### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 10-60982

ZOUBIR AL TILIMSANI BOUCHIKHI,
Petitioner
v. ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL, Respondent

Petition for Review of an Order of the Board of Immigration Appeals BIA No. A097-202-599

Before REAVLEY, ELROD, and HAYNES, Circuit Judges. PER CURIAM: * Petitioner Zoubir Al Tilimsani Bouchikhi petitions for review of an order from the Board of Immigration Appeals (BIA) dismissing Bouchikhi’s appeal f rom an Immigration Judge’s (IJ) decision pretermitting his application fo r asylum and denying his application for wi thholding of removal. We DISMISS Bouchikhi’s petition i n s o far as he challenges certain factual findings that we lack jurisdiction to review. In all other respects, the petition is DENIED. U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D March 8, 20 12 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t hasd ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 10-60982 Document: 00511782082 Page: 1 Date Filed: 03/08/2012No. 10-60982 I. Background Bouchikhi is a native and citizen of Algeria

. He is a Muslim imam. He believes in democratic government, and he disapproves of the present Algerian regime b e c a use of its failure to permit democracy. As a moderate Muslim, Bouchikhi opposes the mistreatment of non-Muslims and the use of violence to establish an Islamist state. After entering the United States in 1997 on a non-immigrant student visa, Bouchikhi received permission to remain as a special non-immigrant religious worker. That status was se t t o e xpire in December 2004. In May 2003 the Department of Homeland Security (DHS) denied Bouchikhi’s petition to renew his religious worker classification, but in July 2003 DHS inadvertently granted

a second petition. Bouchikhi applied for adjustment to immigrant status in October 2003. And in October 2005 he was granted advance parole, permitting him to travel outside of the United States without prejudicing his p e n ding application for adjustment of status. He left the United States in January 2006 and returned in February 200 6

. D HS denied Bouchikhi’s application for adjustment of status on March 9, 2007. DHS also revoked his non-immigrant religio u s w o rker status on March 9, 2007. Bouchikhi moved to reopen and reconsider the revocation but that motion was denied in November 2008. In December 2008 Bouchikhi was served with a Notic e to Ap p e ar, charging him with being removable as an alien not in possession of valid entry documents. Bouchikhi sought various forms of relief, including asylum and withholding of removal, for which he applied in April 2009. The IJ considered th o s e applications at a hearing in April 2009. Bouchikhi contended that the Algerian state oppresses a ny o u tspoken

a dv o c a t e o f democracy or critic of its conduct. He also contended that various opposition groups in Algeria hold extreme religious views, and that they threa t e n violence against moderate religious leaders like himself. Bouchikhi

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testified that before he moved to the United States he lived f o r s ev e n y e ars in Malaysia. After moving to the United States he returned to Algeria to visit his mother. Most of his family still resides in Algeria, i n c l u ding his parents and

seven of his ten siblings. Bouchikhi attempted to present expert testimony of Dr. S h a u l G abbay, a professor at the University of Denver in the School of International Studies. Bouchi kh i called Gabbay as an expert on religious extremism in the Muslim world, but the IJ did n o t p e rmit Gabbay to testify because he is not an expert on Algeria. The IJ found that Bouchikhi had failed to meet his burdens of proof with respect to his requests for relief from removal, including his asylum application and his application for withholding of removal. The IJ also found that Bouchikhi’s asylum application was untimely. Under 8 U.S.C. § 1158(a)(2)(B),

an alien must file his asylum application “within 1 year aft e r th e date of the alien’s arrival in the United States.” The IJ found that Bouchikhi’s last arrival

