Ahlijah v. Ashcroft , 123 F. App'x 4 ( 2005 )

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-1120
STEPHEN AHLIJAH,
Petitioner,
v.
JOHN ASHCROFT,
UNITED STATES ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Circuit Judge,
Campbell, Senior Circuit Judge,
and Howard, Circuit Judge.
Stephanie F. Dyson, with whom William P. Joyce and Joyce &
Zerola, P.C. were on brief, for petitioner.
Leslie McKay, Attorney, United States Department of Justice,
Civil Division, Office of Immigration Litigation, with whom Peter
D. Keisler, Assistant Attorney General, and Terri J. Scadron,
Assistant Director, were on brief, for respondent.
February 18, 2005
Per Curiam. Petitioners Stephen Ahlijah ("Mr. Ahlijah")
and Essivi Ahlijah ("Ms. Ahlijah") appeal the Board of Immigration
Appeals' ("BIA") affirmance of an Immigration Judge's decision
denying Mr. Ahlijah's applications for asylum, withholding of
removal, cancellation of removal, and relief under the Convention
Against Torture ("CAT"), and also denying Ms. Ahlijah's separate
applications for asylum and relief under the CAT. We affirm.
I. Background
Mr. Ahlijah is a native and citizen of Ghana and a member
of the Ewe tribe, members of which are located in both Ghana and
its neighbor to the east, Togo. Mr. Ahlijah testified that he was
raised by his uncle and lived in Akra, Ghana until 1979. In 1979,
there was a coup in Ghana, and Mr. Ahlijah's uncle, who was
affiliated with the government, was arrested and imprisoned.
Mr. Ahlijah and the rest of the family fled to Togo. In 1987,
Mr. Ahlijah married Ms. Ahlijah, who is a native and citizen of
Togo and also a member of the Ewe tribe.
In 1987, Mr. Ahlijah joined a group called EKPEMOG, which
means "young democrats fighting for freedom and justice in Togo."
EKPEMOG opposed the Togolese government and sought greater freedom
and democracy in Togo. Mr. Ahlijah's duties for EKPEMOG included
distributing fliers and delivering messages from group members in
Ghana to group leaders in Togo.
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Mr. Ahlijah testified that around November 1987, members
of EKPEMOG in exile in Ghana crossed the border into Togo and
attempted a coup against the Togolese government.1 Mr. Ahlijah
provided EKPEMOG with information regarding the movement of
Togolese border guards. This information assisted EKPEMOG troops
in crossing the border from Ghana into Togo. Mr. Ahlijah testified
that he did not know that the information he provided was for a
coup. He testified that after the coup failed, he was among a
crowd of people who threw stones at soldiers and burned cars.
Mr. Ahlijah also testified that he assisted in hiding some of the
rebels. After the coup failed, Mr. Ahlijah went into hiding for
one month.
In January 1989, he was arrested by the Togolose
authorities and imprisoned for twenty days. During this time, the
authorities beat him in order to extract information about other
members of EKPEMOG. After his release, several friends from
EKPEMOG disappeared, and Mr. Ahlijah began to fear for his safety
because of his affiliation with EKPEMOG. In December 1989, a
sympathetic Ewe police officer told Mr. Ahlijah that he should
leave Togo because the government was looking for him. The
officer helped Mr. Ahlijah acquire a Togolese passport and a visa
under someone else's name. Mr. Ahlijah left Togo on December 17,
1
Later in his testimony, Mr. Ahlijah stated that he could not
remember if the coup took place in 1986 or 1987.
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1989. He entered the United States on December 18, 1989, at New
York, New York. He testified that he fears he will be arrested or
killed by the Togolose government if he returns to Togo.
Mr. Ahlijah also testified that he fears returning to Ghana, even
though his uncle has been released from prison and "every issue to
do with [his] fleeing to Togo is over," because he believes the
Togolese government would be able to find and kidnap him in Ghana.
In January 1990, the police came to the Ahlijahs' home in
Togo looking for Mr. Ahlijah. When they did not find him, they
arrested Ms. Ahlijah. She was imprisoned for two days without
food, questioned about her husband's whereabouts and beaten.
