Ayouba Komara v. Attorney General United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 17-2201
_____________
AYOUBA KOMARA,
AKA Issouf Traore,
AKA Bamba Amara,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,
Respondent
______________
On Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(BIA 1:A208-937-266)
Immigration Judge: Hon. Daniel A. Morris
_______________
ARGUED
March 13, 2018
Before: JORDAN, SHWARTZ, and KRAUSE, Circuit Judges
(Filed: July 12, 2018)
_______________
Ingrid D. Johnson, Esq. [ARGUED]
Drinker Biddle & Reath
105 College Road East
Suite 300
P.O. Box 627
Princeton, NJ 08542
Counsel for Petitioner
Sarah A. Byrd, Esq.
Thankful T. Vanderstar, Esq.
Kerry A. Monaco, Esq. [ARGUED]
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
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OPINION ∗
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JORDAN, Circuit Judge.
Ayouba Komara petitions for review of an order of the Board of Immigration
Appeals (“BIA”) denying his request for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). 1 We will deny the petition.
I. Factual Background 2
Komara is a native and citizen of the Ivory Coast. From 2005 to 2015, he resided
in the capital city of Abidjan with his wife and five children, whom he supported through
his work as a merchant. He left Abidjan because he fears a gang called the Microbes,
which consists of children ages eight and older who travel in groups of twenty or thirty,
assaulting and killing people with firearms and machetes. Komara says that the gang
∗
This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
1
We thank pro bono counsel for very able representation of Komara in this
matter.
2
The background information provided here is drawn from the administrative
record.
2
members are indiscriminate about who they attack, and they operate everywhere in the
Ivory Coast.
According to Komara, the Microbes are funded, controlled, and encouraged by the
Popular Ivorian Front (“FPI”), which is the political party that held power in the Ivory
Coast during the first decade of the 2000s. Komara supports, and was formerly a
member of, a rival political party, the Rally of the Republicans (“RDR”). He was in
charge of mobilizing members of the RDR when there was “a meeting or a concert” of
that party. (Admin. Rec. (“A.R.”) at 119-20.) The FPI and the RDR competed in a
decade-long power struggle, and, in 2010, the RDR ultimately gained governmental
control, which it retains today.
Komara first denounced the Microbes to the police in 2015 after they attacked and
killed a friend of his, who was active in the RDR in Komara’s neighborhood. After
Komara reported the attack, police officers raided the Microbes in that neighborhood,
which led to a shootout between the police and the Microbes that left one of the gang
leaders dead. Komara said that, in retaliation for reporting the Microbes to the police, a
group of Microbes showed up at his home. Komara was not there at the time, but his
brother was. The Microbes attacked his brother with machetes, and, although he
ultimately escaped, he suffered serious injuries that required treatment at a hospital.
Komara again reported the Microbes to the police. He says that the police told him that
he was being targeted by the gang. That was when he moved his family to another part
of the Ivory Coast. He then went on his own to take refuge in nearby Burkina Faso for
3
one year. He returned to the Ivory Coast for less than a day before heading to the United
States in May 2016, with a false passport.
When he arrived, Komara applied for admission but did not possess any valid
admission documents. In interviews with immigration officials, he said he fears returning
to the Ivory Coast because the Microbes will continue to seek revenge for reporting them
to the police. He believes that his work as a merchant makes him more visible than
others and so he is more vulnerable to attack.
II. Procedural History
Removal proceedings were initiated against Komara, and he concedes that he is
removable under § 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act (“INA”).
8 U.S.C. § 1182(a)(7)(A)(i)(I). He applied for asylum and statutory withholding of
removal based on persecution on account of both his membership in particular social
groups and his political opinion. His proposed social groups are individuals who
denounce criminal acts performed by gangs and individuals who report crimes to the
police. 3 He also applied for relief under the CAT.
The immigration judge (“IJ”) assigned to the case issued an oral decision denying
Komara all relief. The IJ found that Komara’s testimony was generally credible.