was in February 2006. The IJ found that Bouchikhi had failed to establish any extraordinary circumstance that would justify re l axing the one-year deadline under 8 U.S.C. § 1158(a)(2)(D). The BIA dismiss e d Bouchikhi’s appeal with a brief opinion in which the BIA explicitly affirmed and adopted the IJ’s decision. Bouchikhi timely filed a petition for review in this court. II. Jurisdiction The court has jurisdiction to review constitutional claims or questions of law raised in a timely petition c h a l l e n ging an order of removal. 8 U.S.C. § 12 5 2 ( a)(2)(D). We have authority to review only an order of the BIA, but our task is effectively to review the IJ’s decision when the BIA has explicitly adopted it. See Zhu v. Gonzales , 493 F.3d 588, 593 (5th Cir. 2007). Generally, we have jurisdiction to review an IJ’s determinations of fact under a substantial evidence

s t a n dard. Zhang v. Gonzales , 432 F.3d 339, 343-44 (5th Cir. 2005). The IJ’s

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findings of fact are conclusive “unless any reasonab l e a djudicator would be compelled to conclude to the contrary

. . . .” 8 U.S.C. § 12 5 2 (b ) (4)(B). But we lack jurisdiction t o r e view findings of fact bearing on determinations of the timeliness of an asylum application. Zhu , 493 F.3d at 594-95. III. Discussion A. Bouchikhi’s Arrival As noted above, 8 U.S.C. § 1158(a)(2)(B) requires an alien t o f ile his asylum application “within 1 y e a r after the date of the alien’s arrival in the United States.” The Attorney General’s implementing regulations require that “[t]he 1–year period shall be calculated from the date of the alien’s last arrival in the United States.” 8 C.F.R. § 1208.4(a)(2)(ii). Bouchikhi ’ s f irst argument p r e sents a question of law regarding the meaning of “arrive” as it i s u s e d i n these provisions. The parti e s a gree that Bouchikhi was paroled when he returned to the United States in February 2 0 06, and that he was an “arriving alien” from then until his April 2009 asylum application. Bouchikhi argues that his last “arrival” in the United States was a continuing event that began when he became an “arriving alien” and continued as long as he retained that status. He was therefore “still legally ‘arriving’

. . . years after he got off the plane,” and his “asylum application should [not] be considered as filed more than a year after his ‘arrival.’” When construing statutes and regulations, we begin with the assumption that the words were m e a nt to express their ordinary meaning. INS v. Elias-Zacarias , 502 U.S. 478, 482, 112 S. Ct. 812, 816 (1992); S.D. ex rel. Dickson

v. Hood , 391 F.3d 581, 595 (5th C i r . 2004). In Matter of F-P-R the BIA interpreted “arrival” as it is used in § 1208.4(a)(2)(ii). 24 I & N Dec. 681, 682-83, Int. Dec. 3630, 2008 WL 4817462 (BIA 2008). The B IA r ejected the Second

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Circuit’s view that “last arrival” in § 1208.4(a)(2)(ii) does not include arriva ls 1 after brief trips out of the United States. Id. “[L]ast arrival,” the BIA explained, “refer[s] to an alien’s most recent coming or crossing into the United States after having traveled from somewhere outside the country.” Id. a t 6 8 3

. The BIA relied on the ordinary meaning of “arrive,” which “is defined as ‘to come t o a certain point in the course o f t r av el; reach one’s destination’ and ‘to come to a place a fter traveling.’” Id. (citing T H E RA N D O M H O U S E D I C T I O NARY O F T H E E N G L I S H LA N G UA G E 83 (unabridged ed. 1973)). Other authorities confirm that in ordinary usage “arrival” denotes an event that happens at a particular point in time rather than over a duration. 2 Bouchikhi’s three year stint as an “arriving alien” is no reason to depart f rom ordinary usage when applying 8 U.S.C. § 1158(a)(2) and 8 C

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. § 1208.4(a)(2)(ii). “Arriving alien” is a l e g al term of art explicitly defined in 8 C.F.R. § 1.2. The de f i n i t i o n takes in various categories of aliens who are 3 physically present in the United States but for one reason or another are not yet admitted: Arriving alien means an applicant for admission coming or attempting to come into the United States at a port-of-entry, or an alien seeking transit through the United States at a port-of-entry, or an alien interdicted in international or United States waters and brought into the United States by any means, whether or not to a designated p o rt

