Mark Tettey Kom Degbe v. Jefferson B. Sessions, III , 899 F.3d 651 ( 2018 )

United States Court of Appeals
For the Eighth Circuit
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No. 17-1338
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Mark Tettey Kom Degbe
lllllllllllllllllllllPetitioner
v.
Jefferson B. Sessions, III, Attorney General of the United States; John F. Kelly,
Secretary of the Department of Homeland Security
lllllllllllllllllllllRespondents
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: February 13, 2018
Filed: August 13, 2018
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Before SMITH, Chief Judge, MURPHY and COLLOTON, Circuit Judges.*
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SMITH, Chief Judge.
Mark Tettey Kom Degbe petitions for review of the Board of Immigration
Appeals’ (BIA) denial of his request for asylum, withholding of removal, and
*
Chief Judge Smith and Judge Colloton file this opinion pursuant to 8th Cir.
Rule 47E.
application for relief under the Convention Against Torture (CAT) based on his claim
that he faces danger in his home country of Ghana. We deny the petition.
I. Background
Degbe came to the United States from Ghana in June 2002 on a B1/B2
non-immigrant visa. It authorized him to stay until late July 2002. However, he did
not return to Ghana. The Department of Homeland Security (DHS) filed a Notice to
Appear in 2007 charging Degbe with being removable pursuant to Immigration and
Nationalization Act (INA) § 237(a)(1)(B). He did not appear, and in 2008, the
immigration judge (IJ) entered a removal order in absentia. Degbe, nonetheless,
remained in the United States.
Immigration and Customs Enforcement (ICE) detained Degbe after he was in
a car accident in North Dakota in May 2014. In July 2014, he filed an emergency
motion to reopen and rescind the 2008 removal order with the immigration court on
the basis that the order was entered without proper notice, depriving him of the
chance to resist his removal on the merits. Following the IJ’s grant of the motion,
Degbe filed an application for asylum, withholding of removal, and CAT relief.
Degbe’s claim rested on his political activities while in Ghana. He supported
the then-opposition party, the New Patriotic Party (NPP), in the 2000 elections. The
NPP sought to take power from the ruling New Democratic Congress (NDC). Degbe
alleged that he worked as a youth organizer for the NPP and canvassed for the NPP
in a suburb of Accra, Ghana’s capital. Degbe averred that he was attacked twice
during the campaign. In one incident, a group of people threw stones at him. He was
hit and suffered the loss of a tooth. Degbe claimed to have reported the
stone-throwing incident to local police, who took no action, according to Degbe, as
a result of pro-NDC sentiment in the police force. He also alleged that persons
wearing NDC shirts stabbed him with a knife, leaving painful keloid scars. Degbe
represented that Ghanaian doctors told him to come to the United States to have the
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scars treated, though he did not actually receive treatment for the scars until 2007.
Degbe contended he could not afford the treatment prior to 2007.
The NPP, Degbe’s party, won the 2000 election. However, the NDC returned
to power in 2008. It also won the subsequent 2012 election. Degbe claimed that he
had heard reports of rampant political violence during the 2012 election season and
began to fear that he would be killed or imprisoned if he returned to Ghana.
The IJ heard the case in late 2015 and issued her decision in April 2016,
concluding that Degbe’s claims were either procedurally defaulted or meritless. The
IJ held that Degbe was ineligible for asylum due to the untimeliness of his request.
Under INA § 208(a)(2)(B), an asylum application is generally due within one year of
arrival in the country. However, changed circumstances, such as an alteration in
country conditions that creates eligibility for asylum where it was previously absent,
can extend that deadline. INA § 208(a)(2)(D); 8 C.F.R. § 1208.4(a)(4)(i). The IJ held
that the NDC’s return to power in 2008 was such a change of circumstances.
However, the IJ also concluded the NDC’s 2012 re-election was not. Accordingly, the
2014 application for asylum was untimely.
The IJ also declined to withhold removal. She held that the knife attack
sufficiently set forth past political persecution, creating a rebuttable presumption that
Degbe had a well-founded fear of future persecution. See 8 C.F.R. § 1208.13(b)(1).
