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In re A-H-, Respondent

Decided by Attorney General January 26, 2005

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) The Attorney General denied asylum in the exercise of discretion to a leader-in-exile of

the Islamic Salvation Front of Algeria who was associated with armed groups that

committed widespread acts of persecution and terrorism in Algeria, because the United

States has significant interests in combating violent acts of persecution and terrorism, and

it is inconsistent with these interests to provide safe haven to individuals who have

connections to such acts of violence.

(2) Terrorist acts committed by the armed Islamist groups in Algeria, including the bombing

of civilian targets and the widespread murders of journalists and intellectuals on account

of their political opinions or religious beliefs, constitute the persecution of others.

(3) A person who is a leader-in-exile of a political movement may be found to have “incited,

assisted, or otherwise participated in” acts of persecution in the home country by an

armed group connected to that political movement where there is evidence indicating that

the leader (1) was instrumental in creating and sustaining the ties between the political

movement and the armed group and was aware of the atrocities committed by the armed

group; (2) used his profile and position of influence to make public statements that

encouraged those atrocities; or (3) made statements that appear to have condoned the

persecution without publicly and specifically disassociating himself and his movement

from the acts of persecution, particularly if his statements appear to have resulted in an

increase in the persecution.

(4) The phrase “danger to the security of the United States” means any nontrivial risk to the

Nation’s defense, foreign relations, or economic interests, and there are “reasonable

grounds for regarding” an alien as a danger to the national security where there is

information that would permit a reasonable person to believe that the alien may pose such

a danger.

(5) The Attorney General remanded the record for further consideration by the Board of

Immigration Appeals of the questions whether (1) there is sufficient evidence to indicate

that the respondent “incited, assisted, or otherwise participated in the persecution” of

others; (2) deference should be given to the credibility findings of the Immigration Judge;

(3) there are “reasonable grounds for regarding [the respondent] as a danger to the

security of the United States”; (4) the respondent presently faces a threat to his life or

freedom if removed to Algeria; and (5) the respondent presently faces a likelihood of

being tortured in Algeria.

FOR APPLICANT: Malea Kiblan, Esquire, McLean, Virginia

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FOR DEPARTMENT OF HOMELAND SECURITY: Andrew Arthur, Associate General

Counsel

BEFORE THE ATTORNEY GENERAL

(January 26, 2005)

This matter was referred to the Attorney General by the Acting

Commissioner of the Immigration and Naturalization Service from the

decision of the Board of Immigration Appeals (“BIA”) granting respondent

asylum. Matter of A-H- (BIA 2000). The BIA’s decision is vacated in its

entirety, respondent is found excludable and ordered excluded, respondent’s

application for asylum is denied, and respondent’s applications for

withholding of deportation and deferral of removal to Algeria are remanded

for further proceedings consistent with this opinion.

OPINION

This matter was referred to the Attorney General by the Acting

Commissioner of the Immigration and Naturalization Service (“INS” or

“Service”) from the decision of the Board of Immigration Appeals (“BIA” or

“Board”) granting respondent asylum. Matter of A-H- (BIA 2000). For the

reasons set forth below, I vacate the BIA’s decision in its entirety, find

respondent excludable and order him excluded, deny respondent’s application

for asylum, and remand respondent’s applications for withholding of

deportation and deferral of removal to Algeria for further proceedings

consistent with this opinion.

I. BACKGROUND

Respondent, an Algerian national, has been active in the Algerian Islamist

movement for decades and is a self-proclaimed leader-in-exile of the Islamic

Salvation Front of Algeria, known by its French acronym “FIS.” The FIS

appeared to be on the verge of winning parliamentary elections in Algeria in

1992 when the elections were canceled by the Algerian Government. For

some years thereafter, Algeria was wracked by internal conflict between

security forces and armed Islamist groups bent on overthrowing the

Government. As the State Department reported in 1997:

Most sources estimate that [in the mid-1990s] an average of 10,000 people were killed

every year . . . . Both sides committed abuses. There is convincing evidence that the

security forces carried out dozens of extrajudicial killings and often tortured and

otherwise abused detainees . . . .

Armed Islamic groups also committed abuses and atrocities. Terrorists carried out

widespread attacks on innocent civilians. They assassinated political figures,

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journalists, academics and thousands of other civilians as well as a number of

foreigners. . . . Terrorists using bombs and car bombs attacked electric pylons,

telephone exchanges, schools, bridges, police and military headquarters, local

government offices, and railroad trains and tracks. Car bombs caused hundreds of

civilian deaths.

Two of the most active and violent armed Islamist groups in Algeria were

the Armed Islamic Group, or “GIA,” and the Islamic Salvation Army, or

“AIS.” The AIS has been identified as the armed wing of the FIS. In May

1994, the GIA, the AIS, and other armed Islamist groups joined under one

banner and became known collectively as the GIA. The record indicates that

these armed groups engaged in terrorism and widespread persecution of

civilians in Algeria. The Secretary of State has designated the GIA as a

“foreign terrorist organization” for its activities during the mid-1990s. The

State Department determined that these groups targeted journalists for

assassination “because they are viewed as supportive of the Algerian

government and antagonistic toward the goals of these militants” and

murdered intellectuals who were deemed “unsympathetic to the Islamic cause

as defined by Islamic militants.” The AIS issued a statement in August 1994

labeling journalists “Enemies of the Nation” and vowing that they would

“receive the implementation of God’s law.” An Amnesty International report

introduced into evidence by respondent states that between mid-1993 and

November 1996 more than 60 journalists in Algeria died in killings “believed

to have been carried out by armed opposition groups.” Human Rights Watch

reported, “Between March and November 1993, some twenty members of the

intelligentsia were murdered, . . . includ[ing] seven journalists, . . . [a]

professor of law, . . . [and] a physician and human rights activist.” A

September 1994 report from Jane’s Intelligence Review states that the GIA

was responsible for numerous murders of intellectuals from the beginning of

the conflict, including the August 1994 murder of the director of the

Agronomy Institute at Blida University. The GIA targeted civilians not only

on the basis of their political opinions but also on account of their religion.

