Diakhite v. Ashcroft ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
February 2, 2006
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
ISSA DIAKHITE,
Petitioner,
v. No. 04-9534
(No. A95-542-852)
ALBERTO R. GONZALES, * Attorney (Petition for Review)
General of the United States,
Respondent.
ORDER AND JUDGMENT **
Before BRISCOE , ANDERSON , and MURPHY , 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This order and judgment is not binding precedent, except under the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.
Petitioner Issa Diakhite is a native and citizen of Mauritania facing removal
from this country. He petitions for review of a decision of the Board of
Immigration Appeals (BIA) denying his requests for asylum, withholding of
removal, and relief under the Convention Against Torture, though his petition
focuses solely on the asylum decision. The BIA acknowledged that petitioner had
been persecuted on account of his ethnic identity for several years before he left
Mauritania in 1995, but found that (1) this past persecution did not reach the level
required under In re Chen , 20 I. & N. Dec. 16 (BIA 1989), to excuse him from
demonstrating a well-founded fear of future persecution, and (2) conditions had
changed in Mauritania to an extent that rendered such a fear unfounded. We have
jurisdiction to review the denial of asylum under 8 U.S.C. § 1252(a). Because the
BIA’s decision adheres to applicable legal standards and is supported by
substantial evidence, we affirm.
I
The basic facts are not in dispute. Petitioner belongs to an African ethnic
group settled along the Senegal River in southern Mauritania. In the late 1980s,
his family lived outside the city of Kaedi, near the border with Senegal. He and
his brother worked for their father, who was a cattle herder and farmer.
In 1989, tensions among Mauritania’s various ethnic groups, the politically
dominant “White Maurs” of Arab and Berber ancestry, the indigenous African
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“Black Maurs” whom they had historically enslaved, and the Sub-Saharan African
groups (such as petitioner’s) generally located in the Senegal River region,
erupted in a violent crisis associated with deteriorated Mauritania - Senegal
relations. In ensuing years, Mauritania expelled some 75,000 people of African
ancestry, many forced across the river into Senegal; others were killed, assaulted,
stripped of their property, and/or imprisoned. The violence extended to petitioner
and his family: he testified that in December 1989 his brother was killed, his
parents fled across the river to a refugee camp in Senegal, and he was taken to a
jail in Kaedi run by the government. He spent the next six years in confinement,
working (farming, washing clothes, carting water) without pay, sleeping on the
floor, and suffering disciplinary beatings, until he finally escaped into Senegal.
He found his parents at a refugee camp, where he stayed for three months. He
then went to the capital, Dakar, and worked as a type of porter for six years. He
was not paid, but received room and board. The man who gave petitioner that job
ultimately arranged for his transportation to the United States. He entered the
country in July 2001 and, after being served a notice to appear for removal
proceedings in June 2002, applied for asylum.
II
To obtain asylum, an alien must prove, first, that he is a refugee as defined
in 8 U.S.C. § 1101(a)(42)(A), and then persuade the Attorney General to exercise
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his discretion and grant relief under 8 U.S.C. § 1158(b). See Yuk v. Ashcroft ,
355 F.3d 1222, 1232-33 (10th Cir. 2004). The statute defines a “refugee” as “any
person . . . outside [his] country of . . . nationality . . . who is unable or unwilling
to return to, and is unable or unwilling to avail himself . . . of the protection of,
that country because of persecution or a well-founded fear of persecution on
account of race, religion, nationality, membership in a particular social group, or
political opinion.” 8 U.S.C. § 1101(a)(42)(A).
Past persecution, as found by the BIA here, may support an asylum request
in two distinct ways: (1) by raising a presumption of a well-founded fear of
future persecution sufficient to warrant relief, provided the government does not
rebut the presumption by showing “a fundamental change in circumstances such
that the applicant no longer has a well-founded fear of persecution,” 8 C.F.R.