However, she further held that the government had shown that the democratic process
in Ghana had become smoother, less violent, and more stable since Degbe suffered
the attack and left the country. Therefore, the government had demonstrated a
fundamental change in circumstances that overcame the presumption of a well-
founded fear of future persecution, extinguishing Degbe’s claim for withholding of
removal.
The IJ’s withholding-of-removal analysis guided her CAT inquiry. The IJ
relied on her finding that Ghana was not now unsafe for those, including Degbe, who
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vocally disagreed with the ruling party. Accordingly, the IJ held that Degbe failed to
“show[] that he would more likely than not be tortured by the government or someone
acting with the acquiescence of the government if he were returned to Ghana.” Pet’r’s
Add. at 17. The IJ denied Degbe’s application for CAT relief. Though she dismissed
all of Degbe’s substantive claims, the IJ granted his request for voluntary departure.
Degbe appealed unsuccessfully to the BIA. In addition to the arguments made
before the IJ, Degbe also included claims and supporting evidence regarding political
violence in the summer of 2016 in the runup to that year’s election. Degbe argued that
the pre-election incidents constituted changed circumstances supporting a finding that
his asylum application was timely. In addition, he asserted that these incidents
qualified as extraordinary circumstances that demonstrated a well-founded fear of
future persecution. He sought either a favorable ruling or a remand to the IJ for her
to consider the new evidence.
The BIA did not expressly address the 2016 election claims in its January 2017
order. However, it agreed with the IJ that the asylum application was untimely. The
BIA’s analysis of Degbe’s withholding-of-removal and CAT-protection requests
echoed the IJ’s:
We agree with the Immigration Judge that the evidence of record
demonstrates a change in country conditions such that the respondent no
longer has a clear probability of persecution in Ghana. Past persecution
gives rise to a rebuttable presumption that his life or freedom would be
threatened in the future in the country of removal, on the basis of his
original claim. See 8 C.F.R. § 1208.16(b). To overcome this regulatory
presumption, the Department of Homeland Security must demonstrate,
by a preponderance of the evidence that either (1) the respondent could
avoid future persecution by relocating to another part of the proposed
country of removal, or (2) since the time the persecution occurred,
conditions in the respondent’s country have changed to an extent that
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the respondent’s life or freedom would not be threatened if he were to
return to his country. See 8 C.F.R. §§ 1208.16(b)(l)(i)(A) and (B).
The Immigration Judge determined that the evidence of record
demonstrates a fundamental change in circumstances such that the
respondent would not be threatened in Ghana. Accordingly, we find that
the respondent has failed to satisfy the burden of proof required for
withholding of removal. See section 241(b)(3) of the Act; 8 U.S.C.
§ 1231(b)(3); 8 C.F.R. § 1208.16(b). The respondent also has alleged
eligibility for protection under the Torture Convention. However, he
relies upon the same evidence as that submitted for his withholding of
removal claim. Accordingly, we further find that he has not
demonstrated that it is more likely than not that he would be tortured for
any reason if removed to Ghana. See 8 C.F.R. § 1208.16(c).
Pet’r’s Add. at 3. Additionally, the BIA revoked Degbe’s voluntary departure due to
his failure to post the required bond.
This timely petition for review followed. We have jurisdiction to review the
final order of the BIA. See 8 U.S.C. § 1252(a); 28 U.S.C. § 41.
II. Discussion
“We review the BIA’s decision, as it is the final agency decision; however, to
the extent that the BIA adopted the findings or the reasoning of the IJ, we also review
the IJ’s decision as part of the final agency action.” Davila-Mejia v. Mukasey, 531
F.3d 624, 627 (8th Cir. 2008) (citing Falaja v. Gonzales, 418 F.3d 889, 894 (8th Cir.