- o f-entry, and regardless of the means of transport. An arrivi n g alien remains a n arriving alien even if paroled pursuant to section 212(d)(5) of the Act, and even after any such par o l e i s t e rminated or

Joaq uin- Porrasv . Go nza le s , 435 F.3d172 , 178- 80 ( 2d Cir. 200 6). 1 E.g. , Ox

ford Engli sh Di ctio nar y On li ne , htt p: //ww w. oed .c om/ (d efi ning “arrive” as “To 2
com e to the end of a journe y, to a des tinat ion, or to so me def i n i t e p l a c e ; t o com e upon the sc ene, mak e one’ s appearance .”); Me rri am -We bster On li ne , htt p: //ww w. me rri am- we bst er. com/ (d efi ning “ arrive” as “To reac h a des tinat ion” or“to mak e a n ap pea ranc e”)

. At the tim e of Bouchi kh i’s hearing, the def init ion wa s fou nd in 8 C.F. R. § 1.1( q) (200 9). 3 The texthas no t been changed

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revoked. However, an arriving alien who was paroled into the United States before April 1, 1997, or who was paroled into the United States on or after April 1, 1997, pursuant to a grant of advance parole which the alien applied for and obtained in the United States prior to the alien ’ s d e parture from and return to the United States, will not be treated, s o lely by reason of that grant of parole, as an arriving alien under section 235(b)(1)(A)(i) of the Act. Some aliens r e m a in in that situation for months or years. But that does not support Bouchikhi’s theory th at a f ictio n ally p rolo n ge d “arriving” is continuously carried on during that time. Section 1. 2 ’ s d e f inition of “arriving alien” makes plain that applying the term to a person does not attribute any act of “arriving” to him at all. It merely conveys that he belongs to one of the various categories of aliens, none of whom 8 C.F.R. § 1.2 describes in terms of an act of “arriving.” Moreover, Bouchikhi points to nothing indicating that 8 C.F.R. § 1.2’s definition of “arriving alien” was intended to interpret or control every other use of “arrive” found in the I.N.A. or its implementing regul ati o n s. Notwithstanding his subsequent status as an “arriving alien,” Bouchikhi’s “arrival” for purposes of 8 U.S.C. § 1158(a)(2) and 8 C.F.R. § 1208.4(a)(2)(ii) occurred and was complete at the latest o n the day in February 2006 that he returned the United States after traveling abroad. 4 B. Extraordinary Circumstances Title 8, United States Code, § 1158(a)(2)(D) relaxes the one-year deadline for an asylum application if “the alien demonstrates to the s ati s f a c ti on of the Attorney General

. . . extraordinary circumstances relating to the delay in filing

an application within the [one-year] period

. . . .” The implementing regulations require an alien seeking to prove extraordinary circumstances to also show that

Bouchi kh i’s “arrival” occ urr ed mo re than a year bef ore his asylu m app lica tio n unde r 4 both the BIA’s inte rp ret atio n of 8 C.F. R. § 208. 4(a) (2) (ii) and the i n ter pr etat ion the Sec ond Circ uit ado pt ed in Joaq uin- Po r ras , 435 F.3d at 180. We expr es s no view as to wh ich inte rp ret atio n i s correc t. 6 Case: 10-60982 Document: 00511782082 Page: 6 Date Filed: 03/08/2012No. 10-60982

he “filed the application within a reasonable period given those circumstances.” 8 C.F.R. § 1208.4(a)(5). Possible extraordinary circumstances include bein g paroled o r m a i n taining lawful immigrant or nonimmigrant status “until a reasonable period before the filing of the asylum application

. . . . ” 8 C.F.R. § 1208.4 (a)(5), (a)(5)(iv). Alth o u gh the parties agree that Bouchikhi was an “arriving alien” from the beginning of his parole until April 2009, they disagree over when his parole terminated. Bouchikhi contends that his parole continued until he received the

