In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18‐2334
EL HADJ HAMIDOU BARRY,
Petitioner,
v.
WILLIAM P. BARR,
Attorney General of the United States,
Respondent.
____________________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A205‐830‐004.
____________________
ARGUED NOVEMBER 9, 2018 — DECIDED FEBRUARY 22, 2019
____________________
Before BAUER, BRENNAN, and SCUDDER, Circuit Judges.
BRENNAN, Circuit Judge. El Hadj Hamidou Barry, a native
and citizen of Guinea, applied for deferral of his removal from
the United States under the United Nations Convention
Against Torture. An immigration judge denied Barry’s appli‐
cation because Barry failed to show if removed to Guinea he
likely would be tortured. The Board of Immigration Appeals
affirmed. Barry now petitions this court for review, claiming
2 No. 18‐2334
if removed to Guinea he will be tortured because of his
political and familial affiliations and his sexual orientation.
Barry has failed to satisfy his burden to substantiate these
claims with evidence, so we deny his petition.
I.
Barry was born and grew up in Guinea. His father was a
member of the Union for New Republic (“UNR”), an
opposition political party in Guinea during the 1990s. In the
past, the Guinean government—controlled by the ruling
political party at that time—took drastic measures to locate
Barry’s father and prevent his political activities. Barry testi‐
fied at his immigration hearing that Guinean soldiers showed
up at his home when he was eight years old, stabbed him in
the thigh with a machete, and threatened to cut off his leg to
elicit his father’s whereabouts from his mother. When his
mother did not comply, the soldiers beat her, too. Barry’s
mother testified before the immigration judge in support of
Barry’s application for deferral under the Convention Against
Torture (“CAT”), reiterating the incident with the soldiers as
Barry described it. Barry is no longer in touch with his father
and has no current affiliation with any Guinean political
party, including the UNR. Moreover, a different political
party with a new president is now in power in Guinea.
In 1998, shortly after the incident with the soldiers, Barry
and his mother left Guinea and arrived in the United States.
Barry was admitted as a temporary visitor. Having never
returned to Guinea, he is now thirty years old and has been
living in the United States for over twenty years. Around
2009, Barry committed various crimes, including robbery,
controlled substances offenses, and possession of a firearm.
No. 18‐2334 3
He was convicted and sentenced for an aggravated felony
conviction of conspiracy to commit robbery.
The Department of Homeland Security issued Barry a
Final Administrative Removal Order under 8 U.S.C. § 1228(b)
based on his felony conviction. Barry applied for deferral of
removal under Article 3 of CAT, 8 C.F.R. § 1208.17.1 He also
sought and was afforded a reasonable fear interview with an
asylum officer. During the interview, he expressed fear of
being tortured if returned to Guinea due to his father’s past
political affiliations and his sexual orientation. The asylum
officer referred Barry’s case to the Chicago Immigration
Court, and an immigration judge held a hearing to assess the
merits of Barry’s deferral claim.
Barry and his mother testified at the hearing. They each
described the soldier stabbing incident, the country
conditions in Guinea, and Barry’s bisexuality. Barry testified
that when he was a sophomore in high school, he was told
anecdotally by “another African guy” that Guinean civilians
have tortured and beaten to death gay men living in Guinea.
Barry explained while there have not been any reported
incidents of Guinean police prosecuting homosexuals under
Guinean laws criminalizing homosexual activity, he believes
most homosexual behavior is not reported to the police
because Guinean civilians routinely administer “street
justice” to gay individuals.
1 Barry also requested withholding of removal under the Immigration
and Nationality Act § 241 (b)(3), see 8 U.S.C. § 1231(b)(A), but at his hearing
conceded his conviction for conspiracy to commit robbery constitutes a
“particularly serious crime,” making him ineligible for withholding. See 8
U.S.C. § 1231(b)(3)(B)(ii); see also 8 C.F.R. § 1208.16(d)(2).
4 No. 18‐2334
Barry married an American woman, Amber Johnson, in
April 2017. At his immigration hearing, he testified he had
relationships with “five to six” men before meeting his wife
and, despite marrying Amber, has continued to pursue sexual
relations with men. Based on his plan to maintain
extramarital sexual relations in the future, he believes
“regular civilians” in Guinea will be able to discover his
sexuality and “attack [him], … torture [him], kill [him]” and
“beat [him] to death.”
Barry’s mother testified she learned of Barry’s bisexuality
when he was in high school. She expressed her fear that Barry
could be killed in Guinea if people learned of his sexual
orientation, recounting she had seen gay people chased
through the streets in Guinea and “beaten up … because they
were gay.” Her testimony about the conditions homosexual
individuals encounter in Guinea is based on her experiences
in Guinea approximately twenty years ago.
