Ablaye Mbodj v. Eric H. Holder, Jr.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0578n.06
No. 08-3165 FILED
Aug 31, 2010
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
ABLAYE MBODJ, )
) ON APPEAL FROM THE
Petitioner, ) BOARD OF IMMIGRATION
) APPEALS
v. )
) OPINION
ERIC H. HOLDER, JR., ATTORNEY )
GENERAL, )
)
Respondent.
BEFORE: BATCHELDER, Chief Circuit Judge, and MOORE and COLE, Circuit Judges.
COLE, Circuit Judge. Petitioner Ablaye Mbodj, a citizen of Mauritania, petitions the Court
for review of a decision by the Board of Immigration Appeals (“BIA”) affirming the denial of his
asylum claim by an Immigration Judge (“IJ”). He argues that the BIA erred in determining that
changed country conditions in Mauritania rebut the presumption of future persecution that otherwise
would be drawn from the past persecution he suffered there. In the alternative, he argues that even
if conditions have changed in Mauritania, the BIA erred in denying him humanitarian asylum.
Because the BIA’s changed-conditions determination is supported by substantial evidence and
because the BIA did not abuse its discretion in refusing humanitarian asylum, we AFFIRM the
BIA’s decision and DENY Mbodj’s petition.
No. 08-3165
Ablaye Mbodj v. Eric H. Holder, Attorney General
I. BACKGROUND
Mbodj was born in 1959 in Mauritania. Before being forced to leave the country, he worked
as a fisherman and ferryman and fathered three children. In April of 1989, Mauritanian soldiers
came to his house and, on the pretense that he needed protection from the ethnic violence then
sweeping the country, transported him to a work camp housing about 150 to 200 people. Conditions
in the camp were unsanitary—while he was detained there, there was a diarrhea epidemic that the
inmates believed was caused by cholera and that resulted in an unspecified number of deaths—and
the detainees were not given enough food. On one occasion, when Mbodj refused to clean up one
of the ill inmates’ excrement with his bare hands, he was beaten severely by soldiers, leaving him
with two permanent injuries: a scar from a soldier’s extinguishing a cigarette on Mbodj’s skin and
a damaged front tooth from being hit with the butt of a soldier’s rifle. In his asylum application,
Mbodj also claims to have witnessed soldiers beating, torturing, and killing other detainees at the
work camp.
After approximately two weeks in the camp, Mbodj and other detainees were taken to the
Senegal River, which borders Mauritania, and made to paddle across. He lived in a refugee camp
in Senegal until 1994, when he traveled to Dakar, where he worked illegally selling cigarettes and
candy and washing cars. He married a Senegalese woman with whom he had two children, but did
not attempt to obtain Senegalese citizenship. On or about October 29, 2000, Mbodj traveled to the
United States using a false passport and visa, entering the United States via John F. Kennedy
International Airport in New York. On April 2, 2001, he filed an affirmative application for asylum,
withholding of removal, and protection under the Convention Against Torture (“CAT”), and on April
-2-
No. 08-3165
Ablaye Mbodj v. Eric H. Holder, Attorney General
18, 2003, the Department of Homeland Security served him with a Notice to Appear. At a
scheduling hearing on April 27, 2004, he renewed his claims for relief, alleging persecution based
on his race, nationality, and membership in a particular social group, and requested voluntary
departure if his claims were not granted. His merits hearing was held before the IJ on June 1, 2006.
Following the hearing, the IJ delivered an oral decision holding that, while Mbodj had
suffered past persecution, the record demonstrated that conditions in Mauritania since had changed
fundamentally, such that Mbodj no longer had a well-founded fear of future persecution. In making
this determination, the IJ relied on multiple reports from the U.S. Department of State, dating from
1995 to 2005, which describe the severe intercommunal violence between Moor and Sub-Saharan-
African groups that broke out in April 1989 and that resulted in the deportation of tens of thousands
of Mauritanian citizens to Senegal.1 However, the reports also indicate that, while racial tensions
continued during this time period, the Mauritanian Government instituted policies in the late 1990s
to facilitate the return of refugees; that a sizeable majority of the refugees since have returned; that
many of the returnees have been given back their original homes, property, and all or a portion of
their land; and that President Sid’Ahmed Taya, who also had been the country’s leader during the
1989 violence, was ousted in 2005 in a bloodless coup.
The IJ acknowledged that, while the changed conditions in Mauritania no longer supported
a well-founded fear of persecution, it remained within his discretion to grant humanitarian asylum.
1
Mbodj’s ethnicity is not entirely clear: while his asylum application states that he is
Wolof, he testified before the IJ that he is a member of the Black Moor ethnic group, and in his
brief before this Court, he identifies himself simply as “Black Mauritanian.” Final determination
of this question is unnecessary because our analysis does not hinge on Mbodj’s ethnicity.
