Sowe v. Mukasey

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BABA SOWE, 
Petitioner, No. 06-72938
v.
 Agency No.
A79-569-509
MICHAEL B. MUKASEY, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
May 9, 2008—Seattle, Washington

Filed August 19, 2008

Before: Arthur L. Alarcón, Susan P. Graber, and
Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Alarcón

11027
11030 SOWE v. MUKASEY

COUNSEL

Mark B. Nerheim, Bauman-Becia Law Group, Seattle, Wash-
ington, for the petitioner.

Marion E. Guyton and William C. Erb, Jr., United States
Department of Justice, Office of Immigration Litigation, Civil
Division, Washington, D.C., for the respondent.

OPINION

ALARCÓN, Circuit Judge:

Baba Sowe, a native and citizen of Sierra Leone, appealed
to the Board of Immigration Appeals (“BIA”) from the denial
of his applications for asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”).
Sowe presented evidence before an immigration judge (“IJ”)
that he and his family were persecuted by members of the
Revolutionary United Front (“RUF”). We have jurisdiction
over his appeal pursuant to 8 U.S.C. § 1252. We deny Sowe’s
application for withholding of removal and for protection
under CAT. We remand his application for asylum to the BIA
for a hearing to determine his eligibility pursuant to 8 C.F.R.
§ 1208.13(b)(1)(iii)(A).

I

Sowe entered the United States on or about April 4, 2001.
 SOWE v. MUKASEY 11031
On June 2, 2001, Sowe executed an I-589 form seeking asy-
lum and withholding of removal.1 He also applied for protec-
tion under CAT. On October 15, 2004, the INS served Sowe
with a notice to appear, and charged him with removability
because he did not possess or present a valid entry document
when he was admitted to the United States.

At his removal hearing, Sowe conceded removability.
Sowe testified that he was persecuted by the RUF because he
is a Muslim Maraka and because of his parents’ political affil-
iations with the United National People’s Party, a group
aligned with the Sierra Leone government.

Sowe testified that sometime around August 11, 1997, RUF
members came to his family’s home and asked for his father
and brother. AR 58. Sowe testified that the RUF was inter-
ested in his family because they were Muslim Marakas who
supported the government. Id. The RUF members took Sowe
to an RUF camp. There he was beaten and forced to do “hard
work in the prison there.” Id. at 60. He testified that he was
beaten because he “didn’t want to tell them where [his] par-
ents were and since they [knew] that [he was] a Muslim
Maraka.” Id. at 60. Sowe testified that he escaped the camp
after three weeks. Id. at 61.

Sowe testified that members of the RUF returned to his
family’s home on January 10, 1998. AR 62. They forcibly
took him to their camp. There he was forced to do laundry,
clean, and perform hard labor. Id. at 65. He testified that he
was beaten because he is a Muslim Maraka and because he
refused to disclose his father’s location. Id. at 66-67. After ten
days at the camp, Sowe escaped. Id. at 67.
1
Form I-589 is an application for asylum and withholding of removal.
See 8 C.F.R. § 208.3(a) (“An Asylum applicant must file Form I-589,
Application for Asylum and for Withholding of Removal, together with
any additional supporting evidence in accordance with the instructions on
the form.”).
11032 SOWE v. MUKASEY
Sowe further testified that on March 4, 1999, members of
the RUF returned to his home. Sowe stated that the rebels
“just start[ed] beating me and they took me away again.” Id.
at 68. He testified that the rebels came to his home because
his father was a Muslim Maraka and the imam of a mosque,
and because his family did not support the RUF. Id. On this
date, he was taken by force to an RUF camp because he
refused to tell the RUF where his father was. Id. At the camp,
he was forced to do odd jobs. Id. He escaped after five days.
Id. at 69.

Sowe testified that members of the RUF returned to his
family’s home on February 10, 2001, and killed his parents.
Id. at 69. On the same date, an RUF rebel “took a machete out
of [his] pocket and . . . . chop[ped Sowe’s brother’s] hand
off.” Id. at 70-71. The rebels seized Sowe’s sister and
removed her from her home. AR 71.2 Sowe escaped and fled
to Freetown. Id. at 72. He later entered the United States on
or about April 4, 2001. Id.

