Sofiane Djellouli v. ALBERTO R. GONZALES, Attorney General of the United States

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued January 23, 2007
Decided March 2, 2007
Before
Hon. JOEL M. FLAUM, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 06-2028
SOFIANE DJELLOULI,
Petitioner,
v.
ALBERTO R. GONZALES, Attorney
General of the United States,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
No. A77-656-296
O R D E R
Sofiane Djellouli, an Algerian citizen, petitions for review of an order denying
him withholding of removal. Djellouli claims that he was threatened by
unidentified “terrorists” because he provided medical care to members of the
Algerian military and police. An Immigration Judge decided that the treatment
Djellouli suffered did not rise to the level of persecution, and that the risk he would
be harmed if sent home was too remote to compel withholding of removal. Because
this conclusion is supported by substantial evidence, we deny the petition.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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Background
In May 2000, Djellouli came to the United States on a visitor’s visa at the
invitation of his sister and overstayed. By his own account, he was not initially
planning to seek asylum. However, he changed his mind after he was placed in
removal proceedings by the INS in early 2003 for overstaying his visa. At this
point, more than two and a half years after he first arrived in the United States,
Djellouli applied for asylum, withholding, and relief under the Convention Against
Torture (CAT).
Djellouli claimed that he would be harmed by an unnamed terrorist group on
account of his political opinion and membership in a particular social group if he
returned to Algeria. Specifically, he said at his asylum hearing that a terrorist
group he described as the “Djehad” targeted him because, as a dental assistant at a
clinic located near a police station, he frequently provided medical treatment to the
members of the Algerian military and police. According to Djellouli’s testimony, he
heard gunshots one morning in November 1998 as he was leaving his house and got
out of his car to investigate. Neighbors told him that “terrorists” were “around” and
were going into his house. Djellouli was frightened and left the neighborhood,
moving in with his sister who lived in another town. He did not actually see the
terrorists who entered his home, but he was told afterwards by his mother—who
was home at the time—that the terrorists asked her about his and his brother’s
whereabouts. Djellouli asserted in his asylum application that the terrorists were
after his brother because his brother worked as a security guard at a university. He
also said that terrorists burned his car. Djellouli’s brother was killed about six
weeks after the shooting incident. Djellouli contended that terrorists were
responsible but that conclusion was based entirely on the prior events.
Djellouli’s brother-in-law and sister (a different sister from the one with whom
he stayed in Algeria) also testified in person. The brother-in-law testified that a
group called “Islamic Jihad” had killed Djellouli’s brother, burned his car, burned
the clinic where he worked, and would kill Djellouli if he returned. However, the
brother-in-law has lived in the United States since 1994, so it appears that his
knowledge was based entirely on information he received second-hand from family
members in Algeria. He also admitted that conditions in Algeria have improved at
least in the large cities. Although the sister, who came to the United States a few
months after Djellouli, confirmed that terrorists (she was unable to name the
specific group) had threatened Djellouli and killed his brother, the details of her
testimony differed from the testimony of both Djellouli and the brother-in-law. She
said that Djellouli was threatened, not because he provided medical care to the
authorities, but because he refused to provide medical care to the terrorists. Her
testimony about the fate of Djellouli’s clinic also differed from the account given by
the brother-in-law. She suggested that, rather than being intentionally burned, it
was accidentally bombed when terrorists targeted the nearby police station.

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No. 06-2028 Page 3
The IJ concluded that Djellouli was barred from seeking asylum because he
failed to file within one year of his entry into the United States and had not shown
that exceptional circumstances excused the delay. With respect to Djellouli’s
withholding claim, the IJ reasoned that Djellouli had not experienced persecution
because the mistreatment he alleged consisted of a single unfulfilled threat, which
as a general rule would not be sufficient to constitute persecution. The IJ
acknowledged Djellouli’s testimony that his brother was later killed by terrorists,
but he concluded that this “extremely weak and vague testimony does not show that
the death of the respondent’s brother is any way a result of the respondent’s
actions.” The IJ also noted that Djellouli was “extremely vague” about who
threatened him and why. Finally, the IJ decided that Djellouli’s claim was
undermined by the fact that he remained in Algeria for almost a year and a half
without suffering any more threats or violence from terrorists, that his mother and
sister still lived there and had never been harmed, and that terrorist attacks had
decreased since he had left Algeria. The BIA affirmed the IJ’s decision without
adding any significant analysis.
Analysis
Djellouli concedes that this court lacks jurisdiction to consider the denial of
his asylum claim because he filed it more than a year after he entered the United
States. See 8 U.S.C. §§ 1158(a)(2)(B), (a)(3). He also has waived any argument
about his CAT claim by failing to address that claim in his brief. See Balliu v.
Gonzales, 467 F.3d 609, 614 (7th Cir. 2006). Therefore our review is limited to the
decision denying him withholding. The standard for withholding is more stringent
than that for asylum and required Djellouli to show that his life or freedom would
be threatened if he returned to Algeria. See 8 U.S.C. § 1231(b)(3)(A); Firmansjah v.
Gonzales, 424 F.3d 598, 604-05 (7th Cir. 2005). To demonstrate this he had to
establish that it was more likely than not that he would face persecution on account
of one of the grounds specified in the asylum statute. See 8 C.F.R. § 1208.16(b)(2);
Pavlyk v. Gonzales, 469 F.3d 1082, 1087 (7th Cir. 2006). If he showed that he was
persecuted in the past, he was entitled to a presumption that his life or freedom
would be threatened in the future. See 8 C.F.R. § 1208.16(b)(1)(i). We review a
denial of withholding for substantial evidence and will reverse only if the evidence
compels a different conclusion. Pavlyk, 469 F.3d at 1087.
Although there are some problems with the IJ’s decision, the record does not
compel a different result. The only harm that Djellouli personally suffered was the
threat made by the alleged terrorists who visited his house. We have frequently
upheld findings by immigration courts that unfulfilled threats did not qualify as
persecution. See, e.g., Bejko v. Gonzales, 468 F.3d 482, 486 (7th Cir. 2006); Boykov
v. INS, 109 F.3d 413, 416 (7th Cir. 1997). As we have explained, threats will
constitute persecution “only in the most extreme circumstances, such as where they