Several months later, Ms. Ahlijah was arrested again and imprisoned
for five days. Between 1990 and 1993, Ms. Ahlijah remained in
Togo. She was not arrested again, although the police occasionally
came to her house. Ms. Ahlijah also testified that the family of
Kokou Sukah, the man whose passport Mr. Ahlijah used to enter the
United States, came to her house and asked her to tell her husband
to return to Togo. Apparently, Kokou Sukah was arrested for aiding
Mr. Ahlijah, and his family wanted Mr. Ahlijah to return so that
the police would stop harassing them. In November 1993,
Ms. Ahlijah left Togo and went to Ghana. She originally stayed in
the village of Denu, which is near the border with Togo. She
eventually went to the town of Tamale, further from the border,
because she feared that Togolese police might find her in Denu. In
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1999, Ms. Ahlijah left Ghana and came to the United States. She
entered the United States on December 23, 1999 at New York, New
York.
On January 27, 1994, Mr. Ahlijah filed an application for
asylum with the Immigration and Naturalization Service ("INS").2
On August 22, 2000, Mr. Ahlijah's application was referred to an
Immigration Judge. On October 18, 2001, Mr. Ahlijah amended his
asylum application to include Ms. Ahlijah. On November 5, 2001,
the INS issued a Notice to Appear to Mr. and Ms. Ahlijah, charging
them with removability under § 237(a)(1)(A) of the Immigration and
Nationality Act ("INA"), 8 U.S.C. § 1227(a)(1)(A), for being
inadmissible at the time of entry into the United States.
At a hearing before an Immigration Judge on April 30,
2002, Mr. and Ms. Ahlijah admitted the factual allegations against
them and conceded removability. Mr. Ahlijah requested cancellation
of removal, asylum, withholding of removal, and relief under the
CAT. The Immigration Judge instructed Mr. Ahlijah to file his
application for cancellation of removal by December 9, 2002, and
made January 28, 2003, the date for the next hearing. At the
hearing on January 28, 2003, Mr. Ahlijah, who had failed to meet
the December 9, 2002 due date, filed his application for
2
In March 2003, the relevant functions of the INS were
transferred into the new Department of Homeland Security and
reorganized into the Bureau of Immigration and Customs Enforcement
("BICE"). For simplicity, we refer to the agency throughout this
opinion as the INS.
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cancellation of removal. Also at this hearing, Ms. Ahlijah filed
an independent asylum application, claiming Mr. Ahlijah as a
derivative.
In an oral decision on May 1, 2003, the Immigration Judge
denied Mr. Ahlijah's application for cancellation of removal
because it was not timely filed, and his applications for asylum
and withholding of removal because he was inadmissible as a
terrorist under 8 U.S.C. § 1182(a)(3)(B)(i). The Immigration Judge
also denied Mr. Ahlijah relief under the CAT. The Immigration
Judge ordered that Mr. Ahlijah be removed to Ghana. Mr. Ahlijah
filed a timely notice of appeal to the BIA.
The Immigration Judge pretermitted Ms. Ahlijah's
independent asylum application as untimely under 8 U.S.C. § 1158(a)
(2)(B), because Ms. Ahlijah failed to file the application within
one year of her arrival in the United States. The Immigration
Judge denied Ms. Ahlijah's requests for withholding of removal and
relief under the CAT, and ordered Ms. Ahlijah to be removed to
Togo, or, in the alternative, Ghana. Ms. Ahlijah filed a separate
notice of appeal to the BIA.
On December 24, 2003, the BIA consolidated the Ahlijahs'
appeals and affirmed the decision of the Immigration Judge. Unlike
the Immigration Judge, the BIA reached the merits of Mr. Ahlijah's
asylum and withholding of removal applications, and found that he
had failed to prove past persecution or a well-founded fear of
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future persecution should he return to Ghana. The BIA denied Ms.
Ahlijah's independent asylum application, finding that she failed
to file it within one year of her arrival in the United States, and
that there were no extraordinary circumstances to explain the late
filing. The BIA also found that both Mr. and Ms. Ahlijah failed to
meet their burden of proof for relief under the CAT. Finally, the
BIA affirmed the Immigration Judge's decision to deny Mr. Ahlijah's
application for cancellation of removal because he failed to file
it by the deadline set by the Immigration Judge.