2005)). “We review the agency determination that an alien is not eligible for asylum,
withholding of removal, or relief under the Convention Against Torture using the
deferential substantial evidence standard.” Osonowo v. Mukasey, 521 F.3d 922, 927
(8th Cir. 2008) (citing Guled v. Mukasey, 515 F.3d 872, 879 (8th Cir. 2008)). “We
review the BIA’s legal determinations de novo, according substantial deference to the
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BIA’s interpretation of the statutes and regulations it administers.” Davila–Mejia, 531
F.3d at 627 (citing Hassan v. Gonzales, 484 F.3d 513, 516 (8th Cir. 2007)).
Degbe argues that his asylum application should not have been found untimely
and that the agency’s findings on country conditions in Ghana were not supported by
the evidence. We deny his petition for review as to both grounds.
A. Timeliness of Asylum Application
Degbe does not challenge the conclusion that the 2012 Ghanaian election was
not a change in circumstances. However, relying on 8 C.F.R. §§ 208.4(a)(2)(i)(A) and
1208.4(a)(5), he avers that the BIA should have nonetheless found his asylum
application timely. Degbe contends that these rules extended the deadline for his
asylum application because events preceding the 2016 elections constitute changed
or extraordinary circumstances. Degbe asks for either a favorable ruling from this
court or a remand to the agency for it to consider the 2016 election evidence. Degbe
also states that the severity of his injuries while in Ghana justified a humanitarian
reprieve from the one-year rule for an asylum application.
Based on our review of the record, we conclude that we lack jurisdiction to
determine the timeliness of Degbe’s asylum application. Therefore, we deny the
petition for review on this issue.
An alien may receive asylum if he can show that he is a refugee and faces
persecution in his home country due to, as relevant here, his political opinions. 8
U.S.C. § 1158. However, a request for such status must normally be filed within one
year of the alien’s arrival in the United States. Id. § 1158(a)(2)(B). Nonetheless, “if
the alien demonstrates . . . either the existence of changed circumstances which
materially affect the applicant’s eligibility for asylum or extraordinary circumstances
relating to the delay in filing an application within the [one-year period],” an
application filed outside that window may be considered. Id. § 1158(a)(2)(D). An
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agency determination as to the applicability of one of the § 1158(a)(2)(D) exceptions
is not subject to appellate review:
When an IJ has “determined that the untimeliness of [the
applicant’s] asylum application was not excused by exceptional
circumstances or changed conditions within the meaning of 8 U.S.C. §
1158(a)(2)(D), we lack jurisdiction to review [the applicant’s] asylum
claim.” Mouawad v. Gonzales, 485 F.3d 405, 411 (8th Cir. 2007); see
8 U.S.C. § 1158(a)(3) (“No court shall have jurisdiction to review any
determination of the Attorney General [as to whether an exception to the
one-year application requirement applies].”); Jallow v. Gonzales, 472
F.3d 569, 571 (8th Cir. 2007) (holding that because the IJ determined
the claimant did not satisfy one of the statutory exceptions to cure an
untimely asylum application, the court is precluded from reviewing that
timeliness determination on appeal).
Juarez Chilel v. Holder, 779 F.3d 850, 854 (8th Cir. 2015) (alterations in original).
The record demonstrates that Degbe had been in the United States
approximately 12 years before he filed his initial application for asylum. Therefore,
his application for asylum may only be considered if changed circumstances or
exceptional circumstances justify the delay. In its review, the agency determined that
neither exception was present to make Degbe’s claim for asylum timely.
Consequently, we lack jurisdiction to review this determination.
Degbe attempts to evade this bar by alleging that the BIA improperly failed to
consider his evidence regarding the 2016 election. He avers that the events prior to
that election were so tumultuous that it created a new changed circumstance. Degbe
did not formally file a motion to reopen or remand but attached new evidence to his
BIA brief with an alternative prayer for relief. His filing asked the BIA to “remand
to the Immigration Judge (IJ) to consider previously unavailable evidence that
describes the political instability in advance of the 2016 Ghanaian elections.” App.
