## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 14 2005 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

NOUREDDINE CHAIB, Petitioner,

v. No. 02-9582 JOHN ASHCROFT, Attorney General, Respondent.

PETITION FOR REVIEW OF A DECISION OF THE BOARD OF IMMIGRATION APPEALS (No. A78-579-254)

Laura L. Lichter of Lichter & Associates, P.C., Den ver, Colorado, for Petitioner. Arthur L. Rabin, Attorney, Office of Immigration Li tigation (Peter D. Keisler, Assistant Attorney General, Civil Division; and Mark C. Walters, Assistant Director, with him on the brief), U.S. Department o f Justice, Civil Division, Washington, D.C., for Respondent.

Before SEYMOUR , McKAY , and MURPHY , Circuit Judges.

McKAY , Circuit Judge.

In this appeal, Noureddine Chaib (“Petitioner”) cha llenges the Board of Immigration Appeals’ (“BIA”) affirmance without opi nion of an Immigration Judge’s (“IJ”) denial of his application for asylum pursuant to 8 U.S.C. § 1158,-2-

restriction on removal pursuant to 8 U.S.C. § 1231, and restriction on removal pursuant to the Convention Against Torture (“CAT”). Petitioner, a native-born Algerian, entered the Uni ted States on October 1, 1999, because of a fear of persecution in his homel and. Petitioner stayed in this country longer than authorized and was charged with removability pursuant to 8 U.S.C. § 1227(a)(1)(B). At a hearing before the IJ , Petitioner conceded to the charge of removability but sought asylum, withholdi ng of removal, and withholding of removal pursuant to CAT based on pas t persecution and a fear of future persecution by the Algerian government and a rmed insurgent groups. Petitioner alleged that his persecution began when he discovered wrongdoing by a co-worker at the Public Treasury, agovernment entity. Petitioner was a computer engineer at the Public Tr easury and, as such, was involved in overseeing the security of financial tr ansactions. In August 1997, while reviewing employee computer activities, Petit ioner discovered that a coworker was performing unauthorized transactions. When confronted, the coworker said he would explain everything later at hi s house. Petitioner went to the co-worker’s house and was met there by two other me n who were associated with the Islamic Salvation Front (“FIS”), an armed insur gent organization. During this meeting, Petitioner was pressured to jo in the FIS and assist in transferring funds to the Armed Islamic Group (“GIA ”), a somewhat-related-3-

armed insurgent group. It was at this time that Pe titioner discovered the nature and extent of the co-worker’s activities. The co-w orker was taking money from accounts at the Public Treasury and diverting it, f or a short period of time, to accounts for the insurgent group. Because the mone y was only transferred for a short period of time, the records at the Treasury w ould report it as a mistaken transaction, but, in the interim, the transferred f unds would garner significant money in interest income for the insurgent organization. During the meeting, Petitioner was allegedly told b y one of the two men that Petitioner and his family would be killed if h e did not help in the moneytransfer scheme. In addition, the men threatened t o punish mercilessly both Petitioner and his family if he reported his co-wor ker’s activities to the government. Afraid to refuse them on the spot, Pet itioner asked for time to consider his options. Soon thereafter, he obtained a visa and went to France to think things over. Upon arriving in France, Petiti oner decided that it was not safe for him because of the large number of Algerian GIAmembers living there. Petitioner next obtained a visitor’s visa to the Un ited States. While in the United States, Petitioner determined to write a letter to his supervisor at the Public Treasury to explain his absence and the impr oper scheme that was occurring at the Treasury. Prior to writing the le tter, Petitioner learned from his mother that the two men from the FIS were arrested because of their involvement-4-

in the money-transferring scheme and that these men had implicated Petitioner. In addition, he learned that government agents had been to his house in search of him, did considerable damage to the house, and had beat his brother. After learning of this, Petitioner lost all contact with his family. The administrative record contains the 1999 State D epartment’s Country Report on Human Rights Practices for Algeria. The Report states generally that Algeria has a poor human-rights record. Of particu lar importance, the report notes that “[t]he security forces committed extraju dicial killings, routinely tortured or otherwise abused detainees, and arbitra rilyarrested and detained, or held incommunicado, many individuals suspectedof involvement with armed Islamist groups . . . .” A.R. at 124 (emphasis add ed). “The Constitution prohibits arbitrary arrest and detention; however, the securi ty forces continued to arrest arbitrarilyand detain citizens.” Id. at 127 (emphasis added). Both the Constitution and legislation ban torture a nd other cruel, inhuman, or degrading treatment; however, according to local human rights groups and defense lawyers, the police resort to torture when interrogating persons suspectedof being involved with, or having sympathies for, armed insurgency groups. There wer e several credible reports of torture at the Algiers police f acility, called Chateau Neuf. Id. at 126-27 (emphasis added). Having the above evidence before him, the IJ denied all of Petitioner’s requests. In so doing, the IJ found that Petitione r was not subjected to1 Petitioner did not appeal the IJ’s decision that Pe titioner was not subjected

