* Of the Federal Circuit, sitting by designation.



# United Stat es Court of Appeals

For the First C ircuit 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. Norwoodwith whom Peter D. Keisler and Terri J. Scadron were on brief for respondent. February 19, 2004-2- LOURIE, Circuit Judge . Franck Mabik a s petitions for review of the December 20, 2002 decision of the Board of Immigration Appeals (“BIA”), which dismissed his appeal fr om t he 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 andcitizen 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 t o ex ceed 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 U nite d States Immigr a tion and Naturalization Service for political asylum and withholding of removal p ursuan t to sections 208 and 241(b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158, 1231(b)(3) (200 0), and for withholding of removal under the Torture Convention, 8 C.F.R. § 208.16 (2004). He asserted that his father hadbeen employed as either a tax collector or a customs inspector by the government of former President Pascal Lissouba, who was oustedduring the civil war, and that he and all of his family members would accordingly be targeted for persecut ion by the new government of President Denis Sassou-Nguesso.-3- On March 22, 2000, following a hearing o n th e merits of his claim, the IJ denied Mabik as’ 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 protectedgrounds on which asylum can be based . In particular, the IJ concluded that Mabikas lacked a wellfoundedfear of persecution based on a political opinion, race, religion, or nationality, and that he had not es tablished eligibility for asylum b ased o n 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 d ismissed 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 a ny of the protected grounds. Further, the BIA held, even if Mabikas had established the necessary nexus, he still wouldnot have been able to demonstrate a well-founded fear of future perse cution , 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-4-

cease-fire and amnesty efforts, as well as evidence that his father hadbeen 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 hadnot 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 connectedwith the former government, which would tend to show that his fear of future perse cut ion 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 als o is fromLissouba’s own home region, a region that routinely has been singled out for attack.-5- A motion to reopen before the BIA must be denied unless Mabikas sati sfie s two threshold requirements: (1) he must “establish ‘a prima facie case for the underlying substantive rel ief sought,’” and (2) he must “introduce ‘previou sl y unavailable, material ev iden ce.’” 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 mad e o ut 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 deniedthe 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 foundfrom(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 statu te andhis claim of persecution of his family. But the country condition reports do not demonstrate tha t the recent breakdown wouldsubject tax collectors and customs inspectors–let alone their-6-

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 pre sented or substantiatedthis 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,” andMabikas has alleged neither that he was ever harmed, threatened, or detained in the C ongo , 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 l aw is cle ar 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 asylumto 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 asylumand withholding of rem ova l for substantial evidence, reversing only if the asyl um applicant demonstrates that the-7-

eviden ce 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 t he five gr ounds enumerated in that provision, namely, race, religion, nationality, member s hip in a particular social group, or poli tical opinion. Id. § 1158; 8 C.F.R. § 208.13(b)(1),(2) (2003).

We agree with the government that the BIA’s decision is supportedby subs tan tial 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, M abik as 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 Cong o beg an. 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-8-

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 al one that the children of those officials would. Acco rdin gly, 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 or al arg ument in the present appeal, Mabikas sent a letter to the court pursuant to Fed. R. App. P. 28(j), citing El Moraghyv. Ashcroft , 331 F.3d 195 (1st Cir. 2003), in which this court vacated the denial of a Coptic Egyptian’s ap plicat ion for asylum and remanded to the BIA for further proceedings. In that case, this court heldthat 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 claimof 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) credi ble, n or didthe 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-9-

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 corroboratedMabikas’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” stand ard for as ylum. 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 obtainedfurther evidence of the reasons for the grant of asylum to his father in France, and asserts that the new evidence must be consideredby 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.-10- We accordingly affirmthe denial of the motion to reopen anddenial of asylum and withholding of removal. The order permitt ing voluntary departure stands. In light of the pending secondmotion to reopen before the BIA, we stay the issuance of the mandate for thirty days.

It is so ordered.