20-1848 Houmita v. Garland BIA Baumgarten, IJ A079 719 324

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 11th day of August, two thousand twenty- one.

PRESENT: ROSEMARY S. POOLER, BARRINGTON D. PARKER, JOSEPH F. BIANCO, Circuit Judges. _____________________________________

ABDELHAKIM HOUMITA, Petitioner,

v. 20-1848 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Vilia B. Hayes; Dustin P. Smith; Amina Hassan; Hughes Hubbard & Reed LLP, New York, NY.

FOR RESPONDENT: Brian Boynton, Acting Assistant Attorney General, John S. Hogan, Assistant Director, Robbin K. Blaya, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

Petitioner Abdelhakim Houmita, a native and citizen of

Algeria, seeks review of a May 14, 2020 decision of the BIA

affirming a November 19, 2019 decision of an Immigration Judge

(“IJ”), which denied asylum, withholding of removal, and

relief under the Convention Against Torture (“CAT”). In re

Abdelhakim Houmita, No. A 079 719 324 (B.I.A. May 14, 2020),

aff’g No. A079 719 324 (Immigr. Ct. Batavia Nov. 19, 2019).

We assume the parties’ familiarity with the underlying facts

and procedural history.

We have reviewed both the IJ’s and the BIA’s decisions

“for the sake of completeness.” Wangchuck v. Dep’t of

Homeland Sec.,

(2d Cir. 2006). We review

the agency’s factual findings for substantial evidence and

its legal conclusions de novo. See

(b)(4)(B);

Yanqin Weng v. Holder,

(2d Cir. 2009). 2 “[T]he administrative findings of fact are conclusive unless

any reasonable adjudicator would be compelled to conclude to

the contrary.”

(b)(4)(B).

The agency reasonably concluded that the Department of

Homeland Security (“DHS”) met its burden to rebut the

presumption of future persecution by showing a fundamental

change in conditions in Algeria. See Lecaj v. Holder,

(2d Cir. 2010) (reviewing country

conditions determination for substantial evidence). An

asylum applicant who has shown past persecution has a

rebuttable presumption of future persecution.

(b)(1). DHS can rebut that presumption by

establishing by a preponderance of the evidence that

circumstances in the country of past persecution have

fundamentally changed.

§ 1208.13(b)(1)(i)(A). The

changed circumstances must “obviate the risk to life or

freedom related to the original claim.” Kone v. Holder,

(2d Cir. 2010) (internal quotation marks

omitted).

Substantial evidence supports the agency’s conclusion

that there was a fundamental change in conditions in Algeria. 3 The record reflects that an extremist group, Islamic

Salvation Front (“FIS”), persecuted Houmita in 1996 because

he had been a member of the military engaged in fighting the

FIS. Algeria outlawed the FIS in 1992, granted it amnesty

in 1999, and eradicated it by 2002. The evidence does not

reflect a present threat to Houmita or support his contention

that the FIS was absorbed into currently active terrorist

groups to such a degree as to constitute a continuing threat.

To the extent Houmita argues that the agency overlooked

evidence of an article regarding the FIS’s presence in current

groups, “we presume that an IJ has taken into account all of

the evidence . . . , unless the record compellingly suggests

otherwise.” Xiao Ji Chen v. U.S. Dep’t of Just.,

, 336 n.17 (2d Cir. 2006). In any event, there is an

absence of evidence in the article that the FIS, through these

current groups, would seek out an individual, like Houmita,

who fought against the FIS.

Substantial evidence also supports the agency’s finding

that Houmita failed to establish a well-founded fear of

persecution on any ground independent of his past harm. He

did not show that former military members or individuals with 4 Western interests face systemic and pervasive persecution.

See Santoso v. Holder,

, 112 & n.1 (2d Cir. 2009)

(concluding there was no error in agency’s pattern or practice

finding where the agency considered country-conditions

evidence and that evidence did not show systemic and pervasive

persecution); see also

(b)(2)(iii); Matter

of A-M-,

(B.I.A. 2005) (defining

pattern or practice of persecution as “systemic or

pervasive”).

We also find no error in the agency’s denial of

humanitarian asylum. The agency has discretion to grant

humanitarian asylum to an applicant who no longer has a fear

of future persecution if “(A) The applicant has demonstrated

compelling reasons for being unwilling or unable to return to

the country arising out of the severity of the past

persecution; or (B) The applicant has established that there

is a reasonable possibility that he or she may suffer other

serious harm upon removal to that country.”

(b)(1)(iii). Houmita did not assert “other serious

harm” before the agency, so the issue here is whether he

suffered “severe harm [from his past persecution] and the 5 long-lasting effects of that harm.” Jalloh v. Gonzales,

(2d Cir. 2007) (internal quotation marks

omitted); see also Lin Zhong v. U.S. Dep’t of Just.,

, 107 n.1, 119–120 (2d Cir. 2007) (requiring exhaustion of

issues before BIA).

Although Houmita suffered significant past harm as a

result of attacks in 1996 by armed militiamen who Houmita

believed were members of the FIS, the agency did not err in

finding that his harm was not sufficiently severe for

humanitarian asylum. In reaching this conclusion, the agency

properly considered the “degree of harm suffered by the

applicant” and “the length of time over which the harm was

inflicted.” In re N-M-A-,

(B.I.A.

1998); see also Hoxhallari v. Gonzales,

(2d

Cir. 2006) (finding harm not sufficiently “atrocious” where

applicant was beaten and harassed on six occasions).

Moreover, an applicant must also demonstrate lasting physical

or mental effects of the persecution, see Jalloh,

, and Houmita had no evidence of lasting physical effects

and no evidence of mental effects or treatment prior to his

immigration detention in 2019. On this record, the agency 6 did not err in finding a lack of evidence of effects stemming

from the past harm. See

Finally, substantial evidence supports the agency’s

denial of CAT protection. See Nasrallah v. Barr,

(2020)(reviewing CAT determination for substantial

evidence); Hui Lin Huang v. Holder,

(2d

Cir. 2012) (likelihood of harm is factual determination).

Houmita did not show ongoing torture of former military

personnel by the FIS, and he did not allege that anyone had

inquired about him since 2007. See Jian Hui Shao v. Mukasey,

, 157–58 (2d Cir. 2008) (“[W]hen a petitioner

bears the burden of proof, his failure to adduce evidence can

itself constitute the ‘substantial evidence’ necessary to

support the agency’s challenged decision.”); Mu Xiang Lin v.

U.S. Dep’t of Just.,

(2d Cir. 2005)

(requiring “particularized evidence” that applicant would be

subject to torture); Jian Xing Huang v. INS,

(2d Cir. 2005)(“In the absence of solid support in the

record . . . , [applicant’s] fear is speculative at best.”).

7 For the foregoing reasons, the petition for review is

DENIED. All pending motions and applications are DENIED and

stays VACATED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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