FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALY AHMED FAKHRY,
Petitioner, No. 04-73671
v.
Agency No.
A78-737-790
MICHAEL B. MUKASEY,* Attorney
General,
Respondent.
ALY AHMED FAKHRY,
Petitioner, No. 04-76147
v.
Agency No.
A78-737-790
MICHAEL B. MUKASEY, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
November 6, 2007—Portland, Oregon
Filed May 5, 2008
Before: Edward Leavy, Raymond C. Fisher, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Berzon
*Michael B. Mukasey is substituted for his predecessor, Alberto R.
Gonzales, as Attorney General of the United States, pursuant to Fed. R.
App. P. 43(c)(2).
4897
FAKHRY v. MUKASEY 4899
COUNSEL
Philip James Smith, Hecht & Smith, LLP, Portland, Oregon,
for the petitioner.
Karin J. Immergut, United States Attorney for the District of
Oregon, and William E. Fitzgerald and Kelly A. Zusman,
4900 FAKHRY v. MUKASEY
Assistant United States Attorneys, Portland, Oregon, for the
respondent.
OPINION
BERZON, Circuit Judge:
Aly Ahmed Fakhry, a native and citizen of Senegal, came
to the United States on a temporary visa in 1999. Over three
years later he applied for asylum based on his membership in
a Senegalese political organization. The Immigration Judge
(“IJ”) denied his application, finding that he failed to qualify
for the “changed circumstances” exception to the one-year bar
on filing asylum claims, or, in the alternative, that he could
reasonably relocate to another part of the country. We con-
clude that there was error in each of the grounds for denying
Fakhry’s application for asylum and remand for further pro-
ceedings. We affirm the denial of Fakhry’s application for
withholding of removal and his subsequent motion to reopen.
BACKGROUND
I.
Fakhry is from a region in the south of Senegal called
Casamance. For decades, Casamance has been torn by fight-
ing between the government and an armed opposition group
seeking independence for Casamance, the Mouvement des
forces démocratiques de Casamance (“MFDC”). Human
rights abuses committed by the Senegalese government in this
conflict are well-documented. In 1998, for example, it was
reported to be “regular practice for the Senegalese army to
torture and execute people in Casamance.” See Amnesty
International, Senegal: Climate of Terror in Casamance, at 1
(1998) (internal quotations omitted).1 Conditions improved
1
All cited reports are in the certified administrative record.
FAKHRY v. MUKASEY 4901
somewhat after a change in government in 2000, but problems
in Casamance continue, including “extrajudicial killings” by
government forces. See United States Department of State,
Senegal, Country Reports on Human Rights Practices — 2002
(2003); see also Ndom v. Ashcroft, 384 F.3d 743, 747-48 (9th
Cir. 2004) (describing history of the MFDC and human rights
abuses committed by the Senegalese government).
Fakhry formally joined the MFDC in 1992 and has a mem-
bership card indicating this affiliation.2 In 1997, Fakhry’s
brother was severely beaten and detained by the army for a
week because they suspected him of being a member of the
MFDC. After this incident, Fakhry moved his family to Sene-
gal’s capital, Dakar, which is located outside of Casamance.
In Dakar, Fakhry kept his membership in the MFDC a secret.
In 1999, Fakhry, his wife, and his newborn child returned
to Casamance to visit his mother. During the visit, govern-
ment soldiers entered and began to search his mother’s house.
Fakhry asked them to be less disruptive, so as to not disturb
his sick mother and newborn child. In response, the soldiers
severely beat him, leaving him unconscious. After this inci-
dent, Fakhry made arrangements to leave the country.
In May 1999, Fakhry came to the United States on a six-
month visitor’s visa, intending to apply for asylum. An uncle
living in the United States, after consulting with a lawyer,
advised Fakhry to wait for a supposedly imminent law that
would permit him to remain in the United States. As a result,
Fakhry did not apply for asylum.
In the following years, three pertinent events took place.
