Ka v. Gonzales

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0379n.06
Filed: June 7, 2007

No. 06-3500

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

PATHE KA, )
)
Petitioner, )
) ON PETITION FOR REVIEW OF AN
v. ) O R D E R O F THE BOAR D O F
) IMMIGRATION APPEALS
ALBERTO GONZALES, Attorney General, )
)
Respondent. )

Before: ROGERS and COOK, Circuit Judges; and O’MALLEY, District Judge.*

COOK, Circuit Judge. Pathe Ka, a native and citizen of Senegal, seeks reversal of the Board

of Immigration Appeals’ (BIA) denial of his applications for asylum, withholding of removal, and

protection under the Convention Against Torture (CAT). Relying on the Immigration Judge’s (IJ)

findings, the BIA held that Ka failed to timely file his asylum application and denied it. The BIA,

adopting and affirming the IJ’s decision, also found that Ka did not meet his burden of proof for

withholding of removal or for protection under the CAT. For the following reasons, we deny Ka’s

petition for review.

I

*
The Honorable Kathleen McDonald O’Malley, United States District Judge for the Northern
District of Ohio, sitting by designation.
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Ka v. Gonzales

Ka is a citizen and native of Senegal who came to the United States as a non-immigrant

visitor in May 2000. According to Ka, he departed Senegal after he was robbed on a bus in Dakar.

Prior to his departure, he was moderately active in the Jef-Jel political party in Senegal. Although

it was unclear during his hearing before the IJ, it appears that Ka joined the party in 1988 and was

most active in the party between 1997 and 1999, when he was responsible for notifying party

members about meetings. Despite arriving in the United States in 2000, Ka did not apply for asylum

(or any other form of immigration relief) until after he was arrested by immigration officers in

October 2004.

After his arrest, Ka filed for asylum, withholding of removal, and protection under the CAT,

based on his political affiliation. The IJ assessed each of his applications and denied them. The BIA

affirmed. Ka now appeals.

II

When, as here, the BIA adopts the IJ’s reasoning and supplements the IJ’s opinion, that

opinion, as supplemented by the BIA, becomes the basis for review. See Singh v. Ashcroft, 398 F.3d

396, 400-01 (6th Cir. 2005). This court reviews any legal conclusions de novo and factual findings

and credibility determinations for substantial evidence. Tapucu v. Gonzales, 399 F.3d 736, 738 (6th

Cir. 2005); Sylla v. INS, 388 F.3d 924, 925 (6th Cir. 2004). Under the substantial evidence standard,

we must uphold the BIA’s decision if it is supported by “‘reasonable, substantial, and probative

evidence on the record considered as a whole.’” Koliada v. INS, 259 F.3d 482, 486 (6th Cir. 2001)

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(quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)). To reverse the BIA’s decision, we must

find that the evidence not only supports a contrary conclusion, but compels it. Klawitter v. INS, 970

F.2d 149, 151-52 (6th Cir. 1992) (citing Elias-Zacarias, 502 U.S. at 481).

A. Asylum

According to the BIA, Ka failed to meet the filing deadline and has not provided any

circumstances that would excuse his late failing. We lack authority to review this conclusion

because 8 U.S.C. § 1158(a)(3) bars judicial review of “any determination of the Attorney General”

regarding the timeliness of an asylum application. Castellano-Chacon v. INS, 341 F.3d 533, 544

(6th Cir. 2003). We note that the REAL ID Act, 8 U.S.C. § 1252(a)(2)(D), modified § 1158(a)(3)’s

judicial-review limitation by adding the following provision to the statute:

Nothing in subparagraph (B) or (C), or in any other provision of this chapter (other
than this section) which limits or eliminates judicial review, shall be construed as
precluding review of constitutional claims or questions of law raised upon a petition
for review filed with an appropriate court of appeals in accordance with this section.

In Almuhtaseb v. Gonzales, this court reconciled the REAL ID Act with Castellano-Chacon,

explaining that the REAL ID Act “modif[ied] the holding of Castellano-Chacon to bar [the court’s]

review of asylum applications denied for untimeliness only when the appeal seeks review of

discretionary or factual questions, but not when the appeal seeks review of constitutional claims or

matters of statutory construction.” 453 F.3d 743, 748 (6th Cir. 2006). The questions raised by Ka’s

appeal are clearly in the former category of unreviewable determinations—factual challenges.

