Not for Publication in West’s Federal Reporter


          United States Court of Appeals
                       For the First Circuit


No. 06-2347

                             LAHOUARI SAAD,

                               Petitioner,

                                     v.

                        PETER D. KEISLER,*
          ACTING ATTORNEY GENERAL OF THE UNITED STATES,

                               Respondent.



              ON PETITION FOR REVIEW OF AN ORDER OF
                 THE BOARD OF IMMIGRATION APPEALS


                                  Before

                     Torruella, Circuit Judge,
                   Selya, Senior Circuit Judge,
                     and Lipez, Circuit Judge.


     Carlos E. Estrada, on brief for petitioner.
     W. Manning Evans, Attorney, Office of Immigration Litigation,
Civil Division, U.S. Department of Justice, Peter D. Keisler,
Assistant Attorney General, Civil Division, and Mary Jane Candaux,
Senior Litigation Counsel, on brief for respondent.



                           October 19, 2007




*
   Pursuant to Fed. R. App. P. 43(c)(2), Acting Attorney General
Peter D. Keisler is substituted for former Attorney General
Alberto R. Gonzáles as respondent.
             TORRUELLA, Circuit Judge.      On August 23, 2006, the Board

of Immigration Appeals ("BIA") dismissed Petitioner Lahouari Saad's

appeal of a decision by an Immigration Judge ("IJ") rejecting his

claims of asylum, withholding of removal, and relief under the

Convention Against Torture ("CAT").         Saad now petitions for review

of the BIA's dismissal, arguing that (1) the absence of a formal

denial of Saad's asylum application in the IJ's oral decision

required the BIA to remand the case; (2) the IJ's failure to

provide     an   explanation   regarding   Saad's   ineligibility        for   an

exception to the one-year deadline for asylum claims warrants

remand; and (3) based on the evidence, the BIA erred in finding

that Saad failed to establish an objectively reasonable fear of

persecution. After consideration of Saad's arguments, we note that

we   lack   jurisdiction   to    review    the   finding   that    his   asylum

application was untimely, and on the remaining claims, we deny the

petition for review.

                                I. Background

             Saad is a thirty-nine-year-old native and citizen of

Algeria, who was admitted to the United States on July 13, 1997 on

a six-month visitor's visa and remained beyond the authorized

period.     His claims for asylum, withholding of removal, and CAT

relief stem from repeated attempts by the Islamic Salvation Front

("FIS," for its French acronym), a radical Islamic group, to

recruit Saad in his hometown of Oran in early 1997.               According to


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Saad's testimony, he was initially approached by two FIS members

when they asked him for a hotel recommendation while they stayed in

Oran, visiting a sick friend in the hospital where Saad worked.

Over the next few days, these men approached Saad three more times

outside the hospital, each time "strongly" urging him to join FIS

and help provide the group with medical supplies. When he declined

during the second encounter, the men became "very rude" and told

him they would give him some time to "think about it."         During the

final confrontation, one of the FIS members grabbed Saad by the

throat and said, "Listen, we are not kidding here."           After this

last encounter, Saad never returned to work at the hospital because

he was afraid for his life.   He immediately applied for a visitor's

visa to the United States and left Algeria six weeks later.

           During the interim six weeks, Saad had no contact with

the two FIS members.    He does not know their names, and there is no

evidence that they knew his.       Saad also stated that, as far as he

knew, the FIS members never looked for him at his house or

approached any of his seven siblings or his parents, all of whom

remained in Algeria.

           In his testimony, Saad also related two other instances

involving people he knew, which made him particularly fearful.          In

1995, a friend of Saad's was killed by the Armed Islamic Group

because he was cooperating with police in an investigation.           Saad

also   knew   another   hospital    worker   who   had   cooperated   with


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terrorists and, as a result, had "disappeared" at the hands of the

police.       Saad did not testify that he had any personal connection

to either incident.

              Upon arriving in the United States in 1997, Saad did not

immediately apply for asylum.            In 2000 or 2001, he consulted an

attorney when he purportedly won the diversity visa lottery, but

did not take any action to legalize his immigration status at that

time.     On January 28, 2003, he reported for processing under the

requirements of the National Security Entry Exit Registration

System and was served with a Notice to Appear charging him with

being removable.

              Consequently, Saad filed claims for asylum, withholding

of removal, and protection under the CAT. Because the asylum claim

was filed beyond the one-year deadline, Saad also submitted written

arguments and an affidavit alleging "changed or extraordinary

circumstances" that would excuse his failure to timely file.                  Saad

argued that his omission was a direct result of his lack of

knowledge of the asylum laws in the United States.               It is unclear

from    the    record    whether   the   IJ    ever   specifically   denied   the

exception to the one-year deadline.               However, when the IJ asked

during the proceedings whether this was "a withholding only case,"

Saad's    counsel       responded,   "Yes,     Your   Honor,   that's   correct.

Because the application for asylum is years after the fact."




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           In an oral opinion, the IJ denied Saad's applications for

withholding    of   removal   and    CAT   protection,    but    granted   him

voluntary departure and issued an alternative order of removal to

Algeria. Regarding Saad's original asylum claim, the IJ noted that

it had been "time barred in that [Saad] failed to file within the

one year limit and [Saad's] attorney concede[d] that [Saad's]

request for relief is limited to withholding of removal." A formal

order denying the asylum claim was not included in the oral

decision but was included in the written decision.

