Djonda v. U.S. Attorney General

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 24, 2007
No. 06-11275 THOMAS K. KAHN
________________________ CLERK

BIA No. A97-196-333

TCHILABALO DJONDA,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________

(July 24, 2007)

Before BLACK and PRYOR, Circuit Judges, and LIMBAUGH,* District Judge.

PRYOR, Circuit Judge:

*
Honorable Stephen N. Limbaugh, United States District Judge for the Eastern District of
Missouri, sitting by designation.
 The two issues in this appeal are whether substantial evidence supports the

findings of the Board of Immigration Appeals that Tchilabalo Djonda, a native and

citizen of Togo, suffered a minor beating and brief detention, while in Togo, that

did not amount to persecution, and whether Djonda is not likely to face more

severe treatment there upon his return. Djonda petitions for review of a decision of

the Board that affirmed an Immigration Judge’s denial of Djonda’s application for

asylum, 8 U.S.C. § 1158(a)(1); withholding of removal, 8 U.S.C. § 1231(b)(3); and

relief under the United Nations Convention Against Torture. Djonda was detained

for 36 hours and beaten by Togolese police for participating in a political rally.

Medical records state that he suffered scratches and muscle bruises. A year later,

Djonda received a summons to appear at a police station, where he believed he

would be detained indefinitely and possibly killed. Djonda fled Togo rather than

appear at the police station. Because the record does not compel a finding that

Djonda suffered or is likely to suffer upon his return more than minor physical

abuse and brief detention, we deny Djonda’s petition.

I. BACKGROUND

Djonda entered the United States as a nonimmigrant student on January 9,

2003. After he arrived, he filed an application for asylum and withholding of

removal on the ground that he suffered persecution in Togo on account of his

political opinion and had a well-founded fear of future persecution. On September
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25, 2003, Djonda was served with a Notice to Appear and charged with

removability based on a failure to maintain his status as a student visitor. Djonda

appeared and testified at a hearing before the Immigration Judge on September 30,

2004.

Before entering the United States, Djonda was a student in Togo at the

University of Lome, which was operated by the government. In 2000 he joined the

Union des Forces de Changement, an opposition political party in Togo. He also

belonged to the Conseil des Etudiantes de l’Universite de Lome, a student

organization sympathetic to the Union but not formally associated with it.

On the night of December 17, 2001, Djonda was arrested for participating in

a meeting of the Conseil at his university. On the way to the police station, the

police discovered Djonda’s documents of membership in the Union and beat him.

Police officers asked Djonda why he would not support a president who was a

member of the same tribe as Djonda.

When Djonda arrived at the police station, he was ordered to disrobe and

was beaten with a belt and kicked. He was separated from the other Conseil

members who had been arrested, and he spent the night in a small cell with 12

other people where he was unable to sleep. A policeman later asked Djonda if he

was hungry, and when Djonda replied that he was, the policeman forced Djonda to

drink some very dirty liquid and to eat something “very, very, very bad.” A
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superior officer told Djonda that it was treason for Djonda to oppose a president

from his own tribe and forced Djonda to sign a document declaring that the Conseil

was financed by the Union to create trouble. After he signed the paper, Djonda

was told that the next time he was arrested he “was going to rot in jail” and the

declaration Djonda signed would be used as evidence against him.

Approximately 36 hours after his arrest, Djonda was released. Djonda’s

brother took him to the hospital, where he stayed for two days. The medical

records from this stay stated that Djonda was “covered with blood” when he

arrived at the clinic. Djonda had multiple scratches, mostly around his neck and

knees, and multiple muscle bruises, but x-rays revealed no damage to his vertebral

column or skull. The doctor concluded Djonda needed to rest for two weeks and

prescribed him several medications. Over the course of the next year, Djonda

continued to attend Union and Conseil meetings but refrained from participating in

big demonstrations, where many arrests were made.

Two of Djonda’s brothers were active in politics, and both were targeted by

the ruling party. At the time of Djonda’s hearing before the Immigration Judge,

Djonda’s older brother, Abalo, was in hiding somewhere near the Togo-Benin

border. A second older brother, Tchiao, was a member of the Executive Board of

the Union in Kara, Togo. On January 4, 2003, Tchiao was arrested in the northern

part of Togo by the eldest son of the president. At the time of his hearing, Djonda
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and his family had not heard from Tchiao and did not know where Tchiao was,

although they believed he was either still in prison or had been killed.

Two days after Tchiao’s arrest, two members of a student group loyal to the

president told Djonda that they knew Tchiao had been arrested and imprisoned two

days earlier and that Djonda would follow his brother to prison. Djonda took this

threat seriously because it was not yet public knowledge that Tchiao had been

arrested, which suggested that the students acquired their knowledge through

government channels. On January 7, Djonda received a summons to appear at the

police station the next day as part of an investigation. Individuals who had

received such invitations were being detained upon arriving at the police station.

