to the police.3 Bound by the substantial evidence
standard, we cannot say that the evidence compels a
conclusion that a political opinion and not Aid’s owner-
ship of a hardware store spurred the terrorists in their
actions against Aid.
Aid also claims his brother-in-law Abdelkader’s murder
was revenge motivated by an imputed political opinion.
The evidence, however, does not support Aid’s conten-
tion. Aid testified that no one knew who killed
3
The man did state, “[I]f you want us to forgive you about what
you did back in Algeria, you have to help us now.” However,
the record does not flesh out what the man meant by what
Aid “did back in Algeria,” and the evidence does not compel a
conclusion that it meant anything other than that it referred to
Aid’s closure of his Ouzera store and not supplying the
supplies on the list.
No. 07-2915 11
Abdelkader. Other than the fact that Abdelkader was
killed in a drive-by shooting while closing the hardware
store, there was no other evidence presented about the
murder. He was one of “hundreds of people [who] died
the same way, by drive-by shootings.” Thus, there is no
evidence supporting Aid’s contention that the murder
was motivated by a political opinion imputed to Aid.
Finally, Aid cites the knife-wielding terrorist’s state-
ment, “[Y]ou have to work for us . . . we’re doing this
for this country,” as evincing a political motivation for
the attack. This statement reflects a political opinion, but
not Aid’s opinion. It reflects the terrorist’s belief that
he and his comrades were acting for the betterment of
their nation and that they were exploiting Aid for his
hardware supplies. If this, without more, was sufficient
to establish a political opinion, imputed or otherwise,
then any victim once caught in the cross-hairs of a war-
torn nation or a country rife with political violence
would be eligible to seek immigration protection in this
country on account of political opinion. The immigration
code, however, is not so broad in the relief it affords. Only
if the “persecution is on account of the victim’s political
opinion, not the persecutor’s” is withholding of removal
available. INS v. Elias-Zacarias, 502 US 476, 482 (1992).
Reasonable minds may disagree with the IJ’s decision.
However, considering the record as a whole and taking
Aid’s testimony as credible, we conclude that the evi-
dence does not compel a conclusion contrary to the one
reached by the IJ. Rather, “reasonable, substantial, and
probative evidence” exists to support the IJ’s denial of
Aid’s petition for withholding of removal based on a
political opinion because Aid did not establish that
the terrorists’s actions toward him were because of his
political opinion, actual or imputed.
12 No. 07-2915
III.
Substantial evidence supports the BIA’s decision that
Aid failed to establish that he was persecuted on account of
his political opinion. Accordingly, we DENY Aid’s petition
for review.
USCA-02-C-0072—8-1-08