Nevertheless, with respect to the request for asylum, the IJ concluded that Komara had
not established past persecution nor a well-founded fear of future persecution. The IJ
3
Komara had also proposed before the agency a particular social group consisting
of victims of gang violence. He has not pursued that line of argument before us, and it is
thus forfeited. See In re Wettach, 811 F.3d 99, 115 (3d Cir. 2016) (treating as forfeited
arguments not raised in an appellant’s opening brief).
4
also determined that, even if Komara had made the requisite showing as to persecution,
he had not shown that he would have been targeted on a protected ground. Specifically,
he did not show that his political opinion was or would be the main reason that the
Microbes would target him. Moreover, he did not advance any legally cognizable
particular social group, because his proposed groups were neither sufficiently particular
nor socially distinct.
Having concluded that Komara failed to satisfy the requirements for asylum, the IJ
also concluded that Komara could not meet the higher burden of proving entitlement to
withholding of removal. Finally, the IJ denied Komara’s request for relief under the CAT
because Komara had not shown a likelihood of future torture that was specific to him; his
testimony only made general allegations of violence.
The BIA affirmed the IJ’s decision. It agreed that, under the current legal
framework for defining a particular social group, Komara’s proposed groups failed to
meet the requirements of particularity and social distinction. Furthermore, the BIA
agreed that Komara had not shown that his actual or imputed political opinion was why
the Microbes targeted him. Finally, the BIA found no clear error in the IJ’s factual
finding that Komara had not shown it to be more likely than not that he would suffer
abuse amounting to torture.
Komara timely filed the present petition for review.
5
III. Discussion 4
Komara does not challenge the BIA’s decision that he is ineligible for asylum or
withholding of removal based on persecution on account of his actual or imputed political
opinion, nor does he challenge the BIA’s denial of his application for relief under the
CAT. Therefore, those claims are forfeited. See In re Wettach, 811 F.3d 99, 115 (3d Cir.
2016) (treating as forfeited arguments not raised in an appellant’s opening brief). He
does, however, argue that we must vacate the BIA’s decision to deny his asylum and
withholding of removal claims based on his membership in two proposed particular
social groups. The record does not support that conclusion and, to the contrary, dictates
that we deny his petition for review.
According to Komara, he is entitled to asylum because substantial evidence
demonstrates that he suffered past persecution and that he has a well-founded fear of
future persecution. To be eligible for asylum, an alien must be a “refugee,” 8 U.S.C.
§ 1158(b)(1)(A), which is defined as a person who has suffered past persecution or has a
well-founded fear of future persecution due to his “race, religion, nationality,
4
The BIA had jurisdiction under 8 U.S.C. § 1103 and 8 C.F.R. § 1003.1(b)(3).
We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). “We review the BIA’s legal
determinations de novo, subject to the principles of deference articulated in Chevron v.
Natural Resources Defense Council, 467 U.S. 837, 844 (1984).” Catwell v. Att’y Gen.,
623 F.3d 199, 205 (3d Cir. 2010). We review factual findings under the substantial-
evidence standard. Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006). Under that
standard, “the administrative findings of fact are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary[.]” 8 U.S.C.
§ 1252(b)(4)(B). “Because the BIA did not summarily affirm the IJ’s order but instead
issued a separate opinion, we review the BIA’s disposition and look to the IJ’s ruling
only insofar as the BIA deferred to it.” Roye v. Att’y Gen., 693 F.3d 333, 339 (3d Cir.
2012).
6
membership in a particular social group, or political opinion[,]” Valdiviezo-Galdamez v.
Att’y Gen., 663 F.3d 582, 590 (3d Cir. 2011) (quoting 8 U.S.C. § 1101(a)(42)(A)). An
alien relying on membership in a “particular social group” as the basis for claiming
refugee status must demonstrate that his group satisfies certain criteria to be cognizable
under the INA. Serrano-Alberto v. Att’y Gen., 859 F.3d 208, 219 (3d Cir. 2017).
