Filed: Dec. 04, 2013
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-1729 ANWAR HADDAM, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. - INTERNATIONAL REFUGEE LAW PRACTITIONERS AND CLINICIANS; PROFESSOR SUSAN BENESCH, Amici Supporting Petitioner. On Petition for Review of an Order of the Board of Immigration Appeals. Argued: September 18, 2013 Decided: December 4, 2013 Before GREGORY and THACKER, Circuit Judges, and HAMILTON, Senior Circuit Judge. Petition denied in part,
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-1729 ANWAR HADDAM, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. - INTERNATIONAL REFUGEE LAW PRACTITIONERS AND CLINICIANS; PROFESSOR SUSAN BENESCH, Amici Supporting Petitioner. On Petition for Review of an Order of the Board of Immigration Appeals. Argued: September 18, 2013 Decided: December 4, 2013 Before GREGORY and THACKER, Circuit Judges, and HAMILTON, Senior Circuit Judge. Petition denied in part, g..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1729
ANWAR HADDAM,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
--------------------------
INTERNATIONAL REFUGEE LAW PRACTITIONERS AND CLINICIANS;
PROFESSOR SUSAN BENESCH,
Amici Supporting Petitioner.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: September 18, 2013 Decided: December 4, 2013
Before GREGORY and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Petition denied in part, granted in part, and case remanded by
unpublished opinion. Judge Gregory wrote the opinion, in which
Judge Thacker and Senior Judge Hamilton joined.
ARGUED: Rene Kathawala, ORRICK, HERRINGTON & SUTCLIFFE, LLP, New
York, New York, for Petitioner. Christopher C. Fuller, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
ON BRIEF: Susan M. Akram, BOSTON UNIVERSITY SCHOOL OF LAW,
Boston, Massachusetts; Malea Kiblan, KIBLAN & BATTLES, McLean,
Virginia, for Petitioner. Stuart F. Delery, Principal Deputy
Assistant Attorney General, Michael P. Lindemann, Chair,
National Security Unit, Office of Immigration Litigation, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Mark W. Danis, Alexei Klestoff, MORRISON & FOERSTER LLP, San
Francisco, California, for Amicus Professor Susan Benesch.
Steven H. Schulman, Washington, D.C., L. Rachel Lerman,
Amit Kurlekar, Saurish Bhattacharjee, AKIN GUMP STRAUSS HAUER &
FELD LLP, Los Angeles, California, for Amicus International
Refugee Law Practitioners and Clinicians.
Unpublished opinions are not binding precedent in this circuit.
2
GREGORY, Circuit Judge:
Anwar Haddam is an Algerian national and an exiled leader
of the Islamic Salvation Front party (“FIS”). When Algeria was
gripped by a military coup in 1992, Mr. Haddam fled to the
United States to seek asylum. After a labyrinth of
administrative hearings, the Attorney General denied asylum as a
matter of discretion. In addition, the Attorney General
formulated a new test to determine whether, in spite of not
qualifying for asylum, Mr. Haddam qualified for withholding of
removal under the Immigration and Nationality Act (“INA”).
8 U.S.C. § 1253(h) (1994) 1; Matter of A-H-, 23 I. & N. Dec. 774
(A.G. 2005). We conclude that the Attorney General’s new test
is not a permissible construction of the INA under step two of
Chevron. See Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 842 (1984). However, we also
conclude that the Attorney General did not abuse his discretion
in denying Mr. Haddam asylum. Accordingly, we deny the petition
for review as to the Attorney General’s denial of asylum but we
remand the matter to the Board of Immigration Appeals (“BIA”) to
1
Note that all cites to the INA are to the 1994 version of
the law. We apply the version of the INA in effect at the time
of Haddam’s asylum application. See Matter of A-H-, 23 I. & N.
Dec. at 777, n.3.
3
determine whether Mr. Haddam qualifies for withholding of
removal.
I.
Mr. Haddam is a nuclear physicist by training who turned to
politics after a career in engineering. He was elected to
Algeria’s parliament in the first round of 1991 elections as a
member of the FIS. These were the first free elections that the
authoritarian regime had allowed in Algeria, and the FIS won
them in a rout. In response to the FIS’ victory, the military
seized power and canceled the second round of elections. The
military then began violent crackdowns against the FIS. Facing
the threat of torture or death, Mr. Haddam and his family fled
Algeria. He entered the United States in 1992 to apply for
asylum.