to persecution in the past. Therefore, this opinio n does not address the propriety of that ruling. -5- persecution in the past 1 and that his claim of future persecution by eitherthe government or the FIS was not well-founded because Petitioner lacked credibility. Petitioner raises three issues on appeal: (1) thatthe BIA’s summary affirmance was unconstitutional as applied, (2) that the IJ failed to support his credibility finding with substantial evidence, and (3) that the IJ’s failure to specifically address his CAT claim is reversible er ror. In addition to countering the above arguments, Respondent contends that Petit ioner waived his right to appeal the IJ’s credibility finding because Petitio ner improperly incorporated by reference this argument in his opening brief. Resp ’t Br. at 22-23. In light of this Court’s order permitting supplemental briefing, com bined with Petitioner’s short supplemental brief articulating his argument regard ing the IJ’s allegedly improper credibility finding, the general justifications fornot permitting incorporation by reference are not present. See , e.g. , Gaines-Tabb v. ICI Explosives, USA, Inc. , 160 F.3d 613, 624 (10th Cir. 1998) (explaining thatcourts generally disfavor incorporation by reference because doing so allows practitioners to circumvent page limitations and complicates the judge’s respon sibilities). This Court will therefore address Petitioner’s credibility argument

. Petitioner’s claim that the BIA’s summary affirmanc e procedure is-6-

unconstitutional as applied to this case is two-fol d. First, Petitioner contends that the BIA did not follow its own rules in affirming P etitioner’s case without opinion. Second, he argues that the BIA’s summary affirmance process does not provide for meaningful review. Petitioner’s first contention, mislabeled as a cons titutional argument, is not reviewable by this Court: “[T]he decision to affir m without opinion falls squarely into the category of decisions committed to the age ncy’s discretion and beyond our jurisdiction to review.” Tsegay v. Ashcroft , 386 F.3d 1347, 1356 (10th Cir. 2004). Petitioner’s second “constitutional” argume nt ignores the other holding of Tsegaywhere this Court specifically rejected the petitio ner’s argument that the BIA’s summary affirmance procedure denied her meani ngful review. See id. at 1353. We based that decision on Yuk v. Ashcroft , 355 F.3d 1222 (10th Cir. 2004), and reasoned that the IJ’s opinion provided the required reasoned agency decision needed to satisfy the Fifth Amendment. Id

. That reasoning and holding are equally applicable to this case. Before addressing the other issues raised by Petiti oner in this appeal, a brief background of the laws under which Petitionersought protection is helpful. “A request for asylum involves a two-step process.” Yuk , 355 F.3d at 1232 (quotation omitted). The applicant must first show that he is eligible for asylum by establishing that he is a refugee. See id. Refugee status is statutorily defined-7-

as “any person who is outside any country of such p erson’s nationality . . . who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, n ationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). If the applicant satisfies that definition, the Attorney G eneral still has discretion either to grant or deny asylum. See id. at 1233. In this case, the IJ determined, at the first step, that Petitioner failed to establish that he was a refugee and, thus, held he was ineligible for asylum. There are three types of persecution sufficient to support a refugee designation: (1) he has a well-founded fear of fut ure persecution, (2) he suffered past persecution sufficient to give rise to a presu mption of future persecution, or (3) he suffered past persecution so severe that it supports an unwillingness on the applicant’s part to return to that country. Id. at 1232-33 (internal citations omitted). In this case, Petitioner argues that the IJ’s finding that he lacked credibility was not supported by substantial eviden ce as to his claim for wellfounded fear of future persecution. Persecution is “the infliction of suffering or harm upon those who differ (in race, religion, or p olitical opinion) in a way regarded as offensive and requires more than just r estrictions or threats to life and liberty.” Woldemeskel v. INS , 257 F.3d 1185, 1188 (10th Cir. 2001) (citation an d-8-