As the State Department report related, “In 1994, the GIA declared its

intention to eliminate ‘Jews, Christians, and Polytheists’ from Algeria.”

Respondent fled from Algeria in 1992 and first applied for asylum in the

United States in 1993. The INS denied respondent’s application in 1996

based on evidence that he was complicit in acts of terrorism and persecution

in Algeria, and thereafter detained respondent and initiated exclusion

proceedings against him on the ground that he lacked a valid entry document

pursuant to section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act,

8 U.S.C. § 1182(a)(7)(A)(i)(I) (1994).1 In 1997, an Immigration Judge found

1

On March 1, 2003, after the events in question here, the INS ceased to exist as an agency

within the Department of Justice, and its functions of processing applications for asylum and

(continued...)

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respondent excludable under section 212(a)(7)(A)(i)(I), denied respondent’s

request for asylum and withholding of deportation, and ordered him excluded

and removed from the United States. Matter of A-H- (I.J. 1997). The BIA

reversed and remanded for a new hearing after concluding that the record was

insufficient to support deportation. Matter of A-H- (BIA 1998). On remand,

a second Immigration Judge heard additional evidence and again concluded

that respondent was excludable, denied his request for asylum and

withholding of deportation, and ordered him excluded and removed, but

deferred his removal to Algeria pursuant to the law and regulations

implementing the Convention Against Torture. Matter of A-H- (I.J. 1999).2

Respondent appealed, and the BIA once again reversed, this time ordering

that respondent be granted asylum in the United States. Matter of A-H- (BIA

2000). In its decision, the BIA made several determinations: First, the BIA

determined that the INS failed to offer sufficient evidence to indicate

respondent had “ordered, incited, assisted, or otherwise participated in the

persecution of any person on account of race, religion, nationality,

membership in a particular social group, or political opinion” for purposes of

establishing respondent’s ineligibility for asylum pursuant to 8 C.F.R.

§ 208.13(c) (2000) and for withholding of deportation under former section

243(h)(2)(A) of the Act, 8 U.S.C. § 1253(h)(2)(A) (1994). See also section

101(a)(42) of the Act, 8 U.S.C. § 1101(a)(42) (1994) (“The term ‘refugee’

does not include any person who ordered, incited, assisted, or otherwise

participated in the persecution of any person . . . .”); section 208(b)(2)(A)(i)

of the Act, 8 U.S.C. § 1158(b)(2)(A)(i) (2000) (setting forth the same bar to

eligibility for asylum applications filed on or after April 1, 1997); 8 C.F.R.

§ 1208.13(c)(2)(E) (2005) (prescribing a bar to eligibility for asylum

applications filed before April 1, 1997).3 Second, the BIA rejected the

1

(...continued)

enforcing the immigration laws were transferred to components of the Department of

Homeland Security, pursuant to the Homeland Security Act of 2002, Pub. L. No. 107-296,

§§ 441, 447, 116 Stat. 2135, 2192, 2205.

2

See Omnibus Consolidation and Emergency Supplemental Appropriations Act of 1999,

Pub. L. No. 105-277, § 2242, 112 Stat. 2681, 2681-822; Regulations Concerning the

Convention Against Torture, 64 Fed. Reg. 8478 (INS Feb. 19, 1999) (codified at 8 C.F.R.

§§ 1208.16-1208.18 (2005)); United Nations Convention Against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85 (entered

into force June 26, 1987).

3

Because respondent’s application for asylum was filed before April 1, 1997, his case is

subject to the law in effect prior to the amendments made by the Illegal Immigration Reform

and Immigrant Responsibility Act of 1996, Division C of Pub. L. No.104-208, 110 Stat.

3009-546 (“IIRIRA”). See IIRIRA §§ 309, 604(c), 110 Stat. at 3009-625, 3009-692.

Accordingly, except where indicated otherwise, I have cited the 1994 edition of the United

States Code throughout this opinion. The substantive provisions governing respondent’s

(continued...)

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Immigration Judge’s findings on the credibility of respondent’s testimony in

response to the INS’s evidence. Third, the BIA determined that there were

insufficient grounds to regard respondent as a danger to the security of the

United States under section 208(b)(2)(A)(iv) of the Act (asylum) and former

section 243(h)(2)(D) of the Act (withholding of deportation). See also

8 C.F.R. § 1208.13(c)(2)(C) (exception to asylum for cases filed before

April 1, 1997). Fourth, the BIA concluded that it was inappropriate to deny

respondent asylum as an exercise of the Attorney General’s discretion under

section 208(b)(1) of the Act and 8 C.F.R. § 208.14(a) (2000). Fifth, the BIA

reversed the Immigration Judge’s finding that respondent was inadmissible

under section 212(a)(3)(B) of the Act based on a reasonable ground to believe

respondent had engaged in or was likely to engage in terrorist activity.

Finally, the BIA agreed with the Immigration Judge that respondent was

eligible for deferral of removal to Algeria under the Convention Against

Torture.

The Acting Commissioner of the INS referred the BIA’s decision to the

Attorney General, and on January 19, 2001, the Attorney General certified the

appeal and stayed the Board’s decision. Matter of A-H-, AG Order No.

2380-2001 (2001) (attachment to Matter of E-L-H-, 23 I&N Dec. 700 (A.G.

2004; BIA 1998)). Both the INS and respondent have submitted briefs

addressing the issues raised by referral of the BIA’s decision.

II. DISCUSSION

There is no dispute in this case that respondent is excludable under

section 212(a)(7)(A)(i)(I) of the Act for failure to possess a valid entry

document; he conceded inadmissibility on that ground below and does not

contest it here. Accordingly, I find respondent excludable and order him

excluded. The principal questions before me, then, are whether respondent

is eligible for asylum or withholding of deportation and, if not, whether he is

entitled to deferral of removal to Algeria under the Convention Against

3

(...continued)

applications for asylum and withholding of deportation, however, are substantially identical

to the parallel provisions in effect today. Compare section 101(a)(42) of the Act (definition

of “refugee”), former section 243(h) of the Act (withholding of deportation and exceptions

thereto), and 8 C.F.R. § 1208.13(c)(2) (exceptions to asylum applicable to applications filed

before April 1, 1997) with section 101(a)(42) of the Act, 8 U.S.C. § 1101(a)(42) (2000)

(definition of “refugee”), section 208(b)(2)(A) of the Act (exceptions to asylum applicable

to applications filed on or after April 1, 1997), and section 241(b)(3) of the Act, 8 U.S.C.

