Thiam v. Holder

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT February 10, 2014

Elisabeth A. Shumaker
Clerk of Court
AMADOU THIAM,

Petitioner,

v. No. 12-9574
(Petition for Review)
ERIC H. HOLDER, JR., United States
Attorney General,

Respondent.

ORDER AND JUDGMENT*

Before BRISCOE, Chief Judge, McKAY and O’BRIEN, Circuit Judges.

Amadou Thiam, a native and citizen of Senegal, seeks review of a final order

of removal issued by the Board of Immigration Appeals (BIA) affirming the decision

of the Immigration Judge (IJ) denying his applications for asylum and restriction on

removal under the Immigration and Nationality Act (INA) and for protection under

the United Nations Convention Against Torture (CAT). Exercising jurisdiction under

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
8 U.S.C. § 1252(a), we affirm in part, reverse in part, and remand for further

proceedings.

I. Background

Thiam is from the Casamance region of Senegal, where there is a long-running

violent civil conflict between the Senegalese government and the Movement of

Democratic Forces of Casamance (MFDC), which seeks to secure Casamance’s

independence from Senegal. Thiam is Mandingo,1 which is an ethnic minority group

in Casamance and Senegal and is not the ethnic group of the majority of the MFDC.

According to Thiam, he opposes the rebellion by the MFDC and does not want

Casamance to be independent of Senegal.

On May 12, 2005, while working at his farm in Bignona, in the Casamance

region, MFDC rebels confronted Thiam and demanded that he join the rebellion. He

refused to do so and was brutally beaten. The next day, MFDC rebels attacked

Bignona, prompting the Senegalese army to shell and defend the area. Thiam

attempted to flee to Ziguinchor, the capital of Casamance, but was apprehended by

Senegalese security forces at a military checkpoint. Because he was still visibly

injured from his beatings by the MFDC, Senegalese military forces suspected Thiam

was part of the MFDC rebel forces and took him into custody. The soldiers detained

Thiam for two days, stripped him of his clothing, collected his identification

1
The record provides two spellings for Thiam’s ethnic group: 1) Mandingo and;
2) Mandingue. We will use Mandingo.

-2-
documents, and accused him of being part of the MFDC. While interrogating him,

the soldiers severely kicked, cut, and beat Thiam because he refused to admit to a

connection with the MFDC. The soldiers finally released Thiam after he agreed to

sign a document renouncing any affiliation with the MFDC. But the soldiers warned

Thiam that they would follow his activities and whereabouts and they threatened to

kill him if they did not like what he was doing.

Thiam then moved to neighboring Gambia and ultimately entered the United

States illegally in July 2006. He filed his application for asylum in June 2007

claiming, as relevant here, that he had been persecuted in Senegal by both MFDC

rebels and Senegalese military forces on account of an imputed political opinion.2

The Department of Homeland Security (DHS) denied the application in December

2007 and initiated removal proceedings. In proceedings before an IJ, Thiam

conceded removability and applied for asylum, restriction on removal, and CAT

protection. After a merits hearing, the IJ concluded Thiam failed to establish past

persecution by either the MFDC rebels or the Senegalese military forces.

Alternatively, the IJ found that even if past persecution had been established, internal

relocation to other parts of Senegal – such as Dakar, the capital of Senegal – was a

reasonable alternative. Accordingly, the IJ found Thiam removable and denied his

requests for relief. The BIA affirmed in part and dismissed in part. The BIA

2
Thiam also claimed persecution based on membership in a particular social
group, but he does not assert this ground on appeal.

-3-
affirmed the IJ’s finding that Thiam did not establish past persecution by MFDC

rebel forces but concluded Thiam established past persecution by the Senegalese

military forces. But it nevertheless affirmed the IJ’s denial of asylum and restriction

on removal because Thiam could avoid future persecution by relocating to another

part of Senegal other than Casamance. It also affirmed the denial of CAT protection.

This appeal followed.

II. Discussion

On appeal, Thiam argues that he is eligible for asylum and restriction on

removal because the BIA erred in finding that he could reasonably relocate to another

part of Senegal. He claims this was erroneous because the presumption of a fear of

future persecution was not rebutted with sufficient evidence and the BIA did not

adequately consider the factors identified in 8 C.F.R. § 1208.13(b)(3). He further

claims he is eligible for protection under the CAT.

