Abdoulaye Traore v. Eric Holder , 358 F. App'x 677 ( 2009 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0825n.06
09-3009 FILED
Dec 22, 2009
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
ABDOULAYE TRAORE, )
)
Petitioner, )
) ON PETITION FOR REVIEW
v. ) FROM A FINAL ORDER OF THE
) BOARD OF IMMIGRATION APPEALS
ERIC H. HOLDER, JR., United States )
Attorney General, )
)
Respondent. )
Before: DAUGHTREY, COLE, and GIBBONS, Circuit Judges.
PER CURIAM. After initially fleeing to Burkina Faso from his home in Cote d’Ivoire,
petitioner Abdoulaye Traore entered the United States without authorization. He eventually
sought asylum, withholding of removal, and protection under the United Nations
Convention Against Torture, requests that were either dismissed or denied on the merits
by an immigration judge and by the Board of Immigration Appeals (BIA). Traore now
challenges those adverse determinations. We find no merit to the petitioner’s contentions
and deny his petition for review, based in part on the merits and in part due to our lack of
jurisdiction to review certain determinations.
In his asylum application and in oral testimony before an immigration judge,
petitioner Traore explained that he was a citizen of Cote d’Ivoire, a member of the Dioula
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tribe, and a supporter, but not a member, of the RDR (Republican Democratic Rally) party.
According to Traore, on September 24, 2002, approximately 30 armed soldiers entered his
home where he was sleeping with his brother, his sister, and his mother. The soldiers beat
the brothers and sister with their rifles and warned the family to cease supporting the RDR
party and its leader, Alassane Ouattara, himself a Dioula tribe member. Traore testified
that he was then hit with a rifle until he fell to the floor unconscious. When he regained
consciousness, he found himself tied to a tree with severe bruises and other injuries to his
legs.
The following day, the family fled their homeland for Burkina Faso where Traore’s
mother, brother, and sister still resided at the time of the administrative hearing in this
matter. After the petitioner had resided in Burkina Faso for 20 months, however, because
he had experienced difficulty finding employment in that country, and because he had been
forced to keep his Ivorian heritage secret for fear of retribution, he left Burkina Faso and
flew to the United States, entering New York through use of a forged passport.
On November 15, 2004, Traore filed an application for asylum. Although the
petitioner indicated on one page of that application that he had entered the United States
on May 31, 2003, the remainder of the application mentioned May 31, 2004, as the date
of entry into this country. To further complicate matters, at an earlier appearance before
another immigration judge, Traore’s counsel “admit[ted] . . . [that Traore] entered the
United States on May 31st, 2003 in New York.” According to representations made by the
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government’s own counsel in the matter, however, “the original [application] with the initials
of the asylum officer who had the interview . . . [contained] a few changes that the asylum
officer indicated the respondent made during the interview. One of them was with respect
to the date in which he made it ‘04 instead of ‘03.” Moreover, throughout the evidentiary
hearing conducted by the immigration judge who decided this matter, Traore consistently
maintained that he had entered the United States at the end of May 2004, less than six
months before filing his asylum application.
Nevertheless, the immigration judge concluded that Traore had not “demonstrate[d]
by clear and convincing evidence that the application ha[d] been filed within 1 year after
the date of the alien’s arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B).
Consequently, the immigration judge held that the petitioner was precluded from asylum
relief. Alternatively, the immigration judge concluded that Traore failed to establish either
the past persecution or the well-founded fear of future persecution that would justify the
discretionary relief sought. The administrative court also denied the petitioner withholding
of removal and relief under the Convention Against Torture. The BIA agreed that Traore’s
asylum application was time-barred and that the petitioner otherwise failed to establish his
eligibility for other relief. Traore then timely filed his petition for review with this court.
When reviewing the BIA’s ruling, we must sustain the administrative determination
if that ruling is “supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). “Under this
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deferential standard, we may not reverse the Board’s determination simply because we
would have decided the matter differently.” Koliada v. INS, 259 F.3d 482, 486 (6th Cir.
2001) (citing Mikhailevitch v. INS, 146 F.3d 384, 388 (6th Cir. 1998)). Rather, to overturn
factual determinations “we must find that the evidence not only supports [a contrary]
conclusion, but compels it.” Elias-Zacarias, 502 U.S. at 481 n.1.
In addressing the petitioner’s asylum claim, the immigration judge concluded that
Traore failed to adduce clear and convincing evidence that he entered the United States
during the one-year period prior to the filing of his asylum application. Consequently, the
immigration judge and BIA held the asylum claim time-barred. See 8 U.S.C.
§ 1158(a)(2)(B) (alien ineligible for asylum “unless the alien demonstrates by clear and
convincing evidence that the application has been filed within 1 year after the date of the
alien’s arrival in the United States”). Although we find this administrative determination
clearly erroneous and unsupported by the record when viewed as a whole, the provisions
of 8 U.S.C. § 1158(a)(3) deny jurisdiction to any court to review such a timeliness ruling.