Meanwhile, the struggle in Algeria turned increasingly
violent. Government crackdowns spawned guerilla groups such as
the Groupe Islamique Arme (GIA). In the years following
Mr. Haddam’s entry into the United States, the GIA began to
target journalists, intellectuals, tourists, and other
civilians. A murky relationship existed between the GIA and Mr.
Haddam’s FIS. The groups merged for several years to form a
united front after Mr. Haddam’s exile, but the groups then split
after the GIA executed several FIS members.
4
Throughout his exile, Mr. Haddam has been a leader of the
FIS, serving in the party’s delegation to Europe and the United
States. There is evidence that Appellant played a role in the
merger between the FIS and GIA from abroad, but this evidence is
disputed. In testimony, Mr. Haddam said that “with the help of
my leadership (indiscernible), [the GIA and FIS] joined and
within one movement.” (J.A. 610–11). The government points to
this as evidence that the merger occurred because of
Mr. Haddam’s leadership, but Mr. Haddam points to the broader
context of the testimony to argue that “my leadership” refers to
Appellant’s superiors. (J.A. 609) (referring to “my leaders
back home”). In addition, Mr. Haddam was interviewed for dozens
of news articles and scholarly publications. In these
interviews, when asked about past violent acts in Algeria,
Mr. Haddam gives verbal approval of the murder of civilians who
either backed the military coup or aided the Algerian military
by instructing soldiers on methods of torture.
As a result of these ties between the FIS and GIA, as well
as Mr. Haddam’s statements supporting or refusing to disavow
violence, the Attorney General denied Mr. Haddam asylum as a
matter of discretion. Matter of A-H-, 23 I. & N. Dec. at 783;
Immigration and Nationality Act, 8 U.S.C. § 1158(a). However,
the Attorney General remanded to the BIA to determine whether
Mr. Haddam qualified for withholding of removal. Under the INA,
5
even individuals who do not qualify for asylum can avoid
deportation upon a showing that they face a threat of
persecution. 8 U.S.C. § 1253(h)(1). In turn, this benefit of
withholding of deportation does not apply to any individual who
“ordered, incited, assisted, or otherwise participated in the
persecution of any person on account of . . . political
opinion.” 8 U.S.C. § 1253(h)(2). Thus, it remained to be
determined whether Mr. Haddam qualified under the persecutor
bar, as this subsection is known.
To aid this determination, the Attorney General formulated
a new definition of the persecutor bar based on Mr. Haddam’s
case. Under the new rule, an individual who is the leader of a
political group that has ties with an armed group is denied
withholding if there exists “evidence indicating that the leader
was instrumental in creating and sustaining . . . ties between
the political movement and the armed group and was aware of the
atrocities committed by the armed group.” Matter of A-H-, 23 I.
& N. Dec. at 785. Appellant now challenges the permissibility
of the Attorney General’s interpretation of the INA and
formulation of the persecutor bar inquiry.
II.
We review de novo whether the Attorney General’s definition
is a permissible interpretation of the INA. See Li Fang Lin v.
6
Mukasey, 517 F.3d 685, 691–92 (4th Cir. 2008). We accord
Chevron deference to the Attorney General’s interpretation of
the INA. See Negusie v. Holder,
555 U.S. 511, 516 (2009); Yi Ni
v. Holder,
613 F.3d 415, 423 (2010). First, we ask “whether
Congress has directly spoken to the precise question at issue.”
Chevron, 467 U.S. at 842. If not, we ask whether the Attorney
General’s interpretation is “a permissible construction of the
statute.”
Id. at 843.
The question before us involves interpretation of the term
“ordered, incited, assisted or otherwise participated in . . .
persecution of any person.” 8 U.S.C. § 1253(h)(2).
Specifically, we ask whether this definition can include an
individual who meets the following criteria:
1) He is the leader of a political group that has ties to
an armed group;
2) He was “instrumental in creating and sustaining the ties
between the political movement and the armed group;” and
3) He “was aware of the atrocities committed by the armed
group.” Matter of A-H-, 23 I. & N. Dec. at 785. 2
2
The Attorney General created two more categories of
evidence that could disqualify a political leader from
withholding of removal. Id. Under the second category, the
persecutor bar applies if there is “evidence that [a leader]
used his profile and position of influence to make public
statements that encouraged . . . atrocities.” Category three
excludes a leader when there is “evidence that he made
(Continued)
7
Here, relying on the plain language of the persecutor bar
and guidance from our sister circuits, we conclude that the
Attorney General’s definition is an impermissible interpretation
of the INA. While the terms “assisted” and “otherwise
participated” lack mathematical precision, these terms indicate
active involvement. As such, the persecutor bar only applies in
cases where there is a causal nexus between the applicant’s
behavior and instances of persecution. The Attorney General’s
definition does away with this nexus requirement, and for this
reason, it is impermissible under the INA.