5 notice to appear in December 2008. The IJ found that his parole ended in either October 2006, one year after issuance of th e O ctober 2005 advance parole permission, or in March 2007, when Bouchikhi’s application for adjustment of status was denied. A BIA finding regarding whether the period between an applicant’s loss of legal status and his asylum application was reasonable is a determination of fact, which the we lack jurisdiction to review. Zhu , 493 F.3d at 594-95

. The IJ found that Bouchikhi did not apply within a reasonable period, because he had been in the United States since December 1997, and “[w]ai t i n g more than 11 years to file a n a s ylum application [was] not reasonable in the Court’s view.” Th e BIA added: “assuming arguendo that the respondent established extraordinary circumstances in March 2007, the respondent did not file within

a reasonable time period as provided for in 8 C.F.R. § 1208.4(a)(5).” Neither the BIA nor the IJ addressed whether a December-2008-to-April-2009 delay would have been reasonable. We therefore turn to the issue of when Bouchikhi’s parole ended. We find, however, that we lack jurisdiction over that issue as w e ll, because in this case it turns on a question of fact. Under paragraph (e)(1) of 8 C.F.R. § 212.5, parole

The“ arriving alien” cat egory inclu des par oled aliens as we ll as aliens w hos e p arol e 5 hast erm inate d. 8 C.F. R. § 1 .2. 7 Case: 10-60982 Document: 00511782082 Page: 7 Date Filed: 03/08/2012No. 10-60982

terminates without written notice when an ali e n de p arts from the United States,

or at the expiration o f th e f ixed period, if any, for which the parole was authorized. Paragraph (e)(2) provides that in other cases parole will terminate

on receipt of written notice or receipt of a charging document

. 8 C

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. § 212.5(e)(2)(i). Bouchikhi did not receive any notice prior to the December 2008 notice to appear, so when his parole terminated depends on whether his parole was authorized for a fixed period, and if so, when that period expired. In his opening brief, Bouchikhi cites 8 C.F.R. § 212.5(e)(2) for the proposition that parole is terminated by written notice, and he then asserts that his parole continued until he received the no ti c e to appear in December 2008. He d o e s n ot address § 212.5(e)(1) or the possibility that his parole was authorized for a fixed period after which it would automatically expire without notice. But the IJ evidently found that his parole was authorized for a period of

one year after issuance of the advance permission in October 2005, and on that basis concluded that Bouchikhi ceased to have parole or any other lawful status either in October 2006 or in March 2007, when his application for adjustment of status was d e n i e d. The legal authority Bouchikhi relies on is therefore inapplicable to the facts as the IJ determined them, and his challenge does not present an issue of law. We therefore lack jurisdiction to consider the argument on this issue presented in Bouchikhi’s opening brief. 6 Bouchikhi’s reply brief includes additional arguments regarding when his parole ended. These arguments concern the meaning of language in § 212.5(e)(1) and § 1182(d)(5) ( a). Though they present questions of law, Bouchikhi waived these arguments by omitting them from his opening brief. United States v. Ogle , 415 F.3d 382, 383 (5th C i r . 2 0 0 5 )

. In any event, they lack merit. Bouchikhi points out that § 212.5(e)(1)(ii) requires that an alien whose parole terminates

We note , how ever, that the adm inis tra tive rec ord inclu des an I-94 for m indi cating th at 6 Bouchi kh i’s p arol e w as autho rizedf or a f ixed perioden ding on Februa ry 4 , 2007. 8 Case: 10-60982 Document: 00511782082 Page: 8 Date Filed: 03/08/2012No. 10-60982

at the expiration of its authori z e d period be “processed in accordance with
p aragraph (e)(2).” Paragraph (e)(2) requires that DHS either remove or reparole an alien whose parole has terminated. Th a t, Bouchikhi argues, means that (e)(1)(ii)’s automatic termination of parole does not occur until “expiration of the authorized term AND the mandatory

