United States 1st Circuit Court of Appeals Reports

ZAROUITE v. GONZALES, 424 F.3d 60 (1st Cir. 2005)
Abdelhafid ZAROUITE, Petitioner v. Alberto GONZALES,
Attorney General, Respondent. Nos. 04-1541, 04-2185.
United States Court of Appeals, First Circuit. Heard May 5,
2005. Decided September 16, 2005.


Jeremiah Friedman with whom Ilana Greenstein, Harvey
Kaplan, Maureen O’Sullivan and Kaplan, O’Sullivan &
Friedman, LLP, were on brief for petitioner.

Joanne E. Johnson, Office of Immigration Litigation, Civil
Division, Department of Justice, with whom Peter D.
Keisler, Assistant Attorney General, Civil Division, and
Papu Sandhu, Senior Litigation Counsel, were on brief for

Before BOUDIN, Chief Judge, CYR, Senior Circuit Judge, and
HOWARD, Circuit Judge.

BOUDIN, Chief Judge.

Abdelhafid Zarouite, a citizen of Morocco, entered the
United States without proper documentation in June 2000.
Removal proceedings began against him in the same month, 8
U.S.C. §§ 1182(a)(6)(A)(i), (a)(7)(A)(i)
(2000), during which he conceded removability but sought
asylum on grounds of persecution. 8 U.S.C. §
1158(b)(1) (2000); 8 C.F.R. § 208.13(b) (2005). The
pertinent background events, and the allegations made by
Zarouite, are as follows. Page 62

Zarouite was born and raised in Casablanca, Morocco,
attended university there, and lived in the city until
1996. In that year — according to Zarouite —
he and his parents were forced by the Moroccan government
to move to the territory of Western Sahara. Morocco
currently occupies much of the area; the remaining parts of
the territory are apparently controlled by an independence
movement, the Polisario Front. In the 1990s Morocco and the
Polisario Front negotiated, under United Nations auspices,
a possible referendum to determine the territory’s status.

A dispute existed as to whether all residents would be
permitted to vote in the referendum, or only those (mainly
ethnic Sahrawis) who resided in Western Sahara prior to
1975. Zarouite claimed that he and his parents, of Sahrawi
descent, were compelled to move to Western Sahara in 1996
because the Moroccan government wanted more votes against
independence. Zarouite contends that for three years after
his arrival in Western Sahara, he suffered beatings and
attacks at the hands of the Polisario Front, which wanted
him to leave.

In 1999, Zarouite returned to Casablanca where he said he
was imprisoned by the Moroccan government and given the
choice between returning to Western Sahara or remaining in
jail. After several months he returned to Western Sahara
where, he says, he again suffered harassment from the
Polisario Front. In June 2000 he left, entered the United
States unlawfully through Canada, and was apprehended by
American authorities.

After a hearing, the immigration judge denied the request
for asylum and withholding of removal on the express ground
that he did not credit Zarouite’s testimony as to
persecution, many aspects of which he found improbable.
Some of the immigration judge’s reasoning raises eyebrows
(he thought it improbable that the government would remove
a gainfully employed family from Casablanca); other doubts
might seem better founded (the judge thought that
Zarouite’s account of one of the alleged assaults involved
an improbable escape from harm).

Zarouite then sought review by the Board of Immigration
Appeals (“BIA”), which on April 1, 2004, issued a
two-paragraph affirmance. The BIA said that the immigration
judge did not give “specific and cogent reasons” for his
credibility finding, that the BIA therefore “assume[d]”
Zarouite’s credibility, but that “even if” the alleged acts
constituted past persecution, “the record . . . reveals
fundamental changes in Morocco since [Zarouite’s] departure
such that his fear of returning is no longer well-founded.”

