Kane v. Gonzales

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0374n.06
Filed: June 5, 2007

No. 05-3898

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

AMADOU KANE, )
)
Petitioner, )
)
v. ) ON APPEAL FROM THE BOARD
) OF IMMIGRATION APPEALS
ALBERTO R. GONZALES, Attorney General, )
)
Respondent. )

Before: DAUGHTREY and MOORE, Circuit Judges, and SHADUR, District Judge.*

Shadur, District Judge. Mauritanian citizen Amadou Kane (“Kane”) brings this appeal

pursuant to 8 U.S.C. §1158(a) and (b),1 seeking review of a decision by the Board of Immigration

Appeals (“Board”) that denied him asylum. Kane contends that the Immigration Judge (“IJ,” whose

opinion the Board affirmed summarily) erred (1) in discounting Kane’s credibility and (2) in

concluding that even if the IJ had found his testimony credible, Kane had not established a record

of past persecution or a well-founded fear of future persecution. Kane also seeks withholding of

deportation. Because there is substantial evidence to support the IJ’s conclusion that Kane has not

*
Honorable Milton I. Shadur, United States District Judge for the Northern District of
Illinois, sitting by designation.
1
For convenience, all further citations to Title 8 provisions will take the form “Section --,”
omitting the prefatory “8 U.S.C.”
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Kane v. Gonzales

demonstrated a well-founded fear of persecution, we must deny Kane’s petition for review.2

Background

Kane entered the United States with a Mauritanian passport and a valid B-1 visa in May

2001. As his visa permitted only a short stay in the United States, Kane applied for political asylum.

Born in Mauritania in 1967, Kane is a member of the Fulani ethnic group that has historically been

discriminated against and oppressed by other dominant ethnic groups and Mauritanian authorities.

According to Kane, it is because of his ethnicity, his family’s political dissent and his own political

opinions and activity--or at least the political opinions and activity imputed to him by the

authorities--that he fears persecution if he returns to Mauritania, and he thus seeks asylum in the

United States.

Kane’s account begins with the imprisonment of his brother in 1987 after having been

accused and convicted of plotting a coup against the Mauritanian government. Kane’s brother was

freed in 1991. In 1989 Kane’s father was jailed for one week when he protested publicly against the

forced exile of thousands of Mauritanian citizens to Senegal.

Kane himself first ran into trouble with the police in 1989. In that year, while searching for

2
In his brief Kane also refers to the Convention Against Torture (“Convention”). But before
the IJ Kane explicitly waived any relief to which he might have been entitled under the Convention,
and he has offered no argument as to why we should ignore that explicit waiver--other than to state
ipse dixit that his Convention claims were “erroneously withdrawn by his attorney.” We therefore
need not consider any Convention issues.

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Kane v. Gonzales

his family’s grazing sheep outside his village, he was assaulted and detained by individuals of a rival

ethnic group who beat him and threatened to kill him but ultimately turned him over to Mauritanian

authorities. Kane was then held for two weeks at a police station, where he was regularly beaten,

forced to “work on stones” and had his life threatened. After two weeks Kane was released to the

responsibility of his parents, and he was forced to promise that he would not leave the village again

to look for his family’s missing sheep.

Kane’s next negative encounter with Mauritanian authorities was three years later in 1992,

when police in his village broke up a cultural celebration during the International Week of Trees and

arrested Kane and several of the other organizers and participants. At the police station Kane and

the other arrestees were kicked, beaten with sticks and accused of organizing a political event against

the government rather than a simple educational and cultural celebration. After two days Kane and

the others were released, again to the responsibility of his parents and the village elders.

Five years later in 1997, while Kane was volunteering with the U.S. Peace Corps, he was

again detained by the police, beaten and accused of providing information about the government to

the Peace Corps. Kane did not testify that he was held for any particular length of time, but the

police did search his home and interrogate him at the station.

Two years later in 1999, Kane was fired from his job with an agricultural development

agency after he refused to take part in what he viewed as extensively corrupt practices that exploited

poor farmers. After his termination Kane was required to report to a police station every month so

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that the police could keep track of him and question him regarding the bank with which he worked.

Kane had to continue his monthly reports until he left Mauritania in May 2001. As those monthly

reports went on, the police began to inquire more extensively into Kane’s political activities and

affiliations (Kane had been a member of the “UFD” opposition party for many years), and he began

to fear for his life in January 2000. Kane did not, however, report any physical abuse or any

overnight or longer detention in that period.