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at 7. We will consider Degbe’s argument as an appeal of a denial of the motion to
remand. See Alva-Arellano v. Lynch, 811 F.3d 1064, 1066 (8th Cir. 2016) (treating
BIA’s dismissal of appeal as refusal to reopen and remand where petitioner’s
submission to BIA included previously unsubmitted documents and BIA construed
the filings as a motion to remand).
Motions to remand and reopen are disfavored, and we review them under a
“highly deferential abuse-of-discretion standard.” Id. (citations omitted). Such
motions “must state new facts that are material to the outcome of the proceeding and
were neither available nor discoverable at the prior hearing.” Fongwo v. Gonzales,
430 F.3d 944, 947 (8th Cir. 2005) (citing 8 C.F.R. § 1003.23(b)(3)). “Even if the
evidence was previously unavailable, the BIA will remand only if the evidence is ‘of
such a nature that the Board is satisfied that if proceedings before the [IJ] were
reopened, with all the attendant delays, the new evidence would likely change the
result in the case.’” Berte v. Ashcroft, 396 F.3d 993, 997 (8th Cir. 2005) (alteration
in original) (quoting Matter of Coelho, 20 I. & N. Dec. 464, 473 (1992)).
The articles that Degbe attached to his brief to the BIA were all published after
the IJ decision and were therefore previously unavailable. See App. 35–59. However,
this evidence would not likely have changed the result of this case. It is therefore
immaterial. See Xiu Ling Chen v. Holder, 751 F.3d 876, 878 (8th Cir. 2014) (citations
omitted). Four of the articles were commentaries predicting that the 2016 election
could turn violent, and of these four, two were based on a report of the same election
observer. The fifth article was a summary of recent political violence. These articles
are of a similar character to articles from 2014 and 2015 that Degbe had already
submitted to the IJ. See, e.g., App. 519–525, 538–550. The IJ had this latter category
of articles when she found, inter alia, that Ghana was marked by “a general
movement towards peaceful political transitions”; that “[w]hile there are reports
showing cases of excessive force used by the police, there is no nexus found between
the reported individualized attacks and Ghana’s ruling party”; and that the country
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enjoys “relative political stability.” Pet’r’s Add. at 16. Degbe’s new submissions are
not so convincing so as to meaningfully undermine the agency’s conclusions.
Finally, we briefly address Degbe’s claim that even if his asylum application
were untimely, the agency should have granted him humanitarian asylum. This
argument fails, as Degbe did not raise this issue to the agency, foreclosing our
consideration of it:
The statute authorizing judicial review of removal orders expressly
provides that a court “may review a final order of removal only if . . . the
alien has exhausted all administrative remedies available to the alien as
of right.” 8 U.S.C. § 1252(d)(1). We have repeatedly held that failure to
exhaust administrative immigration remedies precludes merits review of
the unexhausted issue.
Escoto-Castillo v. Napolitano, 658 F.3d 864, 866 (8th Cir. 2011) (ellipsis in original)
(citations omitted). Accordingly, humanitarian asylum is not warranted.
We deny the petition for review as to Degbe’s request for asylum.
B. Likelihood of Future Persecution or Torture
Degbe claims that the BIA and IJ overstated political progress toward
democratic rule in Ghana. He points to reports of violence, disenfranchisement, and
corruption during the 2008 and 2012 elections. He also cites to sections from the
State Department’s 2016 country report on Ghana indicating problems with the rule
of law. Degbe claims that this evidence requires the grant of withholding of removal
or CAT relief. We disagree and conclude that he fails to satisfy either standard.