§ 1231(b)(3) (2000) (withholding of removal and exceptions thereto). Accordingly, the

legal principles enunciated herein are equally applicable to asylum and withholding of

removal cases arising under current law.

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Torture. On these issues, I find several errors in the BIA’s decision and

vacate that decision in its entirety.4

As set forth below, I conclude on the issue of asylum that it is appropriate

to deny asylum to respondent as an exercise of my discretion under section

208(a) of the Act, 8 U.S.C. § 1158(a) (1994), primarily because of

respondent’s association with armed groups that have committed widespread

acts of persecution and terrorism in Algeria. Turning to the issue of

withholding of deportation under former section 243(h)(2)(A) of the Act, I

conclude that the BIA made four legal errors that require vacatur and remand.

First, I conclude that the BIA applied the wrong legal standard in holding that

the INS offered insufficient evidence to indicate that respondent “incited,

assisted, or otherwise participated in the persecution” of others for purposes

of the statutory bar on eligibility for withholding of deportation in former

section 243(h)(2)(A). I set forth the correct legal standard governing this

inquiry and remand to the BIA to apply the correct standard to the record

evidence as a whole. Second, I conclude that the BIA failed to give adequate

deference to the Immigration Judge’s findings on the credibility of

respondent’s testimony in response to the INS’s evidence. Third, I conclude

that the BIA applied the wrong legal standard for determining whether there

are “reasonable grounds for regarding [respondent] as a danger to the security

of the United States” for purposes of ineligibility for withholding of

deportation under former section 243(h)(2)(D). I set forth the correct legal

standard governing this inquiry and remand this issue as well to the BIA to

apply the correct standard in light of all record evidence. And fourth, I reopen

and remand for further consideration (including further submissions, as

appropriate, from the State Department and the parties) the question whether

respondent presently faces a threat to his life or freedom if removed to Algeria

for purposes of establishing eligibility for withholding of deportation under

former section 243(h)(1). Finally, with respect to the applicability of the

Convention Against Torture and its implementing law and regulations, I

4

The Attorney General has authority to conduct de novo review of BIA decisions. See

Deportation Proceedings for Joseph Patrick Thomas Doherty, 13 Op. O.L.C. 1, 7 (1989);

Deportation Proceedings for Joseph Patrick Thomas Doherty, 12 Op. O.L.C. 1, 3-4 (1988).

Respondent argues at length that my review of the BIA decision should be deferential, not

de novo, but he fundamentally misconceives the role of the Attorney General in reviewing

decisions of the BIA. “The BIA is entirely a creation of the Attorney General,” 12 Op.

O.L.C. at 3 n.5 (citing Greene v. INS, 313 F.2d 148 (9th Cir. 1963)), and exercises only such

authority as is delegated to it by the Attorney General. See 8 C.F.R. § 1003.1(d)(l) (2005).

The Attorney General has retained full decision-making authority under the immigration

statutes, including “full authority to receive additional evidence and to make de novo factual

determinations.” 12 Op. O.L.C. at 4; see also INS v. Doherty, 502 U.S. 314, 327 (1992)

(same).

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reopen and remand for further consideration the threshold question whether

respondent presently faces a likelihood of torture for purposes of deferral of

removal to Algeria.5

A. Discretionary Denial of Asylum

The Attorney General may deny asylum in his discretion even where the

applicant is otherwise eligible for asylum. See section 208(a) of the Act,

8 U.S.C. § 1158(a) (1994) (stating that “the alien may be granted asylum in

the discretion of the Attorney General if the Attorney General determines that

such alien is a refugee”) (emphasis added); see also section 208(b)(1) of the

Act, 8 U.S.C. § 1158(b)(1) (2000) (“The Attorney General may grant asylum

to an alien who has applied for asylum in accordance with the requirements

and procedures established by the Attorney General . . . .”) (emphasis added);

8 C.F.R. § 1208.14(a) (2005). Contrary to the BIA’s determination, I

conclude that the record presented here makes it appropriate to deny

respondent asylum in the exercise of my discretion, even if he would

otherwise be eligible for asylum.

The INS introduced evidence below indicating that respondent, through his

active leadership position in the FIS, had ties to the armed Islamist groups that

committed acts of persecution and terrorism in Algeria in the mid-1990s.

Respondent is an acknowledged leader and spokesman for the FIS, the

principal Algerian Islamic opposition organization. There is evidence

suggesting that the FIS was involved in the killing of civilians. See, e.g.,

Testimony of Professor Yonah Alexander, Director of the Terrorism Studies

Program, George Washington University, testifying that “FIS and allied

organizations such as the [GIA] have been waging a campaign of terrorism

since 1992 against the Algerian government and secular persons and

institutions,” that FIS “engages in political assassination, attacks security

forces and has murdered foreigners,” and that FIS’s targets “include

journalists, physicians and other professionals” and “Western targets.”

Similarly, Amnesty International reported that the FIS “has repeatedly claimed

that it has influence over the armed Islamist groups in Algeria.” In his own

testimony below, respondent admitted that he supported the GIA and its use

of force before November 1995. He also testified that he “supported the

unification effort” of the armed groups, including the GIA, in May 1994, and

5

The BIA also reversed the Immigration Judge’s sua sponte ruling that respondent is

separately inadmissible because there is “reasonable ground to believe [respondent] is

engaged in, or is likely to engage after entry in any terrorist activity” under section

212(a)(3)(B) of the Act. In light of my conclusions on the other issues raised in this case

and my review of the record, I conclude that it is unnecessary for me to reach this separate

ground for inadmissibility. I vacate those portions of the decisions below addressing this

question, and I remand this issue to the BIA for further consideration, if and as the BIA

determines appropriate.

