                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 12-1729


ANWAR HADDAM,

                Petitioner,

           v.

ERIC H. HOLDER, JR., Attorney General,

                Respondent.

--------------------------

INTERNATIONAL REFUGEE LAW        PRACTITIONERS   AND    CLINICIANS;
PROFESSOR SUSAN BENESCH,

                Amici Supporting Petitioner.



On Petition for Review of an Order of the Board of Immigration
Appeals.


Argued:   September 18, 2013             Decided:      December 4, 2013


Before GREGORY and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Petition denied in part, granted in part, and case remanded by
unpublished opinion. Judge Gregory wrote the opinion, in which
Judge Thacker and Senior Judge Hamilton joined.


ARGUED: Rene Kathawala, ORRICK, HERRINGTON & SUTCLIFFE, LLP, New
York, New York, for Petitioner.   Christopher C. Fuller, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
ON BRIEF: Susan M. Akram, BOSTON UNIVERSITY SCHOOL OF LAW,
Boston, Massachusetts; Malea Kiblan, KIBLAN & BATTLES, McLean,
Virginia, for Petitioner.    Stuart F. Delery, Principal Deputy
Assistant   Attorney  General,   Michael  P.  Lindemann,  Chair,
National Security Unit, Office of Immigration Litigation, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Mark W. Danis, Alexei Klestoff, MORRISON & FOERSTER LLP, San
Francisco, California, for Amicus Professor Susan Benesch.
Steven H. Schulman, Washington, D.C., L. Rachel Lerman,
Amit Kurlekar, Saurish Bhattacharjee, AKIN GUMP STRAUSS HAUER &
FELD LLP, Los Angeles, California, for Amicus International
Refugee Law Practitioners and Clinicians.


Unpublished opinions are not binding precedent in this circuit.




                                2
GREGORY, Circuit Judge:

     Anwar Haddam is an Algerian national and an exiled leader

of the Islamic Salvation Front party (“FIS”).                 When Algeria was

gripped by a military coup in 1992, Mr. Haddam fled to the

United     States     to   seek    asylum.            After   a   labyrinth    of

administrative hearings, the Attorney General denied asylum as a

matter     of    discretion.      In     addition,      the   Attorney   General

formulated a new test to determine whether, in spite of not

qualifying for asylum, Mr. Haddam qualified for withholding of

removal    under     the   Immigration       and    Nationality   Act    (“INA”).

8 U.S.C. § 1253(h) (1994) 1; Matter of A-H-, 23 I. & N. Dec. 774

(A.G. 2005).        We conclude that the Attorney General’s new test

is not a permissible construction of the INA under step two of

Chevron.        See Chevron U.S.A. Inc. v. Natural Resources Defense

Council,    Inc.,    467   U.S.   837,   842       (1984).    However,   we   also

conclude that the Attorney General did not abuse his discretion

in denying Mr. Haddam asylum.            Accordingly, we deny the petition

for review as to the Attorney General’s denial of asylum but we

remand the matter to the Board of Immigration Appeals (“BIA”) to




     1
       Note that all cites to the INA are to the 1994 version of
the law. We apply the version of the INA in effect at the time
of Haddam’s asylum application. See Matter of A-H-, 23 I. & N.
Dec. at 777, n.3.



                                         3
determine      whether    Mr.      Haddam        qualifies   for     withholding        of

removal.


                                            I.

      Mr. Haddam is a nuclear physicist by training who turned to

politics    after   a    career     in   engineering.          He    was    elected     to

Algeria’s parliament in the first round of 1991 elections as a

member of the FIS.         These were the first free elections that the

authoritarian regime had allowed in Algeria, and the FIS won

them in a rout.          In response to the FIS’ victory, the military

seized power and canceled the second round of elections.                               The

military then began violent crackdowns against the FIS.                          Facing

the threat of torture or death, Mr. Haddam and his family fled

Algeria.       He entered the United States in 1992 to apply for

asylum.