First, in early 2001, Fakhry’s brother told him that the Sene-
galese army had raided MFDC headquarters and captured the
2
Although the MFDC has also committed human rights abuses, there is
no evidence in the record that Fakhry participated in the persecution of
others.
4902 FAKHRY v. MUKASEY
group’s records and membership files. Second, in March
2001, the Senegalese government and the MFDC signed a
peace agreement. Third, in the spring of 2002, the peace
agreement collapsed and full-fledged fighting resumed.
While Fakhry has been in the United States, his wife and
children have lived in Dakar without incident. His father and
the brother beaten in 1997 as a suspected MFDC member also
live in Dakar and have not suffered persecution there.
II.
In October 2002, the Immigration and Naturalization Ser-
vice — now the Department of Homeland Security (“DHS”)3
— commenced removal proceedings against Fakhry for over-
staying his visa. Fakhry conceded removability but applied
for asylum and withholding of removal.4 He was the sole wit-
ness at the hearing, where he testified to the background facts
outlined above.5
Fakhry also testified that he was afraid to return to Senegal.
He explained two reasons for his fear that the government
would target him upon his return. First, his identification
papers show he is from Casamance, and he has lived abroad
for some years. The MFDC regularly raises funds from mem-
bers in other countries, so Fakhry fears the government will
suspect that he has been fundraising abroad for the MFDC.
Second, once the government suspects his MFDC affiliation,
it could confirm that suspicion by checking the membership
3
The Immigration and Naturalization Service was reorganized and
reconstituted as DHS in 2003. See Homeland Security Act of 2002, Pub.
L. No. 107-296, § 471, 116 Stat. 2135, 2205. For convenience, we refer
to the agency as DHS.
4
Fakhry also applied for relief under the Convention Against Torture.
He does not now appeal the IJ’s denial of this relief.
5
Because the IJ found Fakhry to be credible, we accept his testimony
as true. Vukmirovic v. Ashcroft, 362 F.3d 1247, 1251 (9th Cir. 2004).
FAKHRY v. MUKASEY 4903
files it took in the raid on MFDC headquarters. The govern-
ment thus has reason to suspect and the ability to confirm
Fakhry’s membership in the MFDC.
DHS argued that Fakhry was not eligible for asylum
because he failed to apply within one year of arriving in the
United States and did not establish either of the two excep-
tions to the one-year filing bar: “changed circumstances
which materially affect the applicant’s eligibility for asylum
or extraordinary circumstances relating to the delay in filing.”
8 U.S.C. § 1158(a)(2)(B), (D). In the alternative, DHS argued
that Fakhry failed to establish eligibility for asylum based
upon either past persecution or a well-founded fear of perse-
cution. See id. § 1101(a)(42). It also contested his application
for withholding of removal.
The IJ found, first, that Fakhry did not qualify for the
changed circumstances exception to the one-year deadline for
filing an asylum application.6 The IJ noted that if Fakhry had
come to the United States “for a different purpose, for a par-
ticular kind of business or other kind of venture or particular
kind of trip and if because of those [sic] changed circum-
stances after that, triggered his application for asylum, then
that’s what the law is for.” In Fakhry’s case, in contrast,
the Court didn’t hear anything other than his cons-
tant interest in remaining in the United States, not
being returned to Senegal and being afraid to return
from day one. Therefore, while certainly the country
conditions have been changing, there was never such
a complete change, even with the new government,
that at least affected him so that he decided to with-
draw interest or make attempts to possibly go back
and then stop again because something new hap-
pened . . . .
6
Fakhry does not challenge the IJ’s adverse ruling on the “extraordinary
circumstances” exception.
4904 FAKHRY v. MUKASEY
In the alternative, the IJ held that Fakhry did not qualify on
the merits for asylum. The IJ found that the 1999 incident in
which soldiers beat Fakhry at his mother’s house in Casa-
mance did not constitute past persecution, because there was
no indication that the soldiers were aware of his MFDC mem-
bership or that he was beaten for his participation in the
MFDC. The IJ declined to decide whether or not Fakhry had
established a well-founded fear of persecution, concluding
that even if he had, he was reasonably able to relocate to
Dakar and avoid persecution there. The IJ also denied
Fakhry’s application for withholding of removal because he
failed to establish that it was more likely than not he would
be persecuted or, in the alternative, because he could reason-
ably relocate to Dakar.