For this last proposition, the BIA cited only a State
Department “country report” on Morocco dated March 4, 2002.
The BIA summarized the report by saying that it showed
that, despite some past abuses, today “the Moroccan
government generally respects the rights of its citizens
and that Sahrawis who have departed to Morocco are
encouraged to return provided they recognize Morocco’s
sovereignty over the Western Sahara.” This was the sole
support offered to show that Zarouite’s assumed fear was

Although we are aware of the BIA’s very large volume of
cases and the difficulties it faces with self-serving
stories, the BIA decision in this case cannot be sustained.
The question in this case is relatively narrow. The BIA
concluded that Zarouite was not eligible for asylum
— whether the Attorney General wishes to grant it is
a separate matter, Ravindran v. INS, 976 F.2d 754, 758 (1st
Cir. 1992) — and Zarouite is entitled to judicial
review on Page 63 the eligibility question. Id. The legal
framework as to eligibility is well settled.

Under the statute and case law, Zarouite had to establish
a well-founded fear of future persecution on one or more of
five enumerated grounds (race, religion, nationality,
membership in a particular social group, and political
opinion). 8 U.S.C. § 1101(a)(42)(A). Ordinarily, the
persecution has to involve government actors, although
government action exposing him to persecution by others or
refusing to protect him against such persecution could
suffice. See Harutyunyan v. Gonzales, 421 F.3d 64, 68 (1st
Cir. 2005).[fn1] One basis for showing such a well-founded
fear (the one pressed by Zarouite) is to show past
persecution, which gives rise to a presumption of future
persecution which is sufficient for the applicant’s case
unless rebutted by the Attorney General (e.g., by showing
changed conditions). 8 C.F.R. § 208.13(b); Fergiste
v. INS, 138 F.3d 14, 18 (1st Cir. 1998).

Zarouite’s argument in this court for such a showing of
past persecution appears to proceed as follows: the
Moroccan government deported him to Western Sahara because
of his ethnic heritage as a Sahrawi (arguably satisfying
the “social group” criterion of the statute); the
deportation has exposed him to repeated physical assault
and risk of death by the Polisario Front; the Moroccan
government has been unwilling or unable to protect him; and
the combined effect is that he is being threatened with
beatings or worse as a result of action and inaction by the
Moroccan government.

In its decision, the BIA was content to assume past
persecution arguendo and to dispose of the case on a quite
different ground, namely, the inference it drew from the
country report that “even if” Zarouite had been persecuted
in the past, the Moroccan government had changed its ways
and no fear of repetition could be well founded. The State
Department’s regular country reports are generally
persuasive of country conditions, 3 Gordon, Mailman &
Yale-Loehr, Immigration Law and Procedure §
33.04[3][f] (2005), but are open to contradiction. Gailius
v. INS, 147 F.3d 34, 45 (1st Cir. 1998).

In this case, says the Attorney General, the substantial
evidence standard applies and the BIA’s decision should be
upheld unless the record “compels” the opposite result.
Compare Aguilar-Solis v. INS, 168 F.3d 565, 569 (1st Cir.
1999). Admittedly, the record does not “compel” the
conclusion that the Moroccan government will repeat the
alleged behavior that Zarouite attributes to it, but the
problem here is that the country report does not directly
address such behavior at all, so the rationality of the
inference is open to question.

The most pertinent sentences in the report are as follows:

The Government also encouraged the return of Sahrawis who
have departed Morocco due to the conflict in the Western
Sahara, provided that they recognize the Government’s
claim to the region. The Government did not permit Western
Saharan nationalists who have been released from prison to
live in the disputed territory.

Zarouite’s testimony, if believed, suggests that the
Moroccan government once had a policy of requiring some
Moroccans Page 64 to move to Western Sahara in order to
bolster a vote in Morocco’s favor in an anticipated
referendum. It would hardly make sense for the Moroccan
government to make one family alone move back. If Morocco
once had such a policy, abandonment of the policy would
defeat the basis for Zarouite’s claim. But the quoted
language from the country report neither concedes such a
policy nor suggests that, if it once existed, it has now
been discontinued. See Fergiste, 138 F.3d at 19.

The BIA paraphrased the report in another, far more
general, respect. It said that the Moroccan government
generally respects the rights of its citizens. Inferences
can be drawn from the general to the particular;
conceivably, a country report could reflect such a firm
present adherence by a government to high human-rights
standards, across a range of activities, that forced
relocation of population for political purposes would be
implausible and defeat any well-founded fear of repetition
of past abuses.

