NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0513n.06
Filed: July 19, 2007
Case No. 06-3083
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ALPHA DIALLO, et al., )
)
Petitioners, )
) ON APPEAL FROM THE
v. ) BOARD OF IMMIGRATION
) APPEALS
ALBERTO R. GONZALES, Attorney )
General, )
)
Respondent. )
)
_______________________________________ )
BEFORE: KEITH, BATCHELDER, and MOORE, Circuit Judges.
ALICE M. BATCHELDER, Circuit Judge. Petitioners Alpha Diallo and Aissatou Diallo,
husband and wife, appeal the decision of the Board of Immigration Appeals (“BIA”), which
summarily affirmed the Immigration Judge’s (“IJ”) denial of Mr. Diallo’s asylum application and
request for withholding of removal. On appeal, Mr. and Mrs. Diallo argue that we should reverse
or, alternatively, remand the BIA’s decision because the IJ applied the incorrect legal standard for
analyzing Mr. Diallo’s alleged fear of future persecution. Finding that the IJ incorrectly articulated
the standard for a future persecution claim, we VACATE the decision of the BIA and REMAND
this matter for further proceedings consistent with this opinion.
I.
Mr. and Mrs. Diallo are citizens of Guinea. Mr. Diallo worked as a marine engineer for
Guinomar — a company owned 51% by the Guinean government and 49% by a Norwegian
company. His job required him to alternate between sea voyages lasting two to six months and
“vacation” periods lasting four months. His numerous voyages took him all over the world, stopping
at ports throughout the United States, South America, Asia, and Europe. Mr. Diallo was also an
active participant in the opposition political party known as the Party of Renewal and Progress
(“PRP”), which later changed its name to the Union for Progress and Renewal (“UPR”). Although
Mr. Diallo did not hold an office in the UPR, he was regularly involved in party meetings,
community education, and campaign activities.
During the 1995 election, Mr. Diallo’s father was a candidate for political office in Koundara,
Guinea. Mr. Diallo received mission orders from the UPR to campaign on his father’s behalf. Just
prior to the election, Mr. Diallo learned that UPR party members were not receiving their voting
cards, which effectively precluded them from voting in the election, and he sought assistance from
the government representative in Koundara. An argument erupted during Mr. Diallo’s meeting with
the government official. The government official called the police, told them that Mr. Diallo
threatened to kill him, and requested that Mr. Diallo be arrested. Mr. Diallo was taken to prison
where he was detained and questioned for seventy-two hours. During this time, Mr. Diallo was
ordered to disrobe, thrown into a dark cell with other inmates, interrogated about his political
involvement, beaten on his bare buttocks with a belt, and left to stand naked or partially naked for
an hour in an area visible to others.
During the 1998 election, Mr. Diallo again obtained mission orders to campaign for the party.
This time he engaged in campaigning activities without any adverse treatment by the government.
In February 2000, after Mr. Diallo had returned home from a long voyage at sea and resumed his
political activities, an unidentified group of approximately ten armed men invaded his home in
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Conakry, Guinea. The men asked to speak with Mr. Diallo and demanded money and other
valuables. While Mr. Diallo hid under a car in the garage, Mrs. Diallo took the men to the closet
where the family kept its money. As the men were loading money into their bags, Mr. Diallo’s
neighbors came to the rescue, killing two of the men and scaring away the rest.
Overwhelmed with fear, Mrs. Diallo immediately took her children to stay with her mother
in Gambia, but because her stepfather did not want Mrs. Diallo living with him, Mrs. Diallo soon
left her mother’s residence and obtained a temporary visa to travel to the United States in January
2001. Prior to leaving for the United States, Mrs. Diallo sent her children to live with Mr. Diallo’s
mother in Koundara, where they remain to this day. In July 2002, Mr. Diallo visited his wife in New
York and tried in vain to convince her to return to Guinea. After this unsuccessful effort, Mr. Diallo
returned to Guinea alone. On May 10, 2003, Mr. Diallo again heard a group of men trying to invade
his home. Before the men could get inside, Mr. Diallo’s neighbors began shouting, honking their
car horns, and firing warning shots — all of which caused the intruders to flee. Mr. Diallo remained
in Guinea for two months following this incident before obtaining a temporary visa to travel to the
United States in July 2003.
On March 25, 2004, the government issued a notice to appear against Mr. and Mrs. Diallo
because they had exceeded the terms of their respective temporary visas and were removable under
the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq. Mr. and Mrs. Diallo conceded
removability, but Mr. Diallo filed an application for asylum and withholding of removal on the basis
of political persecution, in which he sought protection for Mrs. Diallo as his wife. See 8 U.S.C. §
1158(b)(3)(A) (“A spouse . . . of an alien who is granted asylum under this subsection may . . . be
granted the same status as the alien if accompanying, or following to join, such alien”). After a
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hearing on this matter, the IJ denied Mr. Diallo’s application, concluding that, even though Mr.
Diallo was credible, he did not establish past persecution or demonstrate a well-founded fear of
future persecution. The IJ reviewed three incidents — the 1995 detention, the 2000 home invasion,
and the 2003 attempted home invasion — as bases for Mr. Diallo’s asylum request. The IJ first
considered whether the 1995 detention amounted to past persecution and stated, in one sentence
without any supporting analysis, that “this brief incarceration [did] not constitute past persecution.”