Fakhry appealed to the Board of Immigration Appeals
(“BIA”), which, in a single-member order, dismissed his
appeal “based upon and for the reasons set forth” in the IJ’s
decision. Fakhry subsequently moved to reopen his proceed-
ings; the BIA denied this motion. Fakhry now challenges the
denial of his asylum and withholding applications and the
denial of his motion to reopen.
ANALYSIS
We have jurisdiction pursuant to 8 U.S.C. § 1252. Section
1252(a)(2)(D) grants us jurisdiction to review “the application
of statutes and regulations to undisputed historical facts.”
Ramadan v. Gonzales, 479 F.3d 646, 654 (9th Cir. 2007)
(footnote omitted). The questions we address in this opinion
fit this rubric.
“Where, as here, the BIA has reviewed the IJ’s decision
and incorporated . . . it as its own, we treat . . . the IJ’s deci-
sion as the BIA’s.” Molina-Estrada v. INS, 293 F.3d 1089,
1093 (9th Cir. 2002). We review legal questions de novo, see
id., and factual findings regarding eligibility for asylum for
FAKHRY v. MUKASEY 4905
substantial evidence. See 8 U.S.C. § 1252(b)(4)(B); Morales
v. Gonzales, 478 F.3d 972, 977 (9th Cir. 2007).
I.
A.
[1] Applications for asylum must be filed within one year
of an alien’s arrival in the United States. 8 U.S.C.
§ 1158(a)(2)(B). Failure to file within one year will not bar an
application, however, where the alien demonstrates “the exis-
tence of changed circumstances which materially affect the
applicant’s eligibility for asylum.” Id. § 1158(a)(2)(D).
DHS’s regulations provide a nonexhaustive list of exam-
ples:
(A) Changes in conditions in the applicant’s coun-
try of nationality or, if the applicant is state-
less, country of last habitual residence;
(B) Changes in the applicant’s circumstances that
materially affect the applicant’s eligibility for
asylum, including changes in applicable U.S.
law and activities the applicant becomes
involved in outside the country of feared perse-
cution that place the applicant at risk; or
(C) In the case of an alien who had previously
been included as a dependent in another alien’s
pending asylum application, the loss of the
spousal or parent-child relationship to the prin-
cipal applicant through marriage, divorce,
death, or attainment of age 21.
8 C.F.R. § 208.4(a)(4)(i). The regulations further provide that
“[t]he applicant shall file an asylum application within a rea-
4906 FAKHRY v. MUKASEY
sonable period given those ‘changed circumstances.’ ” Id.
§ 208.4(a)(4)(ii).
1.
The IJ noted that “certainly the country conditions have
been changing,” but held the exception did not apply because
of Fakhry’s “constant interest in remaining in the United
States, not being returned to Senegal and being afraid to
return from day one.” Fakhry argues that the IJ applied the
wrong legal standard, because an alien’s subjective intent to
apply for asylum is not relevant to the changed circumstances
analysis.
[2] We agree that the timing of an alien’s intent to apply for
asylum has no role in the changed circumstances analysis.
“Changed circumstances” are those which “materially affect
the applicant’s eligibility for asylum.” 8 U.S.C.
§ 1158(a)(2)(D) (emphasis added); see 8 C.F.R.
§ 208.4(a)(4)(i). Eligibility for asylum, in turn, is established
by demonstrating “ ‘persecution or a well-founded fear of per-
secution on account of race, religion, nationality, membership
in a particular social group, or political opinion.’ ” Al-Harbi
v. INS, 242 F.3d 882, 888 (9th Cir. 2001) (quoting 8 U.S.C.