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he took personal credit for achieving this unification: “with the help of my

leadership [the armed groups] joined . . . within one movement,” and this

unified group “ha[s] used the name of this GIA.” The September 1994 Jane’s

Intelligence Review reported that respondent had stated that AIS forces would

be joining GIA fighters. He has acknowledged that his support for the GIA

was “well documented,” and he has stated, “I did strongly support the GIA.

I supported it because we had a pact.” Other statements attributed to

respondent indicate that he viewed the GIA and the AIS as integrally related

and part of one unified “mujahidin” armed alliance that sprang “from the

womb of FIS.” An excerpt from a French newspaper in the file quoted

respondent as saying, “The GIA exists in the media. They must stop using

this terminology and talk instead of the Mujahidin . . . . We are finally

supporting the struggle of the Mujahidin.” Another report indicated that

“A-H- . . . has stated that the rumors about disagreement or conflict between

the [AIS] and [GIA] are mere illusions for ‘the mujahidin have the same war

and the same peace, and they are all from the womb of FIS.’”6

According to a report compiled by an affiliate of the British magazine The

Economist, respondent declared at a public conference held in Europe in

mid-June 1993 that the FIS would pursue an armed “struggle” in Algeria “to

eliminate the junta in power and those who influence it,” statements

suggesting to the authors of the report that the targets of the armed groups

would include intellectuals and influential civilians who supported the

Algerian Government and opposed the creation of an Islamic state. Around

the time of respondent’s statements, five intellectuals were killed in Algeria,

including at least two who were not directly involved in politics. In particular,

a psychiatry professor, Dr. Mahfoud Boucebci, was brutally murdered in

Algiers on June 15, 1993. Although respondent claimed to be shocked by Dr.

Boucebci’s death, he testified in the proceedings below that he understood

from other FIS members that Dr. Boucebci was assassinated because he was

reputedly involved in the torture of FIS members. In an interview with

Agence France-Presse 2 days after Dr. Boucebci’s death, respondent declared

that the murder was “a sentence and not a crime,” and that while the

indiscriminate killing of intellectuals is not justified, many of these “so-called

intellectuals” are really informers for the Algerian Government.

In an October 1993 interview with Agence France-Presse, respondent was

quoted in greater detail on the killing of Algerian intellectuals:

Who are these so-called intellectuals? Among them are members of the National

Consultative Council, which has usurped the place of the people’s elected

6

The GIA itself issued a document in August 1994 identifying respondent as the “Minister

of Foreign Relations” for the GIA’s “Revolutionary Council.” Respondent denied that he

held this position with the GIA, but this document indicates, at a minimum, that the GIA

regarded respondent as one of its leaders and looked to him for guidance, support, and

leadership.

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representatives, persons who wrote murderous editorials . . . and those who, through

psychiatry, advised torturers on how to obtain confessions . . . . The Algerian people

have chosen as targets only those individuals upon whom the military-security system

in Algeria relies. We know them one by one, and they are not innocent people.

In a May 1994 interview with the French periodical Liberation, respondent

did not disavow violence against intellectuals, journalists, and civilians.

Although he condemned the killing of what he called “innocent people,” he

said that “we need to agree on the meaning of the word ‘innocent’ [because]

pseudo-intellectuals or pseudo-democrats for whom democracy ends where

their failure begins” are not “innocent.” He also said,

I will not get into [the murder of Algerian journalists]. We suggested to our

mujahidin brothers that they might hit on those who backed the coup. These are a

group of extremist secularists who reject the choice of the Algerian people. It so

happens that among them are a number of academics, journalists, politicians, soldiers,

etc.

The evidence suggests that respondent’s statements purporting to justify

terrorist activities by the armed Islamist groups in Algeria may have

corresponded with an increase in the targeted killing of civilians. Human

Rights Watch reported that “[s]ixteen journalists were assassinated in the first

ten months of 1994.” The February 1995 IC Publications report estimated

that 200 journalists had fled Algeria to France “after FIS threats began to

translate into real acts.”

Evidence also indicates that other leaders within the FIS believed

respondent had “one foot in the GIA camp,” and they associated him with the

GIA’s assassination of two FIS leaders in November 1995 because of his

failure to condemn those assassinations. Finally, respondent testified below

that after the GIA’s murder of the FIS leaders, he “disassociated” himself

from the GIA, which clearly implies that he was “associated” with the GIA up

until at least November 1995.

I conclude that, taken together, the circumstances concerning respondent’s

links to the activities of the armed Islamist groups in Algeria, as outlined

above, strongly weigh against a discretionary grant of asylum in this case,

whether or not respondent has a well-founded fear of persecution if returned

to Algeria. The United States has significant interests in combating violent

acts of persecution and terrorism wherever they may occur, including in

Algeria, and it is inconsistent with these interests to provide safe haven to

individuals who have connections to such acts of violence. It is also in the

national interest of the United States for Algeria to achieve a peaceful and

stable resolution to the conflicts that have plagued that nation.

Moreover, certain additional factors weigh against asylum for respondent:

Specifically, respondent testified that he received money from overseas for his

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political work,7 yet he never filed income tax returns in the United States and

his children nevertheless received financial assistance from the

Commonwealth of Virginia. Respondent’s apparent tax violations and his

abuse of a system designed to provide relief to the needy exhibit both a

disrespect for the rule of law and a willingness to gain advantage at the

expense of those who are more deserving. Although there are equities that

weigh in respondent’s favor—for example, his wife and children reside legally

in the United States and three of his children are United States citizens—these

equities do not outweigh the negative factors I have identified. My view,

based on a thorough review of the record and considering the balance of

factors discussed above, is that respondent is not entitled to become a lawful

permanent resident of the United States. Therefore, I deny respondent’s

application for asylum in the exercise of my discretion.

