Toure v. Gonzales

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 05-1262
OUMAR TOURE,
Petitioner,
v.
ALBERTO R. GONZALES, Attorney General,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Selya, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge.
H. Raymond Fasano and Madeo & Fasano on brief for petitioner.
Carl H. McIntyre, Jr., Senior Litigation Counsel, Jeffrey J.
Bernstein, Senior Litigation Counsel, and Peter D. Keisler,
Assistant Attorney General, on brief for respondent.
March 17, 2006
STAHL, Senior Circuit Judge. Oumar Toure is a native and
citizen of Mauritania. He entered the United States from Canada in
May 2002 and in November of that year filed an application for
asylum, withholding of removal, and relief under the Convention
Against Torture. In January 2003 the government instituted removal
proceedings against Toure on a charge of being present in this
country without having been properly admitted. The Immigration
Judge (IJ) who heard Toure's case found that he had not proven
eligibility for any relief and ordered him removed to Mauritania.
The Board of Immigration Appeals (BIA) affirmed the IJ's order in
a written opinion, and Toure brought a timely petition for review
by this court. After a careful review of the record, we affirm.
I.
We relate Toure's account of the events culminating in his
arrival in the United States.1 As a child, Toure lived in
Mauritania with his parents, who owned two farms. Toure is a
member of the minority Soninke ethnic group and describes his group
as "black Africans." In 1989, when he was ten years old, the
family, along with thousands of other ethnic minority Mauritanians,
fell victim to forced emigration at the hands of the ruling Beydane
ethnic group. Armed members of the government militia, who were
Beydane, came to Toure's family's land and threatened them with
1
With one main exception, discussed below, the IJ found Toure
to be a credible witness.
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violence if they did not leave. The Beydane told the family that
"all blacks had to get out" and forced them onto a boat, which took
them across the river into Senegal.
After spending six years at a refugee camp in Senegal, Toure's
family returned to Mauritania in 1995 along with thousands of other
repatriating refugees and reclaimed the family farms. In the
summer of 1996, the Beydane returned to the family's land. This
time, the Beydane told the family to leave because they could not
produce adequate proof of ownership. However, the family remained
on their farm for the next two years; the militia returned several
times but never became violent. In 1998, Toure's family once again
emigrated to Senegal, eventually moving in with a friend in the
city of Dakar. Toure and his family were not subjected to threats
or harm in Senegal but did have difficulty finding work there.
Toure testified that he would have stayed in Senegal had he been
able to earn better wages.
Toure and his family had been in Dakar for three years when
the son of the person with whom they were staying returned home
from Canada, where he had been attending school. The son suggested
that Toure leave Senegal and lent him documents to use to travel to
Canada. Arrangements were then made to smuggle Toure over the
U.S.–Canadian border in a boat, and he arrived in the United States
near Buffalo, New York, in May 2002. He applied for asylum in
November of the same year, claiming that he had been subjected to
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race-based persecution in Mauritania and that he feared future
persecution should he be forced to return there.
At his hearing before the IJ, Toure testified that when the
Beydane first came to his family's land in 1989 members of his
family were beaten with the butt of a rifle. The IJ, noting that
Toure had not made clear whether he himself was beaten or just his
parents, found that Toure had not credibly established that he
himself had been beaten. She concluded that he had not made the
requisite showing of past persecution based on the events of that
day in 1989. In addition, Toure had initially testified that his
family was beaten during the second confrontation with the Beydane,
in 1996, but then corrected his testimony to say that they were not
beaten at that time. The IJ accordingly concluded that no
persecution occurred then either. Finding Toure ineligible for
asylum or other relief, she ordered him removed to Mauritania, his
country of nationality.
The BIA adopted and affirmed the IJ's decision. In addition,
the BIA stated that, even if Toure's family did suffer past
persecution at the hands of the Beydane in 1989 when they were
first forced to leave Mauritania, the fact that thousands of
refugees, including Toure's family, returned to Mauritania in the
mid-1990s manifested a change in country conditions sufficient to
rebut any presumption of a well-founded fear of future persecution.
Noting that Toure had not proven persecution upon his family's
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return to Mauritania in 1995, the BIA affirmed the order of
removal. Toure now petitions for review.
II.
We uphold the BIA's decisions on asylum claims unless the
evidence presented by the petitioner compels a reasonable
factfinder to conclude he is entitled to relief. Nai Qing Xu v.
