Not for Publication in West's Federal Reporter

United States Court of Appeals

For the First Circuit

No. 06-2587

CHERIF BOUKHTOUCHEN,

Petitioner,

v.

ALBERTO GONZALES,

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF

THE BOARD OF IMMIGRATION APPEALS

Before

 Torruella, Circuit Judge,

Stahl, Senior Circuit Judge,

and Howard, Circuit Judge.

Kevin P. Martin and Goodwin Procter LLP on brief for

petitioner.

John P. Devaney, Trial Attorney, Office of Immigration

Litigation, Civil Division, U.S. Department of Justice, Peter D.

Keisler, Assistant Attorney General, Civil Division, and Carol

Federighi, Senior Litigation Counsel, on brief for respondent.

August 10, 2007
The Immigration Judge denied petitioner's application for 1

asylum because he had not sought asylum within one year of arriving

in the United States nor established that an exception to that

deadline applied. See 8 U.S.C. § 1158(a)(2)(B) & (D). The BIA

affirmed that decision. Petitioner does not seek review of that

decision, nor the decision to deny him protection under the

Convention Against Torture. He petitions for review only of the

decision to deny him withholding of removal.

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PER CURIAM. Cherif Boukhtouchen petitions for review of

a decision of the Board of Immigration Appeals ("BIA") affirming an

order of removal against him. We deny the petition.

We recount the facts as presented in petitioner's oral

testimony and in the documentation he submitted in support of his

application for asylum. Petitioner is a citizen of Algeria and a

member of that country's Berber minority. In his application for

asylum and withholding of removal, petitioner described several 1

events in the 1960s, '70s, and '80s, during the period of military

rule in Algeria, when he faced harassment, such as being briefly

arrested following a political demonstration, police yelling at him

for speaking in the Kabylian language of the Berber minority, and

once having his car shot at by unknown assailants. 

In the late 1980s, petitioner worked toward achieving

some autonomy for the Berber regions of Algeria. He wrote and

distributed a pamphlet arguing for federalism, and attempted,

unsuccessfully, to start a political party with the goal of

implementing federalism, multiparty democracy, and minority rights.

By 1993, petitioner felt that the government was beginning to crack
On March 1, 2003, the functions of the INS were transferred 2

to the Department of Homeland Security. Homeland Security Act of

2002, Pub. L. No. 107-296, § 471(a), 116 Stat. 2135, 2205 (codified

at 6 U.S.C. § 291(a)).

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down on opposition. Although the government did not confront him,

he feared that his ethnic and political background, his writings,

and his frequent trips abroad would make him a target for

government pressure, and he left the country. From 1993 to 1999 he

lived in Niger and Benin, with a brief return to Algeria in 1998.

In 1999, petitioner came to the United States and

overstayed his visa. On or about January 10, 2003, the Immigration

and Naturalization Service ("INS") filed a Notice to Appear, and 2

on September 4, 2003, petitioner filed his application for asylum

and withholding of removal. On March 22, 2005, an Immigration

Judge denied his application, a decision that was affirmed by the

BIA on October 16, 2006.

We review the decision of the BIA as the final agency

order. Mukamusoni v. Ashcroft, 390 F.3d 110, 199 (1st Cir. 2004);

Georcely v. Ashcroft, 375 F.3d 45, 49 (1st Cir. 2004) ("When the

BIA issues its own opinion, we review the Board's decision and not

the immigration judge's."). We review the factual determinations

of the BIA under the deferential "substantial evidence" standard.

Orelien v. Gonzales, 467 F.3d 67, 70 (1st Cir. 2006). Under this

standard, we will uphold a decision of the BIA if "'supported by

reasonable, substantial, and probative evidence on the record
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considered as a whole.'" INS v. Elias-Zacarias, 502 U.S. 478, 481

(1992) (quoting 8 U.S.C. § 1105a(a)(4) (1988)). "This means that

the BIA's determination must stand unless 'any reasonable

adjudicator would be compelled to conclude to the contrary.'"

Rodriguez-Ramirez v. Ashcroft, 398 F.3d 120, 124 (1st Cir. 2005)

(quoting 8 U.S.C. § 1252(b)(4)(B)).

To qualify for withholding of removal, the petitioner

must show that his "life or freedom would be threatened in [the

removal] country because of [his] race, religion, nationality,

membership in a particular social group, or political opinion." 8

U.S.C. § 1231(b)(3)(A). "As a general rule, withholding is

mandatory if an alien 'establish[es] that it is more likely than

not that [he] would be subject to persecution on one of the

specified grounds.'" INS v. Aguirre-Aguirre, 526 U.S. 415, 419

(1999) (quoting INS v. Stevic, 467 U.S. 407, 429-30 (1984)); accord

Albathani v. INS, 318 F.3d 365, 372-73 (1st Cir. 2003) (applying

"more likely than not" standard). This is a tougher standard than

that for asylum, which requires only a "well-founded fear of

persecution." 8 U.S.C. § 1101(a)(42)(A); see Aguilar-Solis v. INS,

168 F.3d 565, 569 n.3 (1st Cir. 1999) (contrasting "well-founded

fear of persecution" with "clear probability of persecution").

"If the applicant is determined to have suffered past

persecution in the proposed country of removal [based on one of the

protected grounds] it shall be presumed that the applicant's life
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or freedom would be threatened in the future in the country of

removal on the basis of the original claim." 8 C.F.R. §

1208.16(b)(1)(i). "To qualify as persecution, a person's

experience must rise above unpleasantness, harassment, and even

basic suffering." Nelson v. INS, 232 F.3d 258, 263 (1st Cir.

