*Of the Federal Circuit, sitting by designation.

United States Court of Appeals

For the First Circuit

No. 03-1117

FRANCK MABIKAS,

Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

No. 03-1961

FRANCK MABIKAS,

Petitioner,

v.

JOHN ASHCROFT, Attorney General,

Respondent.

ON PETITIONS FOR REVIEW OF ORDERS OF

THE BOARD OF IMMIGRATION APPEALS

Before

 Boudin, Chief Judge,

Lourie,* and Lynch, Circuit Judges.

Harvey Kaplan with whom Ilana Greenstein, Maureen O’Sullivan,

and Jeremiah Friedman were on brief for petitioner.

Anthony W. Norwood with whom Peter D. Keisler and Terri J.

Scadron were on brief for respondent.

February 19, 2004
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LOURIE, Circuit Judge. Franck Mabikas petitions for

review of the December 20, 2002 decision of the Board of

Immigration Appeals (“BIA”), which dismissed his appeal from the

decision of the Immigration Judge (“IJ”) denying his applications

for asylum and withholding of removal. Mr. Mabikas also petitions

for review of the BIA’s June 26, 2003 order denying his motion to

reopen its December 20, 2002 decision. 

Mabikas is a native and citizen of the Republic of Congo.

He legally came to the United States on October 21, 1996 as a

visitor. He was authorized to remain in the United States only for

a temporary period not to exceed September 10, 1997. In April

1997, a civil war broke out in the Congo, and Mabikas lost contact

with his family and later learned that his family’s home had been

destroyed. He subsequently applied to the United States

Immigration and Naturalization Service for political asylum and

withholding of removal pursuant to sections 208 and 241(b)(3) of

the Immigration and Nationality Act, 8 U.S.C. §§ 1158, 1231(b)(3)

(2000), and for withholding of removal under the Torture

Convention, 8 C.F.R. § 208.16 (2004). He asserted that his father

had been employed as either a tax collector or a customs inspector

by the government of former President Pascal Lissouba, who was

ousted during the civil war, and that he and all of his family

members would accordingly be targeted for persecution by the new

government of President Denis Sassou-Nguesso.
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On March 22, 2000, following a hearing on the merits of

his claim, the IJ denied Mabikas’s application for asylum and

withholding of removal because he was unable to establish that his

family’s disappearance and the destruction of their house had been

“on account of” any of the protected grounds on which asylum can be

based. In particular, the IJ concluded that Mabikas lacked a wellfounded fear of persecution based on a political opinion, race,

religion, or nationality, and that he had not established

eligibility for asylum based on a pattern or practice of

persecution of persons similarly situated to him as a member of a

particular social group. 

Mabikas appealed to the BIA. The BIA upheld the IJ’s

decision and dismissed Mabikas’s appeal in its December 20, 2002

decision. According to the BIA, Mabikas had not established that

his family’s disappearance and the destruction of the family house

were related to any of the protected grounds. Further, the BIA

held, even if Mabikas had established the necessary nexus, he still

would not have been able to demonstrate a well-founded fear of

future persecution, because a cease-fire and amnesty had been in

place in the Congo at the time of Mabikas’s trial and the country

appeared to be moving toward peace.

Approximately six months later, Mabikas filed a motion to

reopen the BIA’s decision, seeking to offer new evidence of a

decline in country conditions, including a breakdown of the earlier
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cease-fire and amnesty efforts, as well as evidence that his father

had been granted asylum in France in 2001. Observing that evidence

of a continuing civil war does not amount to changed country

conditions, and finding that Mabikas had not presented any evidence

of the basis for his father’s refugee status, the BIA declined to

reopen its decision.

On appeal, Mabikas contends that the BIA erred in

dismissing his motion to reopen his removal proceedings. According

to Mabikas, he had new evidence, previously unavailable, that would

have established those essential elements of his claim for relief

that the BIA had previously found lacking. Specifically, Mabikas

alleges that he would have proffered new evidence of the

relationship between the destruction of his family’s home and

disappearance of his family and one of the five protected grounds,

as well as evidence of a pattern and practice of abuse of persons

connected with the former government, which would tend to show that

his fear of future persecution was well-founded. Given that

Mabikas’s asylum claim was based on his father’s activities and not

his own, and given that his father was granted asylum, Mabikas

argues that evidence of his father’s refugee status is clearly

material to his claim for relief. Mabikas further argues that, not

only is he the son of a former employee of the Lissouba government,

but he also is from Lissouba’s own home region, a region that

routinely has been singled out for attack. 
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A motion to reopen before the BIA must be denied unless

Mabikas satisfies two threshold requirements: (1) he must

“establish ‘a prima facie case for the underlying substantive

relief sought,’” and (2) he must “introduce ‘previously

unavailable, material evidence.’” Fesseha v. Ashcroft, 333 F.3d

13, 20 (1st Cir. 2003) (quoting INS v. Abudu, 485 U.S. 94, 104

(1988)). Even if those two requirements are met, the BIA may still

exercise its discretion to deny relief. Id.; Abudu, 485 U.S. at

105; see 8 C.F.R. § 1003.2(a) (2004) (“The Board has discretion to

deny a motion to reopen even if the party moving has made out a

prima facie case for relief.”).

In the interest of finality, such motions to reopen are

disfavored. Abudu, 485 U.S. at 107. Where, as here, the BIA

denied the motion on the ground that “the respondent has not shown

that the new evidence is material so as to warrant reopening,” our

review is for abuse of discretion. Fesseha, 333 F.3d at 20.

