Issakh, Abdallah A. v. Gonzales, Alberto R.

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued December 13, 2006
Decided January 11, 2007
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 05-4636
ABDALLAH ALI ISSAKH, Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals.
v. No. A96-169-731
ALBERTO R. GONZALES,
Attorney General of the United States,
Respondent.
ORDER
Abdallah Ali Issakh moved to reopen his asylum claim based on a change in
country conditions in his native Chad. The Board of Immigration Appeals denied
his motion. Issakh now petitions us to review the BIA’s denial of his Motion to
Reopen, and we deny the petition.
I.
Issakh entered the United States in 2002 as a nonimmigrant visitor. After
he overstayed his visa, he applied for asylum and withholding of removal, see 8
U.S.C. §§ 1158(b)(1), 1231(b)(3), as well as for relief under the Convention Against
Torture. He claimed that because the Chadian government persecuted him as part
No. 05-4636 Page 2
of its more general persecution of the Ghouran tribe, he had a well-founded fear of
future persecution if forced to return.
At a hearing on Issakh’s request for relief, Issakh presented evidence
detailing his claims of persecution. He explained that the Ghouran tribe has been
suspected by the Chadian President, Idriss Déby, of supporting anti-government
rebel groups since 1998. It was then that Déby’s Defense Minister, Ghouran tribal
member Youssouf Toigoimi, left the Déby administration to found the Movement for
Democracy and Justice (“MDJT”), a rebel group dedicated to Déby’s overthrow.
Issakh testified that Toigoimi’s tribal affiliation led the Chadian government to
accuse the entire Ghouran tribe of supporting the MDJT. This government
accusation, Issakh continued, quickly led “to killing, to persecution, to arrests of
[the Ghouran tribe’s] members,” and ultimately resulted in a government program
to “force” the tribe out of Chad so that the government could resettle the tribe’s land
with its “own people.”
Issakh further claimed that in September 2001, Chadian “security guards”
detained and tortured him for three months because of his Ghouran tribal
membership. Although he informed the security guards that he was neither
politically active nor affiliated with any political party, Issakh stated that the
guards detained him, accused him of supporting Toigoimi and the MDJT, and
tortured him until he signed a confession to “supporting anti-government
activities.” Issakh stated that, after enduring three months of torture, he escaped
while his guards were transferring him and several other “prisoners” to another
location. Upon returning to his home village, Issakh was informed that security
forces were actively hunting him, and seven months later he fled to the United
States with the help of his brother-in-law, who used his position as a customs
official to help him obtain a visa and passport.
The IJ denied Issakh’s application for asylum. The IJ rejected Issakh’s claim
of past persecution, determining that the evidence detailing his alleged detention,
torture, and escape was not credible because he failed to reconcile several material
inconsistencies in his story. For instance, Issakh did not explain why he waited
seven months before fleeing Chad if security forces were, in fact, hunting him. The
IJ also stated that Issakh’s claim that he was detained and tortured for three
months contradicted State Department reports which recounted no instances in
2001 of prolonged detention based on political or tribal affiliation. The IJ also
stated that Issakh’s claim of persecution was undermined by the fact that his
brother-in-law—also a Ghouran—worked as a government customs official free
from persecution and suspicion of being “anti-government.” Additionally, the IJ
concluded that Issakh’s “weak testimony” failed to establish that he had a well-
founded fear of persecution, and noted that, in any event, the Chadian government
No. 05-4636 Page 3
“signed a formal peace treaty in January 2002 with the MDJT.” The IJ accordingly
ordered Issakh removed and deported to Chad.
Issakh appealed the IJ’s decision to the BIA, which dismissed his appeal.
The BIA concluded that Issakh did not show that the IJ erred by discrediting the
evidence supporting his asylum application because he failed to explain the
inconsistencies surrounding his alleged detention, torture, and escape. Issakh then
filed a Motion to Reconsider, which the BIA denied in June 2005 on the basis that
Issakh failed yet to reconcile these inconsistencies.
