Application for asylum due to fear of persecution

United States 7th Circuit Court of Appeals Reports

CHAKIR v. GONZALES, 05-3948 (7th Cir. 10-19-2006) RACHID
CHAKIR, Petitioner v. ALBERTO GONZALES, Attorney General of
the United States, Respondent. No. 05-3948. United States
Court of Appeals, Seventh Circuit. Argued September 26,
2006. Decided October 19, 2006.

Petition for Review of an Order of the Board of Immigration
Appeals. No. A97-602-757.

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 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 expiration of
his visa, however. He applied to the former Immigration and
Naturalization Service (“INS”) for asylum, withholding 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 initiated 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 community, 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 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 Department
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,
however, with Chakir’s opinions regarding the conditions and
practices of Muslims in Morocco and about the likelihood 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 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 treatment 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 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. Gonzales,
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),[fn1]
and regulation, 8 C.F.R. § 1240.1(c).[fn2] Unless
Chakir claimed that the applicable statute and regulation
are constitutionally deficient, which he conceded at oral
argument that he 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
demonstrate 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 reversible
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 included
in its opinion.[fn3] 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
questioning 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
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
“intemperate, 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 543 at 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 questions
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 questions.

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 examination.
The IJ then aggressively interrogated Chakir on Moroccan
civics, asking Chakir questions about the role of 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 questions 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
position,” 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 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
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.

[fn1] 8 U.S.C. § 1229a(b)(4)(B) provides, in part,
that in an immigration 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.”

[fn2] 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.”

[fn3] 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 respondent 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.