Ba v. Ashcroft , 139 F. App'x 44 ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
June 29, 2005
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
ALFA BA,
Petitioner,
No. 04-9516
v. (BIA No. A78 355 117)
(Petition for Review)
ALBERTO R. GONZALES, *
Respondent.
ORDER AND JUDGMENT **
Before EBEL , BALDOCK , and KELLY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
On February 4, 2005, Alberto R. Gonzales became the United States
Attorney General. In accordance with Rule 43(c)(2) of the Federal Rules of
Appellate Procedure, Mr. Gonzales is substituted for John Ashcroft as the
Respondent in this action.
**
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Alfa Ba, a citizen of Sierra Leone, seeks asylum in the United States. An
immigration judge granted his request, but the Board of Immigration Appeals
reversed. We affirm the denial of asylum.
I.
Ba was born in 1972 in the city of Kabala, in Sierra Leone. In 1994, Ba’s
father ascended to a leadership position in Kabala, which Ba characterized as “the
chief of the village.” R. at 95. In this position, Ba’s father encouraged the
people of Kabala to support the government of Sierra Leone in its conflict with a
rebel group known as the Revolutionary United Front (RUF).
In 1999, the RUF entered Kabala and murdered Ba’s father and mother,
along with three other people in their house. Ba was not at home when this
massacre occurred, but he and other Kabala residents were subsequently taken
captive by the RUF. It appears from Ba’s testimony that his captors never
connected him to his father. Nevertheless, he was beaten daily, resulting in scars
that were still visible at his asylum hearing. He also saw a man summarily
executed for expressing support for the government.
Eventually, Ba escaped from the RUF and fled to Guinea. From there, he
made his way to the United States, arriving in April 2000. He applied for asylum
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seven weeks after his arrival. The Immigration and Naturalization Service denied
Ba’s application and commenced removal proceedings.
In proceedings before an immigration judge (IJ), Ba conceded removability
but continued to press his asylum claim. The IJ found Ba’s testimony was
“sufficiently detailed, consistent and believable to provide a plausible and
coherent account of the basis for his fears.” R. at 78. The IJ further determined
that the RUF would have imputed a hostile political opinion to Ba if they had
linked him to his father and that they would have killed him based on this imputed
opinion. In light of these conclusions, the IJ granted Ba’s application for asylum.
The Board of Immigration Appeals (BIA) reversed. Although it accepted
the IJ’s credibility determination, the BIA held that Ba’s testimony did not
establish that the RUF persecuted him “on account of a protected ground.” Id. at
2. The BIA further held that conditions in Sierra Leone had changed enough to
eliminate any reasonable fear of future persecution.
II.
As is relevant here, an alien may demonstrate that he is entitled to asylum
by showing either that he “has a well-founded fear of future persecution” or that
he “has suffered past persecution, which gives rise to a rebuttable presumption of
a well-founded fear of future persecution.” Wiransane v. Ashcroft, 366 F.3d 889,
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893 (10th Cir. 2004) (alterations and quotations omitted). We have defined
persecution as “the infliction of suffering or harm upon those who differ (in race,
religion, or political opinion) in a way regarded as offensive,” noting that it “must
entail more than just restrictions or threats to life and liberty.” Id. (quotations
omitted); see also 8 U.S.C. § 1101(a)(42)(A) (defining a “refugee” as a person
who has been persecuted or may face persecution in his home country “on account
of race, religion, nationality, membership in a particular social group, or political
opinion”). When the BIA has denied an asylum application, “[w]e will not
reverse the agency’s decision unless the evidence compels the conclusion that
petitioner[] [has] a well-founded fear of persecution on one of the . . . grounds”
set forth in 8 U.S.C. § 1101(a)(42)(A). Estrada-Escobar v. Ashcroft, 376 F.3d
1042, 1046 (10th Cir. 2004). 1
A. Past Persecution
It is undisputed that Ba was kidnaped and tortured by the RUF, and we
assume for purposes of decision that these acts would constitute persecution if
accompanied by the requisite motivation. The BIA, however, found proof of such
motivation lacking. We uphold this determination.
1
Congress recently modified a number of provisions governing asylum. See
REAL ID Act of 2005, Pub. L. No. 109-13, Div. B, § 101, 119 Stat. 231, 302-06.
Although the REAL ID Act went into effect on May 11, 2005, only a handful of
its provisions apply to pending cases. See id. § 101(h), 119 Stat. at 305-06. None
of these provisions affect our analysis in this appeal.
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Ba contends that the RUF persecuted him based on certain opinions
imputed to him and that persecution based on imputed opinions can satisfy
§ 1101(A)(42)(A). As the BIA found, however, there was no evidence that the
RUF ascribed any particular political views to Ba and their other captives. It is
possible that Ba’s kidnappers presumed that he and other Kabala residents shared
Ba’s father’s support for the Sierra Leonean government (as Ba alleges), but other
inferences are also possible from the record; for example, the rebels may have
believed their captives held neutral or even pro-RUF views and were therefore
ripe for conscription. See INS v. Elias-Zacarias, 502 U.S. 478, 482 (1992);
Sangha v. INS, 103 F.3d 1482, 1488-90 (9th Cir. 1997). Under these
circumstances, we must uphold the BIA’s determination that Ba failed to prove
persecution on account of political beliefs.
B. Future Persecution
On the issue of future persecution, the BIA relied on State Department
country reports stating that Sierra Leone had experienced a reduction in civil
strife generally, and RUF abuses in particular, since Ba departed. Ba contends
the BIA’s analysis was inadequate under 8 C.F.R. § 1208.13(b)(1) and Matter of
Chen, 20 I. & N. Dec. 16, 1989 WL 331860 (BIA 1989). We disagree.
Under Chen and § 1208.13(b)(1), an asylum applicant who proves that he
suffered persecution in the past is presumed to have a well-founded fear of future
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persecution. One way for the Government to rebut this presumption is to show
that “[t]here has been a fundamental change in circumstances” since the
persecution occurred. Id. § 1208.13(b)(1)(i)(A); cf. Chen, 20 I. & N. Dec. at 18
(discussing the presumption that arises from proof of past persecution and noting
that the Government can rebut this presumption by presenting “evidence that there
is little likelihood of present persecution”). Ba maintains that the BIA’s findings
do not satisfy § 1208.13(b)(1)(i)(A) and Chen. These authorities are inapposite,
however, as Ba has not made the showing of past persecution necessary to invoke
the § 1208.13(b)(1) presumption. See Akhtar v. Gonzales, 406 F.3d 399, 406
(6th Cir. 2005) (rejecting Chen claim based on asylum applicant’s failure to prove
past persecution). For this reason, and because Ba has not otherwise challenged
the BIA’s conclusion about current conditions in Sierra Leone, we affirm the
BIA’s determination regarding future persecution.
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III.
For the foregoing reasons, we affirm the decision of the BIA denying Ba’s
request for asylum.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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