      Meanwhile,    the     struggle        in     Algeria    turned       increasingly

violent.     Government crackdowns spawned guerilla groups such as

the   Groupe    Islamique       Arme     (GIA).        In    the    years      following

Mr. Haddam’s     entry     into    the   United      States,       the   GIA   began    to

target      journalists,          intellectuals,         tourists,         and     other

civilians.      A murky relationship existed between the GIA and Mr.

Haddam’s FIS.       The groups merged for several years to form a

united front after Mr. Haddam’s exile, but the groups then split

after the GIA executed several FIS members.


                                            4
       Throughout his exile, Mr. Haddam has been a leader of the

FIS, serving in the party’s delegation to Europe and the United

States.       There is evidence that Appellant played a role in the

merger between the FIS and GIA from abroad, but this evidence is

disputed.      In testimony, Mr. Haddam said that “with the help of

my   leadership    (indiscernible),             [the    GIA    and    FIS]    joined     and

within one movement.”             (J.A. 610–11).         The government points to

this     as    evidence      that     the       merger        occurred       because     of

Mr. Haddam’s leadership, but Mr. Haddam points to the broader

context of the testimony to argue that “my leadership” refers to

Appellant’s superiors.              (J.A. 609) (referring to “my leaders

back home”).      In addition, Mr. Haddam was interviewed for dozens

of     news    articles     and     scholarly          publications.              In   these

interviews,      when     asked    about    past       violent       acts    in    Algeria,

Mr. Haddam gives verbal approval of the murder of civilians who

either backed the military coup or aided the Algerian military

by instructing soldiers on methods of torture.

       As a result of these ties between the FIS and GIA, as well

as Mr. Haddam’s statements supporting or refusing to disavow

violence, the Attorney General denied Mr. Haddam asylum as a

matter of discretion.             Matter of A-H-, 23 I. & N. Dec. at 783;

Immigration and Nationality Act, 8 U.S.C. § 1158(a).                               However,

the Attorney General remanded to the BIA to determine whether

Mr. Haddam qualified for withholding of removal.                         Under the INA,

                                            5
even    individuals        who    do   not    qualify     for      asylum      can     avoid

deportation       upon     a     showing      that    they      face     a     threat      of

persecution.         8 U.S.C. § 1253(h)(1).            In turn, this benefit of

withholding of deportation does not apply to any individual who

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

persecution       of     any     person    on      account    of     . . .      political

opinion.”        8   U.S.C.      § 1253(h)(2).        Thus,     it      remained     to    be

determined       whether    Mr.    Haddam     qualified      under      the    persecutor

bar, as this subsection is known.

       To aid this determination, the Attorney General formulated

a new definition of the persecutor bar based on Mr. Haddam’s

case.        Under the new rule, an individual who is the leader of a

political group that has ties with an armed group is denied

withholding if there exists “evidence indicating that the leader

was instrumental in creating and sustaining . . . ties between

the political movement and the armed group and was aware of the

atrocities committed by the armed group.”                    Matter of A-H-, 23 I.

& N. Dec. at 785.              Appellant now challenges the permissibility

of     the     Attorney    General’s       interpretation          of    the     INA      and

formulation of the persecutor bar inquiry.



                                             II.

       We review de novo whether the Attorney General’s definition

is a permissible interpretation of the INA.                      See Li Fang Lin v.

                                              6
Mukasey,    517   F.3d    685,    691–92     (4th   Cir.   2008).       We   accord

Chevron deference to the Attorney General’s interpretation of

the INA. See Negusie v. Holder, 555 U.S. 511, 516 (2009); Yi Ni

v. Holder, 613 F.3d 415, 423 (2010).                    First, we ask “whether

Congress has directly spoken to the precise question at issue.”

Chevron, 467 U.S. at 842.           If not, we ask whether the Attorney

General’s interpretation is “a permissible construction of the

statute.”    Id. at 843.

     The question before us involves interpretation of the term

“ordered, incited, assisted or otherwise participated in . . .

persecution       of     any     person.”           8    U.S.C.     § 1253(h)(2).