§ 1101(a)(42)(A)). The applicant’s subjective state of mind
does play a role in establishing eligibility for asylum because
a well-founded fear of persecution must be “both ‘subjec-
tively genuine’ and ‘objectively reasonable.’ ” Id. (quoting
Velarde v. INS, 140 F.3d 1305, 1309 (9th Cir. 1998)); see 8
C.F.R. § 208.13(b)(2)(i).7 A subjective fear of persecution
7
8 C.F.R. § 208.13(b)(2)(i) provides:
(i) An applicant has a well-founded fear of persecution if:
(A) The applicant has a fear of persecution in his or her
country of nationality or, if stateless, in his or her
country of last habitual residence, on account of race,
religion, nationality, membership in a particular social
group, or political opinion;
FAKHRY v. MUKASEY 4907
may often correlate with a subjective intent to apply for asy-
lum, as an alien who fears persecution will often also intend
to apply for asylum. But this potential overlap does not
change the fact that the two subjective states of mind are dis-
tinct, or the fact that subjective fear of persecution alone does
not suffice to establish a well-founded fear of persecution —
the fear must also be objectively reasonable. Thus, there can
be “changed circumstances which materially affect the appli-
cant’s eligibility for asylum” even if the alien always meant
to apply for asylum and always feared persecution; a sudden
“Eureka!” state of mind is not necessary. In short, the subjec-
tive intent standard applied by the IJ is contrary to the statute
and regulations, and we have found no authority suggesting
otherwise.8
Moreover, a subjective intent standard would contradict a
likely purpose of the exception: to excuse late applications
when an alien previously had a weak or nonexistent case for
asylum. Take, for example, the case of an alien who came to
the United States wanting to apply for asylum and fearing per-
(B) There is a reasonable possibility of suffering such per-
secution if he or she were to return to that country; and
(C) He or she is unable or unwilling to return to, or avail
himself or herself of the protection of, that country
because of such fear.
8
None of the published BIA opinions applying the changed circum-
stances exception rely on the alien’s subjective intent to apply for asylum
or on the timing of the alien’s subjective fear of persecution. See Matter
of A-T-, 24 I. & N. Dec. 296, 301-02 (BIA 2007) (rejecting as a changed
circumstance the fact that the asylum applicant’s parents arranged for her
to marry her first cousin, a marriage she did not wish to enter, because her
asylum application was not filed within a reasonable time after she
became aware of this circumstance); Matter of A-M-, 23 I. & N. Dec. 737,
738-39 (BIA 2005) (rejecting nightclub bombing in Bali as a changed cir-
cumstance in part because, as the bombing victims were mostly foreign
tourists, the circumstance did not materially affect the alien’s asylum
application based on his Chinese ethnicity and Christian faith).
4908 FAKHRY v. MUKASEY
secution should she return, but felt that she would not qualify
on the objective reasonableness grounds. Not wanting to file
an application that would be denied, she did not file. After her
second year in the United States, changed circumstances in
her country of origin made her application much stronger,
prompting her late application. Why should she be penalized
for declining to clog the immigration courts with a meritless
application? The statute’s description of “changed circum-
stances which materially affect the applicant’s eligibility for
asylum” reasonably includes this alien’s situation.9
[3] We conclude that there is no support in the statute, case
law, or purposes of the statute for the IJ’s holding that Fakhry
did not qualify for the changed circumstances exception
solely because his subjective intent to apply for asylum —
and subjective fear — existed before the expiration of the
one-year asylum application period. See Garcia-Quintero v.
Gonzales, 455 F.3d 1006, 1014-15 (9th Cir. 2006) (unpub-
lished, single-member BIA decision warrants only the defer-
ence due in light of its thoroughness, validity and
persuasiveness, pursuant to Skidmore v. Swift & Co., 323 U.S.
134 (1944)). The IJ erred in so holding.
2.
Fakhry argues that he has demonstrated changed circum-
stances materially affecting his asylum application: In early
2001, Fakhry learned from his brother that the Senegalese
government had captured MFDC membership records, and in
March 2001 a peace agreement was signed between the Sene-
9
At oral argument, counsel for the government essentially so conceded:
The Court: If there is a changed country condition — if the IJ
looks at it or if we look at it objectively and we
think the IJ got it wrong — then it shouldn’t matter
whether or not he had a subjective intent to file for
asylum from Day One.