A. Standard of Review

“Where, as here, a single BIA member issues a brief order, affirming . . . the

IJ’s order . . . such an order constitutes the final order of removal . . . and thus this

Court will not affirm on grounds raised in the IJ decision unless they are relied upon

by the BIA in its affirmance.” Rivera-Barrientos v. Holder, 666 F.3d 641, 645

(10th Cir. 2012) (alterations in original) (internal quotation marks omitted). While

we review the BIA’s decision, not the IJ’s, “we may consult the IJ’s opinion to the

-4-
extent that the BIA relied upon or incorporated it.” Sarr v. Gonzales, 474 F.3d 783,

790 (10th Cir. 2007).

“[W]e review the [BIA’s] findings of fact under the substantial evidence

standard.” Elzour v. Ashcroft, 378 F.3d 1143, 1150 (10th Cir. 2004). Under this

standard, “[t]he BIA’s findings of fact are conclusive unless the record demonstrates

that any reasonable adjudicator would be compelled to conclude to the contrary.”

Yuk v. Ashcroft, 355 F.3d 1222, 1233 (10th Cir. 2004) (internal quotation marks

omitted). We review the BIA’s legal conclusions de novo. Elzour, 378 F.3d at 1150.

“When the BIA has failed to address a ground that appears to have substance, we

should not reverse on that ground, but instead remand.” Rivera-Barrientos, 666 F.3d

at 645.

B. Asylum and Restriction on Removal

To be eligible for asylum, an alien must show that he is a “refugee” under the

INA which he may do by demonstrating that he has suffered past persecution or has a

well-founded fear of future persecution based on a statutorily protected ground.

See 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 1208.13; Rivera-Barrientos, 666 F.3d

at 645-46. Those protected grounds include, as relevant here, political opinion.

See 8 U.S.C. § 1101(a)(42)(A). Upon establishing refugee status, the grant or denial

of asylum is discretionary. See Krastev v. I.N.S., 292 F.3d 1268, 1271 (10th Cir.

2002).

-5-
 Outside of the asylum context, an alien may also seek restriction on removal

under 8 U.S.C. § 1231(b)(3) to avoid persecution in his home country. An alien may

not be removed 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 . . . political

opinion.” Id. To establish that his life or freedom would be threatened, “an applicant

must establish a clear probability of persecution on account of one of the statutorily

protected grounds . . . . A ‘clear probability’ means the persecution is more likely

than not to occur upon return.” Uanreroro v. Gonzales, 443 F.3d 1197, 1202

(10th Cir. 2006) (internal quotation marks omitted). Whereas a grant of asylum is

discretionary, “restriction on removal is granted to qualified aliens as a matter of

right.” Ismaiel v. Mukasey, 516 F.3d 1198, 1204 (10th Cir. 2008).

The BIA affirmed the IJ’s conclusion that Thiam failed to establish past

persecution by the MFDC rebels on account of a protected ground.3 The BIA

disagreed, however, with the IJ’s conclusion that Thiam did not establish persecution

by the Senegalese government on account of a protected ground. The BIA found that

the political opinion attributed to Thiam and his “suspected support for the MFDC”

“was a central reason why members of the Senegalese military forces were motivated

to harm him.” Admin. R. at 4. The BIA therefore found that Thiam had suffered

past persecution on account of an imputed political opinion.

3
Thiam does not appeal this finding.

-6-
 This showing of past persecution created a rebuttable presumption of a

well-founded fear of future persecution. See 8 C.F.R. § 1208.13(b)(1). The

government could rebut this presumption by showing by a preponderance of the

evidence that Thiam could avoid future persecution by relocating to another part of

Senegal and that “under all the circumstances, it would be reasonable to expect [him]

to do so.” Id. § 1208.13(b)(1)(i)(B). By the same token, because Thiam established

past persecution, this created a rebuttable presumption that internal relocation was

unreasonable. See id. § 1208.13(b)(3)(ii). The inquiry then on internal relocation is

two-fold: 1) whether the applicant can safely relocate; and 2) whether it would be

reasonable to expect the applicant to do so. See Gambashidze v. Ashcroft,

381 F.3d 187, 192 (3d Cir. 2004) (“[T]he regulation envisions a two-part inquiry:

whether relocation would be successful [in escaping persecution], and whether it

would be reasonable.”); Knezevic v. Ashcroft, 367 F.3d 1206, 1214-15 (9th Cir.

2004) (addressing first whether applicants could safely relocate and, if so, whether

relocation was reasonable).

In evaluating whether the government met its burden in overcoming the

presumption of future persecution, the BIA relied, in part, on excerpts from a 2009

State Department Country Report on Senegal. It observed that, according to the

Country Report, 1) ethnic groups in Senegal have coexisted relatively peacefully;

2) the Senegalese government generally has respected its citizens’ right of freedom of

movement within the country; and 3) the Senegalese government has established

-7-
support for internally displaced persons from the Casamance conflict. See Admin. R.

at 5.