           In denying Saad's other claims, the IJ found that Saad

was "generally credible," but also found that, even assuming the

facts related by Saad were true, his past "encounters with the FIS

in   Algeria   cannot   be   said   to   amount   to   persecution"   because

persecution "must amount to an experience that rises above mere

unpleasantness, harassment, or even basic suffering." Further, the

judge also found that Saad failed to show "a clear probability that

he will be persecuted if he returns to Algeria."                Finally, with

respect to the CAT claim, the IJ concluded that Saad did not meet

his burden of proof because "[t]here is no evidence of Government

involvement in this case or any reference to torture."

           The BIA dismissed Saad's appeal, rejecting his argument

that a remand was necessary because the IJ did not formally deny

the asylum application at the conclusion of his oral decision,

concluding that "any omission . . . is harmless" and a remand would


                                     -5-
be "administratively burdensome." The BIA also concluded that Saad

had failed to show changed or extraordinary circumstances necessary

to excuse an untimely asylum application.       Finally, the BIA held

that the IJ properly dismissed the withholding of removal and CAT

claims because Saad had failed to establish past persecution or

torture, or a likelihood of future persecution or torture.

                              II. Discussion

             On this petition for judicial review, Saad claims that

(1) the absence of a formal denial of his asylum application in the

IJ's oral decision was not, as the BIA found, a harmless error; (2)

the   IJ's     failure   to   provide    reasoning   regarding   Saad's

ineligibility for an exception to the one-year deadline warranted

remand; and (3) based on the evidence, the IJ and BIA erred in

finding that Saad failed to carry his burden of establishing past

persecution or a likelihood of future persecution.

             We review the BIA's decision as the final agency order.

Mukamusoni v. Ashcroft, 

, 119 (1st Cir. 2004). Whether

or not an alien has met his burden is a determination that we

review under the deferential "substantial evidence" standard.      See

Estrada-Canales v. Gonzáles, 

, 215 (1st Cir. 2006).

Under this standard, the BIA's findings of fact are "conclusive

unless any reasonable adjudicator would be compelled to conclude to

the contrary." 8 U.S.C. § 1252(b)(4)(B).       We will thus uphold the

BIA's decision if it is "supported by reasonable, substantial, and


                                   -6-
probative evidence on the record considered as a whole." Nikijuluw

v. Gonzáles, 

, 120 (1st Cir. 2005) (quoting INS v.

Elías-Zacarías, 

, 481 (1992)).

          To establish eligibility for asylum, an alien must show

that he is a "refugee" within the meaning of the Immigration and

Nationality Act.   See 8 U.S.C. § 1158(b)(1)(A).   The alien may meet

his burden by establishing past persecution or a well-founded fear

of future persecution on account of an enumerated ground.        See

Toloza-Jiménez v. Gonzáles, 

, 161 (1st Cir. 2006). "To

qualify as persecution, a person's experience must rise above

unpleasantness, harassment, and even basic suffering."     Nelson v.

INS, 

, 263 (1st Cir. 2000).

          An alien must seek asylum within one year of entering the

United States, although the failure to file may be excused if the

alien shows "changed circumstances which materially affect the

applicant's eligibility for asylum or extraordinary circumstances

relating to the delay in filing an application."     8 U.S.C. § 1158

(a)(2)(D).   However, "[n]o court shall have jurisdiction to review

any determination of the Attorney General under [§ 1158(a)(2)]."

see Pan v. Gonzáles, 

84 (1st Cir.

2007).   Therefore, this court lacks jurisdiction to review the

BIA's finding that Saad's application was time-barred.

          If the alien does not qualify for asylum because he fails

to meet the one-year deadline, he may still qualify for withholding


                                -7-
of removal.   The burden, however, is higher, in that the applicant

must   demonstrate   that    he    is    more   likely    than   not    to   face

persecution on account of a protected ground.             Silva v. Gonzáles,

, 72 (1st Cir. 2006); see also Raza v. Gonzáles, 

, 129 (1st Cir. 2007) ("A claim for withholding of removal

carries with it a more stringent burden of proof than does a

counterpart effort to obtain asylum." (internal quotation marks

omitted)). Similarly, to qualify for protection under the CAT, the

alien must establish that it is more likely than not that he would

be tortured if he      returned to his home country.                   Stroni v.

Gonzáles, 

, 89-90 (1st Cir. 2006) (quoting 8 C.F.R.

§ 208.16(c)(2)).     Torture refers to "an extreme form of cruel and

inhuman treatment," 8 C.F.R. § 1208.18(a)(2), dealt at the hand of

or with the acquiescence of the government.              See 

.

           In this case, the BIA found that Saad had not established

a likelihood of persecution or torture.              We agree that there was

substantial   evidence      to    support     this   finding.      The       FIS's

recruitment efforts were undoubtedly unpleasant, but they did not

rise to the level of persecution or torture, see 

, and there is no reason to suspect that the FIS will

pursue Saad were he to return to Algeria.              Consequently, Saad is

not eligible for withholding of removal or CAT relief.




                                        -8-
                       III. Conclusion

          For the foregoing reasons, we deny the petition for

review.

          Denied.




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