It is enough to say in summary that the country report says
that the human rights record in Morocco, once discouraging,
is now improving, but this is far from the kind of blanket
endorsement just posited. Indeed, a pertinent excerpt from
the report reads: “The Government generally respected the
rights of citizens in most areas; however, the Government’s
record was generally poor in a few areas.” Thus, it is
difficult to understand why the BIA thinks that the country
report makes Zarouite’s assumed fear of future repetition

Notably, the government’s brief makes no developed argument
to show that the report rebuts Zarouite’s fear of future
persecution; it merely asserts this proposition in
conclusory terms and passes on with suspicious swiftness.
Here is the gist of the discussion, stripped of citations
to the proposition that country reports can be invoked:

Petitioner also weakly challenges the Board’s
well-founded fear finding, by claiming that the 2001
Country Report, upon which the Board relied, was
insufficient. Pet. Br. at 25. However, the 2001 Country
Report, which demonstrated changed country conditions in
Morocco and disproved Petitioner’s well-founded fear of
future persecution, substantially supports the Board’s
determination. . . . [As in another cited case,]
Petitioner failed to present “powerful evidence” to
discount the 2001 Country Report and prove that his fear
of future persecution is well-founded.

Nothing in the brief shows that the country report
“disproves” Zarouite’s fear, nor does the report itself do
so when read in full. Thus there was no need for Zarouite
to “discount” the country report since it does not
contradict the thrust of his testimony. The inference that
the BIA seeks to draw from the report is not rational, or
if it could be rationally explained, the government has
failed to do so. See Ren v. Ashcroft, No. 04-1702, 2005 WL
1950805, at *4 (1st Cir. Aug.16, 2005).

Two further matters remain to be noted. First, Zarouite
also claims that the BIA failed to consider the possibility
that — regardless of future persecution — it
would be inhumane to return him to Morocco because his past
treatment had been so terrible. Such an exception exists
for extraordinary suffering, Tokarska v. INS, 978 F.2d 1,
1-2 (1st Cir. 1992), but it seems quite unlikely that
Zarouite could qualify and, decisively, he has forfeited
any such claim by failing to raise it at the agency level.
Makhoul v. Ashcroft, 387 F.3d 75, 80 (1st Cir. 2004).

Second, in an effort to undo the BIA’s initial decision,
Zarouite filed a motion to reopen on June 25, 2004,
attaching more Page 65 recent country reports on Morocco
and other related documents. On August 12, 2004, the BIA
denied the motion on the ground that the new information
did not show a significant change in country conditions
from the report relied on by the BIA and that Zarouite did
not “meet his heavy burden of demonstrating that if the
proceedings were reopened, the evidence would likely change
the result in this case.”

Zarouite has sought review of this denial. His position is
that these materials show a relapse as to human rights on
the part of the Moroccan government, including political
repression and abuses such as torture. Interestingly, the
more recent reports are mixed as to government policy
toward Western Sahara. Some information suggests that
Morocco is interested in populating Western Sahara with
supporters; other information indicates that it may no
longer be interested in a referendum at all.

In any event, the original report relied upon by the BIA
does not adequately support the BIA’s inference so
Zarouite’s effort to contradict it with later reports is at
present beside the point. If on remand the agency continues
to assume arguendo that Zarouite’s story is true and to
resolve the case based on current country conditions, it
will have to update the record and provide a reasoned
explanation. Alternatively, it may choose to follow some
other course that will make country conditions irrelevant.

The BIA order of April 1, 2004, is vacated and the matter
remanded for further appropriate proceedings. So far as the
petition seeks review of the refusal to reopen, it is
dismissed as moot.

It is so ordered.

[fn1] Zarouite’s brief claims persecution by both the
government and the Polisario Front but we need not consider
whether the latter’s actions standing alone would satisfy
Harutyunyan; if the government did not compel Zarouite to
remain in the contested area, any threat to him from the
Front would seemingly disappear.