B. Withholding of Deportation

Although I have denied respondent’s application for asylum, respondent

may still be entitled to mandatory withholding of deportation to Algeria if

(1) he faces a threat to his life or freedom in Algeria because of his race,

religion, nationality, membership in a particular social group, or political

opinion (a requirement that I discuss in part II.B.4 below), and (2) none of the

exceptions to eligibility for withholding of deportation applies to respondent.

See former section 243(h) of the Act; 8 C.F.R. § 1208.16 (2005). I address in

the following discussion each of the issues concerning withholding of

deportation raised by the BIA’s opinion.

1. Persecution of Others

The BIA concluded that the INS offered insufficient evidence to indicate

that respondent had “ordered, incited, assisted, or otherwise participated in the

persecution of any person on account of race, religion, nationality,

membership in a particular social group, or political opinion” for purposes of

the exception to withholding of deportation set forth in former section

243(h)(2)(A) of the Act. I conclude the BIA applied an incorrect legal

standard in making that determination. I vacate this determination and remand

for further proceedings consistent with the legal standard articulated herein.

There can be no doubt that the terrorist activities of the armed Islamist

groups in Algeria during the 1990s constituted “persecution . . . on account of

. . . religion . . . or political opinion.” It is well established that

nongovernmental actors, such as terrorists, insurgents, guerrilla organizations,

or other militant opposition groups, can be guilty of “persecution” within the

7

With respect to the money he received from overseas, respondent used the term “FIS

donations.” When asked if it was a salary, respondent said, “If you can say that, yeah.”

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meaning of the Immigration and Nationality Act. See, e.g., Borja v. INS, 175

F.3d 732, 735 n.1 (9th Cir. 1999) (en banc) (Philippine opposition group);

Sotelo-Aquije v. Slattery, 17 F.3d 33, 37 (2d Cir. 1994) (Shining Path guerrilla

organization in Peru). In the context of a civil war between a government and

opposition groups, the BIA has determined that “persecution” does not

include “harm which may result incidentally” from, or that is directly related

to, the military objectives of the armed conflict, including “the drafting of

youths as soldiers, the unofficial recruiting of soldiers by force, the

disciplining of members of a rebel group, or the prosecution of draft dodgers.”

Matter of Rodriguez-Majano, 19 I&N Dec. 811, 815 (BIA 1988); cf. INS v.

Elias-Zacarias, 502 U.S. 478 (1992) (holding that guerrilla organization’s

attempt to coerce person into military service did not necessarily constitute

persecution). I need not decide here whether the BIA’s interpretation of

“persecution” in this regard is correct, because the terrorist acts committed by

the armed Islamist groups in Algeria, including the bombing of civilian targets

and the widespread murders of journalists and intellectuals on account of their

political opinions or religious beliefs, clearly go well beyond anything that

could fairly be characterized as “incidental” to an armed conflict with the

Government. Moreover, I reject categorically any tacit acceptance of the

persecutor’s perspective in judging whether civilians targeted for murder are

“innocent.”

The primary issue, then, is whether respondent “ordered, incited, assisted,

or otherwise participated in” the acts of persecution committed during the

1990s by the armed Islamist groups in Algeria. The specific terms applicable

in this case are “incited, assisted, or otherwise participated in,” since there is

no allegation by the INS that respondent “ordered” specific acts of

persecution. The plain meaning of the relevant words in the statute is broad

enough to encompass aid and support provided by a political leader to those

who carry out the goals of his group, including statements of incitement or

encouragement and actions that result in advancing the violent activities of the

group. To “incite” means “to move to a course of action: stir up: spur on:

urge on” or “to bring into being: induce to exist or occur.” Webster’s Third

New International Dictionary of the English Language Unabridged 1142

(2002). To “assist” means “to give support or aid: help.” Id. at 132. And to

“participate” means “to take part in something (as an enterprise or activity)

usu. in common with others.” Id. at 1646. Case law teaches that (1) these

terms are to be given broad application, see, e.g., Kulle v. INS, 825 F.2d 1188,

1193 (7th Cir. 1987); (2) they do not require direct personal involvement in

the acts of persecution, see, e.g., Ofosu v. McElroy, 98 F.3d 694, 701 (2d Cir.

1996); (3) it is highly relevant whether the alien served in a leadership role in

the particular organization, see, e.g., Kalejs v. INS, 10 F.3d 441, 444 (7th Cir.

1993); and (4) in certain circumstances statements of encouragement alone

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can suffice, see, e.g., United States v. Koreh, 59 F.3d 431, 440 (3d Cir. 1995).8

It is appropriate to look at the totality of the relevant conduct in determining

whether the bar to eligibility applies. See, e.g., Hernandez v. Reno, 258 F.3d

806, 814 (8th Cir. 2001).

I conclude that a person, such as respondent, who is a leader-in-exile of a

political movement may be found to have “incited,” “assisted,” or

“participated in” acts of persecution in the home country by an armed group

connected to that political movement. Examples of evidence that could

support such a finding would include evidence indicating that the leader was

instrumental in creating and sustaining the ties between the political

movement and the armed group and was aware of the atrocities committed by

the armed group, evidence that he used his profile and position of influence

to make public statements that encouraged those atrocities, or evidence that

he made statements that appear to have condoned the persecution without

publicly and specifically disassociating himself and his movement from the

acts of persecution, particularly if his statements appear to have resulted in an

increase in the persecution. These examples are not intended to be exhaustive.

Here, the INS presented evidence that respondent, in his capacity as a

recognized leader of the FIS, made widely published statements that could be

read as encouraging or condoning violent actions taken by the GIA and the

AIS. Certain evidence, including respondent’s own testimony, also indicates

that in 1994 respondent personally facilitated the unification of the AIS and

GIA through the FIS, and these actions could have supported and

strengthened the activities of the GIA. Moreover, respondent did not attempt

publicly to disassociate himself and the FIS from the GIA until at least

November 1995, even though there is evidence in the record, some of it

offered by respondent himself, indicating that the GIA’s terrorist acts were

apparent well before that time.

