IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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

from an Immigration Judge’s (IJ) decision pretermitting his application for

asylum and denying his application for withholding of removal. We DISMISS

Bouchikhi’s petition insofar as he challenges certain factual findings that we

lack jurisdiction to review. In all other respects, the petition is DENIED.

United States Court of Appeals

Fifth Circuit

F I L E D

March 8, 2012

Lyle W. Cayce

Clerk

 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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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 because 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 set to expire 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 pending

application for adjustment of status. He left the United States in January 2006

and returned in February 2006. DHS denied Bouchikhi’s application for

adjustment of status on March 9, 2007. DHS also revoked his non-immigrant

religious worker 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 Notice to Appear, 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 those

applications at a hearing in April 2009.

Bouchikhi contended that the Algerian state oppresses any outspoken

advocate of democracy or critic of its conduct. He also contended that various

opposition groups in Algeria hold extreme religious views, and that they

threaten violence against moderate religious leaders like himself. Bouchikhi

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testified that before he moved to the United States he lived for seven years in

Malaysia. After moving to the United States he returned to Algeria to visit his

mother. Most of his family still resides in Algeria, including his parents and

seven of his ten siblings. Bouchikhi attempted to present expert testimony of Dr.

Shaul Gabbay, a professor at the University of Denver in the School of

International Studies. Bouchikhi called Gabbay as an expert on religious

extremism in the Muslim world, but the IJ did not permit 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 after the 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 relaxing the one-year deadline

under 8 U.S.C. § 1158(a)(2)(D).

The BIA dismissed 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 challenging an order of removal. 8 U.S.C.

§ 1252(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

standard. 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 reasonable adjudicator would be

compelled to conclude to the contrary . . . .” 8 U.S.C. § 1252(b)(4)(B). But we

lack jurisdiction to review 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 to file his

asylum application “within 1 year 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 first argument

presents a question of law regarding the meaning of “arrive” as it is used in

these provisions. The parties agree that Bouchikhi was paroled when he

returned to the United States in February 2006, 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 meant 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 Cir. 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 BIA rejected the Second

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Circuit’s view that “last arrival” in § 1208.4(a)(2)(ii) does not include arrivals 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. at 683. The BIA

relied on the ordinary meaning of “arrive,” which “is defined as ‘to come to a

certain point in the course of travel; reach one’s destination’ and ‘to come to a

place after traveling.’” Id. (citing THE RANDOM HOUSE DICTIONARY OF THE

ENGLISH LANGUAGE 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

from ordinary usage when applying 8 U.S.C. § 1158(a)(2) and 8 C.F.R.

§ 1208.4(a)(2)(ii). “Arriving alien” is a legal term of art explicitly defined in

8 C.F.R. § 1.2. The definition 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

port-of-entry, and regardless of the means of transport. An arriving

alien remains an arriving alien even if paroled pursuant to section

212(d)(5) of the Act, and even after any such parole is terminated or

Joaquin-Porras v. Gonzales, 435 F.3d 172, 178-80 (2d Cir. 2006). 1

E.g., Oxford English Dictionary Online, http://www.oed.com/ (defining “arrive” as “To 2

come to the end of a journey, to a destination, or to some definite place; to come upon the

scene, make one’s appearance.”);Merriam-Webster Online, http://www.merriam-webster.com/

(defining “arrive” as “To reach a destination” or “to make an appearance”).

At the time of Bouchikhi’s hearing, the definition was found in 8 C.F.R. § 1.1(q) (2009). 3

The text has not 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 departure from and return to the United States, will not be

treated, solely by reason of that grant of parole, as an arriving alien

under section 235(b)(1)(A)(i) of the Act.

Some aliens remain in that situation for months or years. But that does not

support Bouchikhi’s theory that a fictionally prolonged “arriving” is continuously

carried on during that time. Section 1.2’s definition 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 regulations. 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 on 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 satisfaction 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

Bouchikhi’s “arrival” occurred more than a year before his asylum application under

4

both the BIA’s interpretation of 8 C.F.R. § 208.4(a)(2)(ii) and the interpretation the Second

Circuit adopted in Joaquin-Porras, 435 F.3d at 180. We express no view as to which

interpretation is correct.

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he “filed the application within a reasonable period given those circumstances.” 