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No. 06-2028 Page 4
are of a most immediate or menacing nature or if the perpetrators attempt to follow
through on the threat.” See Bejko, 468 F.3d at 486. In this instance Djellouli
provided few details about the alleged threat. Although he submitted a police
report stating that he was threatened with assassination, he did not elaborate on
this event in his testimony. He admitted that he had no personal contact with the
terrorists, and his account of what they told his mother was quite limited; he said
only that they asked after his whereabouts, not that they threatened to kill or
otherwise harm him. It is not clear that this inquiry even qualifies as a threat,
much less an immediate and menacing threat.
Djellouli argues, however, that the terrorists did fulfill their threat because
they killed his brother. The IJ discounted this evidence because Djellouli had not
shown that his brother’s death was “in any way a result of [his] actions.” Though
this statement is ambiguous, the IJ presumably meant that there was not enough
evidence to connect the brother’s death with the earlier inquiry about both brothers.
This conclusion is supported by substantial evidence. Although Djellouli, his
brother-in-law, and his sister all testified that the same terrorists who came to
Djellouli’s house killed the brother, none of them witnessed the killing or explained
how they knew who killed his brother. It is not even clear that the killing of
Djellouli’s brother was an intentional act. Djellouli submitted a police report
recounting that his brother was killed by terrorists, but the report does not say
whether the brother was targeted or merely a victim of random violence. Although
the IJ could have done a better job of explaining his decision to discount this event,
given the lack of detail about either the initial threat or the killing, the record does
not compel a different conclusion. See Ahmed v. Ashcroft, 348 F.3d 611, 613, 618–19
(7th Cir. 2003) (former Algerian police officer’s vague testimony about death threats
to his brother did not compel finding that he had well-founded fear of persecution);
Bhatt v. Reno, 172 F.3d 978, 982 (7th Cir. 1999) (vague evidence that petitioner was
threatened many years ago does not compel finding that he had well-founded fear of
persecution).
Djellouli next argues that, even if he did not show that he suffered past
persecution, he still showed that it is more likely than not that he would be
persecuted in the future. Specifically, he faults the IJ for finding that he lived in
Algeria for over a year after his brother’s death without suffering further harm;
Djellouli insists that the IJ ignored his sister’s testimony that he remained in
hiding and rarely left his other sister’s house during this time. Although the IJ
perhaps should have given this testimony some consideration, his decision was
based on more than the absence of harm to Djellouli while he lived with his sister.
The IJ also pointed out that terrorist violence in Algeria had decreased since the
late 1990s when Djellouli was threatened. The country reports that Djellouli
submitted support this conclusion as does the most recent report of which this court
may take judicial notice, see Giday v. Gonzales, 434 F.3d 543, 556 n.6 (7th Cir.
2006). For example, the 2002 and 2003 reports that Djellouli submitted reflect that

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according to press reports violent deaths decreased significantly from 1,386 people
in 2002 to 1,162 people in 2003 (a number that includes terrorists and security force
personnel as well as civilians). The 2002 number itself represented a decrease from
2001. The most recent report reflects that, according to government numbers, only
488 people (and only 76 civilians) died in 2005. U.S. Department of State, Report on
Human Rights Practices: Algeria 1 (2005). The report also states that terrorist
violence occurred primarily in rural and mountainous areas, id. at 2, and the 2002
and 2003 reports state that the security forces had “largely forced the terrorists out
of the cities.” Furthermore, since 1999 the Algerian government has twice offered
amnesty to members of armed groups who agree to lay down their weapons, and
this has led to a considerable decrease in violence by Islamic militants. BBC News,
Country Profile: Algeria 1-2 (2006); BBC News, Algeria Amnesty Deadline Expiring
1 (2006).
Finally, the IJ found that Djellouli’s mother and sister continued to live in
Algeria without being harmed. The fact that a petitioner’s family has not been
harmed undermines a claim that the petitioner faces a risk of future harm.
Toptchev v. INS, 295 F.3d 714, 722 (7th Cir. 2002); Sayaxing v. INS, 179 F.3d 515,
522 (7th Cir. 1999). Djellouli says that the terrorists had no reason to target his
family, but if the terrorists really wanted to find Djellouli they might have
continued to harass his family to discover his whereabouts as they did when they
first went to his house.
For the above reasons, we DENY the petition.

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