Djonda’s uncle called a friend of his who was a policeman and told him

Djonda had received a summons, had been previously detained by the police, and

was forced to sign the declaration stating that the Conseil was funded by the

Union. The friend said that those responding to the invitations were being detained

and, because Djonda had signed the declaration the first time he was detained, “it

would not be advisable for [him] to go [to the police station]. There would be

consequences.”

The day before Djonda received the summons, he had acquired a student

visa to study in the United States. After Djonda’s uncle talked with his friend at

the police station, Djonda and his uncle decided that Djonda should leave for the
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United States immediately, instead of when Djonda had intended to leave.

Djonda’s uncle owned a travel agency and arranged a flight out of Togo for the

following day, January 8. The policeman-friend of the family stamped Djonda’s

passport so that Djonda would not have to interact with the authorities, and Djonda

arrived in Atlanta on January 9.

Soon after Djonda arrived in the United States, another summons to the

police station arrived at his house in Togo. On January 20, his uncle was

summoned to the police station and held for several hours to answer questions

about Djonda’s whereabouts. The police said they would find Djonda and that,

when they did, they would imprison him. Djonda’s uncle was later interrogated

two more times about Djonda’s whereabouts.

The next month, in February 2003, Djonda’s uncle was involved in a

mysterious car accident when a large truck that had been following his car for

some time suddenly hit his car and drove away. The uncle suffered a broken leg

and spent a month in the hospital as a result of the crash. The harassment suffered

by Djonda’s uncle made it difficult for him to fund Djonda’s education abroad, and

eventually Djonda was unable to maintain his status as a student.

In addition to his medical records, Djonda presented other documentary

evidence in support of his claims. A sworn statement from his brother, Abalo,

recounted how Abalo had been targeted by the Togolese police and was in hiding.
6
This statement also asserted that a classmate of Djonda who had fled to Ghana was

arrested when he returned to visit his family. An email from Djonda’s younger

brother dated April 24, 2004, stated that Djonda’s family still hadn’t heard from

Tchiao and “believe[d] that he [wa]s still jailed in the camp Landja of Kara.” This

email also stated that Abalo recently had visited for thirty minutes before heading

for Benin. A sworn statement from Djonda’s uncle dated May 1, 2004, stated, “A

member of our family is actually in jail and we have not heard from him for a long

time,” and that the uncle had been “under constant menace” since Djonda fled. An

email from a friend of Djonda dated March 31, 2004, read in part, “The students’

situation is becoming worse and worse . . . . I think that you and the ones who fled

were lucky to leave when you did. I am sure you don’t think of coming back here

because everybody who returned are declared not found or found dead in the

streets.” Finally, Djonda submitted various State Department Country Reports and

Amnesty International publications about the general country conditions in Togo.

The Immigration Judge denied Djonda’s application for asylum. The

Immigration Judge concluded that Djonda’s single detention did not amount to past

persecution. He also concluded that Djonda failed to present documentation that

adequately supported, and was consistent with, his oral testimony concerning a

well-founded fear of future persecution. Because Djonda failed to establish

7
eligibility for asylum, the Immigration Judge found him ineligible for withholding

of removal and relief under the Convention Against Torture.

On appeal, the Board of Immigration Appeals affirmed the decision of the

Immigration Judge but disagreed with some of his findings. The Board found that

Djonda “not only testified credibly, but also submitted numerous documents

corroborating the general background information and specifics of his claim.” The

Board concluded, however, that Djonda had not suffered past persecution because

his detention was brief and he only suffered minor scratches and bruises. With

respect to Djonda’s fear of future persecution, the Board concluded that, although

the 2003 Country Report said Union members are frequently arrested and Djonda

established he would likely face arrest or detention upon his return, his treatment

was not likely to rise to the level of persecution because Union members are

typically released within days. The Board found particularly informative a section

of the report that stated that, in March 2003, Union members arrested at a weekly

meeting were detained for only two days and were not subjected to physical abuse.

The Board concluded that Djonda failed to establish his eligibility for asylum and

for withholding of removal.

II. STANDARD OF REVIEW

“This court reviews administrative fact findings under the highly deferential

substantial evidence test. . . . Under the substantial evidence test, we view the
8
record evidence in the light most favorable to the agency’s decision and draw all

reasonable inferences in favor of that decision.” Adefemi v. Ashcroft, 386 F.3d

1022, 1027 (11th Cir. 2004) (en banc).

III. DISCUSSION

Our discussion is divided into two parts. First, we discuss Djonda’s

argument that he suffered past persecution. Second, we examine Djonda’s

contention that he will be persecuted if returned to Togo. Djonda makes no

arguments on appeal that he is entitled to relief under the Convention Against

Torture, and “[w]hen an appellant fails to offer argument on an issue, that issue is

abandoned.” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (2005); see

also Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir.