Instead of petitioning the federal courts to review the BIA’s dismissal of his
appeal, in September 2005 Issakh filed a motion with the BIA to reopen his asylum
proceedings on the ground that he had a well-founded fear of future persecution
based on changed conditions in Chad. Issakh asserted generally that, since
January 1, 2005, the Ghouran tribe “has been subjected to attacks by the [Chadian]
government,” and evidence of these attacks “has only become available recently.” In
support of his motion, he submitted evidence that he characterized as previously
unavailable: (1) his own affidavit detailing telephone conversations with his
brother-in-law in March 2005 regarding the Chadian government’s persecution of
the Ghouran tribe; (2) letters from his wife, mother, and brother-in-law that he
claimed to have received in August 2005, describing how they fled attacks on the
Ghouran tribe during the past two to four years, and how the Chadian government
arrested members of the tribe; and (3) letters dated August 2005 from three
Ghouran tribal members living in the United States who explained that the
Chadian government persecutes the Ghouran tribe. Issakh also submitted the 2004
State Department Country Report on Human Rights Practices for Chad, and two
newspaper articles—one detailing Déby’s 2005 accusation that Sudan was
supporting “Arab militias” operating on the Chadian-Sudanese border, and the
other describing the Chadian government’s “crackdown” on independent journalists
who criticized Déby.
The BIA denied Issakh’s Motion to Reopen. In a thorough order, it found
insufficient evidence of a change in conditions because Issakh’s claim that the
Chadian government was attacking the Ghouran tribe was “previously addressed”
in his application for asylum. The BIA went on to conclude that, even if Issakh’s
proffered evidence established a change in country conditions, it could not be
accepted because it “appear[ed] to either have been available and discoverable prior
to [the denial of Issakh’s Motion to Reconsider].” In any event, the BIA proceeded
to consider substantively each piece of “new” evidence Issakh proffered, explained
why it contradicted earlier evidence or was ultimately irrelevant, and concluded
that it was not “likely to change the result of [its] prior decisions.”
No. 05-4636 Page 4
II.
On appeal Issakh argues that the BIA erred by denying his Motion to
Reopen. He argues that the district court’s “insistence” that his evidence be
“submitted prior to the [BIA’s denial of his Motion to Reconsider] is not a valid basis
for denial of the Motion to Reopen” because a “Motion to Reopen based on changed
country conditions can be filed at any time.” Issakh further discounts as “irrational
and without merit” the BIA’s determination that the letters he submitted were
obtainable before this time because it failed to take into account his inability to
obtain them earlier. And, Issakh concludes, the evidence he submitted
“demonstrates a pattern and practice of persecution by Déby’s security forces of the
Ghouran tribe members.”
We review the BIA’s denial of a Motion to Reopen for abuse of discretion, see
Selimi v. Ashcroft, 360 F.3d 736, 739 (7th Cir. 2004), and are “highly deferential” to
the BIA’s interpretation of its regulations when it decides not to reopen an asylum
claim, see Pelinkovic v. Ashcroft, 366 F.3d 532, 536 (7th Cir. 2003); Krougliak v.
INS, 289 F.3d 457, 460 (7th Cir. 2002) (citation omitted). Although a Motion to
Reopen based on changed country conditions can be filed at any time, see 8 U.S.C.
§ 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii), Ajose v. Gonzales, 408 F.3d 393, 395
(7th Cir. 2005), the movant must nevertheless show that the evidence supporting
the motion was previously unavailable, see Krougliak, 289 F.3d at 460. “Previously
unavailable” means, in this context, that the evidence “was not available and would
not have been discovered or presented at the previous proceeding.” 8 U.S.C.
§ 1229a(c)(7)(C)(ii); see also Haile v. Gonzales, 421 F.3d 493, 497 (7th Cir. 2005)
(“[T]he relevant question for the BIA when it considers a motion to reopen based on
new evidence is not whether that material was available at the time of the hearing
before the [IJ], but whether it was available before the BIA itself rendered a final
decision in the case.”); Simtion v. Ashcroft, 393 F.3d 733, 736-37 (7th Cir. 2004).
We first note that the BIA did not abuse its discretion by concluding that
Issakh’s new evidence was previously available. By moving to reopen his asylum
proceedings, Issakh had the burden of showing that his evidence “was not available
and would not have been discovered or presented at the previous proceeding.” 8
U.S.C. § 1229a(c)(7)(C)(ii); see also Haile, 421 F.3d at 497; Simtion, 393 F.3d at
736-37. Issakh does not dispute that the “previous proceeding” in his case included
the BIA’s June 2005 denial of his Motion to Reconsider. The BIA thus acted within
its discretion when it determined that Issakh was required to demonstrate that he
could not have obtained the new evidence before the denial of his Motion to
Reconsider. See 8 U.S.C. § 1229a(c)(7)(C)(ii); Haile, 421 F.3d at 497.