Specifically,     we    ask    whether   this   definition        can   include   an

individual who meets the following criteria:

     1) He is the leader of a political group that has ties to

           an armed group;

     2) He was “instrumental in creating and sustaining the ties

           between the political movement and the armed group;” and

     3) He “was aware of the atrocities committed by the armed

           group.”     Matter of A-H-, 23 I. & N. Dec. at 785. 2


     2
        The Attorney General created two more categories of
evidence   that  could  disqualify  a  political   leader  from
withholding of removal.   Id.   Under the second category, the
persecutor bar applies if there is “evidence that [a leader]
used his profile and position of influence to make public
statements that encouraged . . . atrocities.”    Category three
excludes a leader when there is “evidence that he made
(Continued)
                                         7
      Here, relying on the plain language of the persecutor bar

and   guidance     from   our    sister        circuits,      we    conclude    that   the

Attorney General’s definition is an impermissible interpretation

of    the   INA.        While       the    terms       “assisted”      and     “otherwise

participated” lack mathematical precision, these terms indicate

active involvement.        As such, the persecutor bar only applies in

cases   where    there    is    a    causal         nexus   between    the   applicant’s

behavior and instances of persecution.                       The Attorney General’s

definition does away with this nexus requirement, and for this

reason, it is impermissible under the INA.

                                               A.

      Turning      to   step    one       of   Chevron,      we     conclude    that   the

language of the persecutor bar does not unambiguously resolve

the question before us.               Application of the persecutor bar is

often a “difficult line-drawing problem[].”                           See Hernandez v.

Reno, 258 F.3d 806, 813 (8th Cir. 2001).                          Persecutor bar cases

are difficult because the level of involvement in an act of

persecution is a question of degree, and both sides will often

be able to advance reasonable arguments.                           See, e.g., Negusie,

555 U.S. at 517–18.             In Negusie, the Supreme Court considered



statements that appear to have condoned the persecution without
publicly   and  specifically   disassociating himself  and  his
movement from the acts of persecution.”        Id.    These two
categories are not at issue in this appeal.



                                               8
whether the persecutor bar reaches individuals who participated

in   persecution        but   only      because      they    were          coerced.        Because

there was “substance to both [parties’] contentions,” the Court

concluded that “the statute has an ambiguity.”                                     Id. at 517.

Here, as in Negusie, we are confronted with a difficult question

about the outer limits of the persecutor bar, and given the

line-drawing nature of the analysis, there is substance to both

parties’ contentions.              As such, we conclude that the statute

does not settle the precise question before us.

      Moving      to     step    two     of    Chevron,          we    conclude         that     the

Attorney    General’s         definition       is     nonetheless           an    impermissible

reading of the INA.               Our rejection of the Attorney General’s

definition       stems     from      the      plain    meaning             of    the    statutory

language.             Participating           in     persecution                implies     actual

involvement       with    the     persecution.              In    common         parlance,       one

cannot participate in an event retroactively.                               Cf. United States

v.   Papagno,     639     F.3d    1093,       1099     (D.C.Cir.           2011)       (noting    in

context     of    a      criminal       restitution          law       that        “one    cannot

ordinarily       be    participating          in     something         that       has     not    yet

begun”).       Similarly, “assist” means giving “aid or support.”

American Heritage Dictionary 80 (1976).                           One cannot ordinarily

assist    in     persecution       if      one’s     actions          do    not    further       the

persecution.          As the Supreme Court has noted in interpreting the

persecutor bar, to assist or to participate in an activity, an

                                               9
individual must take “‘some part in’ an activity, or help it to

occur.”       Negusie, 555 U.S. at 544 (quoting Reves v. Ernst &

Young, 507 U.S. 170, 178–79 (1993)) (emphasis in original).

       The    Attorney         General’s      rule        strains   these     definitions.

Recall       that    under      the    Attorney       General’s        construction,        an

individual could be barred from relief if, as a leader of a

political group, he forges ties with an armed group that commits

or has committed atrocities, with awareness of these atrocities.

Matter of A-H-, 23 I. & N. Dec. at 785.                       The definition does not

make a distinction based on the timing of the atrocities.                              Thus,

under the Attorney General’s construction, the persecutor bar

could apply even if the atrocities occurred years before the

individual forged ties with the armed group.                           It could apply if

the atrocities occurred before the individual was even born.

