[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEB 19, 2010
No. 08-16507 JOHN LEY
________________________ CLERK
Agency No. A098-854-993
THIERNO DIALLO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(February 19, 2010)
Before TJOFLAT, BARKETT and KRAVITCH, Circuit Judges.
PER CURIAM:
Thierno Diallo, a native of Guinea, petitions this court for review of the
Board of Immigration Appeals’ (“BIA”) affirmance of the Immigration Judge’s
(“IJ”) order of removal. In this case, we consider whether a credible death threat
made in person by one with the ability to carry out that threat rises to the level of
persecution. Because we conclude that it does, we vacate and remand to the BIA
for further factual findings.
I. Background
Diallo entered the United States from the Netherlands in 2004 as part of the
Visa Waiver Program. In 2005, Diallo was referred to the IJ for an “asylum only”
determination after he violated the terms of the Visa Waiver Program by remaining
in the United States after the expiration of the waiver, 8 U.S.C. § 1187(a), (b).1 In
his asylum application, Diallo alleged that he was arrested at a meeting of the
Ready People of Guinea(“RPG”),2 he and his father were taken from the meeting
and detained eleven hours before Diallo was able to escape, his brother was killed
by soldiers, and his father’s whereabouts were unknown.
At the hearing, Diallo testified that he attended an RPG meeting with his
father and brother to oppose the Guinean government in February 2001. After
armed soldiers arrived at the meeting to arrest the protestors, a fight between the
1
Diallo’s unexhausted and abandoned CAT claims are not properly before us. See
Fernandez-Bernal v. U.S. Att’y Gen., 257 F.3d 1304, 1317 n.13 (11th Cir. 2001) (holding that claims
not raised before the BIA are not exhausted); Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228
(11th Cir. 2005) (explaining that claims not raised before this court are abandoned).
2
The State Department Country Reports identify the RPG as the Rally of People of Guinea.
2
soldiers and the RPG members erupted. Diallo’s brother was killed, and Diallo
and his father were beaten. The soldiers then took the protestors, including Diallo
and his father, to another location, where they were photographed, registered,
detained, and warned that they would be executed the following day. Before the
soldiers could carry out their threat, Diallo escaped. He went to a friend, who
treated his injuries and helped him flee Guinea. Diallo went to Sierra Leone,
where he worked as a landscaper and in the diamond mines. He left Sierra Leone
in 2004 due to violence in that country.
In support of his asylum application, Diallo submitted several articles
concerning the violence in Guinea between soldiers and protestors, which had
resulted in the deaths of a number of protestors. He also submitted the State
Department Country Reports. According to the 2005 Report, soldiers were
responsible for killing protestors and beating civilians. The Report also noted that
members of the RPG had been arrested and detained in 2004. The Report stated,
however, that the government had permitted opposition rallies more liberally than
in past years, and that a RPG leader had been able to travel throughout the region
without government interference. Diallo also submitted reports from Amnesty
International, including a 2006 report stating that security forces were responsible
for several deaths in 1998 and 2001, and that opposition leaders had been arrested
and protestors had been beaten in 1998.
3
The IJ denied relief, finding, inter alia, that the single incident of a brief
detention and minor beating did not rise to the level of persecution. The IJ then
found that Diallo did not have an objectively reasonable well-founded fear of
future persecution because he could have relocated internally. Diallo appealed to
the BIA, which concluded, relevant to this appeal, that the alleged incident did not
rise to the level of persecution.3 The BIA did not address the IJ’s relocation
finding.
In his petition for review, Diallo challenges the IJ’s and BIA’s conclusions
that he failed to establish past persecution or a well-founded fear of future
persecution. He further asserts that the IJ erroneously concluded that he could
have relocated within Guinea.
II. Standard of Review
Where, as here, the BIA issues its own opinion and does not adopt the IJ’s
opinion, we review the BIA’s decision. Rodriguez Morales v. U.S. Att’y Gen., 488
F.3d 884, 890 (11th Cir. 2007). To the extent that the decision was based on a
legal determination, our review is de novo. Ruiz v. U.S. Att’y Gen., 440 F.3d 1247,
1254 (11th Cir. 2006); D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 817 (11th
Cir. 2004). Factual determinations are reviewed under the substantial evidence
3
The BIA did not affirm the IJ’s decision regarding the timeliness of the application, the
adverse credibility determination, the denial of discretionary relief, or the IJ’s finding that there was
no nexus between the events and a statutorily protected ground.
4
test, and we “must affirm the BIA’s decision if it is supported by reasonable,
substantial, and probative evidence on the record considered as a whole.” Al
Najjar v. Ashcroft, 257 F.3d 1262, 1283-84 (11th Cir. 2001) (quotation and
internal marks omitted). Additionally, “[u]nder the substantial evidence test, we
review the record evidence in the light most favorable to the agency’s decision and
draw all reasonable inferences in favor of that decision.” Ruiz, 440 F.3d at 1255
(citing Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc)).
Thus, “a finding of fact will be reversed only when the record compels a reversal;
the mere fact that the record may support a contrary conclusion is not enough to
justify a reversal of the administrative findings.” Id. (quotation omitted).
III. Analysis
The Attorney General has discretion to grant asylum if an alien meets the
INA’s definition of “refugee.” INA § 208(b)(1), 8 U.S.C. § 1158(b)(1). The INA
defines “refugee” as follows:
[A]ny person who is outside any country of such person’s
nationality . . . and who is unable or unwilling to return to, and is
unable or unwilling to avail himself or herself of the protection of,
that country because of persecution or a well-founded fear of
persecution on account of . . . political opinion.