. . . comm e ncement of removal proceedings

. . . .” Bouchikhi is correct that when a non-departed alien’s parole automatically terminates, DHS is obliged to either re-parole him or commence removal proceedings. But the language in (e)(1)(ii) imposing that requirement does not affect when the parole terminates: “Parole shall be automatically terminated without written notice (i) upon the d e p a rture

. . . or, (ii), if not departed, at the expiration of the time for which parole was authorized, and in t h e latter case the alien shall be processed in accordance with paragraph (e)( 2 ) of this section except that no wr i t t e n n otice shall be required. ” 8 C.F.R. § 212.5(e)(1) (emphasis added). Bouchikhi’s interpretation of 8 U

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. § 1182(d)(5)(a) relies on language requiring that a non-departed ali e n w h o s e parole has terminated must “‘return or be returned’” to DHS custody. Therefore, he argues, “there can only be two ways [parole] may be terminated–by the alien’s departure or by his return [to custody].

. . .” This argument fa i ls for the same
reason as Bouchikhi's interpretation of § 212.5(e)(1)(e)(1)(ii). Language requiring that a task be done after an alien’s parole terminates does not thereby delay the event of termination until the task has been done. Although Bouchikhi’s asylum application was untimely, there is no filing deadline for an application f o r withholding of removal. Arif v. Mukasey , 509 F.3d 677 680 (5th Cir. 2007). We will therefore consider Bouchikhi’s challenges to the exclusion of Gabbay’s testimony a n d the sufficiency of the evidence regarding the IJ’s denial of Bouchikhi’s application for withholding of removal.

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C. Bouchikhi’s Expert Witness The BIA has held th a t th e s ole test for admission of evidence at a deportation proceeding is whether it “is probative and its ad m i s s i on is fundamentally fair.” Matter of D-R- , 25 I&N 445, 458, Int. Dec. 3708 (BIA 2011) (citation and internal quotation marks omitted). “The rules of evidence, including those that exclude hearsay, do no t govern deportation proceedings.” Olabanji v. INS, 973 F.2d 1232, 1234 (5th Cir. 1992). “But immigration judges must conduct deportation hearings in accord with due process standards of fundamental fairness.” Id. We review a claim of a due process violation de novo. Toscano-Gil v. Trominski , 210 F.3d 470, 473 (5th Cir. 2000). T o p r e vail, however, the alien must show subs t antial prejudice. Id. Under the circumstances of this case, that showing requires at least th at the IJ’s assessment of Gabbay’s expertise was an abuse of discretion

. Th a t is the standard we apply when considering a district court’s de t e r m i n a tion of the admissibility of expert evidence. French v. Allstate Indem. Co. , 637 F.3d 5 7 1, 577 (5th Cir. 2001). And the BIA accords similar discretion to immigration judges. Matter of D-R -, 25 I&N Dec. at 458. While the F e d e ral Rules of Evidence are not binding in removal proceedings, the BIA views them as providing “helpful guidance

. . . because the fact that specific evidence would be admissible under the Federal R u l e s lends strong support to th e c o n c l u sion that the admission of the evidence comports with due process.” Id. at 458 n.9 (internal quotation marks and citation omitted). “An expert witness is broadly defined as someone who is ‘qualified as
an e x p e rt b y knowledge, skill, experience, training, or education.’” Id. at 459 (quoting F E D
. R. E V I D
. 702). “An e xpert has ‘scientific, technical, or other
sp e cialized knowledge [that] will assist the trier of fact to understand the evidence or to determine a fact in issue.’” Id. (quoting F E D
. R. E V I D . 702).