Gonzales, 424 F.3d 45, 47-48 (1st Cir. 2005). A petitioner hoping
to be granted asylum, like Toure, bears the burden of proving he
qualifies as a "refugee." Id. at 48. A showing of refugee status
can be made either "(1) by demonstrating a well-founded fear of
persecution on account of race, religion, nationality, membership
in a particular social group, or political opinion, or (2) by
proving past persecution on account of one of the aforementioned
grounds, which entitles an applicant to a presumption of a
well-founded fear of persecution." Diab v. Ashcroft, 397 F.3d 35,
39 (1st Cir. 2005) (citing 8 U.S.C. § 1101(a)(42)(A)). Even if a
petitioner has proven past persecution, the presumption that he has
a corresponding well-founded fear of future persecution should he
return to his native country can be rebutted by the government.
The government bears the burden of rebutting the presumption by a
preponderance of the evidence. Manzoor v. U.S. Dep't of Justice,
254 F.3d 342, 347 (1st Cir. 2001). Evidence of changed country
conditions can suffice to rebut the presumption, as long as the
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evidence negates the petitioner's own particular fear. Palma-
Mazariegos v. Gonzales, 428 F.3d 30, 35 (1st Cir. 2005).
The IJ concluded that Toure had not demonstrated past
persecution in Mauritania. The BIA agreed and added that even if
the treatment suffered by Toure's family in 1989 is considered
persecution, country conditions had changed enough that Toure had
no well-grounded fear of future persecution in Mauritania. In his
petition to this court, Toure makes three arguments: (1) that the
IJ had no basis for her determination that Toure's testimony about
the beatings was not credible; (2) that the BIA was wrong to hold
that conditions in Mauritania have changed enough to render Toure's
fear of future persecution there unwarranted; and (3) that the
evidence demonstrates that Toure did, in fact, along with his
family, suffer persecution because of his race at the hands of the
Mauritanian government in 1989. We find that, even assuming the
1989 forced emigration constituted past persecution, the resulting
presumption that Toure has a well-founded fear of future
persecution is negated by the events that unfolded in the following
years. Accordingly, we affirm the BIA's decision. (We do not
address the question whether the documented return to Mauritania of
thousands of refugees in the mid-1990s, generally speaking,
constitutes a change in country conditions sufficient to rebut a
well-founded fear of future race-based persecution stemming from
earlier events.)
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Determining whether a petitioner has demonstrated persecution
calls for a case-by-case analysis. Manzoor, 254 F.3d at 346.
Persecution "is not restricted to threats to life or freedom, [but]
it requires more than mere harassment or annoyance." Id. (internal
quotations and citations omitted). We assume for present purposes
that Toure and his family were subject to persecution based on race
when the Beydane ousted them from their land and forced them and
other Soninkes to leave the country.2 Subsequent events, however,
must be taken into consideration. In 1995, Toure's family returned
to Mauritania. They reclaimed their two farms and resided there
peacefully for the next year and a half. When the Beydane returned
a second time, their dispute with Toure's family concerned
documentation of title, not race or ethnicity. Although the second
confrontation might have been racially or ethnically motivated, the
BIA did not find that it was, and the evidence presented by Toure
does not mandate such a finding. Toure himself testified that the
second dispute was about whether his family could prove ownership
of their land and that the family chose to emigrate to Senegal, in
contrast to the first eviction, when they were forcibly sent abroad
by armed militia.
2
The IJ found all of Toure's testimony credible except for his
description of how the Beydane beat members of his family. Toure
challenges this credibility determination, but we find it
immaterial to the outcome of the case. Whether or not any physical
violence occurred on that day in 1989, Toure's family was ousted
from their home and forced to leave the country under threat of
violence.
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When all the evidence is viewed together, it is apparent that
subsequent events in Mauritania and in the lives of Toure and his
family "negate[d]" the "particular fear" Toure may have had after
the 1989 ouster. Palma-Mazariegos, 428 F.3d at 35; cf. Carcamo-
Recinos v. Ashcroft, 389 F.3d 253, 258 (1st Cir. 2004) (upholding
IJ's finding that petitioner lacked well-founded fear of future
persecution where petitioner willingly returned to his home country
and remained there "for more than two years after the alleged
persecution peaked"). In short, after a careful examination of the
record, we cannot say that the evidence compels the conclusion that
Toure successfully demonstrated his eligibility for asylum by
showing a well-founded fear of future persecution in Mauritania.
We therefore do not disturb the judgment of the BIA denying Toure
relief.3
III.
For the reasons stated above, we affirm the decision of the
Board of Immigration Appeals and deny Toure's petition for judicial
review.
3
If a petitioner has not established eligibility for asylum,
he has also not established eligibility for withholding of removal,
which erects a higher hurdle for a petitioner than does an asylum
claim. See Jin Dong Zeng v. Gonzales, 436 F.3d 26, __ n.3 (1st
Cir. 2006). As to Toure's petition for relief under the Convention
Against Torture, he does not here challenge the IJ's determination
that he was not entitled to such relief.
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