       For these reasons, every circuit court that has interpreted

the persecutor bar in the INA—both before and after the Attorney

General’s      decision—concluded             that    a    necessary     element      of   the

persecutor         bar    is    a   causal     nexus        between    the    individual’s

actions      and     an   actual      instance       of    persecution.        See,    e.g.,

Higuit v. Gonzales, 433 F.3d 417, 421 (4th Cir. 2006) (“[A]

distinction          must      be     made     between       genuine     assistance        in

persecution           and       inconsequential             association        with        the

persecutors.”); Diaz-Zanatta v. Holder, 558 F.3d 450, 455 (6th

Cir.   2009)        (“[T]here       must     have    been    some     nexus   between      the

                                               10
alien’s actions and the persecution.”); Chen v. U.S. Atty. Gen.,

513 F.3d 1255, 1259 (11th Cir. 2008) (conduct cannot be “merely

indirect, peripheral and inconsequential association” but rather

“active, direct and integral to the underlying persecution”);

Castaneda-Castillo v. Gonzales, 488 F.3d 17, 20 (1st Cir. 2007)

(holding    that      “the      term    ‘persecution’            strongly      implies      both

scienter     and        illicit       motivation”         and     requires         “prior       or

contemporaneous knowledge” of the persecution); Xu Sheng Gao v.

U.S.   Atty.    Gen.,      500     F.3d       93,    99    (2d    Cir.    2007)         (finding

assistance      “[w]here        the    conduct       was     active      and      had    direct

consequences       for    the     victims,”         not   “[w]here       the    conduct      was

tangential...and passive in nature”); Alvarado v. Gonzales, 449

F.3d   915,      927–28         (9th     Cir.       2006)        (requiring        “material”

assistance      and      noting       that    mere    membership         in    a    group       is

inadequate);       Singh     v.   Gonzales,         417    F.3d    736,     739    (7th     Cir.

2005) (“[A] distinction must be made between genuine assistance

. . . and inconsequential association.”); Hernandez v. Reno, 258

F.3d 806, 814 (8th Cir. 2001) (noting that individuals will not

“necessarily       be    held     responsible        for    any     involvement          with    a

persecutory     group”       absent       a   showing       of    culpability).             This

unanimity      across      circuits       springs         from    the    clear      statutory

language.      An individual cannot incite an act that has already

occurred.      An individual cannot assist an act without having any

effect on the act.

                                               11
       In Singh the Seventh Circuit required a nexus between an

individual’s actions and the persecution in question.                              417 F.3d

at 739.        The asylum applicant in Singh was part of a Punjabi

police force accused of committing persecution.                            A causal nexus

is   vital,     the   Seventh      Circuit      concluded,       because       the       police

force “served legitimate law enforcement purposes and did not

exclusively      engage       in   . . .    persecution.”              Id.         As    such,

membership in the police force alone was not enough to support

application      of    the    persecutor     bar      absent       evidence        that     the

applicant actively assisted in persecution.                        Id.      By extension,

if membership in a group accused of atrocities is not enough,

then membership in a group with ties to a terrorist group is

also not enough.            See Diaz-Zanatta, 558 F.3d at 456; Singh, 417

F.3d at 739.         Like the Punjabi police force, Mr. Haddam’s FIS is

a political party with legitimate purposes.                      Even if the FIS had

ties    with     a    terrorist     group       at    one    point,         Mr.    Haddam’s

membership      in    the    FIS   would   not       be   enough      to    show     that    he

actively persecuted or assisted in persecuting others.

       Similarly,       in     Castaneda-Castillo,              the        First        Circuit

required more than incidental involvement with persecution.                                  In

that    case,    which       was   decided      after     the    Attorney          General’s

opinion, the petitioner was part of a police patrol outside a

village where a brutal massacre occurred, but the petitioner

claimed no knowledge of the massacre.                       488 F.3d at 19.                 The

                                           12
First Circuit found that the persecutor bar cannot encompass

actions taken without any knowledge of the specific persecution

in question.        Id. at 22.       “Dictionary definitions, as well as

the    Board’s    own   precedent,     bear       this    out.       So    does     common

sense.”    Id. at 20.