1. Withholding of Removal
“To qualify for withholding of removal, an applicant must show a clear
probability of persecution.” Nadeem v. Holder, 599 F.3d 869, 873 (8th Cir. 2010)
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(citing Aung Si Thu v. Holder, 596 F.3d 994, 999 (8th Cir. 2010)). He may make such
a showing “by establishing past persecution or the likelihood of future threats to his
or her life or freedom based on race, religion, nationality, membership in a particular
social group, or political opinion.” Id. (citing 8 C.F.R. § 1208.16(b)). Past persecution
creates a presumption of a threat to the alien’s life or freedom in the country to which
he would be returned. 8 C.F.R. § 1208.16(b)(1)(i). The presumption, however, is
rebuttable. Id. The government can rebut the presumption by showing by a
preponderance of the evidence that there has been a fundamental change in
circumstances. 8 C.F.R. § 1208.16(b)(1)(i)(A). Proof of a new political climate
satisfies this requirement. See, e.g, Mambwe, 572 F.3d at 548. In dismissing Degbe’s
appeal, the BIA stated:
The Immigration Judge noted that it has been 13 years (now 14) since
the respondent was in Ghana and that Ghana has successfully organized
six consecutive elections with little or no violence. According to the
Center of Strategic & International Studies, Ghana’s democratic norms
are entrenched. The Immigration Judge found, given the relative
political stability in Ghana, that the Ghanaian government is
fundamentally changed from what it was in 2000. The Immigration
Judge found that the evidence of record demonstrates a change in
conditions in Ghana and that the respondent is not more likely than not
to be persecuted because of his political opinion; 8 C.F.R.
§ 1208.16(b)(1)(i)(A).
Pet’r’s Add. at 2 (citations to the record omitted).
Degbe now argues that “[a]ll literature presenting Ghana as having an
exemplary democracy since 1992 is devoid of substance, and goes against the past
persecution already established by the IJ vis a vis the year 2000. The conditions
between . . . 2000 . . . and the present year . . . [are] of no substantial significance.”
Pet’r’s Br. at 35 (emphasis omitted).
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“We will not overturn the agency’s decision unless [Degbe] demonstrates that
the evidence ‘not only supports a contrary conclusion,’ but that it is so compelling
‘that no reasonable fact finder could fail to find the requisite fear of persecution.”’
Karim v. Holder, 596 F.3d 893, 897 (8th Cir. 2010) (first quoting Diallo v. Mukasey,
508 F.3d 451, 454 (8th Cir. 2007), then quoting Cooke v. Mukasey, 538 F.3d 899, 904
(8th Cir. 2008)). Degbe’s arguments fall well short of compelling a conclusion
contrary to that of the BIA or the IJ.
At the time of the BIA’s decision, the conclusion that Ghanaian democracy is
fundamentally better established than it was in 2000 was supported by six straight
elections unsullied by serious violence. Even the 2016 report that Degbe alleges was
erroneously ignored supports this finding. In addition to noting that the NPP, Degbe’s
party, won the presidency and legislature in 2016, the report states, “The campaigns
were largely peaceful, although there were reports of isolated instances of violence.
Presidential and parliamentary elections conducted on December 7 were peaceful, and
domestic and international observers assessed them to be transparent, inclusive, and
credible.” U.S. Dep’t of State, Bureau of Democracy, H. and Lab., Ghana 2016
Human Rights Report at 1,
https://www.state.gov/documents/organization/265472.pdf.
Degbe’s evidence would not compel all reasonable fact finders to conclude that
his life or freedom would be endangered by a return to Ghana. Therefore, we deny his
petition for review of the denial of withholding of removal.
2. Convention Against Torture
Having fallen short of the lesser showing necessary for withholding of removal,
Degbe’s petition for review also fails as to CAT relief.
Relief under the CAT requires the applicant to demonstrate “‘that
it is more likely than not that he or she would be tortured if returned to
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the proposed country of removal.’” Malonga v. Mukasey, 546 F.3d 546,
555–56 (8th Cir. 2008) (quoting 8 C.F.R. § 1208.16(c)(2)); see Hassen
v. Mukasey, 534 F.3d 927, 930 (8th Cir. 2008) (citing 8 C.F.R.
§ 208.16(c)(2)). . . . This standard is more onerous than the standard for
asylum and withholding of removal in that a likelihood of torture
requires more than a well-founded fear of persecution . . . .
Khrystotodorov v. Mukasey, 551 F.3d 775, 781–82 (8th Cir. 2008).
We deny the petition for review as to the CAT.
III. Conclusion
Accordingly, we deny the petition for review.
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