Rachid Bennani v. ERIC H. HOLDER Jr., Attorney General

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RACHID BENNANI,
Petitioner,
v.
ERIC H. HOLDER Jr., Attorney General,
Respondent.
No. 05-73200
Agency No. A097-356-754
MEMORANDUM *
RACHID BENNANI,
Petitioner,
v.
ERIC H. HOLDER Jr., Attorney General,
Respondent.
No. 05-75097
Agency No. A097-356-754
On Petitions for Review of Orders of the
Board of Immigration Appeals
FILED
DEC 21 2009
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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The panel unanimously finds this case suitable for decision without**
oral argument. See Fed. R. App. P. 34(a)(2).
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Submitted December 8, 2009**
Pasadena, California
Before: REINHARDT, TROTT and WARDLAW, Circuit Judges.
Rachid Bennani, a native and citizen of Morocco who is a Christian convert,
petitions for review of two Board of Immigration Appeals (“BIA”) decisions. The
first BIA decision, of April 27, 2005, adopted and affirmed a decision by an
Immigration Judge (“IJ”) denying Bennani’s application for asylum, withholding
of removal, and protection under the Convention Against Torture (“CAT”). In that
decision, the BIA held that Bennani’s asylum application was time-barred, and that
he was ineligible for withholding of removal or CAT protection because he did not
face a clear probability of future persecution or torture on the basis of his religion.
In the same decision, the BIA also denied a motion to reopen, holding that Bennani
had failed to provide fresh evidence of eligibility for the “extraordinary
circumstances” exception to the one-year bar on the filing of asylum applications
and had failed to show that he received ineffective assistance of counsel during the
earlier stages of the proceedings. The second BIA decision, of August 4, 2005,
denied Bennani’s renewed motion to reopen and reconsider on the same grounds,
and further held that even if Bennani were to assert a credible claim to reopen, he

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would not be eligible for relief because his asylum claim was without merit. We
have jurisdiction pursuant to 8 U.S.C. § 1252(a), and we deny Bennani’s petition.
Substantial evidence in the record supports the BIA’s holding that Bennani’s
claims for asylum, withholding of removal, and CAT protection are without merit.
Although Bennani did not formally present his asylum case at the hearing before
the IJ, he did present evidence regarding his eligibility for withholding of removal
and relief under the CAT. Because the showing of persecution required for
withholding or CAT relief is greater than that required for asylum, we presume that
Bennani presented the IJ with all of the evidence that he would have presented in
support of an asylum claim. See Shire v. Ashcroft, 388 F.3d 1288, 1295 n.5 (9th
Cir. 2004) (“The standard for withholding of removal is more stringent than that
for establishing asylum.”)
Bennani failed to present any evidence of past persecution or previous
mistreatment of any kind. Indeed, he had returned to Morocco without incident on
a number of occasions after his conversion to Christianity. Instead of making an
individualized showing of potential future persecution, Bennani relies upon
generalized assertions about the treatment of Christian converts in Morocco. His
claims are, however, controverted by evidence in the record. The 2003 United
States Department of State International Religious Freedom report, for example,

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states that in Morocco “Christian and Jewish communities openly practice their
faiths” and that the Moroccan Constitution “provides for the freedom of religion.”
Although Islam is the state religion, and the state supports Islamic religious
practices, the State Department report claims that “private behavior and beliefs are
unregulated and unmonitored” and there is a “generally amicable relationship
among religions in society.” The report suggests that the Moroccan government
encourages tolerance and respect among religions. It also states that the King of
Morocco is a moderate Muslim who has cracked down on Islamic extremists.
There is no evidence in the record of the Moroccan government torturing or
otherwise seriously harming individuals who convert from Islam to Christianity, or
that such harm or torture is performed by persons or organizations that the
Moroccan government is unable or unwilling to control. The BIA’s conclusion
was thus supported by reasonable, substantial and probative evidence in the record,
and a reasonable adjudicator would not be “compelled to conclude to the contrary.”
8 U.S.C. § 1252(b)(4)(B); Lopez v. Ashcroft, 366 F.3d 799, 803 (9th Cir. 2004).
Any errors that the BIA may have made with respect to Bennani’s motions
to reopen are harmless, because Bennani’s new counsel has failed, just as his
previous counsel failed, to present any evidence demonstrating his prima facie
eligibility for asylum. Even if Bennani was provided with ineffective assistance of

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counsel during the earlier stages of proceedings, he did not suffer prejudice from
his prior counsel’s deficient performance. Similarly, even if the BIA erred in
denying Bennani’s motion to reopen with respect to the one-year filing bar, such
error was harmless, because the underlying asylum claim was without merit. See
INS v. Abudu, 485 U.S. 94, 105 (1988) (holding that where the ultimate relief
sought is discretionary, such as asylum, “the BIA may leap ahead . . . over the two
threshold concerns . . . and simply determine that even if they were met, the
movant would not be entitled to the discretionary grant of relief.”). We therefore
conclude that the BIA’s decision that Bennani is ineligible for asylum, withholding
of removal, or CAT protection is supported by substantial evidence, as is its
decision to deny Bennani’s motions to reopen and reconsider. Accordingly, we
deny Bennani’s petitions.
DENIED.

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