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 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
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 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 oneyear 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
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 wellfounded 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
No. 05-3948 5

1 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.”

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.”

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),1

 and regulation, 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
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 demonstrate prejudice such that the IJ’s error affected the outcome 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 in-
No. 05-3948 7

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 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.

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 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
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 “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
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 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 wellfounded 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 wellfounded 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