I will leave it to the BIA on remand to apply these principles to the record

in this case, taken as a whole. I also leave it to the BIA to determine whether

it is appropriate to remand this case to an Immigration Judge for additional

relevant fact-finding.

8

The Koreh case construed a related provision in the Displaced Persons Act of 1948, Pub.

L. No. 80-774, ch. 647, 62 Stat. 1009 (1948), as amended by Pub. L. No. 81-555, ch. 262,

64 Stat. 219 (1950) (“DPA”), which prohibited the issuance of entry visas to “any person

who advocated or assisted in the persecution of any person because of race, religion, or

national origin.” 59 F.3d at 438 (quoting DPA § 13, 64 Stat. at 227). The Third Circuit

concluded that the defendant’s involvement as an editor in the publication of anti-Semitic

articles in Hungary during World War II “assisted in the persecution of Hungarian Jews”

by “fostering a climate of anti-Semitism” that “conditioned the Hungarian public to

acquiesce [in], to encourage, and to carry out” acts of persecution. 59 F.3d at 440 (emphasis

added). This holding was independent of a separate conclusion by the court that the

defendant also “advocated” persecution within the meaning of the DPA. See id. at 439-43.

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2. Credibility Findings

Assuming the INS did offer sufficient prima facie evidence to indicate that

respondent “incited, assisted, or otherwise participated in” the persecution of

persons in Algeria, the burden fell on respondent to disprove that he did so by

a preponderance of the evidence. The principal evidence offered by

respondent below was his own testimony denying such involvement. He

claimed that the FIS had no connection with the violent actions of the armed

Islamist groups, including the GIA, that the GIA did not engage in persecution

before November 1995, and that, if it did, he was unaware of it. The

Immigration Judge rejected these statements as not credible. She expressly

found that “the credibility of [respondent’s] denials of his involvement with

various violent activities, and in a leadership role with armed opposition

groups” was “completely, utterly lacking.” The Immigration Judge explained

that respondent “failed or refused to answer questions,” gave “inconsistent

and/or implausible answers to questions,” “crafted [his responses] to seem

benign and to appeal to Western sensibilities,” and “often answered questions

with incoherent statements.” She further explained that “[w]hen asked about

the relationship between the FIS and the Islamic Salvation Army, [respondent]

answered evasively and failed to explain the relationship.” Addressing

respondent’s credibility, the Immigration Judge noted that “[s]everal

statements made by the applicant were inconsistent.”

Indeed, respondent’s assertions that the FIS had no links to the armed

groups and that the GIA did not engage in persecution before November 1995

do appear to contradict significant evidence in the record. For example,

respondent claimed that before November 1995, the GIA did not kill

journalists, women who appeared without veils or scarves, family members

of the security forces, or other civilians, but this claim was inconsistent with

evidence that he himself offered detailing such acts committed before

November 1995 by armed Islamic groups, the most prevalent of which was

the GIA. Moreover, respondent’s claim that he was unaware of such acts of

persecution before November 1995 does strain credulity, in light of the

evidence in the record revealing widespread public discussion of the violent

conflict in Algeria. Certainly, the Immigration Judge who personally

observed respondent’s testimony is particularly well situated to judge the

credibility of his assertion of lack of personal knowledge on these key points.

Nevertheless, the BIA rejected all of the Immigration Judge’s adverse

credibility findings. I conclude that the BIA failed to give the Immigration

Judge’s credibility findings the proper deference. Although the BIA did

acknowledge that ordinarily the credibility findings of an Immigration Judge

are owed deference, the BIA concluded that here the Immigration Judge’s

adverse credibility findings were based only on “discrepancies and omissions”

in respondent’s testimony that either were not actually present or were

insufficient to undermine respondent’s credibility. I find the BIA’s treatment

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of the Immigration Judge’s credibility determinations wholly inadequate.

Much of the Immigration Judge’s assessment of respondent’s credibility

related to his demeanor and sincerity as a witness, not only to asserted

discrepancies or omissions in his testimony, and such assessments of

testimonial credibility are uniquely within the ken of the Immigration Judge.

Cf. Anderson v. City of Bessemer, 470 U.S. 564, 574-75 (1985) (noting “the

superiority of the trial judge’s position to make determinations of credibility”

and explaining that “only the trial judge can be aware of the variations in

demeanor and tone of voice that bear so heavily on the listener’s

understanding of and belief in what is said”); Wainwright v. Witt, 469 U.S.

412,428 (1985) (finding that “determinations of demeanor and credibility . . .

are peculiarly within a trial judge’s province”) (footnote omitted); United

States v. D’Anjou, 16 F.3d 604, 614 (4th Cir. 1994) (stating that courts are

“reluctant to overturn factual findings of the trial court, [and] this is doubly

so where the question goes to the demeanor and credibility of witnesses at

trial, since the [trial] court is so much better situated to evaluate these

matters”). Moreover, the inconsistencies that principally undermined

respondent’s credibility in the view of the Immigration Judge were

inconsistencies between respondent’s testimony and the other evidence in the

record on the issues of whether there were instrumental links between the FIS

and the armed Islamist groups AIS and GIA, whether the armed groups

committed acts of violence against civilians prior to November 1995, and, if

so, whether respondent was aware of those acts. These inconsistencies were

not addressed by the BIA, perhaps because the Board considered the INS’s

evidence on these points insufficient or irrelevant.

As with the other issues relating to respondent’s eligibility for withholding

of deportation, I will remand to the BIA for further consideration the issue of

whether to defer to the Immigration Judge’s credibility findings. I conclude

that a remand is appropriate on this issue so that the BIA may have an

opportunity to consider these credibility findings in the context of the legal

principles enunciated herein with respect to the applicability of the statutory

bars to eligibility for withholding of deportation, and also because of the

possibility that there may be additional fact-finding on remand.