-3-
No. 08-3165
Ablaye Mbodj v. Eric H. Holder, Attorney General
He declined to grant such relief because Mbodj had been able to work, marry, and have children in
Senegal, and could have applied for asylum there, but instead traveled to the United States for
economic reasons. The IJ also rejected Mbodj’s withholding of removal and CAT claims because
of the higher standard of proof required for these forms of relief and denied voluntary departure
because Mbodj had not demonstrated by clear and convincing evidence that he had the means and
intent to depart the United States.
On January 17, 2008, the BIA affirmed the IJ’s decision, holding that “specific findings
premised on extensive record evidence” supported the determination that while Mbodj had
established past persecution, the presumption of future persecution had been rebutted by changed
circumstances in Mauritania. (BIA Decision 1-2.) The BIA also found that Mbodj had not provided
sufficient evidence to undermine the IJ’s changed-circumstances determination. Mbodj had
presented a letter from a friend in Senegal, dated April 10, 2005, that advised him not to return to
Mauritania because the situation had worsened there, but the BIA found the letter unpersuasive
because it “gave no specifics and did not state the basis for that opinion.” (Id. at 2.) Similarly, the
BIA did not credit Mbodj’s testimony that he could be killed because of continuing racial problems
in Mauritania or his contention that the State Department Reports were inaccurate and politically
motivated. This testimony followed claims in Mbodj’s asylum application that returnees who had
attempted to reclaim their property had been attacked, tortured, enslaved, imprisoned, and sometimes
killed by private citizens and Mauritanian security forces.
Having dismissed Mbodj’s challenge to the existence of changed circumstances in
Mauritania, the BIA proceeded to address several arguments that Mbodj had not presented. Because
-4-
No. 08-3165
Ablaye Mbodj v. Eric H. Holder, Attorney General
Mbodj had not made any “meaningful appellate arguments” regarding CAT relief or voluntary
departure, the BIA deemed them waived. (Id.) The BIA assumed for the sake of argument that
Mbodj had not waived any arguments that he merited asylum based on a different claim or was
eligible for humanitarian asylum based on the severity of the persecution he had suffered, but held
that such relief was not warranted. Accordingly, the BIA dismissed Mbodj’s appeal.
Mbodj now appeals the BIA’s decision. We have jurisdiction over final orders of removal
issued by the BIA under 8 U.S.C. § 1252(b).2
II. ANALYSIS
A. Changed Circumstances
Where the BIA issues a separate opinion adopting the IJ’s decision but including
supplementary findings, we review the BIA’s decision as the final agency determination but also
review the IJ’s decision to the extent the BIA adopted the IJ’s reasoning. See Koita v. Mukasey, 314
F. App’x 839, 842-43 (6th Cir. 2009) (citing Morgan v. Keisler, 507 F.3d 1053, 1057 (6th Cir.
2007), and Patel v. Gonzales, 470 F.3d 216, 218 (6th Cir. 2006)). In determining whether an
applicant has established eligibility for asylum, we assess “whether the administrative determination
below is ‘supported by reasonable, substantial, and probative evidence on the record considered as
a whole.’” Id. at 843 (quoting Klawitter v. INS, 970 F.2d 149, 151-52 (6th Cir. 1992)). Reversal of
the BIA is appropriate “only if the applicant can prove that the evidence compels a contrary
2
Following the withdrawal of Mbodj’s former counsel three days before argument, we
permitted Mbodj’s new counsel to file a supplemental brief and the Government to file a
supplemental response.
-5-
No. 08-3165
Ablaye Mbodj v. Eric H. Holder, Attorney General
conclusion.” Id. (citing Almuhtaseb v. Gonzales, 453 F.3d 743, 749 (6th Cir. 2006)).
An alien may be granted asylum if he demonstrates that he is a “refugee,” pursuant to 8
U.S.C. § 1158, which is defined as an alien who is unable or unwilling to return to his home country
“because of persecution or a well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42).
Persecution entails “punishment or the infliction of suffering or harm, but harassment or
discrimination without more” does not constitute persecution. Sako v. Gonzales, 434 F.3d 857, 862
(6th Cir. 2006) (internal quotation marks omitted). Past persecution gives rise to a rebuttable
presumption that the applicant has a well-founded fear of future persecution. 8 C.F.R.
§ 1208.13(b)(1). The Government may rebut this presumption by demonstrating by a preponderance
of the evidence that conditions in the applicant’s home country have changed so fundamentally that
the petitioner’s fear of future persecution is no longer well-founded. Id. § 1208.13(b)(1)(i)(A). If
the Government meets its burden, the burden shifts to the petitioner to demonstrate that his fear is
well-founded notwithstanding the changed conditions. Koita, 411 F. App’x at 843 (citing Liti v.