       Thus, the determinative question in persecutor bar cases is

whether    the     individual’s      actions       have     a    causal     nexus       with

instances of persecution.             As the case law suggests, factors

that aid this determination include intent, knowledge, and the

timing of the individual’s alleged assistance.                            An individual

who took actions with no prior or contemporaneous knowledge of

persecution is unlikely to have the requisite causal nexus.                              See

Castaneda-Castillo, 488 F.3d at 20–21.                    Scienter and intent can

aid the BIA in separating a bona fide torturer from “the bus

driver    who     unwittingly   ferries       a     killer      to   the    site     of    a

massacre.”       Id. at 20.     Timing is a helpful indicator as well.

In    certain    cases,    after-the-fact         behavior      might      rise    to    the

level     of     assistance.    Examples          include       an    individual         who

knowingly burns evidence of a massacre or helps a murderer evade

being discovered.          See id.    However, if the alleged assistance

occurs    years    after    persecution,       it    is    less      likely   that       the

behavior could be described as assisting the overall scheme that

drives the persecution.



                                        13
     While no Court of Appeals has done away with the nexus

requirement, the Third Circuit arguably came close to adopting

the Attorney General’s view in United States v. Koreh, 59 F.3d

431 (3d Cir. 1995).             In Koreh, the applicant was a newspaper

editor in Hungary before World War II whose newspaper published

dozens of anti-Semitic articles.                  Id at 435.         The Hungarian

government, which was also anti-Semitic, licensed Koreh to open

his newspaper and gave him direction on “what kinds of articles

they thought were useful.”              Id.    The court ruled against Koreh

because it concluded that publishing propaganda could be counted

as   assisting    persecution          insofar    as   the    propaganda    incited

others to murder.         Id.     While Koreh did not directly persecute

others,    the   court    found    a    link     between   the    propaganda    Koreh

published and the wave of persecution that Jewish Hungarians

faced.     However, even in Koreh, the court refused to apply the

persecutor bar without a showing that the persecution occurred

after Koreh’s newspaper was published.                 Id.       Writings published

after the fact would not qualify.                 In contrast, the BIA relied

on   Mr.   Haddam’s      after-the-fact        language      that    signaled   some

support for previous acts of persecution.                  Thus, even Koreh does

not go as far as the Attorney General’s definition, since the

Koreh court would not apply the persecutor bar to mere approval

of past events.



                                          14
       Further, the Koreh case involved application of a different

statute, the Displaced Persons Act of 1948 (the “DPA”) 3, which

uses       different    language            and    which    Supreme      Court     precedent

suggests can be misleading in the INA context.                                 The DPA is

problematic      as     a    tool      to    interpret     the    INA    because      the   two

statutes      differ        in   key    language.      The       DPA    bars   from    relief

individuals who “advocated or assisted in the persecution of any

person because of race, religion, or national origin.”                             64 Stat.

227 (emphasis added).               The INA’s persecutor bar omits the word

“advocate,” limiting its reach only to those individuals who

assist,       incite,        order,         or    otherwise       participate         in    the

persecution.           It is unclear that the Koreh court would have

applied the persecutor bar to a propagandist absent language

that reaches those who advocate persecution.

       In light of this, it is unsurprising that the Supreme Court

has cautioned against using case law on the DPA’s persecutor bar

to aid interpretation of the INA’s persecutor bar.                             See Negusie,

555 U.S. at 520 (noting that persecutor bars in the DPA and INA

serve different statutory purposes).                       Unlike in the DPA context,

the persecutor bar in the INA applies to “individuals who have

established that they would likely be persecuted if sent back to


       3
       Pub. L. No. 80-774, ch. 647, 62 Stat. 1009 (1948) as
amended by the Act of June 16, 1950, ch. 262, 64 Stat. 219.



                                                  15
their native country.”               Xu Sheng Gao, 500 F.3d at 98.                      The

purpose    of   the    DPA,     meanwhile,        was    to     make   it   easier      for

immigrants      affected      by     World    War   II    to     enter    this    country

without regard to immigration quotas.                    Negusie, 555 U.S. at 518.