1989).

A. The Record Does Not Compel the Conclusion That Djonda
Suffered Persecution in Togo.

Djonda first contends that the Board erred when it concluded he did not

suffer persecution in Togo. Although Djonda maintains that beatings need not be

serious or result in permanent injury to constitute persecution, he does not dispute

the conclusion of the Board that minor beatings and brief detentions do not amount

to persecution. He maintains instead that the beating he suffered was severe and

that verbal threats alone can amount to persecution. These arguments fail.

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 Whether Djonda suffered a minor beating is a factual question, which we

review for substantial evidence. The Board based its finding on Djonda’s medical

documents, which stated that he suffered only “scratches and bruises.” These

documents constitute substantial evidence in favor of the finding of the Board.

Djonda argues that even if his beating was not severe, he still suffered

persecution because he was told by two students loyal to the president that he

would be arrested, and verbal threats can amount to persecution. Djonda cites

Bellido v. Ashcroft, 367 F.3d 840, 846 (8th Cir. 2004), and Corado v. Ashcroft,

384 F.3d 945, 947 (8th Cir. 2004), for this proposition. We disagree with Djonda’s

reading of the record.

Djonda’s argument fails for at least two reasons. First, even if we were to

presume that the communication by the students constituted a threat, we would

deny relief because we have previously held that threats more extensive than this

one did not constitute persecution. See Sepulveda, 401 F.3d at 1231. Second, the

students who told Djonda he would be jailed were not individuals who had the

power to make good on the “threat” they conveyed. “[V]iew[ed] . . . in the light

most favorable to the agency’s decision,” Adefemi, 386 F.3d at 1027, the

communication by the students to Djonda was not a threat, but a prediction or

warning. The record does not compel the conclusion that Djonda suffered past

persecution.
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 B. The Record Does Not Compel the Conclusion That Djonda Has a
Well-Founded Fear of Persecution Should He Be Returned to Togo.

Djonda next argues that the Board erred when it found that he does not have

a well-founded fear of persecution in Togo. In the asylum context, an applicant

establishes a well-founded fear when he establishes that there is “a reasonable

possibility he or she would be singled out individually for persecution,” or that he

is a member of, or is identified with, a group that is subjected to a pattern or

practice of persecution. 8 C.F.R. § 208.13(b)(2)(iii). Djonda presents six pieces of

evidence that he will be subjected to persecutory treatment if returned to Togo: (1)

his brother Tchiao had not been heard from more than a year after he was

imprisoned by the government, and his brother Abalo went into hiding; (2)

students loyal to the government predicted, the day before Djonda received his

summons, that Djonda would be jailed like his brother; (3) the day after this

prediction, Djonda received a summons to appear at the police station; (4) the

policeman-friend of his uncle warned him that it would be bad for him to answer

the summons; (5) Djonda’s uncle was mistreated after he left; and (6) others who

have fled Togo and returned have been imprisoned or killed. The Board found that

Djonda had not established a reasonable possibility that he would be subjected to

treatment worse than what he had previously experienced, and substantial evidence

supports that finding.

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 We do not deny that Djonda’s evidence might allow a reasonable factfinder

to find that he will be persecuted upon his return to Togo, but “[o]ur review is

more limited.” Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1237 (11th Cir. 2006).

When reviewing for substantial evidence, we do not ask whether the evidence

presented by an applicant might support a claim for relief; instead, we ask whether

the record compels us to reverse the finding to the contrary. Id.; 8 U.S.C. §

1252(b)(4)(B). Although the record evidence suggests that Djonda will be

detained upon his return, it does not compel the conclusion that his treatment will

rise to the level of persecution.

The Board was entitled to find one part of the record to be especially

relevant to Djonda’s application. The 2003 State Department Report on Togo

states that, although Union members are frequently arrested, they are typically not

subjected to harsh treatment. The Board relied on a passage from this Report that

recounted how Union members who were arrested while attending a weekly

meeting were detained for two days but were not physically harmed. We have

stated that the Board is “entitled to rely heavily on” country reports, Reyes-

Sanchez v. U.S. Att’y Gen., 369 F.3d 1239, 1243 (11th Cir. 2004) (citing Rojas v.

INS, 937 F.2d 186, 190 n.1 (5th Cir. 1991) (“[the State Department] is the most

appropriate and perhaps best resource the Board could look to in order to obtain

information on political situations in foreign nations”)), and the substantial
12
evidence test does not allow us to “reweigh . . . from scratch” the importance to be

placed on the 2003 Report, Mazariegos v. U.S. Att’y Gen., 241 F.3d 1320, 1323

(11th Cir. 2001).