To the extent that this evidence addresses whether internal relocation is safe, it

nevertheless fails to address Thiam’s particular circumstances of possible persecution

at the hands of the Senegalese government on account of his imputed political

opinion if he relocates. As Thiam accurately argues, in determining the efficacy of

finding a safe haven through internal relocation, the issue presented to the BIA was

not whether, in general, people displaced by the Casamance conflict may seek

assistance from the Senegalese government, but whether Thiam, who had been

persecuted by the Senegalese government, could safely and reasonably relocate

within Senegal to avoid future persecution by government forces.

We note that the government did not submit any documentary evidence to

overcome the presumption of future persecution. We recognize that, in the context of

country conditions, a State Department report “may be probative in a well-founded

fear case.” Krastev, 292 F.3d at 1276-77. But “we have cautioned that use of such

[a] report does not substitute for an analysis of the facts of [the] applicant’s

individual circumstances.” Id. at 1277 (internal quotation marks omitted). A similar

caution applies in determining whether internal relocation would be effective and

reasonable. Yet, “[t]he BIA’s conclusory reliance on the Country Report reflects no

consideration of the individualized circumstances facing [Thiam].” Id. at 1276.

Accordingly, this evidence, standing alone, does not support a finding that Thiam

-8-
could safely relocate to other parts of Senegal and is insufficient to meet the

government’s burden.

But in addition to the Country Report, the BIA relied on testimony elicited

from Thiam’s expert, Martin Evans, Ph.D., on the government’s cross-examination.

The BIA stated, citing portions of Evans’ testimony, that members of Thiam’s ethnic

group, the Mandingo, have lived in areas of Senegal outside of Casamance, including

Dakar. See Admin. R. at 5. And it further stated that neither the MFDC nor the

Senegalese government has directly attacked Dakar, though some Mandingo from

Casamance live there. See id. Accordingly, based on this evidence, the BIA rejected

Thiam’s claim that if he relocated to Dakar and relied on the Dakar community for

support, he would be identified as from Casamance and falsely accused by the

Senegalese government as an MFDC rebel. See id. And in further support, the BIA

cited to Evans’ testimony that he was unaware of any Mandingo living in Dakar who

had been persecuted by the Senegalese government for any reason. See id. at 5, 153.

Given our consideration of this evidence, we conclude that it substantially

supports that Thiam could safely relocate to Dakar. But we are unable to conclude

that the BIA’s determination that the government met its burden in establishing that

Thiam could reasonably relocate is supported by substantial evidence. See Knezevic,

367 F.3d at 1214 (determining that internal relocation was safe but concluding it was

unreasonable); Gambashidze, 381 F.3d at 193-94 (concluding that substantial

evidence did not support BIA’s conclusion that internal relocation would be

-9-
successful in avoiding future persecution). The BIA stated this conclusion

summarily and then, after consideration of the record evidence, it found that “there is

no evidence other than [Thiam’s] speculation that he would be singled out for harm

rising to the level of persecution if returned to Senegal.” Admin. R. at 5.

But this analysis is incomplete because, as we previously indicated, internal

relocation involves a two-part inquiry of determining whether relocation is safe, and

if so, reasonable. The BIA failed to consider and apply the factors identified in

8 C.F.R. § 1208.13(b)(3) in determining whether it would be “reasonable” for Thiam

to relocate. That regulation requires that adjudicators consider the following factors:

whether the applicant would face other serious harm in the
place of suggested relocation; any ongoing civil strife
within the country; administrative, economic, or judicial
infrastructure; geographical limitations; and social and
cultural constraints, such as age, gender, health, and social
and familial ties.

Id. Those factors are not necessarily determinative though of whether it would be

reasonable for the applicant to relocate. Id.

Although the BIA’s recognition that there have not been direct attacks in

Dakar by the Senegalese government may, to an extent, reflect its consideration of

the harm Thiam might possibly face in Dakar, the BIA did not address the other

factors relevant to a reasonableness determination. The government’s argument on

appeal that there is no evidence that the BIA did not consider these factors is wholly

unpersuasive.

- 10 -
 And, importantly, evidence presented by Thiam demonstrated that internal

relocation to Dakar would be unreasonable. For example, Thiam testified that he

does not have family in Dakar or other parts of Senegal, nor does he know any

Mandingo living in Dakar. Further, Evans testified that the lack of relatives or other

kin ties would make it extremely difficult for Thiam to integrate into the community

in Dakar. Yet the BIA’s opinion does not reflect that it considered these social and

cultural constraints or other determinative factors for internal relocation.