A.
Turning to step one of Chevron, we conclude that the
language of the persecutor bar does not unambiguously resolve
the question before us. Application of the persecutor bar is
often a “difficult line-drawing problem[].” See Hernandez v.
Reno, 258 F.3d 806, 813 (8th Cir. 2001). Persecutor bar cases
are difficult because the level of involvement in an act of
persecution is a question of degree, and both sides will often
be able to advance reasonable arguments. See, e.g.,
Negusie,
555 U.S. at 517–18. In Negusie, the Supreme Court considered
statements that appear to have condoned the persecution without
publicly and specifically disassociating himself and his
movement from the acts of persecution.”
Id. These two
categories are not at issue in this appeal.
8
whether the persecutor bar reaches individuals who participated
in persecution but only because they were coerced. Because
there was “substance to both [parties’] contentions,” the Court
concluded that “the statute has an ambiguity.” Id. at 517.
Here, as in Negusie, we are confronted with a difficult question
about the outer limits of the persecutor bar, and given the
line-drawing nature of the analysis, there is substance to both
parties’ contentions. As such, we conclude that the statute
does not settle the precise question before us.
Moving to step two of Chevron, we conclude that the
Attorney General’s definition is nonetheless an impermissible
reading of the INA. Our rejection of the Attorney General’s
definition stems from the plain meaning of the statutory
language. Participating in persecution implies actual
involvement with the persecution. In common parlance, one
cannot participate in an event retroactively. Cf. United States
v. Papagno, 639 F.3d 1093, 1099 (D.C.Cir. 2011) (noting in
context of a criminal restitution law that “one cannot
ordinarily be participating in something that has not yet
begun”). Similarly, “assist” means giving “aid or support.”
American Heritage Dictionary 80 (1976). One cannot ordinarily
assist in persecution if one’s actions do not further the
persecution. As the Supreme Court has noted in interpreting the
persecutor bar, to assist or to participate in an activity, an
9
individual must take “‘some part in’ an activity, or help it to
occur.” Negusie, 555 U.S. at 544 (quoting Reves v. Ernst &
Young,
507 U.S. 170, 178–79 (1993)) (emphasis in original).
The Attorney General’s rule strains these definitions.
Recall that under the Attorney General’s construction, an
individual could be barred from relief if, as a leader of a
political group, he forges ties with an armed group that commits
or has committed atrocities, with awareness of these atrocities.
Matter of A-H-, 23 I. & N. Dec. at 785. The definition does not
make a distinction based on the timing of the atrocities. Thus,
under the Attorney General’s construction, the persecutor bar
could apply even if the atrocities occurred years before the
individual forged ties with the armed group. It could apply if
the atrocities occurred before the individual was even born.
For these reasons, every circuit court that has interpreted
the persecutor bar in the INA—both before and after the Attorney
General’s decision—concluded that a necessary element of the
persecutor bar is a causal nexus between the individual’s
actions and an actual instance of persecution. See, e.g.,
Higuit v. Gonzales, 433 F.3d 417, 421 (4th Cir. 2006) (“[A]
distinction must be made between genuine assistance in
persecution and inconsequential association with the
persecutors.”); Diaz-Zanatta v. Holder,
558 F.3d 450, 455 (6th
Cir. 2009) (“[T]here must have been some nexus between the
10
alien’s actions and the persecution.”); Chen v. U.S. Atty. Gen.,
513 F.3d 1255, 1259 (11th Cir. 2008) (conduct cannot be “merely
indirect, peripheral and inconsequential association” but rather
“active, direct and integral to the underlying persecution”);
Castaneda-Castillo v. Gonzales,
488 F.3d 17, 20 (1st Cir. 2007)
(holding that “the term ‘persecution’ strongly implies both
scienter and illicit motivation” and requires “prior or
contemporaneous knowledge” of the persecution); Xu Sheng Gao v.