A petition for review to this court was filed on January
21, 2004, but did not contain Ms. Ahlijah's name. On February 18,
2004, Mr. Ahlijah filed a motion to amend the parties to include an
additional petitioner, Ms. Ahlijah. On April 26, 2004, we directed
the parties to address in their briefs the issue of whether we have
jurisdiction to consider an untimely request for judicial review by
granting a motion to amend another person's timely petition to
include the late filer. We address this issue first.
II. Analysis
A. Ms. Ahlijah's Appeal
A petition for review from all final BIA orders must be
filed with this court within thirty days. 8 U.S.C. § 1252(b)(1);
Zhang v. INS, 348 F.3d 289, 292 (1st Cir. 2003). "This need to
timely appeal is a strict jurisdictional requirement." Id. The
petition for review must, among other things, "name each party
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seeking review either in the caption or the body of the petition --
using such terms as 'et al.,' 'petitioners,' or 'respondents' does
not effectively name the parties." Fed. R. App. P. 15(a)(2). The
advisory committee notes state that, unlike Fed. R. App. P. 3(c),
which deals with appeals from a district court, Fed. R. App. P.
15(a), which deals with appeals from administrative agencies, does
not allow flexibility "to describe the parties in general terms
rather than naming them individually"; instead, "each petitioner
must be named." Fed. R. App. P. 15(a)(2) advisory committee's
note.
Ms. Ahlijah concedes that her name and alien number did
not appear on the petition for review to this court. She
nevertheless argues that we should consider her to be properly
included as a party to this petition. Ms. Ahlijah notes that her
case was consolidated with Mr. Ahlijah's case before the
Immigration Judge and BIA, that the Department of Homeland Security
("DHS") included her name and alien number in its only filing to
this court, and that the DHS never opposed including Ms. Ahlijah in
the petition during the time between the filing of the motion to
amend parties to include Ms. Ahlijah and our order directing the
parties to address this issue in their briefs. Ms. Ahlijah also
argues that Mr. Ahlijah met the thirty-day window to file a
petition, and that her "claim rides with his claim."
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Given the inflexible nature of Fed. R. App. P. 15(a) and
8 U.S.C. § 1252(b)(1), we find that we do not have jurisdiction to
hear Ms. Ahlijah's appeal. The fact that her case was consolidated
with Mr. Ahlijah's before the Immigration Judge and the BIA has no
bearing on her appeal to this court. Fed. R. App. P 15(a) provides
clear, strict requirements for a petition to this court, and the
status of the parties at the agency level is irrelevant to these
requirements. Further, the fact that the DHS included
Ms. Ahlijah's name on a filing to this court and did not
immediately object to the motion to amend parties to include
Ms. Ahlijah is irrelevant to whether we have jurisdiction over
Ms. Ahlijah's petition. Finally, Ms. Ahlijah's independent claim
does not "ride" with Mr. Ahlijah's claim. She filed a separate
application below, and therefore was required to timely appeal any
final order of the BIA. Ms. Ahlijah failed to do so, and we
therefore find that we do not have jurisdiction to hear her
independent appeal.
B. Mr. Ahlijah's Appeal
1. Asylum
Mr. Ahlijah bears the burden of demonstrating his
eligibility for asylum. See 8 C.F.R. § 208.13(a). He may meet
that burden by demonstrating past persecution or a well-founded
fear of future persecution based on any of five grounds, including
"race, religion, nationality, membership in a particular social
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group, or political opinion." Id. § 208.13(b)(1). We will uphold
the decision of the BIA if it is "supported by reasonable,
substantial, and probative evidence on the record considered as a
whole." INS v. Elías-Zacarías, 502 U.S. 478, 481 (1992)(quoting 8
U.S.C. § 1105a(a)(4)). Under this standard, "[t]o reverse the BIA
finding we must find that the evidence not only supports that
conclusion, but compels it . . . ." Id. at 481 n.1 (emphasis in
original).
Mr. Ahlijah first argues that the BIA erred because it
did not address the Immigration Judge's finding that he was barred
from relief because he was a terrorist, and instead found that he
had not met his burden of proving past persecution or a well-
founded fear of future persecution. According to Mr. Ahlijah, it
was a violation of his due process rights for the BIA to address
the merits of his eligibility for asylum when the Immigration Judge
never did.