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The IJ’s handling of Gabbay’s testimony was not optimal. After Gabbay indicated that he is not a specialist on Algeria, the IJ per e m p t o ri l y refused to consider the possibility that he might have any applic ab l e exp erti se. Bouchikhi’s counsel elicited testimony from Gabbay about his research on religi o u s extremism in Muslim societies. But the IJ categorically rejected the possibility that any expertise other than specialization in Algeria could qu a li f y a witness to offer an opinion about w h a t might happen to Bouchikhi when he returned. The better practice would be to allow the expert to explain the scope and basis of his particular expertise, and then to he a r counsel out regarding how that expertise will bear on the material issues. In this case we do not f i n d that Bouchikhi was prejudiced. Bouchikhi argues that Gabbay could have offered an opinion “as an expert on religious and social extremism in the Muslim world.” The record indicates otherwise. Asked to summarize his qualifications, Gabbay said: I teach a focus on the Middle East and th e Muslim world. I am educated from Columbia University, I received a PhD. [sic], and I went and did a doctorate at the Un iv e r s ity of Chicago, all focusing on the sociology of the Mus l i m Wo rl d [sic]. I teach classes, which of course Algeria and the c h a l lenges and also the opportunities there. [sic] They are of importance and [an] integral part of th e class. My research deals with the Middle East and of course, in particular, after September 11, the issue of terrorism is important and Algeria is one of the i mportant cases there. I have my publications, I presented
n u m e r o us papers and manuscripts, et cetera, where Algeria is a n important part of it and what has happened in Algeria. I am qualified as a n e x p ert on Algeria in more than ten cases, I believe, by Immigration Court. I regularly inform the public media regarding questions that may come up about terrorism, and of course, Algeria is an important [part] of it. Gabbay’s C.V. i n di c ates that in the last ten years he has taken a sustained professional interest in religious extremism, and a good de a l of his recent unpublished work concerns the treatment of religious minorities and dissident Muslims in the Middle East. Also, his present teaching load includes courses on 11 Case: 10-60982 Document: 00511782082 Page: 11 Date Filed: 03/08/2012No. 10-60982

politics and conflict in that region, as we l l as a course on “the networking of terrorism.” But his dissertation and peer-reviewed publicat i o n s were on di f f e rent sociological topics. They appear to have been largely devoted to a concept termed “social capital” and its relation to business en t e r prises and conflict resolution, with case studies drawn from the Middle East, particularly Israel and that country’s foreign relations. He has written various chapter- and book-length manuscrip t s o n reli giou s extremism and closely related matters, but they were not published at the time of the hearing. It may well be that Gabbay’s

more recent work will yield publications qualifying him as an expert on religious extremism in the Middle East or Muslim societies generally, but it was not an abuse of discretion for the IJ to conclude that his attainments as of April 2009 did not qualify him to provide an expert opinion useful in assessing Bouchikhi’s risk of persecution. D. Sufficiency of the Evidence We apply a highly deferential standard w h e n reviewing an IJ’s factual conclusion that an applicant is not eligible for withholding of removal. Chen v. Gonzales , 470 F. 3 d 1 1 3 1 , 1134 (5th Cir. 2006). The IJ’s findings of fact are conclusive “unless any reasonable adjudi c a t o r would be compelled to conclude to the contrary

. . . .” 8 U.S.C. § 1252(b)(4)(B); Chen , 470 F.3d at 1134. “To be eligible for withholding of re m o v a l , an applicant must demonstrate a clear probability of persecution on the basis of race, religion, nationality, membership in a particular social group, or political opinion.” Ch e n , 4 7 0 F .3d at 1138 (internal quotation ma rk s a nd citations omitted). Bouchikhi admitted he had

never been harmed, arrested, or directly threatened while in Algeria. His parents and siblings have lived there for decades without incident, and there is scant evidence that Bouchikhi is even known to the entities he claims will harm him. His assertion that he will be harmed for his political and religious beliefs is based on speculation that he will attain prominence as a religious leader and

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critic of the present regime, and thereby provoke a violent respon se from Algeria’s government or extremist opposition groups. Th e e vidence presented to the IJ does not compel the conclusi o n that Bouchikhi was eligible for withholding of removal. IV. Conclusion Bouchikhi’s petition is DISM I S S E D insofar as he challenges the IJ’s finding of fact relating to when Bouchikhi’s parole ended and the reasonableness of the delay between that event a n d his asylum application. In all other respects, the petition is DENIED.

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