The evidence presented by Djonda is not the kind of evidence that calls into

question the reliance of the Board upon the 2003 Report. Because we are

reviewing for substantial evidence, we must draw all inferences from Djonda’s

evidence in favor of the decision of the Board. Adefemi, 386 F.3d at 1027.

Viewed in this manner, Djonda’s evidence does not compel the conclusion that he

will suffer an extended detention or harsh physical treatment.

Djonda’s evidence that his brothers have been mistreated by the government

for their political activities is equivocal. Tchiao was imprisoned on January 4,

2003, and had not been heard from as of April 24, 2004. Djonda infers from this

silence that Tchiao was either imprisoned this entire time or killed, and that he

himself would suffer a similar fate. Although a sworn statement from Djonda’s

uncle states that “[a] member of our family is actually in jail,” Djonda testified that

“we don’t know where he is” and stated in his written application that his family

“believes [Tchiao was] taken to Camp Landja.” An email from Djonda’s younger

brother similarly states only that he “believe[d] that [Tchiao] [wa]s still jailed.” A

factfinder could reasonably interpret the more definite statement of Djonda’s uncle

13
in the light of the qualifying statements of Djonda himself and Djonda’s younger

brother.

The evidence concerning Djonda’s other brother, Abalo, is similarly

indefinite. Abalo went into hiding along the Togo-Benin border after being

harassed by the government, but there is no evidence that Abalo fled because he

had been subjected to, or believed he would be subjected to, harsh treatment rising

to the level of persecution. A factfinder could reasonably infer that Abalo had fled

because he was subjected to or believed he would be subjected to the type of

unpleasant, but not persecutory, treatment endured by Djonda.

Even if we were to infer that Djonda’s brothers were persecuted, we would

still deny Djonda relief because the record does not compel the conclusion that

Djonda will be treated like his brothers. Djonda infers from some of his

evidence—the prediction by his fellow students that he will be imprisoned like

Tchiao, the summons he then received, and the concern of his uncle’s policeman-

friend—that he will be treated like Tchiao and subjected to the kind of harsh

treatment he believes Tchiao to have endured, but this evidence does not compel

that conclusion. Djonda’s fellow students did not predict that Djonda would be

imprisoned for a long period of time, and Djonda does not know Tchiao’s

whereabouts. Tchiao also occupied a prominent leadership position within the

14
Union, in contrast with Djonda, who not only did not occupy a leadership position,

but had not participated in any large demonstrations in the year between his

detention and his flight from Togo.

Djonda’s later receipt of the summons and the concern expressed by his

uncle’s policeman-friend similarly fail to establish that Djonda will necessarily be

imprisoned for an extended period upon his return. The policeman-friend stated

only that “it would not be advisable” for Djonda to respond to the summons and

“[t]here would be consequences.” These statements would be equally true if

Djonda were expected to suffer another two-day detention and a minor beating,

which the Board thought more likely to happen.

None of the evidence of mistreatment of Djonda’s uncle compels the

conclusion that Djonda will be persecuted upon his return. Djonda’s uncle was

interrogated about Djonda’s whereabouts and told that Djonda would be

imprisoned when he was found. As was the case with Djonda’s fellow students,

there is no evidence that Djonda’s uncle was told by the government that Djonda

would be imprisoned for an extended period of time. A factfinder could

reasonably infer that any threatened detention would be brief, as it was before.

Djonda’s uncle was also involved in a mysterious car accident that Djonda implies

was caused by the government, but Djonda does not state either that he knew or

15
even that he believed the government to have been involved.

Djonda’s remaining evidence consists of documentation he submitted that

purports to establish that students and others who flee the country for political

reasons and return are either killed or disappear, but this evidence does not compel

a finding that Djonda will be persecuted. In his sworn affidavit, Abalo recounted

how a classmate of Djonda who fled to Ghana was arrested when he returned to

visit his family, but that statement is silent about whether the classmate was

imprisoned for an extended period or was subjected to harsh physical abuse. A

friend of Djonda stated in an email that “[t]he students’ situation is becoming

worse” and “everybody who returned [after fleeing the country] are declared not

found or found dead in the streets,” but the record contains no evidence about the

background or qualifications of the individual who made this statement. There is

no reason to think the statement is based on comprehensive knowledge of the

treatment by the government of fugitives as opposed to the speculation of Djonda’s

friend. The Board was entitled to find that the 2003 Report was more indicative of

the kind of treatment Djonda could expect to receive upon his return.

The record does not compel the conclusion that Djonda established a

reasonable possibility that he will be persecuted upon his return to Togo, so we

deny his petition for asylum based on a well-founded fear of persecution. Because

16
Djonda has failed to establish his eligibility for asylum, he has necessarily failed to

meet the higher standard for withholding of removal. Silva, 448 F.3d at 1243. We

deny Djonda’s petition for withholding of removal as well.

IV. CONCLUSION

Djonda’s petition for review is

DENIED.

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