Accordingly, there exist reasons to be careful in applying the

persecutor bar in the INA context that are inapplicable to DPA

cases, because someone denied under the DPA’s persecutor bar

would not be returning to a country where she faces persecution

herself.     Thus, the Attorney General misplaces his reliance on

authority that not only provides limited support as a general

matter    but   also    involves       a     different    statute        with   different

language and a different purpose.

      In sum, the BIA’s order denying withholding of removal was

error because it relied on an interpretation of the INA that is

impermissible under step two of Chevron.                        The language of the

INA   excludes        the     Attorney       General’s         definition,       and    the

unanimity across circuits reflects this.                      We therefore remand to

the BIA to decide whether, using a permissible interpretation of

the   INA,       Mr.        Haddam     qualifies         for     withholding           under

§ 1253(h)(2).      We emphasize that the INA’s persecutor bar does

not apply absent evidence that an individual took active steps

to assist or participate in a specific act of persecution.                             Mere

verbal approval of an act after the fact is not enough, nor is



                                             16
mere       membership        in    a         group     with     ties   to     a      terrorist

organization. 4



                                                III.

       Although we reverse the BIA’s decision to deny withholding

of removal, we affirm the decision to deny Mr. Haddam asylum as

a matter of discretion.                 Under the INA, the Attorney General has

discretion         to    grant     asylum        to    individuals      who        qualify    as

refugees.          Dankum     v.   Gonzales,          495     F.3d   113,    115    (4th     Cir.

2007).          This discretion is not a blank check.                       Zuh v. Mukasey,

547 F.3d 504, 506 (2008).                      Nonetheless, there exists a small

class      of    cases    where        the    Attorney       General   can    exercise       his

discretion to deny asylum, even if the withholding remedy also

applies.          Id. at 509; see Koujinski v. Keisler, 505 F.3d 534,

543 (6th Cir. 2007).               For example, an individual’s involvement

with       armed    groups    might          justify     a    discretionary         denial    of

asylum, even if the individual’s involvement is not so severe

that       he     qualifies       as     a     persecutor       for    purposes       of     the

withholding analysis.




       4
       Because our conclusion stems from the language of the
statute, we need not reach Mr. Haddam’s argument that the
Attorney    General’s   definition    is   impermissible under
international law and the First Amendment.



                                                 17
      This is precisely the situation before us.                                  The Attorney

General has discretion to deny asylum in extreme cases where

there   is   evidence      of    involvement         in        terrorism,        even       if     such

involvement    does     not      rise    to    the       level        of    participation            in

persecution.     In contrast to issues of statutory interpretation,

which   remain       the      province         of       the      judiciary,            8      U.S.C.

§ 1252(b)(4)     (2012),        our     review          of     the        Attorney         General’s

discretionary    asylum         decisions      is       more     limited.             We    may     not

substitute our own judgment for the Attorney General’s.                                            Zuh,

547 F.3d at 514.           As such, though we must correct the BIA’s

decisions      when        they       rest         on        impermissible                 statutory

interpretations, we will not second-guess the Attorney General’s

discretionary     asylum         decision          unless       it        was    an        abuse    of

discretion.       In    this      case,       we     conclude             that   the        Attorney

General’s decision was within the bounds of his discretion.

      In making the discretionary asylum decision, the Attorney

General must “weigh all relevant evidence under the totality of

the circumstances” before denying asylum.                         Zuh, 547 F.3d at 507.

Relevant     positive      factors       include          an    applicant’s            “[f]amily,

business, community and employment ties to the United States,”

“[e]vidence     of     good       character,            value        or     service         to     the

community,”    and     evidence         of    “severe          past       persecution         and/or

well-founded fear of future persecution, including consideration

of   other   relief     granted.”            Id.     at      511.          Relevant         negative

                                              18
factors      include      “evidence        that    indicates         bad    character          or

undesirability for permanent residence” and “an actual adverse

credibility finding by the [Immigration Judge].”                            Id.        When, as

in    this     case,    an   individual        would         otherwise      qualify       as   a

refugee, discretionary denials of asylum are “‘exceedingly rare’

and are generally based on egregious conduct by the applicant.”