§ 1208.13(b)(1)(i)(A); 1
or (2) by directly warranting relief, in the absence of any
fear of future persecution, provided the applicant demonstrates “compelling
reasons for being unwilling or unable to return to the country arising out of the
severity of the past persecution,” or “a reasonable possibility that he or she may
1
Another means of rebutting the presumption, by showing that an “applicant
could avoid future persecution by relocating to another part of [his] country of
nationality,” 8 C.F.R. § 1208.13(b)(1)(i)(B), was not relied upon (in fact, was
rejected) by the BIA and, thus, cannot support its decision here. See Mickeviciute
v. INS , 327 F.3d 1159, 1164-65 (10th Cir. 2003) (following INS v. Ventura ,
537 U.S. 12 (2002), and SEC v. Chenery Corp. , 332 U.S. 194 (1947)).
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suffer other serious harm upon removal to that country,” id. § 1208.13(b)(1)(iii).
See Niang v. Gonzales , 422 F.3d 1187, 1195 (10th Cir. 2005). Petitioner argues
that he should have been granted asylum on both of these grounds.
Whether the materials of record rebutted the presumptive inference from
past to future persecution is a question of fact reviewed for substantial evidence.
Marcu v. INS , 147 F.3d 1078, 1080-81 (9th Cir. 1998). That means we cannot
reverse the determination of the BIA unless the record compels us to conclude
that it was wrong. Id. ; see also Nazaraghaie v. INS , 102 F.3d 460, 463 n.2
(10th Cir. 1996) (noting deferential standard applies even if court is reviewing
application of statutory standard to established subsidiary facts).
Information on current conditions in country reports for Mauritania formed
the basis of the BIA’s determination. 2
Country reports can certainly constitute
substantial evidence to support such a determination, see Yuk , 355 F.3d at 1236,
though it is important to keep in mind that their inherently broad statements may
not always address the specific concerns that are salient in a particular case, see
Krastev v. INS , 292 F.3d 1268, 1276-77 (10th Cir. 2002). In commonsense terms,
“to be effective, [such] evidence of changed country conditions must negate a
2
The actual discussion of this information was set out in the oral decision of
the Immigration Judge (IJ), but the BIA expressly agreed with this part of the IJ’s
analysis in summarily concluding that changed conditions negated a well-founded
fear of future persecution upon petitioner’s return to Mauritania.
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petitioner’s particular fear.” Palma-Mazariegos v. Gonzales , 428 F.3d 30, 35
(1st Cir. 2005). A comparison of the report deemed inadequate in Krastev with
the report found sufficient in Palma-Mazariegos is instructive: the former report
was discounted because it addressed improvement in central government conduct
whereas the petitioner’s fear arose, rather, from mistreatment by local officials
whom the government could not control, see Krastev , 292 F.3d at 1276; the latter
report was properly relied upon because it indicated that the guerillas whom the
petitioner had feared had discontinued their militant activities pursuant to an
intervening peace accord, Palma-Mazariegos , at 428 F.3d at 35-36. In sum,
“[w]hen [a country] report convincingly demonstrates material changes in country
conditions that affect the specific circumstances of an asylum seeker’s claim, the
report may be sufficient, in and of itself, to rebut the presumption of future
persecution.” Id. at 36 (citing examples from case law).
The crisis that prompted the exile and detention of African Mauritanians
like petitioner and his family is long since over. The government has welcomed
the return of the exiles, with the assistance and oversight of the United Nations
High Commissioner for Refugees (UNHCR), and a majority have come back.
While some have not chosen to return, the UNHCR has concluded that there is no
impediment to their doing so. To be sure, Mauritania still has broad social and
political shortcomings in need of improvement. But these do not suggest a
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likelihood of persecution – i.e., “infliction of suffering or harm . . . in a way
regarded as offensive and [involving] more than just restrictions or threats to life
and liberty,” Yuk , 355 F.3d at 1233 (quotations omitted) – being continued or
resumed should petitioner return to the country. The case law contains many
examples consistently reaching similar conclusions on the basis of the same
country changes considered here. 3
There is, however, a more specific assertion that figures prominently in
petitioner’s argument that must be addressed here. He likens his confinement in
3
While these non-precedential decisions do not constrain our review, we
reference them for the consistency of assessment they reflect and the additional
discussion of the relevant materials they provide, with which we agree: See, e.g. ,
Haidara v. Gonzales , No. 04-0999, 2005 WL 3310012 (2d Cir. Dec. 7, 2005)
(unpub.); Diallo v. Gonzales , 140 F.App’x 612 (6th Cir. 2005) (unpub.); Sarr v.