Barry also submitted record evidence in support of his and
his mother’s testimonies. The most notable evidence included
summonses for his parents to appear, purportedly issued by
a Guinean court, and a U.S. State Department country report
describing conditions in Guinea as politically violent and
hostile toward homosexual individuals. The summonses are
dated April 20, 1998 and April 7, 2016, and the country report
was produced in 2016.
The immigration judge found Barry and his mother to be
credible witnesses, but denied Barry’s application for CAT
deferral because Barry failed to meet his burden of producing
evidence that if removed to Guinea he more likely than not
would be tortured. Specifically, the immigration judge
determined “the bulk of the evidence” about Barry being
No. 18‐2334 5
tortured because of his bisexuality comes from Barry’s
mother, who has not been to Guinea in approximately twenty
years. Although the country report does not contradict
Barry’s mother’s testimony, it explains only generally that
Guinea criminalizes same‐sex sexual conduct and describes
generalized violence toward gay individuals rooted in
“religious and cultural taboos.” As the judge noted, “there’s
been [no known] prosecutions or reports of arrest” in Guinea
under the country’s laws prohibiting homosexual acts. The
judge also determined the evidence about Barry being
tortured because of his father’s past political affiliations
largely consists of decades‐old memories and events. Even
assuming Barry and his mother accurately depicted the
incident with the soldiers, the judge found no evidence that
future incidents would occur.
Barry timely appealed the immigration judge’s decision to
the Board of Immigration Appeals (“BIA”). On May 31, 2018,
BIA dismissed the appeal and affirmed the immigration
judge’s removal order. Barry now petitions this court for
review.
II.
An applicant seeking deferral of removal under CAT bears
the burden of establishing it is “more likely than not that he
or she would be tortured” in the proposed country of
removal. 8 C.F.R. §§ 1208.16(c)(2)–(3), 1208.17(a). This court
“interpret[s] that standard liberally, requiring ‘a substantial
risk that a given alien will be tortured if removed from the
United States.’” Bernard v. Sessions, 881 F.3d 1042, 1047 (7th
Cir. 2018) (quoting Rodriguez‐Molinero v. Lynch, 808 F.3d 1134,
1136 (7th Cir. 2015)); see Perez v. Sessions, 889 F.3d 331, 334 (7th
Cir. 2018) (noting that this court applies the “more likely than
6 No. 18‐2334
not” standard under a “substantial risk” analysis). For
purposes of CAT protection, there must be some showing that
the potential torture will be committed by the government of
the removal country, either directly or by acquiescence.
Bernard, 881 F.3d at 1047 (quoting Lopez v. Lynch, 810 F.3d 484,
492 (7th Cir. 2016)); see also Lozano‐Zuniga v. Lynch, 832 F.3d
822, 830 (7th Cir. 2016) (“An applicant for CAT protection
must demonstrate that the torture was inflicted by or at the
behest of, or with the consent or acquiescence of, a public
official.”).
When evaluating whether an applicant has met this
burden, “the immigration judge must address various factors
such as evidence of past torture, ability to relocate within the
country, evidence of grave human rights violations or other
relevant country conditions.” Orellana‐Arias v. Sessions, 865
F.3d 476, 489 (7th Cir. 2017); see 8 C.F.R. § 1208.16(c)(3)(i)–(iv).
“Evidence of generalized violence is not enough; the [immi‐
gration judge] must conclude that there is a substantial risk
that the petitioner will be targeted specifically.” Bernard, 881
F.3d at 1047 (citing Lozano‐Zuniga, 832 F.3d at 830–31); Lopez,
810 F.3d at 493.
When, as here, BIA relies on the immigration judge’s
findings and adds its own analysis, this court reviews the
immigration judge’s decision as supplemented by BIA’s
additional reasoning. Bernard, 881 F.3d at 1046 (quoting
Jabateh v. Lynch, 845 F.3d 332, 337 (7th Cir. 2017)). The court
reviews a “denial of CAT deferral under the highly deferential
substantial evidence test and will reverse only if the record
evidence compels a contrary conclusion.” Bernard, 881 F.3d at
1047 (quoting Lopez, 810 F.3d at 492 (internal citations
omitted)); see INS v. Elias‐Zacarias, 502 U.S. 478, 481 n. 1 (1992)
No. 18‐2334 7
(“To reverse the BIA finding we must find that the evidence
not only supports that conclusion, but compels it … ”); Jabateh,
845 F.3d at 337 (explaining that the court “may reverse the
[immigration judge’s factual] determinations ‘only if we de‐
termine that the evidence compels a different result’” (quoting
Abraham v. Holder, 647 F.3d 626, 632 (7th Cir. 2011))).
Here, the evidence does not compel the conclusion that
Barry more likely than not will be tortured by or with the
acquiescence of Guinean officials. At his immigration hearing,
Barry relied primarily on three sources of evidence: (1) the
testimony of he and his mother about his bisexuality and
conditions in Guinea twenty years ago, (2) summonses
purportedly issued by a Guinean court for his parents’
appearances, and (3) a U.S. State Department country report
describing conditions in Guinea as politically violent and
hostile toward homosexual individuals.