The BIA was not required to address the terrorist issue
simply because that was the basis of the Immigration Judge's
decision. While the BIA may not "engage in de novo review of
findings of fact determined by an immigration judge", 8 C.F.R.
§ 1003.1(d)(3)(i), it "may review questions of law . . . de novo."
Id. § 1003.1(d)(3)(ii). In the instant case, the Immigration Judge
made findings of fact regarding Mr. Ahlijah's credibility and his
experiences in Ghana and Togo. Based on those findings of fact,
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the Immigration Judge concluded that Mr. Ahlijah was barred from
relief as a terrorist. In its opinion, the BIA recognized the
basis for the Immigration Judge's decision but chose not to address
that issue. Instead, the BIA decided that, based on the facts as
found by the Immigration Judge, Mr. Ahlijah had failed to prove
that he suffered past persecution or had a well-founded fear of
future persecution. This choice was within the powers granted to
it under 8 C.F.R. § 1003.1(d). The BIA did not undertake a de novo
review of facts found by the IJ, but instead undertook a de novo
review of a legal question: Mr. Ahlijah's statutory eligibility for
asylum.
After carefully reviewing the record, we conclude that
Mr. Ahlijah was not deprived of due process. He had a full and
fair hearing before the Immigration Judge and was allowed to
present evidence to support his claim for relief. While the
terrorist bar was an issue at his hearing, it did not prevent
Mr. Ahlijah from presenting the evidence upon which he based his
claims of past persecution and fear of future persecution.
Further, the BIA acted within its powers when, relying on the facts
found by the Immigration Judge, it found that Mr. Ahlijah had
failed to prove past persecution or a well-founded fear of future
persecution. While the Immigration Judge did not reach the merits
of Mr. Ahlijah's asylum claim, she articulated the facts upon which
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Mr. Ahlijah based his asylum claim. We therefore find that there
was no due process violation.
Mr. Ahlijah next argues that the BIA should have found
that he suffered past persecution or had a well-founded fear of
future persecution. To establish past persecution, an applicant
must provide "conclusive evidence" that he was targeted on any of
the five statutorily protected grounds. Fesseha v. Ashcroft, 333
F.3d 13, 18 (1st Cir. 2003). An applicant who establishes past
persecution is presumed to have a well-founded fear of future
persecution. 8 C.F.R. § 208.13(b)(1). Mr. Ahlijah argues that he
established past persecution at his hearing through testimony of
his imprisonment for twenty days by the Togolese authorities,
during which time he was beaten and asked questions about the names
of other members of EPKEMOG.
We do not address whether this incident in Togo
constituted persecution, because what happened in Togo is
irrelevant to whether Mr. Ahlijah suffered persecution in Ghana.
Mr. Ahlijah is a native and citizen of Ghana, and Ghana is his
country of removal. In order to be eligible for asylum,
Mr. Ahlijah has the burden of proving that he suffered past
persecution in Ghana. However, Mr. Ahlijah has not claimed that he
suffered past persecution in Ghana and we therefore find that
Mr. Ahlijah did not suffer past persecution in Ghana.
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Because Mr. Ahlijah has not proven past persecution in
Ghana, he is not presumed to have a well-founded fear of
persecution if he returns to Ghana. Absent such a presumption, to
establish a well-founded fear of future persecution, "the asylum
applicant's fear must be both genuine and objectively reasonable."
Aguilar-Solís v. INS, 168 F.3d 565, 572 (1st Cir. 1999). We focus
our discussion on the objective prong, asking "whether a reasonable
person in the asylum applicant's circumstances would fear
persecution on account of a statutorily protected ground." Id.Mr. Ahlijah does not argue that he fears persecution by
anyone in Ghana. He instead argues that he has a well-founded fear
of persecution if he returns to Ghana because (1) he has heard
frequent reports of Togolose police pursuing people across the
border into Ghana and kidnapping them; (2) the country condition
reports in the record show that Togo's human rights record has
worsened; and (3) these reports show that the border between Ghana
and Togo is porous and that Togolese police frequently cross into
Ghana to kidnap their targets.