The IJ concluded that Sowe was not a credible witness. The
IJ stated: “I do not find the respondent to be a credible witness
in that, as noted, the Form I-589 is of an extremely skeletal
nature and notwithstanding the passage of so many years, has
not been supplemented by any kind of a statement.” AR 40.
Alternatively, the IJ stated:

even if we were to accept the respondent’s testimony
as true, I would find that there have been dramatic
changes in Sierra Leone, as noted above, in terms of
the United Nations involvement, the multiple rounds
of elections, the progress that has been made so that
the international presence is being withdrawn and so
2
Although both parties assert that Sowe’s sister was raped, that fact was
alleged only in his asylum application, AR 127, and in a letter written by
his sister, attached to his removal proceedings prehearing statement, AR
239.
 SOWE v. MUKASEY 11033
forth, so that under such case law as Gonzalez-
Hernandez v. Ashcroft, 336 F.3d 995 (9th Cir. 2003),
the objective component of the claim can no longer
be established.

AR 42. The IJ’s findings regarding the changes in Sierra
Leone were based on a 2005 U.S. Department of State Coun-
try Report.3 The IJ denied Sowe’s application for asylum,
withholding of removal, and protection under CAT. The IJ
also noted that Sowe was ineligible for voluntary departure.
Sowe filed a timely appeal with the BIA challenging the IJ’s
decision.

II

The BIA dismissed the appeal based on the IJ’s alternative
holding that, even if Sowe’s testimony were deemed credible
and demonstrated past persecution, the presumption of future
persecution was rebutted by the evidence in the record reflect-
ing a change in country conditions. It stated:

We do not find the harm that the respondent claims
to have suffered, that of being detained and beaten
by the RUF, to be sufficiently compelling to support
a grant of asylum in the absence of a well-founded
fear of future persecution (see Matter of Chen, 20
I&N Dec. 16 (BIA 1989); nor do we find there to be
a reasonable possibility that the respondent may suf-
fer other serious harm upon removal to Sierra Leone.
See 8 C.F.R. §§ 1208.13(b)(1)(iii)(A), (B).

AR 3. The BIA did not review the IJ’s adverse credibility
findings. It stated: “We need not reach the issue whether the
adverse credibility determination was correct.”4 Id. The BIA
3
This report was issued in February of 2005, but describes the condi-
tions in Sierra Leone in 2004. We will refer to it as the “2004 country
report.”
4
The BIA appears to have assumed, for purposes of disposing of Sowe’s
appeal, that he suffered past persecution. It did not decide, however,
11034 SOWE v. MUKASEY
concluded that Sowe had failed to establish his eligibility for
asylum and withholding of removal. It also determined that
Sowe had failed to demonstrate that if removed to Sierra
Leone, he would more likely than not be tortured, as required
for relief under CAT.

Sowe’s timely petition for review was filed on June 7,
2006.

III

“The BIA’s decision that an alien has not established eligi-
bility for asylum is reviewed for substantial evidence.” Hanna
v. Keisler, 506 F.3d 933, 937 (9th Cir. 2007). “We review the
IJ’s factual findings regarding changed country conditions for
substantial evidence.” Smolniakova v. Gonzales, 422 F.3d
1037, 1052 (9th Cir. 2005). We also review for substantial
evidence the BIA’s determination that a petitioner has not
qualified for withholding of removal, and that a petitioner is
ineligible for CAT relief. Kaiser v. Ashcroft, 390 F.3d 653,
657 (9th Cir. 2004); Zheng v. Ashcroft, 332 F.3d 1186, 1193
(9th Cir. 2003). Sowe’s petition for review challenges the
decisions of the IJ and the BIA on several grounds.

A

[1] Sowe contends that both the IJ and the BIA erred in
denying his asylum claim on the ground that changed country
conditions made it safe for him to return to Sierra Leone.
Unless there is reason to grant discretionary relief pursuant to
8 C.F.R. § 1208.13(b)(1)(iii), an asylum application will be
denied if “[t]here has been a fundamental change in circum-

whether the IJ erred in finding that Sowe was not a credible witness.
“Thus, because the BIA has expressly declined to address [Petitioner’s]
credibility, we do not decide that issue here in the first instance.” Hanna
v. Keisler, 506 F.3d 933, 937 (9th Cir. 2007).
 SOWE v. MUKASEY 11035
stances such that the applicant no longer has a well-founded
fear of persecution in the applicant’s country of nationality
. . . on account of race, religion, nationality, membership in
a particular social group, or political opinion.” 8 C.F.R.
§ 1208.13(b)(1)(i)(A).