Mabikas contends that a well-founded fear of persecution could be

found from (1) new country condition reports showing the breakdown

of cease-fire and amnesty efforts in the Congo and (2) the grant of

refugee status to his father in France, which established, he says,

a nexus between the political opinion requirement of the statute

and his claim of persecution of his family. But the country

condition reports do not demonstrate that the recent breakdown

would subject tax collectors and customs inspectors–let alone their
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children—to persecution. Nor do the reports demonstrate that, even

if such persecution occurred, it would be on the basis of political

opinion or any other statutory ground. As to the grant of asylum,

Mabikas presented no evidence as to the reason why France granted

his father asylum, or as to why he had not presented or

substantiated this information earlier. There was simply no abuse

of discretion.

Mabikas also argues that the BIA erred in affirming the

denial of asylum. The government responds that the BIA’s decision

is supported by substantial evidence. According to the government,

there is no precedent holding that “family members of employees of

the former government” are members of a protected “social group,”

and Mabikas has alleged neither that he was ever harmed,

threatened, or detained in the Congo, nor that he or any other

member of his family was ever a member of a political party. The

government points out that the case law is clear that fear of

general conditions of civil war or disturbance is not a basis for

an award of asylum or withholding of removal. Finally, the

government argues that the United States is not bound in any way by

France’s grant of asylum to Mabikas’s father, especially given that

Mabikas has presented no evidence of the reasons behind that grant.

We review decisions of the BIA regarding eligibility for

asylum and withholding of removal for substantial evidence,

reversing only if the asylum applicant demonstrates that the
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evidence that he presented was “so compelling that no reasonable

factfinder could fail to find the requisite fear of persecution.”

INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992). The applicant

“bears the burden of establishing eligibility for asylum by proving

either past persecution or a well-founded fear of persecution.”

Velasquez v. Ashcroft, 342 F.2d 55, 58 (1st Cir. 2003). The law

requires an asylum seeker to demonstrate that he is a refugee

within the meaning of section 101(a)(42)(A) of the Immigration and

Nationality Act, 8 U.S.C. § 1101(a)(42)(A) (2000), by adducing

evidence that such past persecution or fear of future persecution

is due to one of the five grounds enumerated in that provision,

namely, race, religion, nationality, membership in a particular

social group, or political opinion. Id. § 1158; 8 C.F.R. §

208.13(b)(1),(2) (2003).

We agree with the government that the BIA’s decision is

supported by substantial evidence. The IJ found that Mabikas’s

testimony, even if credible, failed to establish that a reasonable

person in Mabikas’s circumstances would fear persecution on the

basis of any of the protected grounds. First, Mabikas did not

allege that he was persecuted in the past. Indeed, he has been in

the United States since before the civil war in the Congo began.

Although he did claim that other family members had been victims of

some past persecution, Mabikas did not demonstrate that their

persecution was related to any of the protected grounds, as opposed
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to being simply a result of living in a place where a civil war was

being fought. Second, Mabikas provided no evidence that petty

officials such as tax collectors and customs inspectors employed by

the former government have been subject to any persecution by the

new government, and would therefore constitute a protected social

group, let alone that the children of those officials would.

Accordingly, nothing in the evidence compels the conclusion that

Mabikas proved that he reasonably feared persecution based on any

of the five protected grounds. 

Just prior to the oral argument in the present appeal,

Mabikas sent a letter to the court pursuant to Fed. R. App. P.

28(j), citing El Moraghy v. Ashcroft, 331 F.3d 195 (1st Cir. 2003),

in which this court vacated the denial of a Coptic Egyptian’s

application for asylum and remanded to the BIA for further

proceedings. In that case, this court held that the IJ’s reasoning

was faulty because the IJ appeared to have required “that the

country condition reports refer specifically to the petitioner or

his family members” before they could be treated as supporting his

claim of persecution. Id. at 204. That flaw mattered and undercut

our ability to perform judicial review because the IJ made no

determination that the petitioner was (or was not) credible, nor

did the IJ or BIA make any finding that if what El Moraghy said was

true (even if country conditions were not properly presented), then

what he presented did not amount to either past persecution or fear
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of future persecution. Those latter findings are present in this

case, however, and we conclude that El Moraghy is therefore

distinguishable from this case. Here, it appears that the IJ

merely used country condition reports for a general description of

conditions faced by residents of Mabikas’s region of the Congo in

order to evaluate whether they corroborated Mabikas’s contentions.

Because that is the proper use of such reports, id. at 204, and

because the IJ and BIA made the findings that were lacking in El

Moraghy, we conclude that El Moraghy is not relevant to this case.

Mabikas’s withholding of removal claims also fails

because the “more likely than not” standard for withholding of

removal is even more stringent than the “well-founded fear”

standard for asylum. Alvarez-Flores v. INS, 909 F.2d 1, 4 (1st

Cir. 1990).

After this appeal was filed, Mabikas filed a second

motion to reopen his case in the BIA. Mabikas has apparently

obtained further evidence of the reasons for the grant of asylum to

his father in France, and asserts that the new evidence must be

considered by the BIA. Mabikas also filed a motion requesting that

this court hold oral argument in abeyance pending the outcome of

his motion before the BIA. We denied the latter motion on January

7, 2004, but will nonetheless stay issuance of the mandate in this

case for thirty days in order to give the petitioner a chance to

press the BIA to resolve the still-pending petition.
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We accordingly affirm the denial of the motion to reopen

and denial of asylum and withholding of removal. The order

permitting voluntary departure stands. In light of the pending

second motion to reopen before the BIA, we stay the issuance of the

mandate for thirty days. 

It is so ordered.