AUSA: On that I agree, absolutely.
FAKHRY v. MUKASEY 4909
galese government and the MFDC.10 Then, in the spring of
2002, the peace agreement broke down and fighting resumed.
This resumption of fighting, in conjunction with Fakhry’s rea-
sonable belief that the Senegalese government had record evi-
dence of his membership in the MFDC, could constitute
changed circumstances materially affecting Fakhry’s eligibil-
ity for asylum. For the first time since his arrival in the United
States, Fakhry had an objectively reasonable basis to believe
that the Senegalese government both could identify him as an
MFDC member and would persecute him on this ground.
[4] The IJ, while finding Fakhry ineligible for the “changed
circumstances” exception because of his continuous subjec-
tive intent to apply for asylum, also recognized that “country
conditions have been changing.” But the IJ did not specifi-
cally find that Fakhry would have qualified for the “changed
circumstances” exception but for his subjective state of mind.
Because the agency applied the wrong legal standard and has
not considered the issue using the correct standard, we
remand for a determination of whether Fakhry demonstrated
changed circumstances and, if so, whether he applied for asy-
lum within the requisite “reasonable period.” See Ornelas-
Chavez v. Gonzales, 458 F.3d 1052, 1058 (9th Cir. 2006)
(“[W]here the BIA applies the wrong legal standard to an
applicant’s claim, the appropriate relief from this court is
remand for reconsideration under the correct standard . . . .”);
Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004) (per
curiam) (“In reviewing the decision of the BIA, we consider
only the grounds relied upon by that agency. If we conclude
that the BIA’s decision cannot be sustained upon its reason-
ing, we must remand to allow the agency to decide any issues
remaining in the case.”).
B.
10
The sequence of these events is unclear, but the record suggests that
the peace agreement took place shortly after Fakhry learned about the
membership records.
4910 FAKHRY v. MUKASEY
The IJ also denied Fakhry’s asylum application on the mer-
its, finding that Fakhry failed to establish past persecution,
and that even if he established a well-founded fear of future
persecution — a question the IJ declined to decide — he was
reasonably able to relocate to Dakar and avoid persecution
there.
[5] An alien can establish eligibility for asylum by proving
past persecution or a well-founded fear of persecution in his
home country on account of a protected ground. 8 C.F.R.
§ 208.13(a), (b)(1)-(2); see also INS v. Elias-Zacarias, 502
U.S. 478, 481 (1992). A well-founded fear of persecution
ordinarily cannot be established, however, if the applicant
“could avoid persecution by relocating to another part of the
applicant’s country . . . , if under all the circumstances, it
would be reasonable to expect the applicant to do so.” 8
C.F.R. § 208.13(b)(2)(ii). But where “the persecutor is a gov-
ernment or is government-sponsored, . . . it shall be presumed
that internal relocation would not be reasonable, unless the
Service establishes by a preponderance of the evidence that,
under all the circumstances, it would be reasonable for the
applicant to relocate.” Id. § 208.13(b)(3)(ii); see also Har-
pinder Singh v. Ilchert, 63 F.3d 1501, 1511 (9th Cir. 1995)
(“This court presumes that in a case of persecution by a gov-
ernmental body such as a national police force, the govern-
ment has the ability to persecute the applicant throughout the
country.”).
[6] Fakhry testified he feared persecution at the hands of
the Senegalese government. He thus gains the benefit of the
presumption that the threat of persecution exists nationwide
and that relocation is therefore unreasonable. See Melkonian
v. Ashcroft, 320 F.3d 1061, 1070 (9th Cir. 2003). The IJ, how-
ever, failed to apply this presumption. In his discussion of
Fakhry’s ability to relocate, he never referred to the presump-
tion or placed any significance on the fact that the persecutor
is the government. Further, in weighing the evidence, the IJ
appeared to place the burden on Fakhry to disprove the rea-
FAKHRY v. MUKASEY 4911
sonableness of internal relocation: “I am satisfied that it’s not
unreasonable to expect the respondent could go to Dakar and
remain free of any indicated problems that he has.” The IJ’s
failure to apply the presumption was error.