Sowe’s contention that the BIA erred in concluding that the
presumption of future persecution had been rebutted by the
evidence of changed conditions in Sierra Leone raises a pre-
liminary question as to whether we review the IJ’s resolution
of this issue or the BIA’s conclusion. See Ghaly v. INS, 58
F.3d 1425, 1430 (9th Cir. 1995) (“Where the Board . . . con-
duct[s] a de novo review of the record, our review is limited
to the decision of the Board except to the extent that the IJ’s
opinion is expressly adopted by the Board.”). Here, the BIA
did not state whether it was conducting a de novo review of
the IJ’s findings regarding country conditions in Sierra Leone.
However, its holding regarding country conditions is nearly
identical to the IJ’s. “To the extent that the BIA incorporates
the IJ’s decision as its own, we treat the IJ’s statement of rea-
sons as the BIA’s and review the IJ’s decision.” Gonzalez v.
INS, 82 F.3d 903, 907 (9th Cir. 1996).

[2] Sowe first asserts that the IJ and the BIA erred in rely-
ing “primarily on the Department of State’s country report for
2004 (released February 28, 2005)” to rebut Sowe’s future
persecution claim on the ground that country conditions had
changed. Pet’r Br. at 24. Sowe argues that “[these] general-
ized materials are insufficient to rebut Mr. Sowe’s presumed
well-founded fear of future persecution.” Id. at 24. Reliance
on the 2004 country report was not erroneous. U.S. Depart-
ment of State country reports are “the most appropriate and
perhaps the best resource for information on political situa-
tions in foreign nations.” Kazlauskas v. INS, 46 F.3d 902, 906
(9th Cir. 1995) (internal quotations marks omitted).

Next, Sowe contends that
11036 SOWE v. MUKASEY
contrary to the BIA’s (and the IJ’s) assertions, [the
2004 country report indicates that] the “disarma-
ment” has not been completed, the Sierra Leone
Police are undisciplined and incompetent, the gov-
ernment of Sierra Leone has not devoted sufficient
resources to develop a competent police force, and
. . . the government of Sierra Leone remains unwill-
ing or unable to control RUF or former RUF rebels.

Pet’r Br. at 26. In support of this statement, Sowe has quoted
from selected portions of the 2004 country report. In a related
argument, Sowe contends that “[n]o individualized analysis
took place in this case and thus the BIA and the IJ abused
their discretion.” Id. at 29.

[3] We are not in a position to second-guess the IJ’s con-
struction of the somewhat contradictory 2004 country report.
See Gonzalez-Hernandez v. Ashcroft, 336 F.3d 995, 1000 (9th
Cir. 2003) (“[T]he agency, not a court of appeals, must con-
strue the country report and determine if country conditions
have changed such that the applicant no longer has a well-
founded fear of persecution.”). “[W]here the [IJ] rationally
construes an ambiguous or somewhat contradictory country
report and provides an individualized analysis of how
changed conditions will affect the specific petitioner’s situa-
tion, substantial evidence will support the agency determina-
tion.” Id. (citation and internal quotation marks omitted).

[4] Substantial evidence supports the IJ’s findings that the
country conditions that affected Sowe have improved. Sowe’s
asylum claim is premised upon his fear of being persecuted by
the RUF because he is a Muslim Maraka, and because of his
parents’ political affiliations. The IJ noted that the 2004 coun-
try report found that RUF members have been tried by a war
crimes tribunal and that the Sierra Leone government is tak-
ing action against the RUF. The IJ further considered the fact
that Islam was practiced by 60 percent of Sierra Leone’s pop-
ulation, and that relations between various religious commu-
 SOWE v. MUKASEY 11037
nities were amicable. The IJ acknowledged that in 1999, the
RUF took action against religious leaders, but that “this infor-
mation is from 1999 when the civil war was going forward
and there have been significant changes in Sierra Leone [since
then].” AR 41.

Next, Sowe argues that the BIA’s and the IJ’s conclusions
regarding country conditions were undermined by a 2003
country report, released on February 25, 2004. He cites no
authority for the proposition that information in an outdated
country report should be given more weight than information
in a more recent report.

B

Sowe also claims that the BIA “impermissibly place[d] the
burden upon Mr. Sowe to establish that he would face perse-
cution if returned to Sierra Leone.” Pet’r Br. at 30 (citing the
BIA’s conclusion that he failed to show “a pattern or practice
of persecution or that there is any continuing interest in him”).
In this aspect of its decision, the BIA did not adopt the IJ’s
reasoning. Therefore, we shall review the BIA’s conclusion.