Issakh continues to argue that, even if he needed to show that the evidence
No. 05-4636 Page 5
was not available before the denial of his Motion to Reconsider, the BIA erred by
concluding that the evidence would have been available. Issakh asserts that the
BIA overlooked the absence of a viable postal system in Chad. Without a viable
postal system, he continues, he had no way to obtain or learn about the letters from
his family and friends “until recently.” When submitting a Motion to Reopen,
however, the movant, and not the BIA, faces the “heavy burden to reopen matters
due to the discovery of previously unavailable evidence,” see Krougliak, 289 F.3d at
460, and a movant fails to meet this burden when he does not explain why the
evidence accompanying his motion was previously unavailable, see Lin v. Gonzales,
435 F.3d 708, 711 (7th Cir. 2006); Lainez-Ortiz v. INS, 96 F.3d 393, 396 (9th Cir.
1996). Issakh failed to meet this burden. Neither his Motion to Reopen nor his
accompanying affidavit attributed the prior unavailability of the letters to Chad’s
lack of a viable postal system. Nor, for that matter, has Issakh explained why it is
only this late in the proceedings that he became aware of the three Ghouran tribal
members living in the United States who submitted letters on his behalf. Because
Issakh gave no explanation in his Motion to Reopen why this evidence was
previously unavailable, the BIA did not abuse its discretion by declining to reopen
the case. See Lin, 435 F.3d at 711; Lainez-Ortiz, 96 F.3d at 396.
Ultimately, however, the evidence accompanying Issakh’s Motion to Reopen
failed to establish a change in country conditions in Chad. Issakh asserts that the
evidence “demonstrates a pattern and practice of persecution by Déby’s security
forces of the Ghouran tribe members.” As counsel elaborated at oral argument,
Ghouran tribal members are “continually attacked” as a part of the government’s
attempt to prevent Sudanese militias from provoking violence in eastern Chad, as
well as the government’s bid to quell “a revolt in Chad” that planned to overthrow
Déby. But in seeking to reopen his asylum proceedings, Issakh must proffer
evidence that shows an actual change in his home country, see Simtion, 393 F.3d at
736-37 (citing 8 C.F.R. § 1003.2(c)(1)); Dandan v. Ashcroft, 339 F.3d 567, 576 (7th
Cir. 2003), and that does not merely offer cumulative support for his original
asylum claim, see Betouche v. Ashcroft, 357 F.3d 147, 152 (1st Cir. 2004); In re J–J–,
21 I. & N. Dec. 976, 980-82 (BIA 1997). Yet Issakh’s allegations of changed country
conditions essentially repeats his original asylum claim—that the Chadian
government persecuted the Ghouran tribe because of its suspicion of Ghouran
support for anti-government groups. See Betouche, 357 F.3d at 152 (stating that
petitioner’s proffered evidence in rejected Motion to Reopen constituted “a further
attempt to relitigate the merits of the asylum claim [previously] rejected”).
Moreover, Issakh’s evidence of a “pattern and practice of persecution” of the
Ghouran tribe does not show that conditions in Chad had changed since his original
asylum hearing; indeed, at most, the evidence alleges that the government
persecution described in his original asylum application has persisted. See
Betouche, 357 F.3d at 152 (denying petition to review Motion to Reopen because
petitioner agreed “that the same conditions have been continuing ever since
No. 05-4636 Page 6
[petitioner’s original asylum hearing]”); Dandan, 339 F.3d at 576 (denying petition
to review Motion to Reopen because “[t]he new evidence presented by [petitioner]
does not comprise a compelling case that the situation in Lebanon is markedly
different than at the time of his original hearing”). Thus, the BIA did not abuse its
discretion by denying his Motion to Reopen. See Betouche, 357 F.3d at 152.
III.
The BIA did not abuse its discretion by determining that the evidence
accompanying Issakh’s Motion to Reopen was previously available. Nor did it err
by concluding that the evidence failed to establish a change in country conditions in
Chad. We accordingly DENY Issakh’s Petition for Review.