8 C.F.R. § 1208.4(a)(5). Possible extraordinary circumstances include being

paroled or maintaining 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).

Although 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 the October 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]aiting more than 11

years to file an asylum application [was] not reasonable in the Court’s view.” 

The 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 well, 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” category includes paroled aliens as well as aliens whose parole

5

has terminated. 8 C.F.R. § 1.2.

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terminates without written notice when an alien departs from the United States,

or at the expiration of the fixed 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.F.R.

§ 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 notice to appear in December 2008. 

He does not 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 denied. 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 Cir. 2005). In any event, they lack merit. Bouchikhi

points out that § 212.5(e)(1)(ii) requires that an alien whose parole terminates

We note, however,thatthe administrative record includes an I-94 form indicating that

6

Bouchikhi’s parole was authorized for a fixed period ending on February 4, 2007.

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at the expiration of its authorized period be “processed in accordance with

paragraph (e)(2).” Paragraph (e)(2) requires that DHS either remove or reparole an alien whose parole has terminated. That, Bouchikhi argues, means

that (e)(1)(ii)’s automatic termination of parole does not occur until “expiration

of the authorized term AND the mandatory . . . commencement 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 departure . . . or, (ii), if not

departed, at the expiration of the time for which parole was authorized, and in

the latter case the alien shall be processed in accordance with paragraph (e)(2)

of this section except that no written notice shall be required.” 8 C.F.R.

§ 212.5(e)(1) (emphasis added). Bouchikhi’s interpretation of 8 U.S.C.

§ 1182(d)(5)(a) relies on language requiring that a non-departed alien whose

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 fails 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 for 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 and 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 that the sole test for admission of evidence at a

deportation proceeding is whether it “is probative and its admission 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 not 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). To prevail,

however, the alien must show substantial prejudice. Id. Under the

circumstances of this case, that showing requires at least that the IJ’s

assessment of Gabbay’s expertise was an abuse of discretion. That is the

standard we apply when considering a district court’s determination of the

admissibility of expert evidence. French v. Allstate Indem. Co., 637 F.3d 571,

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 Federal 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 Rules lends

strong support to the conclusion 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 expert by knowledge, skill, experience, training, or education.’” Id. at 459

(quoting FED. R. EVID. 702). “An expert has ‘scientific, technical, or other

specialized knowledge [that] will assist the trier of fact to understand the

evidence or to determine a fact in issue.’” Id. (quoting FED. R. EVID. 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 peremptorily refused to

consider the possibility that he might have any applicable expertise. Bouchikhi’s

counsel elicited testimony from Gabbay about his research on religious

extremism in Muslim societies. But the IJ categorically rejected the possibility

that any expertise other than specialization in Algeria could qualify a witness

to offer an opinion about what 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 hear counsel out regarding how that

expertise will bear on the material issues. 

In this case we do not find 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 the Muslim world. I am

educated from Columbia University, I received a PhD. [sic], and I went

and did a doctorate at the University of Chicago, all focusing on the

sociology of the Muslim World [sic]. I teach classes, which of course

Algeria and the challenges and also the opportunities there. [sic] 

They are of importance and [an] integral part of the 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 important cases there. I have my publications, I presented

numerous papers and manuscripts, et cetera, where Algeria is an

important part of it and what has happened in Algeria. I am qualified

as an expert 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. indicates that in the last ten years he has taken a sustained

professional interest in religious extremism, and a good deal 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

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politics and conflict in that region, as well as a course on “the networking of

terrorism.” But his dissertation and peer-reviewed publications were on

different sociological topics. They appear to have been largely devoted to a

concept termed “social capital” and its relation to business enterprises 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 manuscripts on religious 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 when reviewing an IJ’s factual

conclusion that an applicant is not eligible for withholding of removal. Chen v.

Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006). The IJ’s 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); Chen, 470 F.3d at 1134. “To be

eligible for withholding of removal, 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.” Chen, 470 F.3d at 1138

(internal quotation marks and 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 response from

Algeria’s government or extremist opposition groups. The evidence presented

to the IJ does not compel the conclusion that Bouchikhi was eligible for

withholding of removal.

IV. Conclusion

Bouchikhi’s petition is DISMISSED 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 and his asylum application. In all other

respects, the petition is DENIED.

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