internal quotations omitted). Asylum is not the only protection offered to applic ants who claim some form of persecution in their homeland. To obtain arestriction on removal pursuant to 8 U.S.C. § 1231, an alien must “establi sh a clear probability of persecution in that country on the basis of race, r eligion, nationality, membership in particular social group, or political opinion.” Elzour v. Ashcroft , 378 F.3d 1143, 1149 (10th Cir. 2004). Differentiating a cla im for restriction on removal from asylum is the more demanding standard of proof required for restriction claims. Asylum requires proof of a “well-founded f ear” of persecution whereas restriction requires proof that persecution is “mor e likely than not.” Id. ; see also INS v. Stevic , 467 U.S. 407, 424 (1984) (“The question under [th e clear probability] standard is whether it is more likely than not that the alien would be subject to persecution.”). “The Convention Against Torture provides another ba sis for restricting removal to a particular country.” Elzour , 378 F.3d at 1150. Relief pursuant to CAT requires proof that it is more likely than not that the petitioner will be tortured if removed to that country. 8 C.F.R. § 20 8.16(c)(2) (2004). The protection provided by CAT is in some aspects broad er, but narrower in others, than restriction on removal under 8 U.S.C. § 1231. See Elzour , 378 F.3d at 1150. Although both require petitioner to meet the more-l ikely-than-not standard, it is2 The Code of Regulations provides an in-depth explan ation of what

constitutes torture under CAT. See 8 C.F.R. § 208.18(a). -9- for different purposes; restriction on removal unde r 8 U.S.C. § 1231 requires proof of persecution on account of a protected clas s, whereas CAT is not concerned with the reasoning of the persecution, ju st whether the persecution arises to the level of torture. 2 Id. (“The alien must show that the persecution at issue would be so severe as to rise to the level of torture, but he or she need not show that it would be on account of a protected cla ssification.”). In the instant case, the IJ rejected Petitioner’s r equests because “his story [did] not have a ring of truth to it, particularly his claim that he fears persecution at the hands of the government because they think h e was guilty of these crimes.” A.R. at 53. At its core, the IJ’s decision is base d on an adverse credibility finding. Although classified as a credibility dete rmination, it is important to clarify the IJ’s ruling. The IJ stated that Petiti oner’s story did not have a ring of truth, but, based on the reasons given, it is clearthat the IJ was referring to the reasonableness of Petitioner’s fear of returning to Algeria, not disbelief in the underlying facts which supported that fear. For ex ample, in support of his finding regarding persecution at the hands of the Algerian government, the IJ stated that the banking scheme reported by Petitioner is not ingenious at all and it is something that a modern computer system certainly can tap into and find out who is the guil ty party. As a result-10-

I find it is not credible his assertions that the g overnment is looking for him and that they believe he is responsible bec ause of these two people having reported him.
A.R. at 52. An IJ’s credibility determination is reviewed with deference, but the court must not blindly accept that finding; the IJ must p rovide specific, cogent reasons for not believing the petitioner. Elzour , 378 F.3d at 1152 (citations and quotation omitted). A proper incredibility determination can be based on inherent inconsistencies in the applicant’s testimony, lack of detail, or implausibility of the applicant’s story; in addition, it can be based on testimonial demeanor. Id. at 1152-53 (citations omitted). The only reason cited by the IJ for disbelieving Pe titioner in this case is the implausibility of his fear of persecution. “An IJ’ s finding that an applicant’s testimony is implausible may not be based upon spec ulation, conjecture, or unsupported personal opinion.” Id. at 1153. Rather, it must be supported by substantial evidence in the record. Id. at 1150. The IJ gave the following reasons for not crediting Petitioner’s testimony: (1) it w ould be easy for Petitioner to assert his innocence, (2) it was obvious he was notresponsible for the crime, (3) it would be easy for him to defend himself by point ing to existing records (the same records that led him to suspect his co-worker of wrong-doing), and (4) it would be easy for the government to discover the gu ilty party in light of current-11-

technology. A.R. at 51-52. Despite the plethora o f reasons given, not one is supported by record evidence. The IJ’s decision wa s in large part based on the ease in which Petitioner would have been able to as sert his innocence by availing himself of the computer records that he used to dis cover the wrongdoing of his co-worker. This finding makes several unsupported assumptions and demonstrates a view of the Algerian form of due pro cess inconsistent with that described in the State Department’s 1999 report. The government asserts that, notwithstanding the la ck of direct support for the above findings, the IJ can “apply his common se nse to Petitioner’s testimony describing how the Algerian computer records reveal ed [the co-worker’s] illegal fund transfers[] to find Petitioner not credible . . . .” Resp’t Supp. Br. at 20-21. It is true that it is within the IJ’s province to m ake reasonable conclusions based on facts in the record, and this Court will not dis turb those conclusions if supported by the record. The evidence in the record regarding the Public Tre asury’s computer system is very brief and vague. The record does no t reveal whether the computer records reviewed by Petitioner to discover the mone y-transfer scheme still exist. Indeed, the record is vague at best in describing t he nature of the hierarchical structure at the Public Treasury and the computer h ardware and software system utilized by the institution. Neither Petitioner no r Respondent presents adequate-12-