From his first arrest in 1989 to his departure from Mauritania in 2001, it appears that Kane

dealt with those adversities quite ably. He continued his schooling, ultimately earning an advanced

degree in economics. Sometime thereafter he obtained employment with the “Mauritanian Cabinet

Adviser for Agriculture and Development Project,” from which he was terminated later in 1999 after

his corruption complaints. Then in May 2000--during the period he was required to report to the

police each month--he secured a job with the “Bureau of Study for Agriculture Development”

(“SERADE”), which appears to have been a private institution that carried out projects for the

Mauritanian government. Kane remained with that job until he was granted a two month vacation

in May 2001 and seized that opportunity to travel to the United States and apply for asylum.

In October 2003 an IJ denied Kane’s application, resting that conclusion on two

independently sufficient grounds: (1) that Kane’s testimony was not credible and (2) that even had

that not been the case, Kane had not met his burden of demonstrating past persecution or a well-

founded fear of persecution based on any of the protected grounds. As to the credibility finding, the

IJ pointed to multiple “material discrepancies” in Kane’s testimony. As for the other issue, the IJ

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concluded that Kane’s record of imprisonment and abuse did not amount to past persecution. And

given Kane’s extended period of residence (staying more than a year after he began to fear for his

life in January 2000), his education and employment in Mauritania combined with his apparent

freedom to obtain a passport and visa to the United States, the IJ concluded that Kane did not have

a well-founded fear of future persecution.

On June 14, 2005 the Board affirmed the IJ’s decision without opinion. Kane then filed a

timely petition for review of the Board’s decision with this Court.

Asylum

We have jurisdiction pursuant to Section 1252(a)(1) to hear petitions for review of final

Board removal orders in asylum cases (Yu v. Ashcroft, 364 F.3d 700, 702 (6th Cir. 2004)). Section

1158(a) and (b) give the Attorney General the discretion to grant asylum to any qualifying “refugee”

(id.). In turn the Attorney General has delegated that authority to the Board and its IJs (id. at 702

n.1). Thus, when presented with an application for asylum, an IJ must decide (Mikhailevitch v. INS,

146 F.3d 384, 389 (6th Cir. 1998)(internal quotation marks omitted)):

(1) whether the applicant qualifies as a “refugee” as defined in §1101(a)(42)(A), and
(2) whether the applicant merits a favorable exercise of discretion by the
[immigration judge].

With respect to that first step, Section 1101(a)(42)(A) defines a “refugee” as an alien who is:

unable or unwilling to return to, and is unable or unwilling to avail himself or herself

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of the protection of, [his or her 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.

Ramaj v. Gonzales, 466 F.3d 520, 529 (6th Cir. 2006)(internal citations and quotation marks omitted)

recently summarized the burden that requirement places on an asylum applicant:

The asylum applicant bears the burden of establishing that he or she qualifies as a
refugee either because he or she has suffered past persecution or because he or she
has a well-founded fear of future persecution. Once the applicant shows that he or
she has suffered from past persecution, the applicant is presumed to have a well-
founded fear of future persecution. This presumption can be rebutted only through
establishing by a preponderance of the evidence that since the persecution occurred,
conditions in the applicant’s country have changed to such an extent that the
applicant no longer has a well-founded fear of being persecuted if he were to return.

Our statutory role in the review of such Board determinations is a limited one. We review

the Board’s factual conclusions at step one only for substantial evidence, and we must consider those

determinations “conclusive unless any reasonable adjudicator would be compelled to conclude to

the contrary” (Section 1252(b)(4)(B); Yu, 364 F.3d at 702-03). Under that standard, as reviewing

courts oft repeat, even if we were to disagree with the IJ’s factual determinations, that alone would

not permit us to set aside the reasoned conclusions below unless the evidence “not only supports a

contrary conclusion, but indeed compels it” (Ouda v. INS, 324 F.3d 445, 451 (6th Cir. 2003)(internal

quotation marks omitted; emphasis in original)).

Finally, when as here the Board summarily affirms an IJ’s decision without opinion, we look

to that judge’s opinion for substantial evidence supporting the judge’s conclusions (Yu, 364 F.3d at

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702). And as a further constraint on our role, we must always be mindful of the generous definition

of “substantial evidence” announced by the Supreme Court in INS v. Elias-Zacarias, 502 U.S. 478,

481 (1993) and basically codified in Section 1252(b)(4)(B)(Yu, id.).

It is against that backdrop that we must determine whether Kane has successfully borne the

burden of “producing evidence that he has suffered past persecution or has a well-founded fear of

future persecution” (id., 364 F.3d at 703) if he were to be returned to Mauritania. Because as stated

earlier the IJ concluded that Kane failed to meet that burden for two independently sufficient reasons,

and because we find that the IJ’s determinations as to the second ground are supported by substantial

evidence, we need not address the issue of Kane’s credibility.

