20-1848

Houmita v. Garland

BIA

Baumgarten, IJ

A079 719 324

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER

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APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER 

IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN 

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At a stated term of the United States Court of Appeals 

for the Second Circuit, held at the Thurgood Marshall 

United States Courthouse, 40 Foley Square, in the City of 

New York, on the 11th day of August, two thousand twentyone.

PRESENT:

ROSEMARY S. POOLER,

BARRINGTON D. PARKER,

JOSEPH F. BIANCO,

Circuit Judges.

_____________________________________

ABDELHAKIM HOUMITA,

Petitioner,

v. 20-1848

NAC

MERRICK B. GARLAND, UNITED 

STATES ATTORNEY GENERAL,

Respondent.

_____________________________________

FOR PETITIONER: Vilia B. Hayes; Dustin P. Smith; 

Amina Hassan; Hughes Hubbard & 

Reed LLP, New York, NY.

FOR RESPONDENT: Brian Boynton, Acting Assistant 

Attorney General, John S. Hogan, 

Assistant Director, Robbin K. 

Blaya, Trial Attorney, Office of 
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Immigration Litigation, United 

States Department of Justice, 

Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a 

Board of Immigration Appeals (“BIA”) decision, it is hereby 

ORDERED, ADJUDGED, AND DECREED that the petition for review 

is DENIED.

Petitioner Abdelhakim Houmita, a native and citizen of

Algeria, seeks review of a May 14, 2020 decision of the BIA 

affirming a November 19, 2019 decision of an Immigration Judge 

(“IJ”), which denied asylum, withholding of removal, and 

relief under the Convention Against Torture (“CAT”). In re 

Abdelhakim Houmita, No. A 079 719 324 (B.I.A. May 14, 2020), 

aff’g No. A079 719 324 (Immigr. Ct. Batavia Nov. 19, 2019). 

We assume the parties’ familiarity with the underlying facts 

and procedural history.

We have reviewed both the IJ’s and the BIA’s decisions 

“for the sake of completeness.” Wangchuck v. Dep’t of 

Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review

the agency’s factual findings for substantial evidence and 

its legal conclusions de novo. See 8 U.S.C. § 1252(b)(4)(B);

Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). 
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“[T]he administrative findings of fact are conclusive unless 

any reasonable adjudicator would be compelled to conclude to 

the contrary.” 8 U.S.C. § 1252(b)(4)(B). 

The agency reasonably concluded that the Department of 

Homeland Security (“DHS”) met its burden to rebut the

presumption of future persecution by showing a fundamental 

change in conditions in Algeria. See Lecaj v. Holder, 616 

F.3d 111, 115, 119 (2d Cir. 2010) (reviewing country 

conditions determination for substantial evidence). An 

asylum applicant who has shown past persecution has a 

rebuttable presumption of future persecution. 8 C.F.R. 

§ 1208.13(b)(1). DHS can rebut that presumption by 

establishing by a preponderance of the evidence that 

circumstances in the country of past persecution have 

fundamentally changed. Id. § 1208.13(b)(1)(i)(A). The 

changed circumstances must “obviate the risk to life or 

freedom related to the original claim.” Kone v. Holder, 596 

F.3d 141, 149 (2d Cir. 2010) (internal quotation marks 

omitted). 

Substantial evidence supports the agency’s conclusion 

that there was a fundamental change in conditions in Algeria. 
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The record reflects that an extremist group, Islamic 

Salvation Front (“FIS”), persecuted Houmita in 1996 because 

he had been a member of the military engaged in fighting the 

FIS. Algeria outlawed the FIS in 1992, granted it amnesty 

in 1999, and eradicated it by 2002. The evidence does not 

reflect a present threat to Houmita or support his contention 

that the FIS was absorbed into currently active terrorist 

groups to such a degree as to constitute a continuing threat. 

To the extent Houmita argues that the agency overlooked 

evidence of an article regarding the FIS’s presence in current 

groups, “we presume that an IJ has taken into account all of 

the evidence . . . , unless the record compellingly suggests 

otherwise.” Xiao Ji Chen v. U.S. Dep’t of Just., 471 F.3d 

315, 336 n.17 (2d Cir. 2006). In any event, there is an 

absence of evidence in the article that the FIS, through these 

current groups, would seek out an individual, like Houmita, 

who fought against the FIS.

