Mikailu Jalloh v. William Barr, U. S. Atty Gen

Case: 18-60604 Document: 00515252562 Page: 1 Date Filed: 12/30/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 18-60604
United States Court of Appeals
Fifth Circuit
FILED
MIKAILU JALLOH, also known as Mikailou Diallo, December 30, 2019
Lyle W. Cayce
Petitioner Clerk
v.
WILLIAM P. BARR, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A209 991 615
Before KING, JONES, and DENNIS, Circuit Judges.
PER CURIAM:*
The petitioner in this case fled his home country after receiving death
threats for writing a newspaper article calling for the abolition of female
genital mutilation. An immigration judge and the Board of Immigration
Appeals rejected his request for asylum, ruling that his opposition to female
genital mutilation did not qualify as a political opinion and failing to analyze
his argument that he had a well-founded fear of future persecution. Because
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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this was error, we grant the petition in part and remand the case for further
proceedings.
I.
A.
Petitioner Mikailu Jalloh is a citizen of Sierra Leone who is seeking
asylum in the United States. Jalloh fled Sierra Leone after a conflict with the
Bondo, also known as the Sande, a powerful secret society in Sierra Leone that
supports, perpetuates, and sometimes forcibly imposes female genital
mutilation. The vast majority of women in Sierra Leone have experienced some
form of genital mutilation.
In October 2016, Jalloh’s girlfriend told him that the Bondo intended,
against her will, to mutilate her. Jalloh, who occasionally wrote articles for a
local newspaper, decided to investigate the Bondo and to write an article about
them. In November 2016, after Jalloh had been conducting interviews about
female genital mutilation, five members of the Bondo showed up at his house
at dusk. They blamed Jalloh for his girlfriend’s aversion to them, and they
threatened to kill him if he continued to interfere. Jalloh replied that he
intended to expose them.
Jalloh’s article about female genital mutilation and the Bondo was
published in December 2016. The article, which ran under the headline
“Abolish Female Genital Mutilation Now & Save Our Girls,” called on the
“government to pass laws that totally abolish the practice in Sierra Leone.”
The following week, a group of Bondo supporters carrying sticks and rocks
came at night to Jalloh’s house and threatened to burn it down if he did not
emerge. After Jalloh’s sister-in-law told the mob that Jalloh was not at home,
they searched the house and, not finding him, told her that Jalloh was “a
walking dead man.” Jalloh’s sister-in-law called Jalloh and informed him of
what had transpired, and Jalloh immediately fled.
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B.
On January 17, 2017, Jalloh presented himself at the border in Laredo,
Texas, and requested asylum. He was placed into removal proceedings, where
he argued that he was eligible for asylum and withholding of removal. The
immigration judge disagreed. Although crediting Jalloh’s testimony, the
immigration judge ruled that “[t]he threats made to [Jalloh] were criminal and
not equivalent to persecution on account of a political belief. The motive of the
perpetrators has nothing to do with [Jalloh]’s politics, but was retaliatory
because of interference with a cultural practice.” The immigration judge also
noted that “[t]he government [of Sierra Leone] has taken no action against
[Jalloh].”
The Board of Immigration Appeals affirmed and adopted the
immigration judge’s decision. The board agreed that Jalloh was threatened
“because he was critical of a cultural practice” and not because of “his political
opinion.” The board further determined that “the threats [Jalloh] received”
were “insufficient to establish past persecution.” Finally, the board agreed with
the immigration judge that “the government has not sought to harm [Jalloh]
due to his activities as a journalist.” The board thus ruled that Jalloh was not
eligible for asylum and that, a fortiori, he was not eligible for withholding of
removal. Jalloh timely filed a petition for review.
II.
Asylum may be granted to those who are “‘unwilling to return to’ their
home country ‘because of persecution or a well-founded fear of persecution’”
based on “race, religion, nationality, membership in a particular social group,
or political opinion.” Tamara-Gomez v. Gonzales, 447 F.3d 343, 348 (5th Cir.
2006). Jalloh argues that he qualifies because he faced persecution by the
Bondo in Sierra Leone and reasonably fears persecution if he returns due to
his political opinion: namely, his opposition to female genital mutilation. The
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Attorney General denies that the threats that Jalloh received amounted to
persecution but otherwise concedes that the Board of Immigration Appeals
erred and argues that the case should be remanded.
A.
“A political opinion is ‘one that is expressed through political activities
or through some sort of speech in the political arena,’” such as by
“[c]ampaigning against the government, writing op-ed pieces, urging voters to
oust corrupt officials, . . . or speaking out repeatedly as a ‘public gadfly.’” Liu
v. Holder, 692 F.3d 848, 852 (7th Cir. 2012) (citation omitted). “Criticism of
government actions or policies generally may be considered the expression of
political opinion.” Li v. Holder, 559 F.3d 1096, 1111 (9th Cir. 2009). In this
case, Jalloh wrote a newspaper article calling on his government to “take
Action Now,” stating that “[p]oliticians have refused to talk about [female
genital mutilation] for fear of losing votes while the Government who declared
a ban on the practice has failed to take actions against perpetrators.” In the
article, Jalloh complained that “governments after governments have failed to
put relevant mechanism[s] in place to save young girls” from mutilation and
urged the “government to pass laws that totally abolish the practice in Sierra
Leone.” This is quintessentially political speech, and the Attorney General does
not argue otherwise. 1
Because of Jalloh’s article, a mob came to his house and threatened his
life. Jalloh’s political opinion was thus a central reason for the persecution that
he claims. The immigration judge’s conclusion—which the Board of
Immigration Appeals affirmed—that the threats against Jalloh had “nothing
to do with [his] politics” is unsupportable and constituted error.