[7] Whether the government rebutted this presumption by
a preponderance of the evidence and, if so, whether Fakhry
established a well-founded fear of persecution, are questions
for the agency on remand. See INS v. Ventura, 537 U.S. 12,
16-17 (2002) (per curiam).
II.
The IJ denied Fakhry’s application for withholding of
removal because Fakhry could reasonably relocate to another
part of the country to avoid persecution or, in the alternative,
because Fakhry failed to establish that it was more likely than
not that he would be persecuted if he returned to Senegal. As
discussed above, the IJ’s relocation analysis was in error
because he failed to apply the presumption against relocation
where the government is the persecutor.
[8] With regard to withholding, however, the IJ did make
a finding that Fakhry failed to establish the requisite fear of
persecution.11 We affirm the denial of withholding on this
alternative ground, because the sum of the evidence does not
compel a finding that it is more likely than not that Fakhry
will be persecuted upon his return to Senegal. See Elias-
Zacarias, 502 U.S. at 481 & n.1 (“To reverse the BIA finding
11
The burden of proof for the fear of persecution is different for asylum
and withholding applications: For purposes of asylum, “even a ten percent
chance of persecution may establish a well-founded fear.” Al-Harbi, 242
F.3d at 888. For withholding, the alien must establish that “it would be
‘more likely than not’ that the feared persecution would occur.” Lata v.
INS, 204 F.3d 1241, 1244 (9th Cir. 2000) (quoting INS v. Stevic, 467 U.S.
407, 424 (1984)).
4912 FAKHRY v. MUKASEY
we must find that the evidence not only supports that conclu-
sion, but compels it . . . .”).12
III.
[9] Fakhry argues that the BIA abused its discretion by fail-
ing to base its denial of his motion to reopen on one of the
permissible grounds for denial. The BIA determined that
Fakhry’s new evidence did not establish a prima facie case for
relief. See Fernandez v. Gonzales, 439 F.3d 592, 599 (9th Cir.
2006) (failure to establish a prima facie case for relief is
grounds to deny a motion to reopen). The BIA’s analysis was
not erroneous.13
CONCLUSION
The IJ erred in each alternative ground for denying
Fakhry’s asylum claim. We remand for consideration under
the correct legal standard for the changed circumstances
exception to the one-year filing bar and, if the agency reaches
the merits of Fakhry’s asylum application, for the employ-
ment of the presumption against the availability of relocation
when the government is the persecutor. We affirm the denials
12
Fakhry also argues that he was denied due process because the IJ
failed sufficiently to review the record before rendering his decision.
Although the IJ initially stated that he had not fully reviewed all of the
documents prior to Fakhry’s hearing, he went off the record to review
them and subsequently stated in his decision that he had reviewed the
complete record. As there is no indication that the IJ’s review was not suf-
ficiently thorough, Fakhry fails to demonstrate that his due process rights
were violated. See Larita-Martinez v. INS, 220 F.3d 1092, 1095-96 (9th
Cir. 2000) (“[I]t is so expected that a court would review all relevant mate-
rials in the record that reviewing courts have presumed it. . . . [A]n alien
attempting to establish [otherwise] . . . must overcome the presumption
that it did review the evidence.”) (internal citations omitted).
13
Although Fakhry also notes that the BIA’s decision states that he
moved to Dakar in 1990, when in fact he moved there in 1997, the BIA’s
decision did not rely on this fact. A factual error with no apparent signifi-
cance does not render the decision an abuse of discretion.
FAKHRY v. MUKASEY 4913
of Fakhry’s application for withholding of removal and his
motion to reopen.
Petition for review GRANTED in part, DENIED in part,
and REMANDED.