(“No court shall have jurisdiction to review any determination of the Attorney General under
paragraph (2).”)
Moreover, the petitioner cannot rely on the relevant section of the REAL ID Act, 8
U.S.C. § 1252(a)(2)(D), which provides that “[n]othing in any other provision of this chapter
. . . which limits or eliminates judicial review, shall be construed as precluding review of
constitutional claims or questions of law raised upon a petition for review filed with an
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appropriate court of appeals . . . .” The petitioner’s challenge to the timeliness
determination raises neither a constitutional issue nor a question of law. See Almuhtaseb
v. Gonzales, 453 F.3d 743, 748 (6th Cir. 2006).
Even if we were able to address the merits of the asylum issue, however, we could
not find that Traore is entitled to the relief he seeks. For the petitioner to merit a grant of
asylum, he must demonstrate either that he suffered past persecution on account of race,
religion, nationality, membership in a particular social group, or political opinion, and/or that
he has a well-founded fear of future persecution based upon one of the protected grounds.
Although the relevant statutory provisions do not define “persecution,” we have consistently
recognized that “while even a single beating offends one’s sense of civilized governmental
conduct, a single beating does not compel a finding of persecution.” Gilaj v. Gonzales, 408
F.3d 275, 284 (6th Cir. 2005); Mikhailevitch, 146 F.3d at 390. Nevertheless, we do not
categorically preclude the possibility that a single act of violence could be so brutal and
intimidating that a petitioner could establish the persecution necessary to justify a grant of
asylum. See, e.g., Lumaj v. Gonzales, 462 F.3d 574, 577 (6th Cir. 2006) (“persecution can
be found on the basis of only one incident, . . . but an isolated attack must be of sufficient
severity to warrant such a finding”). In this case, however, Traore alleges only a single
beating at the hands of the military that, although certainly unfortunate, does not rise to the
level of those actions that we have previously considered to constitute persecution. See,
e.g., Pilica v. Ashcroft, 388 F.3d 941, 954 (6th Cir. 2004) (no finding of persecution even
though petitioner was twice arrested and detained for a week on each occasion and, on
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a third occasion, “was beaten by policemen, resulting in head injuries and a week-long
hospitalization”). Furthermore, he has offered no evidence to show that his mere support
of, but not membership in, a political party would still, seven years after that single act of
violence, engender the physical retribution that could constitute “persecution” if Traore
returned to Cote d’Ivoire.
The petitioner also challenges the propriety of the denial of withholding of removal
by the immigration judge and the BIA. Pursuant to the provisions of 8 U.S.C.
§ 1231(b)(3)(A), “the Attorney General may not remove an alien to a country if the Attorney
General decides that the alien’s life or freedom would be threatened in that country
because of the alien’s . . . nationality . . . or political opinion.” Thus, to qualify for
withholding of removal, the petitioner “must establish that there is a clear probability that
he will be subject to persecution if forced to return to the country of removal.” Pilica, 388
F.3d at 951. To make such a showing, a petitioner “must demonstrate that ‘it is more likely
than not’ that he or she will be persecuted upon return.” Liti v. Gonzales, 411 F.3d 631,
641 (6th Cir. 2005) (quoting 8 C.F.R. § 1208.16(b)(2)). Such a requirement is “a more
stringent burden than what is required on a claim for asylum.” Id. at 640 (quoting Pilica,
388 F.3d at 951).
Again, Traore has failed to adduce sufficient evidence to establish such a “clear
probability” of persecution in Cote d’Ivoire. As unconscionable as the beating endured by
the petitioner was, the fact remains that Traore’s claim for withholding of removal is based
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on that single incident that occurred more than seven years ago. He has offered no
testimony or proof that similar retribution for mere party support is still possible in his native
country, much less “more likely than not.” Because the factual evidence before us does
not compel a result contrary to that reached by the immigration judge and the BIA, we find
no merit to the petitioner’s claim in this regard.
Finally, Traore purports to contest the administrative denial of relief pursuant to the
United Nations Convention Against Torture. However, he failed to argue this issue in his
appellate brief and, therefore, we deem the issue to have been waived. See, e.g.,
McPherson v. Kelsey, 125 F.3d 989, 995 (6th Cir. 1997) (“[I]ssues adverted to in a
perfunctory manner, unaccompanied by some effort at developed argumentation, are
deemed waived.” (Citations omitted)).
For the reasons discussed, we conclude that we are without jurisdiction to review
the administrative decision regarding the timeliness of Traore’s asylum application.
Because the petitioner’s remaining challenges are either without merit or have been
waived, we DENY Traore’s petition for review in this matter.
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