Certainly, the testimony before the immigration judge
indicates Barry suffered great harm as a child at the hands of
Guinean soldiers. Whether that harm rose to the level of
torture was, ultimately, not a factual determination the
immigration judge needed to make. After reviewing the
entire record and finding Barry and his mother credible, the
immigration judge determined Barry’s fear of future torture
was “too speculative” and did not meet the “more likely than
not” standard. The immigration judge must consider poten‐
tial past torture in the context of the entire record; past torture
alone is not dispositive. 8 C.F.R. §1208.16(c). BIA reviewed the
immigration judge’s findings and agreed. The evidence does
not compel us to conclude differently.
Barry and his mother left Guinea over twenty years ago.
Neither have been back to the country since, and neither seem
8 No. 18‐2334
to have maintained any familial or political ties to the country.
Barry and his mother testified they are no longer in touch with
Barry’s father, whose political activities gave rise to the abuse
Barry and his mother suffered twenty years ago. As the
country report explains, a different political party controls
Guinea today than the one that commissioned soldiers two
decades ago to find Barry’s father.
To support his assertion that the Guinean government is
still looking for his father, Barry submitted Guinean court
summonses for his parents from 1998 and 2016. When the
immigration judge asked Barry about their origin, Barry
could not authenticate them, nor could he explain how he ob‐
tained them or why they were issued. He did not argue at that
time that he lacked an opportunity to authenticate the docu‐
ments, nor did he object to the immigration judge affording
them limited evidentiary weight. Indeed, it was consistent
with this court’s precedent for the immigration judge to do so.
See Raghunathan v. Holder, 604 F.3d 371, 380 (7th Cir. 2010)
(giving little weight to an affidavit by a respondent’s mother
because it was unauthenticated and the respondent failed to
explain how he had obtained it).
Even if Guinean officials are still looking for Barry’s father,
it is speculation to assume they are looking for Barry or would
connect Barry to his father. Barry testified the Guinean
government would know he is his father’s son because they
share a surname. But he failed to lay a foundation for this
assertion (for example, by providing evidence how common
the surname “Barry” is in Guinea). No record evidence
substantiates Barry’s fear his father’s political affiliations will
imperil him.
No. 18‐2334 9
Barry also testified he would be tortured in Guinea
because he is bisexual. His testimony describing present‐day
treatment of gay men in Guinea is based on a friend’s hearsay
comment from approximately thirteen or fourteen years ago.
The friend’s comment is uncorroborated, aside from Barry’s
mother testifying she recalls gay individuals being beaten
when she lived in Guinea approximately twenty years ago.
Such dated testimonial evidence fails to establish a substantial
risk of torture in Guinea today. See, e.g., Bernard, 881 F.3d at
1046 (evidence that consists mostly of “decades‐old
memories” does not establish a CAT claim for relief).
In addition to outdated, the friend’s comment indicates
only that Guinean civilians may mistreat gay men; it would
not show that the Guinean government tortures individuals
based on sexual orientation or systematically turns a blind eye
toward such mistreatment. See Silais v. Sessions, 855 F.3d 736,
742 (7th Cir. 2017) (violence committed by private individuals
may constitute persecution only if the foreign government
was complicit in those acts or was unable or unwilling to take
steps to prevent them). While Guinean laws criminalize
homosexual activities, Barry did not know of a single
individual ever prosecuted for homosexuality in Guinea, and
he admitted the country report contains no evidence of any
homosexuality‐based prosecutions.
The country report explains there are “[d]eep religious
and cultural taboos against same‐sex sexual conduct” in
Guinea and that same‐sex sexual activity is illegal. The report
does not, however, describe any individual being tortured for
engaging in homosexual activity. Further, the report contains
only generalized findings insufficient to satisfy Barry’s
burden of showing he is personally subject to a particularized
10 No. 18‐2334
risk of torture. See Lozano‐Zuniga, 832 F.3d at 830–31
(“[E]vidence about generalized violence or danger within a
country is not sufficient to make a claim that it is more likely
than not that a petitioner would be tortured upon return to
his home country.”); see also Lenjinac v. Holder, 780 F.3d 852,
856 (7th Cir. 2015) (“[R]eports that torture occurs in a foreign
country … are insufficient bases for relief without evidence
that the petitioner will be tortured if he returns.”); Rashiah v.
Ashcroft, 388 F.3d 1126, 1133 (7th Cir. 2004).
III.
Barry has failed to establish he more likely than not will
be tortured if removed to Guinea. The immigration judge
assessed the record and denied Barry’s deferral application.
BIA reviewed the immigration judge’s findings and affirmed.
The evidence does not compel this court to conclude
otherwise.
The petition for review is DENIED.