At best, these reports indicate that the human rights
conditions in Togo are poor, that many Togolese have fled into
Ghana, and that in 1993-1994, there were isolated border skirmishes
following the coup attempt in which Mr. Ahlijah took part. See,
e.g., United States Dep't of State, 2001 Country Reports on Human
Rights Practices, Togo (Mar. 4, 2002). They do not indicate that
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the Togolese police frequently cross into Ghana to kidnap people.
Further, the State Department 2001 report for Ghana indicated that
the country was relatively calm. United States Dep't of State,
2001 Country Reports on Human Rights Practices, Ghana (Mar. 4,
2002). Whatever the situation in Togo, the evidence does not
compel a finding that a reasonable person in Mr. Ahlijah's
circumstances would fear persecution in Ghana on account of a
statutorily protected ground.
2. Withholding of Removal
Because Mr. Ahlijah is unable to satisfy the less
stringent standard for asylum, he is a fortiori unable to satisfy
the test for withholding of deportation. See, e.g., Albathani v.
INS, 318 F.3d 365, 374 (1st Cir. 2003).
3. Convention Against Torture
Mr. Ahlijah also argues that he is entitled to relief
under the CAT because he will be tortured if he is returned to
Ghana. An applicant for relief under the CAT must demonstrate
"that it is more likely than not that he or she would be tortured
if removed to the proposed country of removal." 8 C.F.R. § 208.16(c)(2). The regulations implementing the CAT define torture as
"severe pain or suffering," inflicted for one of several listed
purposes "by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an
official capacity." Id. § 208.18(a)(1). Mr. Ahlijah, who bases his
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argument on his arrest and beatings by the Togolose authorities,
has presented no evidence that any Ghanian official tortured him or
that it is more likely than not that he will be tortured if he is
removed to Ghana. We therefore find that substantial evidence
supports the BIA's findings regarding the CAT.
4. Cancellation of Removal
Mr. Ahlijah's final argument is that the BIA abused its
discretion in finding that the Immigration Judge properly deemed
his application for cancellation of removal abandoned. According
to Mr. Ahlijah, by deeming his application abandoned, the BIA
abused its discretion by failing to exercise it in his favor and
waive the deadline. We find no merit to this argument. An
Immigration Judge has the power to "set and extend time limits for
the filing of applications . . . . If an application or document is
not filed within the time set by the Immigration Judge, the
opportunity to file that application or document shall be deemed
waived." 8 C.F.R. § 1003.31(c). At a hearing on April 30, 2002,
the Immigration Judge set December 9, 2002 as the due date for
Mr. Ahlijah's application for cancellation of removal. Despite
having over seven months to file the application, Mr. Ahlijah did
not actually file the application until January 28, 2003. The
Immigration Judge was therefore within her power to deem the
application abandoned.
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Mr. Ahlijah also argues that the BIA failed to consider
his arguments that his late application was due to ineffective
assistance of counsel. Mr. Ahlijah, however, has not shown that he
complied with the requirements of Matter of Lozada, 19 I & N Dec.
637, 639 (BIA 1988), which the BIA has developed as a screen for
frivolous ineffective assistance of counsel claims. Under the
Lozada requirements, an applicant must support a claim of
ineffective assistance of counsel with:
(1) an affidavit describing in detail the
agreement between the alien and his counsel
regarding the litigation matters the attorney
was retained to address; (2) evidence that the
alien informed his counsel as to the alien's
ineffective assistance allegations and
afforded counsel an opportunity to respond;
and (3) evidence that the alien had either
filed a complaint with the appropriate
disciplinary authority regarding the
attorney's ethical or legal misfeasance, or a
valid excuse for failing to lodge such a
complaint.
Betouche v. Ashcroft, 357 F.3d 147, 149 (1st Cir. 2004).
Mr. Ahlijah has provided no evidence that he met those
requirements, and we therefore find that the BIA properly affirmed
the Immigration Judge's decision that Mr. Ahlijah abandoned his
application for cancellation of removal by failing to meet the
filing deadline imposed by the Immigration Judge.
III. Conclusion
For the reasons stated above, the BIA's order is
affirmed.
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