[5] The BIA did not require Sowe to prove that country
conditions had not changed. Rather, in the statement Sowe
challenges, the BIA explained that because the government
had succeeded in rebutting any showing of persecution, Sowe
did not have a well-founded fear of persecution. This is an
accurate statement of the law. See Mamouzian v. Ashcroft,
390 F.3d 1129, 1135 (9th Cir. 2004) (“The government must
. . . rebut th[e] presumption by demonstrating by a preponder-
ance of the evidence that country conditions have changed or
that relocation is possible, so that the petitioner no longer has
a well-founded fear that she would be persecuted if she were
to return.”).

C

[6] Sowe also alleges that his well-founded fear of persecu-
tion was not rebutted because “[t]he Government failed to
11038 SOWE v. MUKASEY
establish that internal relocation was a reasonable option.”
Pet’r Br. at 33. Neither the BIA nor the IJ addressed this
issue. However, it was not error to avoid it. The presumption
that an asylum applicant has a well-founded fear of persecu-
tion can be rebutted either by a showing that “[t]here has been
a fundamental change in circumstances such that the applicant
no longer has a well-founded fear of persecution in the appli-
cant’s country of nationality” or by a showing that “[t]he
applicant could avoid future persecution by relocating to
another part of the applicant’s country of nationality.” 8
C.F.R. § 1208.13(b)(1)(i)(A), (B). Substantial evidence sup-
ports the conclusions of the IJ and the BIA that as a result of
fundamental changes in Sierra Leone, the RUF no longer per-
secutes any group on account of race, religion, nationality,
membership in a particular social group, or political opinion,
including the Muslim Maraka. This evidence rebutted the pre-
sumption of a well-founded fear of future persecution.

D

We next turn to Sowe’s argument that he is eligible “for a
humanitarian grant of asylum on account of the severe forms
of past persecution that he and his family suffered and the rea-
sonable possibility that he will suffer other serious harm if
removed to Sierra Leone” pursuant to 8 C.F.R.
§ 1208.13(b)(1)(iii)(A), (B). Pet’r Br. at 39.

[7] “[I]t is now within the discretion of the IJ and BIA to
grant asylum to victims of past persecution whose fear of
future persecution has been rebutted.” Belishta v. Ashcroft,
378 F.3d 1078, 1081 (9th Cir. 2004) (order) (citing 8 C.F.R.
§ 1208.13(b)(1)(iii)(A), (B)). Section 1208.13(b)(1)(iii)(A)
provides that an applicant who does not have a well-founded
fear of future persecution “may be granted asylum, in the
exercise of the decision-maker’s discretion, if . . . [t]he appli-
cant has demonstrated compelling reasons for being unwilling
or unable to return to the country arising out of the severity
of the past persecution.” In determining whether an applicant
 SOWE v. MUKASEY 11039
qualifies for this relief, the BIA must “consider the level of
atrocity of past persecution.” Lopez-Galarza v. INS, 99 F.3d
954, 963 (9th Cir. 1996).

[8] The BIA denied discretionary relief pursuant to section
1208.13(b)(1)(iii)(A), stating: “[w]e do not find the harm that
respondent claims to have suffered, that of being detained and
beaten by the RUF, to be sufficiently compelling to support
a grant of asylum in the absence of a well-founded fear of
future persecution.” The BIA erred in failing to determine
whether, assuming the truth of Sowe’s testimony that he wit-
nessed his parents’ murder, the severing of his brother’s hand,
and his sister’s kidnaping, he provided compelling reasons for
his being unwilling or unable to return to Sierra Leone.
Because we lack the authority to act as fact-finders, or to
determine credibility in the first instance, we must remand to
the BIA the question whether Sowe is eligible for asylum pur-
suant to section 1208.13(b)(1)(iii)(A). INS v. Orlando Ven-
tura, 537 U.S. 12, 16-18 (2002) (per curiam).

