Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
5-19-2004
Eshun v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-2463
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"Eshun v. Atty Gen USA" (2004). 2004 Decisions. Paper 691.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-2463
GEORGE ANTHONY ESHUN,
Petitioner
v.
JOHN ASHCROFT, IN HIS
CAPACITY AS ATTORNEY GENERAL
OF THE U.S.,
Respondent
On Petition for Review of an Order of the
Immigration and Naturalization Service
Board of Immigration Appeals
(BIA No. A 76 576 863)
Submitted Under Third Circuit LAR 34.1(a)
April 15, 2004
Before: RENDELL, STAPLETON, LAY*, Circuit Judges
(Filed May 19, 2004)
_________________________
* Honorable Donald P. Lay, Senior Circuit Judge of the United States Court of
Appeals for the Eighth Circuit, sitting by designation.
OPINION OF THE COURT
RENDELL, Circuit Judge.
This matter comes before us pursuant to a Petition for Review of an Order of the
Immigration and Naturalization Service Board of Immigration Appeals (“BIA”),
affirming the ruling of the Immigration Judge that George Anthony Eshun had not
satisfied the burden of proof required to establish his claim for withholding of removal
and for protection under the Convention Against Terrorism (“CAT”).
Eshun is a native and citizen of Ghana who arrived in the United States in June
1996. Eshun urges that, as a “prosperous individual,” he was targeted by the regime of
then-president J.J. Rollins, and the Ghana Militia, who committed human rights violations
against, among others, wealthy businessmen such as Eshun’s stepfather, J.B. Anim.
Anim was engaged in the diamond mining industry, and introduced his stepson to this
elite business world. With Anim’s help, Eshun became a member of the “exclusive
Precious Diamond Winners’ Association.”
Eshun urges that this success and wealth made him a target of the Ghana Militia;
the area assigned to him was raided, and he was taken into custody and beaten. Eshun
testified before the Immigration Judge that he was captured by the Ghana M ilitia in April
of 1996 and taken to a military barracks, where he was held in custody for two days. He
was stripped, questioned, made to sleep in a room that was three or four inches deep in
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water so that he could not sleep lying down, and tortured. Eshun arranged to leave Ghana
and come to the United States through the aid of a friend.
The Immigration Judge initially was critical of Eshun’s entry into the United States
by means of a smuggler, who obtained false documents. Eshun urged that he did not
have knowledge of this and was not responsible for it, but the Immigration Judge believed
that this at least raised “questions” regarding Eshun’s veracity. The Immigration Judge
also questioned the bona fides of Eshun’s marriage, based upon the fact that he had been
found in possession of a document containing proposed answers to questions for an
interview, suggesting that he lacked sufficient personal knowledge on his own regarding
the woman he claimed was his wife.
The Immigration Judge made clear, however, that the most important aspect of the
matter before him involved Eshun’s contention that he was taken into custody and
tortured by the Ghana Militia based upon a political motive. The Immigration Judge
viewed the evidence offered by Eshun, not as revealing a political motive, but, rather, as
documenting a police attempt to investigate violations of law by diamond miners.
Moreover, the Immigration Judge found unconvincing Eshun’s claim that he “would
more likely than not” be subjected to torture by government agents if he were returned to
Ghana, since Eshun could avoid the possibility of torture by relocating to an area other
than the diamond mining region.
The BIA affirmed the Immigration Judge’s ruling. The BIA noted, also, that
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Eshun had failed to show that he is a member of a particular social group as contemplated
by the Immigration and Naturalization Act (“INA”), because members in the Precious
Diamond Winners’ Association do not share “an immutable or fundamental
characteristic.” See Matter of Acosta, 19 I&N Dec. 211 (BIA 1985), modified on other
grounds, INS v. Cardoza-Fonseca, 480 U.S. 421 (1987). (A-002)
On appeal to our court, Eshun urges that he did meet his burden of proof, and,
also, that the acts of persecution that were committed against him were on account of his
membership in a social group. Eshun argues that he was targeted, along with other
wealthy businessmen, because the Ghana Militia wanted to “inveigle the rich to donate
their assets, property and money to fund the Rollins government.” (Appellant’s Brief,
p. 6)
Eshun states that the Ghana Militia’s purpose was not so much to “get their
support for the administration of Rollins as to waylay their assets and property, and
sequester their businesses.” (Appellant’s Brief, p. 7) Thus, he argues, their persecution
was “due to their social status in society,” and they should be classified as belonging to a
particular “social group,” one of the give protected grounds for relief.
Eshun also argues that the Immigration Judge did not base his determination on
lack of credibility, and he urges that his testimony was sufficient.
We have jurisdiction pursuant to 8 U.S.C. § 1252(a). We review the ruling of the
Immigration Judge and the BIA for substantial evidence. Gao v. Ashcroft, 299 F.3d 266,
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272 (3d Cir. 2002).
We conclude that substantial evidence supports the Agency’s determination that
the “Precious Diamond Winners’ Association” in Ghana does not constitute a “particular
social group” within the contemplation of the INA. The fact that Eshun had a certain
livelihood and was wealthy does not make him a member of a social group as
contemplated by the INA, because that classification carries with it the sharing of “an
immutable or fundamental characteristic.” Rather, Eshun shared an occupation, and he
could have changed occupations so that he no longer was in the diamond business, or was
no longer a member of the Association. Withholding of removal is only available under
section 241(b)(3) of the INA if the alien’s life or freedom would be threatened on account
of “. . . membership in a particular social group . . .” Eshun has not sustained his burden
of proving that he is so qualified for withholding of removal.
Further, we cannot find fault with the Immigration Judge’s analysis of the probable
motive for government interference with the diamond merchants, as it was supported by
reports, whereas Eshun’s argument that the militia were seeking financial support for the
Rawlings government is unsupported.
Lastly, although Eshun contends that his credibility was not undermined, it is
apparent from a review of the Immigration Judge’s determination that, as noted above, he
was skeptical of Eshun’s claims as to precisely why the Ghana Militia had targeted him
and his family. His credibility was further damaged in the Immigration Judge’s eyes by
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his manner of entry and his need to write down information about his wife.
Accordingly, the agency determination was supported by substantial evidence, and
the Petition for Review will be DENIED.
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