Moussa v. Atty Gen USA ( 2012 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-3016
___________
DIABATE MOUSSA,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A090-347-275)
Immigration Judge: Honorable Rosalind K. Malloy
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 1, 2012
Before: RENDELL, VANASKIE and GARTH, Circuit Judges
(Opinion filed: March 5, 2012)
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OPINION
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PER CURIAM
Diabate Moussa appeals from the order of the Board of Immigration Appeals
(“BIA”) dismissing his appeal and upholding the decision of the Immigration Judge
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(“IJ”), which denied Moussa’s applications for asylum, withholding of removal, and
relief under the Convention Against Torture (“CAT”). For the reasons that follow, we
will deny the petition for review.
I
Moussa, a citizen of the Ivory Coast, entered the United States using someone
else’s passport on an unknown date, although he alleged before the IJ that he arrived in
the United States in February 2006. He was served with a notice to appear and, before
the IJ, conceded the charge of removability, but sought relief in the form of asylum,
withholding of removal, and CAT protection.
In support of his claims for relief, Moussa testified that he is a Muslim, that he is
of the Dioula ethnic group, and that he is a known supporter of the Rally of the
Republicans (“RDR”) party, which opposed President Laurent Gbagbo, who was in
office during the relevant time period. Moussa explained that he served as treasurer for
Mamayah, a social organization that helps Dioula people, and that he worked as a bus
driver, often using his bus to transport RDR members to events.
Moussa testified that when he and his wife were walking home one evening, they
were stopped on the street by a truck filled with men in military-style dress. The men
accosted Moussa and his wife, claiming that they knew them to be Dioulas and
supporters of RDR and its leader, Ouattara. Moussa alleged that the men forced him and
his wife into the truck, blindfolded them, and drove around for an indeterminate time
while the men rounded up other Dioulas. Moussa explained that, during the ordeal, the
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men in the truck physically abused the Dioulas, and that Moussa protested when he heard
his wife complain that one of the men was touching her breasts. Moussa testified that, in
response to his protest, one of the men shouted at him, hit him with a rifle butt, and
stabbed him in the leg. Eventually, the truck stopped and the men threw the Dioula
passengers out, threatening to kill them. Moussa testified that he and his wife ran away,
but that he could not keep up with her because of his wounded leg. He explained that he
never saw her again, and that when he made it back to his house, it was deserted. Moussa
testified that he took some money from the house and fled to Guinea, where he received
assistance from a family friend to travel to the United States.
Moussa never sought treatment for his injured leg, although he did submit an
evaluation from a doctor in the United States explaining that Moussa has a scar on his leg
consistent with the stabbing he described. He also submitted a letter from his friend --
written sometime before September 2008 -- indicating that he should not return to the
Ivory Coast because security forces were looking for him. On cross-examination,
Moussa admitted that he stopped paying attention to Ivory Coast politics when he came
to the United States, and he was therefore not aware if he would face problems because
of his political affiliation if he returned to the Ivory Coast.
The IJ held that Moussa failed to demonstrate the date on which he entered the
United States, and that he therefore could not demonstrate that his asylum application
was filed within one year of his arrival. Accordingly, the IJ pretermitted Moussa’s
asylum application. The IJ also held that Moussa’s account of his wife’s disappearance
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was incredible and that he had failed to corroborate his testimony regarding the
persecution of Dioulas, Muslims, or RDR supporters. Finally, the IJ concluded that even
if Moussa’s account of his abduction and assault was true, it did not rise to the level of
persecution for the purpose of demonstrating his entitlement to withholding and CAT
protection, and he had not demonstrated a likelihood of future persecution or torture. The
IJ therefore denied relief under those provisions, but granted Moussa’s request for
voluntary departure.
The BIA dismissed Moussa’s appeal, reasoning that the IJ correctly pretermitted
the asylum application and that, assuming Moussa testified credibly, he failed to
demonstrate that the harm he suffered amounted to past persecution or that he faces a
likelihood of persecution or torture if he returns to the Ivory Coast. Moussa timely
petitioned for review of the BIA’s decision.