[9] Sowe also alleges that the BIA erred in denying him
relief pursuant to section 1208.13(b)(1)(iii)(B). As to that
claim, the BIA concluded that there was no reasonable proba-
bility that Sowe “would suffer other serious harm upon
removal to Sierra Leone.” AR 3. Sowe argues this was error
because his arguments relating to asylum and withholding of
removal establish that he “faces a reasonable likelihood of
other serious harm if forced to return to Sierra Leone.” We
disagree. The evidence of changed country conditions effec-
tively rebutted the presumption that he would suffer future
persecution. Furthermore, to be eligible for asylum pursuant
to section 1208.13(b)(1)(iii)(B), Sowe must show “ ‘other
serious harm’ aside from persecution.” Recinos de Leon v.
Gonzales, 400 F.3d 1185, 1190 (9th Cir. 2005). Sowe has
failed to show that the BIA erred in determining that he was
not eligible for asylum pursuant to section
1208.13(b)(1)(iii)(B).
11040 SOWE v. MUKASEY
E

[10] Sowe contends that he is eligible for withholding of
removal. In Gonzalez-Hernandez, we concluded that the BIA
correctly denied an asylum claim because “the INS rebutted
the presumption that Gonzalez has a well-founded fear of
future persecution.” 336 F.3d at 998. When the government
rebuts an applicant’s well-founded fear of future persecution,
it defeats the applicant’s asylum claim, and his or her claim
for withholding of removal. See id. at 1001 n.5 (holding that
because the applicant and his family “do not have a well-
founded fear of persecution, it necessarily follows that they do
not qualify for withholding of removal”). Therefore, the
BIA’s findings regarding changed country conditions also
defeat Sowe’s withholding of removal claim.

F

Sowe argues that the BIA erred in denying his CAT claim.
“[T]o be eligible for relief under [CAT], a petitioner must
show ‘that it is more likely than not that he or she would be
tortured if removed to the proposed country of removal.’ ”
Kamalthas v. INS, 251 F.3d 1279, 1283 (9th Cir. 2001) (quot-
ing 8 C.F.R. § 208.16(c)(2)).

The BIA concluded that Sowe “has not established a fear
of the Sierra Leonean government and current country condi-
tions . . . do not suggest that if the respondent is removed to
Sierra Leone he will more likely than not be tortured.” AR 3.
Sowe contends that, in reaching this conclusion, the BIA
implicitly held that Sowe had to prove that he will be tortured
at the hands of the government, or that “the government has
[to have] actual awareness of an individual or a group’s incli-
nation to torture him personally.” Pet’r Br. at 44-45.

This is an unreasonable interpretation of the BIA’s order.
The order as a whole establishes that the BIA understood that
Sowe sought relief based on his claim that he fears the RUF.
 SOWE v. MUKASEY 11041
The BIA concluded that Sowe failed to establish that the RUF
would torture him upon his return to Sierra Leone, and cited
8 C.F.R. §§ 1208.16(c)(3) and 1208.18(a) in support of its
conclusions. Section 1208.16(c)(3) describes the kind of evi-
dence that must be considered in determining “whether it is
more likely than not that an applicant would be tortured in the
proposed country of removal.” Section 1208.18(a) defines tor-
ture.

Sowe further contends that the BIA erred in denying CAT
relief because “country conditions have not improved such
that Mr. Sowe does not have a real fear that more likely than
not that he will be tortured at the hands of former RUF sol-
diers.” Pet’r Br. at 45. In particular, he claims that the BIA
“fail[ed] to take into consideration all the relevant evidence in
the record.” Id. at 46.

The evidence Sowe relies upon to demonstrate that he was
tortured is the same evidence he cited in support of his asylum
claim. However, just as changed country conditions can
defeat an asylum claim, they can also defeat a claim for CAT
protection. See El Himri v. Ashcroft, 378 F.3d 932, 938 (9th
Cir. 2004) (holding that “the El Himris have not shown that
it is more likely than not that they will suffer torture inflicted
by the government if they return to Kuwait” because “most of
the physical violence perpetrated by the government against
Palestinians ended when constitutional government returned
to Kuwait”).

[11] Here, as in the asylum context, Sowe’s arguments do
not establish that the country conditions in Sierra Leone have
remained stagnant. The BIA’s conclusion that Sowe will not
be tortured because conditions in Sierra Leone have changed
is supported by substantial evidence.

IV

[12] Sowe requests attorneys’ fees and other costs pursuant
to 28 U.S.C. § 2412(d)(1)(B). We deny Sowe’s request
11042 SOWE v. MUKASEY
because it is premature. See id. (“A party seeking an award of
fees and other expenses shall, within thirty days of final judg-
ment in the action, submit to the court an application for fees
and other expenses which shows that the party is a prevailing
party and is eligible to receive an award under this subsection
. . . .”).

The petition for review is DENIED IN PART and
GRANTED IN PART. We REMAND for further proceedings
regarding Sowe’s application for asylum pursuant to 8 C.F.R.
§ 1208.13(b)(1)(iii)(A).

The parties shall bear their own costs on appeal.