In an effort to meet his burden of showing past persecution, Kane testified to multiple run-ins

with Mauritanian authorities. First in 1989 was his two week imprisonment after being ambushed

by a rival ethnic group, during which time he was threatened, beaten repeatedly and forced into hard

labor. Next were the police beatings and two days in custody in 1992 when the police broke up his

International Week of Trees celebration. Five years later in 1997 he was again detained by the

police, interrogated, beaten and accused of providing information to the Peace Corps. Finally in

1999 (after his termination from his development agency job), his monthly reporting to the police

with the ensuing interrogations into his political activity began, continuing until his departure for the

United States in 2001.

As noted, the IJ concluded that Kane’s history of trouble with Mauritanian authorities did not

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amount to past persecution. With no definition of “persecution” as Section 1101(a)(42)(A) uses that

term (Mikhailevitch, 146 F.3d at 389), the statute provides little guidance in reviewing the IJ’s

conclusion. Ali v. Ashcroft, 366 F.3d 407, 410 (6th Cir. 2004), quoting earlier authority, reconfirms

that “[p]ersecution is an extreme concept that does not include every sort of treatment our society

regards as offensive.” Moreover, Mikhailevitch, 146 F.3d at 390 instructs that only if we decide that

any reasonable factfinder would be compelled to conclude that Kane had “suffered physical

punishment, infliction of harm, or a significant deprivation of liberty on account of”one of the

protected grounds may we reverse the IJ’s determination here that Kane did not suffer past

persecution.

On that score the IJ concluded that Kane’s repeated altercations with the police did not

amount to persecution because the level of physical mistreatment and deprivation of liberty suffered

by Kane did not rise to the level of persecution. We note that Kane did not report that any of the

multiple beatings (occurring several years apart from each other) resulted in injuries requiring

medical treatment or permanent injury (at worst he sustained scars on his knees from being forced

to kneel and work on stones during his 1989 imprisonment). One witness did testify that Kane

appeared to be bruised and his clothes torn after returning from prison in 1992. As for his total time

of detention that appears to comprise two weeks in 1989, two days in 1992, some number of hours

in 1997 and his monthly reports to the police beginning in 1999.

There surely is caselaw that arguably supports the conclusion that a record such as this does

not compel a finding of past persecution by the IJ. To look outside our Circuit for a moment, Al

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Tawm v. Ashcroft, 363 F.3d 740, 743 (8th Cir. 2004) held that “[t]he mere presence of some physical

harm does not require a finding of past persecution.” There the asylum applicant had been detained

only on two occasions four years apart for a few hours each time, leading Al Tawm to hold that such

“[b]rief periods of detention do not necessarily constitute persecution,” and to state further that the

Eighth Circuit had “rejected claims involving equally serious or more serious abuse” (id.). And

Dandan v. Ashcroft, 339 F.3d 567, 574 (7th Cir. 2003) held that a beating resulting in a swollen face

did not compel a finding of persecution, absent some specific evidence of the severity of the beating

such as a record of broken bones. Dandan, id. also found that a detention of three days without food

did not require a finding of past persecution (see also Skalak v. INS, 944 F.2d 364, 365 (7th Cir.

1991)).

We are mindful that it is rarely, if ever, the case that any prior decision stands truly on all

fours with the record we are presented for review. But given the weight of the caselaw that we have

surveyed, Kane’s detentions and interrogations from 1992 through 2000 do not create a record that

would compel us to reverse the IJ’s determination that those instances did not amount to past

persecution -- especially considering Kane’s lack of specificity as to his actual treatment on those

occasions (see Dandan, 339 F.3d at 574).

To be sure, Kane’s testimony about the beatings and harsh labor that he endured for two

weeks while imprisoned in 1989 might well present a different story. Kane’s most detailed

description of his treatment at that time came in his Personal Declaration:

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The authorities humiliated us by making us kneel on stones in the hot sun for hours
each day, we were beaten with weights, put into the jaguar position, tied spread-eagle
and beaten.

While Kane did not provide comparable detail in his hearing testimony, the account in his

Personal Declaration (assumed to be credible for present purposes) certainly sounds like persecution

to us. But that would not change the outcome here, for the IJ nonetheless found that there was

sufficient evidence to support the government’s rebuttal case that due to events in Kane’s history

since that time and changed conditions in Mauritania generally, Kane no longer has a well-founded

fear of persecution should he be returned there (see Koliada v. INS, 259 F.3d 482, 487 (6th Cir.

2001)).

For that purpose the IJ pointed out that at the time of Kane’s imprisonment and physical

abuse in 1989, thousands of his fellow citizens -- including those from his own ethnic group -- were

being forcibly deported to Senegal. In contrast, Kane was released to his parents after two weeks

and was allowed to remain in Mauritania for more than ten years before he departed on his own

initiative. During that time he was able to continue his education leading to multiple higher degrees

and to obtain employment with the Mauritanian Cabinet Adviser for Agriculture and Development

Project and then with SERADE, both closely associated with the Mauritanian government. And

whatever deprivation of liberty might be ascribed to his monthly reporting to the police beginning

in 1999, it did not prevent him from obtaining a passport from the Mauritanian government and a

visa to the United States and from departing the country through government authorities at

Nouakchott airport under the ruse of an extended vacation.