II
As a threshold matter, an alien seeking asylum must prove by clear and convincing
evidence that he filed his application for asylum within one year of arriving in the United
States. See 8 U.S.C. § 1158(a)(2)(B). An immigration court may consider an untimely
asylum application only if the alien demonstrates changed circumstances that impact his
eligibility for asylum or extraordinary circumstances why he did not meet the one-year
deadline. § 1158(a)(2)(D). However, “[n]o court shall have jurisdiction to review any
determination by the Attorney General” that an asylum application was not timely filed.
§ 1158(a)(3); see Kaita v. Att’y Gen., 522 F.3d 288, 296 (3d Cir. 2008). Because the
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BIA and IJ held that Moussa failed to demonstrate by clear and convincing evidence that
his asylum application was timely filed, we have no jurisdiction to review Moussa’s
claim for asylum. See § 1158(a)(3).
To the extent that Moussa petitions for review of the denial of his withholding of
removal and CAT protection claims, we have jurisdiction to review the BIA’s order
pursuant to 8 U.S.C. § 1252(a)(1). Because the BIA issued its own opinion, we review
its decision rather than that of the IJ. See Li v. Att’y Gen., 400 F.3d 157, 162 (3d Cir.
2005). However, we also look to the decision of the IJ to the extent that the BIA deferred
to or adopted the IJ’s reasoning. See Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir.
2006). The Agency’s factual determinations are reviewed for substantial evidence, and
will be upheld unless any reasonable adjudicator would be compelled to reach a contrary
conclusion. See Fiadjoe v. Att’y Gen., 411 F.3d 135, 153 (3d Cir. 2005).
In order to qualify for withholding of removal, a petitioner must demonstrate a
clear probability, i.e., that it is more likely than not, that his life or freedom would be
threatened because of his race, religion, nationality, membership in a particular social
group, or political opinion if he returns to his country. See Zubeda v. Ashcroft, 333 F.3d
463, 469 (3d Cir. 2003). An applicant can meet this standard by demonstrating past
persecution, which creates a rebuttable presumption of future persecution, see 8 C.F.R.
§ 1208.16(b)(1), or by showing a clear probability of future persecution if the applicant is
removed. See § 1208.16(b)(2). To qualify for relief under the CAT, a petitioner must
show that “it is more likely than not that he or she would be tortured” if returned to the
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designated country of removal. Zubeda, 333 F.3d at 471.
Substantial evidence supports the BIA’s determination that Moussa did not
demonstrate past persecution. 1 Persecution includes “threats to life, confinement, torture,
and economic restrictions so severe that they constitute a threat to life or freedom.” Fatin
v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993). However, it “does not encompass all
treatment that our society regards as unfair, unjust or even unlawful or unconstitutional.”
Id. Generally, “isolated incidents that do not result in serious injury do not rise to the
level of persecution.” Voci v. Gonzales, 409 F.3d 607, 615 (3d Cir. 2005). Although the
treatment and physical injury Moussa endured was unfortunate, such treatment was not
so clearly torturous or life-threatening that we are compelled to disagree with the BIA’s
determination that it did not rise to the level of persecution, particularly given that
Moussa never sought medical attention for his leg.
Likewise, we agree that the background evidence Moussa submitted in support of
his claim did not demonstrate a clear probability that he would be persecuted or tortured
based on his ethnicity, religion, or political beliefs.
Accordingly, we will deny the petition for review.
1
Although Moussa challenges in his brief the IJ’s narrow adverse credibility
determination, we need not address that argument because substantial evidence supports
the BIA’s determination that, assuming his credibility, Moussa failed to satisfy his burden
of proof. Indeed, because the BIA assumed Moussa’s credibility for purposes of appeal,
but did not otherwise address the IJ’s adverse credibility determination, we are required
to proceed under the assumption that Moussa testified credibly. See Kayembe v.
Ashcroft, 334 F.3d 231, 234-35 (3d Cir. 2003).
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