The IJ next assessed whether the 1995 detention gave rise to a well-founded fear of future
persecution, concluding that such fear, even if based on his political opinion, was not “subjectively
reasonable.” The IJ then concluded that Mr. Diallo failed to establish that the 2000 or 2003 home
invasions were related to his political activities, concluding it was just as likely that Mr. Diallo, as
a prosperous citizen, was the victim of a violent burglary. The BIA affirmed the IJ’s decision
without opinion, and Mr. Diallo filed a petition for review to this court.
II.
“When the [BIA] adopts the decision of the IJ in lieu of issuing its own opinion, we review
the IJ’s decision as the final agency decision.” Denko v. INS, 351 F.3d 717, 726 (6th Cir. 2003); see
also 8 C.F.R. § 1003.1(e)(4)(ii). An alien qualifies as a refugee for purposes of asylum if he is
unable or unwilling to return to his homeland “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)(A); see also INS v. Elias-Zacarias, 502 U.S. 478, 481
(1992). “In order to demonstrate that he qualifies as a refugee, an alien must establish either that he
has suffered actual past persecution or that he has a well-founded fear of future persecution.” Pilica
v. Ashcroft, 388 F.3d 941, 950 (6th Cir. 2004) (citing 8 C.F.R. § 208.13(b)).
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On appeal, Mr. Diallo argues that the IJ applied an improper legal standard when evaluating
whether his 1995 detention demonstrated a well-founded fear of future persecution. We will vacate
and remand the IJ’s decision if he applied an incorrect legal standard. See Grijalva v. Gonzales, 212
F. App’x 541, 551 (6th Cir. 2007) (unpublished case).
In finding no well-founded fear of future prosecution, the IJ stated:
To the extent that [Mr. Diallo] bases a claim for asylum on [his 1995 detention], he
must demonstrate that any fear that he has is both objectively and subjectively
reasonable. It is not subjectively reasonable for [an asylum applicant] to fear this
incident, as the basis of a claim, when he left Guinea shortly thereafter as a seaman
and returned to Guinea numerous times, between 1995 and 2003. This indicates that
[Mr. Diallo’s] fear is not subjectively reasonable, even if it is based on his political
opinion.
“A well-founded fear of persecution . . . has both a subjective and an objective component[.]”
Pilica, 388 F.3d at 950. The subjective component of a well-founded fear of future persecution
requires that the applicant “must actually fear that he will be persecuted upon return to his
country[.]” Perkovic v. INS, 33 F.3d 615, 620-21 (6th Cir. 1994). The objective component, on the
other hand, requires that the applicant must “establish[] an ‘objective situation’ under which his fear
can be deemed reasonable.” Pilica, 388 F.3d at 950. Thus, the subjective component asks only
whether the applicant’s fear is genuine (i.e., whether he actually fears future persecution), and the
objective component evaluates whether the applicant’s fear is reasonable. Lumaj v. Gonzales, 462
F.3d 574, 578 (6th Cir. 2006) (“The fear of persecution must be both subjectively genuine and
objectively reasonable.”).
By speaking in terms of “subjective reasonableness,” the IJ improperly conflated these two
separate inquiries. We suspect that the IJ may have simply misspoken during the dictation of his
decision, and that he was actually analyzing whether Mr. Diallo’s fear was “objectively reasonable,”
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which is the proper inquiry under the objective prong. See id. The IJ had already concluded that Mr.
Diallo was credible, and it would be illogical, after finding Mr. Diallo credible, for the IJ to question
the genuineness of his subjective fear. See Akhtar v. Gonzales, 406 F.3d 399, 404 (6th Cir. 2005)
(“The subjective fear component turns largely upon the applicant’s own testimony and credibility.”).
But because we cannot be sure whether the IJ applied an improper standard or whether he merely
incorrectly stated the proper standard, we think the appropriate course is to remand the case and give
the IJ an opportunity to articulate and apply the proper legal standard to the claim of future
persecution.
We have some concern as well about the IJ’s failure to provide any analysis of whether Mr.
Diallo’s 1995 detention amounted to past persecution. “[P]ersecution is an extreme concept that
does not include every sort of treatment our society regards as offensive.” Ali v. Ashcroft, 366 F.3d
407, 410 (6th Cir. 2004) (alteration in original); see also Mikhailevitch v. INS, 146 F.3d 384, 389-90
(6th Cir. 1998). Mr. Diallo testified that he was arrested after a political squabble, detained for three
days, ordered to disrobe, interrogated about his political associations, beaten with a belt, and left to
stand naked or partially naked for an hour in an area visible to others. In issuing his decision, the
IJ summarily stated in one conclusory sentence that “this brief incarceration [did] not constitute past
persecution.” Whether Mr. Diallo’s detention amounted to past persecution is a close legal question
— one that requires at least some analysis from the IJ. While we have affirmed other BIA decisions
finding no past persecution where an applicant experienced harsher treatment than that endured by
Mr. Diallo, see, e.g., Mullai v. Ashcroft, 385 F.3d 635, 637-38 (6th Cir. 2004) (affirming a finding
of no past persecution where the petitioner was detained for at least a week and was beaten by the
police on four separate occasions); Mburu v. Gonzales, 214 F. App’x 505, 508 (6th Cir. 2007)
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(unpublished case) (affirming a finding of no past persecution where the petitioner was detained for
four days, interrogated, and physically assaulted); Gjokic v. Ashcroft, 104 F. App’x 501, 505 (6th Cir.
2004) (unpublished case) (affirming a finding of no past persecution where the petitioner was
detained and beaten), we have generally had the benefit of the IJ’s analysis on the issue.
III.
For the foregoing reasons, we VACATE the decision of the BIA and REMAND for further
proceedings consistent with this opinion.
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