In sum, the BIA failed to adequately consider whether it was reasonable for

Thiam to internally relocate. Accordingly, we remand this matter to the BIA for

further proceedings not inconsistent with this opinion to determine the

reasonableness of internal relocation. See, e.g., Arboleda v. U.S. Att’y Gen., 434 F.3d

1220, 1226-27 (11th Cir. 2006) (per curiam) (holding that BIA’s failure to adequately

consider reasonableness factors identified in 8 C.F.R. § 1208.13(b)(3) was reversible

error); Hagi-Salad v. Ashcroft, 359 F.3d 1044, 1048-49 (8th Cir. 2004) (remanding to

the BIA for a reasonableness determination based on factors in 8 C.F.R.

§ 1208.13(b)(3)); Knezevic, 367 F.3d at 1214-15 (same). See also Gambashidze,

381 F.3d at 192 (“Thus the regulation envisions a two-part inquiry: whether

relocation would be successful, and whether it would be reasonable”).

Regarding Thiam’s restriction on removal claim, like his asylum claim, the

BIA concluded that the presumption of future persecution had been rebutted through

internal relocation and, that Thiam had not otherwise demonstrated that his life or

- 11 -
freedom would be threatened upon return to Senegal. Given our disposition of

Thiam’s asylum claim, however, we also remand his restriction on removal claim for

further consideration. See 8 C.F.R. § 208.16(b)(1)(i) (providing that presumption of

future threat to life or freedom that arises upon showing of past persecution in

country of removal may be rebutted by showing it is reasonable for applicant to

relocate internally).

C. Convention Against Torture

Thiam also seeks review of the BIA’s denial of his CAT claim. The CAT

“prohibits the return of an alien to a country where it is more likely than not that he

will be subject to torture by a public official, or at the instigation or with the

acquiescence of such an official.” Cruz-Funez v. Gonzales, 406 F.3d 1187, 1192

(10th Cir. 2005) (internal quotation marks and brackets omitted); see also 8 C.F.R.

§ 208.18(a)(1). CAT protection does not require that Thiam show he would be

tortured on the basis of a statutorily protected ground. See Cruz-Funez, 406 F.3d

at 1192.

Thiam argues he will be tortured based on his imputed political opinion. The

BIA concluded that Thiam’s speculation that he may be harmed upon return to

Senegal is insufficient to establish a clear probability of torture by a public official or

with the acquiescence of a public official. We have reviewed the record and

determine that the BIA’s conclusion is supported by reasonable and substantial

evidence and, as such, we are not compelled to conclude to the contrary.

- 12 -
 III. Conclusion

We affirm the BIA’s denial of CAT protection. We reverse the denial of

asylum and restriction on removal and remand for further proceedings consistent with

the views expressed herein.

Entered for the Court

Mary Beck Briscoe
Chief Judge

- 13 -
12-9574, Thiam v. Holder

O’BRIEN, J, concurring in part and dissenting in part

I concur in the denial of CAT protection. I agree with the majority that

changed conditions in Senegal have made it safe for Thiam to relocate there. I

disagree that it would be unreasonable to expect him to do so. Accordingly I

dissent from the reversal and remand.

The immigration judge (IJ) concluded Thiam had not suffered past

persecution. As an alternative holding the IJ concluded that even if Thiam had

suffered past persecution it was safe and reasonable for him to relocate in Senegal.

As shown above the Court does not believe that the
respondent has met his burden to show that whatever mistreatment
he suffered was on account of his political opinion, either real or
imputed. With reference to race the record does show that the
respondent belongs to the Mandingo tribe which is a minority group
in Senegal. The respondent has indicated that it would be difficult
for him to relocate because of his race. The Department of State,
however, paints a different picture. The Department of State's
Country Reports for Senegal most recently indicates that "the
country's many ethnic groups have coexisted relatively peacefully."
(Exhibit 4, page 368). The Court does not believe that the
respondent has established that the rebels or the government would
be interested in harming the respondent because of being a
Mandingo.