U.S. Atty. Gen.,
500 F.3d 93, 99 (2d Cir. 2007) (finding
assistance “[w]here the conduct was active and had direct
consequences for the victims,” not “[w]here the conduct was
tangential...and passive in nature”); Alvarado v. Gonzales,
449
F.3d 915, 927–28 (9th Cir. 2006) (requiring “material”
assistance and noting that mere membership in a group is
inadequate); Singh v. Gonzales,
417 F.3d 736, 739 (7th Cir.
2005) (“[A] distinction must be made between genuine assistance
. . . and inconsequential association.”); Hernandez v. Reno,
258
F.3d 806, 814 (8th Cir. 2001) (noting that individuals will not
“necessarily be held responsible for any involvement with a
persecutory group” absent a showing of culpability). This
unanimity across circuits springs from the clear statutory
language. An individual cannot incite an act that has already
occurred. An individual cannot assist an act without having any
effect on the act.
11
In Singh the Seventh Circuit required a nexus between an
individual’s actions and the persecution in question. 417 F.3d
at 739. The asylum applicant in Singh was part of a Punjabi
police force accused of committing persecution. A causal nexus
is vital, the Seventh Circuit concluded, because the police
force “served legitimate law enforcement purposes and did not
exclusively engage in . . . persecution.”
Id. As such,
membership in the police force alone was not enough to support
application of the persecutor bar absent evidence that the
applicant actively assisted in persecution.
Id. By extension,
if membership in a group accused of atrocities is not enough,
then membership in a group with ties to a terrorist group is
also not enough. See
Diaz-Zanatta, 558 F.3d at 456;
Singh, 417
F.3d at 739. Like the Punjabi police force, Mr. Haddam’s FIS is
a political party with legitimate purposes. Even if the FIS had
ties with a terrorist group at one point, Mr. Haddam’s
membership in the FIS would not be enough to show that he
actively persecuted or assisted in persecuting others.
Similarly, in Castaneda-Castillo, the First Circuit
required more than incidental involvement with persecution. In
that case, which was decided after the Attorney General’s
opinion, the petitioner was part of a police patrol outside a
village where a brutal massacre occurred, but the petitioner
claimed no knowledge of the massacre. 488 F.3d at 19. The
12
First Circuit found that the persecutor bar cannot encompass
actions taken without any knowledge of the specific persecution
in question. Id. at 22. “Dictionary definitions, as well as
the Board’s own precedent, bear this out. So does common
sense.”
Id. at 20.
Thus, the determinative question in persecutor bar cases is
whether the individual’s actions have a causal nexus with
instances of persecution. As the case law suggests, factors
that aid this determination include intent, knowledge, and the
timing of the individual’s alleged assistance. An individual
who took actions with no prior or contemporaneous knowledge of
persecution is unlikely to have the requisite causal nexus. See
Castaneda-Castillo, 488 F.3d at 20–21. Scienter and intent can
aid the BIA in separating a bona fide torturer from “the bus
driver who unwittingly ferries a killer to the site of a
massacre.”
Id. at 20. Timing is a helpful indicator as well.
In certain cases, after-the-fact behavior might rise to the
level of assistance. Examples include an individual who
knowingly burns evidence of a massacre or helps a murderer evade
being discovered. See
id. However, if the alleged assistance
occurs years after persecution, it is less likely that the
behavior could be described as assisting the overall scheme that
drives the persecution.
13
While no Court of Appeals has done away with the nexus
requirement, the Third Circuit arguably came close to adopting
the Attorney General’s view in United States v. Koreh, 59 F.3d
431 (3d Cir. 1995). In Koreh, the applicant was a newspaper
editor in Hungary before World War II whose newspaper published
dozens of anti-Semitic articles. Id at 435. The Hungarian
government, which was also anti-Semitic, licensed Koreh to open
his newspaper and gave him direction on “what kinds of articles
they thought were useful.”
Id. The court ruled against Koreh
because it concluded that publishing propaganda could be counted
as assisting persecution insofar as the propaganda incited
others to murder.
Id. While Koreh did not directly persecute
others, the court found a link between the propaganda Koreh
published and the wave of persecution that Jewish Hungarians
faced. However, even in Koreh, the court refused to apply the
persecutor bar without a showing that the persecution occurred
after Koreh’s newspaper was published.