1The Attorney General instead speculates that the board must have overlooked “the
portions of [the one-page] article in which [Jalloh] criticized the government of Sierra Leone
and advocated for the government to abolish [female genital mutilation].”
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B.
Establishing that he was threatened based on his political opinion gets
Jalloh only part of the way there. He must also prove that those threats
amounted to “past persecution” or gave rise to “a well-founded fear of future
persecution.” Cabrera v. Sessions, 890 F.3d 153, 159 (5th Cir. 2018).
Persecution can take many forms and “need not be physical.” Morales v.
Sessions, 860 F.3d 812, 816 (5th Cir. 2017) (quoting Abdel-Masieh v. INS, 73
F.3d 579, 583 (5th Cir. 1996)). We have said that persecution includes not only
“threats to life, confinement, [and] torture,” id. (citation omitted), but also “the
deliberate imposition of severe economic disadvantage or the deprivation of
liberty, food, housing, employment or other essentials of life,” Tesfamichael v.
Gonzales, 469 F.3d 109, 114 (5th Cir. 2006) (quoting Abdel-Masieh, 73 F.3d at
583). Nevertheless, to qualify as persecution, conduct must be “extreme,”
Morales, 860 F.3d at 816 (quoting Tesfamichael, 469 F.3d at 116); “persecution
generally ‘requires more than a few isolated incidents of verbal harassment or
intimidation,’” id. (citation omitted). What is more, to trigger eligibility for
asylum, the persecution must have been inflicted “by the government or forces
that [the] government is unable or unwilling to control.” Tesfamichael, 469
F.3d at 113.
Because the Board of Immigration Appeals adopted the immigration
judge’s ruling, we review both the board’s and the immigration judge’s
decisions. See Sealed Petitioner v. Sealed Respondent, 829 F.3d 379, 383 (5th
Cir. 2016). “We review the legal conclusions of the IJ and the BIA de novo, and
we review their factual findings for substantial evidence.” Id. Whether
particular conduct amounts to persecution “is a question of law that we review
de novo.” Morales, 860 F.3d at 816.
Here, the board determined that the two threats made against Jalloh did
not constitute past persecution because they were insufficiently severe. But as
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to Jalloh’s fear of future persecution, the board found only (1) that it was
unconnected to a political opinion and (2) that “the government has not sought
to harm [Jalloh] due to his activities as a journalist.” For the reasons already
mentioned, this first finding was erroneous.
The second finding—that the government of Sierra Leone was unlikely
to persecute Jalloh—misapprehends Jalloh’s concern. Jalloh’s asylum
application stated that he feared that if he returned to Sierra Leone, he would
“be killed by the Bondo people.” And he presented considerable evidence that
the Sierra Leonean government was either unable or unwilling to stop the
Bondo. Among other incidents, the record reveals that, on one occasion, the
Bondo marched four journalists through the streets naked because they had
reported negatively on female genital mutilation. On another occasion, the
police did arrest one of the Bondo for kidnapping a woman and cutting her
genitals, but hundreds of Bondo supporters descended on the police station and
successfully demanded the arrestee’s release. Jalloh also testified that a
preacher had recently been burned alive for opposing the Bondo.
The Board of Immigration Appeals failed to analyze whether Jalloh’s
fear of persecution by the Bondo was well founded, or whether the government
of Sierra Leone was unable or unwilling to control the Bondo. When the board
fails to address a key issue, remand is generally the “proper course” of action.
INS v. Orlando Ventura, 537 U.S. 12, 16 (2002) (quoting Fla. Power & Light
Co. v. Lorion, 470 U.S. 729, 744 (1985)). Jalloh argues that we need not remand
on this issue because the evidence in the record is overwhelming. But “[w]here
an agency has failed to comply with its responsibilities, we should insist on its
compliance rather than attempt to supplement its efforts.” Abdel-Masieh, 73
F.3d at 585 (quoting Sanon v. INS, 52 F.3d 648, 652 (7th Cir. 1995)). Although
it is sometimes appropriate for this court to decide such an issue in the first
instance, such occasions are “rare,” Orlando Ventura, 537 U.S. at 16 (quoting
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Fla. Power, 470 U.S. at 744), and we see no special reason to do so here. 2
Accordingly, we remand this case to the Board of Immigration Appeals for a
decision on Jalloh’s asylum eligibility that properly considers his fear of future
persecution by the Bondo.
III.
Jalloh also seeks withholding of removal. This requires him to show that
“there is a clear probability that [his] life or freedom w[ould] be threatened
based upon [his] . . . political opinion” were he returned to Sierra Leone.
Morales, 860 F.3d at 817. Because this standard is “higher than the standard
for asylum, . . . the failure to establish a well-founded fear for asylum eligibility
also forecloses eligibility for withholding of removal.” Orellana-Monson v.
Holder, 685 F.3d 511, 518 (5th Cir. 2012). Once the Board of Immigration
Appeals determined that Jalloh was ineligible for asylum, it summarily
concluded that he was also ineligible for withholding of removal. Because the
board must reassess Jalloh’s asylum request, so too must it reassess whether
he is eligible for withholding of removal. See Mikhael v. INS, 115 F.3d 299, 306
(5th Cir. 1997).
IV.
For the foregoing reasons, the petition is GRANTED in part, and the case
is REMANDED to the Board of Immigration Appeals for further proceedings
consistent with this opinion.
2 Jalloh originally argued that remand would unnecessarily prolong his stay in
immigration detention. At oral argument, however, counsel for the Attorney General
represented that Jalloh is no longer in custody.
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