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Koliada, 259 F.3d at 488 is but one example of the decisions finding that evidence such as

an applicant’s extended period of residency in his home country after an instance of past persecution,

or such as an applicant’s freedom to obtain a passport from his home government and depart his

country, reasonably supports a conclusion of changed conditions that rebut any inference of a current

well-founded fear of future persecution based on those acts of past persecution (see also Novoa-

Umania v. INS, 896 F.2d 1, 3-4 (1st Cir. 1990); Rodriguez-Rivera v. INS, 848 F.2d 998, 1006 (9th Cir.

1988)(per curiam)). Moreover, the IJ pointed to the 2002 State Department Report on Mauritania

(“Report”) for evidence that the background environment in Mauritania has significantly changed

since the peak of those troubles around 1989-91, including a reduction in ethnic tension and the

return of exiles. In that regard Kane argues that such State Department reports “should not be taken

as the immutable gospel truth” and that the IJ made selective use of the Report, thereby making any

conclusions drawn from it unreliable. While we have recognized reasonable avenues for the

impeachment of such State Department reports (see Koliada, 259 F.3d at 487-88), we cannot say

that the IJ’s use of the Report here was so unreasonable as to compel a contrary finding-- especially

considering the use of the Report in tandem with his individualized findings as to Kane.4

Kane’s effort to present evidence that would compel us to come to a conclusion that he

maintains a well-founded fear of persecution and reverse the IJ’s determination is to no avail. To

4
Two of our unpublished opinions, Fall v. Gonzales, No. 05-4470, 2007 WL 627380, at *1,
3 (6 Cir. Feb. 20 , 2007) and Diallo v. Gonzales, No. 03-4068, 2005 WL 1901829, at *2-4 (6th Cir.
th

Aug. 8, 2005), found that State Department reports on Mauritania provided substantial evidence to
support IJs’ determinations that conditions had significantly changed for historically oppressed
ethnic groups (including Fulani) in Mauritania.

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establish a present well-founded fear of persecution, Kane must show both that he honestly fears

persecution should he return to Mauritania (a subjective component) and that his fear is reasonable

(an objective component) (Ali, 366 F.3d at 410-11). To meet the objective component Kane must

(Liti v. Gonzales, 411 F.3d 631, 637 (6th Cir. 2005)(internal quotation marks and citation omitted):

demonstrat[e] that persecution is a reasonable possibility should he be returned to
his county of origin. The applicant need not demonstrate that he will probably be
persecuted if returned because one can certainly have a well-founded fear of an event
happening when there is less than a 50% chance of the occurrence taking place.

Kane’s statement conforms to the subjective fear requirement--he says he began to fear for

his life in January 2000 during his monthly reports to the police. To support the reasonableness of

that fear, Kane largely points to his record of arrests and beatings, buttressing that evidence by

arguing that he reasonably fears that he will suffer retaliation upon his return because of his father’s

and brother’s political activity in opposition to the Mauritanian government in the late eighties. But

the reasonableness of that continuing fear is similarly undermined by the fact that Kane lived in

Mauritania for more than ten years after his family’s acts of political opposition, during which time

Kane was able to obtain significant education and employment as well as the freedom to depart from

Mauritanian with the apparent blessing of the government. As such, the IJ was unpersuaded that the

record created a foundation for a reasonable fear of future persecution should Kane return to

Mauritania based on those past events.

Kane of course also points to the undeniable history of oppression and mistreatment of

members of his ethnic group, Fulani, by the Mauritanian government to suggest that his mere

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membership in that group creates a reasonable possibility that he will be imprisoned, tortured or

killed if he returns. But again Kane’s individual history while living in Mauritania amidst that period

of ethnic oppression, coupled with the evidence of changed conditions for Fulani in Mauritania,

reasonably rebut any inference that Kane himself would be a target should he return.

In the end, our standard of review controls the outcome. On the administrative record before

us, Kane has not met his burden of demonstrating that any reasonable factfinder would be compelled

to conclude that Kane held a well-founded fear of future persecution should he return to Mauritania.

Hence we may not set aside the IJ’s decision (see Mikhailevitch, 146 F.3d at 390).

Conclusion

Because we find that substantial evidence supports the IJ’s decision that Kane failed to

demonstrate a continuing well-founded fear of future persecution for asylum purposes, Kane

similarly cannot meet the more stringent standard--demonstrating a clear probability of

persecution--to qualify for withholding of deportation (see Ali, 366 F.3d at 411). Thus we DENY

Kane’s petition for review.

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