Id. Writings published
after the fact would not qualify. In contrast, the BIA relied
on Mr. Haddam’s after-the-fact language that signaled some
support for previous acts of persecution. Thus, even Koreh does
not go as far as the Attorney General’s definition, since the
Koreh court would not apply the persecutor bar to mere approval
of past events.
14
Further, the Koreh case involved application of a different
statute, the Displaced Persons Act of 1948 (the “DPA”) 3, which
uses different language and which Supreme Court precedent
suggests can be misleading in the INA context. The DPA is
problematic as a tool to interpret the INA because the two
statutes differ in key language. The DPA bars from relief
individuals who “advocated or assisted in the persecution of any
person because of race, religion, or national origin.” 64 Stat.
227 (emphasis added). The INA’s persecutor bar omits the word
“advocate,” limiting its reach only to those individuals who
assist, incite, order, or otherwise participate in the
persecution. It is unclear that the Koreh court would have
applied the persecutor bar to a propagandist absent language
that reaches those who advocate persecution.
In light of this, it is unsurprising that the Supreme Court
has cautioned against using case law on the DPA’s persecutor bar
to aid interpretation of the INA’s persecutor bar. See Negusie,
555 U.S. at 520 (noting that persecutor bars in the DPA and INA
serve different statutory purposes). Unlike in the DPA context,
the persecutor bar in the INA applies to “individuals who have
established that they would likely be persecuted if sent back to
3
Pub. L. No. 80-774, ch. 647, 62 Stat. 1009 (1948) as
amended by the Act of June 16, 1950, ch. 262, 64 Stat. 219.
15
their native country.” Xu Sheng Gao, 500 F.3d at 98. The
purpose of the DPA, meanwhile, was to make it easier for
immigrants affected by World War II to enter this country
without regard to immigration quotas.
Negusie, 555 U.S. at 518.
Accordingly, there exist reasons to be careful in applying the
persecutor bar in the INA context that are inapplicable to DPA
cases, because someone denied under the DPA’s persecutor bar
would not be returning to a country where she faces persecution
herself. Thus, the Attorney General misplaces his reliance on
authority that not only provides limited support as a general
matter but also involves a different statute with different
language and a different purpose.
In sum, the BIA’s order denying withholding of removal was
error because it relied on an interpretation of the INA that is
impermissible under step two of Chevron. The language of the
INA excludes the Attorney General’s definition, and the
unanimity across circuits reflects this. We therefore remand to
the BIA to decide whether, using a permissible interpretation of
the INA, Mr. Haddam qualifies for withholding under
§ 1253(h)(2). We emphasize that the INA’s persecutor bar does
not apply absent evidence that an individual took active steps
to assist or participate in a specific act of persecution. Mere
verbal approval of an act after the fact is not enough, nor is
16
mere membership in a group with ties to a terrorist
organization. 4
III.
Although we reverse the BIA’s decision to deny withholding
of removal, we affirm the decision to deny Mr. Haddam asylum as
a matter of discretion. Under the INA, the Attorney General has
discretion to grant asylum to individuals who qualify as
refugees. Dankum v. Gonzales, 495 F.3d 113, 115 (4th Cir.
2007). This discretion is not a blank check. Zuh v. Mukasey,
547 F.3d 504, 506 (2008). Nonetheless, there exists a small
class of cases where the Attorney General can exercise his
discretion to deny asylum, even if the withholding remedy also
applies.
Id. at 509; see Koujinski v. Keisler,
505 F.3d 534,
543 (6th Cir. 2007). For example, an individual’s involvement
with armed groups might justify a discretionary denial of
asylum, even if the individual’s involvement is not so severe
that he qualifies as a persecutor for purposes of the
withholding analysis.
4
Because our conclusion stems from the language of the
statute, we need not reach Mr. Haddam’s argument that the
Attorney General’s definition is impermissible under
international law and the First Amendment.
17
This is precisely the situation before us. The Attorney
General has discretion to deny asylum in extreme cases where
there is evidence of involvement in terrorism, even if such
involvement does not rise to the level of participation in
persecution. In contrast to issues of statutory interpretation,
which remain the province of the judiciary, 8 U.S.C.
§ 1252(b)(4) (2012), our review of the Attorney General’s
discretionary asylum decisions is more limited. We may not
substitute our own judgment for the Attorney General’s. Zuh,
547 F.3d at 514. As such, though we must correct the BIA’s
decisions when they rest on impermissible statutory
interpretations, we will not second-guess the Attorney General’s
discretionary asylum decision unless it was an abuse of
discretion. In this case, we conclude that the Attorney
General’s decision was within the bounds of his discretion.