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Nowhere in any of Ka’s materials does he raise any constitutional or otherwise legal claims. These

circumstances lead us to conclude that we do not have jurisdiction to review the BIA’s denial of Ka’s

asylum application.

B. Withholding of Removal

Ka also challenges the BIA’s adoption and affirmance of the IJ’s decision that he “did not

meet his burden of proof for withholding of removal.” Applicants qualify for withholding of

removal to a particular country “if the Attorney General decides that the alien’s life or freedom

would be threatened in that country because of the alien’s race, religion, nationality, membership in

a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A).

Given Ka’s inability to persuade the IJ that his evidence met even the lesser showing required

for asylum of a well-founded fear of future persecution, the IJ determined that “[h]e clearly ha[d] not

satisfied the higher standard of proof for withholding of removal.” Withholding of removal requires

an applicant to demonstrate by a “clear probability”—meaning that it is “more likely than not,” 8

C.F.R. § 1208.16(b)—that he will suffer future persecution because of his inclusion in one of the

§ 1231(b)(3)(A) categories. INS v. Stevic, 467 U.S. 407, 412 (1984). To assess the IJ’s withholding-

of-removal conclusion, then, requires a review of his asylum conclusions.

The IJ’s asylum decision rested on three distinct grounds, and the second and third grounds

also serve as bases for review of the IJ’s withholding-of-removal decision. First, as discussed above,

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the IJ concluded that Ka’s petition was untimely and that he failed to satisfy any exception to the

one-year filing requirement. Second, relying on the following discrepancies, the IJ found Ka not

credible:

(1) “[H]is asylum application stated that he had joined the [Jef-Jel] party in 1999, his
testimony in court was that he joined in 1988.”
(2) “He testified that he has obtained only 1 JEF-JEL card and it would have been in
1988. When confronted with the fact that his JEF-JEL card says 1998, he stated that
this was a replacement card.”
(3) “He was extremely vague in his testimony regarding his political activities.
Whether he held some informal position or not. He was very vague as to how many
meetings he went to or how often the meetings were held, which is odd for a person
who was calling other people to go to the meetings.”
(4) “The significant portion of the time that he was involved in the party, he spent
much of his time in Ivory Coast. So he obviously wasn’t running meetings in
Dakar.”
(5) “In his asylum application, he describes his party as a democracy party. He never
once uses the title of JEF-JEL. And the court notes that the asylum application was
prepared by his lawyer, it was not prepared by some notary or immigration
consultant, who would not have made any effort to get the story right.”

We accord these findings considerable deference. See Klawitter, 970 F.2d at 151-52

(“Substantial evidence is thus a deferential standard which plainly does not entitle a reviewing court

to reverse . . . simply because it is convinced that it would have decided the case differently.”

(internal quotations omitted)). Ka’s brief offers plausible explanations for some of the discrepancies

relied on by the IJ in making his credibility determination, but these explanations essentially offer

a counter-interpretation of Ka’s testimony; they do not compel the conclusion that the IJ was

incorrect. Elias-Zacarias, 502 U.S. at 481.

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The IJ also addressed the merits of Ka’s future-persecution claim, and the IJ’s conclusions

on this ground stand unrebutted. As a third basis for denying Ka’s asylum petition, the IJ explained

that even if Ka were entirely credible, he had not “remotely established a fear of persecution based

on political activities.” Ka claims that his membership in the Jef-Jel party will expose him to

persecution if he is returned to Senegal. He bases this contention on the U.S. State Department’s

2003 Country Reports on Human Rights Practices for Senegal. The report details various human

rights abuses that occurred in Senegal in 2003. Ka relies on the following statements in the report:

“There were instances of unknown assailants attacking government offices and opposition

politicians.” U.S. Dep’t of State, 2003 Country Reports on Human Rights Practices - Senegal,

(2004), available at http://www.state.gov/g/drl/rls/hrrpt/2003/27748.htm. “On October 5, unknown

assailants brutally attacked Talla Sylla, leader of the opposition party Jef-Jel and vocal critic of

President Wade. Sylla was evacuated to France to obtain medical treatment for his injuries. No

arrests were made in the case, [and the police were investigating the identities of Sylla’s attackers

at year’s end],” id. (Ka omits the bracketed material). “During the year, opposition members and

journalists increasingly reported that they were threatened and harassed after criticizing the

President.” Id.