3. Danger to National Security

As an alternative basis for denying withholding of deportation, the INS

charged that “there are reasonable grounds for regarding [respondent] as a

danger to the security of the United States” within the meaning of former

section 243(h)(2)(D) of the Act. The Immigration Judge so found, based on

the concern that if the United States affords immigration protection to

respondent, respondent’s political opponents may direct their violence against

the United States or its citizens. The BIA reversed this determination. I also

disagree with the reasoning applied by the Immigration Judge, but because I

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conclude that the BIA may have relied on an incorrect legal standard on this

question and because both the Immigration Judge and the BIA failed to apply

the law correctly to the record in this case, I vacate the BIA’s discussion on

this point and remand for further proceedings consistent with this opinion.

I will address, in reverse order, the two major components of the phrase

“reasonable grounds for regarding the alien as a danger to the security of the

United States” as used in former section 243(h)(2)(D) of the Act. Turning

first to the meaning of the phrase “a danger to the security of the United

States”: The ordinary meaning of the word “danger” is “exposure or

vulnerability to harm or risk.” American Heritage Dictionary 472 (3d ed.

1992). In contrast to other parallel provisions in former section

243(h)(2)—which provide, for example, that a crime be “serious” or

“particularly serious” to constitute ineligibility for withholding of deportation,

see former sections 243(h)(2)(B) and (C)—the statute’s reference to “danger”

is not qualified. Any level of danger to national security is deemed

unacceptable; it need not be a “serious,” “significant,” or “grave” danger.

That understanding is supported by the Government’s use, in other contexts,

of gradations of danger to national security. For example, for purposes of

determining information classification levels, Executive Order No. 12958

categorizes the relative “damage” to national security caused by disclosure of

certain types of information. See Exec. Order No. 12958 § 1.3 (describing the

levels of such harm in descending order of severity as “grave damage,”

“serious damage,” and “damage”). As these terms have common parlance in

assessing risks to national security, Congress’s decision not to qualify the

word “danger” in former section 243(h)(2)(D) makes clear that Congress

intended that any nontrivial level of danger to national security is sufficient

to trigger this statutory bar to withholding of deportation. The INA defines

“national security” to mean “the national defense, foreign relations, or

economic interests of the United States.” Section 219(c)(2) of the Act,

8 U.S.C. § 1189(c)(2) (2000). Read as a whole, therefore, the phrase “danger

to the security of the United States” is best understood to mean a risk to the

Nation’s defense, foreign relations, or economic interests. Where, under the

circumstances, information about an alien supports a reasonable belief that the

alien poses a danger—that is, any nontrivial degree of risk—to the national

security, the statutory bar to eligibility is applicable.

I turn next to what constitutes “reasonable grounds for regarding.” The

statutory reference to “reasonable” grounds implies the use of a reasonable

person standard. See Adams v. Baker, 909 F.2d 643, 649 (1st Cir. 1990)

(stating that a “‘reasonable belief’ may be formed if the evidence . . . is

sufficient to justify a reasonable person in the belief that the alien falls within

the proscribed category”). That much is consistent with the BIA’s reliance on

“probable cause” cases in construing the closely related phrase “reasonable

ground to believe” as used in section 212(a)(3)(B)(i)(II) of the Act, 8 U.S.C.

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§ 1182(a)(3)(B)(i)(II) (2000) (providing that an alien is inadmissible where “a

consular officer or the Attorney General knows, or has reasonable ground to

believe,” the alien “is engaged in, or is likely to engage after entry in any

terrorist activity”). See Black’s Law Dictionary 1219 (7th ed. 1999) (equating

“probable cause” with “reasonable cause; sufficient cause; reasonable

grounds”); Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 3.3,

at 140 (2d ed. 1992) (stating that “for there to be probable cause, the facts

must be such as would warrant a belief by a reasonable man”). The BIA,

however, suggested that this standard might require “having more evidence

for than against” the stated proposition, quoting Black’s Law Dictionary 1201

(6th ed. 1990) to define “probable cause” as “[r]easonable cause; having more

evidence for than against.” “Having more evidence for than against” is a

preponderance of the evidence standard. I conclude that as used in the

national security-related provisions of the Immigration and Nationality Act,

“reasonable grounds for regarding” is substantially less stringent than

preponderance of the evidence. See Illinois v. Wardlow, 528 U.S. 119, 123

(2000) (noting that “probable cause” is a less demanding standard than

“preponderance of the evidence”); Illinois v. Gates, 462 U.S. 213, 235 (1983)

(“Finely tuned standards such as proof beyond a reasonable doubt or by a

preponderance of the evidence, useful in formal trials, have no place in the

[probable cause] decision.”). The “reasonable grounds for regarding”

standard is satisfied if there is information that would permit a reasonable

person to believe that the alien may pose a danger to the national security.

See, e.g., Illinois v. Gates, 462 U.S. at 235.

The information relied on to support the “reasonable grounds”

determination need not meet standards for admissibility of evidence in court

proceedings. In the only court opinion directly interpreting the phrase

“reasonable ground to believe,” as used in a closely related provision of the

Act, the First Circuit in Adams v. Baker, supra, defined these words in light

of the concerns associated with national security and immigration. The issue

in Adams was whether Gerry Adams, an Irish national and president of Sinn

Fein, the political arm of the Irish Republican Army, was properly denied

entry into the United States under section 212(a)(3)(B)(i)(II) of the Act. See

909 F.2d at 646-47. The court rejected Adams’s argument that the

information relied on by the Government—including books, newspaper

articles, and other printed materials—“could not properly form the basis of a

‘reasonable ground to believe’ that Adams engaged in terrorist activities.” Id.

at 649. Although the materials relied on by the Government “would be

inadmissible [in a federal court] trial both because they contain hearsay and

because the information relating to Adams’ involvement in terrorist activities

may be less than fully complete or reliable,” the court concluded that they

were properly considered in the immigration context and were “sufficient to

justify a reasonable person in the belief that [Adams] falls within the

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proscribed category.” Id. (citations omitted). It was enough that the

information relied upon by the Government was not “intrinsically suspect.”

Id.