Gonzales, 411 F.3d 631, 639 (6th Cir. 2005)).
Mbodj argues that the IJ and BIA ignored evidence in the record indicating that human-rights
abuses and racial and ethnic discrimination remain significant problems in Mauritania, and thereby
erred in finding that the Government demonstrated that conditions had changed fundamentally in the
country since 1989. As Mbodj correctly notes, Mauritania’s human rights record remains poor. The
State Department reports attest to continued restrictions on citizens’ freedom of speech and
association and ability to effect political change; to incidents of illegal searches, arbitrary arrest and
-6-
No. 08-3165
Ablaye Mbodj v. Eric H. Holder, Attorney General
detention, abuse of prisoners, and human trafficking; and to longstanding and widespread
discrimination against minority groups. Nonetheless, we are unable to conclude that the evidence
in the record before us compels the conclusion Mbodj urges. While the Mauritanian government’s
human rights record remains poor, Mbodj has not presented any evidence that he bears any particular
risk of being persecuted. See Ali, 366 F.3d at 410 (agreeing with the Seventh Circuit that
“[c]onditions of political upheaval which affect the populace as a whole or in large part are generally
insufficient to establish eligibility for asylum”); Castellano-Chacon v. I.N.S., 341 F.3d 533, 550 (6th
Cir. 2003) (noting that an asylum applicant “must demonstrate more than the existence of a
generalized or random possibility of persecution”). Nor has he demonstrated, continued
discrimination notwithstanding, that conditions in Mauritania remain ripe for a repeat of the 1989
violence and expulsion of minority groups. To the contrary, all the State Department reports indicate
that the government has had policies in place for almost two decades to facilitate refugees’ return,
and that a sizeable majority of the refugees has found it safe to do so. Cf. Sall v. Gonzales, 239 F.
App’x 975, 980 (6th Cir. 2007) (noting that State Department reports “‘are generally the best source
of information on conditions in foreign nations’”) (quoting Sterkaj v. Gonzales, 439 F.3d 273, 276
(6th Cir. 2006))).3
We note that, since the 2005 coup, Mauritania conducted its first democratic presidential
3
Mbodj also argues that the Government failed to show, pursuant to 8 C.F.R.
§ 1208.13(b)(3)(ii), that internal relocation was a reasonable alternative. This argument
misconstrues § 1208.13(b)(3)(ii), which merely states that, where past persecution has been
established, there is a rebuttable presumption that internal relocation would not be reasonable.
Neither the IJ nor the BIA decision rests on the possibility of internal relocation, but rather on the
changed circumstances in Mauritania.
-7-
No. 08-3165
Ablaye Mbodj v. Eric H. Holder, Attorney General
election in March of 2007, had a second military coup in August 2008, and conducted another
presidential election in July 2009. See United States Department of State, 2009 Country Report on
Human Rights Practices for Mauritania, http://www.state.gov/g/drl/rls/hrrpt/2009/af/135965.htm.
Neither the IJ nor the BIA considered these events—the last two of which occurred after the
administrative proceedings had concluded—in evaluating Mbodj’s claims. Cf. Matte v. Gonzales,
158 F. App’x 726, 733 (6th Cir. 2005) (remarking on the “increasingly common problem of global
events outpacing the asylum review process, resulting in asylum decisions being affirmed on grossly
outdated records”). Because of “the ‘highly complex and sensitive’ nature of the question of
changed country conditions,” however, we allow the BIA “‘the opportunity to address the matter in
the first instance in light of its own experience.’” Khora v. Gonzales, 172 F. App’x 634, 639 (6th
Cir. 2006) (quoting I.N.S. v. Orlando Ventura, 537 U.S. 12, 17 (2002)); see also 8 U.S.C.
§ 1252(b)(4)(A) (“[T]he court of appeals shall decide the petition only on the administrative record
on which the order of removal is based . . . .”). If Mbodj believes that subsequent events may impact
his asylum claim, the proper course is for him to move the BIA to reopen proceedings pursuant to
8 C.F.R. § 1003.2(c). See Khora, 172 F. App’x at 640; Matte, 158 F. App’x at 733-34.
B. Humanitarian Asylum
Mbodj argues in the alternative that, even if the BIA did not err in determining that he no
longer has a well-founded fear of persecution, it erred in denying him humanitarian asylum. The
Government argues that Mbodj has waived this claim by failing to raise it below. While a petitioner
normally must present all reviewable issues to the BIA, if the BIA sua sponte raises and rules on the
merits of an issue, as was the case here, the petitioner is deemed to have exhausted his administrative
-8-
No. 08-3165
Ablaye Mbodj v. Eric H. Holder, Attorney General
remedies and not to have forfeited the issue. See Ly v. Holder, 327 F. App’x 616, 620 (6th Cir.