From these statements, Ka draws the conclusions that “President Wade does not respect

democracy or human rights and that he used violent attacks on opposition party members to ensure

that he would retain his power.” Moreover, apparently relying solely on the same materials, in the

section of his brief discussing withholding of removal specifically, Ka argued that he has

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clearly established that his life and freedom would be threatened in Senegal on
account of his political opinions. He was an active member of the Jef-Jel political
party. The Government of Senegal has actively sought to repress Jef-Jel and other
opposition parties through violent attacks. Mr. Ka’s life and freedom would clearly
be in danger if he is returned to Senegal.

The IJ’s responses to these contentions, however, are adequate to meet the substantial evidence

standard. The IJ explained that “President Wade of Senegal was elected in a free and fair election”

and is “not a dictator.” As the IJ noted, though there “are some problems with exuberant political

activity in the country,” and although “some people are occasionally beaten up by thugs . . . it does

not appear to be a regular thing” and “[i]t’s happened only to a few party leaders and these people

are not being arrested.” The IJ also observed that “[t]he parties function, and there are many parties

in the country, of which JEF-JEL was one.” Significantly, the IJ also explained that

the police are investigating the attack on Mr. Sylla and they are even questioning
aides to the president. Even if senior party members are in some jeopardy, there is
nothing in the background information that indicates that mere members, such as the
respondent, would be in any risk whatsoever. . . . The respondent’s fear that he could
be killed or put in prison are based on nothing but his own opinion and are not
credible at all.

Ka offers nothing to rebut these conclusions. As the IJ correctly observed, the only actions that

could be deemed persecution happened to opposition-party politicians; mere members are said to be

subject only to harassment or threats. Threats and harassment do not suffice; proving “persecution

within the meaning of 8 U.S.C. § 1101(a)(42)(A) requires more than a few isolated incidents of

verbal harassment or intimidation, unaccompanied by any physical punishment, infliction of harm,

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or significant deprivation of liberty.” Mikhailevitch v. INS, 146 F.3d 384, 390 (6th Cir. 1998).

In sum, the IJ concluded that Ka was not credible and, even if assumed credible, could prove

neither a well-founded fear nor a clear probability of future persecution. Because Ka has failed to

show that substantial evidence compels this court to reverse the IJ’s decision, we agree with the

BIA’s conclusion that Ka is not eligible for withholding of removal and thus deny his petition for

review.

C. Convention Against Torture

Ka also challenges the BIA’s denial of his application for protection under the CAT. The

BIA adopted and affirmed the IJ’s decision that Ka did not meet his burden of proving “that it is

more likely than not that he or she would be tortured if removed to the proposed country of

removal.” 8 C.F.R. § 208.16(c)(2).

The IJ denied Ka’s application for relief under the CAT as follows:

As to convention against torture relief, respondent has not shown any evidence that
torture is in any way prevalent in Senegal. And certainly no reason to believe that it
is more likely than not that he would be tortured if he were returned to Senegal.
There is no reason for believing that he would be tortured by anybody. Certainly
nobody connected with government or which would act with government
acquiescence. There is violence in the country but it’s not limited to opposition
politics. There is also violence directed against government officials. So it’s not the
case that the President Wade has the ability or the inclination to persecute other
people.

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Ka responds by again noting a few instances of alleged brutality in Senegal, including the

attack suffered by Talla Sylla, to which Ka adds, “It appeared to observers that the President of

Senegal was behind the attack.” He cites the beating of journalists and recounts an incident in which

a pretrial detainee in Dakar was handcuffed and tortured by prison guards, which apparently resulted

in the amputation of his arms. Ka attempts to connect these events to his own likelihood of being

tortured by saying that “[t]hese examples show that the Senegalese government is willing and able

to use torture against its political opponents” and that because “Mr. Ka is an activist in an opposition

political party, he is likely to be a target for torture.” Solid reasons support the IJ’s rejection of this

tenuous connection. The isolated attack against Sylla does not lead inescapably to the conclusion that

all Jef-Jel members are likely to be tortured, and neither does the beating of journalists. His

reference to the situation involving the abused pretrial detainee lacks any detail that would suggest,

let alone compel, the conclusions he draws. At best, Ka’s fear of torture seems to stem from “the

existence of a generalized or random possibility of persecution in his native country,” which does

not satisfy his burden. Castellano-Chacon, 341 F.3d at 550. Because Ka offers nothing that compels

the court to conclude that the IJ’s conclusions are not supported by substantial evidence, we agree

with the BIA’s denial of protection under the CAT and deny the petition for review.

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