The IJ and the BIA both concluded that the particular social groups Komara has
proposed fail to do so. The BIA applied the test set forth in Matter of M-E-V-G-,
pursuant to which an applicant has to satisfy three requirements to establish a cognizable
particular social group: first, that the group is “composed of members who share a
common immutable characteristic[;]” second, that the group is “defined with
particularity,” which means it has discrete and definable boundaries that are not too
“amorphous, overbroad, diffuse, or subjective[;]” and third, that the group is “socially
distinct within the society in question,” which means “the people of a given society
would perceive [the] proposed group as sufficiently separate or distinct[.]” Matter of M-
E-V-G-, 26 I. & N. Dec. 227, 237, 239, 241 (B.I.A. 2014). In S.E.R.L. v. Attorney
General United States of America, we concluded that the BIA’s interpretation of
“particular social group,” including the particularity and social distinction requirements,
is reasonable and entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984). ___ F.3d ___, No. 17-2031, 2018 WL
3233796, at *10-13 (3d Cir. July 3, 2018). Therefore, we apply the three-part test from
M-E-V-G- to Komara’s proposed social groups. Id.
7
Those groups fail the test because they are not socially distinct. “Evidence such as
country conditions reports, expert witness testimony, and press accounts of
discriminatory laws and policies, historical animosities, and the like may establish that a
group exists and is perceived as ‘distinct’ … in a particular society.” Matter of M-E-V-G-
, 26 I. & N. Dec. at 244. Komara, however, points to no evidence in the record
supporting the assertion that “individuals who denounce criminal acts performed by gang
members” and “individuals who report crimes to the police” are perceived as distinct
groups by citizens of the Ivory Coast. (Opening Br. at 18.)
The 2015 Department of State country report for the Ivory Coast does not identify
any mistreatment of individuals who oppose criminal activity or who report crimes to the
police. No expert testimony was proffered. And the only press accounts in the record
suggest that the Ivory Coast’s population as a whole is frustrated with the criminal and
gang violence taking place in the country, which indicates that Ivory Coast society would
not recognize Komara’s proposed groups as socially distinct from others. Moreover,
there is no evidence of historical animosity in the Ivory Coast against people who oppose
gangs or who report crimes to the police.
Nor is there anything distinct, it seems, about those who oppose the Microbes
specifically. The Microbes themselves do not appear to pay attention to that. Komara
stated that they are indiscriminate in their hostility – “They assault everybody.” (A.R. at
141.) Even if Komara could argue that the Microbes perceive as distinct the people who
denounce their activities and report them to the police, a persecutor’s subjective
perception is legally insufficient to demonstrate social distinction. See Matter of M-E-V-
8
G-, 26 I. & N. Dec. at 242 (clarifying that recognition of a particular social group “is
determined by the perception of the society in question, rather than by the perception of
the persecutor”).
Because Komara’s proposed social groups lack social distinction, it is unnecessary
to determine whether those groups are sufficiently particular. In sum, we agree with the
BIA’s conclusion that Komara has not demonstrated that his proposed particular social
groups are legally cognizable under the INA, and his asylum application was properly
denied. 5
Turning to Komara’s withholding of removal claim, because he cannot meet the
standard for asylum, it necessarily follows that he cannot meet the more stringent
standard for withholding of removal. See 8 U.S.C. § 1231(b)(3)(A) (“[T]he 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 …
membership in a particular social group[.]”); Valdiviezo-Galdamez, 663 F.3d at 591 (“To
qualify for withholding of removal [under 8 U.S.C. § 1231(b)(3)], an alien must establish
a ‘clear probability of persecution,’ i.e., that it is more likely than not, that s/he would
suffer persecution upon returning home.” (citation omitted)).
IV. Conclusion
For the foregoing reasons, we will deny Komara’s petition for review.
5
Because Komara has not demonstrated persecution based on a protected ground,
his remaining arguments are moot.
9