evidence as to the interworking of the computer sys tem in place at the Public Treasury. Failure to provide that evidence renders it nearly impossible to make any findings related to the computer system other t han those based on pure conjecture. The IJ effectively taking judicial not ice of the type and sophistication of the computer system utilized by the Public Treas ury is improper. In addition, there is no evidence in the record to support a fin ding that Petitioner could easily prove his innocence by tracing the illicit transfer s to his co-worker. Again, such a conclusion would require a basic understanding of b oth the hierarchical structure of the Public Treasury and the computer system used , neither of which is adequately found in the record. In addition, based on the rather incomplete record before the IJ, it appears that there is support forPetitioner’s fear of future persecution based solely on his being suspected of aiding the FIS. The State Department’s report indicates that the government h as a history of persecuting and/or torturing those who are suspected–not yet pr oven guilty–of aiding armed insurgent groups like the FIS. The fact that the IJ found otherwise demonstrates t hat he viewed the Algerian form of due process through an American le ns. There is ample evidence in the record to support a fear of persecution base d on suspicion of allegiance to an armed insurgent group regardless of the truth of the accusations. The realities of Algerian society differ greatly from ours where one is innocent until proven-13-

guilty. As noted in the State Department’s 1999 re port: “The security forces committed extrajudicial killings, routinely tortured or otherwise abused detainees, and arbitrarilyarrested and detained, or held incommunicado, many individuals suspectedof involvement with armed Islamist groups . . . .” A.R. at 124 (emphasis added). The IJ also discredited Petitioner’s fear of persec ution by the FIS: The government has been in a death struggle with th ese groups for many years and it is quite obvious that if they cou ld lay their hands on two people stealing money for their causes, cert ainly [the government] would give [Petitioner] protection as awitness in the case and protection for his job. They are in the b usiness of trying to eliminate the FIS and GIA and one would think that if they can get information to prosecute them they would do everyth ing they could to protect their source so that in the future otherwitnesses would not be afraid to come forward. A.R. at 52-53. Although the State Department’s 199 9 report on Algeria confirms that the Algerian government has long been at odds with the FIS, see , e.g. , id. at 123, the record contains no other evidence even sug gesting, let alone supporting, the IJ’s reasons for discrediting Petitioner’s fear s involving the FIS. There is no evidence in the record to support the IJ’s idea that the Algerian government has any form of a witness protection program to encoura ge citizens to come forward and testify against armed insurgent groups. Althou gh institution of a witness protection program would likely be of some assistan ce to the Algerian government in its struggle with armed insurgent org anizations, there was no-14-

evidence before the IJ to support a finding of the existence of such a program. Again, it appears that the IJ viewed the state of A lgeria’s system of due process through an American lens, ignoring the realities fa ced by Algerian citizens. The State Department’s 1999 report is in direct con tradiction to the IJ’s finding regarding the government’s ability to contr ol the group Petitioner claims to fear: Security forces usually reach the sites of massacre s too late to prevent or halt civilian casualties. . . . Althoug h the number of security incidents involving armed groups and terro rists decreased significantly[,] . . . these opposition forces comm itted numerous serious abuses and killed thousands of civilians. . . . [S]uch abuses and killings increased in the second half of [1999] . Armed terrorists continued their widespread campaign of insurgency, targeting government officials . . . .
A.R. at 124. In sum, this Court finds that the IJ failed to supp ort with substantial evidence his finding that Petitioner lacked credibi lity. However, in order to provide the agency an opportunity to further explai n or supplement the record, we reverse the BIA’s decision summarily affirming the IJ’s order and remand to the BIA for proceedings consistent with this opinion. See Elzour , 378 F.3d 1154 (internal citations omitted). In light of this Cou rt’s decision to remand the case, the Court does not address the IJ’s alleged error i n not specifically addressing Petitioner’s claim under CAT or the government’s cl aim that the IJ’s credibility finding precludes review of Petitioner’s CAT claim. Included in this Court’s-15-

remand order is the direction to not only consider but also specifically address Petitioner’s CAT claim.
REVERSED and REMANDED to the BIA for further proceedings consistent with this opinion.