Gonzales , 127 F.App’x. 815 (6th Cir. 2005) (unpub.); Diamengie v. Ashcroft ,
111 F.App’x. 508 (9th Cir. 2004) (unpub.). Petitioner has cited two supplemental
authorities involving Mauritanian exiles that he contends support his asylum
claim. One, Diallo v. Ashcroft , 381 F.3d 687, 700-01 (7th Cir. 2004), involved a
man arrested and expelled in 1993 on account of his membership in a political
opposition group, and is of little relevance. The other, In re Dia , A95-542-942
(BIA April 27, 2004), is an oddity; in it the BIA granted asylum to a Mauritanian
exile, summarily rejecting a government changed-conditions argument essentially
identical to the one it accepted here and in many other cases (reflected, for
example, in the unpublished circuit cases cited above). We are at a loss as to how
to harmonize that decision with those in which the BIA denied relief. But given
the deferential nature of our review, which allows for a gray area where we would
not be compelled to reject a BIA determination for either side of a particular
dispute, the fact that the BIA decided an apparently similar case in favor of an
applicant does not mean we may conclude that it erroneously denied relief here.
We trust that, even within this gray area of deferential leeway, the BIA endeavors
to maintain a consistency in result worthy of the responsibility with which it is
vested by administrative review principles.
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the government-run jail to slavery, and points to materials indicating that
enslavement of African “Black Maurs” by upper-class Arab-Berber “White
Maurs” has deep roots in Mauritanian history and may still be practiced in some
isolated areas. Any facial appeal this line of argument may have rests upon its
superficial equation of two very different politico-cultural circumstances. There
is no evidence of any relevant connection between the government’s confinement
of some southern Mauritanians like petitioner during the crisis surrounding and
following their expulsion to Senegal in 1989 - 1991 and the cultural practice of
Black Maur slavery whose isolated historical remnants are noted in the materials.
Further, such reports indicate that the practice, if it continues at all, is limited to
remote areas of the country, while petitioner’s home city of Kaedi is one of the
largest urban centers in the country. There is simply no reasonable basis on
which to conclude that petitioner has a well-founded fear of being subjected to
slavery upon his return to Mauritania.
In light of the above, we cannot say we are compelled to conclude that the
BIA erred in finding that the government had rebutted the presumption of future
persecution raised by petitioner’s adverse experiences during the Mauritanian
crisis of the late 1980s and early 1990s. Under our standard of review, we must
affirm that finding.
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Finally, petitioner contends that he should have been granted humanitarian
asylum regardless of the possibility of any future persecution. As noted earlier,
one way for petitioner to justify such relief is to demonstrate compelling reasons
“arising out of the severity of [his] past persecution” for being unwilling or
unable to return to his native country. 8 C.F.R. § 1208.13.(b)(1)(iii). Our cases
make it clear that this basis for relief is limited to those whose past persecution
was “so severe that it would so sear a person with distressing associations with
his native country that it would be inhumane to force him to return there, even
though he is in no danger of future persecution.” Krastev , 292 F.3d at 1280(quotations omitted); accord Ngarurih v. Ashcroft , 371 F.3d 182, 190 (4th Cir.
2004). As the examples discussed in the cited cases reflect, this relief is strictly
reserved only to those who suffered the most rare and abhorrent persecution, such
as survivors of the holocaust or the Cambodian genocide. Petitioner has not
shown persecution of the requisite nature and severity to warrant humanitarian
asylum on this basis. A second, recently added, means to justify humanitarian
asylum is for the petitioner to establish “a reasonable possibility that he . . . may
suffer other serious harm upon removal.” 8 C.F.R. § 1208.13(b)(iii). The record
does not establish, much less compel, a finding that such a possibility exists.
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The petition for review is DENIED.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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