The Court also believes that even if there had been past
persecution shown on this record, the record also shows that internal
relocation is a reasonable alternative for the respondent. The Court
is aware that had there been a showing of past persecution that the
Government would bear the burden to show that internal relocation
is reasonable and that it is presumed that internal relocation is not
reasonable. 8 C.F.R.1208.13(b)(3)(ii). Respondent's expert felt it
would be difficult to relocate to Dakar, which would be the most
likely place the respondent would go. However, the expert did
 acknowledge that Mandingos do live in the north of Senegal and
they live as migrants in Dakar. There would be some difficulty in
the respondent relocating to a place where he does not have a job or
any relatives to help him relocate. However, that level of difficulty
is common in any sort of internal relocation and does not indicate
that relocation would be "unreasonable." Again the Department of
State indicates that relocation would be a viable alternative for the
respondent. "The Constitutional law provide for freedom of
movement within the country . . . and the Government generally
respected these rights . . . in practice." (Exhibit 4, page 362). The
Department of State also goes on to say that the government has
established support for internally displaced persons from the
Casamance conflict (Id.). Accordingly it does seem to this Court
that internal relocation has been established as a reasonable
alternative for the respondent. For that reason, then, the respondent
would not be granted asylum.

IJ Decision at 10–11.

The BIA disagreed with the IJ in one respect; it concluded past persecution

had been established. But it affirmed on the IJ’s alternative reasoning:

Nevertheless, the Immigration Judge properly denied the
respondent asylum, concluding in the alternative that the Department
of Homeland Security ("DHS") met its burden to rebut the
presumption of future persecution. We agree with the Immigration
Judge's determination that the DHS has met its burden of showing
by a preponderance of the evidence that the respondent can
reasonably relocate under all the circumstances to another area in
Senegal other than Casamance in order to avoid future persecution
by military forces or the MFDC (I.J. at 6, 10-11; Tr. at 82, 90). See
8 C.F.R. §§ 1208.13(b)(l), (3)(ii); see also INS v. Orlando Ventura,
537 U.S. 12, 18 (2002) (an individual who can relocate safely within
his home country ordinarily cannot qualify for asylum).

The respondent was arrested by Senegalese security forces at
a military checkpoint and mistreated by the military in 2005 after
fighting between the government and the MFDC escalated in
Casamance (I.J. at 9; Exhs. 2, 3d; Tr. at 32). The Immigration
Judge relied on the 2009 Senegal Country Reports on Human Rights
Practices - which noted, for example, that ethnic groups in Senegal
have coexisted relatively peacefully, and that the government

2
 generally respected its citizens' right for freedom of movement
within the country (I.J. at 10-11; Exh. 4i). Members of the
respondent's ethnic group have lived in other areas of Senegal
outside of Casamance (I.J. at 6, 11; Tr. at 90).

The respondent asserts that relying on the wider Dakar
community for support would result in his being identified as from
the Casamance region by the MFDC, or being falsely accused as a
rebel by the government. Yet the Immigration Judge correctly found
that there has not been any direct attacks by the MFDC or the
government in the capital city even though some people from
Casamance already live there (I.J. at 6; Tr. at 90-91). Moreover, the
Immigration Judge correctly observed that the Senegalese
government has established support for internally displaced persons
from the Casamance conflict (I.J. at 11; Exh. 4). Thus, there is no
evidence other than the respondent's speculation that he would be
singled out for harm rising to the level of persecution if returned to
Senegal.

BIA Decision at 2-3.

The majority writes: “Given our consideration of this evidence, we

conclude that it substantially supports that Thiam could safely relocate to Dakar.”

Maj. Op. at 9. Then it discusses the core of its decision: “But we are unable to

conclude that the BIA’s determination that the government met its burden in

establishing that Thiam could reasonably relocate is supported by substantial

evidence.” Id. That is because the BIA did not adequately discuss the 8 C.F.R. §

1208.13(b)(3) factors. But the IJ clearly considered them, saying: “There would

be some difficulty in the respondent relocating to a place where he does not have a

job or any relatives to help him relocate. However, that level of difficulty is

common in any sort of internal relocation and does not indicate that relocation

would be ‘unreasonable.’” IJ Decision at 11. I take the IJ’s words to mean that

3
moving to Dakar might be inconvenient, perhaps even difficult, but that does not

make a move unreasonable. I heartily agree, particularly for one who is young and

has experience living in difficult circumstances. At the time of the hearing, April

2010, Thiam was 32.1 After some troubles with the MFDC in March 1998,

Thiam, then 21, went with his family to Gabon where he remained until 2003.

Surely a man in his early thirties, who had lived in a foreign country for several

years, could make his way in the capital and largest city of his own country.

According to the IJ, the BIA and all members of this panel, the danger of

persecution he had previously suffered had abated. Thiam may prefer to stay in

this country, but he has no right to do so unless it would be dangerous and

unreasonable for him to return to his own country. It is neither. The subtle, but

critical, distinction between being justifiably unable to relocate and preferring not

to relocate was appropriately drawn by the IJ and the BIA. For that reason I

respectfully dissent from the reversal of the BIA’s decision.

1
According to his affidavit Thiam was born in 1977.

4