                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 21 2009

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



RACHID BENNANI,                                  No. 05-73200

             Petitioner,                         Agency No. A097-356-754

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,

             Respondent.



RACHID BENNANI,                                  No. 05-75097

             Petitioner,                         Agency No. A097-356-754

  v.

ERIC H. HOLDER Jr., Attorney General,

             Respondent.



                      On Petitions for Review of Orders of the
                          Board of Immigration Appeals




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                            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


        **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

                                           2
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,


                                          3
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


                                           4
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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