Id. (quoting Huang v. I.N.S., 436 F.3d 89, 98 (2d Cir. 2006)).

      Here, the Attorney General did not abuse his discretion.

To the contrary, the Attorney General addressed the relevant

positive       and     negative      factors      in     a     well-reasoned           opinion.

Matter of A-H-, 23 I. & N. Dec. at 780–83.                               On the positive

side,    Mr.    Haddam    has      family   in     the      United   States,       including

three children who are United States citizens.                                  Id. at 783.

Additionally, Mr. Haddam has qualified for protection under the

Convention       Against     Torture,       further          weighing      in    his     favor.

However, as the Attorney General’s opinion details, there is

evidence that Mr. Haddam had links to armed groups in Algeria

who     used     violence       in    combating          the    Algerian         government,

sometimes targeting civilians.                 Likewise, the record is replete

with examples where Mr. Haddam approved of this violence, even

if    his      approval      did     not    rise       to      the   level        of     actual

participation.          The Attorney General concluded that these links

and statements “strongly weigh against a discretionary grant of

asylum.”       Id. at 782.           Because the Attorney General looked to

                                             19
the   totality      of   the       circumstances        and   balanced         the    relevant

negative and positive factors, his opinion was not an abuse of

discretion.         See, e.g., Kouljinski v. Keisler, 505 F.3d 534,

541–43 (6th Cir. 2007).

      We   also     find      unpersuasive        Mr.    Haddam’s         Fifth      Amendment

arguments.      Mr. Haddam argues that the Immigration Judges, BIA,

and Attorney General denied him due process when they relied on

faulty evidence and refused to force the government to disclose

favorable evidence.            These arguments are unavailing.                    Mr. Haddam

must show that there was a defect in his proceedings and that he

experienced prejudice as a result of the defect.                                  See, e.g.,

Garza-Moreno v. Gonzales, 489 F.3d 239, 241–42 (6th Cir. 2007).

The   Federal      Rules      of    Evidence      do    not    apply      to    immigration

proceedings, though immigration judges cannot rely on unreliable

evidence.       Anim     v.    Mukasey,      535    F.3d      243,   256–57          (4th   Cir.

2008).

      Here, the Attorney General relied on a series of newspaper

articles     and     foreign        policy     publications          as    evidence         that

Mr. Haddam supported violence.                     Mr. Haddam argues that these

articles     lack    reliability.            We     disagree,        finding         that   the

articles that the Attorney General relied on are sufficiently

trustworthy.        While the articles, like most journalism, contain

layers of hearsay, the articles that the Attorney General cites

include     articles       from      the   British       Broadcasting          Corporation,

                                             20
Amnesty International, and Human Rights Watch.              The articles are

not inherently suspicious or problematic, and even if a handful

of articles are relatively less reliable, the Attorney General

relied on dozens of reports to reach his conclusion.                    One bad

apple will not spoil the bunch.

       The allegedly favorable evidence not given to Mr. Haddam

consists of statements during telephone conversations made by

Mr. Haddam himself.      At best, this evidence would show that Mr.

Haddam had limited contact with the FIS or GIA.                  However, this

does     not    rebut   the     basis        for   the   Attorney    General’s

discretionary denial of asylum, since this denial was based on

Mr. Haddam’s testimony as well as news reports showing that Mr.

Haddam    had   links   to    both   groups.        As   such,   even   if   the

withholding of exculpatory evidence violates Due Process in this

setting, which we do not decide, Mr. Haddam would be unable to

show prejudice from the alleged defect.



                                        IV.

       For the foregoing reasons, we deny the petition for review

in part and we grant the petition in part and remand the case to

the BIA to decide whether there is a strong enough nexus between




                                        21
Mr. Haddam’s behavior and actual instances of persecution that

would warrant application of the persecutor bar.

                                         PETITION DENIED IN PART,
                                                 GRANTED IN PART,
                                                AND CASE REMANDED




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