In making the discretionary asylum decision, the Attorney
General must “weigh all relevant evidence under the totality of
the circumstances” before denying asylum. Zuh, 547 F.3d at 507.
Relevant positive factors include an applicant’s “[f]amily,
business, community and employment ties to the United States,”
“[e]vidence of good character, value or service to the
community,” and evidence of “severe past persecution and/or
well-founded fear of future persecution, including consideration
of other relief granted.”
Id. at 511. Relevant negative
18
factors include “evidence that indicates bad character or
undesirability for permanent residence” and “an actual adverse
credibility finding by the [Immigration Judge].” Id. When, as
in this case, an individual would otherwise qualify as a
refugee, discretionary denials of asylum are “‘exceedingly rare’
and are generally based on egregious conduct by the applicant.”
Id. (quoting Huang v. I.N.S.,
436 F.3d 89, 98 (2d Cir. 2006)).
Here, the Attorney General did not abuse his discretion.
To the contrary, the Attorney General addressed the relevant
positive and negative factors in a well-reasoned opinion.
Matter of A-H-, 23 I. & N. Dec. at 780–83. On the positive
side, Mr. Haddam has family in the United States, including
three children who are United States citizens. Id. at 783.
Additionally, Mr. Haddam has qualified for protection under the
Convention Against Torture, further weighing in his favor.
However, as the Attorney General’s opinion details, there is
evidence that Mr. Haddam had links to armed groups in Algeria
who used violence in combating the Algerian government,
sometimes targeting civilians. Likewise, the record is replete
with examples where Mr. Haddam approved of this violence, even
if his approval did not rise to the level of actual
participation. The Attorney General concluded that these links
and statements “strongly weigh against a discretionary grant of
asylum.”
Id. at 782. Because the Attorney General looked to
19
the totality of the circumstances and balanced the relevant
negative and positive factors, his opinion was not an abuse of
discretion. See, e.g., Kouljinski v. Keisler, 505 F.3d 534,
541–43 (6th Cir. 2007).
We also find unpersuasive Mr. Haddam’s Fifth Amendment
arguments. Mr. Haddam argues that the Immigration Judges, BIA,
and Attorney General denied him due process when they relied on
faulty evidence and refused to force the government to disclose
favorable evidence. These arguments are unavailing. Mr. Haddam
must show that there was a defect in his proceedings and that he
experienced prejudice as a result of the defect. See, e.g.,
Garza-Moreno v. Gonzales, 489 F.3d 239, 241–42 (6th Cir. 2007).
The Federal Rules of Evidence do not apply to immigration
proceedings, though immigration judges cannot rely on unreliable
evidence. Anim v. Mukasey,
535 F.3d 243, 256–57 (4th Cir.
2008).
Here, the Attorney General relied on a series of newspaper
articles and foreign policy publications as evidence that
Mr. Haddam supported violence. Mr. Haddam argues that these
articles lack reliability. We disagree, finding that the
articles that the Attorney General relied on are sufficiently
trustworthy. While the articles, like most journalism, contain
layers of hearsay, the articles that the Attorney General cites
include articles from the British Broadcasting Corporation,
20
Amnesty International, and Human Rights Watch. The articles are
not inherently suspicious or problematic, and even if a handful
of articles are relatively less reliable, the Attorney General
relied on dozens of reports to reach his conclusion. One bad
apple will not spoil the bunch.
The allegedly favorable evidence not given to Mr. Haddam
consists of statements during telephone conversations made by
Mr. Haddam himself. At best, this evidence would show that Mr.
Haddam had limited contact with the FIS or GIA. However, this
does not rebut the basis for the Attorney General’s
discretionary denial of asylum, since this denial was based on
Mr. Haddam’s testimony as well as news reports showing that Mr.
Haddam had links to both groups. As such, even if the
withholding of exculpatory evidence violates Due Process in this
setting, which we do not decide, Mr. Haddam would be unable to
show prejudice from the alleged defect.
IV.
For the foregoing reasons, we deny the petition for review
in part and we grant the petition in part and remand the case to
the BIA to decide whether there is a strong enough nexus between
21
Mr. Haddam’s behavior and actual instances of persecution that
would warrant application of the persecutor bar.
PETITION DENIED IN PART,
GRANTED IN PART,
AND CASE REMANDED
22