8 U.S.C. § 1101(a)(42)(A)-(B). The asylum applicant bears the burden of proving
refugee status. Al Najjar, 257 F.3d at 1284. To meet this burden, the alien must,
with specific and credible evidence, establish (1) past persecution on account of a
5
statutorily listed factor, or (2) a “well-founded fear” that the statutorily listed factor
will cause such future persecution. 8 C.F.R. § 208.13(a)-(b); Al Najjar, 257 F.3d at
1287. “[O]nly in a rare case does the record compel the conclusion that an
applicant for asylum has suffered past persecution or has a well-founded fear of
future persecution.” Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1239 (11th Cir.
2006).
If the alien establishes past persecution, he is presumed to have a well-
founded fear of future persecution unless the government can rebut the
presumption by showing, by a preponderance of the evidence, that: (1) there has
been a fundamental change in circumstances in the applicant’s country of
nationality such that the applicant no longer has a well-founded fear of persecution
because of a statutorily-protected ground; or (2) the applicant could avoid future
persecution by relocating to another part of the applicant’s country of nationality
and, under all the circumstances, it would be reasonable to expect the applicant to
do so. 8 C.F.R. § 208.13(b)(1)(i)(A)-(B) (2005).
Not all “exceptional treatment” constitutes persecution. Zheng v. U.S. Att’y
General, 451 F.3d 1287, 1290 (11th Cir. 2006). Rather, persecution is “an extreme
concept, requiring more than a few isolated incidents of verbal harassment or
intimidation, and . . . mere harassment does not amount to persecution.” Id.
(quotation omitted). “In determining whether an alien has suffered past
6
persecution, the IJ [and the BIA] must consider the cumulative effects of the
incidents.” Delgado v. U.S. Att’y Gen., 487 F.3d 855, 861 (11th Cir. 2007). A
brief detention coupled with minor bruising does not establish persecution.
Djonda v. U.S. Att’y Gen., 514 F.3d 1168, 1174 (11th Cir. 2008).
By contrast, “intentionally being shot at in a moving car multiple times”
constitutes past persecution, regardless of whether the attack is successful.
Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1233 (11th Cir. 2007); cf. De
Santamaria v. U.S. Att’y Gen., 525 F.3d 999, 1008-10 (11th Cir. 2008) (finding
persecution where alien received numerous death threats, was dragged by her hair
out of her vehicle, and was later kidnaped and beaten); Niftaliev v. U.S. Att’y Gen.,
504 F.3d 1211, 1217 (11th Cir. 2007) (finding that the cumulative effect of
numerous beatings, arrests, searches, and interrogations, culminating in a
fifteen-day, food-deprived detention, compelled a finding of past persecution);
Mejia v. U.S. Att’y Gen., 498 F.3d 1253, 1257-58 (11th Cir. 2007) (concluding the
petitioner suffered persecution where he was the target of attempted attacks over an
eighteen-month period, received multiple death threats, and was physically
attacked twice, once when a large rock was thrown at him and once when members
of the FARC broke his nose with the butt of a rifle); Delgado, 487 F.3d at 859-61
(finding persecution based on cumulative effect of two beatings, continued
threatening phone calls, and two instances of the alien’s car being vandalized with
7
political graffiti); Ruiz v. U.S. Att’y Gen., 479 F.3d 762, 763-64 (11th Cir. 2007)
(concluding that petitioner suffered past persecution where the petitioner received
threatening phone calls, was beaten on two separate occasions, and was kidnaped
for eighteen days by the FARC, during which time he also suffered severe
beatings).
Here, Diallo suffered a minor beating and was detained for eleven hours.
This, by itself, would not compel us to reverse the BIA’s decision. “We may
consider a threatening act against another as evidence that the petitioner suffered
persecution where that act concomitantly threatens the petitioner.” De Santamaria,
525 F.3d at 1009 n.7. In this case, Diallo was also threatened with death by the
same soldiers who had already killed his brother. He was able to avoid the same
fate as his brother by escaping.
Moreover, the violence accompanying a credible death threat need not
successfully accomplish its goal. A credible death threat by a person who has the
immediate ability to act on it constitutes persecution regardless of whether the
threat is successfully carried out. Sanchez Jimenez, 492 F.3d at 1233. In Diallo’s
case, we are presented with such a set of facts, and on these facts, we are
compelled to conclude that Diallo suffered past persecution. We can see no reason
why Diallo should have had to stay in his country–awaiting his death at the hands
of the soldiers who killed his brother–to succeed on his claim of past persecution.
8
To the contrary, we conclude that the government’s failure to carry out its credible
death threat does not defeat Diallo’s claim of past persecution.
Our inquiry does not end there, however. Past persecution creates a
presumption of a well-founded fear of future persecution, which the government
may rebut with evidence of changed country conditions or the ability to relocate.
Here, the IJ considered whether Diallo could have relocated, a finding that Diallo
challenged before the BIA but which the BIA did not address. Because our review
is limited to the BIA’s decision, and the question of relocation is a factual one, we
vacate and remand with instructions for the BIA to consider whether the
government can rebut the presumption of future persecution with evidence of
changed country conditions or Diallo’s ability to relocate.4 Gonzales v. Thomas,
547 U.S. 183 (2006); INS v. Orlando Ventura, 537 U.S. 12, 16 (2002); Calle v.
U.S. Att’y Gen., 504 F.3d 1324, 1330 (11th Cir. 2007).
VACATED and REMANDED.
4
Because we remand on this ground, we do not consider Diallo’s claim of future
persecution.
9
Diallo v. U.S. Attorney General
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2010-02-19
Citations: 596 F.3d 1329
Copy Citations