2009) (citing Khalili v. Holder, 557 F.3d 429, 432-36 (6th Cir. 2009)).
Nonetheless, Mbodj’s claim fails. Humanitarian asylum is a form of “extraordinary relief,”
Cutaj v. Gonzales, 206 F. App’x 485, 492 (6th Cir. 2006), that may be granted only where “[t]he
applicant has demonstrated compelling reasons for being unwilling or unable to return to the country
arising out of the severity of the past persecution,” or where “there is a reasonable possibility that
he or she may suffer other serious harm upon removal to that country,” even in the absence of a well-
founded fear of future persecution, 8 C.F.R. § 1208.13(b)(1)(iii). In other words, humanitarian
asylum is appropriate only “in rare instances” where the applicant “has suffered under atrocious
forms of persecution.” Ben Hamida v. Gonzales, 478 F.3d 734, 740 (6th Cir. 2007) (internal
quotation marks omitted); see also Cutaj, 206 F. App’x at 491 (stating that persecution must be
“particularly severe” to warrant humanitarian asylum) (internal quotation marks omitted). We
review the BIA’s denial of humanitarian asylum for an abuse of discretion. Karomi v. Gonzales, 168
F. App’x 719, 723 (6th Cir. 2006); Hadad v. Ashcroft, 127 F. App’x 800, 802 (6th Cir. 2005).
Given the high bar that must be met to warrant a grant of humanitarian asylum, we find that
the BIA did not abuse its discretion in denying Mbodj this relief. The IJ’s rationale for denying
humanitarian asylum—because Mbodj had been able to work, marry, and have children in Senegal,
and could have applied for asylum there—was not on point, but the BIA did not adopt this rationale.
Instead, the BIA relied on two previous decisions, In re A-T-, 24 I. & N. Dec. 296 (BIA 2007), and
In re N-M-A-, 22 I. & N. Dec. 312 (BIA 1998), that involve persecution the BIA deemed
insufficiently severe to merit humanitarian relief. As these cases suggest, the persecution Mbodj
-9-
No. 08-3165
Ablaye Mbodj v. Eric H. Holder, Attorney General
suffered simply is not in the same realm as that which warrants humanitarian asylum. Cf. Cutaj, 206
F. App’x at 492 (noting that “the concept of humanitarian asylum was designed for the case of the
German Jews, the victims of the Chinese Cultural Revolution, survivors of the Cambodian genocide,
and a few other such extreme cases”) (internal quotation marks omitted)); Karomi, 168 F. App’x at
726-27 (collecting cases). None of the cases on which Mbodj relies is to the contrary. See In re H-,
21 I. & N. Dec. 337, 348 (BIA 1996) (finding that applicant had demonstrated past persecution but
not reaching question of whether humanitarian asylum was warranted); In re B-, 21 I. & N. Dec. 66,
67, 72 (BIA 1995) (granting humanitarian asylum to petitioner who was imprisoned in Afghanistan
for thirteen months, including three months during which he was subjected to sleep deprivation,
beatings, and electric shocks applied to his fingers); In re Chen, 20 I. & N. Dec. 16, 19-21 (BIA
1989) (granting humanitarian asylum to survivor of Chinese Cultural Revolution who had been
subjected to continuing interrogation, beatings, and periodic imprisonment over the course of more
than nine years, leaving him physically debilitated and emotionally traumatized).
Admittedly, the BIA’s consideration of this issue is extremely brief, consisting of only the
conclusory statement that humanitarian asylum was not merited and the citation to the two cases in
support. But given that the BIA was addressing an issue that Mbodj had not raised, and given that
the cases the BIA cited point to the significant gap between the persecution that Mbodj suffered and
that which might merit humanitarian asylum, the BIA’s summary dismissal was not an abuse of
discretion. Cf. Pepaj v. Mukasey, 307 F. App’x 891, 898 (6th Cir. 2009) (“‘[T]he Board has no duty
to write an exegesis on every contention. What is required is merely that it consider the issues raised,
and announce its decision in terms sufficient to enable a reviewing court to perceive that it has heard
- 10 -
No. 08-3165
Ablaye Mbodj v. Eric H. Holder, Attorney General
and thought and not merely reacted.’”) (quoting Scorteanu v. INS, 339 F.3d 407, 412 (6th Cir.
2003))).
III. CONCLUSION
For all the reasons above, we AFFIRM the decision of the Board of Immigration Appeals
and DENY Mbodj’s petition.
- 11 -