2000).

The BIA found that petitioner had not presented evidence

sufficient to show past persecution. The few events of harassment,

the BIA found, did not rise to the level of persecution, and

neither the petitioner nor his family members had ever been

targeted by the Algerian government. As the petitioner states in

his application for asylum, "I never personally experienced

significant harm or mistreatment. I did experience some forms of

threats that were generalized and regarded as ordinary in Algeria

at the time when they occurred." In his petition for review, the

petitioner does not give an argument, nor do we see one, against

the BIA's conclusion that he did not suffer past persecution, and

thus we turn to the issue of future persecution. See United States

v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

Having failed to establish past persecution, petitioner

is not entitled to a presumption of future persecution.

Palma-Mazariegos v. Gonzales, 428 F.3d 30, 35 (1st Cir. 2005). He

bears the burden of proving that it is more likely than not that he

will be persecuted based on a statutorily protected ground if he is
Petitioner argues that it was inappropriate to look to the 3

treatment of his family members in determining the likelihood of

petitioner being persecuted if he returns to Algeria, because his

situation is not identical to theirs. This is mistaken; relatives'

situations in the home country, while not conclusive, are certainly

relevant. See Aguilar-Solis, 168 F.3d at 573 ("Without some

explanation, the fact that close relatives continue to live

peacefully in the alien's homeland undercuts the alien's claim that

persecution awaits his return"); In re A-E-—, 21 I. & N. Dec. 1157,

1160 (BIA 1998) (en banc) (holding that the reasonableness of an

alien's fear of persecution is reduced when his family remains in

his native country unharmed for a long period of time after his

departure).

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deported to Algeria. Chahid Hayek v. Gonzales, 445 F.3d 501, 508

(1st Cir. 2006). 

The petitioner's claim, essentially, is that as a

politically active member of the Berber minority, he is likely to

face persecution if he returns to Algeria. He points to evidence

of mistreatment of Berbers, including violence and death following

protests and riots by members of the Berber minority, and the

detention and beating of a prominent Berber activist, Belaid

Abrika. The BIA found that this was not sufficient to show

persecution, because the petitioner was not able to show that he

would be specifically targeted by the Algerian government, and

because he was not affiliated with Abrika other than through their

shared ethnicity. The BIA further noted that the petitioner was

unable to support his claim with evidence of persecution of family

members in Algeria.3

Petitioner's argument in his petition for review is not

so much that substantial evidence compels an alternative result,
Petitioner also argues that the BIA "applied an incorrect 4

legal standard" when it noted that there is no evidence that

petitioner is currently being targeted by the Algerian government.

This is without merit. Whether or not a person is currently being

targeted by a government is certainly relevant to the question of

whether he is likely to be persecuted in the future, and the BIA

was entitled to rely on that evidence. See, e.g., Chahid Hayek,

445 F.3d at 508.

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but rather that the BIA did not sufficiently consider all the

evidence or sufficiently explain its conclusion. To support his 4

argument, petitioner looks to the case of Halo v. Gonzales, 419

F.3d 15 (1st Cir. 2005), in which we stated that "[w]e may remand

. . . if the BIA's opinion fails to 'state with sufficient

particularity and clarity the reasons'" for its conclusion. Id. at

18 (quoting Gailius v. INS, 147 F.3d 34, 46 (1st Cir. 1998)).

However, as Halo and Gailius make clear, our concern is with

situations where the BIA has made a perfunctory decision to deny

relief in cases where the administrative record could support the

opposite conclusion. Halo, 419 F.3d at 19 (stating that the

evidence presented a strong argument for persecution, and the BIA

did not give its reasons for concluding the opposite); Gailius, 147

F.3d at 46 (stating that "the documentary evidence alone, if

genuine, could well cause us to question the conclusion that there

is no well-founded fear of persecution"); accord Xu v. Gonzales,

424 F.3d 45, 46 (1st Cir. 2005) ("We held in Halo that, where the

administrative record of a case could easily be thought to compel

a conclusion contrary to the one reached by the BIA, it is
Petitioner argues that the BIA "inappropriately provided no 5

weight" to the evidence of Abrika's treatment. This is also

without merit. The BIA considered the evidence and determined

that, because petitioner was not affiliated with Abrika's party and

did not approach Abrika's prominence, Abrika's treatment did not

support petitioner's claim that he would be treated in a similar

manner. We see no error in this.

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incumbent on the agency to give some reasoned explanation for the

conclusion it reached."); Sulaiman v. Gonzales, 429 F.3d 347, 350

(1st Cir. 2005) (holding that the agency "is obligated to offer

more explanation when the record suggests strong arguments for the

petitioner that [the agency] has not considered") (citing Halo, 419

F.3d at 15, and Gailius, 147 F.3d at 34).

Here, the BIA addressed petitioner's main arguments: his

previous detentions by the government; his membership in the Berber

minority; his political activism; and the arrest and detention of

a prominent Berber activist. The BIA also stated that it reviewed 5

the documentary evidence, which included reports on human rights in

Algeria from the U.S. Department of State and other governments,

and found that they did not support a claim of future persecution.

Given that the record does not "suggest[] strong arguments for the

petitioner," id., the BIA's treatment of his arguments was

sufficient. Furthermore, we are not compelled, on this record, to

conclude that it is more likely than not that petitioner will be

persecuted if he returns to Algeria.

The petition for review is denied.