Substantial evidence also supports the agency’s finding 

that Houmita failed to establish a well-founded fear of 

persecution on any ground independent of his past harm. He 

did not show that former military members or individuals with 
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Western interests face systemic and pervasive persecution. 

See Santoso v. Holder, 580 F.3d 110, 112 & n.1 (2d Cir. 2009) 

(concluding there was no error in agency’s pattern or practice 

finding where the agency considered country-conditions 

evidence and that evidence did not show systemic and pervasive

persecution); see also 8 C.F.R. § 1208.13(b)(2)(iii); Matter 

of A-M-, 23 I. & N. Dec. 737, 741 (B.I.A. 2005) (defining 

pattern or practice of persecution as “systemic or 

pervasive”). 

We also find no error in the agency’s denial of 

humanitarian asylum. The agency has discretion to grant 

humanitarian asylum to an applicant who no longer has a fear 

of future persecution if “(A) The applicant has demonstrated 

compelling reasons for being unwilling or unable to return to 

the country arising out of the severity of the past 

persecution; or (B) The applicant has established that there 

is a reasonable possibility that he or she may suffer other 

serious harm upon removal to that country.” 8 C.F.R. 

§ 1208.13(b)(1)(iii). Houmita did not assert “other serious 

harm” before the agency, so the issue here is whether he 

suffered “severe harm [from his past persecution] and the 
6

long-lasting effects of that harm.” Jalloh v. Gonzales, 498 

F.3d 148, 151 (2d Cir. 2007) (internal quotation marks 

omitted); see also Lin Zhong v. U.S. Dep’t of Just., 480 F.3d 

104, 107 n.1, 119–120 (2d Cir. 2007) (requiring exhaustion of 

issues before BIA). 

Although Houmita suffered significant past harm as a 

result of attacks in 1996 by armed militiamen who Houmita 

believed were members of the FIS, the agency did not err in 

finding that his harm was not sufficiently severe for 

humanitarian asylum. In reaching this conclusion, the agency 

properly considered the “degree of harm suffered by the 

applicant” and “the length of time over which the harm was 

inflicted.” In re N-M-A-, 22 I. & N. Dec. 312, 326 (B.I.A. 

1998); see also Hoxhallari v. Gonzales, 468 F.3d 179, 184 (2d 

Cir. 2006) (finding harm not sufficiently “atrocious” where 

applicant was beaten and harassed on six occasions). 

Moreover, an applicant must also demonstrate lasting physical 

or mental effects of the persecution, see Jalloh, 498 F.3d at 

152, and Houmita had no evidence of lasting physical effects 

and no evidence of mental effects or treatment prior to his 

immigration detention in 2019. On this record, the agency 
7

did not err in finding a lack of evidence of effects stemming 

from the past harm. See id.

Finally, substantial evidence supports the agency’s 

denial of CAT protection. See Nasrallah v. Barr, 140 S. Ct. 

1683, 1692 (2020)(reviewing CAT determination for substantial 

evidence); Hui Lin Huang v. Holder, 677 F.3d 130, 134 (2d 

Cir. 2012) (likelihood of harm is factual determination). 

Houmita did not show ongoing torture of former military 

personnel by the FIS, and he did not allege that anyone had 

inquired about him since 2007. See Jian Hui Shao v. Mukasey, 

546 F.3d 138, 157–58 (2d Cir. 2008) (“[W]hen a petitioner 

bears the burden of proof, his failure to adduce evidence can 

itself constitute the ‘substantial evidence’ necessary to 

support the agency’s challenged decision.”); Mu Xiang Lin v. 

U.S. Dep’t of Just., 432 F.3d 156, 160 (2d Cir. 2005) 

(requiring “particularized evidence” that applicant would be 

subject to torture); Jian Xing Huang v. INS, 421 F.3d 125,

129 (2d Cir. 2005)(“In the absence of solid support in the 

record . . . , [applicant’s] fear is speculative at best.”).
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For the foregoing reasons, the petition for review is 

DENIED. All pending motions and applications are DENIED and 

stays VACATED.

FOR THE COURT: 

Catherine O’Hagan Wolfe, 

Clerk of Court