I will remand to the BIA the issue of whether, applying the proper legal

standards described above, there are reasonable grounds for regarding

respondent as a danger to the security of the United States. On remand, it will

be appropriate for the BIA to consider the record taken as a whole (including

any further fact-finding that may be conducted) to determine whether the

evidence would support a reasonable belief that respondent poses a danger to

our national security interests, including the foreign relations and economic

interests of the United States. Like the BIA, I find the Immigration Judge’s

reasoning on this point faulty. Nevertheless, the United States has significant

foreign relations and economic interests in a peaceful resolution to the

violence in Algeria, and the long-term stabilization of that Government is of

significant importance to United States interests. Our Nation’s multilateral

efforts to fight international terrorism depend on a consistent and determined

opposition to terrorism and related persecution of civilians wherever it

appears, whether in Algeria or elsewhere. Our international fight against

terrorism does not permit us to be seen by our international partners in this

effort as providing safe harbor for those who engage in, espouse, support,

assist, encourage, or lead others to commit violent acts of persecution and

terrorism.

4. Threat to Life or Freedom

As a threshold requirement for eligibility for withholding of deportation to

Algeria, respondent bears the burden of establishing that, if returned to

Algeria, his life or freedom would be threatened because of his race,

nationality, religion, membership in a particular social group, or political

opinion. See former section 243(h)(1) of the Act. Here, respondent did not

assert that he actually suffered past persecution in Algeria; his claim was

based on an asserted future threat to his life or freedom. See 8 C.F.R.

§ 1208.16(b)(2). The INS did not contest that threshold requirement at the

outset of these proceedings; rather, the INS stipulated in 1997 that respondent

had a well-founded fear of persecution (and presumably faced a threat to his

life or freedom) if returned to Algeria. That stipulation was based on a 1997

State Department report on conditions in Algeria at that time. For the reasons

that follow, I will reopen this threshold issue of the threat to respondent’s life

or freedom and remand this issue for further consideration, including further

submissions from the State Department and the parties, as appropriate.

The Attorney General has authority to remand a case for additional

fact-finding as he deems necessary and appropriate. There are two bases for

this authority. First, the Attorney General may exercise the same powers as

are delegated to the BIA, and one such power includes remanding applications

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for additional fact-finding. See 8 C.F.R. § l003.l(d)(3) (2005). Specifically,

the regulations governing BIA process provide that “[i]f further factfinding

is needed in a particular case, the Board may remand the proceeding to the

immigration judge or, as appropriate, to the Service,” with or without a motion

from the parties. 8 C.F.R. § 1003.1(d)(3)(iv). This authority ensures that the

BIA is not denied essential facts that bear on the appropriate resolution of a

case. The authority is not limited to facts contested by the parties; otherwise,

the INS would be dissuaded from stipulating to facts in the early stages of a

proceeding for fear the material facts may change over time. Second, without

regard to the authority delegated to the BIA, the Attorney General’s plenary

authority to resolve applications for withholding or deferral of removal

empowers him to remand a case whenever he deems additional fact-finding

necessary or appropriate. See section 103(g)(2) of the Act, 8 U.S.C.A.

§ 1103(g)(2) (West Supp. 2004) (stating that the Attorney General shall

“review such administrative determinations in immigration proceedings,

delegate such authority and perform such other acts as the Attorney General

determines to be necessary for carrying out this section”) (emphasis added).

Indeed, as the ultimate fact-finder, the Attorney General must be able to

establish and verify all facts as they currently exist.

The significant amount of time that has passed since the outset of this case

counsels in favor of a fresh consideration of the present facts and

circumstances relevant to respondent’s threshold claim of eligibility for

withholding of deportation to Algeria. See Berishaj v. Ashcroft, 378 F.3d 314,

328-33 (3d Cir. 2004). Moreover, there are specific reasons here to believe

that respondent may no longer satisfy that threshold requirement today,

whether or not he did in 1997. Specifically: (1) country conditions in Algeria

may have changed significantly since the time respondent was granted deferral

of removal to Algeria (notably, I understand that other FIS leaders have been

released from prison and allowed to return to their homes); (2) the

Government of Algeria has instituted a grant of amnesty for political

opponents and such amnesty may be available to respondent; and (3) after

respondent was granted deferral of removal, he reportedly stated publicly that

he was willing to return to Algeria, and this apparent willingness may

undermine his earlier claim that he fears torture or a threat to his life or

freedom based on persecution if returned there. Because the INS did not

submit evidence on the merits of respondent’s claim to threshold eligibility for

withholding of deportation, and in light of these new considerations, I will

reopen this issue and remand it to the BIA for further proceedings consistent

with this opinion, including a further remand to the Immigration Judge, if

appropriate. These further proceedings may include, as appropriate, an

opportunity for further submissions by the parties and the Department of State

on whether respondent presently faces a threat of persecution in Algeria,

taking into account the relevant current conditions in Algeria.

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C. Convention Against Torture

Like his application for withholding of deportation, respondent’s

application for deferral of removal to Algeria under the Convention Against

Torture and the related implementing law and regulations requires a threshold

showing by respondent—i.e., a showing that he would more likely than not

be tortured if removed to Algeria. See 8 C.F.R. §§ 1208.16(c)(2), 1208.17

(2005). The Immigration Judge found, in 1999, that respondent had satisfied

this showing, a conclusion upheld by the BIA in 2000, and not disputed by the

INS in its submission to the Attorney General in 2001, where it stated: “At

this time, the Service does not oppose the Immigration Court’s grant of

deferral of removal under [the regulations implementing the Convention

Against Torture].” However, for the reasons discussed above with respect to

respondent’s claim of a threat to his life or freedom, I will also reopen the

threshold issue under the Convention Against Torture of whether respondent

faces a likelihood of being tortured in Algeria, and I will remand that issue as

well for further consideration, including further submissions from the State

Department and the parties, as appropriate.

III. CONCLUSION

For the foregoing reasons, I conclude that respondent is excludable and I

order him excluded. I vacate the decision of the BIA and remand for further

proceedings consistent with this opinion on respondent’s eligibility for

withholding of deportation and for deferral of removal to Algeria.

Respondent’s application for asylum is denied as a matter of discretion.

792